Australian Security Intelligence Organisation

What ASIO does

ASIO is Australia’s national security service. Its functions are set out in the Australian Security Intelligence Organisation Act 1979 (ASIO Act). It is also subject to guidelines issued by the Attorney‑General.

ASIO’s role is to identify and investigate threats to security, both in Australia and overseas, and to provide advice to protect Australia, its people and its interests. ASIO’s functions are set out in the ASIO Act.

Security is defined in the ASIO Act as:

It also includes the carrying out of Australia’s responsibilities to any foreign country in relation to threats to security.

ASIO collects information using intelligence methods (such as human sources, special powers authorised by warrant, and through its liaison relationships) as well as from published sources.

The ASIO Act does not limit the rights of persons to engage in lawful advocacy, protest or dissent. ASIO does not carry out criminal investigations nor have powers of arrest, but does cooperate with Australian law enforcement agencies to assist with criminal investigations that have a national security dimension.

ASIO does not have the statutory authority to engage in surveillance of ordinary members of the community going about their normal business.

ASIO has to obtain external approval for use of its most intrusive powers.

Further information about ASIO, the Attorney-General’s guidelines and the ASIO Act, can be found on ASIO’s Internet homepage located at
<http://www.asio.gov.au>.

ASIO also produces an unclassified annual report to Parliament.

Significant issues

Continued growth and expansion

In recognition of the complexity and unpredictability of the threat environment and the continued increase in the volume and pace of information flows, the Government has provided substantially increased resources to ASIO over a number of years, so that it might respond effectively to the challenging security environment in which it operates.

The significant boost to ASIO’s funding in respect of its core business activities has been directed towards enhancing its capability to respond to threats from various forms of extremism, espionage, foreign interference, the proliferation of weapons of mass destruction, and other forms of politically motivated violence which threaten Australians and Australian interests. The means by which ASIO is doing this are many and varied but include:

New Headquarters

A logical corollary of the growth in the number of persons employed by ASIO is that this has placed significant stress on its existing accommodation and facilities.

In recognition of these pressures, the Government announced in the 2006–07 Commonwealth Budget papers that in principle approval had been granted for a new building to be constructed in Canberra to house ASIO’s central office, as well as their current co-tenants ONA.42

Questioning warrants/questioning and detention warrants

The capacity for ASIO to access questioning warrants and/or questioning and detention warrants, derives from Division 3 of Part III of the ASIO Act. Division 3 was inserted into the Act by the ASIO Legislation Amendment (Terrorism) Act 2003.

A summary of the main features of Division 3 of Part III is provided in the IGIS Annual Reports for 2003–04 and 2005–06.43

My position remains that either I or a senior OIGIS staff member will attend for at least the first day where an individual is questioned under such a warrant and that further attendance will be determined on a discretionary basis.

However, as indicated in the ASIO Annual Report for 2006–07, no warrants were issued under either section 34E (questioning) or section 34G (questioning and detention) of the ASIO Act during the reporting period.

Attorney-General’s Guidelines

Section 8A(1) of the ASIO Act provides that the Attorney-General may, from time to time, issue to the Director-General of Security written guidelines which are to be observed in the performance by ASIO of its functions or the exercise of its powers.

In late 1992 the then Attorney-General, the Hon. Michael Duffy, issued two guidelines to the Director-General of Security concerning the performance by ASIO of its functions relating to:

These guidelines are extant and have not been amended since they were issued.

My immediate predecessor and I have periodically suggested that there would be merit in reviewing these guidelines, to bring them up to date, and so that the current Attorney-General might have the opportunity to endorse them.

During this reporting period ASIO devoted resources to this task, with a view to rolling the existing guidelines into a single more user friendly document, which reflects contemporary practice within ASIO.

I have been consulted as a part of this review process and discussion was on-going as at the completion of the reporting period.

Special briefings

The inquiry, inspection, monitoring and review activities of the office frequently turn up subjects or issues on which I require or would like additional information. This is a natural by-product of the work we perform and should not be read as suggesting that information is being deliberately kept from me or my staff.

On those occasions when I require special or additional briefing on a particular subject I will write to the Director-General of Security seeking his assistance, or if the issue is more pressing, directly contact the relevant senior manager.

Mr Paul O’Sullivan has not placed any restrictions on who I might seek briefings from, or to whom I might speak within ASIO. Indeed, I am pleased to advise that Mr O’Sullivan has actively encouraged his staff to take the initiative to brief me on topical issues, rather than waiting for my request.

Although it is not appropriate for me to detail every such briefing, during this reporting period I met with senior ASIO officers on at least 28 separate occasions to discuss issues such as the long term retention and management of electronic records, inter-agency relations, internal audit procedures, the likely impact of proposed legislation, the progress of various legal actions, immigration related security checking, the internal structure of ASIO, various inspection and inquiry tasks, and in regard to specific operational matters.

I would like to thank those ASIO staff have contributed to the free flow of information and views between our respective agencies.

Training

The workload of the office has increased substantially in the period since my initial appointment as IGIS. Despite this I place very significant store on personally delivering as many presentations and training sessions as I can to each of the AIC agencies, including to ASIO staff.

During this reporting period, my staff and I delivered a total of 15 presentations which were tailored for ASIO specific audiences. My staff and I also spoke to other ASIO staff when making presentations to various courses where participants were drawn from across all AIC agencies.

I also met on several occasions with senior ASIO training staff to discuss the curriculum they have developed for trainee intelligence officers, and to identify opportunities for myself or OIGIS staff to observe or participate in relevant training opportunities.

Inspection activities

General scope

ASIO has a strong domestic focus and is the AIC agency which is most likely to directly interact with members of the Australian public.

Given that ASIO devotes significant resources to activities which have a domestic focus, it is logical and appropriate that ASIO’s intelligence collection activities should be subjected to more intensive and more frequent review by my office than the other members of the intelligence community.

During this reporting period we conducted 56 inspection visits to ASIO’s various offices compared to 48 separate inspections in the previous reporting period.

It has been my practice since becoming IGIS to write to AIC agency heads towards the end of each calendar year, with a proposed visits and inspections schedule for the following calendar year. In advising the agency heads of this schedule, I set out each inspection activity which we plan to undertake but retain the flexibility to alter the schedule as need dictates.

I also write to the relevant agency head following each inspection, so that they have a record of our visit and that I have an additional vehicle by which I can raise any issues or concerns.

The responsiveness of the Director-General of Security to my various letters was slower in 2006–07 than in previous years but the replies I received were generally detailed and considered.

I do not read anything sinister into the increased length of time taken for the Director-General to respond to some of my correspondence, accepting that he is an extremely busy person with a large number of staff and activities to administer and that his responses sometimes need to be drawn from disparate parts of ASIO prior to finalisation and dispatch.

I will nonetheless have regard in the coming year to the timeliness with which responses to my queries are received as one indicator of the on-going health of ASIO, and more specifically the health of the relationship between our respective agencies.

Range of current and new inspection activities

As with previous years this office inspected records associated with a wide range of ASIO activities including warrant operations, approvals to commence an investigation, reviews of investigations, access to sensitive financial records, use of assumed identities and liaison with law enforcement agencies.

In addition to these regular tasks we also instituted two new inspection activities, one relating to the exchange of information about Australian persons to foreign liaisons, and the second involved reviewing the operational activities of a particular section in ASIO. I also set the wheels in motion to set up a monthly meeting with senior ASIO officers.

Details of the outcome of our inspection activities in respect of these activities, to the extent that security considerations permit, are summarised below.

Project to review the exchange of information with foreign liaisons

In an age of high speed modern communications and relatively easy international travel there is a very clear need for agencies such as ASIO to share information with their international counterparts, so that they might keep tabs on persons of security interest.

In order for ASIO to meet its charter obligations in respect of security there will be occasions when it needs to respond to requests for information about Australian persons made by foreign intelligence services or law enforcement agencies, and equally there will be occasions when it is appropriate and reasonable for it to proactively release information of this kind to their foreign counterparts, seeking information in return.

In mid-2006, I wrote to the Director-General of Security proposing to inspect ASIO’s records relating to the release of information about Australian persons to foreign liaison services.

No specific Australian case prompted me to explore this subject, but it is an area where conceivably some sensitive issues could arise.

Prior to commencement of this pilot project, the relevant functional area in ASIO with responsibilities in this area internally reviewed their procedures and determined that they could be improved. Following this internal review development work was commissioned on an electronic template to ensure a consistent approach to the release of information about Australian persons to foreign liaisons. I was invited to provide any thoughts or input to the proposed new processes.

During the reporting period, my staff examined relevant records from some of ASIO’s liaison offices. We found that the new measures introduced by ASIO were working well.

I am appreciative of the open and proactive manner in which ASIO responded to this proposed inspection activity, and the speed of ASIO’s response when they realised that their record keeping practices in the area could and should be improved.

I propose to conduct a further review in the second half of the next reporting period to check that standards are being maintained.

Review of operational activities

During this reporting period I utilised the services of a former Inspector-General, Mr Bill Blick on a consultancy basis to supplement our various inspection activities.

One of the activities I asked Mr Blick to undertake was to conduct a thorough review of the operational activities of a particular section within ASIO. No particular incident served as a catalyst for this activity, rather I judged it timely and prudent that the activities of this section be subject to external review.

I was satisfied with the detailed responses provided to the various queries we posed as a result of this inspection work.

Proposed introduction of monthly meetings

As indicated above, towards the later part of this reporting period I began moves to set up monthly meetings with senior ASIO personnel (at the Deputy Director-General/Division Head level).

The purpose of these meetings will be for me and these officers to meet regularly to discuss significant findings or issues arising out of our inquiry and inspection activities, to exchange views on other issues in which we have a common interest, and to be briefed on new projects. These meetings will also provide a mechanism for me to receive updates on outstanding correspondence, should there be a need to do so, and for me to respond to any requests for feedback or comment levied on my office.

Warrant operations

ASIO has access to a range of special powers to assist it to perform the functions set down for it by Parliament. These special powers can only be used in limited circumstances following the issue of a properly authorised warrant. The range of special powers warrants available to ASIO includes:

As the exercise of these special powers will not ordinarily be apparent to the subject of the warrant and are by their nature highly intrusive, special powers warrants should only be considered for use when other, less intrusive, means of obtaining information are likely to be ineffective or are not reasonably available.

The Attorney-General is the issuing authority for all special powers warrants, with the exception of questioning and questioning and detention warrants, which can only be obtained from a properly qualified issuing authority (i.e. a Federal magistrate, or a judge).

In those cases where it is decided that the best way ahead is to obtain a special powers warrant, ASIO must:

Outcome of warrant inspections

ASIO’s warrant operations constitute some of its most sensitive and highly classified activities. While I can speak in general terms about our inspection findings, there are naturally some issues which, for reasons of security, cannot be included in this report.

Each year my staff and I aim to inspect every warrant request by ASIO, and this objective was achieved in 2006–07.

Our inspections go beyond simply seeing and ticking off each warrant. We also examine each set of warrant related papers to be satisfied that:

Based on my own observations and information which is fed back to me by my staff, I am pleased to report that the quality of the warrant requests which go to the Attorney-General have been of a consistently high standard.

I am also satisfied that in each case where a special powers warrant was issued in 2006–07 ASIO had:

Notwithstanding this generally very favourable assessment of the manner in which warrants are processed in ASIO, my staff and I did identify several issues which merit comment.

B-Party warrants

As detailed elsewhere in this and my previous annual report45, Parliament passed the Telecommunications (Interception) Amendment Act 2006, to give effect to a tranche of recommendations contained in the Blunn Review of the legislation. One change was to rename the Act as the Telecommunications (Interception and Access) Act 1979 (TIA Act).

One substantive change brought about by the passage of this Amendment Act was the insertion of provisions which enable ASIO to seek telecommunications interception warrants in relation to so-called “B-Party” services.

A “B-Party” service is a telecommunications service not owned by a person of security interest but which the person of security interest is likely to be in contact with.

A “B-Party” telecommunications interception warrant can only be sought where all other practical methods of identifying the telecommunications services of a person of interest have been exhausted, or it is not possible to intercept the services of a person of interest.

The use of “B-Party” warrants is contentious because it inherently involves a potential for greater privacy intrusion into the activities of persons who may not be involved in matters of security interest, or the commission of an offence.

Finding an appropriate balance between individual liberties and protecting the country from potential security threats is not easy. In recognition of the extra sensitivity of intercepting the telecommunications of individuals who are at one remove from a person of specific security interest, the Parliament determined that “B-Party” warrants should only be available for a maximum of 90 days rather than 180 days, as is the case with the other types of telecommunications interception warrants for which ASIO has access.

In addition to “B-Party” telecommunications interception warrants being of shorter duration (and thus subject to more regular review should they be renewed), I expressly stated in my previous annual report that:

“We will be particularly vigilant in monitoring the use of so-called “B-Party” warrants which have been provided for as a result of recent amendments to the TIA Act.” 46

I can advise that ASIO did utilise these new provisions during this reporting period, and that my staff had access to all relevant associated documentation when conducting our regular warrants inspections.

Precise figures of the number of occasions which recourse was made to B-Party warrants cannot be included in this report (for security reasons), but I can say that this type of warrant was used sparingly, and on those occasions when such warrants were sought, my staff and I were satisfied that all other practical methods of identifying the telecommunications services of the person of interest had been exhausted, or that it was not otherwise possible to intercept the services of the persons of interest.

Unauthorised telecommunications interception

A review of our inspection records reveals that during this reporting period there was one instance where an error or fault which was within ASIO’s control led to unauthorised telecommunications interceptions occurring. This compares with three such instances during the previous reporting period.

In addition to the singular instance referred to above, my staff identified, or had brought to their attention, three other instances where technical or human error within ASIO’s control had the potential to cause unauthorised collection to occur, but such collection did not eventuate. This compares with 10 such instances of this occurring during the previous reporting period.

While any instance where unauthorised interception occurs, or has the potential to occur, is serious I am very pleased with the improvement which was achieved during the reporting period.

This achievement is even more commendable when one considers that the overall number of services intercepted under telecommunications interception warrants each year is rising, and the legal framework under which warrants are issued is more complex.

In addition to the above cases we also identified or had brought to our attention five instances where the actions of bodies external to ASIO resulted in, or could potentially have resulted in, unauthorised collection occurring. This is the same rate as occurred in the previous reporting period.

The five cases identified were the product of simple human error or minor technical glitches which led or could have led to an undesirable outcome.

In each instance where human or technical failure led to unauthorised collection (either by ASIO or an external body), the intercepted data was destroyed and all related records purged from ASIO’s databases.

In those cases which arose from a technical failure of some sort, appropriate technical solutions were identified by ASIO and/or the external service provider with which ASIO had dealings.

While any instance where unauthorised interception has occurred, or has the potential to occur, is a serious thing, the incidence of detected error is extremely low when considered against the number of services for which special powers warrants have been granted.

ASIO is very ready to devote resources to effecting technical solutions in cases where telecommunications interception errors arise. This is because ASIO is particularly conscious of the consequences which would flow were it to collect and use intercept without lawful authority, and because of the potential for valuable intelligence to be lost, if a “wrong” number or service is being intercepted.

Interception management systems

In addition to our very regular review of ASIO’s warrant documentation files, we also periodically interrogate ASIO’s interception management systems.

We undertake these checks to independently satisfy ourselves that collection is only occurring against telecommunications services which are listed on properly authorised warrants, and within the specified collection period.

I am pleased to advise that none of the checks we conducted during this reporting period revealed any instances of inappropriate or otherwise unauthorised collection.

Other issues arising from warrant reviews

In the course of our regular warrant inspections we identified a small number of minor administrative errors or inconsistencies. These errors included the accidental incorrect dating of warrant requests or authorisation lists but not the warrants themselves. These errors or inconsistencies had no effect on the legality or validity of the warrants in question.

In past years where we have identified dating inconsistencies which could give rise to confusion as to when a warrant was actually signed, ASIO’s practice has been to err on the side of caution and chose the earliest date on which such a request could have been submitted (even if no special powers were actually exercised on the day in question), and use that as the basis for calculating the expiry date for the warrant. This is a prudent approach which I strongly support.

In addition to ensuring that all warrant documentation is as complete and accurate as possible when submitted to the Attorney-General or an Issuing Authority (in the case of questioning and questioning and detention warrants), ASIO is also required to provide a written report to the Attorney-General on the outcome of every warrant which is issued to it.

Reports on telecommunications interception warrants issued to ASIO under the TIA Act, must be furnished within three months of their expiry or revocation, whereas there is no mandatory deadline for reports on the outcome of the other forms of warrants available to ASIO.

ASIO brought to our attention one instance where the outcome of a telecommunications interception warrant was not provided to the Attorney-General within the requisite timeframe. ASIO provided a full explanation as to why this had occurred, indicating that it was a one off administrative error which was caused by an unusual confluence of events, and that relevant staff had been reminded to be more vigilant in the future. I accepted the explanation provided to me as both plausible and reasonable.

Over and above this it is noteworthy that ASIO brought this error to our attention rather than leaving us to detect it. I believes this speaks well of ASIO’s commitment to meeting its obligations and also sends a strong message to its staff that while mistakes will naturally happen they should be acknowledged and corrected expeditiously.

Approval to investigate – procedures

Staff employed within ASIO cannot commence an investigation into a person or organisation simply on a whim, or because their curiosity has somehow been piqued. Rather, a formal and auditable process must be followed.

The Attorney-General’s Guidelines (referred to earlier in this chapter) set out in general terms the circumstances in which ASIO can go about obtaining intelligence relevant to security. These guidelines are supplemented by detailed internal policies and procedures, the application of which is monitored by this office

Taken together, the Attorney-General’s Guidelines and ASIO’s internal policies and procedures require that before an investigation can be commenced a specific approval must first be obtained.

The initial steps involved in this require the requesting officer to take steps to properly identify the person or organisation to be investigated, to detail how that person or organisation is linked or potentially linked to a matter of security interest, and to also detail the objectives, nature and proposed duration of the investigation.

The work classification level within ASIO at which an approval can be given is dictated by the nature and sensitivity of the investigation being proposed. The more sensitive or intrusive the proposed investigation, the more senior the approving officer in ASIO has to be.

During this reporting period, my staff conducted 26 separate file reviews of investigation approvals, spread over 37 days. These inspections were conducted in Canberra and at ASIO’s various interstate based collection offices.

During these ATI inspections we checked to see:

Approvals to investigate – inspection results

As with most of our other inspection activities, detailed discussion of specific cases is not possible but some general comments can be made on the issues we noted in the course of our inspection activities.

Early in the reporting period I wrote to the Director‑General of Security setting out in a single page those elements of the approval process which my staff and I pay close attention to when we conduct our inspections. The comments I made were linked back to specific references to the Attorney-General’s Guidelines.

In writing to the Director-General I acknowledged that while many, if not most, of the approvals we review are of a high standard, I nonetheless thought it would be useful to set out my thoughts on several matters so as to encourage improvement in standards and consistency in approach across ASIO.

Overall, I was quite happy with the manner in which the approval process worked during this reporting period.

In previous years we noted a number of instances where ASIO’s internal policy requirement that warrant operations be supported by a certain type of approval, or a different type of higher level approval, had not been met. I am happy to advise that the incidence of this occurring dropped markedly during the reporting period.

In the course of our inspections we had brought to our attention an instance where the Attorney-General had written to the Minister for Defence, in accordance with section 9(1A)(b) of the Intelligence Services Act 2001 (ISA), seeking the issue of a ministerial authorisation (MA) to permit the collection of the foreign communications of an Australian person, on the grounds that the person in question is, or is likely to be, involved in an activity or activities that are, or are likely to be, a threat to security.

Even though there is no legal or policy requirement specifying that ASIO must also have in place an investigation approval, I advised the Director-General of Security that I thought that ASIO should do so in all such cases, as the issue of an MA conferred similar powers to a domestic telecommunications interception warrant, and all warrants are required to be supported by an investigative approval.

In a subsequent inspection we came across evidence of differing views within the AIC on the way in which section 9(1A) of the ISA should be interpreted and applied. Further discussion of this subject is provided elsewhere in this report.

In several inspections we noted that some officers were using the same form of words when putting limits on particular investigative activities. We actively seek to discourage the use of such formulae, as it does not show evidence that the approving officer has considered the case on its individual merits, nor does it provide meaningful guidance to case officers who have to act in accordance with this advice.

We also noted several instances of minor procedural defects (e.g. where expiry dates have not been properly inserted, the creation of duplicate authorities, and instances where some relevant supporting documentation was not on file) but these were very much the exception and did not point to any systemic concerns.

The Attorney-General’s Guidelines requires that each approval which is issued should be reviewed, at least annually. In practice this means that a formal review is conducted within a reasonable period following the expiry of an approval, or prior to a new approval on the same subject being sought.

We found that in almost all cases reviews were completed prior to an approval being renewed, or within a reasonable period following their expiry.

ASIO and law enforcement agencies

ASIO naturally has quite close links to law enforcement agencies in all Australian jurisdictions.

These links are necessary to assist with security planning for major events such as APEC where Australia has obligations with respect to the protection of foreign dignitaries who visit Australia, and because there is often an overlap between persons who are planning for or engaged in criminal activities, and persons of security interest.

As has been the case for many years, whenever we visit any of ASIO’s state offices we closely review ASIO’s files which detail their interactions with locally based law enforcement agencies.

On the basis of the materials available during our inspection visits, I am satisfied that ASIO is committed to working cooperatively with local law enforcement, within the constraints imposed by the ASIO Act.

I am also satisfied that appropriate control measures exist to ensure that personal information on persons of security interest is only exchanged where there is a demonstrable need for this to occur.

Information obtained from AUSTRAC

As touched on in an earlier chapter of this report which reviewed significant legislative developments during the reporting period, the AML/CTF Act was passed by the Parliament in late 2006, received Royal Assent on 12 December 2006, and its provisions are being progressively introduced over a two year period.

The AML/CTF Act forms part of a legislative package which aims to improve Australia’s anti-money laundering and counter-terrorism financing system to meet higher international standards, and to make it harder for criminals to use the profits of crime and for terrorists to receive money to carry out terrorist acts.

The AML/CTF Act provides a legal framework in which “designated agencies” are able to access information which is held by AUSTRAC, in strictly controlled circumstances.

ASIO and IGIS have both been made “designated agencies” for the purposes of the AML/CTF Act.

In ASIO’s case, access to AUSTRAC information assists the Director-General of Security to fully discharge his responsibilities consistent with the functions prescribed for ASIO under section 17 of the ASIO Act, whereas my office requires access to AUSTRAC information so that we might monitor that ASIO is complying with the conditions under which access to this information has been granted to it.

Prior to the AML/CTF Act coming into effect, ASIO sought and obtained access to AUSTRAC information within the legal framework established by the Financial Transactions Reports Act 1988 (FTR Act).

In accordance with the terms of the standing MOU which exists between this office and AUSTRAC, I provided a certificate to the Attorney-General on 8 December 2006, stating that ASIO had complied with the requirements of the Attorney-General’s Guidelines, the FTR Act and the ASIO-AUSTRAC MOU during the 2005–06 reporting period.

During the current reporting period my staff conducted nine AUSTRAC related inspections at ASIO’s central office compared to six such inspections during the previous reporting period. My staff also reviewed relevant records in ASIO state offices whenever the opportunity presented itself.

In the course of the above inspections we identified a small number of minor procedural issues none of which were of material effect.

Access to taxation information

Section 3EA of the Taxation Administration Act 1953 provides that the Commissioner of Taxation may disclose tax information to an authorised ASIO officer if the Commissioner is satisfied that the information is relevant to the performance of ASIO’s functions under subsection 17(1) of the ASIO Act.

ASIO’s access to taxation information is the subject of an MOU between the Director-General of Security and the Commissioner of Taxation, and also ASIO’s internal guidelines and procedures.

ASIO accesses tax information infrequently, due to the particular sensitivities associated with information of this kind. I consider this to be a sensible and prudent approach.

Despite the understandable reserve ASIO has shown to date, I am nonetheless satisfied that ASIO should continue to have access to taxation information in strictly limited circumstances, as an investigative tool and/or as an aid to understanding the activities of persons of security interest.

Use of assumed identities

As has been our practice for many years, my office also periodically reviews ASIO’s assumed identity registers.

In conducting this review activity my staff and I review approximately 10% of all authorisations, variations and revocations, relating to assumed identities which had been processed during the reporting period.

The registers we review record all instances where an assumed identity has been officially allocated to an ASIO officer for operational purposes, details what documentation has been obtained to support that identity, sets out what limitations have been imposed on the use of the identity, identifies who has authorised the use of the identity, and also details any variations which have been authorised following the original issuing of an assumed identity.

During this reporting period we conducted two inspections of the assumed identity registers, which was the same number as conducted during the previous reporting period.

On the basis of these inspections I am satisfied that the authorisation, allocation and use of assumed identities by ASIO staff continues to be tightly controlled, and that adequate internal checking and review mechanisms exist to ensure that allocated assumed identities are not being misused or abused.

Archives

The Director-General of Security continues to provide my office with quarterly progress reports on ASIO’s performance in meeting its obligations under the Archives Act 1983.

These reports provide an indication of any trends which might be developing in relation to requested material, or possible difficulties in meeting high volume requests.

On the basis of the reports I have received from the Director-General, I am satisfied that ASIO’s performance in meeting its obligations continues to be satisfactory.

Complaints and inquiries

As at 30 June 2006 I had two preliminary inquiries in train into complaints about ASIO, which I carried over into this reporting period. Both of these inquiries were concluded early in the reporting period.

The office conducted preliminary inquiries into five new complaints about ASIO in the reporting period compared to 11 in the previous period, and initiated full inquiries into three new matters, which is the same number as in the previous reporting period.

It should be noted that one of the full inquiries I conducted was prompted, in part, by the receipt of 37 letters of complaint. For statistical purposes I have counted this as being one inquiry/complaint rather than 37.

In addition to the preliminary and full inquiries briefly described above, the office received 119 other complaints specifically about ASIO, from individuals seeking to reopen former complaints, or making new complaints raising specific concerns (compared to 50 in 2004–05, and 71 in 2005–06).

Of these 119 complaints 74 were concerned with the timeliness with which ASIO processed immigration related security checks. My handling of these complaints is discussed below, followed by brief summaries of several other complaints I addressed during the reporting period.

Immigration related complaints handled administratively

There has been a noticeable increase in the reporting period in the number of complaints about the timeliness with which ASIO processes security assessments for immigration applications.

A total of 74 complaints were received in relation to 72 complainants in this reporting period. This compares with 32 complaints received in the previous reporting period. The complainants varied from permanent protection visa applicants to skilled migrant and spouse visa applicants. These complaints were lodged either by the complainants themselves, migration agents acting on their behalf, or following a referral by another government agency.

Each of these 74 complaints received were, in the first instance, handled administratively, with two progressed further as preliminary inquiries. Matters handled administratively are actioned by making an informal inquiry of ASIO to verify that the case has actually been referred to ASIO by the Department of Immigration and Citizenship (DIAC), to determine the length of time a request for a security assessment has been with ASIO and to receive a brief outline of the nature of the case. Based on this, I can in many cases make a judgement on the legality or propriety of ASIO’s handling of the case.

In those cases where a judgement cannot be made based on ASIO’s response to an administrative inquiry, preliminary or full inquiries can be commenced to investigate the matter further. In the reporting period, I commenced two preliminary inquiries into immigration related cases.

A 100% increase over the past 12 months in complaints about ASIO’s handling of immigration related matters has caused me to question ASIO regarding the timeliness of its processing of security assessments.

The time taken to complete a security assessment varies depending on the individual circumstances of the case. Some cases are more complex than others and therefore take longer to process than would otherwise be the case. Notwithstanding this, such a significant increase in complaints about timeliness has highlighted an issue which requires my continuing close attention.

ASIO has advised me that it is acutely aware of this issue and is taking remedial steps to address it by allocating additional resources and upgrading IT systems to improve timeliness.

Although it falls just outside the reporting period, it should be noted that on 8 July 2007 the Prime Minister announced a project to enhance the accuracy and speed of information passing between ASIO and DIAC which should lead to a significant improvement in processing timeframes.

Alleged delays in security assessments for Commonwealth employment

During the reporting period I received two complaints from members of the public who raised concerns about alleged delays by ASIO in the processing of security assessments in respect of themselves.

The security assessments in each case where required as the complainants were applicants for designated security assessment positions within different Commonwealth agencies which each required the successful candidate to hold higher level security clearances.

The security assessment process is an integral part of the selection process for designated security assessment positions, and even if an individual is the preferred candidate after a merit based selection exercise, a formal offer of employment cannot be made until the security assessment process has been completed and the candidate meets all mandatory requirements (i.e. they are the holder of an appropriate level security clearance).

The complainants to my office suggested that they suffered disadvantage due to the length of time allegedly taken by ASIO to undertake and complete their security assessments.

Subsection 8(8)(c) of the IGIS Act, generally prohibits the IGIS from reviewing matters which fall within the jurisdiction of the Security Appeals Division (SAD) of the AAT. The SAD is empowered to review adverse and qualified security assessments which are made by ASIO, in respect of applicants for Commonwealth employment.

In each of the cases brought to my office, ASIO had not made an adverse or qualified assessment but was still going through the assessment process.

I therefore determined that I could reasonably initiate preliminary inquiries into each complaint, with a focus on the timeliness with which ASIO had handled each case, so long as I did not attempt to conduct a merits based review (which would fall squarely outside of my jurisdiction).

I concluded my inquiries into the first of these complaints in late 2006, and advised the complainant that I was satisfied that ASIO had accorded their case serious consideration and appropriate priority.

I received the second of these complaints in the second half of the reporting period and it was still on foot as at 30 June 2007 (but finalised early in the 2007–08 reporting period).

Security assessment of UK citizen Mr Rhuhel Ahmed

In the later part of 2006 various media outlets published stories claiming that a former Guantanamo Bay detainee, Mr Rhuhel Ahmed, had been denied an entry visa into Australia, allegedly on advice from ASIO.

Shortly afterwards I received 37 letters from members of the public expressing concern that Mr Ahmed had been denied a visa to enter Australia. Each of these correspondents asked me to investigate what role ASIO had played in this decision, and whether the decision was politically influenced.

I initiated a formal inquiry on 28 November 2006 and provided a full report of my findings to the Attorney-General and the Director-General of Security on 12 March 2007.

The conclusion I reached was that ASIO had been involved in making a security assessment of Mr Ahmed, in response to his application for a Business (Short Stay) Visa, and that in doing so it had acted legally and properly. There was no evidence or indication that the assessment had been the subject of improper influence.

A copy of my unclassified report into this matter is provided as Annex 3 to this annual report.

Migration related security assessments

As reported elsewhere in this chapter there was a marked spike in the number of complaints or referrals made to this office by persons expressing concern about the timeliness with which ASIO is processing security assessments for applications for short and long term visas across a wide spectrum of visa categories.

As I have explained, I chose to handle the bulk of these complaints administratively, but there were a small number of complaints during the reporting period which I pursued as preliminary inquiries.

In each of these instances there was a special circumstance which impelled me to take this course (and thereby bring the specifics of that case to the attention of the Director-General of Security).

In one of these cases I was able to advise the complainant that while there had been some delay in the processing of his visa application the clearance process had been completed and that following completion of the assessment, a visa had then been swiftly issued.

In the other new case which I pursued as a preliminary inquiry, I advised the complainant (via his migration agent) that while the time taken to conduct the assessment was regrettable the assessment was not straightforward, and that the reasons for the delays which had been experienced were understandable.

ASIO career information

In my previous annual report I provided some general background information about a complaint which was initially handled by my predecessor as Inspector-General, Mr Blick, which I had cause to further examine during the 2005–06 reporting period.47

Briefly restated, the complainant claimed that unfounded and/or malicious information about his former career in ASIO had been disclosed to a state police force for whom he worked and that the use of this information in an assessment of him had ultimately contributed to his loss of employment.

In March 2005 I was contacted by a person who was upset that he had been named in civil proceedings which the complainant had initiated. The person who contacted me had become aware of my predecessor’s inquiry and report through the court proceedings and felt he had been denied natural justice.

I reviewed the papers and then wrote to three people with an interest in this matter seeking their views as to whether they wished me to reopen the inquiry which had been concluded by Mr Blick.

In doing this I pointed out that subsection 11(3) of the IGIS Act requires that the IGIS can only inquire, or inquire further, into a matter which is also before the courts or a tribunal if there are “special reasons” for the IGIS to do so.

Following receipt of responses from the persons I had written to, I judged that no such “special reasons” existed for me to make further inquiries while the matter was before the courts.

The matter rested there until late in the 2005–06 reporting period, when I ascertained that the complainant’s civil action had been dismissed, as the complainant had not been present when the matter had been called. I also learnt that shortly after this event the complainant had died in apparently tragic circumstances.

As there was now no possibility that these matters would be considered by a court, and therefore no impediment to an IGIS inquiry, I advised the Attorney-General in July 2006 that I intended to inquire further into various matters associated with this case.

In the course of my inquiry, I took sworn evidence from one person Mr Blick had interviewed, and interviewed another person under oath. I also formally required the provision of information in writing from a third person.

I concluded this inquiry late in 2006, and in early 2007 provided a copy of the report of my inquiry to the Attorney-General. My conclusion was that Mr Blick’s original conclusions were all soundly based.

Claim for assistance arising from activities undertaken for ASIO

In June 2006 I was contacted by an individual who claimed to have had a long association with ASIO which had ceased in the 1970s.

The complainant claimed that the activities he had undertaken for ASIO and the circumstances under which he ultimately ceased to assist ASIO, was having a serious adverse impact on his current state of health.

I handled this complaint administratively in the first instance, to establish the complainant’s bona fides.

Shortly afterwards I wrote to the Attorney-General, advising that I thought the matters raised by the complainant should be inquired into, but as these matters preceded the establishment of this office, I was required by subsection 8(8)(a) of the IGIS Act to obtain his permission before I commenced such an inquiry. The Attorney-General provided approval for this inquiry to proceed.

Following a close examination of relevant documents and files, discussions with relevant ASIO staff, and with the benefit of a legal opinion, I concluded my inquiry in April 2007.

I advised the complainant that he appeared to have standing to make a claim under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), at least in respect of some of the time in which he actively assisted ASIO, and that should he choose to do so, it was open to him to lodge a claim with the Commonwealth agency which processes claims made under the SRC Act, namely Comcare.

I encouraged the complainant to pursue this course, as Comcare is a specialist body with the competence and expertise to inquire into the basis for claims of ill health.

I advised the complainant that as this course was available to him, I had decided to conclude my inquiry.

Footnotes
42 Budget Funds Enhanced Resourcing for ASIO, press release 075/2006 dated 9 May 2006 issued by the Attorney-General, the Hon Philip Ruddock MP.
43 IGIS Annual Report 2003-2004, Canberra, October 2004 pp. 15-18; 2005-2006, Canberra, October 2006 pp. 11-12.
44 These guidelines can be accessed via the ASIO website <http://www.asio.gov.au> (accessed 15 August 2007).
45 IGIS Annual Report 2005-2006, Canberra, October 2006 p. 14.
46 ibid., 55.
47 IGIS Annual Report 2005-2006, Canberra, October 2006, p. 34.

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