|
IGIS Annual Report 1999-00 |
IGIS Annual Report 1999-00
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION
INSPECTION ACTIVITIES
Scope and reporting arrangements
59. Shortly after becoming Inspector-General, I wrote to the Director-General of Security proposing a program of inspections involving the following broad categories of ASIO activity:
- warrant operations;
- authorities to investigate;
- provision of information to, and liaison with, law enforcement agencies; and
- compliance with the Archives Act.
60. The Director-General and I have agreed that if any concerns or matters worthy of comment arise during inspection activities, my staff or I will discuss these matters with an appropriate senior manager or liaison officer, in the first instance.
61. We have also agreed that any concerns that cannot be properly addressed in this manner will be put in writing and addressed to the Director-General for consideration and/or comment.
62. The Director-General and I have also agreed procedures that would operate should I form the view that any matter arising from an inspection needed to be brought to the attention of the
Attorney-General or the Prime Minister.
63. No matters arose during the 1999-2000 reporting period that required me to write to the Attorney-General or the Prime Minister.
64. In all instances where my staff or I have spoken to ASIO staff on a matter arising out of an inspection, I have made it my practice to write a letter outlining the pertinent issues. In each case ASIO has provided a considered response.
Warrant operations - procedures
65. The Attorney-General has the authority to issue warrants to assist ASIO to meet its obligations under the ASIO Act 1979. Such warrants provide authority for the use of special powers such as intercepting telecommunications, using listening devices, entering and searching premises, intercepting mail, using tracking devices and remotely accessing computers.
66. ASIO only seeks such warrants when there are sound operational requirements for their use and the information cannot be obtained by less intrusive means. The Director-General personally signs each request to the Attorney-General for issue of a warrant and the Attorney-General's Department provides separate legal advice to the Attorney-General in relation to each request.
67. We have developed a list of key documents which should accompany each warrant application and which we seek to identify during our inspections of the Organisation's warrant documentation files.
68. My staff and I visit ASIO's central office approximately every six to eight weeks, and ASIO's state offices as the opportunity arises, to inspect documentation associated with current or recently concluded warrant operations.
69. We check for documents showing:
- the intelligence or security case which has been made in support of the application to use special powers;
- that the person of interest to ASIO and the individual named in a warrant are actually identical;
- that appropriate internal approvals for the warrant request have been obtained;
- the persons who have been given authority to execute the warrant or to communicate information obtained from a warrant;
- the Attorney-General's approval, when obtained;
- reports of the outcome of executed warrants;
- that the activity concerned did not begin before, or continue after, the period approved by the
Attorney-General.
70. The existence of these records provides reassurance that ASIO does not seek or obtain special powers without proper justification, thorough planning and appropriate levels of approval.
71. The requirement to produce these records for external scrutiny also serves to remind ASIO staff members at all levels throughout the Organisation, that they are accountable for their actions.
Warrant operations - results of inspections
72. We inspect documentation for all warrants issued. In the reporting period we also reviewed a number of warrant operation cases several times, in order to be satisfied that reports of warrant outcomes were actually prepared and provided to the Attorney-General within the requisite time.
73. In all cases reviewed in 1999-2000 our inspections revealed that ASIO had taken considerable care to ensure that the conditions upon which a warrant is granted were met, that the reporting of results of warrant operations was timely, and that due attention had been paid to detail. In no case did I think that ASIO had insufficient justification for seeking a warrant.
74. The placement on file of key accountability documents (as described above) was very good, with only a few instances of documents that should have been kept on file not being found there. In these cases the errant documents were subsequently located, brought to our attention, and then placed on the appropriate file.
75. Warrant operations are generally conducted covertly so as not to alert targets that they are of interest to ASIO, and to maximise the prospects of gathering valuable intelligence.
76. As these operations tend to involve highly classified matters, it is difficult to report noteworthy aspects of these cases, but several can be commented upon to illustrate ASIO's concern to ensure that its operations are conducted strictly in accordance with the law and prescribed procedures.
77. In one case ASIO immediately suspended its collection activities against a particular target when, due to changing circumstances, concerns were raised about the continuing applicability of a telecommunications interception warrant.
78. In the case in question a warrant had been issued to intercept a specific telephone service subscribed to by a target identity. Some time after the warrant came into effect, the target was replaced by a person undertaking similar activities who used the same phone service.
79. The question arose of whether a new warrant was needed. After obtaining legal advice that a fresh warrant was necessary, ASIO sought and obtained a new warrant from the Attorney-General.
80. This case is noteworthy because ASIO suspended its collection activities immediately and of its own volition until all uncertainty about the legality of its actions were removed. It recognised the importance of ensuring the legality of its position even though this meant that there was a gap of several weeks in the intelligence that was gathered.
81. In the course of our inspection visits, ASIO brought to attention two instances where telephone services had been inadvertently intercepted without authority.
82. In the first instance several telephone services which had been intercepted under a previous warrant were not included on a list of the services to be intercepted when an application was made to the Attorney-General to renew the warrant. Due to a technical misunderstanding, however, they were erroneously reconnected to ASIO's interception system.
83. As the area within ASIO that had sought the warrant believed the telephone services were no longer being intercepted, the lines were not monitored.
84. As soon as ASIO became aware of the error the lines were disconnected, warrants for other operations were double checked to ensure no similar errors had occurred, an additional checking procedure was put in place, and my office was alerted. No recording took place of material from the services.
85. The second case that ASIO brought to my attention concerned the inadvertent interception of a service caused by a keystroke error. This error, which was beyond ASIO's control, was quickly identified and immediately rectified. The material intercepted was unintelligible.
86. As indicated above, I received prompt and satisfactory explanations in each case and categorical assurances that the intercepted material was either unintelligible or was not monitored. I was also assured that all material collected in these circumstances had been destroyed and that appropriate procedures had been put in place to minimise the risk of any repetition.
87. The unauthorised interception of telecommunications, albeit inadvertent, is obviously a matter of concern. I am satisfied, however, that ASIO appreciates the seriousness of such incidents, that it made no effort to hide their occurrence from scrutiny, and that it took prompt and appropriate remedial action as soon as it became alert to a problem.
88. Last year's annual report mentioned (at paragraphs 47-48) that ASIO had asked an intelligence service of another country to assist by translating some foreign language product of telephone interception material obtained by ASIO under warrant.
89. I subsequently informed the Director-General that I had no difficulty with the use of foreign translators subject to ASIO being satisfied that suitable translators were not available domestically, and that adequate safeguards were in place to protect the substance of the intercepts from use by foreign services.
90. I pursued this issue with the Director-General during the 1999-2000 reporting period and he agreed that any future use of the translators of foreign intelligence services would be accompanied by a formal exchange of letters clearly setting out the boundaries of the agreement.
91. The Director-General also agreed that in cases where ASIO intends to use foreign translators the Attorney-General will be advised of this as a part of the warrant request process.
Authorities to investigate - procedures
92. The "authority to investigate" (ATI) process involves applications by ASIO staff to more senior officers for authority to conduct investigations in relation to individuals or organisations.
93. We regularly inspect the records generated as a part of the ATI consideration process and the files recording investigative activity resulting from the issue of these authorities.
94. ASIO's internal policy governing the use of ATIs was substantially revised during the 1998-1999 reporting period to clarify and streamline the process. The period covered by this report therefore represents the first full year in which the revised policy guidelines had effect.
95. During 1999-2000 the office examined files relating to every ATI issued in ASIO's central office, and a sample of those issued in its other offices during our periodic visits interstate.
96. Based on these inspection activities, I believe the arrangements are working well and strike an appropriate balance between the need to protect the privacy of individuals and the operational needs of ASIO.
Authorities to investigate - results of inspections
97. As with warrant operations, detailed public discussion of specific ATI cases is not possible. Despite this restriction several cases reviewed during the reporting period can be commented upon in general terms.
98. In one case, I noted that a member of the public had contacted ASIO and offered assistance in relation to contacts he claimed to have with an extremist group. ASIO raised an ATI on this individual and undertook a range of checks before meeting him in person.
99. I queried with the Director-General of Security whether it is ASIO policy to investigate in this way all individuals who volunteer information of this kind.
100. The Director-General said that as the quality of information volunteered by members of the public varies widely it is sometimes necessary to conduct some basic background checks as a precaution against pranksters, disaffected individuals, people bearing grudges or entities attempting to embarrass or compromise the Organisation.
101. In the case in question I was assured, and am satisfied, that ASIO had reasonable grounds to raise an ATI. Furthermore the checks made did not represent an unreasonable infringement of the person's privacy.
102. Another case concerned an offer by an ASIO informant to supply a document reporting the private comments and views of an Australian who was of no security or other intelligence interest to ASIO.
103. The offer was both unforeseen and unsolicited and no such document was actually provided. I was concerned, however, to understand the procedures within the Organisation for handling offers of this kind.
104. When I raised this with the Director-General, he told me that ASIO case officers, monitors and linguists are instructed not to report such information, if received. He said that there are circumstances where declining to accept such material is the most appropriate course to take. There are also, however, circumstances in which, for operational reasons, it may be necessary to accept such an offer even though ASIO will not use the material. In such cases the material is destroyed.
105. Towards the end of the reporting period I wrote to the Director-General suggesting that he consider dealing explicitly with this issue in the relevant chapter of ASIO's internal policy and procedures manual.
106. I also regularly reviewed the progress of a security assessment case in which ASIO raised an ATI on the subject. While I was satisfied that the raising of an ATI had been appropriately justified, I expressed concern that the assessment process appeared to have been subsumed by intelligence gathering and that this had resulted in a lengthy delay to issuing an assessment.
107. The Director General provided a satisfactory response to these concerns and advised at the same time that an assessment decision had been made.
108. On the basis of our inspection activity I am satisfied that the ATI regime is operating as it should and that ASIO processes ensure that its intrusive powers are not subject to abuse.
Dealings with law enforcement agencies
109. Members of the office and I attempt to visit each of ASIO's interstate offices at least once each year. During these periodic visits we examine ASIO's records which record exchanges of information with local law enforcement agencies.
110. During the reporting period we found these records to be properly maintained and sufficiently detailed for us to conclude that the exchange of information that occurs is necessary for the performance of the functions of the organisations concerned.
111. During the 1999-2000 reporting period I also met with senior police in four jurisdictions to discuss their experiences when dealing with ASIO. Each jurisdiction reported a good level of cooperation with ASIO, with proper understanding on ASIO's part of the distinction between its role and that of the police forces.
Archives Act compliance
112. The Director-General of Security provides our office with quarterly progress reports on ASIO's performance in meeting its obligations, under the Archives Act 1983, to provide access to records more than 30 years old. We meet with ASIO staff from time to time to discuss their handling of significant archives issues.
113. The office sometimes also receives complaints about the handling of archives access requests. A discussion of one of these complaints is at paragraphs 126-133. Applicants who are dissatisfied with decisions under the Archives Act also have the right to have decisions reviewed by the Administrative Appeals Tribunal.
Expanded scope
114. Following the passage of the ASIO Legislation Amendment Act 1999 in late 1999, I advised the Director-General that I intend to regularly inspect ASIO's access to, and use of, information obtained from AUSTRAC and the ATO.
115. ASIO's access to, and use of this information is to be strictly limited in accordance with memoranda of understanding entered into between ASIO and AUSTRAC, ASIO and the ATO, and AUSTRAC and my office, respectively.
116. Each of the proposed memoranda were referred to the Parliamentary Joint Committee on ASIO for consideration. The committee convened a round?table meeting of senior representatives of each of the above parties on 8 June 2000 during which I responded to questioning about the office's proposed inspection activities.
117. At the end of the period covered by this report, these memoranda were still to be formally concluded. ASIO will not be able to obtain AUSTRAC or tax information until the proposed MOUs have been finalised.