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Inspection of ASIS activities

During 2016–17, IGIS staff conducted a range of regular inspections of ASIS activities. These inspection activities are supplemented by briefings on various matters across the year that either this office requests, or are provided proactively by ASIS. Such briefings and follow up investigations allow the office to stay abreast of emerging issues, or follow up trends observed in inspection activities.

Ministerial authorisations to produce intelligence on Australian persons

IGIS staff reviewed all Ministerial submissions produced by ASIS and found that in general they were of a high standard and were complemented by ASIS's habit of self-reporting instances of non-compliance.

During 2016-17, ASIS self-reported an instance of non-compliance with section 8(1)(a)(i) of the ISA that had occurred during the 2015-16 reporting period, that is, where ASIS had collected intelligence on Australian persons without proper authorisation. This instance involved ASIS receiving reporting from a liaison partner after a threat to security ministerial authorisation had expired and before the individual was included in a class section 13B notice. During the intervening period, ASIS was required to alert liaison partners that it does not have the proper authority to collect intelligence on this particular individual.

ASIS notified the IGIS office of four instances where, during 2016-17, it had undertaken an activity without the authorisation required by the ISA. ASIS also conducted internal investigations into how and why the breaches occurred. While the sensitive nature of ASIS's activities means that further details of these matters cannot be provided here, the Inspector-General is satisfied that ASIS's internal investigations and subsequent remediation were methodical and thorough.

There was also one instance where a member of ASIS engaged with a foreign Government agency without the appropriate authority. Section 13(1)(c) of the ISA requires ASIS to seek approval from the Minister for Foreign Affairs before cooperating with authorities of other countries. As such, the engagement with the foreign authority was non-compliant with section 13(1)(c). ASIS subsequently received authorisation to engage with the authority and provided refresher briefings to the officer involved.

Emergency ministerial authorisations

There were three instances where ASIS sought an oral authorisation from the Minister in an emergency using the section 9A provisions in the ISA. In all three cases, ASIS complied with section 9A(5)(a) of the ISA by ensuring that a written record of an authorisation given under section 9A was made no later than 48 hours after the authorisation.

ASIS reported that it was non-compliant with section 9A(5)(b) of the ISA with one authorisation. That is, ASIS did not provide a copy of the record to the IGIS within three days of the authorisation was given. Due to public holidays, this office was closed during the period when the authorisation being made. As ASIS provided the record on the day the office re-opened, the Inspector-General had no concerns about the delay in notification.

Under s 10A(4) of the ISA, ASIS is required to provide the Minister with a written report in respect of each activity carried out in reliance on an authorisation provided under s 9A or 9B, within one month of the day on which the relevant authorisation ceased to have effect. ASIS identified a case where it was non-compliant with this requirement relating to an emergency authorisation provided in late 2015-16. ASIS notified the Minister of the error accordingly. The submission to the Minister also noted, erroneously, that it had notified this office of the breach. ASIS subsequently wrote to the Minister and to this office, correcting the advice in its initial submission.

There were two instances during the reporting period where the Director-General of ASIS exercised his power to give an authorisation in an emergency when the minister is not available. As these legislative provisions are relatively new for the intelligence agencies, having come into effect in 2014, the IGIS office has closely examined their use by ASIS.

Section 9B(8A) of the ISA requires the Inspector-General, within 30 days to:

  • consider whether the Director-General complied with the requirements of section 9B in giving the authorisation; and
  • with respect to ASIS, provide the Minister for Foreign Affairs with "a report on the Inspector-General's views" of the extent of the Director-General's compliance with the requirements of section 9B in giving the authorisation; and
  • provide the Parliamentary Joint Committee on Intelligence and Security a copy of the conclusions in that report.

In relation to both emergency authorisations, the Inspector-General concluded that the Director-General's actions in the circumstances were appropriate and reasonable and ASIS provided timely and comprehensive briefings to the Inspector-General. In relation to the first emergency authorisation, however, the Director-General's approval did not meet a critical statutory requirement. This is because the Director-General gave oral approval followed by a written record of the approval rather than making the authorisation in writing. This was not consistent with the ISA which requires the authorisation itself to be in writing; a later recording of the decision in writing is not in accordance with the Act. The Inspector-General noted that ASIS took immediate steps towards enabling it to address the legislative requirements in any future cases. The IGIS was satisfied that ASIS acted in accordance with the requirements of the ISA for the second emergency authorisation.

The Inspector-General provided the Minister for Foreign Affairs with a report discussing the extent of the Director-General's compliance with the requirements of s 9B in giving the authorisation. A copy of the conclusions in that report was given to the Parliamentary Joint Committee on Intelligence and Security.

Section 13B Notices

Section 13B of the ISA allows ASIS to produce intelligence on an Australian person, or a class of Australian persons, to support ASIO in the performance of its functions, without first obtaining authorisation from the Minister for Foreign Affairs. For this power to be enlivened it is necessary for ASIO to provide ASIS with a notice saying that it requires the production of intelligence on the Australian person or class of Australian persons. Alternatively, an authorised ASIS officer must reasonably believe that it is not practicable in the circumstances for ASIO to notify ASIS before the intelligence about the Australian(s) can be collected. The IGIS office continued to monitor the use of s 13 of the ISA throughout 2016-17 and was satisfied there were no instances where ASIS officers authorised collection using the s 13B power without notification from ASIO.

Under s 13F(4) of the ISA, as soon as practicable after each year ending 30 June, ASIS must provide a written report in respect of ASIS activities undertaken in accordance with s 13B during the reporting year. ASIS met this requirement and the IGIS is satisfied that ASIS appropriately advised the Minister of the details of the individual s 13B notices and class s 13B notices.

Protecting the privacy of Australian persons

During regular inspection activities, IGIS staff pay close attention to the distribution of intelligence about Australian persons by ASIS. ASIS continued to provide training to its staff on producing intelligence on Australian persons and introduced initiatives to mitigate against the risk of unintentionally reporting on Australian persons.

Throughout 2016-17 a number of occasions were identified where the privacy rules were not applied prior to ASIS reporting on an Australian person or company. The non-application of privacy rules was due either to human or technical error. Of these cases, none was identified where reporting on an Australian person would not have been reasonable and proper had the rules been applied at the time. The IGIS is confident that the total number of cases where there were issues was a very small percentage of the overall amount of intelligence produced by ASIS.

ASIS reported two occasions in 2016-17 where the 'presumption of nationality' was overturned; that is, information became known that an individual was actually an Australian person. In these instances there was no breach of the rules as the presumption of nationality was reasonable at the time they were made and the information indicating the individuals were Australian was not available at that time.

Review of operational files

ASIS activities involve the use of human sources. Its officers are deployed in many countries to support a wide range of activities including counter-terrorism, efforts against people smuggling and support to military operations. These activities are always sensitive and often high-risk.

Reviews of ASIS's operational case files during 2016-17 involved inspecting a sample of files which had been selected by OIGIS officers. The inspections focused on high-risk issues including the appropriate application of the privacy rules. These inspections provide insight into the operational environment in which field officers operate, the extent to which staff in ASIS headquarters evaluate risk and guide sensitive activities, and often indicate the health of inter-agency relations. The sensitive nature of ASIS's operational activities means that specific detail of the nature and range of issues inspected cannot be provided in a public report.

During the reporting period, IGIS staff were unable to locate some records and raised concerns with ASIS about its recordkeeping. ASIS conducted an internal investigation into the issue; it identified the source of the error as faults in its information communications technology and implemented several strategies to remedy the problem. The total number of cases where there were issues proved to be a very small percentage of the overall number of records produced by ASIS.

Authorisations relating to the use of weapons

Schedule 2 of the ISA requires the Director-General of ASIS to provide the Inspector-General with:

  • copies of all approvals issued by the Minister of Foreign Affairs in respect of the provision of weapons and the training in and use of weapons and self-defence techniques in ASIS
  • a written report if a staff member or agent of ASIS discharges a weapon other than in training.

This reporting requirement was met during 2016-17 and the Inspector-General was satisfied that there is a genuine need for limited numbers of ASIS staff to have access to weapons for self-defence in order to perform their duties.

During 2016-2017 OIGIS officers also examined ASIS weapons and self-defence policies and guidelines as well as its training records. The inspections found that ASIS's approach to governance and record keeping on these matters to be appropriate.

Throughout the reporting period, the ASIS Compliance Branch focused on training and audit activities in areas that present the greatest risk of a weapons-related incident occurring. It reviewed its controls surrounding drug and alcohol testing associated with weapons qualifications. As a result of that review, ASIS improved the monitoring of its drug testing regime. ASIS regularly updated this office of its activities in this area. ASIS also reported two instances of non-compliance with ASIS's procedures as described in its internal weapons guidelines.

The first involved an ASIS officer transporting a weapon without the proper authority to do so. The officer was travelling with members of the Australian Defence Force who were carrying weapons for force protection. It is understandable that the ASIS officer would also want to carry a weapon for self-defence (force protection) purposes however their actions were not in accordance with ASIS's policies and procedures. The sensitive nature of ASIS's operational activities precludes further details being provided in a public report, however, having reviewed the incident the Inspector-General is confident that, despite the officer's noncompliance with ASIS procedures, at all times the weapon was secure. ASIS provided refresher briefings to the officer on their obligations under the weapons guidelines.

The second incident involved officers purchasing oleoresin capsicum spray (pepper spray) contrary to ASIS's policies and procedures. The spray was not used and was returned to the place of purchase as soon as the non-compliance issue was identified. ASIS provided refresher briefings to those officers on their obligations under the weapons guidelines.

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