Inquiry into ASD matter 2018

In May 2018 the Inspector-General began an inquiry into the unauthorised interception of telecommunications by ASD. The Inquiry was requested by the then Minister for Defence, at the suggestion of the Director-General Designate of ASD. The Minister expressed concern with the timeliness and adequacy of reporting to her and the Inspector-General, noting similar inadequacies were identified during a 2017 IGIS Inquiry. ASD cooperated fully with the Inquiry.

The Inquiry related to an operation to collect communications of foreign intelligence value. The operation was facilitated by warrants sought by ASIO under the Telecommunications (Interception and Access) Act 1979 (TIA Act). Intercepting a communication under such a warrant is only lawful if the person who takes the action has been authorised to do so by an instrument made under section 12 of the TIA Act. Individual staff members of ASD are routinely authorised to intercept communications under these warrants.

In June 2017, ASD advised the Inspector-General that as a result of an error in preparing the relevant authorisation under section 12 for certain warrants, some ASD staff who were not authorised had intercepted telecommunications; in the absence of authorisation the collection was unlawful. That advice did not give any indication of the scale of the issue. By July 2017, five months after the warrants were signed, ASD staff were aware that a significant number of unlawful interceptions had occurred. This information was not conveyed to the Inspector-General or the Minister for Defence until February 2018.

The Inquiry found that the unlawful interception was the result of an error made by ASIO in preparing the relevant authorisation and by a failure on the part of ASD to check the accuracy of the authorisation before relying on it. When the error was detected ASD promptly requested a new authorisation and ASIO promptly responded to that request. Once the authorisation instrument was corrected ASD undertook a lengthy internal investigation and took appropriate steps to delete all unlawful intercept.

The Inquiry found that ASD’s initial reporting of this matter to the Inspector-General and the Minister for Defence was inadequate. ASD did make a comprehensive report of the matter to the Inspector-General and the Minister prior to the Inquiry commencing, and has improved its reporting since this incident occurred. While ASIO did not report the breaches of the warrant to the Attorney-General, ASIO has since amended its procedures and is now reporting breaches to the Attorney-General.

The Inquiry also found that in the past 10 years, in a relatively small percentage of the warrants that ASD was involved in executing, there had been regular legislative breaches and incidents resulting from inadequate management of warrant procedures.

The final Inquiry Report was issued on 2 May 2019. The Inspector-General made five (classified) recommendations to improve the reporting of future breaches of the TIA Act, and reduce the risk of their recurrence. ASD and ASIO accepted all five recommendations and have commenced implementation. ASD and ASIO are expected to report to the IGIS on progress of implementation of the recommendations no later than 30 October 2019.