Inquiry into ASIO matter

On 14 February 2018 in response to ASIO’s notification of a potential non-compliance matter, pursuant to section 8(1) of the IGIS Act the Inspector-General, of her own motion, initiated an inquiry into an ASIO matter. The Inquiry examined the conduct and details of a multi-faceted, multi-agency foreign intelligence collection operation led by ASIO, including whether certain intelligence collection activities conducted by ASIO as part of that operation were lawful. While the Inquiry found significant problems with the planning and execution of the operation, stemming from systemic weaknesses within ASIO’s compliance management framework, it concluded it is likely that most, but not all, of the activities reviewed as part of the Inquiry were lawful. Importantly, there was no evidence of any deliberate wrong-doing by the officers involved in the operation.

The issues identified by the Inquiry included poor communication between ASIO’s lawyers and operational staff. As a consequence of the poor communication ASIO staff believed, incorrectly, that a warrant was not required to undertake activities that in fact did require such authorisation. Additionally, as ASIO’s lawyers were not fully informed about changes to operational plans those activities were conducted without proper advice. Other issues identified by the inquiry included failures to comply with procedural requirements for warrants and associated reports; a key secondment agreement being signed by an officer without the appropriate delegation to do so; and inadequate management and supervision of those officers ostensibly seconded to ASIO.

In addition to reviewing the circumstances surrounding the operation, the Inquiry also examined ASIO’s approach to compliance and training more broadly. It found that ASIO provided little if any compliance training for ASIO employees and affiliates in relation to legislative restrictions germane to the operation. The Inquiry also found that whilst operational staff complied with ASIO’s operational planning procedures, these procedures were inconsistent with other ASIO policies and were insufficient to ensure that ASIO acted lawfully. At the time of the incident, ASIO did not have a dedicated compliance unit; however, even before the formal recommendations outlined in the following paragraph were made, ASIO had begun to develop a formal compliance framework and to establish a dedicated compliance unit.

The final Inquiry Report was issued on 14 June 2019 and made eight recommendations. Those recommendations focus on ensuring that ASIO’s proposed compliance team is established as a matter of priority; that ASIO implements a compliance training program; improves legal advice; and reviews relevant policies and procedures. ASIO has accepted all eight recommendations.

ASIO is expected to report to the Inspector-General on progress of implementation of the recommendations by 30 September 2019. This office will continue to monitor ASIO’s implementation of the Inquiry recommendations and further details will be provided in the next annual report.