Australian Security Intelligence Organisation
Estimates Transcripts | Spokesperson Scott Ludlam
Monday 8th February 2010, 8:48pm
CHAIR-I reconvene this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee's consideration of the additional estimates for 2009-10. I welcome representatives from ASIO, the Australian Security Intelligence Organisation. Mr Irvine, good afternoon. Do you have an opening statement that you wanted to provide to us?
Mr Irvine-No, Senator, I do not.
CHAIR-All right. My apologies, Minister Arbib; good afternoon and welcome to our estimates process. It is nice to have you join us. We are going to go to questions from Senator Ludlam to begin with.
Senator LUDLAM-Thanks, Chair. Welcome back, Mr Irvine.
Mr Irvine-Thank you.
Senator LUDLAM-I should just tender my apologies on behalf of the committee for last time. We kept you waiting until quite late and then we ran out of time and sent you home, so I am glad we have got you, with the will of the committee, at a reasonable hour this time. I just want to kick off with an issue I did not raise during the last session which is about some of the enhanced powers enjoyed by ASIO under the antiterrorism legislation which still exist. I have been informed by a number of people that members of various ethnic, religious or activist communities are approached by ASIO operatives at various times for what some call ‘friendly chats'. I have received a number of complaints and accounts of such things. What is generally communicated to some of the people who are visited for these ‘friendly chats' is that ASIO officers could get a questioning warrant if they so chose, but that it would be much easier for the person if they just had a quick conversation without one, which people, I guess you could
understand, can find quite intimidating. I am just wondering: how are ASIO officers required to identify themselves in such situations; and is there a policy, formally or informally, for approaching people in this manner?
Mr Irvine-In the course of investigative inquiries, ASIO officers do approach members of the public to obtain information. Where we approach members of the public overtly and directly, ASIO officers would identify themselves and would seek the support of the people they are talking to in providing information. They make it clear that they are not obliged to provide such information; they are encouraged to do so. Indeed, there are times when, if people say, ‘Well, I don't want to talk to you,' we do not pursue the matter.
understand, can find quite intimidating. I am just wondering: how are ASIO officers required to identify themselves in such situations; and is there a policy, formally or informally, for approaching people in this manner?
Mr Irvine-In the course of investigative inquiries, ASIO officers do approach members of the public to obtain information. Where we approach members of the public overtly and directly, ASIO officers would identify themselves and would seek the support of the people they are talking to in providing information. They make it clear that they are not obliged to provide such information; they are encouraged to do so. Indeed, there are times when, if people say, ‘Well, I don't want to talk to you,' we do not pursue the matter.
Senator LUDLAM-Okay. Can you tell us exactly how ASIO officers are required to identify themselves in such cases. What is the minimum amount of information they are required to tender?
Mr Irvine-ASIO officers will not necessarily identify themselves by their full name but they will, if asked to do so, usually give a first name and an indication that they are indeed from ASIO.
Mr Irvine-ASIO officers will not necessarily identify themselves by their full name but they will, if asked to do so, usually give a first name and an indication that they are indeed from ASIO.
Senator LUDLAM-But they are not necessarily required to provide a badge or a rank, just their first name and the agency they are with.
Mr Irvine-Yes.
Mr Irvine-Yes.
Senator LUDLAM-Okay. Have you been made aware of concerns within the various kinds of communities that I just named about people turning up to have these so-called friendly chats?
Mr Irvine-Yes, from time to time when ASIO does turn up to talk to people the people concerned are concerned. It is our practice to try to assuage those concerns and to encourage people to provide the sort of information that will assist us in our inquiries.
Senator LUDLAM-I guess this is policy that the first line of inquiries in the community generally are not to seek questioning warrants but to undertake these lines of questioning essentially outside any formal process?
Mr Irvine-Yes.
Mr Irvine-Yes.
Senator LUDLAM-I will now return to an issue that you undertook to seek some information for us on last time we spoke-in May of last year. It was around the quantum of resources that the agency is taking up tracking peaceful demonstrators. You expressed some surprise at the time that climate change demonstrators, for example, were being approached for these kinds of friendly conversations. Again, I am not intending to trespass on specific operational activities here. I am looking for guidance from you on policy. Can you provide that information for us now, please?
Mr Irvine-In many ways it is difficult for me to address directly your concerns about ASIO interest in protest activity. For ASIO to be effective in protecting Australia and Australian interests against threats, we obviously have to be very circumspect about what we say publicly. I would not want to get the organisation into a running commentary on situations where ASIO may or may not have been involved. That said, you did raise with me last May an example of where, perhaps it was one of your constituents, was reportedly approached by ASIO following a protest, I think, at Rockingham power station.
Senator LUDLAM-That is right, Rockingham power station.
Mr Irvine-I did express surprise at the time that ASIO would have approached your constituent in such circumstances, and I went back and checked and I would like to place it on the record that I do not in fact believe it was ASIO who approached that person. I do not know who did, but it was not ASIO. More broadly, I would respond to your broader question with three points. ASIO does not devote any resources to constraining legitimate protest. We are specifically prevented from doing so by our act, and we do not do it. Our sole interest-and this is the second point-in protest activity is where that activity may be associated with or have the potential for political violence and, as such, it would come under the ASIO head of security relating to the issue of politically motivated violence. At present, the protest movement-if that is what you want to call it-or the demonstrations that take part in Australia are overwhelmingly peaceful. ASIO would devote only minimal resources to concerns about politically motivated violence related to protest activity. If there were an upswing in the potential for violent protest then ASIO would devote more resources accordingly. But I think the important thing to say is that ASIO's first and foremost priority at the moment is preventing terrorist attacks in Australia and against Australians. The vast majority of our resources are focused
on this fact.
on this fact.
Senator LUDLAM-That is what I would have expected. I will go to that in a moment, but just to conclude where we are now: I agree that in Australia these events are overwhelmingly peaceful. But they are in many cases now converging around assets that I presume you would consider important for national security-things like electricity grids and power stations. Given the overwhelming preponderance of peaceful demonstrations but nonetheless converging on that kind of infrastructure, does your agency keep a watching brief, aside from questions of violence, simply because of the nature of the areas where these demonstrations are now targeting?
Mr Irvine-Not specifically, but if we had information that there was potential violence around an element of critical infrastructure, we would almost certainly be alerting the local authorities.
Senator LUDLAM-Thank you. So, as far as your act is concerned, and presumably the training that you are giving your personnel, if there is no credible threat or risk of violence in any given demonstration, you have absolutely no brief to be investigating those activities?
Mr Irvine-None whatsoever.
Senator LUDLAM-Does it concern you then that, first of all, you are intimating that somebody is posing as an ASIO officer-which I find rather disturbing but I have no reason to disbelieve my constituent-that these off-the-record ‘friendly chats', of which this is one instance, do not have any paperwork associated with them, no warrants are being called for, no record is being kept, and the committee is now being asked to take your word that, on clarification with your agency, no such conversation happened?
Mr Irvine-Certainly in that particular instance that you quoted. When we do talk to people we keep our own records of such meetings.
Senator LUDLAM-There is kind of file note for every interaction up to a point?
Mr Irvine-Almost every interaction. Certainly if we were going out to interview a person to ask a person to assist us in an investigation, there would definitely be a record of that.
Senator LUDLAM-Just to come to the question that you touched on very briefly, that most of your brief does relate to terrorism and counterterrorism activities, in your annual report you have said that counterterrorism assessments fell for the third year running and there were less than half the number that there were in 2006-07. Can you tell us broadly what is captured by the scope of counterterrorism assessment? Is the country becoming safer or is there something else at work that is skewing the statistics?
Mr Irvine-I think that figure referred to the number of instances in respect of visa applications and perhaps things related to use of explosives in Australia, sales of ammonium nitrate and so on. Those numbers actually did fall last year.
Senator LUDLAM-And that is just part of the natural cycle of the way these things are conducted?
Mr Irvine-I think so.
Senator LUDLAM-There were some criticisms raised in the press after your last annual report, due to repeated instances of simply reprinting material from your previous annual report. I do not know whether you would be aware of some of the commentary that surrounded that. The section on espionage, for example, was a straight cut-and-paste from the 2007-08 report. Do the people who draft these reports for you simply start with the last annual report and then update bits and pieces?
Mr Irvine-They may well have done so on that occasion, but what is produced in the annual report each year is relevant to that year. In that sense it represents a continuum.
Senator LUDLAM-It is certainly an admirable example of recycling, but are you a bit concerned that the reports are essentially being cut from the same template, using the same words, year on year?
Mr Irvine-Again I would say that the report itself I believe to be an accurate representation of what occurred during the year. We can change the words, if you wish, but if the situation that is being described is the same I am not too worried.
Senator LUDLAM-I do not want to dwell on it, but it is just a peculiar example. Annual reports are one of the few accountability mechanisms or public reporting avenues that we have, so it is somewhat peculiar year after year to see the same words trotted out. It looks somewhat glib, if I could put it that way. I want to come to the detention powers. ASIO's power to detain without charge under an ASIO warrant for up to 168 hours has been described by some of Australia's top legal experts as unnecessary and unjustifiable. I am sure you are aware of the various kinds of commentary that surround that. Is it the case that that power has not been invoked in the seven years of its existence, to your knowledge?
Mr Irvine-That is correct.
Senator LUDLAM-Those same detention provisions were considered by the UN Committee against Torture, which said that, to the extent that these provisions infringe upon people's rights to take proceedings to court to determine the lawfulness of their detention, they are a breach of article 2 of the convention against torture. Are you familiar with the brief in which those comments are contained?
Mr Irvine-Could you say that again?
Senator LUDLAM-The provisions were considered by the United Nations Committee against Torture. On notice, I can provide you with the citation for that reference.
Mr Irvine-Would you still mind clarifying that question?
Senator LUDLAM-The UN Committee against Torture has considered the detention provisions that we are discussing. Their comment was, to the extent that the provisions infringe people's rights to take proceedings to court to determine the lawfulness of their detention, they are in breach of article 2 of the convention against torture. So we are talking about arbitrary detention that actually prevents them from having their detention tested in court.
Mr Irvine-All I can say is that those detention provisions provide very considerable safeguards for the conduct of questioning. They are videoed. There is someone independent who monitors and is present during that questioning. The questioning would be suspended if that independent monitor raised any concern about
impropriety or illegality in connection with the exercise of that warrant. The person would have access to a lawyer in order to receive legal advice and could make a complaint about the process at any time to the Federal Police, the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman. There is a level of protection of rights in there that would lead me to question whether we are in fact talking about torture here.
Mr Wilkins-It is essentially a matter of policy about the legislation that is on the books. We are well aware of the comments that you refer to. But those sentiments are not necessarily shared by the government and the government's legal advisers along those lines. Some of these provisions, as you know, date back a number of years. Similar questions were raised this morning by the Human Rights Commission in relation to some of the extant legislation along these lines. It is probably fair to say that the government believes that its legislation is in accordance with its human rights obligations. But at the moment there are various discussion papers out there looking at other aspects of the legislation, as you know.
Senator LUDLAM-I was just coming to that. There is meant to be a counterterrorism white paper underway, although that is long delayed and we do not have any update as to where that is up to, unless you like to provide us with one. There is a review of national security legislation underway. The Attorney's discussion paper excluded the ASIO Act, so we did not see any propositions from the government at all for amendments to the ASIO Act. Can you tell us whether those specific provisions on ASIO's detention powers are under review or whether the government is satisfied that they should remain in place?
Mr Wilkins-There are no plans to review those particular provisions.
Senator LUDLAM-I believe the officer who just came to the table to help with that answer spoke to this committee's hearings into the bill that we introduced into parliament last year.
Mr G McDonald-Yes, I did.
Senator LUDLAM-Mr McDonald, at the time-I can remember right at the end of the hearing-you undertook to take the material that the committee had received about amendments to the ASIO Act and that you would feed that into your processes review. Can I take it from the comments by Mr Wilkins just now that the government has chosen not to proceed with anything of the sort?
Mr G McDonald-The government is still finalising its decisions on what it will proceed with and what it will not proceed with. What Mr Wilkins was referring to was whether there was to be a specific review of those provisions. There is certainly no plan for a specific review of those provisions. Of course, everything that came in from the consultation process, plus the outcomes of the process that you referred to, has been put before the government.
Senator LUDLAM-I put this to anyone at the table who feels appropriate to answer this question. Given the condemnation by various parties, including the UN Committee Against Torture, and the fact that the detention provisions have never been invoked, do you contend that ASIO continues to require this power to undertake these kinds of detentions?
Mr Wilkins-That is a different question. You have asked two questions, actually-one was in relation to whether or not the current laws comply with our international obligations, and I have already referred to that. As to whether or not it is necessary for ASIO to have those powers, obviously government policy is that at the
moment it is necessary and it is part of the statute. Obviously, the previous government took the same view. As far as government policy is concerned, I cannot traverse, obviously, what their future intentions may be, but that is the current position.
Senator LUDLAM-I come back to where I began, with the surveillance of visiting people or friendly conversations of people who are clearly not engaged in activities that threaten national security. I take by extension your comments about the friendly chats to mean that you do not actively surveil people who you do not believe are a threat, in terms of violence, in their activities, whether that is environmental campaigning, peace activities or climate change. I understood your comments to mean visits by people, I extend those comments to mean active or passive surveillance of people.
Mr Irvine-ASIO conducts surveillance activities with cause. We have processes internally where we have to have a reason to create an, if you like, internal authority to investigate. We would not be just looking at people willy-nilly. We would have a process of consideration that goes through-and it is a graduated process, depending on the stage you are at-what you would do with respect to surveillance or questioning people. When I say we do seek to elicit information from people, it is not necessary related to the activities of that individual, himself or herself, but it is to assist us in inquiries that we might have on any range of issues about which that person may have some knowledge.
Senator LUDLAM-My final question is: for operational reasons rather than the questions of policy we were debating before, do you believe that your personnel require the power for the kind of summary detention that is currently enabled under your act?
Mr Irvine-You are asking me to express a belief that the government policy is that that power is there. While we have not had occasion to use it, clearly government policy is that it is there for when there is an occasion when we indeed may need to use it and quickly.
Senator LUDLAM-I certainly understand the policy; also that it may be under review as part of a broader review of counterterrorism legislation. But from your point of view, as the person responsible for your personnel, does it risk or does it materially harm your people's ability to do their job if that power is removed?
Mr Irvine-I agree we have not needed to use that power. If there were an occasion when we did need to use it, you would certainly take into account the fact that it would be assisting the ability of our personnel to achieve the results of an investigation that they need to achieve. As to the safety of the personnel, I am not sure that-
Senator LUDLAM-It was not a safety question so much as an operational question.
Mr Irvine-If we need to use it we would.
Senator LUDLAM-Finally, to anyone at the table: is there a counterterrorism white paper due for publication any time soon?
Mr Jordana-That is a question I would suggest you might want to direct to the Department of the Prime Minister and Cabinet. They are the department responsible for the management of that exercise.
Senator LUDLAM-Okay. Presumably you are in various capacities feeding into the deliberations around that paper.
Mr Jordana-That is correct.
Senator LUDLAM-But you are not in a position to tell us a publication date or anything about its progress?
Mr Jordana-No.
Senator LUDLAM-Isn't that a bit odd? This is your core business.
Mr Wilkins-It is actually Prime Minister and Cabinet's core business to determine that sort of thing.
Senator LUDLAM-I will leave it there, thanks.
Mr Irvine-None whatsoever.
Senator LUDLAM-Does it concern you then that, first of all, you are intimating that somebody is posing as an ASIO officer-which I find rather disturbing but I have no reason to disbelieve my constituent-that these off-the-record ‘friendly chats', of which this is one instance, do not have any paperwork associated with them, no warrants are being called for, no record is being kept, and the committee is now being asked to take your word that, on clarification with your agency, no such conversation happened?
Mr Irvine-Certainly in that particular instance that you quoted. When we do talk to people we keep our own records of such meetings.
Senator LUDLAM-There is kind of file note for every interaction up to a point?
Mr Irvine-Almost every interaction. Certainly if we were going out to interview a person to ask a person to assist us in an investigation, there would definitely be a record of that.
Senator LUDLAM-Just to come to the question that you touched on very briefly, that most of your brief does relate to terrorism and counterterrorism activities, in your annual report you have said that counterterrorism assessments fell for the third year running and there were less than half the number that there were in 2006-07. Can you tell us broadly what is captured by the scope of counterterrorism assessment? Is the country becoming safer or is there something else at work that is skewing the statistics?
Mr Irvine-I think that figure referred to the number of instances in respect of visa applications and perhaps things related to use of explosives in Australia, sales of ammonium nitrate and so on. Those numbers actually did fall last year.
Senator LUDLAM-And that is just part of the natural cycle of the way these things are conducted?
Mr Irvine-I think so.
Senator LUDLAM-There were some criticisms raised in the press after your last annual report, due to repeated instances of simply reprinting material from your previous annual report. I do not know whether you would be aware of some of the commentary that surrounded that. The section on espionage, for example, was a straight cut-and-paste from the 2007-08 report. Do the people who draft these reports for you simply start with the last annual report and then update bits and pieces?
Mr Irvine-They may well have done so on that occasion, but what is produced in the annual report each year is relevant to that year. In that sense it represents a continuum.
Senator LUDLAM-It is certainly an admirable example of recycling, but are you a bit concerned that the reports are essentially being cut from the same template, using the same words, year on year?
Mr Irvine-Again I would say that the report itself I believe to be an accurate representation of what occurred during the year. We can change the words, if you wish, but if the situation that is being described is the same I am not too worried.
Senator LUDLAM-I do not want to dwell on it, but it is just a peculiar example. Annual reports are one of the few accountability mechanisms or public reporting avenues that we have, so it is somewhat peculiar year after year to see the same words trotted out. It looks somewhat glib, if I could put it that way. I want to come to the detention powers. ASIO's power to detain without charge under an ASIO warrant for up to 168 hours has been described by some of Australia's top legal experts as unnecessary and unjustifiable. I am sure you are aware of the various kinds of commentary that surround that. Is it the case that that power has not been invoked in the seven years of its existence, to your knowledge?
Mr Irvine-That is correct.
Senator LUDLAM-Those same detention provisions were considered by the UN Committee against Torture, which said that, to the extent that these provisions infringe upon people's rights to take proceedings to court to determine the lawfulness of their detention, they are a breach of article 2 of the convention against torture. Are you familiar with the brief in which those comments are contained?
Mr Irvine-Could you say that again?
Senator LUDLAM-The provisions were considered by the United Nations Committee against Torture. On notice, I can provide you with the citation for that reference.
Mr Irvine-Would you still mind clarifying that question?
Senator LUDLAM-The UN Committee against Torture has considered the detention provisions that we are discussing. Their comment was, to the extent that the provisions infringe people's rights to take proceedings to court to determine the lawfulness of their detention, they are in breach of article 2 of the convention against torture. So we are talking about arbitrary detention that actually prevents them from having their detention tested in court.
Mr Irvine-All I can say is that those detention provisions provide very considerable safeguards for the conduct of questioning. They are videoed. There is someone independent who monitors and is present during that questioning. The questioning would be suspended if that independent monitor raised any concern about
impropriety or illegality in connection with the exercise of that warrant. The person would have access to a lawyer in order to receive legal advice and could make a complaint about the process at any time to the Federal Police, the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman. There is a level of protection of rights in there that would lead me to question whether we are in fact talking about torture here.
Mr Wilkins-It is essentially a matter of policy about the legislation that is on the books. We are well aware of the comments that you refer to. But those sentiments are not necessarily shared by the government and the government's legal advisers along those lines. Some of these provisions, as you know, date back a number of years. Similar questions were raised this morning by the Human Rights Commission in relation to some of the extant legislation along these lines. It is probably fair to say that the government believes that its legislation is in accordance with its human rights obligations. But at the moment there are various discussion papers out there looking at other aspects of the legislation, as you know.
Senator LUDLAM-I was just coming to that. There is meant to be a counterterrorism white paper underway, although that is long delayed and we do not have any update as to where that is up to, unless you like to provide us with one. There is a review of national security legislation underway. The Attorney's discussion paper excluded the ASIO Act, so we did not see any propositions from the government at all for amendments to the ASIO Act. Can you tell us whether those specific provisions on ASIO's detention powers are under review or whether the government is satisfied that they should remain in place?
Mr Wilkins-There are no plans to review those particular provisions.
Senator LUDLAM-I believe the officer who just came to the table to help with that answer spoke to this committee's hearings into the bill that we introduced into parliament last year.
Mr G McDonald-Yes, I did.
Senator LUDLAM-Mr McDonald, at the time-I can remember right at the end of the hearing-you undertook to take the material that the committee had received about amendments to the ASIO Act and that you would feed that into your processes review. Can I take it from the comments by Mr Wilkins just now that the government has chosen not to proceed with anything of the sort?
Mr G McDonald-The government is still finalising its decisions on what it will proceed with and what it will not proceed with. What Mr Wilkins was referring to was whether there was to be a specific review of those provisions. There is certainly no plan for a specific review of those provisions. Of course, everything that came in from the consultation process, plus the outcomes of the process that you referred to, has been put before the government.
Senator LUDLAM-I put this to anyone at the table who feels appropriate to answer this question. Given the condemnation by various parties, including the UN Committee Against Torture, and the fact that the detention provisions have never been invoked, do you contend that ASIO continues to require this power to undertake these kinds of detentions?
Mr Wilkins-That is a different question. You have asked two questions, actually-one was in relation to whether or not the current laws comply with our international obligations, and I have already referred to that. As to whether or not it is necessary for ASIO to have those powers, obviously government policy is that at the
moment it is necessary and it is part of the statute. Obviously, the previous government took the same view. As far as government policy is concerned, I cannot traverse, obviously, what their future intentions may be, but that is the current position.
Senator LUDLAM-I come back to where I began, with the surveillance of visiting people or friendly conversations of people who are clearly not engaged in activities that threaten national security. I take by extension your comments about the friendly chats to mean that you do not actively surveil people who you do not believe are a threat, in terms of violence, in their activities, whether that is environmental campaigning, peace activities or climate change. I understood your comments to mean visits by people, I extend those comments to mean active or passive surveillance of people.
Mr Irvine-ASIO conducts surveillance activities with cause. We have processes internally where we have to have a reason to create an, if you like, internal authority to investigate. We would not be just looking at people willy-nilly. We would have a process of consideration that goes through-and it is a graduated process, depending on the stage you are at-what you would do with respect to surveillance or questioning people. When I say we do seek to elicit information from people, it is not necessary related to the activities of that individual, himself or herself, but it is to assist us in inquiries that we might have on any range of issues about which that person may have some knowledge.
Senator LUDLAM-My final question is: for operational reasons rather than the questions of policy we were debating before, do you believe that your personnel require the power for the kind of summary detention that is currently enabled under your act?
Mr Irvine-You are asking me to express a belief that the government policy is that that power is there. While we have not had occasion to use it, clearly government policy is that it is there for when there is an occasion when we indeed may need to use it and quickly.
Senator LUDLAM-I certainly understand the policy; also that it may be under review as part of a broader review of counterterrorism legislation. But from your point of view, as the person responsible for your personnel, does it risk or does it materially harm your people's ability to do their job if that power is removed?
Mr Irvine-I agree we have not needed to use that power. If there were an occasion when we did need to use it, you would certainly take into account the fact that it would be assisting the ability of our personnel to achieve the results of an investigation that they need to achieve. As to the safety of the personnel, I am not sure that-
Senator LUDLAM-It was not a safety question so much as an operational question.
Mr Irvine-If we need to use it we would.
Senator LUDLAM-Finally, to anyone at the table: is there a counterterrorism white paper due for publication any time soon?
Mr Jordana-That is a question I would suggest you might want to direct to the Department of the Prime Minister and Cabinet. They are the department responsible for the management of that exercise.
Senator LUDLAM-Okay. Presumably you are in various capacities feeding into the deliberations around that paper.
Mr Jordana-That is correct.
Senator LUDLAM-But you are not in a position to tell us a publication date or anything about its progress?
Mr Jordana-No.
Senator LUDLAM-Isn't that a bit odd? This is your core business.
Mr Wilkins-It is actually Prime Minister and Cabinet's core business to determine that sort of thing.
Senator LUDLAM-I will leave it there, thanks.
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