Finance and Public Administration Legislation Committee
Estimates hearings, 24 May 2012
Australian Security Intelligence Organisation
- Mr David Irvine AO, Director General of Intelligence Security
Senator RHIANNON: One of the IGIS's recommendations on the Habib case was:
Australian government agencies should prepare an apology to Mrs Maha Habib for failing to keep her properly informed about Mr Mamdouh Habib’s welfare and circumstances.
Has ASIO given this apology?
Mr Irvine: The government decided that there was to be no apology, so ASIO has not become involved in that. I do not have any other answer than that.
Senator RHIANNON: Thank you. Did ASIO do its own internal review of its handling of the Habib case?
Mr Irvine: The Inspector-General of Intelligence and Security did a very comprehensive review of the case. Again, as I said in an answer earlier to Senator Hanson-Young, we are constantly reviewing the way we conduct our business. We would have done an internal review, and certainly since that case there have been a number of changes to our procedures, which I think the Inspector-General of Intelligence and Security acknowledged in the report. That case was now a very long time ago—the original outbreak of the case.
Senator RHIANNON: Is your internal review, or at least the changes that you have made, available publicly?
Mr Irvine: No, they are not.
Senator RHIANNON: Wouldn't it be useful to make them public to give the public more confidence that lessons have been learned and that this would not happen again?
Mr Irvine: You can rest assured that ASIO has agreed with the IGIS's, recommendations—which, frankly, required relatively minor adjustments in our policies and procedures. That is the way we have addressed those issues.
Senator RHIANNON: So you are actually saying that, if those minor adjustments had been in place, what happened to Mr Habib would not have happened?
Mr Irvine: No, I am certainly not saying that. We have made adjustments over a very long period of time. Can I just say in relation to the Habib case that we actually welcomed the Inspector-General's report, because in fact the report made some really very positive, and I would have thought encouraging, findings that are encouraging for the Australian public. As you know ASIO had been accused of being engaged in acts of mistreatment of Mr Habib and that we had knowledge of his mistreatment by others, that we were engaged in making arrangements for his transfer to Egypt or were present during his removal from Pakistan, that we knew his place of detention in Egypt and so on and so forth. The Inspector-General found that no Australian official was involved in any of those things. I would have thought that that was a very heartening and encouraging finding by the Inspector-General.
The Inspector-General did find that there should be amendments to ASIO's policies and procedures, first in relation to the provision of information to overseas authorities and the level of authority within the organisation that has to be given before such things happen. That is a recommendation we accepted. The second recommendation in relation to us was that we should be more assiduous in our record taking so that subsequently, when someone wants to know why a decision is taken, there is an adequate recommendation on that. And there were a number of occasions that the Inspector-General of Intelligence and Security pointed out where she felt that ASIO did not record as adequately as we should have the reasons for taking particular steps. But there is no evidence, and the Inspector-General found no evidence, that even in the absence of complete documentary records, that that had any adverse impact on Mr Habib.
Senator RHIANNON: So you would be confident that this sort of incident would not occur again, in light of these changes?
Mr Irvine: I would be confident that we have better procedures in place to ensure that we are acting in the most appropriate way in regard to an Australian citizen.
Senator RHIANNON: I want to check on some earlier responses you gave. Regarding the Parliamentary Joint Committee on Intelligence and Security, I noted some of your answers. I want to clarify whether this applies just to telecommunications surveillance warrants, or is it all types of warrants.
Mr Irvine: There are a whole range of issues that relate to telecommunications that are under discussion in terms of updating the telecommunications regime to meet the modern circumstances. We certainly have issues in relation to warrants, the way they are prepared and the nature of the warrants—
Senator RHIANNON: That was what I was just trying to assess for my understanding. So the warrants go wider than telecommunications?
Mr Irvine: No. There are three separate issues that the Attorney-General has raised in her public announcement. They relate to the telecommunications interception act; to acts affecting the provision of telecommunications, and the security of that; and they also relate to some small changes in the ASIO Act and, I think, also in the Intelligence Services Act.
Senator RHIANNON: Could you expand on the last one. What is your understanding of who will be looked at there?
Mr Irvine: In the Intelligence Services Act?
Senator RHIANNON: Yes.
Mr Irvine: No, it is not my act.
Senator RHIANNON: But you did say ASIO and the Intelligence Services Act.
Mr Irvine: Yes. There are a number of matters under the ASIO Act—some streamlining issues, some staffing issues and so on.
Senator RHIANNON: Could you expand on what those streamlining and staffing issues would be?
Mr Irvine: I would prefer to do that with the committee tomorrow.
Senator RHIANNON: Tomorrow?
Mr Irvine: I am meeting the committee tomorrow. I think I owe them the courtesy of raising those things with them.
Senator RHIANNON: I want to ask about this issue of going from 90 days to six months. Are you not in a position to talk about that?
Mr Irvine: Not publicly, at this stage. What we are talking about at this stage is ideas.
Senator RHIANNON: Can I put questions on notice or are you saying you are not in a position to answer those?
Mr Irvine: You can put questions on notice and I will see what we can do.
Senator RHIANNON: Between 2003 and 2005 ASIO obtained 14 questioning warrants. Since 2005 ASIO has obtained only two such warrants. Why were so many warrants issued between 2003 and 2005 and so few after that time?
Mr Irvine: The answer to that is entirely case specific.
Senator RHIANNON: What changes?
Mr Irvine: The nature of the cases we are dealing with. We try to avoid having to use the most intrusive and, if you like, compulsory elements of our powers unless absolutely necessary. Again, I would have thought that that is an indication of the responsibility with which ASIO goes about its business. The only answer I can give you is that at the time it was thought necessary because of the urgency of the situation, perhaps, because of the nature of the threat and the nature of the investigation that it was imperative that those powers be invoked.
Since then, during my time, the individual case has in our view only warranted those powers being invoked—and they are the questioning powers, not the detention powers—on one or two occasions.
Senator RHIANNON: Staying with the questioning powers, at the May hearing last year, Mr Irvine, you said, 'ASIO responds to literally thousands of counter-terrorism leads'. You also said that ASIO is 'currently involved in several hundred counter-terrorism investigations and inquiries'. If this is the case, why has ASIO only used its questioning power twice since 2006 and not at all in 2011.
Mr Irvine: Again, you have to see an investigation as an individual activity. If we did not believe that in over 100 investigations we needed to use those powers then we would not use them. We have other means of investigation. We do not rely solely on a compulsory interview. In fact, as it proves, we have not needed to rely on it in recent times. There could, however, come a time when tomorrow we suddenly find ourselves facing a threat, the urgency of which is very much more than the cases we have dealt with in the last year or so, and we would need to use those powers extensively.
Senator RHIANNON: Can you give us an example.
Mr Irvine: I would prefer not to, but I think you can imagine that, in the continuum of the planning, development and execution of a terrorist act, at some point, particularly as we discover that there was movement towards the carrying out or the actual execution of a terrorist act, those powers may well become very necessary indeed.
Senator RHIANNON: In 2005 I read some comments from some lawyers who described the questioning powers as a fishing expedition with no connection with any imminent terrorist threat. Would you comment on that? Because I think there is that perception.
Mr Irvine: I know—I do not think, I know—that the way in which we have exercised those powers has been directly related, if you like, to our assessment of the gravity, the potential and ultimately, I guess, the imminence of the threat. But it is not simply based on imminence. It could be based on gravity. It could be based on the fact that the only way to get the information that you absolutely really need is to conduct such interviews.
Senator RHIANNON: Could it also be based on that ASIO has changed how it conducts its questioning?
Mr Irvine: No. I think our operational methodologies have been relatively consistent. They are adapted always to changing circumstances, but I do not see that as a factor.
Senator RHIANNON: Okay. Moving on to detention warrants, is it the case that ASIO has never sought to have a detention warrant issued? In what circumstances, if any, would you envisage using the detention power?
Mr Irvine: Again, I would answer that question in terms of the issue of the nature of a threat, its gravity, its imminence, potential consequences and so on. It would be a subjective judgment, although ultimately probably not very subjective because you would be making it on such blind obvious factors.
Senator RHIANNON: It is the case that a detention warrant has never been used?
Mr Irvine: Yes, that is my understanding. It has certainly not been used in my time.
Senator RHIANNON: But you are saying it would be a subjective judgment if it were used?
Mr Irvine: It would be a judgment made by the director-general and the people who have to approve such a process.
Senator RHIANNON: But surely that would be based on something, wouldn't it?
Mr Irvine: Yes, it would be absolutely based on something. It would be absolutely based on our very, very serious concern that the use of this—I am not going to say extreme but this is very, very serious investigative tool were to be applied.
Senator RHIANNON: In the 2011 report of the Independent National Security Legislation Monitor he suggested that the criteria which must be satisfied in order to obtain a detention warrant are too broad and do not justify detention. Would ASIO consider having someone detained because, for example, it was suspected they might not appear for questioning at the stipulated time?
Mr Irvine: My reading of that report was that what the independent security legislation monitor was going to do was to examine whether it was too broad. I am not sure—I would need to read the report again—that he necessarily made such a categorical statement as that. What was the second part of your question?
Senator RHIANNON: If it was suspected that somebody would not appear for questioning at the stipulated time would that be considered as a reason for detaining somebody? I was surprised you used the word 'subjective'. I am therefore trying to get a sense of when you do use it, so I wanted to give that example and hear your response.
Mr Irvine: It would very much depend on the case and it would depend, again, on the gravity of the situation at the time. I said subjective; I mean a judgment made. I will retract the word 'subjective'. I mean a judgment made about the circumstances, the level of threat and the potentiality of the threat.
Senator RHIANNON: That could include that somebody may not turn up for questioning so you would have to detain them to ensure that you could still question them?
Mr Irvine: It could, but I would not then rush out and say, 'If someone doesn't turn up they will then be detained.'
Senator RHIANNON: In that report, the monitor stated that no apparent justification had been given for permitting ASIO to detain a person for seven days rather than some shorter period of time. Why is it necessary for ASIO to be able to detain a person for seven days?
Mr Irvine: I cannot give you the exact reasoning behind that decision of the parliament, except to say that there needs to be a time limit on the period of detention and seven days was chosen probably because that gives ASIO the best opportunity to resolve the situation. And if it needed to be continued then appropriate approvals in this process would be required.
Senator RHIANNON: Considering your last comment about appropriate approvals—that you could use those—doesn't that further emphasise the seven days, particularly in a country like Australia that really values its civil liberties? It has got used to a certain standard, I should say. I am sure everybody values their civil liberties if they have them. We have a certain standard here. Seven days seems to be an incredibly long time.
Mr Irvine: I would simply say that that is an issue that the Independent National Security Legislation Monitor has said he is going to look at and we will be very interested in his reply, and my experts no doubt will be saying what the period of time is if he asks them.
Senator RHIANNON: You would obviously be aware of the long-promised COAG review of federal and state counterterrorism laws, now about 11 months overdue. Have you had any interaction with Prime Minister and Cabinet or any other department about this review?
Mr Irvine: No. That is an issue for the Attorney-General's Department—the COAG issue.
Senator RHIANNON: Do you have a comment on the long delay?
Mr Irvine: No. I do not.