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Senate Estimates: Legal and Constitutional Affairs Committee (ASIO)

Estimates & Committees
Lee Rhiannon 2 Dec 2013

Legal and Constitutional Affairs Legislation Committee
18/11/2013
Estimates
ATTORNEY-GENERAL PORTFOLIO
Australian Security Intelligence Organisation

CHAIR: How many spies have you caught recently? I am getting on to the real issues! It is only a joke question; I do not really want to know that! Now, who else has questions of ASIO?

Senator RHIANNON: I was after the figures for how many adverse security assessments have been issued in relation to unauthorised maritime arrivals, and I could find the data in the ASIO annual report for 2011-12, but it was not in the 2012-13 annual report. Could you provide us with that data, please?

Mr Irvine : Do you mean adverse security assessments across the board for every reason?
Senator RHIANNON: This one was in relation to unauthorised maritime arrivals.
Mr Irvine : I have given these figures I think in previous Senate estimates, but in 2011-12 we issued 23 adverse security assessments, of which 22 were to maritime arrivals. In the period 2012 and 2013, we issued two adverse assessments, one of which was to a maritime arrival.

Senator RHIANNON: And since 30 June 2013?
Mr Irvine : I have just been corrected. In that year we actually issued two adverse assessments to the same person.

Senator RHIANNON: So, in 2012-13 it is actually only one ASA?
Mr Irvine : No, it is one person affected. And for the period since 1 July there have been none.
Senator RHIANNON: And in this 2012-13, how many ASAs have been issued in relation to Australian citizens and for Australian permanent residents?
Mr Irvine : I do not have that figure in front of me. I would need to get it, because you are not talking about visa assessments now.
Senator RHIANNON: No, I am still with the ASAs, and just trying to get a breakdown between-
Mr Irvine : A visa assessment by definition is only given to a non-Australian who is applying for a visa to come to Australia-whatever type of visa.

Senator RHIANNON: So, do I take from that that no Australian citizens have come under an adverse security assessment?
Mr Irvine : No, and I would need to get you the figure for that. We issue adverse security assessments in relation to a number of Australians in relation to, for example, working with the Commonwealth in sensitive positions-security assessments for that sort of thing-for Commonwealth employment purposes. We issue security assessments in relation to people applying for work or appropriate passes to work at airports and in maritime ports. We issue security assessments in relation to people who we believe may be contemplating or risking an act of terrorism and so on.

Senator RHIANNON: I am happy for that to be taken on notice. I was just after the total figures for Australian citizens and for Australian permanent residents, and also the figures since 1 July 2013.
Mr Irvine : I will get that.

Senator RHIANNON: Just to move on, how regularly does ASIO conduct reviews of adverse security assessments it has made?
Mr Irvine : We review our assessments for cause if new information is coming through, with the passage of time, whether or not the circumstances or the context in which the original assessment was made has changed in some way. So it is not saying that within a fixed period everything will be reviewed.

Senator RHIANNON: So there are no regular reviews?
Mr Irvine : I would not use the word 'regular', but there is a process of review, and of course there is an independent review process going on.

Senator RHIANNON: So, before we come to that process that has been undertaken, I understand, by Margaret Stone, I understand that the regular reviews are not undertaken, but are you proactive in any way in reassessing adverse security assessments? Or do you wait until new information comes to you?
Mr Irvine : We have, over the past year, been looking at all of the assessments, partly in preparation to pass material to the independent reviewer. And certainly in the last six or seven months or so we have reissued non-prejudicial assessments I think in relation to three people.

Senator RHIANNON: What are the sources in Sri Lanka that ASIO uses in making adverse security assessments?
Mr Irvine : We use a whole range of open sources to assist us to assess the context against which we are assessing individuals.

Senator RHIANNON: Could you define what 'open sources' means, please?
Mr Irvine : The press, and we sometimes talk to other intelligence services, as well as diplomatic reporting and so on.

Senator RHIANNON: How many agents does ASIO have in Sri Lanka? And do they all operate out of the High Commission?
Mr Irvine : That is a question that for operational reasons, reluctantly, I cannot answer.

Senator RHIANNON: Of the open sources, is one of them the Sri Lankan government?
Mr Irvine : We certainly read press releases of the Sri Lankan government, and we listen to what their diplomats say. But, if I can jump ahead, to repeat what I have said in previous Senate estimates, when we make an adverse assessment on a person who is claiming asylum, it has not been our practice to go back and ask the government of that country about that individual.

Senator RHIANNON: Just to come to Margaret Stone in conducting her review, does she have access to all your files on a refugee with an adverse security assessment, including details of your sources and/or your rating of the credibility of the sources?
Mr Irvine : She has access to every piece of information that we used in making that assessment, including all of the source reports.

Senator RHIANNON: Do you rate the credibility of your sources? And would that be available to her?
Mr Irvine : Any intelligence service that uses human sources must, if it is halfway professional, constantly examine the reliability and the access of our sources. It is not something you sort of sit down and do on a Wednesday three times a year; it is a continual process.

Senator RHIANNON: Does ASIO disclose its sources for adverse security assessments to the Prime Minister?
Mr Irvine : It has not been our habit to do so, and normally we do not-and are not required to-disclose our sources within government. That is not really the way a security and intelligence organisation should operate.

Senator RHIANNON: When you say it is not your habit, does that mean it is not done at all or that it is periodically done?
Mr Irvine : If it were done it would be done on the decision of the Director-General, and I do not believe I have ever made that decision in relation to the Prime Minister.

Senator RHIANNON: Do you need to take that on notice? You said you 'do not believe'-does that mean you need to check up to-
Mr Irvine : No, I do not need to check up; I have not done that.

Senator RHIANNON: If it has not happened for the Prime Minister, would the answer you just gave also apply to the foreign minister and the Minister for Immigration and Border Protection-that that information is not provided?
Mr Irvine : It is almost unheard of for us to disclose the name of a source to anyone outside the organisation. There may be times when I will need to describe a source to the Attorney or to whoever is receiving an assessment, and we use source descriptions to indicate to people who are assessing our intelligence, to give them a clue as to how much weight to put on a particular piece of information provided by that source.

Senator RHIANNON: Thank you. Given that there are numerous documented cases of rape and torture by Sri Lankan government officials that are still occurring, what precautions are ASIO taking to ensure that they are not obtaining information from people engaged in or connected in any way to such activities?
Mr Irvine : ASIO officers are bound by our internal rules to observe certain procedures in relation to the possibility of torture. We operate under three essential principles relating to the prohibition on the use and involvement of torture and other cruel, inhumane or degrading treatment. The first is that we do not use such methods ourselves. The second is that we act in such a way that does not sanction or encourage such behaviour by other people. If we find evidence or even have a suspicion that torture may be being used then ASIO officers under our policies are obliged to advice appropriate agencies of the government of that or any knowledge of torture or such treatment. I have to say that those principles are included in our most basic training program.

Senator RHIANNON: Thank you. That sets it out very quickly. But what I take from that, though, is that it does not sound as though you are proactive in assessing the people who you work with-in this case, Sri Lankan officials. That question is particularly relevant, as there have been many reports of ongoing torture and rape, to the point that the British Prime Minister went to those places and met those places.
Mr Irvine : I need to know what the basis of that question is. Are you saying that we are going to talk to people as sources who may or may not have been guilty of torture?

Senator RHIANNON: I am raising the question because there have been so many cases of documented of security people in Sri Lanka involved right now on a continuing basis since 2009 in cases of rape, assault and torture. When your people are interacting and working with these security people-
Mr Irvine : You have just made the assumption that we interact and work with them. I do not think that that is an assumption that you can make.
Senator RHIANNON: Good. So you are saying-
Mr Irvine : I am not going-

Senator RHIANNON: You have used the term 'open sources'. Clearly, there is some level of interaction with people in Sri Lanka. Otherwise, you would not need to have your ASIO agents in Sri Lanka if they are not interacting at some level.
Mr Irvine : You are now assuming that I have ASIO agents in Sri Lanka.

Senator RHIANNON: You have ASIO people in Sri Lanka.
Mr Irvine : I have said that that is an operational matter that I am not able to address.
CHAIR: The committee would not want you to, Mr Irvine.

Senator RHIANNON: To finish it off, if you had ASIO agents in a country like Sri Lanka, where it has been documented that many of their security people have been involved in very serious crimes, how would you proactively ensure that your people were not working with, engaging with or taking information from these people?
Mr Irvine : It is a hypothetical question.
CHAIR: I should not have allowed it.
Mr Irvine : All I can say to you is that in relation to torture ASIO officers have very clear guidelines to which they work. I am pretty confident that they understand those guidelines and work to them.
Senator EDWARDS: In all countries.

Senator RHIANNON: All I am trying to get at how you are proactive on this. If you cannot share that with us, that is disappointing. I am sure that we can come back to it.
Senator Brandis: In fairness to Mr Irvine, he could not have been more emphatic or unambiguous than he was in his last answer about the very strict policy that ASIO adheres to in relation to matters of torture.

Senator RHIANNON: That is an interesting response, Minister. It was obviously very impressive to hear those three principles outlined. All my question was about is how we are not just reactive but proactive when you are in a country where these high levels of abuse are occurring so that our agents or our people-whatever we call them-do not caught up in it.
Senator Brandis: First of all, Mr Irvine has said, quite properly, that he does not comment on operational matters, so your question is based on a speculative hypothesis that has not been accepted. Secondly, with all due respect to you, I do not know how one can better be proactive in any circumstances than to have a very strict rule and always observe it.
Senator RHIANNON: If you are collecting information-
CHAIR: Hang on.

Senator RHIANNON: There is a question here. If you are collecting information for adverse security assessments you can also be collecting information about crimes that have been committed by other people as well, Attorney-General.
CHAIR: And what is the question?
Senator RHIANNON: We have had the three principles set out but we have not had the information set out before us about we ensure that our people do not get caught up in this by association. I would think that that is a relevant question that needs to be answered to this parliament.
CHAIR: That is not a question. You have not asked a question. Mr Irvine answered that point three four statements ago.

Senator RHIANNON: What government departments and agencies are exempt from FOI provisions?
Mr Wilkins : I will get Andrew Walter to explain it to you.
Mr Walter : The exemptions are set out in the schedules to the act. Schedule 1 is exemptions under section 6, and then schedule 2 is exemptions under section 7. They are quite complicated provisions, so I could read through all that if you like. The lists are not particularly long. Schedule 1 has three agencies, a number of which do not exist anymore-the Australian Industrial Relations Commission, the Australian Fair Pay Commission and the Industrial Registrar and Deputy Industry Registrars. And then schedule 2 goes through Aboriginal Land Councils and Land Trusts, the Auditor-General, the Australian Government Solicitor, ASIO, ASIS, the Inspector-General of Intelligence and Security, the National Workplace Relations Consultative Council, the Office of National Assessments, the Parliamentary Budget Office, and the Parliamentary Budget Officer.
Senator RHIANNON: And then we have the departments as well-the Senate and the House of Representatives departments?
Mr Walter : Yes, but that is not covered in the FOI Act. That is correct-they are exempt.

Senator RHIANNON: So, can you just run through which departments are exempt?
Mr Walter : The two departments you have talked about-the Department of the Senate and the Department of the House of Representatives-are exempt. They are the departments that are exempt.
Senator RHIANNON: Isn't there the third one-the Department of Parliamentary Services?
Mr Walter : Sorry, yes-and the Department of Parliamentary Services.
Senator RHIANNON: So, just three. Any others?
Mr Walter : No-unless there is something in another piece of legislation that I am not aware of.
Mr Wilkins : We do not want to mislead on questions of law, so can I suggest that that is a best endeavour to answer your question.

Senator RHIANNON: And can you take it on notice and just type it up if needed?
Mr Wilkins : Well, we do not give legal advice to the committee, actually, so you should read the FOI legislation.
Senator RHIANNON: But you have given an answer. Can I just ask for it to be taken on notice if we have to type that up?
Mr Wilkins : Seriously, Senator, we do not give advice. We are not here to give legal advice to the community.

Senator RHIANNON: Well no, it was not legal advice; you know that, Mr Wilkins. It was just a simple question.
Mr Wilkins : Well, we have just answered the question.
Senator RHIANNON: So, you are satisfied that is complete?
Mr Wilkins : No.
Senator RHIANNON: Okay, so, as you are not satisfied it is complete-
Mr Wilkins : But I am not going to do the research on it, Senator.

Senator RHIANNON: Mr Wilkins, you seem to be getting tighter and tighter with your answers. Anyway, I am happy to move on. I want to see where the open government declaration is up to. I understand that the former Attorney-General, Mr Dreyfus, said that we would join, but I wanted to check. I understand that we did not join. Is that the case? And what is the position of the current government with regard to the open government declaration? Do they have any intention of joining and, if so, what is the time line on it?
Mr Fredericks : In order for Australia to join the open government partnership officially, Australia is required to develop an action plan in relation to that by April of 2014. That essentially represents the deadline for Australia to finally decide whether to join, and obviously at that time it will be a matter for government.

Senator RHIANNON: I was not aware of that date. Is that a date for everyone, is it? You have to have your development action plan in by then or have indicated that you are working on it?
Mr Fredericks : For every country that wishes to join in 2014, the deadline for those countries to submit their action plan will be April of 2014.

Senator RHIANNON: Is there any work being undertaken on an action plan in Australia currently?
Mr Fredericks : There is. In fact, in the last three weeks there have been two interdepartmental meetings to continue work on the action plan in order to put government in a position to make a decision. I can give you the details of those interdepartmental meetings, if you wish. On 29 October there was a meeting. It was attended by representatives from AGD, AusAID, Communications, DFAT, Finance, PM&C, Industry, and the Office of the Information Commissioner. That was the first meeting of that group since the election, so that was a general discussion about Australia's potential position post the election. There has been a second meeting. That was on 5 November 2013, and that was a meeting between the four core departments: PM&C, AGD, Finance, and Communications. And that was in order to discuss the next steps.

Senator RHIANNON: I think you used the phrase, before you gave the details of the meeting, that these meetings 'put the government in a position to make a decision if they wish'. Thank you for the details about the meetings. What is the next process with regard to the government making the decision? Is there any time line that has been set by the government for making that decision?
Mr Fredericks : No.

Senator RHIANNON: So, what is the process subsequent to those two meetings?
Mr Fredericks : Conscious of the final time line date of April 2014, the various departments will discharge their obligation to provide advice to the government for its consideration.

Senator RHIANNON: Just on some specifics about FOI, I have noticed how the case load is growing larger. It is something that we talk about regularly at estimates. Many cases are taking over a year to finalise. Why is the Office of the Australian Information Commissioner are not referring cases directly to the Administrative Appeals Tribunal?
Mr Wilkins : The Office of the Australian Information Commissioner was here earlier today. You would have to ask them.

Senator RHIANNON: Would the minister or yourself, Mr Wilkins, be able to share any information about this, as I obviously ran out of time. I thought it was an important question and I would like to hear your views on it. Considering we have this problem-which I would hope that you would all address periodically-that the FOI case load is growing larger and it is taking more time, there does appear that there is a way of handling this.
Mr Wilkins : I think you should have had that conversation with the Office of the Australian Information Commissioner, because I do not know if the premise on which your question is based is one that he would accept. I think it is much more complicated. It is certainly something that you would need to take up with him, not me.
Senator RHIANNON: Thank you, Mr Wilkins. I will put it in on notice.

Senator RHIANNON: I understand that the Australian Catholic Religious Against Trafficking in Humans has received money from the proceeds of crime. Has the government decided to cease funding this organisation and, if this is the case, why was that decision taken?
Mr Anderson : ACRATH has a funding grant in place currently that expires on 30 June 2014.

Senator RHIANNON: Have you decided not to fund them for another year? I understand they have had funding for two years to date.
Mr Anderson : No decision has been made. They have existing funding in place until 30 June 2014.

Senator RHIANNON: When will the decisions be made for the next round of funding?
Mr Anderson : If a decision is to be made, that will be a matter for the government between now and 30 June 2014.

Senator RHIANNON: Attorney-General, has a decision been made on whether ACRATH should receive funding again?
Senator Brandis: No such decision has been made by me, but I am not familiar with the particular case. Whether a decision has been made within the department, I gather not.
Mr Anderson : There has been no occasion for a decision to be made.

Senator RHIANNON: Considering the lateness of the hour, could you take on notice when a decision will be made. This organisation understands that they have been defunded.
Senator Brandis: It may be that no such decision has been made and that, as I think the officer, Mr Anderson, was pointing out, no occasion has yet arisen for a decision to be made. I do not think we should conflate a refusal with the fact that the occasion to make a decision has not yet arisen.
Senator RHIANNON: Does Mr Wilkins have something to share with us?
Senator Brandis: No. Mr Wilkins was just pointing out to me that this is something that is a decision for the Minister for Justice rather than me, but I am happy to make the inquiry.
Senator RHIANNON: Okay. If you could take that on notice, it would be appreciated.

 

 

 

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