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Legal and Constitutional Affairs Legislation Committee - 24/02/2014 - Estimates - ATTORNEY-GENERAL PORTFOLIO - Australian Security Intelligence Organisation

Australian Security Intelligence Organisation

[20:30]

Senator SINGH: I will start by asking you about the Inspector-General of Intelligence and Security report from January this year into the inquiry into the attendance of legal representatives at ASIO interviews and related matters. That inquiry found that ASIO was denying asylum seekers legal representation during their interviews for security clearances. Is that correct? If so, have the recommendations listed in that report been taken up by ASIO?

Mr Irvine : Strictly speaking, there is no legal requirement for lawyers to be present during ASIO security assessment interviews. But it has been our policy over a number of years to permit, unless there are significant operational reasons, lawyers to be present at security assessment interviews for visa applicants. We conduct hundreds of those interviews, and the inquiry was concerned with the nonattendance of lawyers at just four of those interviews. As to whether we accept those recommendations, we have generally accepted those recommendations.

Senator SINGH: What would be the criteria for not permitting a lawyer to be present at an asylum seeker interview?

Mr Irvine : There would be no specific criteria. It would really depend on the view of the assessment officer as to whether it would assist or, alternatively, impede the interview. It is at the interviewee's discretion to request a lawyer, and the person would know that they have that right. But I do not think there are specific criteria that I could give you that are written down where we would deny it.

Senator SINGH: So it is up to them to ask for a lawyer?

Mr Irvine : Yes. But the recommendation is, of course, that we specifically ask them when they want a legal representative to attend—and we have accepted that recommendation.

Senator SINGH: Is it the case that some refugees have been given confidentiality agreements at the time of their interview without the opportunity to understand their obligations and what they are signing?

Mr Irvine : I am not sure to what you are referring. I will have to take the question on notice.

Senator EDWARDS: It is good to be back here the second time, Mr Irvine. Last time was my first. I would be delighted to get an update, if I may, on the ASIO building. When we last met, you were planning to be moving in about now. I am just interested to know: are you in? If you are not, how long will it be before you are?

Mr Irvine : We are still planning. The current date is, I think, the end of May.

Senator EDWARDS: The end of May—forgive me, but 2014?

Mr Irvine : I certainly hope so.

Senator EDWARDS: There are rumours that it is actually going to be some 17 months away. Where would they have come from?

Mr Irvine : I have no idea where they came from.

Senator HEFFERNAN: In the meantime, is the building secure?

Mr Irvine : I believe so.

Senator HEFFERNAN: That is not a good answer. Can I go down there, say, 'G'day, mate,' and go through and have a look at what they are putting in?

Mr Irvine : No.

Senator HEFFERNAN: Are you sure?

Mr Irvine : I am pretty positive. We did have someone who climbed over a fence.

Senator HEFFERNAN: No, just through the normal workings of the place. If I put a helmet and whatever on and go in as one of the—

Mr Irvine : No, the building is secure in that sense.

Senator EDWARDS: Last estimates you stated that the alterations that were made by ASIO along the way to the original specifications of the building were not really significant enough to delay the building.

Mr Irvine : That is correct. There were a number of changes to the specifications of the building over its five- or six-year history. The most significant one, perhaps, was the decision not to put ONA in the building. Subsequently we are putting the Australian Cyber Security Centre into the building. There were some minor changes to specifications, but my advice is that the changes to the ASIO specifications are not essentially responsible for significant increases in costs or for the actual delays.

Senator EDWARDS: So negligible delays and negligible costs?

Mr Irvine : No, I am saying that changes to ASIO specifications are not responsible for those.

Senator EDWARDS: So you are the good guys and everybody else is at fault, because it obviously has gone a long way over time, for reasons which are somebody's fault—not necessarily yours. If you say May is the estimated time of completion now, that is really 10 months after the place was officially opened.

Mr Irvine : That would be correct.

Senator HEFFERNAN: Is that because of the fit-out?

Mr Irvine : No, the delays to the building are the delays in being able to achieve a certificate of practical completion. The physical part of the building has essentially been completed for some considerable time, but the builders are having some difficulty in fixing up a number of issues which arose when they went into the pre-completion testing phase. I think there are three essential areas. One is that work still needs to be done to ensure total fireproofing of the building. There are issues relating to the movement of air within the building.

Senator EDWARDS: So there are still a dramatic number of issues.

Mr Irvine : I am not advised that it is dramatic, but they all need to be fixed and we are being told by the contractors that they should be fixed by the end of May. We have been told that for about 15 months.

Senator EDWARDS: I know, Mr Irvine. I know you are not the builder. So whose idea was it—

Senator Brandis: I just want to emphasise that point: whatever problems there have been with this building—and plainly there have been many—they are not ASIO's fault and they are certainly not the fault of Mr Irvine, who I think has been very long suffering throughout this process.

Senator EDWARDS: Yes, Minister, he has. I sensed his frustration and I think he was quite eloquent in putting it last time we met. But Mr Irvine must know that we were expecting it early in the new year—which is now, because it will be March next week; that is early new year—and now it is May. Whose decision was it to open that building on 23 July last year?

Mr Irvine : It was a decision of the previous government.

Senator EDWARDS: Who, specifically?

Mr Irvine : I understand that there were consultations between the then Attorney-General and the then Prime Minister.

Senator EDWARDS: So it was the Prime Minister's decision to open that building—still with no real opening date.

Mr Irvine : I do not know specifically who ultimately made the decision. But certainly the decision was conveyed to us by the Attorney-General.

Senator EDWARDS: Under instructions from the Prime Minister?

Mr Irvine : I do not know that. I assume that their offices had consultations, yes, because the opening was set for one day and that was not convenient for the Prime Minister, so another date was set.

Senator EDWARDS: Did you protest at all at that time about the early opening of a building—which had no completion date going forward?

Mr Irvine : That is not quite correct. The fact is that, when the decision was being taken by the government, initially, to open the building, the completion date was about one month after the opening—which I felt, and still feel, would have been very adequate time. It would have enabled the building to be opened before we actually began to move in and do our fit-out and so on. For security reasons, I think that was pretty sensible. In the process from then, the date kept on stretching out. By the time the building was opened, the date had stretched out from the end of August—so you would have had a month after the building was opened until the end of August—to 1 October. It has subsequently stretched out even further.

Senator EDWARDS: At the time, did you or any of your officers raise with the Prime Minister's office any concerns about the opening of the building being premature?

Mr Irvine : Certainly we advised the Attorney-General's office of the delays and, as we heard of them, any further delays.

Senator EDWARDS: But it was too late? The date had already been set to open this—

Mr Irvine : The government could have taken another decision, but it took the decision it did.

Senator HEFFERNAN: It was a bit of political show-and-tell.

Mr Irvine : The government took the decision it did.

Senator HEFFERNAN: Political show-and tell.

Senator EDWARDS: Do you know if there was anyone else who advised the Prime Minister's office that it was premature to open that building?

Mr Irvine : I am not aware of anyone else doing that.

Senator EDWARDS: Did the Department of Finance, who are the owners of the building, provide any advice about the opening of the building at that time?

Mr Irvine : Not that I am aware of. I do not know. Do you mean to their minister?

Senator EDWARDS: Whom should I refer these questions to?

Mr Irvine : Presumably to the Department of Finance.

Senator EDWARDS: Do you deal at all with the managing contractor in relation to the building?

Mr Irvine : We have done so. We have a team which looks after our interests in the building, particularly the security interests and so on, to ensure that the building meets the specifications previously agreed and, in particular, ASIO's requirements. They work with the prime contractors on a regular basis. There was, at one stage—because we were concerned in the early part of last year about the delays—a meeting between the Department of Finance and the Lend Lease executives. This was back in April of last year. ASIO was present at that to find out exactly what was going on and to urge them to complete the building on time. Subsequently the secretary of Finance and I wrote to the principals of the prime contractors, the managing contractors, to encourage them to bring it to an early completion.

Senator EDWARDS: I understand your frustration because you appear to be a third party in this whole issue. Are you aware of any other budget blow-outs that may have occurred beyond the $170 million that has previously been reported?

Mr Irvine : My understanding is that the total cost of overruns identified to date—I am only quoting from the figures I have been given—is $54.3 million, which equates to about nine per cent of the approved budget of $589 million. That larger figure may include a budget increase very early on in the planning and construction phase.

Senator HEFFERNAN: How much of the budget variation is due to redesign and how much is due to poor design, poor engineering? Do you have a make-good provision in the contract or is it a glorious open-ended contract with no time and no top?

Ms Hartland : The scope increases were $20.4 million, which includes the Australian Cyber Security Centre costs as well. It was a total of $20.4 million in additional costs.

Senator HEFFERNAN: Over the top of that, does the builder bear a portion of the added costs or is it just the generosity of the taxpayer? If they cannot get the airflow right, how do we know they are going to have the security right?

Ms Hartland : Those questions are probably best directed to the Department of Finance as the owner of the building, but they tend to be negotiated agreements each step of the way

Senator EDWARDS: We will go back to the Department of Finance. Did the then Minister for Finance or her office have any comment to make at the time of the building's opening?

Mr Irvine : I am not aware that the then Minister for Finance made any comment.

Senator EDWARDS: Was the minister present at the opening?

Mr Irvine : I do not believe so.

Senator EDWARDS: So we have no idea why 23 July 2013 was set for the opening of a building that still has yet to open.

Mr Irvine : It was a confluence of events where decisions were made on the basis of one day of completion and the opening went ahead but the completion did not.

Senator Brandis: The opening went ahead but the completion did not—I think you have your answer, Senator Edwards.

Senator HEFFERNAN: Has anyone got the sack as a result of the balls-up with this building? If it was private enterprise you would chuck them all away.

Mr Irvine : I think that is an issue maybe people in private enterprise have, I do not know.

Senator Brandis: In fairness, there was not any 'balls-up' in relation to the building; what there was was a decision made at the political levels of the former government to perform an opening ceremony very prematurely, and the person responsible for that in fact did get the sack—by the Australian people.

Senator RHIANNON: Do ASIO advise their staff working overseas not to use aid agencies as cover and not to involve aid workers in intelligence gathering, directly or indirectly?

Mr Irvine : I cannot see circumstances where ASIO would use aid agencies as cover.

Senator RHIANNON: The question was do you provide any advice to your staff about how they interact with people who are working for overseas aid agencies, working on overseas aid projects.

CHAIR: Mr Irvine, you do not need me to tell you this—you have been around a lot longer than I—but do not feel obliged to answer questions that may impact on your operations.

Mr Irvine : Thank you for that advice. Certainly I would not respond to questions relating to operations. At the same time, you have to understand that a very large part of ASIO's work is actually done in Australia and aid agencies very largely work overseas.

Senator RHIANNON: Considering that many of your staff are working out of embassies overseas and, in some cases, conducting operations overseas, do we take it from your answer that no advice is provided on this issue?

Mr Irvine : The basic premise of your question is that we have many staff overseas. We have a relatively small number of staff overseas, who are in declared liaison relationships with counterpart agencies. So their operational activities tend to focus very much on exchanges of information with the counterpart agencies.

Senator RHIANNON: In light of the accusations that ASIS—whom you do have relations with—used aid programs in East Timor to spy on the East Timor government, has ASIO revised in any way the advice that it gives to staff?

Mr Irvine : There is no point in giving advice to staff because it is just not an issue that arises in most of our work. If it did arise, it would certainly be covered by operational considerations.

Senator RHIANNON: Are you saying there is various operational advice that staff should not engage with programs or—

Mr Irvine : No, we do not give that sort of advice. It is not necessary.

Senator RHIANNON: I understand that the Africa-Australia Mining Industry Group are holding an event this week with ASIO and, as part of the publicity for it, your website states that it is with the objective of 'making doing business in Africa more productive'. Does ASIO work to enhance the corporate interests of mining companies overseas?

Mr Irvine : No. ASIO works to provide security advice to elements of the private sector who are overseas, and the nature of the advice we provide is what we call 'threat advice'. We advise people of potential threats in certain countries overseas—as indeed we advise the government—and we provide that advice when ministers and parliamentarians visit overseas as well.

Senator RHIANNON: Could you explain the language that is used to promote the ASIO Business Liaison Unit workshop about making doing business in Africa more productive. It talks about 'possible partnering opportunities' and 'providing information briefings to executives and staff'. The explanation you have just given around threats does not come through here; the emphasis is on making business more productive.

Mr Irvine : I am not aware of the document you are quoting from.

Senator RHIANNON: It is from the ASIO BLU website.

Mr Irvine : Let me say to you that our Business Liaison Unit is just that, and it is there to provide security advice to Australian companies whether they are operating overseas or here in Australia. And if the safety of Australians operating overseas working for those companies is enhanced, then maybe their productivity will be enhanced too.

Senator RHIANNON: Do you run any workshops with any other Australian business sectors such as the finance sector overseas?

Mr Irvine : Yes, we do. I would have to check back to find out exactly which sectors, but our business website has a number of subscribers from the private sector. I would need to check which sectors.

Senator RHIANNON: Could you take it on notice to tell me what the other sectors are—because it was only coming through that it is with the resource industry.

Mr Irvine : I will take that on notice, yes.

Senator RHIANNON: Are you running these workshops for other areas apart from Africa?

Mr Irvine : That was a specific workshop presumably requested by that sector so that we would provide security advice in relation to doing business in Africa. But, yes, we can and we do, including doing business in Australia.

Senator RHIANNON: Have you also been working in Africa assisting companies in Africa as well as in Australia with their security arrangements?

Mr Irvine : You would have to rephrase that question. I cannot get a specific handle on what you are asking.

Senator RHIANNON: Okay. You have explained that you do this work in Australia. Do you do the same work or similar work in Africa?

Mr Irvine : We do not visit Africa to do that sort of work, no—well, we haven't, certainly not in my time.

Senator RHIANNON: So, in terms of providing security advice to these companies, if you are not visiting Africa, are you basing it on intelligence that you share with other agencies?

Mr Irvine : We are basing it on information that we receive from overt sources and that we receive from other intelligence agencies. Our principal role is to make assessments of security threats, and that is the sort of advice that we are providing.

Senator RHIANNON: Considering this term comes through a lot when you read about the ASIO (BLU) workshops, could you define what you mean by 'more productive' in the case of the Australia-Africa business partnerships?

Mr Irvine : Simply in the sense that, if there is stronger security awareness and companies are able to take account of that awareness and protect their staff more effectively, operating in alien and sometimes hostile environments, then that will have an impact, I would think, on the productivity of Australian companies operating in that area.

Senator RHIANNON: Does that include the impacts that possible security threats could have on their contracts, the actual mining operations?

Mr Irvine : No, I think we are primarily concerned about the impact that security threats will have on personnel.

Senator RHIANNON: Thank you, Chair.

Mr Irvine : And cybersecurity as well, of course.

CHAIR: Senator Ludlam.

Senator LUDLAM: Mr Irvine, what can you tell us, without compromising operational security, about the raid on the legal offices of Bernard Collaery and his colleagues?

Mr Irvine : Nothing, except that a warranted search operation was conducted with the approval, as is necessary, of the Attorney-General.

Senator LUDLAM: Yes.

Mr Irvine : I believe the Attorney has made a statement in parliament about that.

Senator LUDLAM: He did.

Mr Irvine : From an operational point of view, I would not add anything.

Senator LUDLAM: Okay. The Attorney also gave me some advice about where I can go later in the week for follow-up questions, so I will not ask you to answer anything that would trespass on the department of foreign affairs' responsibilities. Has Mr Collaery or anybody else who was interviewed or who came across your staff when you were in their offices had their passport returned to them?

Mr Irvine : That is an operational matter that I would not respond to.

Senator LUDLAM: Why is that an operational matter? How is that an operational matter?

Mr Irvine : I am simply not going to go into details about the activities that we undertake in respect of our legal national security responsibilities.

Senator LUDLAM: Can you identify for me what national security issue is even at risk here? You would be well aware—

Mr Irvine : The national security elements at risk are covered in section 4 of the ASIO Act, and in this case—

Senator LUDLAM: Not having a copy in front of me, which is section 4? What does that refer to?

Mr Irvine : It is the section which defines 'security' and the elements which make up security.

Senator LUDLAM: How does raiding the office of a lawyer who is engaged in advising the Timorese government impact at all on our national security?

Senator Brandis: Senator Ludlam, you take the view that what you have expressed is the only dimension to this case.

Senator LUDLAM: Mr Irvine is very practised at taking these questions, Minister.

Senator Brandis: He only mentioned this case, and of course I cannot go into operational matters either—

Senator LUDLAM: I did not ask you to.

Senator Brandis: But I can assure you that the way in which you have expressed the circumstances is not the only dimension to this case. As the minister who authorised the issue of this warrant, I think I can go so far as to say to you that it was a very strong case.

Senator LUDLAM: Feel free to describe to us any additional dimensions—

Senator Brandis: You know I cannot do that.

Senator LUDLAM: So why should we trust you, Minister.

Senator Brandis: Because I am telling you.

Senator LUDLAM: That really does not do it for me, I am afraid. It does not do it for me in the least.

Senator Brandis: Perhaps it does not do it for you, but—

Senator LUDLAM: Or many other people.

Senator Brandis: The officers at the table and I are here to respond to your questions as well as we may. I am telling you as the minister who authorised the warrant on the basis of an intelligence case put before me by ASIO that it was a strong case and there were more dimensions to it than you have expressed in your question.

CHAIR: I do not think you need to go further.

Senator Brandis: I am not able to go any further.

Senator LUDLAM: I did not ask you to go into any detail at all. Mr Irvine is very practised at taking these questions. He has never once trespassed on operational matters in the whole time we have been having these discussions.

Senator Brandis: No.

CHAIR: He has already told you that for operational reasons he does not want to answer your question.

Senator LUDLAM: We had a rather senseless intervention then from the Attorney-General.

Senator Brandis: No, you put a proposition to Mr Irvine that was false because it assumed by implication that the basis upon which the warrant was sought by ASIO and authorised by me was on the footing you propounded. That is false.

Senator LUDLAM: You cannot give me any reason to believe otherwise?

Senator Brandis: I am telling you there were other reasons.

Senator LUDLAM: You cannot tell me what they are?

Senator Brandis: Of course I cannot.

Senator LUDLAM: And neither can Mr Irvine?

Mr Irvine : No.

Senator LUDLAM: One question I did put to you before, Attorney, that I think you deferred was whether the warrant was targeted towards specific documentation or whether it was completely open. Are you okay to take this one, Mr Irvine?

Mr Irvine : The object of the warrant was to obtain material; it did not specify specific documentation relevant to the security matter being investigated.

Senator LUDLAM: I do not suppose you are able to table the document that you are reading from?

Mr Irvine : No.

Senator LUDLAM: It never hurts to ask. You are not able to do that?

Mr Irvine : No.

Senator LUDLAM: I do not know why we bother. Mr Wilkins, is the government or the department presently, to your knowledge, investigating data retention anywhere in some dark corner of the department?

Mr Wilkins : So far I have not been able to find anyone who is doing that, but I have taken it on notice, I have asked the question and I want it properly answered.

Senator LUDLAM: Are you here tomorrow?

Mr Wilkins : No.

Senator LUDLAM: So we have to wait till May?

Mr Wilkins : No, I can write you a letter or send it in to the committee.

Senator LUDLAM: Am I mistaken in thinking that you have a roomful of people behind you and others in some of the breakout rooms watching, and you did not think anybody would come forward to let you know?

Mr Wilkins : I have already asked the question. I have asked for that advice.

Senator LUDLAM: You have had to go to everybody individually?

Mr Wilkins : We will be putting out a circular.

Senator LUDLAM: Remarkable!

Senator Brandis: It is not a conspiracy, Senator Ludlam. I know you see conspiracies behind every pot plant. Nor are there dark corners in my department. If you have ever been to the offices, they are full of light.

Senator LUDLAM: That is brilliant. Let us leave it there.

CHAIR: Thank you Senator Ludlam, and I thank Mr Irvine and Ms Hartland for their attendance and for their help.

Proceedings suspended from 21:04 to 21:16