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Legal and Constitutional Affairs Legislation Committee
(Senate-Tuesday, 24 February 2015)
Australian Human Rights Commission
Senator Jacinta Collins
Senator IAN MACDONALD
Ms K Jones
Australian Federal Police
Senator JACINTA COLLINS
Australian Security Intelligence Organisation
Senator JACINTA COLLINS
Office of the Director of Public Prosecutions
Senator JACINTA COLLINS
Administrative Appeals Tribunal
Office of the Australian Information Commissioner
Senator JACINTA COLLINS
- Australian Human Rights Commission
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Content WindowLegal and Constitutional Affairs Legislation Committee - 24/02/2015 - Estimates - ATTORNEY-GENERAL'S PORTFOLIO - Australian Security Intelligence Organisation
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Australian Security Intelligence Organisation
CHAIR: We now call the Australian Security Intelligence Organisation. Mr Lewis, welcome to the Senate estimates committee. We very much appreciate your time. I am not always sure that it is time productively spent from your side, but certainly it is for the Senate and the parliament of Australia, and perhaps the Australian people. I understand this is your first appearance—through a series of unfortunate diary mis-interactions in the past. It is good to have you here. Congratulations on your appointment. Would you like to make an opening statement?
Mr Lewis : In the spirit of Commissioner Colvin, I am very pleased to be here! Thank you for your welcome. I am sure we all acknowledge that much has happened both at home and overseas since this committee last heard from the Australian Security Intelligence Organisation. I would like to take this opportunity to provide the committee with an update on the current security environment, and also to talk about some of the recent significant announcements and events that have taken place around the area of our business.
First I would like to convey my sympathy to the victims of the Martin Place siege, and their families. I would like to acknowledge the response of the law-enforcement and emergency services and the response of my own agency in what was an extremely difficult and dangerous situation. We are facing challenging times. I note that other countries have also suffered at the hands of those who would wish us harm. I would like to assure the community that ASIO and its intelligence and law-enforcement partners are doing all that we can to protect our fellow Australians.
A few words on the general security environment. You are aware that on 12 September last year, just a couple of days before I took over this position, that the National Public Alert Level for Australia was increased to 'high'. This means that a terrorist attack is assessed as likely. This decision related to a range of factors, indicating an escalation in the threat environment. Unfortunately, these factors have persisted and in some cases got worse. It is difficult to overlook the fact that the decision last year to lift the alert level has been vindicated by subsequent events. Beyond Australia, there have been a number of attacks in Canada, the United States, Europe and Africa. For example, last October in Ottawa we saw the shooting of the young Canadian soldier and the penetration of the Canadian parliament by a gunman.
Early last month we saw incidents occurring in Paris, with the Charlie Hebdo magazine, the killing of a policeman on the streets, the killing of a policewoman on the street, and of course the incident at the kosher supermarket, where a siege-hostage situation played out.
On the 15th of last month the Belgian federal police conducted a significant operation against a number of suspected returned foreign fighters, several of whom were reported as being killed during the operation. It was suspected that they were at that point planning attacks on Belgian police stations.
On the 3rd of this month, just a few weeks ago, an assailant wielding a knife attacked three soldiers who were guarding a Jewish community in the centre of Nice, in France. On the 14th and 15th of this month, a lone gunman conducted two separate firearms attacks in Copenhagen. That was covered in the paper just the week before last.
That brings me to the shocking events here in Australia. A violent attack last September on two police officers in Melbourne at the Endeavour Hills police station, and of course the siege in Martin Place, Sydney, last December.
I also note the litany of murderous, barbaric acts that have been carried out, sadly almost on a daily basis, by ISIL, in Syria and Iraq, most recently, the immolation of the Jordanian fighter pilot. And, of course, just a few days ago we saw separately the killing of Egyptian Coptic Christian fishermen, kidnapped and killed in Libya.
I mention these acts to highlight the violence and the complete disregard for humanity that is afoot. But I also reference the relative sophistication of prescribed terrorist organisations in their ability and capacity to promulgate what I would describe as their warped narrative and savage imagery. They can put that online and in front of communities around the world. We have seen high levels of sophistication with ISIL online around the magazine Dabiq—one of their publications—and another one, Al-Hayat Media, and of course al-Qaeda has for some time been operating the Inspire magazine.
These attacks demonstrate what I would describe as a concerning trend of relatively crude lone-actor attacks by individuals using easily obtained weapons, having been inspired and instructed by extremist ideologies online. Such attacks demonstrate that the tensions from the conflict in Syria and Iraq are reverberating across the world, including here in Australia. I wish to highlight that there more Australians involved with groups fighting in Syria and Iraq than in any previous conflict involving non-state actors. We can expect that the consequences for Australia will be commensurately greater than previously seen with, say, those Australian foreign fighters who returned from Afghanistan.
There are in Syria and Iraq currently around 90 Australians fighting with or providing support to these groups, especially ISIL. At least 20 have been killed in the conflict. About 30 have returned to Australia. There has been much public attention on the issue of Australians travelling to Syria and Iraq. However, this is part of a broader problem. We must also focus, of course, on the individuals who are here in Australia. The threat from within Australia does not only exist from individuals affiliated with terrorist groups, or even from those on the fringes, it comes from anyone with a grudge who wishes to react under the banner or the name of terrorism. The lone actor can operate independently, may have no contact with other extremists but may be inspired by an ideology promulgated by others.
The Prime Minister announced on Sunday and Monday the findings of two significant reviews relating to counter-terrorism—the first the finding of the Martin Place siege, discussed on Sunday, and the second the review of the counter-terrorism machinery, which was released yesterday. In the case of the first review, the Martin Place siege, we provided full support. ASIO provided full support to the external review into that siege. The review did not identify any deficiencies in ASIO's policies and practices and it found that our approach and systems were sound and appropriate. While these findings may be reassuring from a procedural point of view, I understand community concern regarding Man Haron Monis's long presence in our midst. ASIO remains focused on making improvements wherever we can. For us, this is a continual process.
On the CT review—the counter-terrorism review, the second paper—the government conducted this review into counter-terrorism governance and policy management in response to the threat from terrorism. ASIO contributed to and supported the initiatives that are in that paper. Once final deliberations and decisions are made by government on some of those measures, then we will work closely with government and our Commonwealth and state national security partners to ensure their successful implementation.
I want to give a few words, if I might, on legislation. It is imperative that Australian intelligence agencies are appropriately equipped to protect Australia's vital national security interests. The legislative powers available to ASIO and to partner agencies need to respond to ever-evolving challenges in the security environment. We are already utilising these powers. By way of example—just to mention one—we have already requested eight passport suspensions on security grounds since the introduction of that particular new piece of legislation. In relation to data retention, we need to ensure that we keep abreast of changing technology. I recently attended a public hearing for the PJCIS inquiry into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill. In that forum I stressed the importance of historical communication data to our work in protecting the security and safety of Australia and Australian interests. The committee is deliberating and will deliver its report at the end of this month. It would not be appropriate for me to comment any further on where it is going with that.
In closing, ASIO takes its role to investigate and provide advice on threats to Australia national security very seriously. In doing so, we remain mindful of the importance of employing the least intrusive methods of collection with respect to the level of threat that is in question. ASIO is subject to numerous layered oversight and accountability mechanisms, designed to provide assurance to the Australian public and to the Australian government of the scrutiny and propriety in which ASIO undertakes its business. Notwithstanding this regulatory burden on my organisation and the oversight, I and my leadership team welcome this particular regulatory arrangement. The oversight is important to us. These are the checks and balances which give the community confidence in their security intelligence organisation.
Finally, I, like you, heard the Prime Minister's national security address yesterday. There are a number of issues he raises which remain before government for further consideration and decision, so I know the committee will understand if I am not able to expand on those issues at this time. Chair, thank you for your indulgence.
CHAIR: Thank you very much, Mr Lewis, and we very much appreciate those comments and the work you and your team do. Many of your team will, of course, never be known to any of us but their work is appreciated by all Australians and perhaps you can pass that onto them. I know I can speak on behalf of all members of the Senate in saying that.
Mr Lewis : Thanks, Chair.
CHAIR: You have big shoes to fill in following Mr Irvine» but I am sure you will do it, so all the very best. The Deputy Chair, Senator Collins, will start the questioning.
Senator JACINTA COLLINS: Thank you, Chair and thank you, Mr Lewis. Mr Lewis you mentioned in your opening statement the incident in Endeavour Hills. I had an opportunity to ask the Victorian police commissioner about the reviews of that incident. At the time—I think it was late last year—they were ongoing. Are you aware of any that have been concluded and the outcomes of them?
Mr Lewis : No, I am not and that would be a police matter. It is well out of our hands now and I am not familiar with where they are up to.
Senator JACINTA COLLINS: Yes it is both a Victoria Police and an AFP matter, I think—if I recall.
Mr Lewis : Both police forces, yes.
Senator JACINTA COLLINS: Okay, thank you. How important are programs to counter violent extremism in the fight against terrorism here in Australia?
Mr Lewis : I would regard it as critical. It is not something on which my agency has the lead, but I regard counterterrorism as a double-sided coin. One side is, of course, the issue of security and law enforcement, and that does fall partly into my bailiwick. But the other side, which is no less important—in fact, some might argue it is even more important to final resolution, if you like, of this challenge we face—is countering violent extremism and trying to tackle what I regard as the very serious issue of radicalisation that is taking place among certain youth in our country.
Senator JACINTA COLLINS: Has any organisation been banned under the expanded definitions of terrorist offences and terrorist organisations introduced by the government last year?
Mr Lewis : Just one moment, Senator: I will just take advice. Not a new listing, but a re-listing of JeM, one of the listed organisations; it is in a public list that is available. That organisation was re-listed recently.
Mr Lewis : Yes, let me see if I can find the name description: I have the list here, but I just have to find it. There is a renewal around Jaish-e-Mohammed. That is the name of the organisation, J-e-M.
Senator JACINTA COLLINS: J-e-M, okay. Now approximately how many Australians are currently participating with terrorist organisations in the conflicts in Syria and Iraq?
Mr Lewis : How many are, or have—what was the tense of that question?
Senator JACINTA COLLINS: Currently.
Mr Lewis : Currently. I think in my opening statement I explained that there were around 90 Australians that we know are engaged in operations directly supporting fighting in Syria and Iraq.
Senator JACINTA COLLINS: Okay. Has the number been increasing or decreasing over recent months?
Mr Lewis : Recently it has been increasing. The increase is probably best categorised as sort of arithmetic—it is not a geometric thing—and much of the increase that has occurred in the last couple of months has been as a result of several things.
Firstly, is our better understanding—this is important—of who is there. So, the discovery that there are some Australians there that we did not previously know were there. Then there is the movement of some Australians from third countries into Syria and Iraq. So, not leaving from Australia, but coming from elsewhere. The number is contributed to by a small number of women who have recently gone. This is the 'jihadi bride' issue. While the number has gone up—I think that before Christmas, in about October, we were talking about 70 up to 90—that is not actually an increase of 20-ish from Australia. It is really a collection of those reasons that I just described.
Senator JACINTA COLLINS: Do you have a sense of what proportion of the growth relates to us understanding better, as opposed to a growing incidence in radicalisation?
Mr Lewis : No, I do not.
Senator JACINTA COLLINS: Can you quantify for me the 'jihad bride' problem? We have probably seen three different types of phenomena there: one is women going to be brides, the second is the brides now fighting and the third is the claim that the brides are essentially raped and abused by the forces over there. Are you able to give us any greater sense of the depth of the problems around women's participation over there?
Mr Lewis : Not in terms of the discrimination between those three categories you mention. But I can say that here in Australia the number—I cannot be precise here—that we are talking of is 30 to 40 young women that we know have either gone or contemplated going and been stopped. There is a number that have been stopped by their families and so forth. But the size of the 'problem'—if that is the right way to characterise it from an Australian perspective—is of that order: 30 to 40.
Senator JACINTA COLLINS: Thirty to 40 at the moment, as compared to very few 12 months ago?
Mr Lewis : Yes. It is a relatively recent phenomenon.
Senator JACINTA COLLINS: It is possibly the most significant area of growth?
Mr Lewis : No, I would not say that. I am just cautious about running those two figures together—I am sorry, I cannot get into the precise numbers. You mentioned the categories yourself: there is only one of those three categories that you mentioned that are actually engaged in the fighting, and your previous question was about who was involved in the fighting. So that goes to that part of it.
Senator JACINTA COLLINS: Oh, yes.
Mr Lewis : I cannot ascribe what percentage of the group of these young women falls into those three categories that you mentioned.
Senator JACINTA COLLINS: Let me re-characterise my question. My actual question was—'are currently participating with terrorist organisations', so not necessarily fighting. I was attempting to encompass the broader social participation.
Mr Lewis : My figure of 90, as I said in my opening statement, relates to those who we know are actually engaged in the fighting or who are assisting directly into that fight.
Senator JACINTA COLLINS: That would not include a jihad bride who is not actually fighting?
Mr Lewis : No. That is correct.
Senator JACINTA COLLINS: Okay. You mentioned 30 to 40 women who have been stopped. How many do we understand have succeeded—
Mr Lewis : No, I am sorry, Senator, that is not what I said. There are 30 to 40 women who are involved in this cohort that we know of, some of whom have been stopped and some of whom have been successful in getting offshore.
Senator JACINTA COLLINS: Okay. What proportion are we succeeding in stopping?
Mr Lewis : Again, I cannot give you a figure. It is some of them, but I do not have the precise breakdown.
Senator JACINTA COLLINS: Is it in the magnitude of half or is it much smaller?
Mr Lewis : It is probably smaller than half.
Senator JACINTA COLLINS: Okay. Again, I suppose that is going back to your earlier point about the critical importance of countering violent extremism measures here domestically. I asked a question in the current sense. Can I now ask approximately how many Australians have travelled to participate with terrorist organisations in the conflicts in Syria and Iraq over the last two years?
Mr Lewis : In the last two years it would probably be those numbers that I have given you plus, maybe, another 30 or so.
Senator JACINTA COLLINS: Another 30?
Mr Lewis : Yes, perhaps. I suppose in total, if you started doing the math, that it would be something around 140 who have been in Iraq and Syria.
Senator JACINTA COLLINS: Approximately how many Australians have returned from fighting with terrorist organisations in Iraq and Syria?
Mr Lewis : Again, I mentioned that figure a moment ago. It is about 30.
Senator JACINTA COLLINS: Are they all on your current watch list?
Mr Lewis : We do not have a watch list. I think that has been well covered in the public arena. ASIO does not run a watch list; we run a matrix, which is a dynamic matrix. Cases are prioritised, and I am not willing to go into the detail of which ones of those are in which position on that matrix. I am afraid that is an operational matter and I will not go into it.
Senator JACINTA COLLINS: I am not asking you to go into operational matters; I am simply attempting to understand the treatment of the 30 who we understand have returned and what measures are currently being undertaken to monitor the risk to the general community at large.
Mr Lewis : I understand your question, and my answer remains that what is happening with those 30 people, and our relationship with them, is an operational matter. I am afraid that I cannot go into that with you.
Senator JACINTA COLLINS: You will have to excuse my ignorance. You mentioned that some of the issues have been well canvassed publicly about the difference between a watch list and the matrix you have. Perhaps you could humour me with a bit more of a description about what the matrix is—I am not asking you to elaborate on anything that is not a matter of public record—just to overcome my ignorance.
Mr Lewis : It is a process—and this will not strike you as being remarkable—of evaluating and prioritising the seriousness of the cases that we face and assigning resources to those cases so that the things that are presenting the most dangerous threat to the community are addressed with the greatest urgency and attention.
Senator JACINTA COLLINS: When you say 'a matrix', what does that mean?
Mr Lewis : It means a matrix as I described. It is a prioritisation process.
Senator JACINTA COLLINS: With a number of categories that you prefer, for operational reasons, not to elaborate on. Is that correct?
Mr Lewis : Not necessarily. I would not necessarily categorise it as something that has categories laid out in it. As I said, it is a prioritisation process. The highest priority receives the greatest amount of attention. I cannot be more specific than that.
Senator JACINTA COLLINS: For operational reasons?
Mr Lewis : It goes into the detail of how we are managing various datasets and so forth, and I am not in a position to discuss that with you.
Senator JACINTA COLLINS: At the moment I am just attempting to understand what the difference between a matrix and watch list is, and it seems that you feel you cannot be helpful.
Mr Lewis : The problem I have with the issue of a watch list is the matter of how many people are on the watch list and where was so-and-so. That is not the way we do business, so we do not have a watch list as such. We manage the threat that is presented, the prioritising of that threat and then the attention that is given to that particular threat. I cannot be more specific than that.
Senator JACINTA COLLINS: Can we go back to the issues around the 30 returned fighters? I am attempting to understand what level of priority would be attached to monitoring the behaviour of those individuals.
Mr Lewis : It depends on the individual. I cannot discuss that with you. They will have varying degrees of threat to the community. I can say that the vast majority of those 30 returned to Australian before there was ISIL—before the caliphate was declared. Some of them fall into the category of those who were fighting in the Syrian civil war on both sides—both pro the Syrian government and against the Syrian government.
Senator JACINTA COLLINS: What you are suggesting is that there would be quite a differential assessment of risk.
Mr Lewis : What I am saying is that it is not uniform through the 30.
Senator JACINTA COLLINS: You mentioned that the vast majority would have returned some time ago.
Mr Lewis : A large number of them returned several years ago.
Senator JACINTA COLLINS: Several years is it?
Mr Lewis : Yes. I think the caliphate was declared two years ago, and it was prior to that.
Senator JACINTA COLLINS: How many would have returned in the last two years?
Mr Lewis : I am not prepared to discuss the breakdown of when these people came back. The numbers are such that the sample you are talking about would cause me to divulge some quite important issues with regard to our attention to those individuals, and I am sorry but I will not go there.
Senator JACINTA COLLINS: Mr Lewis, I am more than happy for you to indicate that there are operational reasons as to why the information I am requesting is not appropriate in the public realm, so please do not feel defensive that I want to press for answers to some of these issues. I am simply seeking to understand how we are managing circumstances and I am more than prepared to accept that some matters are not appropriate within the public realm.
Mr Lewis : Thank you, Senator. I am not trying to be defensive; I am trying to help.
Senator JACINTA COLLINS: It is partly due to limited exposure to some of these issues. I am sure there are some circumstances, such as the joint committee, where there is perhaps a clearer understanding of where those operational factors lie. My final question is: how many Australians have been killed fighting with terrorist organisations in Iraq and Syria?
Mr Lewis : Currently, we know the figure to be just over 20. It is difficult to be precise, but the figure is just over 20.
Senator JACINTA COLLINS: Is that over a several-year time frame?
Mr Lewis : Yes, I think that would probably be in the same time frame that I was speaking of—the two years. It might go back three years, but it is in the order of two to three years.
Senator JACINTA COLLINS: So you do not have a sense of how many may have been killed in early periods over which, for instance, the 30 people have returned.
Mr Lewis : No.
Senator JACINTA COLLINS: Because we did not have access to that type of information?
Mr Lewis : And because—sorry to go back to my matrix—those people at that stage before the ISIL advent were not sufficiently high on the matrix to receive the sort of attention and detail that we are now giving to that area.
Senator JACINTA COLLINS: That is a reprioritisation of resources as well. Is that correct?
Mr Lewis : That is correct.
Senator JACINTA COLLINS: Thank you.
Senator LUDLAM: Mr Lewis, this may be out of your area, and I am happy, Senator Brandis, if you want to take this one on. I am trying to establish who, from right across the public service, the lead agency is—and it might be ASIO—for the issue of a very large-scale theft of encryption keys from a Dutch SIM card manufacturer, Gemalto. I took it up with ACMA earlier in the day. Is it the AGD, or is it ASIO specifically? Who actually has the lead on establishing whether these claims are true and what response should be forthcoming if so?
Mr Lewis : The nature of the inquiry that you are proposing would depend on whether it was the ASD in Defence—the Australian Signals Directorate—or AFP. It would depend on the specificity of the accusations or the investigation.
Senator LUDLAM: I have just missed the AFP; we can catch ASD later in the program. Are you aware of the nature of the issue that I am raising?
Mr Lewis : I am aware of the incident.
Senator LUDLAM: I will follow it up. Is there anybody else at the table, or maybe even in the room, who has a more precise answer? I am trying to establish who the lead agency is and who is advising the government. Senator Brandis, do you have anything you want to add? Is that something that has come across your desk?
Senator Brandis: No.
Senator LUDLAM: Not interested?
Senator Brandis: No. You asked me a question, and the answer to your question is no.
Senator LUDLAM: Can I ask you a different question? Are you interested? Is there anything that you would like to put to us? Is this something that you are working on?
Senator Brandis: I have nothing to add my answer, which is no.
Senator LUDLAM: Have you been briefed on the issue?
Senator Brandis: No.
Senator LUDLAM: Mr Lewis, I have one specific question to raise and one that is a little bit more general. It is an issue of an asylum seeker, Sayed Abdellatif, who was convicted in an Egyptian military court a couple of years ago. The conviction, it was later confirmed, was obtained by torture. He is an Egyptian father of six. He is now in indefinite detention in Australia on the basis, I understand, of the security advice that was received from Egyptian authorities—as I say, later confirmed to have been obtained by torture. ASIO obviously is the lead on the security assessments of people who come into our immigration detention system. Is there anything you are able to advise us of as to whether ASIO has reconsidered its security assessment of this individual based on evidence that has subsequently come to light?
Mr Lewis : I understand the question. The answer is that, for both security and privacy reasons, I am unable to comment on the status of any individual with regard to their security assessment.
Senator LUDLAM: And that is it?
Mr Lewis : That is it.
Senator LUDLAM: What is your process for re-evaluating? Let's not talk specifics, then, if you are unable to go into the particulars of his matters. What is ASIO's process? Would you need to act on the request of the Attorney-General, for example, or could you initiate a review on your own motion?
Mr Lewis : In this particular case, and normally, it comes from the immigration department, and we then conduct the security assessment in accordance with the arrangements that we have in place both internally in the organisation and under the ASIO Act.
Senator LUDLAM: Thank you. Again, if you are not willing to discuss his particulars, that is a shame, but I will not press you further on that. I presume it is not unprecedented that reviews would be conducted if new information comes to light that you consider would be material.
Mr Lewis : It is the norm. If new information is provided that in some way materially alters judgements that might have been made then we do, within ASIO, go back immediately and review that situation. Over and above that, I should also add that there is a process of regular revisiting of assessments that have been made, so there is a rotating program of revisiting. We can come back earlier than that regular rotation if new information is made available to us or comes to our attention.
Senator LUDLAM: He was convicted in 1999, and court documents have been provided to Australian authorities, I think, during 2013. How long—again not going to the specifics of his case—would these reviews that ASIO undertakes take given your workload?
Mr Lewis : That can vary significantly, depending on the complexity of the issue. I could not give you a precise answer. There is too much variety.
Senator LUDLAM: Yes, I guess. I do not know whether he has currently retained lawyers or exactly what his circumstances are, but how should either he or those who might believe that he is being unlawfully detained interact with ASIO? I guess on a confidential basis so as not to prejudice his privacy or security. How should they approach the kinds of questions that I am putting to you now to work whether he has been unfairly or unlawfully detained?
Mr Lewis : As I say, I will not go into the specifics of this case, but any legal representative—any person who is representing on a legal basis a person who is subject to an adverse security assessment—can communicate, and they do on a regular basis, with ASIO in writing, by telephone or in a number of ways. We do have regular contact with legal representatives.
Senator LUDLAM: Great. I am going to have to assume that that has occurred in this case. I do not know for certain whether it has, but it would be remarkable if it had not. Can you just confirm for us that ASIO, like any other branch of the Public Service or the judiciary, would not consider evidence admissible if it had been obtained under torture.
Mr Lewis : Could you just rephrase that again.
Senator LUDLAM: For the purposes of the security assessments—and I understand they must be extraordinarily difficult given the breadth of regimes and individuals that you are going to have to come in contact with—if evidence, not for this specific case but in general, is identified to have been obtained under torture, are you required to treat it as inadmissible, as a court would, or is there no such requirement on ASIO?
Mr Lewis : I cannot think of an incident where that has come up. But, if you are asking me to speculate on it, I would say that—
Senator LUDLAM: No, no—
Mr Lewis : we would be putting it aside. I would not regard that as acceptable at all.
Senator LUDLAM: That is an excellent answer, but I am certainly not asking you to speculate; I am asking what ASIO's internal procedures are.
Mr Lewis : I have said publicly, Senator—I think you have probably heard me say this—that ASIO does not employ or act in any way that sanctions, acquiesces to or encourages torture. I made that public some months ago.
Senator LUDLAM: Yes. That is black and white, and it is greatly appreciated. I am trying to establish how that very clear commitment that you have made again here would apply to the security assessments that you do of people who are fleeing regimes where torture is frequently one of the reasons they departed in the first place, Egypt being an interesting example. How does that interact or interface with your security assessment process?
Mr Lewis : I just do not see how evidence that has been obtained under torture would then come into our hands in that particular scenario you just portrayed.
Senator LUDLAM: I guess this is one case where it has, but I am not sure that we can take this any further.
Mr Lewis : As I have said, I cannot speak to this particular case but I assure you that those comments that I made with regard to torture stand.
Senator LUDLAM: Okay. I have absolutely no reason to doubt that. I am just trying to establish how it might help this gentleman out of the cage that he is in that the moment. All right. We will leave that one there.
Finally, from me, some months ago your predecessor gave evidence to the Senate Legal and Constitutional Affairs References Committee inquiry into the interception and access regime that exists in Australia. You would have given similar evidence yourself to the PJCIS in recent weeks. Nobody disputes the value of metadata in the kind of work that you, anticorruption agencies and the Federal Police do, but I think what is in quite serious dispute is the benefit of bulk data collection as opposed to targeted and discriminating collection.
In December 2013, President Obama's Review Group on Intelligence and Communications Technologies tabled a report, with a series of recommendations, that President Obama had commissioned which goes specifically to that question—not the value of metadata but the value of bulk and indiscriminate data collection in solving important national security issues and cases. Members of that panel gave evidence to the US Senate Committee on the Judiciary in January of last year, and Michael Morrell, who is a former deputy CIA director, said that bulk collection of domestic phone data 'has not played a significant role in preventing any terrorist attacks to this point'. Apart from that, I have been unable to find any evidence, either in a law enforcement context or in a national security context, here or overseas, that bulk metadata collection from all the devices that we ordinary civilians carry around actually has made a measurable impact in jurisdictions where it has been implemented. I am wondering if you can provide us with any evidence, because nobody else has been able to thus far.
Mr Lewis : Well, I cannot, and I am not here to speak on the circumstances in the United States, but I can say that here in Australia we do not engage and have not engaged in bulk collection of the type you are describing. I think «David» «Irvine» , my predecessor, has made it plain, and I certainly have in various both public and private hearings, that we do not engage in that sort of mass collection, if you like, and there are several reasons for that. The first one is, clearly, legislative: we are not in a position to do that. We are required under the act to have a reasonable belief that there is a need to be interested in a particular dataset. So we are legislatively bound, we are regulation bound, we are bound by the Attorney's guidelines and we are bound of course by the very simple issue of resources. So the notion of doing some sort of broad 'vacuuming', which is what I assume you are alluding to in the United States—and I do not know what the CIA officer you mentioned said—
Senator LUDLAM: That was a quote that I put to you just now, but I recognise that you do not have a transcript in front of you.
Mr Lewis : I cannot account, nor would I try to account, for what he had to say, but I can account for what goes on in this country, and I can tell you that that is not a practice that takes place.
Senator LUDLAM: Of course. We might be slightly at cross-purposes, because I certainly was not proposing—and if that were occurring, and I do not believe that it is, it would probably be ASD as the lead agency doing it. But that is not really—
Mr Lewis : I am just saying it does not happen, Senator.
Senator LUDLAM: No, I understand. The proposal that is before the parliament at the moment is to outsource that bulk collection to the telecommunications industry. I understand that ASIO does not do it. You are invoking an obligation on telecommunications carriers at a cost of $400 million or thereabouts—not you but the government—to do that bulk collection. I am seeking evidence from you, as somebody who is very, very well versed in how these operations work, to provide us with any evidence that it is that bulk collection that is actually necessary, rather than targeted preservation data.
Mr Lewis : If I just go back to your first question, which was about bulk collection, when you cited the case of the evidence given by the CIA officer, an officer by the name of Morell, that is a very different thing to what I understand you to be asking now. We are asking for data retention. I would not characterise it as bulk collection. I think that is a misrepresentation, but I stand to be corrected technically. But the data we are asking to be retained for two years has been laid out. What we are asking to be retained is available and publicly.
We have given evidence, both in closed sessions of the PJCIS and in open sessions, of examples of where the data that you are describing has been of utility when inquiries have begun, in our case, in counter-terrorist operations—and I go back to the Pendennis case and others that have been cited before. So there are examples sitting there where that data has been useful. I am sure that Commissioner Colvin, in his particular lane, has spoken also of the utility from his point of view, but from my point of view there are examples there which we have provided in the past.
Senator LUDLAM: But the distinction I am trying to draw—and I am happy to not—
CHAIR: Your time is almost up.
Senator LUDLAM: I recognise that, thank you, Chair.
CHAIR: You have another minute or so.
Senator LUDLAM: This will be my final question then. I do not want to get hung up on definitions of bulk collection. iiNet estimates that it will require the construction of one new data centre in this country a month, so we can say 'bulk', or we can call it something else. The question is not the utility of metadata to the kind of work that you do or that the AFP Commissioner does. It is whether the very large scale and indiscriminate collection of the whole population has been shown in any jurisdiction to improve or prevent terrorist actions, for example, which is what Mr Morell was talking about. I am asking whether you have any evidence in an Australian context or whether you are aware of any in any other jurisdiction—not anecdotes but evidence—as to any purpose for a scheme such as this existing.
Mr Lewis : Again I go back to your comment about bulk collection. I do not think that is an accurate characterisation. What we are talking about is data retention. The data set is very clear. At the risk of repeating myself, in my particular area of responsibility, let us take the terrorism issue. We have quite concrete examples where the preserved data or the data that we have been able to access, the metadata we have been able to access, has directly enabled the investigation about that particular incident to proceed and allowed the investigation to proceed to a point through to prosecution and the jailing of a number of individuals who were involved in planning terrorist attacks in this country in both Sydney and Melbourne.
Senator LUDLAM: Do you believe—and this is probably a yes or no, so it can be fairly quick—
Mr Lewis : Sorry. While I am not here, again, to describe events in other countries, I would be astonished if there were any other people in similar positions to mine in countries that we would regard as being like-minded around these issues who would have a different view of that.
Senator LUDLAM: Just finally, then, do you believe, given the importance and the crucial nature of that kind of material, that ASIO should be required to get a warrant in order to obtain it—as you do, for example, for regular intercepts?
Mr Lewis : That is a matter, of course, for the government to decide, and there is deliberation going on around that now. My personal view—and again I made this plain in the public hearing to the PJCIS back on 19 January, I think it was—is that I do not support a regime that would involve or a process that would involve a warrant for what I regard as the initial metadata request. At that point, to have a warrant system would be unwieldy for all sorts of practical reasons, but obviously systems are not there for our convenience. The important thing is that the unwieldiness of it would be such that investigations would be hampered and slowed, and so our reaction time, our responsiveness, our agility as an organisation would be diminished—diminished to a point that would have a significant impact on the way we do business. I should add, Senator, and I think you know this well, that of course once that metadata has been used to the point of having what I would describe as a lead then of course we are immediately into the business of seeking a warrant if we wish to examine any of the content that is involved in that metadata search.
Senator REYNOLDS: Congratulations, Mr Lewis, on your appointment.
Mr Lewis : Thanks, Senator.
Senator REYNOLDS: I just want to pick up a couple of points in your opening statement. In the first one you said that more Australians are involved in fighting groups in Syria and Iraq than in any other previous conflict involving non-state actors. I just wondered if you could tell the committee a little bit more about the methodology of those who recruit them via social media particularly and if you could just share with us a little bit more about the tactics that they involve to recruit these mostly young Australians and younger people from elsewhere, and why you think these methods are so successful.
Mr Lewis : I would perhaps begin an explanation by having a look at what we describe as the narrative—I do not wish to go into the detail of the Islamic religion—that there is a requirement to rise up and throw infidels, essentially, out of Muslim lands. That narrative is being used and abused, if I may say so—abused very badly—by some elements in this country to influence young people and to entice them into leaving their homes, leaving their communities and going off and joining these terrorist organisations in the Middle East.
I think I said the other day—it might have been recorded even in the paper—that from my point of view this is very much a family issue. This is something where families have a very large part to play in addressing the problem. It is most likely that families are the first people that see a young man or woman heading off into this extremist Islamist path. I am hopeful that, through family intervention, we may be able to address this problem better than we are, but of course it is a whole-of-community issue. I do not just throw it on the families. This is a full-court press. This requires the wider community to become involved as well. And, as I said earlier, this is not directly in my lane; ASIO is involved in a different part of this problem, but the problem you raise is very important, and it is being addressed currently by a number of measures.
Senator REYNOLDS: In terms of their recruitment processes, they obviously use social media. Is that purely a sort of one on one, or is it websites that these young people then share with each other, Facebook or whatever? And then, at some point, do they have a sort of one-on-one relationship with somebody over the social media site who grooms them or who starts coaching them on how to keep things from their family or what they need to do and where they need to go? I would imagine that, if you are 17 or 18, you might not have the wherewithal and the knowledge of exactly what you have to do to evade authorities and with money, where you go and what you do. It seems like quite a complicated process to guide somebody through and keep it from their families or the parents in the next room or something.
Mr Lewis : It is all, or at least a large culmination, of those vectors that you mentioned: the use of the internet, the use of social media and the use of personal contacts, who we know have quite clearly reached back from the Middle East into the communities here. We know that there is frequent contact between those who are organising the pipeline, if you like, and very young people in the community. Certainly in the case of the social media issue and the internet use, this is something that can happen in lounge rooms, in bedrooms or wherever. It is something that can happen very much shielded from the rest of the community, and that is what makes it such a challenge.
Senator REYNOLDS: Is there a different methodology used in the process of enticing a young person, bringing them in and inciting them to do what they do and to go overseas? Is it the same people and processes enticing others to go overseas that entice others to stay here in Australia and commit one of the random acts of violence? Is it the same, or are there different methodologies or different people inciting the two different types of actions?
Mr Lewis : I am not sure that I can answer that. The decision of a young radicalised individual to go appears to be very much dependent on the degree of the radicalisation. Quite obviously, those at the worst end of the process or the worst end of the spectrum will be motivated and will try to go to the Middle East. We have, as I mentioned in opening remarks, been able to stop a number of those young people from going with passport cancellations and suspensions. Those at the less radical end of the spectrum may be content to remain here in Australia, but it is quite obvious that we do have people in our own community who are motivated to conduct acts of terrorism and plan acts of terrorism in our own community. So, the problem is both abroad and here.
Senator REYNOLDS: I would also like to pick up where Senator Ludlum's time finished on data retention and, in particular, metadata. Can you share a little bit more about what the consequences of not consistently retaining and having access to this data would be in the short and long term if the legislation does not go through?
Mr Lewis : You really have to go back to the start of the issue, which is the expression that you would have seen and heard of 'going dark'. There are several reasons for that, but the most pressing one is technological development. The fact is that telcos and service providers now are not needing to retain data for commercial reasons for as long as they once did. I will not bore you with the history of that, but, as we go forward, if indeed we do not intervene to have a process of mandatory retention of the data, then that process will continue. I could predict that within a fairly short period of time—a matter of a few short years—we would be in a very much worse position than we are now in terms of the availability of this metadata. The interesting thing about this current legislative package going through—and it is entirely up to the parliament obviously and not for me to comment—is that it does not, in a real sense, ask for anything new on our part. We have the access to that data now, and, as you know, some of the data sets that are being retained by telcos go for many more than two years.
Senator REYNOLDS: Yes.
Mr Lewis : So, in a sense, we are not asking for something new. What we are asking for is the preservation of the data that currently exists, and on into the future, in order for us to do our work. I have expressed this view to the public hearing of the PJCIS that two years, I think, is a workable compromise, if you like, between those three great interests that coexist here: the commercial interests of the telcos, the privacy interests of the individual and the requirement to maintain security by the security, intelligence and law enforcement agencies. So I think we have got the sweet spot.
Senator REYNOLDS: That makes a lot of sense. With that two-year period—as you say, a bit of a compromise between all the interests—is that duration more related to doing initial investigations or inquiries to discover issues or matters, or is it to further investigate a matter that has come to your attention, or is it more for prosecutorial reasons at the end, or all of the above? At what stage is it of most utility?
Mr Lewis : In our case—and this is a difference, probably, between us and the Federal Police or police services—it is usually the start or the very early point of a lead that will come in. We will become aware that there is an issue. It could be a telephone number. It could be a name. It could be something that is obviously of interest. We can very quickly identify whether that particular phone number or the individual is indeed of interest, or we can dismiss that person immediately and say, 'Right, this is good; they are of no further security interest to us.'
Senator REYNOLDS: So it is also very useful to exclude people early on as well.
Mr Lewis : Of course, and that is most common. It is most common that the individual is excluded as a result of the search.
Senator REYNOLDS: You just mentioned there the need as technology changes—and you mentioned it in your opening address as well—for legislation and the security agencies to keep ahead of, or at least up with, changes in technology. Does that mean that, for example, legislation needs to be a bit more platform neutral so that, as the technology changes, you have the ability to progress with it?
Mr Lewis : Yes.
Senator REYNOLDS: Is this an example at the moment with the metadata retention, or are there other examples where technology is moving at a pace where you are running to keep up with it?
Mr Lewis : I am sure there are other examples, but the metadata case in point is a good example of where this metadata, of course, covers a range of technologies. We would very much like there to be as much technology neutrality as there can be, only because of the refresh rate of the technology. We have a legislative process that is this long. We have a technology refresh rate which is that long. So trying to harmonise these two different lengths of time is a challenge, and we think the best way to do that is to have as much technology neutrality as we can.
Senator REYNOLDS: As you said, so you do not have periods of going dark while you try to catch up with the technology.
Mr Lewis : You could be going into light, dark, light, dark as time goes by—an oscillating ability to access the data.
Senator REYNOLDS: Thank you.
Senator LEYONHJELM: Mr Lewis, first of all, I am going to just be marginally pedantic for a moment. In your opening statement you said there are more Australians involved with groups fighting in Syria and Iraq than in any previous conflict involving non-state actors. I am just wondering how far back you looked. Did you look at the Spanish Civil War?
Mr Lewis : To be honest, no, I did not. I do not know what the figure is in the Spanish Civil War. I am just thinking of my most general knowledge of Australian history and where Australians have been involved in conflict.
Senator LEYONHJELM: I am advised—this is my pedantic moment—that you are wrong on that point.
Mr Lewis : Thank you, Senator.
Senator LEYONHJELM: You might like to check it.
Senator Brandis: I assume, Senator Leyonhjelm, you are talking about Australians fighting against the republic.
Senator LEYONHJELM: Either side.
Senator Brandis: There was a constitutional government of Spain at the time. It is a question of who you thought it was.
Senator LEYONHJELM: Yes, I suppose that is true.
Senator Brandis: I am not sure that that would be characterised as non-state actors.
Senator LEYONHJELM: In a civil war, which is the state? It is an open question, isn't it?
Senator REYNOLDS: There is still a state.
Senator LEYONHJELM: Which one is, though? More seriously, on metadata, I just want to follow up a couple of points that Senator Ludlam and Senator Reynolds were talking about there. In a way you almost got to my question, but then it veered away. In the utility of preserved metadata—and I am talking about whether you want to use the word 'bulk' or not, so collecting my metadata, your metadata, my mother's metadata and the metadata of 15-year-old kids with smartphones, because that is the outcome of the government's proposal—would you, as a result of that, expect to come across people engaged in terrorist activities who you would not otherwise have come across?
Mr Lewis : Senator, if I can go back, unfortunately, to the point that I made to Senator Ludlam: you have used the words 'bulk collection'. We are not talking about bulk collection. What we are talking about is the various telcos and the service providers retaining data that they create themselves.
Senator LEYONHJELM: I know what it is, yes.
Mr Lewis : I cannot be party to the notion of bulk collection. This is to do with—
Senator LEYONHJELM: All right. Let's call it mass collection then.
Mr Lewis : No. 'Collection' is the word that I am having difficulty with. I think it is to do with retention. It is the retention of data.
Senator LEYONHJELM: Bulk retention.
Mr Lewis : Again, I mentioned before that we are not in the business of wide-net trawling of this data. That is not either permitted or practised by us. Where certain leads might come our way we will then, when appropriate, access that metadata. The metadata—and I hate to go back to this analogy that was used during the closing months of last year, but the issue of the envelope and not the letter inside—essentially gives us that kind of address of who is talking to who and when.
Senator LEYONHJELM: I know about that stuff.
Mr Lewis : You know all about that. From that point on, once we have satisfied ourselves that there is a requirement for further intrusive inquiry then we are automatically in warrant territory.
Senator LEYONHJELM: Understood. There is a logical issue here. My proposition is this: you will identify individuals, by other methods, who you believe could potentially represent a security risk. The metadata, the retained metadata, of those individuals would then become useful?
Mr Lewis : Yes, very commonly.
Senator LEYONHJELM: I do not have a quarrel with that. I accept that. The question then is that there are vast numbers of people in the community who would never fall into that category. So that raises the logical question as to what utility there is in retaining their metadata. You, as an agency, are advocating for the mass retention of everybody's metadata and yet there are certain characteristics of people who will never ever be of interest to you. High proportions of the population will never be of interest to you. Why wouldn’t you advocate for the retention of data with characteristics, even if you write them fairly broadly, that on a probability basis are far more likely to come to your attention?
Mr Lewis : First of all, we are not clairvoyant. Obviously I cannot tell in advance who is going to be of security interest and who is not in this country. Most of the work we do is reactive. Sometimes you pick it up going forward almost by accident and prospectively, but in the main we are reactive. We do not have clairvoyance to be able to identify a narrow set of data within the broad. I accept your point that for the vast majority of people who are generating this data it is, and never will be, of any interest to the Australian Security Intelligence Organisation.
The second thing I would say is that, in very much the same way as we have drivers licences, why do we have drivers licences? Should we only have drivers licences for bad drivers? You cannot predict these sorts of things in advance. We do hold databases in our community of drivers licences, car registration and so forth of people that are just going about their normal business, but from time to time that dataset is inevitably useful to police officers who might be looking for a stolen vehicle or whatever. The analogy is quite good around that. I accept your point that we will not, and never will, use the majority of this data, but unless the dataset is complete then it would be an incomplete exercise when we are going in on a lead. You would not know what you had missed out on and what you had not. That is the best way that I can characterise it.
Senator LEYONHJELM: A number of your points there I take issue with, but they would involve a debate rather than a question, so I will not pursue them. The final point you make is that you want the data to be complete. Are you aware that it can never be complete because of VPNs?
Mr Lewis : Yes, I understand the technological issue. But for the data to be as complete as possible, it is necessary for us to fully understand networks. It is largely about networking. You asked me earlier on: what are the points of interest? Who is talking to who is a very important part of investigation. For us to have what I would describe as the best understanding of a breadth of a network then you would want to make sure that you had at least the best dataset that you could that was available—95 per cent, 99 per cent, whatever the figure is, which will be of no particular relevance to the investigation.
Senator LEYONHJELM: I will leave it there, Chair. Thanks. It is better not to get into—
Senator Brandis: Senator Leyonhjelm, before you finish. I have got some information for you about the Spanish Civil War. There is, in fact, I am interested to learn, a memorial by Lake Burley Griffin in the suburb of Yarralumla, commemorating Australian participation in the Spanish Civil War, which was unveiled in 1993. It was promoted by enthusiasts who were interested in commemorating Australian participation for both sides in the Spanish Civil War and it lists the names of 70 Australians. I have also been referred to an academic article by a scholar called Bronte Gould in volume 28 of the Flinders Journal of History and Politics in 2012, entitled 'Australian Participation in the Spanish Civil War', which assesses known numbers to be 66. So whether it be 66 or 70, I think Mr Lewis is right.
CHAIR: Attendance at this committee is all worthwhile.
Senator LEYONHJELM: I knew eventually hear my story because the numbers are increasing.
CHAIR: As there are no more questions of ASIO, Mr Lewis, can I thank you very much for your attendance and for your assistance to the committee and information, generally, to the Australian people through this community. It is very much appreciated. Good luck with the very difficult job you have to do.
Mr Lewis : Chair, Members, thank you very much. Good evening.