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Legal and Constitutional Affairs Legislation Committee
28/02/2017
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Australian Security Intelligence Organisation

Australian Security Intelligence Organisation

[16:55]

CHAIR: I welcome Mr Lewis and Ms Cook from the Australian Security Intelligence Organisation. Mr Lewis, would you like to make an opening statement?

Mr Lewis : Chair, if I might indulge the committee, yes, please. You have mentioned Ms Heather Cook, who is sitting beside me and who is appearing before the committee today for the first time. She is replacing former Deputy Director-General Kerri Hartland, who has moved on to the Department of Finance recently. In her absence, I would like to thank Kerri for her support during previous hearings and to welcome Heather to the table.

Focusing on the business to hand, mainly for the benefit of senators who may not have had exposure to ASIO's work before, I will outline ASIO's purpose. Our purpose as an organisation is to protect the nation and its interests from threats to security, through intelligence collection and assessment, and advice for government, government agencies and business. That is what we do. Our activities are necessarily undertaken discreetly and in secret. The organisation's ability to perform its statutory function is dependent upon the protection of sources, of tactics, of techniques and technologies and of our procedures.

That said, it is more important than ever for ASIO to continue its outreach and engagement with the Australian community. We also need to outreach across government and into industry, business, academia and a range of other institutions—and we do so. Our investigative focus is on individuals and their activities of relevance to security, not to broader sections, to groups or to classes of people within the community. We work with our colleagues in law enforcement and other agencies to identify such activities and to act in order to keep Australia and Australians safe.

I would like to make a few remarks if I could about counterespionage and also cyberthreats. We are focused on identifying and preventing acts of espionage and interference in Australia and those acts that are against our interests, including the threat from malicious insiders, which is a matter of public interest over the last couple of years. Espionage is a patient business, where perpetrators seek to ply their rather insidious trade quietly and without detection. Nation-states continue to use their own intelligence apparatus to target Australia through the cyber vector but also through the gathering of human intelligence or by human intelligence sources and by technical means. While we do not provide comment on classified intelligence or operational matters, we are mindful that nations, as well as non-state actors, are becoming more capable and more aggressive in using cyber as an instrument to advance their interests. We continue to be instrumental in identifying, providing advice and helping to counter the threat from state-sponsored cyber espionage. However, this matter is a shared security interest and a shared security responsibility across government, through the private sector and down through the public at large.

I will make a few remarks on counterterrorism, the other great area of interest of our activity. The primary terrorism threat continues to emanate from those individuals who adhere to a violent extremist interpretation of Sunni Islam. As you know, the national terrorism threat level was raised on 12 September 2014, 2½ years ago. This marked a significant increase to unprecedented levels of ASIO's counterterrorism efforts, and I am sad to say that that tempo remains and looks as though it will continue for the foreseeable future.

Since 2014 there have been four attacks and 12 major counterterrorism disruption operations in response to imminent attack planning here in Australia. We continue, with our successes, to undertake counterterrorist operations. We conduct those jointly with our law enforcement partners and we disrupt terrorist planning and thereby prevent attacks on our community. We have not been completely successful as you can see with those numbers—the four attacks and 12 disruptions—but nevertheless we are working every day, all day, to ensure that we are producing as much of a safety blanket, safety protection, as we can for our community.

But it is not foolproof. In fact since I appeared before this committee last October, there has been another disruption in Melbourne. You will recall that in the days immediately before Christmas there was an operation conducted in Melbourne that resulted in the arrest of a number of young men. Consistent with other attacks and disruptions over the past two years, the accused in that particular attack are home-grown extremists. This operation before Christmas was a result of the close cooperation that exists between intelligence and law enforcement agencies—in that case, the AFP, the Victorian state police and us. While I am unable to provide specific detail, I note ASIO's ongoing contribution and crucial role as a member of the joint counterterrorism teams. Those teams are present, as you are probably aware, in each of the capital cities in Australia.

In line with my previous advice to this committee, the conflict in Syria and Iraq is a major influence on the Australian security environment. It is now and it will be for the foreseeable future. When I last appeared before this committee in October last year, there were around 110 Australians in Syria and Iraq who were being investigated by ASIO. This number was revised on the 30th of last month, just a few weeks ago, to around 100. Those of you who have sat on this committee for some time now might recall that the figure, about two years ago, was about 120. We have gone from 120 to 110 and now to just on 100. This decrease is largely the result of ASIO closing a number of investigations due to the probable death of the Australians involved. The figures are now running at 64 Australians confirmed killed, and the figure could be as high as 70.

Developments in the last 18 months have continued to demonstrate the ability of extremist groups involved in the conflict—and this is particularly relevant to ISIL—to effectively radicalise and inspire individuals in our country. ISIL's military losses in Syria and Iraq will not necessarily eliminate the threat that this group, and the individuals in it, pose to Australia and to Australian interests both globally and here at home. It is likely the threat from ISIL directed attacks will diminish as its ability to support terrorists outside ISIL controlled territory is degraded, but the threat from those inspired by ISIL ideology will endure.

Further, we are seeing increasingly young Islamist extremists emerging, and their activities will continue to impact the Australian security environment into the future. For example, in 2013 45 per cent of Sunni Islamist extremists that were being investigated by ASIO fell in the age group 25 to 34. By 2015, two years later, that percentage—40 per cent of the people under investigation by ASIO—were in the 15 to 24 age group. So it had dropped, basically, by a decade in the space of a couple of years. And we are still looking at a very young cohort that are impacted and influenced by this ISIL extremist violent message.

The devastating impact of even a single person willing to use violence has clearly been demonstrated in each of the four terrorist attacks that have occurred in the country over recent years. These attacks have been celebrated on each occasion by ISIL propaganda. You can see it in the product that they are putting out.

Among the individuals under ASIO investigation, many but not all are motivated by a violent, extremist interpretation of Sunni Islamic ideology. However, we are also concerned by some individuals who combine extreme right-wing anti-Islam ideology with a willingness to use violence.

I would like to finish my remarks on terrorism by noting that I am aware of the broader public debate on the range of issues in relation to the source of the current terrorist threat. As the Director-General of Security, I would offer these remarks. I understand the concerns of the public regarding their safety. The terrorism threat facing Australia is indeed real and persistent. As I have previously said publicly and before this committee, the principal terrorist threat in Australia emanates from a small number of individuals who remain committed to an anti-Western, violent, Sunni extremist ideology.

While the number of counterterrorism investigations we have underway represents a sustained peak, even compared to five years ago, these individuals of concern represent only a fraction of a percentage of the total number of individuals across various Australian communities. For example, we have identified several hundred Australians who are being influenced by the Islamic extremist propaganda message, but these individuals represent less than 0.1 of one per cent of the roughly half million Australian Muslims, and I have made this point before in this committee. The other 99.9 per cent of Australian Muslims are not involved in activities of security concern in any way and are of no interest to the Australian Security Intelligence Organisation.

Our primary concern is home-grown terrorism. That is because the majority of individuals being investigated by ASIO were born in Australia. While a small number came here as young children or very young adults, and they have been radicalised here, the overwhelming majority were born in Australia. This is a dynamic and complex problem. It has no easy solution, but it is one that I take very seriously as the director-general.

I also note that, in the majority of cases, ASIO, with our law enforcement partners, work very closely with members of the community to identify and counter possible threats. Indeed—and I have said this in this committee before—members of the community are critically important for the Australian government in identifying at-risk individuals and countering extremism in all its forms. While we will not always succeed in identifying the threats before they eventuate, we have so far been able to prevent a significant number of attacks. I want to place on the record my particular thanks to the broad Australian community for the critical support given to my officers as they go about their important duties.

In conclusion: I have mentioned that the national security environment is complex and fluid. Our work and the value that we, ASIO, deliver to Australia remain focused on our ability to anticipate threats and to produce trusted and actionable advice to protect the country. Our work is enshrined in the ASIO Act, and it is underpinned by our culture of scrupulous legality, propriety and proportionality. We investigate with deep respect for the law and the rights of the individual. Importantly—and something that I would like to stress to the committee—ASIO investigates in secret in order to protect the innocent. These investigations are of course all conducted within a legal framework of strict accountability and oversight, and this is a position from which my organisation must never resile. Thank you.

CHAIR: Thanks very much, Mr Lewis. I have said this before, and I know I can say it on behalf of everybody, including most Australians. We do appreciate the work that you and particularly your team do. It is not an easy job. It is at times stressful and, I assume, dangerous. We do appreciate what you have done and what you have just told us. It reinforces, I think, the high regard in which your organisation is held.

Mr Lewis : Thank you. We appreciate it.

CHAIR: We will always have questions of you at this hearing, but that would never waver our recognition of the wonderful work you do, and we would ask that you pass that on to your team.

Mr Lewis : Thanks, Senator. They will be very appreciative of those sentiments. Thank you.

CHAIR: I will call Senator Xenophon, but can I just clarify something you just said. You specifically mentioned Sunni Islamic extremists. Would you have statistics that would tell me, of those following the Islamic faith in Australia, how many are Sunni and how many are Shiah?

Mr Lewis : I am sure there are statistics publicly available.

CHAIR: Do you have them?

Mr Lewis : I do not have it off the top of my head, but it would be available publicly.

CHAIR: Perhaps on notice you might just let the committee know that.

Senator XENOPHON: I will just echo the chair's remarks about the critically important work that ASIO does.

Mr Lewis : Thank you.

Senator XENOPHON: I think that Senator John Faulkner, an esteemed former minister in this place, a former Minister for Defence and Special Minister of State, amongst others, once said that with increased powers for security agencies come increased responsibility and the need for increased accountability. My questions are in that vein. They relate to specific questions I asked at the estimates hearing on 18 October 2016:

1. Have any journalist information warrants been requested by ASIO within the last 12 months? If so, how many?

2. Have any journalist information warrants been granted to ASIO within the last 12 months? If so, how many?

The response to the question on notice that was provided subsequently was:

For reasons of national security ASIO does not comment on operations or investigations.

If I could emphasise, Mr Lewis, I am not actually asking about the nature or the identity in any way of the journalists or indeed of the media organisations or what the warrants relate to; it is just a raw number of the number of journalist information warrants. Could you comment on that, because we might go to issues of public interest immunity after your response. I am at a loss to understand how national security would in any way be compromised by simply knowing the absolute numbers of warrants requested and journalist information warrants actually granted.

Mr Lewis : Yes, I too reflect on Senator Faulkner and his comments that, when there are increased powers and increased authorities for intrusion, there need to be corresponding and equal and opposite oversights and accountabilities. That certainly is something that is driven home within our organisation. I think any officer in our organisation would be able to quote that particular sentiment back to you.

With regard to your question, we did respond in writing to your question last year. You have presented basically the same question again, and the answer does not vary. We have given you a considered answer. I would draw your attention, however, to the fact that our classified report is tabled each year. You are aware that we produce two reports. There is an unclassified report and then there is a classified report. Indeed, in the classified report there is something of an answer to your question, but I am not prepared to discuss it in this environment. I will not talk about the numbers. I mentioned in my opening statement that we do not concern ourselves with classes of people. I understand perfectly your question about the journalists. We have given you an answer in writing, and I have nothing further to add than that, other than to make the observation that our classified report from last year may go some way to providing an answer. It does. There is a mandatory reporting requirement for us under that arrangement.

Senator XENOPHON: Sure. But my understanding is that I do not have access to the classified report. I think that, unless I am on the joint standing committee, it is not a report that I have access to. Is that right? I am not aware of that, and it is not in the public domain. Can I just explore this. I know that you say you have nothing further to add, but, in the Prime Minister's second reading speech, in relation to amendments to the act, he said:

Last year, a major Australian ISP reduced the period from which it keeps IP address allocation records from many years to three months. In the 12 months prior to that decision, the Australian Security Intelligence Organisation (ASIO) obtained these records in relation to at least 10 national security investigations, including counter-terrorism and cybersecurity investigations. If those investigations took place today, vital intelligence and evidence simply may not exist.

That was in support of a piece of legislation about the need for metadata preservation. The Prime Minister himself actually referred to a certain number of cases where ASIO obtained those records. No less than the Prime Minister made reference to that on Hansard in his second reading speech.

Mr Lewis : If I might interrupt, that was not about a class of people. You are asking about a class of people. I am just not prepared to go there.

Senator XENOPHON: But the class of people that I am referring to, respectfully, Mr Lewis, relates to a class of people prescribed in the legislation—that is, the journalist information warrants. They are referred to specifically. I am not asking you to break down how many of those journalists work for News Corp, Fairfax, the Guardian or whatever. Is it fair to say that journalist information warrants are specifically referred to in the legislation?

Mr Lewis : Yes, they are.

Senator XENOPHON: Section 182A, in particular. What I am trying to establish is: can you at least advise me in sufficient detail, to establish your claim, how telling me a number will in any way jeopardise national security?

Mr Lewis : Yes, I can answer that very promptly. The number is small. Because of the small nature of the number, it would be very easy to start identifying who and what cases were involved. I am just not prepared to go to the issue of numbers when it could clearly point to the nature of an investigation that is underway.

Senator XENOPHON: I apologise if I have not made my question clear. I do not want to know the nature of the investigation. I do not want to know what it is about. I just want to know how many journalist information warrants have been issued pursuant to section 182A of the act—just the actual number. Not who is involved, which organisation or what the matter is about. Just the mere number of journalist information warrants. Perhaps I did not make that clear earlier. If I did not, I apologise. I am trying to understand a raw number—if it is one, two, 10, 20—to get an idea of how many journalist information warrants have been requested by ASIO in a particular period and how many have actually been granted to ASIO within a particular period.

Mr Lewis : Your question is very clear to me.

Senator XENOPHON: Sometimes they are not.

Mr Lewis : It has been very succinctly put. I cannot and I will not in the public setting provide the number of investigations into a class of person—journalist. The numbers, as I said, are small. A simple exercise in deduction would start to throw light on investigations that are actually underway.

Senator XENOPHON: How so? Maybe I am missing something. When I traversed this issue with the AFP, eventually the AFP did provide me with details.

Mr Lewis : The AFP operates under a very different legislative framework.

Senator XENOPHON: I know that. I am not suggesting you are anything like the AFP. I am just saying that another law enforcement agency was willing to provide details in relation to that. I am not saying that, just because they did it, you should. Am I missing something here? How does simply telling us the number of journalist information warrants requested and how many have been granted under the same act—because we are talking about the same piece of legislation—compromise national security?

Mr Lewis : I think you are missing something, with respect.

Senator XENOPHON: Please tell me what I am missing.

Mr Lewis : Because the numbers are so small, were I to give you a number, it would be very easy for some deductive work to be done on who was and who was not under investigation. The people under investigation are not necessarily ignorant of the fact that they are being investigated. It is in our classified report. I cannot and I will not give it to you in an open forum.

Senator XENOPHON: Can we just explore the reasoning for this. Perhaps I am missing something. Let us say, hypothetically, the number is two. Only two journalist information warrants have been issued. I am not saying that is the figure, and I know you will not confirm or deny.

Mr Lewis : I will not get into hypotheticals. I will not do that.

Senator XENOPHON: You have already alluded to it being a small number. How would a small number of warrants either being requested or granted to ASIO in respect of journalist information warrants somehow identify or tend to identify any particular journalist or media organisation?

Mr Lewis : I just said: through a process of deduction. It will and can, so I am not prepared to go there. I cannot say anything more.

Senator XENOPHON: How would the process of deduction work?

Mr Lewis : I cannot comment. If you do not see the connection between a very small number and the fact that you can start deducing who is and who is not being investigated then I am sorry, but that is the point I am trying to make and I cannot go any further than that.

Senator XENOPHON: But if it was the case there was a class of 10 journalists—obviously there is not—or a certain number, say, 100 journalists who could be subject to these warrants—in Australia it would probably be a few thousand—and there was a very small number of warrants being sought or issued, how could people deduce from a very small number, from a very large pool the identity of those that you have sought or obtained warrants for?

Mr Lewis : You are talking hypotheticals again. I am not going to answer that.

Senator XENOPHON: But the journalist would have no idea. If you tell us that there are a certain number of warrants issued, how would a journalist have any idea whether that particular journalist was subject to it?

Mr Lewis : It is an operational matter. I am not going to discuss it.

Senator XENOPHON: I had better read up on deductive reasoning because I have missed something there but thank you for your time.

Mr Lewis : I am sorry but I cannot help. It is in the classified report.

Senator XENOPHON: Which I cannot see.

Mr Lewis : If there are mechanisms by which you can get to see that then I would welcome that.

Ms Cook : I have an addition to that. If we start the breaking down numbers for this category of warrant—I understand you are asking about something very specific—we would be setting a precedent for then responding to questions around other categories of our warranted activity, and the cumulative effect of that would also reveal information about our capacity and capability, and that would not be information we would want in the public domain. So I guess it is looking at the extent to which breaking down numbers and specifics around one category of warrant, whether that is about the journalist information warrants, then requires us to continue to reveal the breakdown of other categories of warranted activity that we may be engaged in. It is just another element of why there is an operational—

Senator XENOPHON: My final question on this is: are these decisions subject to FOI? Presumably you are not exempt from FOI laws, or are you?

Mr Lewis : Yes.

Senator XENOPHON: You are exempt?

Senator Brandis: ASIO is an exempt agency.

Mr Lewis : IGIS is the process by which such things are pursued for the intelligence agencies.

Senator McKIM: What is IGIS?

Senator XENOPHON: IGIS is the Inspector-General of Intelligence and Security.

Senator McKIM: If you will indulge me slightly, Senator Xenophon is many things but stupid he ain't. I am going to put on the record I struggle to follow the logic behind your argument here, Mr Lewis, so, for what it is worth, I have listened very closely and I am not sure how disclosing the number could, by deduction, lead to the identification of the subject of an investigation. I will leave it at that because it was not my intent to raise that and you have been very clear.

Senator HINCH: If there were two journos, they would probably both know who they were. I see the logic.

Senator McKIM: Anyway, we could explore that again and you could consider providing some further reasons that might assist the committee, but I am not going to push you on that one that now. Mr Lewis, thank you for your opening statement. Is your opening statement in a form that could be provided to the committee?

Mr Lewis : It is a bit scrappy in its current form. It might be better just to see the record.

Senator McKIM: That is alright. We will get it through the Hansard. That is fine.

Mr Lewis : I did take licence and deviate a little from the text.

Senator McKIM: Yes, I have been known to do that myself. Thank you for it. You went through the number of what I think you called attacks and the number of what I think you called major disruptions. Before you were talking about the number of attacks and major disruptions, you were talking about the primary threat being—and I think I wrote it correctly—'violent extremist interpretation of Sunni Islam'. Would it be an accurate assumption that those attacks and disruptions all applied to that category of people, or is that a global number that might be a range of categories of people.

Mr Lewis : Yes, the people involved in the four attacks and the people involved in the disruptions were all inspired adherents to this violent extremist interpretation of Sunni philosophy.

Senator McKIM: Thanks for that confirmation. When you were last in late last year, I asked you about the rise of anti-Islamic groups in Australia. You said—and I am paraphrasing you, so I am sure you will correct me if I have got you wrong—that the threat from such groups is growing, primarily over the 18 months before we had that conversation, but you made it clear that it was coming off a low base. I think you said something like it is not a steep or vertical rise but is trending upwards. I apologise if I have paraphrased you incorrectly; I am not attempting to. I ask you to reflect on the months from when you made those comments to now and ask you the same questions: would you still say that threat is growing and, if so, has the curve or the line changed trajectory in that time?

Mr Lewis : Your characterisation of what I said is very much in line with my recollection, and I do not think my answer would deviate much now. It is obviously a concern when you have a social phenomenon such as terrorism as it is presenting. There is, not unreasonably, some form of reaction that you can see perhaps going the other way. It is coming off a very low base, as I said last time and as you just reminded me a moment ago, and it is certainly a very gradual increase. But the important thing is that it is something that we watch. We are not blind to other areas of threat to the community either. That is essentially the point that I make.

Senator McKIM: Would it be reasonable to say that it has continued to grow but perhaps the rate of growth has not changed since we last spoke?

Mr Lewis : Yes, I think that is right. The important thing is that it is coming off a very low base.

Senator McKIM: Thank you. The last handful of questions is about matters that I have raised with you before. You have been on the record as saying—and, again, I am paraphrasing here and know you will correct me if I have got you wrong—that ASIO does have a level of concern about public figures who speak out against Islam in terms of the fact that they may compromise ASIO or your officers' capacity to engage with the Islamic community. Is that still a concern that you hold?

Mr Lewis : I do not know that I have ever made a comment about public figures speaking out. That was not the context in which my comments, which date back some time now—

Senator McKIM: I apologise if I have got it wrong.

Mr Lewis : So I do not think I have said that. What I have said and said in my opening remarks again today is that the community—and, in particular, in the case of the Sunni Islamic issue, the Sunni community—is of enormous support to our work. The broader Australian community is a support to our work as well. And so it does reflect on our ability to engage with some of these communities when some discourse is critical of the broader community at large. I stress again: we investigate individuals. It is to do with individuals. That is essentially the key message that I would want to leave you with.

Senator McKIM: Specifically, what type of comments would be of concern in this context?

Mr Lewis : I think any comment that incorrectly characterised those numbers that I reflected on, the 0.1 per cent of the Muslim community in Australia—in fact, it is probably less than that—that would be under investigation. In other words, 99.9 per cent are not, and that is the part that I think we as a community need to keep absolutely in the front lobe of our mind.

Senator McKIM: And that potentially would be part of your motivation for talking about those statistics today.

Mr Lewis : That is right. Our operational ability is impacted by that. We must, and we do, maintain a very close relationship with communities of all sorts across Australia. That is our business.

Senator McKIM: Just to be clear, then, it is the kind of comment that would assert or imply that a far greater proportion of a particular community is a problem than is actually the case. Those would be comments that would concern you because of their impact on the capacity of your officers to engage.

Mr Lewis : If a comment deviated from those percentages that I quoted.

Senator McKIM: Thanks for that.

Senator HINCH: Mr Lewis, I want to talk about the radicalisation that you mentioned in your opening remarks. You said that it was getting younger. You were saying they are now 15 to 24, and they used to be 25 to 34. Anybody from Melbourne is aware that Numan Haider, the Endeavour Hills terrorist, was only 17. Could those figures be skewed at all because, when you look at the 25 to 34s, Abdul Benbrika and 16 others, when they were all arrested and many of them jailed, were of a much older age group? So could those figures be skewed, do you think?

Mr Lewis : I will not talk about individual cases, but not over those time frames that I gave, 2013 versus 2015. It was pretty much the same group, if you like, but moving down in age. I understand the question, but I do not think that, statistically, there would have been any—

Senator HINCH: So you really are concerned that the age of radicalisation is getting down to the low teens now.

Mr Lewis : I think that is a fact, yes. The real point is that very young people can be and are being radicalised, and that is a real challenge, because there is a dramatic difference in trying to manage a 16-year-old who is being radicalised as opposed to somebody who is 26 or 36.

Senator HINCH: Yes. You would be aware that a man was arrested at Young today over allegedly researching missiles for Islamic State. He is in the country, but surely Sydney and Melbourne—not just because they have large populations—would be your greatest training grounds. Would that be right?

Mr Lewis : That is true. With regard to the operation in Young, the police commissioner will be here shortly. I have spoken to him, and he will make a fuller statement about that operation. It was a police operation but, as always, we are working closely with the police. But he will speak more fully on that.

The point you make about Sydney and Melbourne is true. Overwhelmingly, those cities—well, they are the largest cities—are where, not surprisingly, the largest numbers of people of interest to us in this particular area of terrorism present. But, having said that, I note that there are, of course, smaller numbers in other parts of Australia as well.

Senator HINCH: Do you consider Melbourne to be more of a threat than Sydney or Sydney to be more of a threat than Melbourne?

Mr Lewis : Not particularly, no.

Senator HINCH: Just the two major cities.

Mr Lewis : Yes.

Senator HINCH: That is all.

CHAIR: Thank you very much, Mr Lewis and Ms Cook. We appreciate your attendance. Again, thanks for all you do.

Mr Lewis : Thank you very much.