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Legal and Constitutional Affairs Legislation Committee
24/05/2018
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Australian Security Intelligence Organisation

Australian Security Intelligence Organisation

[20:32]

CHAIR: I now call the Australian Security intelligence Organisation. Welcome, Mr Lewis and Dr Southern. We appreciate you coming along. Mr Lewis, I understand you have an opening statement. If that's the case, over to you.

Mr D Lewis : With the indulgence of the committee, I would like to make an opening statement. I've made a practice of doing this, although at the last hearing, because we had some compressed time, I had to cut what I had to say short. I will try not to compensate entirely for that tonight, but thank you for the opportunity to make this statement.

CHAIR: Thank you, Mr Lewis. It is your prerogative to have a statement. Mind you, there aren't a lot of us here, and I suspect that no matter what you say, some of us will have a list of questions they are going to ask in any case. If it were possible to table part of the speech—I leave that entirely to you. There are important things, I know, that you have to tell us about, and you don't often get the opportunity publicly to do that, so I recognise that.

Mr D Lewis : Thank you. We do value these opportunities. I expect this could be ASIO's last appearance sitting beside the Attorney-General's Department and my colleagues are from the Attorney-General's Department. I would like to begin by offering some remarks about ASIO's recent transition into the Home Affairs portfolio on 11 May. Since our establishment in 1949, ASIO's responsible minister has of course been the Attorney-General. Throughout almost 70 years now ASIO has enjoyed support and counsel from successive attorneys-general on both sides of politics. I note that throughout my own tenure as the Director-General I've enjoyed the support of both the current and the immediate former attorneys-general. I would like to place on record my thanks to both of those ministers.

Since I became the Director-General of Security, we've seen nine tranches of national security legislation pass successfully through the parliament. This has made a material and, in my view, a long-lasting difference to the security of Australians and Australian interests, and I thank members of this parliament for their consideration and support. As you can appreciate, the move from the Attorney-General's portfolio to the Home Affairs portfolio is a highly significant event for ASIO. In my view this change is a reflection of the complexity of the contemporary situation with regard to security and the need for the national security apparatus to become increasingly integrated and responsive in protecting our national interests. I welcome the historic change in our national security architecture as ASIO continues working to settle into these new portfolio arrangements.

It is important to note that although this move is significant for ASIO, it doesn't change the statutory independence, nor do I expect it to affect our day-to-day operational activities and business. This is outlined in the Home Affairs portfolio arrangements, which purposely preserve the operational independence and focus of ASIO and indeed that of the other statutory authorities within the portfolio. I have been in close contact with Minister Dutton and the secretary of the Department of Home Affairs for many months now, and in my view the transition to our new portfolio is progressing well. This is a large and complex machinery of government change, and there will be many issues to resolve as we move forward. There is, however, palpable goodwill and commensurate levels of cooperation all around to progress this work. I'm very positive about the new arrangements.

It is important that I remind the committee that ASIO's warrants and security-related ministerial authorisations will continue to be signed by the Attorney-General. Having acknowledged the strong professional relationship I've enjoyed with current and former attorneys-general, I would like to record my thanks this evening to my colleague, Chris Moraitis, the secretary of the AG's department, and his department for their support to ASIO, and I anticipate our close working relationship will continue through the signing of warrants and so forth.

ASIO already has a highly productive and well established relationship with the Home Affairs portfolio partners. These new arrangements that we are entering into now will of course present us with further opportunity to increase our levels of cooperation on counter-terrorism, countering foreign interference and protecting Australia's borders. I should also emphasise that amid the churn and the change, ASIO's purpose remains resolute, that is, to protect Australia, its people and its interests from threats to security. At ASIO, my officers remain focused on delivering our core business, namely countering terrorism, countering espionage and foreign interference.

With the committee's indulgence I would now like to offer a few remarks on these two priority operational areas, counter-terrorism and then counter-espionage. Firstly, on the question of counter-terrorism, the overall security operating environment remains a matter of ongoing concern and ASIO continues to respond to the challenges that it presents. Notwithstanding the significant military and territorial losses suffered by ISIL in the Middle East, the conflict in Syria and Iraq continues to influence Australia's security environment. The threat from ISIL and related groups is far from being eliminated. While it's likely that the threat from ISIL-directed attacks will reduce, ISIL's ability to support terrorists outside its former territory has degraded and the threat from ISIL-inspired lone actors will endure. One obvious consequence of the collapse of the so-called caliphate is the resultant dispersal of foreign fighters and their families.

Australia's national terrorism threat level remains at probable. At least 78 and possibly as many as 90 Australians have been killed because of their involvement in the conflict. The reality is plain for the remaining Australians. They will likely be killed, captured or have the potential for some to escape to neighbouring countries or further afield. Indeed, that could include returning to Australia, but I hasten to add that we have a very clear framework in place should that last eventuality come to pass. ASIO assessed that around 110 Australians are currently in Syria or Iraq and have fought or otherwise supported the Islamic extremist groups.

We're making every effort to detect and mitigate the risk posed by these individuals to our country. Since 2012, around 240 Australian passports have been cancelled or refused and 39 Australian passports have been suspended on ASIO's recommendation in relation to Syria and Iraq. Similarly, we are working closely with regional partners to detect and mitigate the threat posed by returning South-East Asian foreign fighters. They may threaten Australia's interests in the region. We assess that transnational terrorist groups will continue to focus on terrorist operations against the West by inciting domestic supporters to conduct attacks in their homelands. A prime example of this were the terrible attacks conducted in Surabaya in Indonesia recently. I note that more Australians have been killed in terrorist attacks in Indonesia than anywhere else, and these recent Surabaya attacks sadly demonstrate that the threat remains acute. Australia and Indonesia are working closely to counter violent extremism and the threat posed by terrorism to domestic and regional security, and we're going to continue with those efforts. We're also supporting a broader Australian government commitment to working closely with South-East Asian partners to combat violent extremism in the region.

On the counter-espionage side of the house, as I've stated publicly, foreign powers are actively undertaking espionage and foreign interference in Australia. I've said before ASIO assesses that the current scale of foreign intelligence activity against Australian interest is unprecedented. Espionage, interference, sabotage and malicious insider activities can inflict catastrophic harm on our country's interests. They potentially undermine our sovereignty, our security and our prosperity. Foreign actors covertly attempt to influence and shape the views of members of the Australian public, the Australian media, officials in the Australian government and members of the diaspora communities here in Australia. Foreign states maintain an enduring interest in a range of strategically important commercial, political, economic, defence, security, foreign policy and diaspora issues. Clandestine interference is designed to advance the objectives of the foreign actor, to the detriment of Australia and to our national interests. In some instances, the harm from espionage and foreign interference is immediately evident and in other instances, of course, the harm doesn't materialise for years and potentially for decades.

I note the recent establishment of the inaugural National Counter Foreign Interference Coordinator position in the Department of Home Affairs. This role will be an important step in providing a focal point for engagement across government and the Australian private sector in identifying and responding to counter-foreign interference.

I note two important bills currently before the Parliamentary Joint Committee on Intelligence and Security, the Espionage and Foreign Interference Bill and the Foreign Influence Transparency Scheme Bill. In January, February and March of this year, ASIO representatives, including my deputy Director-General and myself, appeared at a number of PJCIS public hearings in relation to these bills. As we made clear at these PJCIS hearings, espionage and foreign interference activity against Australian interest is occurring at an unprecedented scale. This is not a theoretical proposition; the reality is that acts of espionage and foreign interference are occurring against Australian interests both in Australia and overseas. Foreign actors from a range of countries are seeking to access privileged and/or classified information on Australia's alliances and partnerships; our position on international diplomatic, economic and military issues; our energy; our mineral resources; and our innovations in science and technology.

As I stated in my appearance before the PJCIS in Melbourne on Friday, 16 March this year, the grim reality is that there are more foreign intelligence officers today than during the Cold War and they have more ways of attacking us—that is, there are more vectors, and the cybervector is a good example. As a result, ASIO strongly supports the revised espionage and foreign interference bill and the Foreign Influence Transparency Scheme Bill as interlocking measures; they reinforce one another to cover the spectrum of foreign influence, espionage and interference. Our decision makers, including elected representatives, media and members of the public currently have no specific or clear mechanism to ascertain foreign-influence motivation in those with whom they're engaging. There are currently no effective transparency mechanisms in place, and this creates a vulnerability for these people and is particularly acute for those in high office.

FITS, the transparency scheme, is specifically designed to provide transparency around such foreign influence. We expect the biggest users and the beneficiaries of the transparency scheme would be elected officials, including members of this parliament. The media and the public will also benefit when they seek to understand those attempting to influence our democratic processes. While we should always treat the lessons of history carefully, I note that Cold War foes were relatively unambiguous. They had clear nation-state objectives underpinned by strong ambitions, but they did at the time have more limited technology than is available today. In contrast, today, the contemporary international security environment is far more integrated; it's fluid and complex, and there is a wider range of foreign powers independently jostling for advantage, with many aggressively pursuing espionage and foreign interference activities to advance their cause.

We see these reforms as providing integral and urgently required tools to help combat the current threat. In my view, these bills aim to effect the necessary changes to better protect Australia from harmful influence. This is a complex policy matter for the government, and I understand and fully accept the level of scrutiny these bills are receiving. ASIO is committed to working with policy makers and interest groups to ascertain the right balance between security and privacy.

A final couple of words, Chair, if I might, about our organisation. It's about us, now—ASIO. You can appreciate that the volume and tempo of our work remains very high. We're addressing these challenges by continuously scanning the environment and then applying rigorous prioritisation to the most significant threats. We're pursuing avenues to develop our capabilities as well as to streamline our business practice to ensure efforts are focussed on areas of most significant security risk. I'll stop at this point. Thank you very much for the opportunity. We do value this because, unlike perhaps other organisations, we are not in a position to present such facts in other areas. I appreciate it and I welcome your questions. Thank you.

CHAIR: Thank you very much, Mr Lewis. Again, I know I speak for the whole committee in saying how much we as representatives of Australia appreciate the work you do. Often we don't understand it; we don't know about it. But we do have that understanding that allows us to appreciate very much the work you and your officers do.

Mr Lewis : Thank you, Chair. I'll pass that on to my officers.

CHAIR: Mr Lewis, you spent some time in your speech talking about the way foreign nation-states can perhaps influence Australia in ways that 30 or 40 years ago wouldn't have even been dreamed of. And you rightly raise the issue that at times we parliamentarians may advertently or inadvertently become agents of these foreign episodes. At this committee yesterday, when we were questioning the cybersecurity agency, I tabled a list of many hundreds of pages of Twitter accounts, or Twitter bots, which I've learnt very recently are fake Twitter followers, sending out messages believed in many instances to be from nation-states or foreign agents.

The thing that drew this to my attention was that, in the case of one of my colleagues, apparently—people who know say this is right—you can actually purchase bots to give yourself the appearance of 30,000 followers on your Twitter account. The document that I've tabled shows that, for this particular senator, of the 30,000-odd purchased robot followers for Twitter, about 7,000 had Russian as the default language. I've asked the director of cybersecurity to have a look at that to see if there's anything he might be able to add to the debate which might be useful to politicians, amongst others. But I'm wondering if you work with the cybersecurity director in these things—is that something you do work together on?

Mr Duncan Lewis : Absolutely. We have a number of staff, actually, in the Cyber Security Centre, and we have people back in my own organisation that work directly to the centre—that is their kind of sole purpose in life. So there's reach-back from the centre into my organisation, which is a regular conduit for our operations, yes.

CHAIR: Perhaps this is superfluous now, because no doubt your input will be there, but I was going to ask whether I could send these to you, if you didn't already have them, through the cybersecurity director and whether you had any comments that might be useful to people in government positions across the board. But, as you've got people in there, I guess that question is superfluous, because it is something that, having been alerted to it, does greatly concern me.

Senator MOLAN: Director-General, I'm interested in the process of listing organisations as terrorist organisations, please. Can you go through for me what the process is. Who has the responsibility for listing?

Mr Duncan Lewis : Yes, I can, and we can do this in some detail. Essentially, the process starts with ASIO drafting up a number of—what's the technical term?

Dr Southern : Security assessments.

Mr Duncan Lewis : They draft security assessments around the terrorist organisation concerned. That is then passed to the responsible minister. Recently, that responsibility has transferred from the Attorney-General to the Minister for Home Affairs. The minister is required under the arrangements to consult with the opposition and with the states and territories of Australia. There is a process then to be gone through to actually proscribe that agency, and then it is added to a list. The list of proscribed agencies is public, but the journey to proscription for any one agency is not a matter that is dealt with in the public arena. So I'm often asked, 'Is this agency or that agency being considered?' and that's not something that I can answer, but the list of those agencies that are proscribed is publicly available, and we have that here.

Senator MOLAN: No, that's good. Thank you for that. I guess, primarily, I'm interested in Hezbollah and the External Security Organisation of Hezbollah, which is a terrorist organisation under our Criminal Code. I wondered, given what you've just said—

Mr Duncan Lewis : Sorry to interrupt, but that is proscribed.

Senator MOLAN: It is proscribed, correct. Given what you said a second ago about not being able to mention others, let me try this on you and you can tell me whether you can answer or not. Was consideration given to listing the entirety of Hezbollah rather than just the ESO? If you're able to answer that, I'd be interested in understanding the philosophy behind it.

Mr Duncan Lewis : I don't think I can answer that but to say that the external service of Hezbollah met in every respect the bar height, if you like, for proscription. As you know, Hezbollah is a multifaceted organisation, and whether you think one way about it or another the piece that cleared the bar height, very clearly, was the external service part of Hezbollah.

Senator MOLAN: Okay, thank you; an external service bar.

Mr Duncan Lewis : There is one other issue. Sorry to keep going on about this, but we also place a very high priority on whether that organisation presents a threat to Australia. If it's not a threat to Australia, it doesn't automatically mean it would never be proscribed, but it means it would be far lower down the batting order. We're looking, really, at those organisations that would present a threat to Australia and Australians, but it's not exclusive.

Senator MOLAN: Along those lines, when that process was being gone through, would you have considered, or consulted with, what US, Canada, the Arab League and the Gulf cooperation states have done, because they've proscribed the entire one?

Mr Duncan Lewis : Yes, we do.

Senator MOLAN: Does that work into the logic of—

Mr Duncan Lewis : Whether it's impacting us—

Senator MOLAN: whether it's impacting on you?

Mr Duncan Lewis : And the degree to which it's impacting us.

Senator MOLAN: That's good. I guess it's germane to me, the fact that Hezbollah itself, in its own operatives, say they are one organisation. Do you see, in the future, the possibility of that being reviewed and of the entire organisation being proscribed?

Mr Duncan Lewis : I think you'd be asking me to speculate on that.

Senator MOLAN: I guess I am, yes.

Mr Duncan Lewis : I don't think I could speculate on it.

Senator MOLAN: No, that's good. How would I get that? Would I go through a minister to get that?

Mr Duncan Lewis : You could do that, because we are, from time to time, asked by ministers whether we've considered this or that. What I can tell you is that ASIO maintains an active scan. It's not something we do episodically. This is going constantly. You can see organisations being added periodically to the list. At the same time we're adding them, from time to time agencies or organisations come off the list.

Senator MOLAN: What's an example of that? They've disappeared, I assume.

Mr Duncan Lewis : Could I take that on notice? It's happened in my senior working life. I can't give you an answer right now, but they're—have we got something? Here we go. It's in my recent working life! It's Ansar al-Islam, formerly known as Ansar al-Sunna, the AAI.

Senator MOLAN: That's the Kurdish organisation.

Mr Duncan Lewis : It was initially listed on 23 March 2003 and was taken off the list on 3 March 2015. That's one example that I have here. So it certainly has—

Senator MOLAN: I've certainly seen photographs of Hezbollah flags flying in Australia. Does that engage your organisation when you see that? It certainly concerns me. Whether that flag is of the non-listed part or the listed part, it certainly concerns me. Would that concern your organisation?

Mr Duncan Lewis : Yes, we would be conscious of that. We would be taking note of it. We would be paying attention to what is going on. As you know, we are constantly on the scan for these sorts of activities. Whether it's an Islamic based issue or whether it is a right-wing extremist issue, those scans are going constantly.

Senator MOLAN: I note that listing for Hamas's al-Qassam Brigades will expire in August. What's the process you would go through to consider whether you relist those?

Mr Duncan Lewis : A revaluation, and it's automatic. It is triggered automatically. It may not be relisted automatically, of course, but the consideration is an automatic trigger.

Senator MOLAN: Once again, we only list the militant side of Hamas. Would it be your expectation—I guess it's difficult to say because you haven't done the threat assessment—or is it likely that there would still be a split within that organisation, within Hamas?

Mr Duncan Lewis : As I say, Senator, I can't describe any active processes that we might have underway. I can only refer you to the list of what is currently proscribed, and then it is really up to my organisation to identify if there are any other areas that are clearing the bar height. We can accept advice from ministers as to, 'Would you have a look at this or that,' but as you know the final judgment—the assessment on whether the bar height is cleared for proscription—is a matter for ASIO.

Senator MOLAN: The activities last week on the border between Israel and Gaza—it would be difficult to say that only the militant aspects of Hamas were engaged in that. You could only assume that the supposedly domestic government aspect of Hamas was involved as well. Would you take that into account when you're going into the assessment, or do you rule it out because it didn't happen in Australia? It would certainly influence people in Australia. It certainly influenced the ABC.

Mr Duncan Lewis : Again, it's a hypothetical position. But, of course, legitimate protest is specifically excluded from our consideration in our act as a point of law, so a judgement would have to be made as to the legitimacy or otherwise of the protest. That would apply if our consideration was of something offshore or here. But, of course, we are principally focused on the domestic situation and what the threat is to Australians. My great interest in any trouble, such as we saw the week before last, is: what does it mean for Australia and Australians that might be living on either side of that divide between the State of Israel and—

Senator MOLAN: Or the ability to influence Australians through the media in Australia?

Mr Duncan Lewis : Yes.

Senator MOLAN: Thanks.

CHAIR: Thank you, Senator. Senator Pratt?

Senator PRATT: Thank you very much, Chair. I'd like to take us to the matter of Mr Hastie and his statement to parliament on Tuesday night concerning Dr Chau Chak Wing. I'm sure that's something you're aware of. I understand, in that context, there might be information that you can't share with us this evening and I clearly respect that. Just please let us know and decline to answer. Could I ask you, Mr Lewis, if you were aware of Mr Hastie's intention to make such a statement before it was made?

Mr Duncan Lewis : I had no idea that he was going to make the statement at the time that he did, Senator.

Senator PRATT: You don't know if anyone was in a position to give him advice about whether to make it or not to make it?

Mr Duncan Lewis : My understanding is that he had had a discussion with a junior officer in my organisation, but there was certainly no authority, if that's the right word—there was no sense of clearance being given.

Senator PRATT: So, you didn't know, but your office may have known. Do you know if that was passed on to anyone?

Mr Duncan Lewis : Personally I became aware that there was some prospect—although it was very prospective—of him saying something about an hour and a half before he made the statement.

Senator PRATT: Did anyone try to intervene to advise him in relation to whether he should make that speech or not?

Mr Duncan Lewis : Not from ASIO, Senator.

Senator PRATT: Can you confirm that his speech was the first time that Dr Chau Chak Wing has been publicly identified in such a definitive manner as being CC3?

Mr Duncan Lewis : I think that's a matter of speculation, Senator. You would be aware that back in 2015, both in the United States press—I think perhaps The New York Times—and then an array of Australian media outlets, including the ABC, The Sydney Morning Herald and a couple of others—I can't list them all—there was, at that time, media coverage to link Dr Chau with that particular case that was running.

Senator PRATT: But it wasn't, as far as I know, confirmed—

Mr Duncan Lewis : I'm just saying, Senator, it was media speculation. I can't comment any further than that. I have no further knowledge.

Senator PRATT: Okay. The Prime Minister confirmed yesterday that he'd sought the advice of departments, subsequent to Mr Hastie making the speech, about the implications of publicly sharing the details of an FBI investigation which had been provided by our ally. Is that correct?

Mr Lewis : No, I don't think that's a correct characterisation in a number of ways. I'm not quite sure of everything that the Prime Minister said, but he was asked, as you're aware, whether he had spoken to the intelligence agencies. You said departments—I don't know whether he spoke—I have no idea. I'm not a department.

Senator PRATT: I'm using the Prime Minister's language because I could ask you the question whether he sought the advice of ASIO, but—

Mr Lewis : Yes, you can ask that question.

Senator PRATT: Did the Prime Minister seek the advice of ASIO subsequent to Mr Hastie making that speech?

Mr Lewis : Yes, the Prime Minister and I had a discussion.

Senator PRATT: Thank you. Can I ask just to doubly clarify—ASIO didn't give Mr Hastie any clearance to make that statement but understood that there was a possibility that it could happen?

Mr Lewis : There was no approach to ASIO formally to provide clearance for what was said.

Senator PRATT: Okay. That's right. And, therefore, there was no intervention to ask him not to do it either? Have you subsequently been asked to provide a full briefing to the PM or been asked to take any other action by the Prime Minister?

Mr Lewis : No. I said that I met with the Prime Minister and we had a discussion.

Senator PRATT: In general terms, can I ask you how important it is to ASIO's work that we are able to cooperate with key intelligence allies such as members of the Five Eyes Group?

Mr Lewis : It is very important. We have extensive engagement, as you know, with our Five Eyes partners. It's a long-standing relationship, and it's central to our work.

Senator PRATT: What is the impact of Mr Hastie's disclosure in terms of our relationship with our intelligence allies?

Mr Lewis : In the discussions that I've had, none.

Senator PRATT: In The Australian newspaper on 25 April there was a story about the creation of a coordination unit for counter-espionage within the Department of Home Affairs. Is that story correct?

Mr Lewis : I haven't seen the story. Do you have any more information there? Did you say the 25 April?

Senator PRATT: Yes, that's right. A bid to counter foreign interference, crack unit to ward off spy attacks in The Australian. I've got a transcript of it here.

Senator Cash: Perhaps, Chair, Senator Pratt could provide that to the Director-General?

Senator PRATT: That's more than fine.

Mr Lewis : As I read this, this is about the coordinator that I mentioned in my opening remarks—the countering foreign interference coordinator.

Senator PRATT: That's right. Which agencies within the Department of Home Affairs are in this cross-agency taskforce?

Mr Lewis : I'm not sure I can give you a complete answer. The ones I know about are of course my own and the Department of Foreign Affairs.

Dr Southern : The Department of Home Affairs is represented.

Mr Lewis : Department of Home Affairs. I'm sorry; it would be something you'd have to put to the home affairs department. I certainly have made a contribution to that organisation.

Senator MOLAN: Is that a task force?

Mr Lewis : The coordinator himself is a deputy secretary in the Department of Home Affairs. He is responsive to me. He works for the Secretary of the Department of Home Affairs, but he is responsive to me.

Senator PRATT: Thank you. As we all know, the Department of Home Affairs was created this year. Until that point in time, ASIO had been the primary Commonwealth agency responsible for counter-espionage, with ASIS also playing a role. You've put to me that any questions about the task force have to go to the Department of Home Affairs. Is it correct that, under the arrangements prior to the Department of Home Affairs being established, ASIO would work cooperatively with the AFP and other agencies when cooperation was required?

Mr Duncan Lewis : Absolutely, yes.

Senator PRATT: Did you have at that time any concerns about the way that that collaboration was working? If so, what were those concerns?

Mr Duncan Lewis : No. I think this was made very clear by numerous people, myself included. I know the Federal Police commissioner is on the record, and a number of ministers have spoken about it; agency heads certainly have. Michael L'Estrange, in his independent intelligence review, had a similar sort of view: the structures and the relationships between agencies were working well but they could always be made better. We should be ever vigilant to make sure they're working as best they can. I don't have any particular complaint or anxiety about how things were working. Can we make them better? Surely, and we must.

Senator PRATT: The same article in The Australian contains an assertion:

The AFP recently flagged to a parliamentary committee that it had sought increased government funding for the establishment of a foreign espionage team to conduct operations that it had previously not been involved in.

Is it correct that the AFP will receive funding to establish a foreign espionage team?

Mr Duncan Lewis : The reason I paused when you asked me about the last article is that it overlaps with what I thought you might have been asking me, which is this issue.

Senator PRATT: Yes.

Mr Duncan Lewis : It was, in my view, incorrectly reported that there was some new organisation being established. We work very closely with the Australian Federal Police in the counterterrorist field and we have for many, many years, to the extent where I have Federal Police officers working in my organisation. They sit back-to-back with my own officers, working on various issues. The idea is to bring that level of cooperation into the counterespionage area. It's not setting up a new unit; it's nothing of that sort. How much money and what has been allocated to the Federal Police, I can't answer that; that's something for the commissioner. But, certainly, he and I have committed to ensuring that as we address this issue of counterespionage, countering foreign interference, we will need to be more joined-up. Also, if there is to be any prospect of disruption through prosecution, then quite clearly we need to work very closely with our police colleagues as we do in the counterterrorist area. Again, that's not to suggest we were not doing it before. It's just that there's a new sense of urgency or scale that needs to be addressed.

Senator PRATT: In terms of there being benefit in creating another counterespionage team within the AFP, is that a proper way to characterise it? Is it another counterespionage team? How do you characterise it?

Mr Duncan Lewis : Not to my knowledge. Unless the police commissioner is doing something different in his organisation, to my understanding, it's really the result of what I think was erroneous reporting.

Senator PRATT: So the primary responsibility remains with ASIO and ASIS, as far as you're concerned?

Mr Duncan Lewis : No, it remains with ASIO. It is a front-and-centre issue for the Australian Security Intelligence Organisation. I'm not suggesting for a moment that other agencies, including ASIS, don't have a role to play. But it is core business for ASIO.

CHAIR: Is that a convenient time to pass to another senator, Senator Pratt?

Senator PRATT: Depends how long you want to be here. I've got about five minutes more of questions.

CHAIR: In total?

Senator PRATT: Yes.

CHAIR: Go for it!

Mr Duncan Lewis : I'll keep my answers short!

Senator PRATT: I think we covered in your discussion the appointment of the previously unnamed senior ASIO officer as a deputy secretary of the Department of Home Affairs for the purpose of undertaking the role of the National Counter Foreign Interference Coordinator. That's the unit you covered in your statement?

Mr Duncan Lewis : That's right.

Senator PRATT: Is Mr Teal continuing to hold his position as an ASIO officer or will he be moved entirely into the home affairs department?

Mr Duncan Lewis : He's on secondment to the Department of Home Affairs. Just so there is no speculation about the issue of Mr Teal having formerly been an undeclared officer: as you are probably aware, two years ago, I changed the arrangements whereby hitherto the Director-General's position was the only one that was declared. Me and my predecessors were declared to people; everyone else in the organisation was not declared. Quite clearly, with the size and complexity of our organisation now, that was no longer tenable. My deputies—people at what you might know as the band 3 level, in the Public Service sense—are now declared. That includes Dr Southern and my other two deputies, and Mr Teal.

Senator PRATT: That makes sense. Is he therefore wholly moved into the Department of Home Affairs?

Mr Duncan Lewis : He is working for the secretary of the Department of Home Affairs, on secondment.

Senator PRATT: What will the ongoing role of that unit be, in terms of it existing within the Department of Home Affairs? Will it always be a seconded position from ASIO so that it is, in effect, a visible, declared ASIO officer holding that coordinating role within Home Affairs? Is that what you're saying?

Mr Duncan Lewis : I don't think I could give an answer to that. I'm saying that for the initial appointment, Mr Teal, one of my officers, has been seconded to the Department of Home Affairs to fill that slot. What happens in the future would clearly be a matter of discussion between the secretary of the department and myself.

Senator PRATT: A media release from the Minister for Home Affairs dated 10 May said:

Today the Governor-General put in place the final piece of the Home Affairs portfolio with the transfer of the Australian Security Intelligence Organisation (ASIO)—

into the department. As I understand it, that's not correct, is it? ASIO's not being absorbed into Mr Dutton's department but remains an independent statutory agency under its own act of parliament.

Mr Duncan Lewis : The minister said we are moving into the portfolio. You understand the difference between departments and portfolios.

Senator PRATT: So what he should have said is 'the final piece of the Home Affairs portfolio with the transfer of ASIO into the portfolio', not 'into the department'?

Dr Southern : The copy of the press release I have says 'the transfer of ASIO into the portfolio', not 'into the department'.

Senator PRATT: Okay. You're very clear—I don't know if I've got an incorrect transcript. Mine says 'into the department'. I don't know if it's been amended. If you could—

CHAIR: You've asked the question and got the answer. That's as far as they can go.

Senator PRATT: I'm trying to work out whether the minister was incorrect. If he had said 'department', would that have been incorrect?

Mr Duncan Lewis : I don't know what he said, I'm sorry. I can't answer that. We've got a copy here that says he said 'portfolio'. It is the Home Affairs portfolio. That is where we are currently transferred to.

Senator PRATT: Do you mind reading me the same sentence?

Dr Southern : It says:

Today the Governor-General put in place the final piece of the Home Affairs portfolio with the transfer of the Australian Security Intelligence Organisation (ASIO) into the portfolio.

Senator PRATT: My document before me clearly says 'with the transfer of ASIO into the department'.

CHAIR: You've got the answer.

Senator PRATT: I'm at a loss to understand why the words would've changed.

CHAIR: It's got nothing to do with the committee or these witnesses. They've answered.

Senator PRATT: It's really a question for Mr Dutton as to whether the press release was amended to correct what may have been a mistake.

CHAIR: Senator Cash will take that on notice.

Senator Cash: I can take that on notice, yes.

Senator PRATT: Under the new arrangements the Director-General of Security will be answerable to the Minister for Home Affairs alone. Is that right?

Mr Duncan Lewis : The Minister for Home Affairs, Minister Dutton, is the responsible minister for ASIO, yes.

Senator PRATT: And not to the Attorney-General under the new arrangements. Will Mr Teale take instruction or direction from, or be answerable to, the secretary of the Department of Home Affairs, Mr Pezzullo?

Mr Duncan Lewis : Yes, he will.

Senator PRATT: My last question returns to our discussion in relation to Mr Hastie. Mr Lewis, you said you knew of the possibility of Mr Hastie making a statement some hours before it happened but you didn't know the time it would happen. Did you take any action when you found out about Mr Hastie making that statement?

Mr Duncan Lewis : Yes, I did. I had people in my organisation tasked to begin a conversation with our office in Washington to see what the facts of the matter were. I was not familiar with what he had been briefed about—remembering that it was a briefing to the parliamentary joint committee—and I needed to establish the facts. So that process began, as I say, not long after I was advised that at some prospective time in the future a statement might be made. It was all speculative.

Senator PRATT: Did you make any contact with anyone in government about the prospect of him making a statement?

Mr Duncan Lewis : No, I didn't.

Senator PRATT: So Mr Hastie went in and made that statement before he'd received any reassurances that it didn't present any kind of risk to your operations or to our allies?

Mr Duncan Lewis : As I said to you before, we had not been approached for any formal clearance. When I became aware that it was in prospect we began a process to establish the facts.

Senator PRATT: You confirmed that a junior officer knew of the statement some time before. Is it only the two of you that knew? Was it that officer that informed you about the statement being made?

Mr Duncan Lewis : That's not a correct characterisation of what I said before.

Senator PRATT: That's fine; that's why I'm trying to clarify.

Mr Duncan Lewis : I said that the junior officer was approached with a speculative issue and, following that, there was no formal request to my organisation for such a statement to be considered. Whether it was or wasn't going to happen was a matter of speculation.

Senator PRATT: Do you know the time at which that junior officer was told and how long it was before you were informed?

Mr Duncan Lewis : No, I don't know precisely. It was some time before, but I don't know precisely.

Senator PRATT: I'm trying to get my head around the reason you were told only hours before Hastie made the statement.

CHAIR: Mr Hastie.

Senator PRATT: Yes, I apologise, Chair. You were told just hours before Mr Hastie made the statement and yet you weren't aware of any apparent link between you being told that the statement was about to be made.

Mr Duncan Lewis : I'm sorry, but I'm finding it difficult to understand your question.

Senator PRATT: I understand. Perhaps I'm not expressing it very well. You had a junior officer that knew about this sometime before.

Mr Duncan Lewis : No; your characterisation is 'knew about it'. As I understand it, there was some speculative suggestion. I had no idea what was said other than there was a speculative suggestion.

Senator PRATT: Okay; there was a speculative suggestion—

Mr Duncan Lewis : Sorry to interrupt, but I don't regard one of my junior officers having a speculative conversation as being some form of formal approach to me as the director-general of the organisation.

Senator PRATT: I understand that. I'm assuming, therefore, that that junior officer had a discussion with Mr Hastie some time ago and that it was speculative at the time of that discussion.

CHAIR: But you're assuming that. What's your question to Mr Lewis?

Senator PRATT: I cannot get my head around why Mr Lewis found out on the same day that Mr Hastie actually delivered the statement when the speculation around it had been with the junior officer for some time before.

CHAIR: With due respect, whether you can get your head around it is not a matter for this estimates. Mr Lewis has answered three times about his involvement and the junior officer's involvement. It's very clear what Mr Lewis can tell you. I appreciate you can't get your head around it, Senator Pratt, but I don't know that Mr Lewis can assist any further than he has.

Senator PRATT: I will ask the question one more time. You found out on the same day that Mr Hastie gave the statement.

Mr Duncan Lewis : It was an hour or two before.

Senator PRATT: Do you have any information that would indicate that the timing of you being told—Mr Hastie giving the statement on the same day—was anything other than a coincidence?

Mr Duncan Lewis : I have no idea. I can't comment on that. I don't know.

Senator PRATT: I have one more question and that's it. In your opening statement you had a discussion about the number of Australians who were off supporting ISIS or other extremist groups. I want to know how many Australian children are included in that cohort.

Mr Duncan Lewis : In the 110, which is the figure that I quoted, I think the answer is none. In previous estimate hearings, I have spoken about how we have assessed that 90 children are, at present, in the area of operations. They're not part of the 110. I made clear that the 110 were people who were involved in the fighting or supporting the fighting, not the dependents and families. The 90 children are a matter of concern, quite clearly, and I have mentioned that at previous estimates hearings.

Senator PRATT: That number's fairly consistent. Have there been any changes, as far as you're aware, in the circumstances facing any of those children?

Mr Duncan Lewis : No, I have nothing particular to report around that.

Senator PRATT: Okay. Thank you all for your evidence and thank you to the Attorney-General's Department for the last two days. Thank you to ASIO too.

Senator PATRICK: Mr Lewis, this is not a hard question—and the Minister might like this one!

CHAIR: Are you a member of the Qantas Club?

Senator Cash: If I'm not, I've got a problem, being a frequent flyer!

Senator PATRICK: There is a provision in the Fair Work Act that says:

A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order …

And there's a section under which they can do that. It says:

For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

There is then another provision that says:

Without limiting—

another section of the act, but referring to this part—

the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.

In principle, what it says is that you can, by way of legislative instrument, effectively negate the bullying section of the Fair Work Act. It says that a declaration under that subsection can 'only be made with the approval of the Minister'. My question is: have you ever sought to tender a legislative instrument that would carve your organisation out of the bullying provisions of the Fair Work Act?

Mr Duncan Lewis : Not to my knowledge, but I will check. I'll need to check. I'll need to take that one notice. There is another twist to this which I'll need to check.

Senator PATRICK: Sure.

Mr Duncan Lewis : I've not exercised it, if that is the point of your question. Personally, I haven't exercised it.

Senator PATRICK: But someone may have. And if that were the case, I'm just presuming it becomes the point if someone's got a complaint that might relate to bullying or something like that.

Mr Duncan Lewis : That is a fact. It is the first port of call for an ASIO officer, or in fact any member of the Australian intelligence community, as it was, or the national intelligence community as it is about to become. AIC agencies' staff who are of a view that they have been bullied are open to refer that matter to the IGIS.

Senator PATRICK: I'd be happy to receive that on notice. I have another question in relation to report 168 of the Senate Standing Committee of Privileges that examined how privilege affects metadata. You'd be aware that there is a procedure in place between the AFP and the parliament in respect of how the AFP executes search warrants on members of parliament and how they obtain warrants in respect of members of parliament. And this is really not about stopping members being investigated for crimes but protecting sources and protecting documents that might be covered by privilege and so forth. That report also went to ASIO, because it also has powers in respect of metadata, and, indeed, warrants. Have you engaged in any discussions with the Senate or the Clerk in respect of that report?

Mr Duncan Lewis : No.

CHAIR: I think you actually spoke to the Privileges Committee, didn't you?

Dr Southern : We did.

Mr Duncan Lewis : We spoke with the Privileges Committee, but, no, I have not spoken to the Clerk.

Senator PATRICK: There is a report, No. 168—it was handed down only a couple of months ago. If that hasn't progressed and if you wouldn't mind taking it on notice—

CHAIR: The secretary of the Privileges Committee is a Deputy Clerk.

Senator PATRICK: Sorry, I can't hear you, Chair.

CHAIR: I'm sorry. I'm Deputy Chair of that Privileges Committee. I'm not sure whether I should be disclosing the committee's deliberations, but I do recall that a representative of ASIO—I think it was Mr Lewis—

Mr Duncan Lewis : Yes.

CHAIR: actually spoke to the committee. The secretary of the Privileges Committee is the Deputy Clerk. So, yes, you have spoken to a Deputy Clerk, but in his role as secretary of the Privileges Committee.

Senator PATRICK: The report has been published—

Mr Duncan Lewis : Your question, I think, is probably not able to be answered because the matter is still being considered by the government. That would be the answer to what I think you've just asked. The recommendations are being considered.

Senator PATRICK: Is that the case, Chair, about the Privileges Committee recommendations?

CHAIR: It's really a report that, I think, goes to the parliament—

Senator PATRICK: That's right.

CHAIR: which is to the President, rather than the government.

Senator PATRICK: Yes.

CHAIR: But you're right. Again, I shouldn't be disclosing Privileges Committee information, but I don't think the President, as the recipient of that report, has responded.

Senator PATRICK: Okay, that's very helpful, Chair.

Dr Southern : We're aware of the recommendations.

Senator PATRICK: Could I ask for indulgence to ask the secretary one question that's not to do with ASIO but is an important matter for the parliament?

CHAIR: Yes, but are you finished with ASIO? We might let them go.

Senator PRATT: I just wanted to ask one very quick question. Mr Lewis or Dr Southern, I will ask if either of you spoke to Mr Hastie after he made his speech or if anyone else did in ASIO?

Mr Duncan Lewis : I haven't spoken to him.

Dr Southern : I haven't spoken to him, no.

Senator PRATT: Thank you.

CHAIR: Thank you, Mr Lewis and Dr Southern. Thank you very much for your attendance and, again, to you and your officers, for what you do for Australia.

Dr Southern : Thank you.

Mr Duncan Lewis : Thank you.

CHAIR: Senator Patrick, do you have a question to Mr Moraitis?

Senator PATRICK: Secretary, two days ago I asked some questions of the Auditor-General about a matter that is before the Federal Court. For the committee's benefit, a company called Thales has taken the Auditor-General to the Federal Court because the Auditor-General wants to include some information in his report and the company does not want it to be tabled in the parliament. That raises a whole range of very interesting issues in the context of whether the Auditor-General's work is indeed covered by privilege from go to whoa because it's a transaction for the purposes of parliamentary proceedings, and also, I guess, in some sense, whether or not a company can seek to fetter the tabling of a document in the parliament. So it has some interesting matters that would be—

CHAIR: But what is the question to Mr Moraitis?

Senator PATRICK: I'm just trying to give some context—I'm just about finished. Noting that issue and the fact that the Auditor-General is an officer of the parliament, not of the government, are you aware of the case?

Mr Moraitis : Yes, I am.

Senator PATRICK: Will the Auditor-General have access to the Solicitor-General if he wishes to be assisted by the Solicitor-General?

Mr Moraitis : You are correct: the Auditor-General does have a special relationship with parliament. I think he's technically an officer of the parliament, so that point is quite apposite. On the specific question of whether he has access to Commonwealth legal services, I'd have to take that on notice, but, in principle, yes. For the Solicitor-General in particular, if I may I'll take that on notice.

Senator PATRICK: I'm not sure how an officer of the parliament engages the AGS.

Mr Moraitis : Could I take that on notice? The AGS is not here, unfortunately. He would know, but I could take that on notice.

Senator PATRICK: I'm wondering about the pathway, perhaps from the AGS. If it was decided a brief was required to go to the Solicitor-General, the question is: would the government allow that to occur?

Mr Moraitis : I'd have to take that on notice. The practice under the legal service direction, which has been mentioned a few times, is that any referral of advice to the Solicitor-General requires the approval of the Attorney-General or consultation with the Attorney. That's the normal process. As to whether it has occurred or will occur, and what would be the outcome, that would be a matter for government. I would have to take that on notice.

Senator PATRICK: Thank you very much.

CHAIR: Minister, I thank you, Mr Moraitis and his team for your assistance over the last two days. Thanks to Hansard, as always—I don't know what we'd do without them—and to the secretariat. Again, farewell to Mr Watling. The hearing is adjourned.

Committee adjourned at 21:35