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Legal and Constitutional Affairs Legislation Committee
(Senate-Wednesday, 25 May 2011)
Australian Human Rights Commission
Australian Law Reform Commission
Australian Transaction Reports and Analysis Centre
Mr D McDonald
Federal Court of Australia
Family Court of Australia
Office of the Director of Public Prosecutions
Australian Security Intelligence Organisation
Mr G McDonald
Australian Government Solicitor
Insolvency and Trustee Service Australia
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Content WindowLegal and Constitutional Affairs Legislation Committee - 25/05/2011 - Estimates - ATTORNEY-GENERAL - Australian Security Intelligence Organisation
Australian Security Intelligence Organisation
CHAIR: Mr Irvine, I welcome you and officers from ASIO. Do you have an opening statement this afternoon?
Mr Irvine : I thought it might be helpful, particularly given the recent death of Osama bin Laden, to comment on one of the key features of our increasingly complex operating and threat environments. Bin Laden's death has obviously attracted a great deal of interest and speculation about the implications for the security environment, both internationally and in Australia. Bin Laden's death is undeniably an important milestone in international counterterrorism efforts and especially in the international fight against Western transnational terrorism. It is a significant victory, I think both real and symbolic, and a blow to the morale of al-Qaeda supporters and those whom al-Qaeda inspires. It certainly represents the determination of our allies to face up to this issue.
Bin Laden's demise represents not only a sort of bookend for the decade since 9-11 but in my view a confirmation that the effort against terrorism is bearing some fruit. It should give encouragement to people everywhere, not only people in Western countries but also Muslim populations who have been equally the victims of brutal and indiscriminate acts of terrorism perpetrated by al-Qaeda and its fellow travellers.
One consequence of bin Laden's departure is the temptation to think that the threat to Australia and Australians from violent extremist jihadists elements has somehow been reduced and that as a consequence we can lower our guard and reduce our national effort against terrorism. ASIO does not subscribe to that view. As important as Osama bin Laden's death is symbolically, we have seen so far absolutely no indication that it has changed fundamentally the dynamics of anti-Western transnational terrorism. Nor does it mean that the threat is diminished in any way.
Al-Qaeda and its affiliates have shown their capability and capacity over the past decade to surmount setbacks and overcome the loss of leaders. As is noted in the 2010 counterterrorism white paper, support for al-Qaeda's brand of terrorism, while small perhaps in global terms, shows every sign of persisting even if its current leadership is to be killed or captured. In the face of global counterterrorism efforts and loss of leaders and operatives over the past decade, al-Qaeda and its allies have repeatedly shown a capacity to overcome tactical and operational setbacks and continue to plot and conduct attacks and inspire others to do so. Indeed, in the immediate aftermath of Osama bin Laden's death the prospects of revenge attacks throughout the world have probably increased.
The internet helps al-Qaeda in its task. It is both a propaganda and a recruitment tool. It provides terrorists with both a platform to support operational activity and the means through which to project their ideology onto the international stage. The dissemination of violent extremist ideology through the internet poses the very real danger of drawing individuals down the path of radicalisation. As a result, in recent years, we have seen the emergence of what I will call 'stand-alone' violent jihadist activity perpetrated by the individual who has few, if any, longstanding formal physical or visible links to a group but who is motivated, often over the internet, or can be encouraged to plan and execute an act of terrorism. Umar Farouk Abdulmutallab, who attempted to detonate an explosive device aboard a Northwest Airlines flight into Detroit on Christmas Day 2009, and Nidal Malik Hasan, the alleged perpetrator of the mass shooting of soldiers at Fort Hood military base in Texas in November 2009, may be said to fall into this category of stand-alone terrorist.
It is a fact that over 100 Australians have died as a result of terrorist attacks overseas. Here in Australia we have been fortunate that there has been no terrorist incident on our soil—at least for many years. But I need constantly to remind people that in the last decade ASIO, the security intelligence service, and Australian law enforcement agencies, both state and federal, have detected and disrupted a number of major terrorist plots in Australia which had as their central objective mass casualties amongst Australians. These disruptions have lead to prosecutions and the conviction and imprisonment of some extremists. So this is not an abstract or an offshore threat; it is a real threat and it is amongst us.
While Australia's security alert level has remained medium, each year ASIO responds to literally thousands of counterterrorism leads. The committee might like to note that we are currently involved in several hundred counterterrorism investigations and inquiries. These investigations range from Australians in contact with terrorists offshore, including al-Qaeda, to the investigation of possible threats to Australian interests from extremist activity either onshore or offshore. New threats, including from local extremists, those based overseas or a combination of the two, can emerge quickly and with little or no warning. ASIO's bread and butter work, therefore, remains the pursuit and investigation of leads on potential terrorist threats, particularly in Australia but also overseas. Worryingly, we are continuing to see a limited number of Australians seeking to travel overseas for participation in or facilitation of terrorist related activities. My concern is that such people may target innocent people overseas, assist those who would do harm to our nation or might return to Australia with greater knowledge, training and intent to carry out an act of terrorism back home.
I reiterate the central point I am making: the threat of terrorism in Australia is real and persistent. Individuals inspired by violent extremist jihadist ideology remain committed to undertaking attacks in the pursuit of their cause, and they are present in many countries, including Australia. In a volatile and unpredictable security environment, where threats can originate both offshore and onshore, ASIO must needs work closely, indeed more closely than ever, with its security intelligence and law enforcement counterparts, both nationally and internationally.
Turning briefly to another threat, let me say that an increasingly persistent threat to national security and to the interests and privacy of Australians comes from abuse or exploitation of the vulnerabilities of the internet by both state and non-state actors. While ASIO does not comment—ever—on espionage matters, it is clear that the internet has become a vehicle for the covert extraction of information that its owners would prefer, and have a right to believe, should remain confidential. This can affect the nation's vital economic as well as political and defence interests and, of course, the privacy of ordinary Australians. Addressing this problem requires effective intra-governmental cooperation as well as increasing cooperation between the government and the private sector.
Thus ASIO works closely with the Cyber Security Operations Centre in the Department of Defence and with the Computer Emergency Response Team in the Attorney-General' Department. We have been playing our part particularly in contextualising cyberespionage within the broader security and cyber environment. Most important is that government organisations at both the state and federal levels, Australian commercial enterprises and the general public, each of whose dependence on the internet increases by the day, understand how vulnerable they can be when using the internet and how important it is to take even the most basic precautions. I thank the committee for its indulgence.
CHAIR: Senator Barnett, with the committee's indulgence, Senator Ludlam do you have questions of ASIO?
Senator LUDLAM: I do.
CHAIR: I have just negotiated with Senator Hanson-Young to come down. She only has a 10-minute window of opportunity for the next little while.
Senator LUDLAM: I am happy to lead off with a couple and hand over to Senator Hanson-Young when she gets here.
Senator TROOD: I have questions too, Chair.
CHAIR: Yes, I have a few senators listed here.
Senator LUDLAM: Thanks, Mr Irvine, for your opening statement. I might pick you up on something that you mentioned there particularly with regard to online security. Is there anything you are able to tell us about attempts to compromise the security of this very building? Do you have anything you would like to add on the subject?
Mr Irvine : I am sorry, I do not have anything I would like to add on that. It is government policy that ASIO not comment on operational matters.
Senator LUDLAM: I have heard you say that to me a couple of times so I should have known that is where you would go. Maybe we will start off then before Senator Hanson-Young gets here on the fortress that is under construction down on the lake. I wonder if you can give us an update. In this budget it appears on my reading that there is another $69 million increase from 2010-11 for capital outlays. Is that unexpected expenditure—could you account for that for us please?
Mr Irvine : My knowledge is that the project as a building project is running within the current budget of $589 million. It is on schedule and it is expected to be handed over to ASIO on target in the middle of next year. With regard to the additional funding I will hand over to my colleague who can explain exactly what that means.
Mr Fricker : It does not represent new funding. It does not represent a budget overrun if that was the implication in the question.
Senator LUDLAM: I guess it was.
Mr Fricker : It is on schedule as the director-general has just said and that is according to the schedule of the construction.
Senator LUDLAM: Has that funding been brought forward then? Page 241 of the PBS says that the $69 million is primarily relating to that building. Is that funding that has been brought forward unexpectedly?
Mr Fricker : There has been some rephasing of some of the running costs of the building to pick up on when we actually move into the building and those running costs are incurred. The equity injection for the new equipment in the building remains in accordance with budget predictions. What we have done to maximise the cost-effectiveness of the move is prolong the life of some of our existing equipment and so some of the funding for replacement of existing equipment has been pushed out one year. I will have a look in the PBS in a moment, but the funding you may be referring to there is the cost of replacement. I think there is $19 million for the cost of replacing existing equipment. That is being timed so that we can retire equipment in the old building and have new equipment in the new building rather than replace the equipment now and then have to move it.
Senator LUDLAM: Maybe that is the breakout I was referring to. Stating that that $69 million is primarily relating to that structure, I am wondering what else it relates to, but perhaps that is what you mean—it is equipment rather than construction costs per se.
Mr Fricker : That is right. So of the $61 million, $19.2 million is for replacing existing assets and $41.5 million represents equity and equity injection for the new building.
Senator LUDLAM: Thank you.
Senator TROOD: Chair, I was going to ask questions of ASIO on their new building. It might facilitate the progress of the committee if I was able to ask those questions at the moment, if it suits the committee.
CHAIR: That is all right.
Senator TROOD: The figure of $30.6 million over four years is increased operating costs. They are the figures you have just referred Senator Ludlam to. Is that right?
Mr Fricker : The figures for Senator Ludlam were replacement of assets.
Senator TROOD: Is the $30.6 million another figure?
Mr Fricker : That is correct, that is for the rent of the new building. The budget comprises equipment, replacement of existing assets, new capital equity injection for the new building and then we have allowances for the running costs—that is, rent, power and maintenance.
Senator TROOD: These are costs which were not envisaged at the time the budget for the building was established. Is that right?
Mr Fricker : They were always envisaged. They were introduced as budget items in the last budget cycle. It was always anticipated there would be running costs and there would be rent payable to the Department of Finance and Deregulation as the landlord.
Senator TROOD: There is a reference in the papers to a sharing of costs with the Department of Finance and Deregulation in relation to some of this money, and that is a reference to this figure, is it?
Mr Fricker : That is correct.
Senator TROOD: Since ONA withdrew from the project, you told me at the last Senate estimates that you were going to seek another tenant. Have you sought another tenant and have you been successful?
Mr Irvine : We have not yet been successful, but we are in serious negotiations with another government department.
Senator TROOD: So there is some prospect that it will come to the fore?
Mr Irvine : I certainly hope so.
Senator TROOD: That is indeed good news. When I asked Mr Gyngell from ONA this in February, his explanation for pulling out of the arrangement, or the parting of the ways, was that there was not enough space for ONA in that building. Almost everybody in Canberra will find that an extravagant claim, I would have thought. Can you explain to the committee how this could possibly be the case, Mr Fricker.
Mr Fricker : That does not accord with my understanding of the situation. Four thousand square metres was allocated in the building for ONA, sufficient to accommodate, I believe, 180 staff; space was allocated for a data centre et cetera. It is not my recollection that that was the reason the decision was made that ONA would take up alternative accommodation. It is hard for me to comment more than that, but that is not my understanding of the reasons. As I say, adequate provisions, according to all of the estimates, the plans and the requirements, were made in that building.
Senator TROOD: What do you understand the explanation to be? What is the ASIO view on this matter?
Mr Fricker : That would be speculation on my part.
Senator TROOD: It is not speculation as to ASIO's understanding, Mr Fricker.
Mr Fricker : I am not sure my understanding would properly inform the committee as to what was in the mind of ONA.
Senator TROOD: I think it would deeply inform the committee, largely because we have an account from ONA as to why they were unable to proceed with the intended arrangement but we have not had an opportunity to hear your side of the story.
Mr Fricker : I do not really have a side of the story to tell. We continue to manage with the Department of Finance and Deregulation the construction and the move into that building. My responsibility is to ensure that ASIO is able to move into that building and maintain its operational capacity and, indeed, enhance its operational capacity. Respectfully, I cannot speculate what the motivations were and what was motivating the decision of ONA.
Senator TROOD: When ONA pulled out they must have given you an explanation. I assume they gave you an explanation as to why they pulled out of it.
Mr Irvine : I was not in ASIO at that time, but I think I would like to take that question on notice. I have heard a couple of explanations. We will go back and give you a considered reply. ONA clearly had reasons. It may have had to do with the disposition of the space within the building. It may have had to do with—and if the Director-General of ONA said—the amount of space that was available in the building relative to ONA's purposes. Another explanation I have heard is that it is preferable that ONA be closer to the Prime Minister's department, its parent department. There is a whole number of explanations. I have never actually inquired as to which one was the right explanation. We have been dealing with the fact that we have 4,000 square metres of space in the building that we are not currently able to use and, therefore, we are seeking an alternative tenant who will come in with us and whose offices, I hope, will have similar sorts of security classifications to enable them to work in an A-class building of that nature.
Senator TROOD: I would be very grateful if you took that on notice, Mr Irvine. That would be helpful to me. You will understand, I think, the reasons for pressing it. There would seem to be a manifest logic in having two intelligence agencies in the same building, given that I assume it is fitted out to the highest form of security classification.
Mr Irvine : Absolutely.
Senator TROOD: And a consequence of ONA not being able to go there is that they have had to spend a lot of money somewhere else around the town renovating a building and ensuring that it, too, has the high degree of security classification that is required. At one level, this is costing the Commonwealth money, and that seems to be something we should avoid, if we can.
There is one other matter relating to the building, if I may, and that concerns an incident in March when a gentleman had a measure of misadventure and fell into the construction site and apparently lay there injured, perhaps with concussion, for apparently 36 hours. I suppose the first question that occurs to me, Mr Fricker or Mr Irvine, is how it is possible that someone could get into what I assume to be a high-security site, as the building of ASIO is.
Mr Irvine : I think the answer to the last question is that he climbed the fence. Consequent to that, let me just say that at this stage investigations are continuing by the ACT police into the unauthorised entry of the site. I am advised that an initial investigation by WorkSafe ACT has identified that the injuries sustained by the man were not a result of noncompliance with safety procedures on the site. I am advised that Lend Lease, which is responsible for the security rather than ASIO, has taken all reasonable procedures to prevent injury to members of the public generally. At the moment, what we have done is work with Lend Lease to increase their security on the site to try to ensure that we do not have a similar sort of incident again.
Senator TROOD: So there has been a review of the security arrangements in light of this incident?
Mr Irvine : Yes. My advice is that comprehensive security procedures have been developed with the managing contractor for the design and construction phases that are commensurate with the level of risk for this project.
Senator TROOD: Do you know whether or not that has had an impact on the cost of security of the site or are they—
Mr Irvine : I am not aware that it has.
Mr Fricker : The provisions will continue to be managed within budget. It will not result in a blow-out of the budget. I might note as well that there are two aspects. One is the work safety issues and site security in people being able to gain access to the site. That covers the normal raft of site security issues in terms of personal safety, theft, vandalism et cetera. The other is national security safety concerns. It was terribly unfortunate that that gentleman was left unattended for that period of time, but if I could just—
Senator TROOD: How is he, by the way?
Mr Fricker : My understanding is that he remains hospitalised in a stable condition. My understanding is he suffered severe injuries. The security management of that site is very much a layered security model. The fact that he could get over the external fence of that site and then injure himself and lie unattended for that period of time meant that the subsequent security measures we have in place were sufficient to make sure that there was no national security breach as a result of that intrusion.
Senator TROOD: Could it be, Mr Fricker, that the security surrounding the site is having an impact on the workplace health and safety needs of the site—that there is a tension between the two which has in some way facilitated this or been part of the cause of this situation?
Mr Fricker : No, I do not think that is the case. As the Director General has just said, I think we are observing, with both Lend Lease and the Department of Finance and Deregulation, all of the construction safety requirements. You would expect there to be a perimeter fence. Every construction site has a perimeter fence. Every construction site has warning and advisory signs. WorkSafe has been consulted to make sure that we are reviewing that site and that all those safety measures are properly implemented. No, I do not think this incident represents any sort of unproductive tension between our security requirements.
Senator TROOD: Has the perimeter fence been enhanced in some way as a result of the fact that, as the Director General said, it was able to be breached?
Mr Fricker : Because it is the ASIO building, I do not wish to provide too much detail about security measures on the site but, to answer your question, there has been a review of the incident to ensure that any safety requirements that should be in place will be put in place. That review is still underway.
Senator TROOD: That the perimeter fence was able to be vaulted, climbed or in any way breached by someone in the condition this gentleman was allegedly in suggests that there may be some shortcomings in the fencing—at least it does to me. I cannot imagine it, passing the site as I do from time to time, but the reality is that someone was able to get through.
Mr Fricker : It is a perimeter fence that is no less than any other construction site would have. A determined individual may be able to breach any construction site perimeter fence. We are not going to construct huge brick walls around the site to absolutely prevent anybody from any possibility of getting over that fence; it has to be a sensible measure in line with Australian construction standards. They will be the measures we will continue to adopt. I repeat that the site security is managed by Bovis Lend Lease under the managing contractor and the owner of the building, the Department of Finance and Deregulation. All parties are involved in looking at the overall security measures for the site.
Senator TROOD: I was about to return the call to Senator Ludlam, but he seems to have left the building, or at least the committee room.
CHAIR: Keep going then. I suspect he was not aware of how long you would be.
Senator TROOD: I was going to pick up on some of Mr Irvine's opening remarks in relation to the threat and thank him for his timely comments to the committee. They are apposite and we ought to be reminded of the dangers and the challenges that we face in this area. I am also delighted that we have actually found time for ASIO in the estimates schedule when we were unable to do so on the last occasion we were here. Are you able to quantify or do you spend time trying to determine how much of ASIO's time is spent on, for example, the counter-terrorism responsibilities you have compared to espionage? Can you give the committee some idea of how you disperse your resources in relation to those challenges?
Mr Irvine : We do keep metrics in respect of our overall operational effort and the allocation of resources within that operational effort. With your indulgence, I will not go into absolute specific figures, but let me say that at the moment our operational effort is, by quite a considerable amount, devoted to terrorism—investigating, following up leads and, in some cases, moving to prevent terrorist activity. That activity is carried out in close cooperation with other authorities in Australia, the support of other parts of the intelligence community and also—and I place particular stress on this—in close cooperation with the Australian Federal Police and with the various state police forces. It is indeed a national effort that transcends state borders. But ASIO's operational effort and the majority of our work, by quite a considerable margin, are devoted to countering terrorism.
Senator TROOD: That is helpful, thank you, Mr Irvine. You may not wish to say anything about this but I would be interested to know how adequately you think we are dealing with the challenge of espionage activity across the government and across the country.
Mr Irvine : When you talk about either terrorism or espionage and you sit where I sit, you want to be able to do more. I am certainly very keen to see our counter-espionage effort developed. We have plans to do that and we are doing that, but I probably would not want to comment too much more on espionage.
Senator TROOD: Senator Ludlam has returned. Thank you for indulging me, Senator Ludlam.
Senator LUDLAM: No problem. Unfortunately, Senator Hanson-Young is not able to make it now. On the subject of the security checks and clearances that ASIO does on asylum seekers, my understanding is that you do two different kinds, broadly. The initial one is to briefly ascertain that somebody is okay to be released into the community while the longer term review occurs. The other is the longer term security review. Let us just test that that is the case.
Mr Irvine : With regard to irregular maritime arrivals, yes, that is the case.
Senator LUDLAM: Are those tasks substantially performed by the same people?
Mr Irvine : We work closely in cooperation with the Department of Immigration and Citizenship in that there is a partnership in those processes.
Senator LUDLAM: But they are delegating the actual security task to ASIO?
Mr Irvine : No, it is not a question of delegation. It is our function to manage the security process for those people. I wonder whether it would help if I were to give you an understanding, from our point of view, of the visa security assessment process. Would that be useful?
Senator LUDLAM: I think it probably would, but I just want to pre-empt you with the main question that I wanted to ask, which is how long those brief checks actually take. So please bear that in mind as you step us through the process.
Mr Irvine : I think it might be useful if I went into it a bit because, as you know, there has been quite a bit of speculation and I think some confusion about ASIO's role in this process. The fact is that ASIO and DIAC have a longstanding arrangement for the referral of visa applications to ASIO for security assessment purposes. These apply whether we are talking about irregular maritime arrivals on Christmas Island or elsewhere, or claimants for protection visas or any other visa types. The criteria under which that referral process takes place have been determined by ASIO. It is an ASIO managed process right across the board. It is an intelligence led process, it is a risk managed process and it involves close cooperation with DIAC. If you do not mind, I will not go specifically into what the criteria are that we set within that process because to talk about it publicly would compromise the integrity of the process.
The next thing to say is that the nature of the security checking is on a case-by-case basis. It is not determined solely by nationality, by ethnic origins or by religious or other reasons. The checking that we carry out varies according to the purpose for which we have been asked to make the check. This comes into the question you have asked. We make two types of assessment in respect of IMAs, as you have said. The first one is to determine suitability for community based detention and the second one is to determine the suitability for an individual to reside permanently in Australia. The level of checking that we undertake is commensurate ultimately with the level of risk we assess the individual to have.
This referral process has been developed in consultation with DIAC. What it has done, particularly recently, is enable us to streamline security checking for what I will call non-complex cases and that is commensurate with the level of risk that they present. What it does is allow us to focus our most intensive security investigation effort into the groups or individuals of most security concern. The result is, I believe, particularly in recent times, that our security checking has become more thorough and more effective. In fact, this is evidenced in the number of adverse security assessments, which have increased as a result of our ability to focus on these complex cases.
The final point to make is that, prior to this year, it was government policy that all irregular maritime arrivals be subject to the full ASIO investigative process. In other words, every one was treated as a complex investigation. This was proving particularly difficult for everybody, partly because of the complexity of the investigations themselves and because of the numbers involved. Therefore, at the end of last year, the government agreed on two significant decisions. The first was that ASIO would refer to us for complex security checking, while it would security-check only those people who had already been accorded refugee status. In the jargon it is known as '1A met'; in other words, their refugee claims could be accepted. Prior to that, we had been conducting full investigations on every IMA, even on those people who were unlikely to be or ultimately not accepted. So we were wasting a lot of effort on that. That decision has relieved the pressure to some extent. The second decision was to streamline the process, use greater risk management and align the process much more closely with the process that we apply to every other visa applicant.
So what we have now is an ASIO managed process in which ASIO and the Department of Immigration and Citizenship cooperate to assess a person's security relevance. If it is considered that there is an area of concern, ASIO then conducts a fuller and more complex investigation.
Senator LUDLAM: And you conduct that initial check to see whether this is a simple or complex case?
Mr Irvine : We are working together with DIAC in an ASIO managed process to do that.
Senator LUDLAM: What I am most keen on asking is: firstly, how long does it take to do that initial check to determine whether or not a case is simple or complex?
Mr Irvine : It can take as little as a couple of days.
Senator LUDLAM: Once you have assessed that somebody has a simple case, how long does the actual test take to determine their eligibility for community based detention?
Mr Irvine : The community based detention one can be determined very quickly—again, within a couple of days.
Senator LUDLAM: So it is possible within 24 to 48 hours? I am trying to pin you down now.
Mr Irvine : Sometimes you run into issues and you get into real problems quoting average figures, but let us say that, of the 900-odd cases that have been referred to us, we have been able to get back to Immigration very quickly. Without giving you an exact figure, I do not believe that that is a significant element in the time consumed by this process.
Senator LUDLAM: That is what I was most interested in. So that initial check to determine whether somebody is free to go into community based detention while the longer term work is carried out can be a matter of a day or two in many instances. I will ask you to provide on notice any statistical information that you can, recognising that the system has only been on its feet for a couple of months.
Mr Irvine : I can give you a couple of statistics. The complex cases are going to take longer and some quite a considerable time. At the moment I can say to you that, of the 6,250-odd people currently in detention, only seven per cent of those are awaiting ASIO security assessments.
Senator LUDLAM: The question as to what the rest of them are doing there is for another portfolio.
Mr Irvine : That does not mean that we are going to be able to rush through those assessments willy-nilly. These are the complex ones; they will take longer.
Senator LUDLAM: I understand. Thank you. I would like to change the subject, if I may.
Senator TROOD: I have some pertinent questions in this area, if it suits the committee. To clarify this matter between assessments for community detention and permanent detention, does it mean that when you undertake an assessment for the purposes of community detention and you give an answer that you might subsequently revisit that person's file for the purposes of a further assessment as to their suitability for permanent detention?
Mr Irvine : That would almost certainly be the case.
Senator TROOD: You do not seek to do permanent detention because you have been asked to make judgment about their community detention?
Mr Irvine : No. The fact that someone is allowed into community detention within Australia, under the conditions of that community detention—and, therefore, it is a different sort of security assessment—versus someone being given a permanent visa, the whole process in effect starts again once that person who is in community detention has been accepted for refugee status.
Senator TROOD: Are we speaking only about adults here or are we speaking about all people in detention.
Mr Irvine : We do not conduct, without very good reason, security assessments on people under the age of 16.
Senator TROOD: We are talking about all people aged 16 and over. Is that right?
Mr Irvine : They will be subject to some form of security assessment process, yes.
Senator TROOD: What is the magic of the age 16 in this process?
Mr Irvine : That is the age that Immigration uses and that we use. I cannot explain it any further than that.
Senator TROOD: It is not your judgment?
Mr Irvine : From our point of view, the likelihood of someone being a substantial security risk as a minor as opposed to someone who is getting into the late teens, early twenties and thereafter is different.
Senator TROOD: Is that a judgment you have made as a security agency or is that an instruction you have received from DIAC?
Mr Irvine : No. It is a judgment we have made as a security agency. It is not hard and fast. If we had reason to believe that someone who claimed to be 15 was more like 24, or even 18 or 19, then we could conduct a security assessment on them.
Senator TROOD: In an answer to a question on notice, question 98, after the last estimates, you responded to me by saying that ASIO currently completes security assessments of IMAs in an average of 66 days. In light of this new system, do you have a metric on the time it is taking now?
Mr Irvine : Yes, but it is not a comparable metric anymore. The figure I quoted to you in the past was the amount of time it took for the whole range of cases to be referred to us for complex assessing and the time we delivered that assessment. That gradually blew out. The first time I appeared here it was about 36 days. As the numbers increased it blew out to something like 67 days. Today we have not really been long enough in the business under the new system to give you meaningful figures. What I can say is that a substantial number, and, indeed, probably the majority of people, will be able to be assessed under our streamlined processes quite quickly; in days or weeks but not 67 days. But the more complex cases, which were dragging our previous statistics down, could continue to take considerable time.
Senator TROOD: Another estimates committee was informed by the Inspector-General for Intelligence and Security just the other day about the complaints that she had received with regard to the timeliness of your processes. I think she told Finance and Public Administration—Dr Thom, of course—that she had received 861 complaints. Have you had an opportunity to respond to the complaints that she no doubt has put to you?
Mr Irvine : I am just looking for those figures. Without looking at the figures, my understanding is that IGIS found that there had been no error on the part of ASIO assessments. She also noted that quite a number of complaints were actually designed to hurry up the visa process. I meant to find the exact—
Senator TROOD: That was indeed Dr Thom's evidence. That explains some of the complaints, but there are clearly some within those complaints that might be regarded as legitimate and substantive complaints in relation to your activities, and I want to know whether or not you have a response to that.
Mr Irvine : The basic answer to that is that the streamlining processes that we have introduced are part of an attempt to address a number of problems, all of which stem from the fact that it was taking a very long time to process and to conduct the security assessments. We hope the streamlining that we have introduced will help. It will not entirely solve the problem—or at least it will not entirely satisfy those people claiming status—but it will go a long way to making the waiting times reasonable, with the exception, I have to say, of some of the more complex cases which security demands we investigate very, very thoroughly.
Senator TROOD: You said the adverse assessments figure had increased. Do you have any statistics on adverse assessments?
Mr Irvine : Currently, with regard to IMAs, overall in all these categories we have this year, just in the last nine months, issued—
Senator TROOD: Are we talking about the financial year?
Mr Irvine : No. In the last nine months we have issued 36 adverse assessments to the IMA cohort, the irregular maritime arrival cohort. I am sorry; you have to be very careful with these figures. We have issued 36 adverse assessments, period, across all categories. Of those, 28 were people claiming—they were irregular maritime arrivals. There were another couple claiming other sorts of permanent visas, and I think there were six adverse assessments issued in respect of people wanting temporary visas to visit Australia.
Senator TROOD: My understanding is that, while you provide an assessment, it is up to the department of immigration to decide what the consequences of that assessment are. Is that correct?
Mr Irvine : I think the way the regulations are written—certainly the practice—means that the Minister for Immigration and Citizenship would refuse refugee status or entry status to a person who has received an adverse ASIO assessment.
Senator TROOD: Finally, do you have any figures on the security assessments you undertake for non-IMAs—people who come to Australia via aircraft or in other ways and who might enter the country illegally? Maybe you do not know whether or not they enter illegally. The category of non-IMAs—
Mr Irvine : Let me give you the breakdown, as I have it at the moment. This refers from the period 1 July to 30 April. So they are pretty much up-to-date figures. Overall during that period in terms of visa security assessments, because we also do security assessments for a variety of other purposes, we have conducted exactly 26,267 and, of those, 14,818 were for temporary visa applicants—people wanting to come to visit Australia for whatever reason. In terms of people asking for permanent visas into Australia, there are 11,449. That figure of 11,449 is broken down into 1,331 IMA assessments. For people applying for protection visas onshore for whatever reason—in other words, not the irregular maritime arrival cohort—there are about 256. For the various other permanent visa applications—subclasses of that—there was quite a considerable number of 9,862. But I do not have details of them. So I think the key figures are 26,000 plus visa security assessments in the nine months to 30 May and, of those, 14,000, nearly 15,000, were people applying for a permanent visa to visit Australia.
Senator TROOD: Can you break down the 9,862, which is clearly a very large proportion of the 11,000-odd, into any significant cohort at all or not?
Mr Irvine : I cannot. And rather than speculate I would rather provide you with a list of the principal cohorts.
Senator TROOD: If you could please do that. Do the people to whom I referred in my original question—that is to say, people who might arrive at airports or by other means and who say, 'I'm a refugee and I want protection'—fall into which of these categories of the 26,000 or the 14,000?
Mr Irvine : I think, but I will check to make sure, they would fall under the category which I labelled 'onshore protection visas'.
Mr Fricker : There is no need to check that.
Mr Irvine : There is no need to check that. That is correct.
CHAIR: Senator Pratt has a question on the same issue.
Senator PRATT: I have a question on IMA.
Senator TROOD: Does she? I am happy to yield to Senator Pratt.
Senator PRATT: It is in your line of questioning. I know that you have made progress through all of those outstanding security assessments for irregular maritime arrivals, but I was unclear whether that was as a result of your existing processes or of the streamlined ones.
Mr Irvine : We had, if you like, a surge of approvals once we introduced the new risk management processes, because it enabled us to look at quite a number of the people who had been referred to us holus-bolus prior to that and who were banking up as a result of all the difficulties that we had with the huge numbers of people arriving last year. It is still too early to say what the long-term impact of that will be.
Senator PRATT: Whether it will enable you to keep up or do them very quickly?
Mr Irvine : I am certainly hoping it will.
Senator PRATT: I think you outlined that we would not expect the remaining outstanding assessments to be expedited as quickly because, clearly, they are the harder issues to resolve.
Mr Irvine : Basically, yes, except that the more resources I can put into the more complex cases—now that we are able to focus much more on the complex cases, I would like to think that we could move it a bit more quickly than we would have previously.
Senator PRATT: We have already had the department of immigration before us, and we did not really get a chance to match up the two discussions. I assume in a sense, because you have had a chance to get through that cohort, the pressure is now on them to go through what they need to do at their end in terms of placing people appropriately.
Mr Irvine : Yes, I expect so.
Senator BARNETT: We have had DIAC for the last couple of days, as you know, and a number of questions were asked of them which they have referred on to ASIO, so I am following up, and some of these questions relate to questions that Senator Cash has asked. You have already given a bit of background just in the last few moments, so there may be a bit of overlap. If there is, please alert us to that. How long is it currently taking to determine the security assessments of offshore entry persons, on average?
Mr Irvine : You are referring to IMAs?
Senator BARNETT: Yes.
Mr Irvine : I can tell you that the figure had blown out under the old scheme to approximately 67 days. At that time, the overall refugee status process, or protection visa process, from the time that someone arrived, say on Christmas Island, until the time that a person was either granted or denied a visa, was approximately 212 days or thereabouts. I cannot give you equivalent figures for the last couple of months, but I am hoping, as I said in answer to Senator Pratt and Senator Ludlam, that we should be able to speed up the overall time. I am also hoping that we can now get onto some of the more complex cases—and we are—to address those, but I cannot really give you average times at the moment.
Senator BARNETT: All right, because it is a little early to say?
Mr Irvine : Yes.
Senator BARNETT: When did this system first get introduced?
Mr Irvine : In essence just from late February-1 March or thereabouts.
Senator BARNETT: Okay. I know you have answered some of these questions on notice from February, but I am trying to get the latest details regarding IMAs in the period 2010-11 to date. How many have had ASIO security checks?
Mr Irvine : I will give you the figures over a number of years to give you an idea. In the period 2008-09, we did 207 security assessments. You will not be surprised that in the period 2009-10 we did 2,822.
Senator BARNETT: A tenfold increase, right.
Mr Irvine : In the period 2000—as I mentioned before—July to April of this year, the figure is about 1,300.
Senator BARNETT: That is very useful indeed. Are there any cases in which ASIO has changed its assessment of an IMA, having regard to further information or for any other reason? If so, how many and for what reason?
Mr Irvine : We have certainly changed our assessment in, I think, eight or nine cases, where we conducted an initial assessment quite quickly and subsequent information came to light that required us to issue a new assessment.
Senator BARNETT: Can you categorise that sort of information?
Mr Irvine : In what way?
Senator BARNETT: In any way.
Mr Irvine : Simply that we had more information come to light which made us look again at whether or not that person could represent a security risk coming into Australia.
Senator BARNETT: Over what period are you talking about - those eight or nine cases?
Mr Irvine : Over the last financial year.
Senator BARNETT: I want to ask you about the 'up to' 800 asylum seekers to be sent by Australia to Malaysia. What role will ASIO have in their processing, if any?
Mr Irvine : We have certainly not discussed that with the department of immigration and citizenship. I do not envisage us having a significant role, if any.
Senator BARNETT: Why is that?
Mr Irvine : We are not conducting security checks on people because they would not be coming into Australia. They would not have been given refugee status - the '1A met' status - which is when we start to kick in with security assessments.
Senator BARNETT: When do you start these assessments? If they are already here sitting at Christmas Island, when do you start the security assessments? You cannot leave it in limbo for an infinite period.
Mr Irvine : As I mentioned earlier, when we sought to streamline the process, we sought to cut out what was unnecessary checking. In other words, there is no need to check someone, to conduct a security assessment, on someone who is not coming to Australia. The decision was that we would check only those people who have been granted refugee status to enter Australia. That is the current policy. It was not last year. We checked everyone who arrived.
Senator BARNETT: When did this policy change?
Mr Irvine : The government made the decision very late last year. We worked through the implementation phase with DIAC in January and February, and introduced it in March.
Senator BARNETT: So basically you have to make an assessment as to whether they have refugee status. If they said 'yes' then you undertook your assessment.
Mr Irvine : Yes.
Senator BARNETT: But if the Malaysian government asked the Australian government to provide that assessment then I assume you would follow through on that directive.
Mr Irvine : We would not have conducted an assessment to be able to provide any information.
Senator BARNETT: No, but if DIAC or the government asked you to, you would obviously undertake the assessment.
Mr Irvine : If the government instructed us to undertake an assessment, we would. But I would not anticipate, in those circumstances, that that would happen.
Mr Fricker : An ASIO security assessment is produced for a prescribed administrative act. In the scenario you are portraying, I am not clear as to what the prescribed administrative action would be. Passage to Malaysia I do not think would constitute a prescribed administrative act. Applying for a visa is. Whether we do a security assessment or not would be based on for what purpose? The purpose for which we would grant issue -
Senator BARNETT: So if it is not for a prescribed security act, that is, coming into Australia as a refugee, then you are not legally able to undertake such an assessment? Is that what you are saying?
Mr Irvine : I am not sure that we are not legally able to. I would have to take this answer under advice. We are also required to, on our own cognizance, conduct security inquiries, and if that person were regarded as a threat to Australia or Australians then we might in fact conduct an inquiry anyway. Can I take that on notice? The legal area here is quite tricky.
Senator BARNETT: Why don't you take that on notice. With respect, one of the reasons we are asking this is because the fact is we do not know. There is much about this Australian Malaysian deal which is still somewhere up in the sky. Nobody really knows how it is going to operate. That is one of the problems. It was referred from DIAC to you so that is why we were following up. Let us have a look at the answer to your question on notice 151 from February estimates. You kindly provided the stats through to that period. It stated that from 1 July 2010 to 30 April 2011 ASIO had issued 20 adverse security assessments. Can you provide an explanation as to how many IMAs these assessments applied to and why each case received an adverse assessment?
Mr Irvine : In my previous answer to Senator Trood I in fact updated those figures. As I said before, the figures we are talking about are 36 adverse visa assessments across all visa categories. Of those, 28 - I do not recall the figure before - were irregular maritime arrivals.
Senator BARNETT: I do not think you said why they received the adverse assessment.
Mr Irvine : I will not go into detail on individuals or on individual adverse assessments. The adverse assessment was that this person was regarded as someone who could be a security threat to Australia under the terms of section 4 of the ASIO Act.
Senator BARNETT: So we can say that 28 of the 36 were a security risk?
Mr Irvine : Were assessed as security risks under section 4 of the act.
Senator BARNETT: What happened to them?
Mr Irvine : The process is that we issue an adverse security assessment and then they become the subject of DIAC procedures.
Senator BARNETT: Deportation in the normal course of events.
Mr Irvine : One would expect that people would be deported or another country would be sought.
Senator BARNETT: The Sydney Morning Herald in an article on 4 May states that 21 IMAs had received adverse security assessments. I do not know whether you are aware of that, but the question is: where are they now?
Mr Irvine : I cannot answer that question.
Senator BARNETT: Are you able to take that on notice?
Mr Irvine : I think that is a question that should be put to DIAC. That is a question that is actually in their bailiwick. We will have to go to DIAC.
Senator BARNETT: Yes, you would. But can you confirm that that is an active assessment as per that media report in the Sydney Morning Herald on that day?
Mr Irvine : I cannot confirm what the number was on that date but I can confirm that the current number is 28.
Senator BARNETT: Thank you. I am now moving to another area. It relates to wiki leaks. But as Senator Ludlam also has questions in this area I will wait.
Senator TROOD: Gentlemen, I wanted to ask you a couple of things about budget statements, which is where I intended to begin with this examination but was deflected by other things. To begin with the question of the staffing of the agency, the budget statement on page 238 says that the staffing is set to increase to 1,769 from 2011-12 and we were at 1,724 for the year just completed. I understand that, but what particularly intrigues me is the quest that is contained in your annual report to reach 1,860. My question is, first of all: is the 1,860 still the staff objective for the agency and why is it that you are quite considerably below that objective at this stage?
Mr Irvine : The figure of 1,860 was set and agreed by the government following a comprehensive review of the security intelligence function and resources devoted to it by the late Mr Allan Taylor. The government of the day accepted the recommendations and a figure of 1,860 by 2011 was set. That remains our objective. Over the last two years we began to fall behind in our recruitment to meet that objective. There are a number of reasons for this. The first was that, while we were able to meet the objectives quite reasonably in terms of overall numbers in the first years, they were, if you like, the easy recruitments. As we looked for particular categories, especially in the operational areas, we began to find that it was harder to get the number of qualified people that we wanted and we fell behind quite considerably. The reasons for that is that it is harder to get the right sorts of people in a very, very competitive employment environment, particularly for computer and IT specialists. That was certainly a problem. It is possible—and we have looked at this and we are rectifying things—that our advertising was directed towards the wrong areas.
Another reason was that in terms of net recruitment we stayed still during last year. Part of the reason is the rapid growth that had occurred earlier on was settling. Generation Y tend to move on and our separation rate went from a very, very low figure of two or three per cent closer to where you would expect it to be in the Public Service—somewhere between six per cent and seven per cent. We were actually losing more people while we were trying to recruit more people.
I am pleased to say that this financial year we will meet our target of between 45 and 50 net growth. What it all means is that our growth has actually been delayed, because those sorts of bad years, if you like, by 1½ years.
Senator TROOD: So the 1,860 is still the government approved figure for the establishment of the agency—is that correct?
Mr Irvine : There has been no change to that figure, no.
Senator TROOD: I see. You are struggling for the reasons you have explained to reach that mark.
Mr Irvine : Yes.
Senator TROOD: I see. Regarding the separation rate that you have referred to, which has risen, do you keep statistics on the reasons for separation?
Mr Irvine : We have started to keep statistics, but have really only done so in the last six to nine months. The reasons for separations are pretty standard and are in line with the reasons across the Public Service. These include transfer issues where people do not want to come to Canberra—we are an organisation that has state outposts, and movement between those and Canberra can cause issues—employment issues for spouses and desire for promotion and advancement in another job. Rarely do people separate because they are totally disenchanted with the organisation. It is the normal, standard reasons that explain mobility within the Public Service and between the Public Service and the private sector.
Senator TROOD: Have you undertaken any particular measures to try to improve your recruiting? For example, has there been any change in the criteria used for selecting staff?
Mr Irvine : No.
Senator TROOD: You said you had reconsidered your advertising efforts, but have you redirected those efforts so far? Are there other things you may have done to try to lift the numbers?
Mr Irvine : I think an important thing to say is that we have taken a policy decision that we are not going to lower our standards. Given the security and other considerations involved in an organisation of this nature, you do not solve any problems but are more likely to create problems for yourself if you reduce the qualifications and security standards that you require of people entering the organisation. We are looking at our advertising. We have also been able to process a lot more people; we are employing more psychologists to assist us in the psych part of the employment assessment process. There are a number of other issues that we are addressing.
Mr Fricker : We have introduced the new human capital framework strategic workforce plan in response to the factors that the Director-General was just talking about. We have looked at our entry-level program to think more about growing resources and growing people within the organisation as opposed to trying to find very highly specialised skills and expertise ready-made for us in the labour market. We have looked at career fairs and what we can do about reaching out and having a more overt presence as an employer of choice. We have looked at advertising on social media such as Facebook et cetera to try to attract with a more focused, intelligent recruitment process. We have been looking a lot at what we are doing strategically with our workforce to make sure we are not relying on the traditional methods of running a campaign, interviewing a batch of people and creating a merit list et cetera. We are looking at lateral transfers, talent spotting and whatever it takes to get the right people into the organisation and develop the qualifications and skills sets that we need in the right way without compromising our very stringent security and vetting standards.
Senator TROOD: I am glad you added that last bit, because the phrase 'whatever it takes' may not sit comfortably with the ASIO aspiration, I think.
Mr Fricker : Whatever it takes to get the right person in. It is all about differentiating ourselves as the employer of choice.
Senator TROOD: That is a better qualification, I think. You might try the Qantas magazine. I noticed on a recent flight that your competitors are advertising in the Qantas magazine. I do not know whether they have had any greater success by doing so, but they are certainly there in all their glory. Finally in this area, do you now have a target year when you think you may reach the 1,860, or is it something to do in the future?
Mr Irvine : If we cannot maintain what we look like achieving this year—that is, a net growth of about 50 people—we should achieve the target in the next year and a half to two years. Currently our head count is 1,735. The target is 1,860. I am hoping that in two years we will have met that target.
Senator TROOD: Good. Thank you. You may actually have answered this in earlier questions that were put to you by several senators with regard to the assessment of IMAs, but there is a budget measure of savings, in this case, of $6.9 million over four years through risk based targeting. Is risk based targeting the new procedure that you have introduced in relation to IMAs, or is it something else?
Mr Irvine : Frankly, all of our security assessments for all visa categories have to be based on a form of risk management—a form of assessment as to whether or not a person warrants more extensive checking. It is my intention that ASIO continue to devote extensive resources—and those resources were increased last year—to the IMA cohort because that is an area of great pressure. At the same time, for all the other visa categories, we have looked at our risk based processes and we believe that we can reduce resources in some areas to those processes.
Senator TROOD: So everything you do is risk based—
Mr Irvine : Yes.
Senator TROOD: Or risk managed, obviously. But you have managed to quantify $6.9 million in savings from the way in which you do business. Now, help me out if I have misunderstood this, but that would involve either a less comprehensive form of risk management or undertaking fewer assessments. It is not clear to me how you can save nearly $7 million without cutting some of the activity that is required with regard to security assessments.
Mr Fricker : Senator, we looked long and hard at where we could find savings measures without compromising our operational effectiveness. There is very labour intensive area in terms of handling referrals for protection visas from DIAC. We have just developed the framework, which we have described in some detail, that we have applied to the IMAs. It is the same application of the same techniques and philosophies to apply those same process improvements to that protection visa stream in order to accomplish those savings over the four-year period.
Senator TROOD: So this is largely in the area of IMAs, is it?
Mr Fricker : IMAs are—
Senator TROOD: Or is it applying IMA experience to other parts of the organisation?
Mr Fricker : Precisely.
Senator TROOD: I see. I understood you to be saying that the refinements you have undertaken there were in large part a consequence of DIAC referring requests for assessment at a different point in the assessment process. So that seems to be driven by an external agency, in part, rather than by any savings you can undertake in your own agency.
Mr Irvine : Senator, because we have been under pressure in the IMA area, last year we undertook a review of the actual bureaucratic processes that we go through internally, within ASIO, and we were able to streamline them to get a more effective result. So some of these savings will be achieved through process efficiency areas. We will be able to do things faster with fewer people, across the board. Secondly, we have looked at the actual risk management and asked ourselves whether in certain categories, including in the IMA category, we need to check those people to that particular degree, and there have been savings achieved there.
Senator TROOD: Does that mean over-assessing some individuals, Mr Irvine?
Mr Irvine : In the past, certainly with IMAs, yes, because the policy was that we assessed everyone to the fullest extent. Everyone got a complex investigative assessment as a matter of policy even though it was producing very, very few adverse assessments.
Senator TROOD: Obviously the assurance we need is that by changing these arrangements there is no danger that we are going to be releasing into the Australian community people who we would otherwise not be releasing into the Australian community, who present a risk to the Australian community.
Mr Irvine : In the intelligence business there can be no absolute guarantees, but we believe that the processes that we have introduced give us about as good an assurance as you can expect, and in some ways a better assurance because it is enabling us particularly in the IMA stream to focus more resources on the more complex cases and not to dissipate those resources in extensive investigations of cases that are clearly going to turn out not to be complex.
Senator TROOD: Thank you. That concludes my questions on that area but I have further questions for later.
Senator BARNETT: Just to follow-up, Mr Irving, where I was before, I have just a couple of supplementary questions. I am interested to know whether you fast-track the security clearance of asylum seekers from time to time and whether you have been instructed by government to do so from time to time?
Mr Irvine : I think you asked me a similar question last time I was before estimates. The answer to that question is that ASIO has been working on the priorities given to us by DIAC. There was a period last year when, because of accommodation pressures and so on, DIAC asked us to focus on the least complex cases in order to hasten the process through to permanent residency in Australia, and we did that. We are also asked from time to time by DIAC to hasten cases where DIAC assesses that there are particular humanitarian or other reasons, and we do that as well.
Senator BARNETT: In terms of this criteria that you come up with with DIAC, is that something you are going to be able to make available to this committee on notice in due course, or is that something you would consider operational?
Mr Irvine : I would consider that very much operational, Senator.
Senator BARNETT: All right. Let me ask another question then. Do you make an assessment based on geography? If the asylum seekers is from some particular geographic location, can you give a blanket coverage or comment that, yes, that country is not a security risk and therefore we will give them the big tick and we will not provide an appropriate assessment? Do you do it on a geographic basis? How do you make this assessment?
Mr Irvine : You have to make the assessment on a range of factors, and no one factor stands alone. For example, looking at the whole issue of visa applicants, you would think applicants from the United Kingdom, the United States or whatever—New Zealanders do not necessarily apply for visas in quite the same way—would not be security checked, but in fact it is possible that there is a need to check visa applicants from those sorts of countries. First of all, as I said in my opening remarks on this subject, it is not geographically based, it is not ethnically based and it is not religiously based. It is a compendium of factors.
Senator BARNETT: In toto, but each of those would be part of the assessment process. Is that correct?
Mr Irvine : Yes, some of those factors would be taken into account, but no one of them in isolation.
Senator BARNETT: But all of them in toto? They would all be factors to be considered.
Mr Irvine : Yes, and a lot of others as well, which I will not go into.
Senator BARNETT: What I have not asked you tonight is: how many security assessments has ASIO conducted for non-IMA applications? I am wondering if you have that figure. Do you have a comparison for the last couple of years?
Mr Irvine : If we talk about onshore protection visas and other permanent visa entry subclasses, in the period from July 2010 to 30 April ASIO conducted a little bit over 10,000 assessments.
Senator BARNETT: On notice, is that something you could break down for us in terms of the categories of those 10,000?
Mr Irvine : Onshore protection visas are about 256; other permanent visa subclasses—I cannot break that down any further, although I did undertake to try to come back to the committee with that—are approximately 9,800.
Senator BARNETT: Did you say you were going to come back to the committee with it?
Mr Irvine : I will see if we can; I am just not sure how detailed our metrics are in that area.
Senator BARNETT: Do you have a figure for the previous 12 months?
Mr Irvine : In the previous 12 months, for both of those two categories it was 11,000, and we are currently running at 10,000.
Senator BARNETT: Do you have a breakdown of onshore protection and other visa subclasses?
Mr Irvine : Yes, and they break down again. In the 2009-10 financial year, there were 989 onshore protection visas and 10,419 other visa subclasses.
Senator BARNETT: Thank you very much; I appreciate that. I will do my five minutes of questions on WikiLeaks, if I could. I will ask a few questions about that. Firstly, can you advise the committee of whether WikiLeaks has published any ASIO information, advice or evidence?
Mr Irvine : I do not think I can confirm that. These were United States cables. There is information of interest to ASIO in those, but I would not want to comment on the detail.
Senator BARNETT: Okay. Is Wikileaks a foreign political organisation as far as you are concerned?
Mr Irvine : Under the current terms of the ASIO Act, in terms of foreign intelligence, no, because we only deal with state sponsored threats to security.
Senator BARNETT: Do you have the power to collect and assess Wikileaks information? Do you make assessments of that Wikileaks information, and on what basis do you do so? This is obviously outside of Australia, and I am just wondering on what basis you have a certain power or authority to undertake that assessment.
Mr Irvine : ASIO has the power under section 4 of the act to conduct investigations and to advise the government in respect of threats to Australian security, and that would apply to any threat as defined under the act.
Senator BARNETT: If you provided a brief to your minister—you report directly to the minister, is that right?
Mr Irvine : The Attorney.
Senator BARNETT: Your report directly to him. If you provided a report to the minister and you marked it 'urgent', would you expect the minister to read such a report within, say, 24 hours? What would your expectation be?
Mr Irvine : My expectation and my experience is that the Attorney turns over documents provided by us in an appropriate and orderly way and in good time.
Senator BARNETT: I can understand where you are coming from. If it is marked 'urgent', what would that ordinary course of events be?
Mr Irvine : We do not actually mark things 'urgent'; if there is something that requires the Attorney's attention urgently, we take it to him.
Senator BARNETT: So you stand there and watch him read the paper or briefing paper?
Mr Irvine : No, not always.
Senator BARNETT: But you take it there and you leave the document and then depart?
Mr Irvine : It depends. We have regular arrangements for the minister to sign warrants, and that is almost always done on a sign-and-return basis: he reads them, signs them and hands them back to us—or his office does. Other submissions that we make to him, he reads in his own time.
Senator BARNETT: For sure; but if there is something extremely important that is a top security type matter—and I am not going into operational matters; I am talking about procedure and protocol—you would normally take the document or file and get a sign-off that it has been collected?
Mr Irvine : Those are the arrangements that we have with the Attorney. They have worked extremely well. If you had another Attorney he may want to do things differently, but overall the turnaround of documents with the Attorney's office is entirely proper and appropriate.
Senator BARNETT: Would you call it prompt?
Mr Irvine : Yes, I would.
Senator BARNETT: If there was a matter that you would consider high security and very important, would you consider his attention to such a matter prompt within, let us say, 24 hours?
Mr Irvine : Frankly, if the matter was urgent, I would draw it personally to the attention of the Attorney.
Senator BARNETT: And it would be dealt with promptly.
Mr Irvine : It always has been, yes.
Senator BARNETT: Finally, if I could just ask about your advice on the Wikileaks website—you have obviously reviewed that and assessed it. Do you peruse it from time to time?
Mr Irvine : I am not sure that we do as a matter of course. I am not sure what you want me to say. The answer to that question, frankly, is: I do not know, actually, whether we are looking at the WikiLeaks website but, were we or were we not, we would not be commenting.
Senator BARNETT: No. Fair enough. I am not going into operational matters. But what I wanted to ask was: you referred to the release of the US files, and that caused some broad discussion in the media and in the public arena, for sure, and you were very alert to that at the time—is that a fair comment? Is that true?
Mr Irvine : The matter was drawn to our attention and issues related to it were drawn to our attention, yes.
Senator BARNETT: As to what was released, would you consider that irresponsible of WikiLeaks?
Senator Ludwig: It does seem like we are asking for conjecture on another entity's purpose, and I do think we are now straying into operational matters, quite frankly, in terms of the detail.
Senator BARNETT: I certainly do not want to go into operational matters. I will conclude with this question relating to the WikiLeaks leaks, as it were: can you advise—and you do not have to answer this question, and you can take it on notice as well if you wish—whether they were illegal?
Mr Irvine : I cannot answer that question. I am not the appropriate, and my organisation is not the appropriate, authority to respond to that question.
Senator BARNETT: Then let me ask another question: did you make an assessment and provide your assessment on that material and that advice, that information, to your minister?
Senator Ludwig: It does sound like an operational matter.
Senator BARNETT: Is that operational? It did not sound like an operational question. I am asking if you provided advice on the WikiLeaks leaks that we have referred to in our discussions in the last 15 minutes to your minister?
Mr Irvine : Let me put it this way: yes, I have discussed the WikiLeaks issue and advised the minister on certain national security aspects in respect of that, yes.
Senator BARNETT: Thank you.
CHAIR: We are going to dinner now.
Proceedings suspended from 18:32 to 20:01
CHAIR: We continue with our examination of the budget estimates of the Legal and Constitutional Affairs Legislation Committee. We have before us an officer from ASIO, Mr Irvine. Senator Ludlam has the call.
Senator LUDLAM: I am going to pick up where Senator Barnett left off before the dinner break, which is on the subject of the WikiLeaks organisation. I understand you said it is not strictly within the current meaning of the ASIO Act that you would necessarily be able to surveil a civil society organisation like WikiLeaks. Is that the correct rendering of what you said?
Mr Irvine : There are no restrictions on the subjects of ASIO investigations except those prescribed in the act. It does not matter whether they are civil organisations, individuals or states. If there is a suspicion or a concern that there is a threat to security as defined in section 4 of the ASIO Act then ASIO can investigate that matter. It does so according to its perception of the seriousness of the potential threat, the imminence of that threat eventuating and so on.
Senator LUDLAM: In the instance of WikiLeaks, which we understand ASIO did give a bit of time to, did your assessment of the threat posed by that organisation meet those criteria?
Mr Irvine : I would not want to comment in any way on that. That is an operational matter. I would leave the answer there.
Senator LUDLAM: Can you tell us when ASIO started monitoring the work of WikiLeaks?
Mr Irvine : I am not even confirming that we have monitored WikiLeaks.
Senator LUDLAM: Is the capacity of ASIO to advise the government or to protect Australia's security limited, in your view, by your current legislation in relation to an organisation like this, which operates in a bit of a grey area?
Mr Irvine : No, I do not believe if WikiLeaks or any similar organisation were considered to be a threat to security that there would be any limitation on our ability to investigate that organisation.
Senator LUDLAM: Okay, and again just to test your view: you are not necessarily acknowledging tonight that you do believe they are a threat to Australia's security?
Mr Irvine : I am not confirming or denying; no, I am not acknowledging that.
Senator LUDLAM: That is what I thought. There was reporting in the media earlier this week, I think it was a piece in the Sydney Morning Herald, referring to a so-called 'WikiLeaks amendment' in the proposed legislation that is currently before the legal and constitutional affairs standing legislation committee, which effectively broadens the range of activities that ASIO would be able to undertake. Are you aware that officers of the department are referring to a specific amendment within that piece of legislation as a WikiLeaks amendment?
Mr Irvine : I read that article, frankly with some bemusement. The amendments to the legislation were considered long before WikiLeaks arrived on the scene in the way it did.
Mr Wilkins : Senator, were there officers of the Attorney-General's Department who called it that?
Senator LUDLAM: That I was referring to then? Yes. I do not think there is any suggestion that ASIO officers were referring to it in that way, but it was officers of the A-G's Department.
Mr Wilkins : I would not have referred to it as that.
Senator LUDLAM: Nobody is named in the article. Does everybody need to set on the record that they have never referred to the amendments in that way? Minister?
Mr Wilkins : No, I am just saying it is not the departmental view, let me put it that way.
Senator LUDLAM: Maybe the department might be able to help us out because you will not be in a position where you are compromising ASIO's operational secrecy as to whether it is the view of the department that the range of ASIO's activities need to be broadened so that they can directly assess the activities of an organisation like WikiLeaks.
Mr Wilkins : Our view would probably be that they have powers to do that if they need to already.
Senator LUDLAM: Based on whether they think the traditional definitions that have been there for a long while about whether our national security is being compromised?
Mr Wilkins : Based on section IV of their act.
Senator LUDLAM: Okay. The thing is that that bill proposes to expand the range of things that ASIO can investigate based on, for example, Australia's economic wellbeing, and that considerably broader range of activities could conceivably be encompassed under the framework of our economic wellbeing. That is much broader than national security, I hope you would agree.
Mr Wilkins : It is a component now of what we think of as national security. National security has expanded, as you have seen from the national security statements that the government has been putting out. There is now a much larger range of threats that would impinge on issues which we would refer to as national security.
Senator LUDLAM: Okay, so national security now refers explicitly to commercial—well, it does not yet, but it will if the bill goes through.
Mr Wilkins : It can. Not every commercial matter is going to be in that league.
Mr Irvine : Equally importantly, foreign intelligence can include all of those matters. The purpose of this bill is to align the definition of foreign intelligence given that ASIO has the power to collect foreign intelligence in Australia at the formal request of the Minister for Defence or the Minister for Foreign Affairs.
Senator LUDLAM: Mr Irvine, have you read the Law Council's submission to this committee on that bill?
Mr Irvine : No, I have not.
Senator LUDLAM: I commend it to you. They have used unusually strong language for the Law Council, which is a reasonably conservative organisation, in relation to these particular amendments that I am referring to that say, 'We'll give you virtually unfettered power which has two effects'. Firstly, it makes it very difficult for the parliament to know what ASIO is up to because at the moment, as we have discussed before, you are constrained to a relative narrow range of activities and these are to be substantially broadened, and, secondly, it also makes it difficult for the parliamentary joint committee and the IGIS to assess whether or not you are meeting your benchmarks because the benchmarks will henceforth be—
Mr Irvine : May I interrupt there? It does not make it difficult for the IGIS; the IGIS has unfettered access to all ASIO records, files and activities.
Senator LUDLAM: But what the IGIS does is assess whether you are in compliance with your act or not.
Mr Irvine : Exactly.
Senator LUDLAM: That is their job and the act henceforth will say: you can do more or less anything you like as far as the Law Council's reading and seriously undermines the role of the IGIS. If you have not seen the submission, I know it is going to make it slightly difficult to comment on, but it is very, very strong language, and only they have unfettered access to your records but they cannot do anything if there is no apparent breach because you are operating virtually unfettered.
Mr Wilkins : Senator, can I perhaps get Tony Sheehan to address that.
Mr Sheehan : Thank you. Going back to Mr Irvine's point: the amendment to which the senator is referring in relation to the definition of foreign intelligence will not give ASIO unfettered powers; it relates to the definition of foreign intelligence that allows a request to come through for ASIO to collect in accordance with all the current limitations that are otherwise honoured in respect of collection of foreign intelligence, which includes the requirement for the Attorney to issue a warrant for that purpose. It does not provide unfettered powers to ASIO in that respect.
Senator LUDLAM: Have you reviewed the Law Council's submission or any of the submissions that have come through to this committee on this?
Mr Sheehan : I am aware of it. Mr McDonald knows the Law Council review in more detail.
Mr Wilkins : Do you want to pursue it?
Senator LUDLAM: It looked as though Mr McDonald was going to address that question.
Mr G McDonald : I think one of the main things to note is that this definition is not used. It has been used previously in other contexts such as with other intelligence and security agencies. It needs to be understood that this is not for any sort of willy-nilly circumstance; it is actually to do with our national economic wellbeing, so it would have to be something of considerable importance.
Senator LUDLAM: I am sorry: importance to who?
Mr G McDonald : In terms of our national economic wellbeing, Senator.
Senator LUDLAM: What kind of criteria would you use to gauge that?
Mr G McDonald : An example of that would be—and this is something that people do have in mind with these amendments—is major cyberattacks, for example. Nowadays much of our industry and much of our economic infrastructure, which is very, very connected to our national security, is owned by the private sector as well as the Australian government, the state government and the like and they can be targeted by individuals, not other countries, who could threaten our national economic wellbeing. A major organised crime syndicate which had been effective in attacking, say, our banks could cause a loss of confidence in the banking system and then do considerable damage to our economy. That would be an example of something major of that nature.
Another one, which is particularly important, is to do with the proliferation of nuclear biological, chemical and conventional weapons technology. In the old days, everyone would think: that would have to be controlled or initiated by a foreign power, which is the traditional side of it; however, there is a lot of money in it. There is a lot of money in these sorts of activities, and so you could have individuals threatening our national economic wellbeing in that way.
Another final area, which is important, is the environment side such as illegal fishing operations or wiping out whole species of fish and the like. You could have a situation where you had individuals doing that and affecting our national wellbeing in that way. So they are just three examples of the sort of thing we are talking about. It is not like minor—
Senator LUDLAM: You gave me examples but not criteria. The fishing example in particular was interesting. Which of those things could ASIO not currently intervene in?
Mr G McDonald : There would be circumstances where they would not be able to intervene in all three of those.
Mr Sheehan : As we are talking here about the definition of foreign intelligence collection, it is a key point that we make consistent the definition of foreign intelligence with the other relevant legislation.
Mr Irvine : If I could just add a little bit there: section 17 of the ASIO Act specifically authorises ASIO to collect foreign intelligence within Australia on behalf of the government. This is done under warrant at the request of the Minister for Foreign Affairs or the Minister for Defence. So it is not ASIO rushing off and doing things in this foreign intelligence area off its own bat. It does it in collaboration with other authorised foreign intelligence collectors in accordance with their acts as well. Where we have a difficulty—and why this amendment is actually important—is where the definition of foreign intelligence under the Intelligence Services Act, which governs the activities of DSD and ASIS, is different from the definition of foreign intelligence under the ASIO Act. The reason for this is they were written at different times with different circumstances in mind. Why we are now concerned to align that definition is because we increasingly have to deal with the threats to security or other foreign intelligence collection requirements of the government in regard to non-state actors as well as to state actors. Currently, where the Minister for Foreign Affairs or the Minister for Defence would require us to collect foreign intelligence in Australia on subjects where the perpetrators or the subjects of that collection are non-state actors, we cannot do so.
Senator LUDLAM: I might leave this topic. I wonder—if it is not out of order, Madam Chair—whether I could invite Mr McDonald to review the two submissions that I have referenced—one from the Law Council and the other from Patrick Emerton from Monash University—and then direct correspondence to this committee on that bill. Both submissions are very strongly worded. If you do not already have something—Mr McDonald?
Mr G McDonald : I might be able to—
CHAIR: In relation to what inquiry, Senator?
Mr G McDonald : The inquiry that is afoot at the moment on the bill that is directly relevant to ASIO.
Senator Ludwig: Chair, I think we are now using estimates to further—
Senator LUDLAM: That's all right. I put the question through the chair, Minister.
CHAIR: I am just about to go there.
Senator Ludwig: It does seem a little—
CHAIR: If we have a current inquiry into that legislation, that is probably the best place. I am not trying to avoid your questions being answered but this witness will no doubt come before us in a public hearing and we will just gather all the information together on the transcript on one day in a consolidated form for all of us to use. So the legislation is—
Senator LUDLAM: If there is going to be a public hearing, then I will—
CHAIR: The legislation into the—
Senator LUDLAM: It is before this committee.
Senator Ludwig: I am happy for it to be foreshadowed and of course Mr McDonald is now seized of the issue—
Senator LUDLAM: That is helpful.
Senator Ludwig: What I am yet concerned about—
CHAIR: Every legislation we have before us we have a public hearing date planned—
Senator Ludwig: If it comes in through an estimates hearing, then it is open and there is not an opportunity as there is in a normal committee to maybe use the private areas.
CHAIR: Yes, and I think there are other members—
Senator Ludwig: Secondly, the other members who are not there might find the information beneficial. Thirdly, just because the information comes back through here to Senator Ludlam does not necessarily mean that it ends up in the committee to form part of the committee's information and recommendation.
Senator LUDLAM: I will take the chair's advice.
Senator Ludwig: But I do not want to—
Senator LUDLAM: Mr McDonald, if you are really keen—
Mr G McDonald : We have already written a full submission to that committee which covers all these issues, including the Law Council's submission. So we have already written a full submission on it for the committee.
CHAIR: We knew you would. That is great.
Senator LUDLAM: I will move onto another topic, if I may. Has ASIO cooperated with the Egyptian intelligence services in the past?
Mr Irvine : ASIO has quite a considerable number of foreign liaison relationships. We do not make those relationships public.
Senator LUDLAM: Okay. You might have to take the following question in a general sense. Has the recent turn of events in Egypt affected cooperation with security services there?
Mr Irvine : I would answer that in the way you would expect.
Senator LUDLAM: Okay. There is an inquiry underway by the IGIS into the actions of relevant Australian agencies in relation to the arrest and detention overseas of Mamdouh Habib, from 2001 to 2005. Has ASIO been called on to cooperate with that inquiry?
Mr Irvine : ASIO is cooperating fully with that inquiry.
Senator LUDLAM: Can you please sketch for me, to the degree that you are able, what that means? Is it documents, meetings? What is underway?
Mr Irvine : That means that the Inspector General of Intelligence and Security, in pursuing that inquiry, has sought access to documents and ASIO officers, and we have been cooperating fully.
Senator LUDLAM: If the IGIS inquiry finds that the relevant agencies—but I will confine this question to ASIO—did know about Habib's whereabouts during the period into which IGIS is inquiring, what kind of sanctions would apply to those who told parliament otherwise?
Mr Irvine : I think that is an entirely hypothetical question. I would prefer to await the report of the inspector general.
Senator LUDLAM: Has IGIS indicated how long that inquiry is expected to take?
Mr Irvine : I think the inquiry was due to finish by the middle of the year. That was the original conception, but I think it might be expanding out. That is really in the hands of the inspector general.
Senator LUDLAM: I understand. Are you aware of the contents of an 840-word statement by an Egyptian intelligence officer that names an Australian official who witnessed the torture of Mamdouh Habib in Guantanamo Bay?
Mr Irvine : I have read the press report of that.
Senator LUDLAM: Have you seen the original source document?
Mr Irvine : I have not, no.
Senator LUDLAM: Has ASIO had any contact with the intelligence officer from Egypt who is mentioned in the press statement?
Mr Irvine : That is a leading question, because it assumes that there was an Australian intelligence officer involved.
Senator LUDLAM: No, it was an Egyptian one. I do not think it was an Australian intelligence officer.
Mr Irvine : I do not know, because I do not know who the so-called Egyptian intelligence officer was.
Senator LUDLAM: So you do not acknowledge that he necessarily exists? You have seen the press reporting of that?
Mr Irvine : I have no corroboration of that at all.
Senator LUDLAM: Has ASIO done anything to investigate the allegations that he has made?
Mr Irvine : There is an entire inquiry going on.
Senator LUDLAM: Not by ASIO—by IGIS. Has ASIO done anything to investigate the allegations?
Mr Irvine : In the process of assisting the inquiry, we are providing all documentation to the inspector general, so we are letting the inspector general conduct the inquiry.
Senator LUDLAM: But ASIO has not done anything directory to corroborate, confirm or deny, or otherwise, that report?
Mr Irvine : I am sure that there are views in ASIO on the subject, but that really is a subject for the inspector general.
Senator LUDLAM: I recognise that there would certainly be views. That was a reasonably straightforward question as to whether you have done anything to corroborate the reporting.
Mr Irvine : I cannot answer that off the top of my head.
Senator LUDLAM: Did you want to comment, Mr Fricker?
Mr Fricker : I was just going to comment that there has been a great deal of information put before this committee, at previous estimates hearings, which has been quite a thorough and forensic description, with a time line presented and what information was known over that period. I was simply going to say that a great deal has been put on record. Everything we are able to put on record has been put on the record. We do not have anything further to add to that information. And of course, as the director-general has just said, this is the subject of an inspector-general's inquiry at the moment.
Senator LUDLAM: It does not actually go to the nature of the question that I am putting to you. Since the last estimates hearing this information has come to light. These allegations have been made, and what I am trying to work out is what action ASIO has taken since then, of your own motion, to confirm or deny the reporting.
Mr Irvine : The short answer is that we are relying on the independence of the Inspector-General of Intelligence and Security to examine the whole issue of Mr Habib's claims, and we are making all the information available to her.
Senator LUDLAM: So you have not attempted to independently verify that information?
Mr Irvine : I am not sure how we would.
Senator LUDLAM: You are a spy agency. That is what you do. I am not asking you to spell out how you would do it, I am just asking whether you have.
Mr Irvine : I rest my answer on the previous response.
Senator LUDLAM: Which is 'maybe'.
Mr Irvine : Which is: the inspector-general is inquiring into this matter; the inspector-general has all of the files, and access; and that, I think, will be conclusive one way or the other.
Senator LUDLAM: Are you aware that the alleged document was shown to government solicitors three days before they suddenly paid Mr Habib an undisclosed amount to drop his lawsuit claiming that Australia was complicit in his CIA engineered rendering in 2001, his transfer to Egypt and his subsequent torture?
Mr Irvine : I am not aware of that, no.
Senator LUDLAM: Is anybody interested in providing some info on this one?
Mr G McDonald : Yes, I can assist. I can assure this committee that decisions about the settlement were made prior to and without reference to such statements. I can absolutely assure you of that.
Senator LUDLAM: It's a total coincidence? Events occurred in 2001 and within three days of that document coming to light a payment was made? That is remarkable.
Mr G McDonald : I can absolutely assure you that that document was not taken into account or anything with that settlement. The interesting thing about these settlements is that there is a process leading up to them which takes some time to crank up. It is certainly the case that—
Senator LUDLAM: How long had this one been going for?
Mr G McDonald : This had been going on many weeks before. I do not have the precise dates before me but I know that it certainly went earlier than December.
Senator LUDLAM: Anything further to add?
Mr G McDonald : No.
Senator LUDLAM: Some time prior to December. Was a proposition put to Mr Habib or did he approach the Australian government for a settlement?
Mr G McDonald : I am in a position where the settlement and the whole discussions about that are subject to a confidentiality agreement. I think if we start going into details like that I might be in danger of creating difficulties there with that agreement.
Senator LUDLAM: All right. Just tell us as much as you are able, without trespassing on the confidentiality agreement, about the process that led up to and resulted in that settlement being offered and then accepted.
Mr Wilkins : I think it is probably a decision made by ministers in the context of cabinet based on legal advice from various quarters, and I do not think we can go further into it than that, actually. Certainly the material that you are interested in, to the best of my recollection, was never involved in it and never put before ministers and did not form any part of their reasoning. But it was a cabinet process and therefore there are very strict limits to where we can go on that. Besides, as Mr McDonald has said, some of the clauses of the agreement itself preclude opening up processes because of the confidentiality that we agreed.
Senator LUDLAM: That is very neat indeed. I wonder then if you could tell us—and maybe if you would like to, because some of this I am getting just from open-source reporting—whether, as to the reports that the document was shown to government solicitors prior to the settlement being reached, that was the case or not.
Mr Wilkins : I do not know.
Senator LUDLAM: It was reported that it was. Could you just confirm whether that is true or not.
Mr Wilkins : I cannot confirm that that is true. I do not know.
Senator LUDLAM: Mr McDonald, have you got anything that would shed some light?
Mr G McDonald : I would have to take that on notice. I do not know.
Senator LUDLAM: I have just got one or two other questions, so I will let you keep researching that one. Are you aware of the investigation of this parliament's Privileges Committee relating to information that was provided to this legal and constitutional affairs committee on the question of allegations of torture and the rendition of Mr Habib in 2008?
Mr G McDonald : Excuse me; I did not hear that question because I was checking my notes about the earlier question. I do have something in the note here to suggest that the Government Solicitor did have a copy of that statement. So I will just confirm that now. While I was looking that up I was not listening to your question properly, so I am sorry about that.
Senator LUDLAM: That is okay. Let us just confirm that, though. So in fact the government solicitors who are referred to in that reporting had cited the document referred to before the settlement was signed, but they had been in the process of reaching some kind of agreement for weeks before they had seen it?
Mr G McDonald : Yes.
Senator LUDLAM: My final question is on the Privileges Committee report that was related to evidence that was tendered to this committee years ago now—2008, I think; no, actually, it was well before that—on the question of allegations of the torture and rendition of Mr Habib.
Mr G McDonald : I am aware of the fact that there was a Privileges Committee report, yes.
Senator LUDLAM: I will come back for two other brief issues. One of them is the review of the intelligence community that was announced right before Christmas last year. The government announced the terms of reference for the 2011 independent review of the intelligence community. It covers the six security and intelligence agencies in Australia. Mr Irvine, can you just tell us how ASIO has been engaged with this review and what you are required to make available?
Mr Irvine : ASIO certainly fully supports the independent review of the intelligence community. We have been heavily involved in IRIC and activities related to the review. We have prepared a number of submissions for the review. I and my officers have met the two reviewers on several occasions. We have been able to show the reviewers aspects of our work that they have requested to see. I am not sure there is much else I can say, beyond the fact that, as I said earlier, we welcome the review and we are working closely with them to respond to questions and issues they raise with us.
Senator LUDLAM: Would you be required to make available materials to reviewers? Normally the only person who gets to see that kind of stuff outside your agency is the inspector-general.
Mr Irvine : I am not sure if we are necessarily required to, but we certainly would. If this review is going to be independent, objective and effective then they have got to see everything they want to see.
Senator LUDLAM: Okay. So there is—
Mr Irvine : If they were not, I would be explaining to them the nature of the sensitivity, and I would leave it to them to cite. Obviously, for example, the names of our sources and so on they would not be interested in.
Senator LUDLAM: I suspect not. For the establishment of the Counter Terrorism Control Centre in the last budget there was $9.1 million over four years, and that will be shifting into your headquarters. Is that correct?
Mr Irvine : It is in our current headquarters at the moment.
Senator LUDLAM: It will remain co-located when you move into the gigantic palace?
Mr Irvine : Yes.
Senator LUDLAM: Is the staffing still 10, or has it expanded since we last spoke about it?
Mr Irvine : I think the nominal staffing is 10; I do not think we have quite got to that number yet.
Senator LUDLAM: I think you said before that there would be seven from ASIO and one each from DSD, ASIS and the AFP. Does that still sound about right?
Mr Irvine : Yes, that is right. DSD, ASIO and the AFP have provided senior, high-quality offices to that control centre.
Senator LUDLAM: Nothing but the best. What is the control centre actually doing?
Mr Irvine : The purpose of the control centre to ensure that the government's counterterrorism effort both at home and overseas is properly coordinated between the various agencies who conduct Australia's counterterrorism effort—between the collectors of intelligence and between the consumers. It is responsible not simply for assisting in the coordination of the federal government effort but also for ensuring that the cooperation and coordination in the flow of intelligence backwards and forwards between federal and state authorities is optimal. One of the big problems in intelligence, particularly in relation to counterterrorism, is ensuring that the right piece of information gets to the right person at the right time; that is part of its job.
The other key element of the work of the CTCC is to establish the priorities for our counterterrorism effort, both at a strategic level and at what I will call a granular level in terms of individual investigations and so on. It is designed to ensure that the collectors of intelligence are collecting according to the right priorities, that we are coordinating the collection and that the collectors can look at those priorities and plan their resource dispositions accordingly. It also performs a role in evaluating the quite granular intelligence that comes in to ensure that the collectors are in fact meeting real, genuine requirements.
Senator LUDLAM: Thanks very much. I think that is probably the most expansive statement that we have heard on that to date, so I appreciate that. Mr MacDonald, I have one final question for you on the subject we were discussing a few moments ago. You just confirmed for us, I think, that the Australian Government Solicitor cited that document a short while before—you did not acknowledge a time period—the settlement was reached. At what point did they become aware of the existence of the document?
Mr G McDonald : That is all I know about it, actually. I think they probably received it after we had organised the meeting to discuss the settlement, so it was provided to them very close to that meeting.
Senator LUDLAM: What I am interested to know is at what point they became aware that such a document even existed as opposed to when they saw it.
Mr G McDonald : I do not know the answer to that. I think it was at that time. I can check with the Government Solicitor as to whether they were aware of it before then, but I imagine it would only have been then.
Senator LUDLAM: I do not know that that is necessarily a safe assumption, so can you take that on notice for us, please.
Mr G McDonald : Yes. That is why want to take notice.
Senator LUDLAM: Did they become aware of it at the point that it was presented—'here it is'—or had they been aware of it for weeks, perhaps even as early as December.
Mr G McDonald : Certainly my knowledge is that they were aware of it only then, but I will check.
Senator LUDLAM: Much appreciated. Thanks for your time.
Senator TROOD: Mr Irvine, in the last estimates I put on notice a question to you—I think it was question 102—about the Hizb ut-Tahrir organisation. You responded to my question by saying that, in essence, the Department of Immigration and Citizenship was the responsible authority in relation to visas and that your attention was not drawn to the presence of these Hizb ut-Tahrir members in Australia, since they had not been referred to you by the department—that is, DIAC—and they were not a proscribed organisation, and therefore they did not come to your attention. I think that summarises the thing.
Mr Irvine : Yes.
Senator TROOD: This may not surprise you, but I have received from DIAC a response to another question, in which they said these kinds of questions about Hizb ut-Tahrir should be put to ASIO. So I am coming back to you on some matters. I understand your answer and the process that you are outlining to me there. What I cannot understand is why these individuals, or this organisation, apparently have not come to your attention, because it is a very unsavoury organisation in many ways. In particular, my understanding is that there is a movement alert list, and I think their names were not on the movement alert list, so that was presumably the reason why they did not ask you to check their credentials. But, as I am sure you are well aware, there are arrangements under the Migration Act in relation to people of concern, and there are various criteria that apply to people of concern, one of which is the holding of extreme views such as belief in the use of violence as a legitimate means of political expression. You are no doubt very familiar with Hizb ut-Tahrir's activities, or at least its rhetoric—its polemic, in fact—but perhaps I can just give you the flavour of some of the things they advocate. There was a report in a newspaper in London in 2007, in which the global leader of Hizb ut-Tahrir, Ata Abu Rashta, said the group called for the 'destruction' of Hindus living in Kashmir, Russians in Chechnya and Jews in Israel:
The Caliphate … will liberate the countries and the people from the influence of the Kafer … and its allies and the tyranny of its men and followers.
Elsewhere they have said things like:
When we talk about the question of violence, we mean in regard to the establishment of an Islamic state; it's not a case of we're against violence, full stop … When it comes to Israel, it's a completely different issue … Israel has to be removed militarily and HT supports any and all attempts to do so.
The rhetoric goes on and on and on, advocating violence against a whole range of seeming opponents of Islam, and in particular violence directed at Jews and the Jewish state. Perhaps you can help me and explain why the people who are members of an organisation of this kind are not amongst those who would be people of concern and would therefore excite the attention of the authorities when they seek a visa.
Mr Irvine : Senator, I cannot explain why it was that those people were not drawn to our attention. But had they been drawn to our attention, we would nevertheless have had to look at them in terms of the organisation to which they said they belonged, and that organisation is not a proscribed organisation in Australia despite the extremely unsavoury, unpleasant nature of their various claims. It is not proscribed in the United Kingdom either, interestingly. The organisation is entitled to hold meetings and conferences like any other group, and to invite people to it. Had we been asked to make a judgment on that, I would not speculate on what that judgment would be because it would very much depend on the individuals, what we knew about the individuals, and so on.
Senator TROOD: I do not invite you to do that, Mr Irvine; I appreciate the limitations of your position. The DIAC fact sheet about these matters advises that the movement alert list is a result of the department's liaison with security agencies, among others. Now that clearly is you.
Mr Irvine : The movement alert list is a list of individuals—it is a very fallible document; there are people who perhaps should be on it who are not—and it is an immense assistance to us. ASIO has quite a significant role in placing names on that list, but if people are not on that list, they would not necessarily be drawn to our attention.
Senator TROOD: No, but you are not telling us are you that just because an organisation is not proscribed that the members of that organisation would not find themselves on the movement list or subject to visa restrictions?
Mr Irvine : No, I am not saying that. But nor am I saying that every member of that organisation would necessarily be on the list.
Senator TROOD: No, I appreciate that. The things that this organisation advocates, I think we have used similar language—unsavoury and a whole lot worse—
Mr Irvine : Obnoxious I would say.
Senator TROOD: I would agree with that characterisation as well, deeply obnoxious. In fact, I would think it goes further; they incite violence against particular members of the community. Are these not matters that come to your agency's attention? Are these not matters that would excite your attention in relation to individuals who are part of an organisation of this kind?
Mr Irvine : To answer that question I would be treading quite closely on operational matters, but you can assume that where we have evidence or suspect that there is a significant threat to security, and that matter were brought to our attention, that we would have a look at it. What our judgment would be, given the particular thresholds we have, which are designed to protect the individual against unnecessary or gratuitous penalty, I cannot predict.
Senator TROOD: I understand that and I applaud your attention to human rights, which is what you are underscoring here in your answer to this matter. This particular organisation may not be proscribed here and it may not be proscribed in Britain, but it seems to me stretching credibility, given the relationship that exists between ASIO and British intelligence agencies, that this organisation and the people who belong to it, and these two individuals, have not been previously a matter of some interest to you.
Mr Irvine : I am not aware of whether the two individuals were on the movement alert list or not; I suspect, from the case, probably not. We do cooperate closely with allied agencies, but I do not think you must necessarily assume that every individual who comes into Australia will be subject to that level of scrutiny.
Senator TROOD: Mr Fricker, are you keen to add to this matter?
Mr Fricker : Just a couple of points of detail. I am just reading the answers that we provided to you and I think we have fallen into an assumption which I am not sure we made. I do not think we ever confirmed whether we did or did not receive a security referral from Immigration on those individuals. I am just a bit concerned that we have slipped into a pattern of speech where we are all saying that they were not referred to us and we did not examine them. I do not think we actually confirmed whether or not those individuals were referred to us.
Senator TROOD: I had thought that you had responded previously that part of your explanation as to why this matter was not investigated was that DIAC had not brought it to your attention and therefore you had no knowledge of it.
Mr Fricker : I am just reading our answer here. We described the criteria that applied, as we have described earlier in this session; the system by which they may be referred to us; and then, if they were referred to us, we would have applied our security assessments.
Senator TROOD: As I would expect you to do.
Mr Fricker : But I do not think we have said whether or not these individuals are on the movement alert list and I do not think we have said whether they were or were not referred to us. Just as a point of detail, I do not wish us to create the record that—
Senator TROOD: It may be that DIAC was of that mind.
Mr Fricker : It may be the case, Senator. I am simply saying, for the purpose of this discussion, we are not going to the specifics of those individuals and whether they are—
Senator TROOD: I will not delay the matter but it does concern me that this has occurred; that seemingly these individuals were allowed to come to the country, seemingly without any attention taking place in relation to their arrival in the country or indeed their departure.
Mr Irvine : We would not be able to comment on any action or activity that we undertook in relation to that conference or any other.
Senator TROOD: I think I am right that in fact it was DIAC who informed the committee that they were not on the list and therefore they were not referred.
Mr Irvine : That may be.
Senator TROOD: Which is why it did not come to your attention.
Mr Irvine : On the information available to me, I just do not know.
Senator TROOD: There seems to have been, on the face of it, a systemic failure here in terms of looking at these individuals. It may be that, as you apply your criteria, they would have been given a visa and they would have come here and all the interests were concerned; but that they can come from an organisation like this and nobody pays any attention to them is a matter of concern. Have you had reason to investigate the matter since I raised it previously?
Mr Irvine : I would not comment on that.
Senator TROOD: I leave on the table my concern about what seems to be a failure here and perhaps invite you, if you have not done so, to deal with my concern any way you think appropriate.
I have one other matter to raise. I want to refer you to a matter which gained some notoriety earlier this month, and that is the whistleblowers who appeared on Lateline talking about their activities in the defence security agency. I realise that that is not a matter directly under your interest, except insofar as these three whistleblowers implicated ASIO in their revelatory interview with Lateline. As you may know, one of the accusations or allegations they made was that they falsified documents while they were serving in the agency, and that of course meant filling in gaps where people had incomplete biographies. My understanding is that some of those individuals' records were sent to your agency for examination. Can you tell us whether or not those falsifications were picked up by your organisation?
Mr Irvine : I am certainly aware of the claims made on Lateline by three individuals that false information in relation to security clearances had been passed to ASIO, and we took those allegations very, very seriously. The Department of Defence is actually the lead agency in this matter, and we are working with it. I understand that the claims of inappropriate vetting practices have been reviewed by the Department of Defence and have not been substantiated. I think that is probably all I can say on this matter. It is our job to conduct various checks and vets on information passed to us by the Defence Security Agency, and to the best of my knowledge the inconsistencies that those three individuals have alleged have not been substantiated.
Senator TROOD: So you regard the assessment by the defence department as conclusive that there were no compromises in the process, and you therefore have not investigated any further—is that right?
Mr Irvine : We have certainly looked at the issue from our point of view and, as I say, we have not substantiated it. In the absence of any other information, if that has been the result of a Defence investigation, until it proves otherwise we would accept their judgment.
Senator TROOD: Have you investigated the processes by which you receive requests from the DSA to undertake vetting, or have you investigated some of the cases which were alleged to have been compromised?
Mr Irvine : We do not know what cases are alleged to have been compromised. I assume that has been the subject of the Defence investigation. As for the processes, I am not sure that this is, from ASIO's point of view, an issue of process. The allegation goes to the accuracy of information that was passed to ASIO by Defence.
Senator TROOD: Yes. Have you tried to test the accuracy of that, or have you, as I said, regarded the investigation by Defence as conclusive that there were no inaccuracies?
Mr Irvine : In the normal course of our following up on information passed to us by Defence, we would in fact be looking at the accuracy of some but not all of the information in the Defence files. At the moment I can say that we have not found anything to substantiate the claim.
Senator TROOD: But you have undertaken an investigation in light of these revelations—is that correct?
Mr Irvine : We have certainly looked at the issue, but I cannot tell you the extent to which we have gone through the individual cases.
Senator TROOD: I guess what I am seeking from you, Mr Irvine, is an assurance that what are quite serious allegations that have implications for your agency have been taken seriously—and you have given me that assurance—and have been acted on as a consequence.
Mr Irvine : We have certainly been in touch with the Department of Defence to make sure that they have taken the accusations seriously as well.
Senator TROOD: I see. Good. Mr Fricker?
Mr Fricker : I think that just concluded the line of information. I was simply going to add that we have not undertaken, and we do not intend to undertake, an investigation of the Security Vetting Agency's processes. Obviously, after the allegations were made, we sought assurances from the defence department about their investigation of those allegations, and we were sufficiently assured by Defence that those claims had not been substantiated and they were looking into it.
Senator TROOD: I am sure it will not surprise the defence officials to know that this could well be an issue that we raise with them next week.
Mr Fricker : Yes. All of the agencies involved in doing highly classified security clearances, top-secret security clearances, are very closely aligned through an organisational inter-agency security forum, where we regularly meet to ensure that we are all meeting agreed minimum standards for security vetting. There is ongoing scrutiny of each other's practices, and we regularly report through the Secretaries Committee on National Security on the performance of security across those agencies. So these things are monitored and managed on an ongoing basis, and there is a well-established network of the security vetting areas to ensure that we can deal with instances such as this.
Senator TROOD: Mr Fricker, were these matters relating to vetting for top security clearances or did they involve other security levels as well? Do you know?
Mr Fricker : I cannot be sure of those details. I have a general feeling but I am not sure of the actual details. If you were intending to put that to Defence, it would probably be the most appropriate agency to ask.
Senator TROOD: Well, do you typically do vetting at all levels on behalf of the DSA?
Mr Fricker : ASIO's role in the process is as follows: Defence do most of the clearance process, and then at one point in the process the details of the applicant for the clearance are passed to ASIO for us to check against our databases and our data holdings. So, whatever the information is that we receive from Defence, we use that information to check and we return the result to Defence, advising whether or not there is any match with our holdings. So the search and the matching we conduct are based on the details provided to us by Defence.
Senator TROOD: I see. And that could be investigation you are undertaking into an individual for the various levels of vetting that they are seeking; is that right?
Mr Fricker : We perform that check, and the final clearance level is given by the Defence Security Authority.
Senator TROOD: Okay. Thank you.
CHAIR: Mr Irvine, I have a few questions for you. I want to ask you if you have read or are aware of an article that was in the Sydney Morning Herald on 14 April entitled 'Britain is taking another look at its anti-terrorism laws, so why can't we?' It was a commentary by George Williams about Britain now conducting a major revision of its antiterrorism laws 'to better protect democratic rights'. I am just wondering if you are aware of that, because I think in that article there is some sort of unwritten or assumed view that perhaps there are some safeguards and accountabilities that we do not have in place. I wanted to ask you about that to try and correct the record or put some thoughts on the record, really.
Mr Irvine : Yes, I have read that article.
CHAIR: Let me quote from it. It says:
For example, Australia is alone among comparable nations in granting its intelligence agency ASIO the power to interrogate citizens who are not suspected of terrorism for the purpose of gathering intelligence. People can be detained for up to a week and forced to answer questions on pain of imprisonment.
I think you can answer some questions for me without in-depth knowledge of the article—have you read the article?
Mr Irvine : Yes, I have. I vaguely recall reading the article, yes.
CHAIR: Okay. Let me put it this way then. Do you believe Australia has become complacent about its antiterrorism laws?
Mr Irvine : No, I do not. First of all, let me say that the government is in some ways addressing this issue with the fact that it has appointed an Independent National Security Legislation Monitor, who has been empowered to inquire into various aspects of our counterterrorism laws, including the question and detention regime. As I recall that article, it made quite a number of assertions—and I do not think these are the exact words—implying that our counterterrorism legal regime was somehow extremely draconian and so on.
CHAIR: I think the view is also that it is a bit hotchpotch and that we have just reacted on each occasion, rather than had some sort of broader, visionary plan in comparison to Britain, which is now trying to do that. I think what it does not do—although I am sure the author is aware of this—is acknowledge the safeguards that already exist. I was going to ask you about that for the record.
Mr Irvine : I agree with that characterisation of that particular article. It does worry me from time to time that, when there is debate about the counterterrorism laws, insufficient attention or consideration is given to what you call the safeguards. If we are going to debate those laws, I think it is important that we do understand the context in which, and the rules and regulations under which, they must be implemented. For example, the fact is that ASIO may request a warrant to question and, in some cases, detain a person for the purpose of obtaining intelligence in relation to terrorism. That is done when relying on other methods of collecting intelligence would be deemed ineffective. The second thing is that detention is by the police; it is not by ASIO. It may only occur when there are grounds for believing that the individual may alert someone to an inquiry that is going on, may fail to appear or is not able to help, making it necessary to seek such an order.
CHAIR: So the laws are not draconian, in your view?
Mr Irvine : That is a matter for debate.
CHAIR: For civil liberty debaters.
Mr Irvine : My point is, if you are going to have the debate, you ought to also debate it in the context of the safeguards that are in place. The statute specifically requires that people subject to questioning must be treated with humanity and respect for human dignity. They must not be subject to cruel, inhumane or degrading treatment by anyone exercising authority under the warrant. The Attorney-General must consent to the issuing of the warrant. The warrant can only be issued by a judge or a federal magistrate if that officer, the judge or federal magistrate, is satisfied that it will substantially assist the collection of intelligence that is important in relation to terrorism.
Another point that is often ignored is the fact that the questioning of the individual must take place in the presence of a prescribed independent person—a former judge or, alternatively, a current judge, President or Deputy President of the Administrative Appeals Tribunal. The person may contact a lawyer, who may also be present for questioning.
CHAIR: I think the laws are quite comprehensive, and we probably have a number of examples. So there are safeguards and accountabilities in place that oversee the powers of the police and, in particular, ASIO powers?
Mr Irvine : And regulate them quite carefully as to how that questioning process is to be carried out.
CHAIR: Is this where our laws are then far more robust than the current British laws that are in place?
Mr Irvine : I would not want to comment on current British laws, but let me say that I think our laws do provide appropriate safeguards. There is more: you can have a video of the questioning process, the Inspector-General of Intelligence and Security may be present at the time, and so on.
CHAIR: So you would not be suggesting we would wind back any of our counterterrorism laws, particularly in light of the fact that bin Laden is now dead?
Mr Irvine : The nature of our counterterrorism laws ultimately is a matter for the government. My view in regard to the questioning powers is that they have been used, I think, on 19 occasions and have assisted considerably in a number of investigations. We have not used and have not needed to use—and I think this is a good thing—the powers in respect of detention.
CHAIR: But one thing the article does not say—which you would now say publicly for us on record—is that there are stringent safeguards and accountabilities in place that are very well regulated in relation to counterterrorism.
Mr Irvine : I believe that there are stringent safeguards in place, and if there is to be a debate about these laws then you need to take that into account. I would make one other point too if I may, and that is that these coercive powers are not solely the preserve of the ASIO writ and the counterterrorism rules. Coercive powers of a similar sort rest with the ACC and the Ombudsman. The Inspector-General of Intelligence and Security has the power to compel people to give information. I think the ACCC has similar sorts of powers, but not exactly the same, and I do not know what the safeguards with those particular powers are.
Senator BRANDIS: Very few, Mr Irvine; there is no end of coercive powers in commercial agencies, believe me.
Mr Irvine : Thank you for enlightening me, Senator.
CHAIR: Thanks for clarifying that. I think there is a need to put some additional comments on the record in relation to that article.
Mr Irvine : Thank you.
CHAIR: I think we do not have any other questions for ASIO.
Senator BRANDIS: Yes, we do.
CHAIR: You do, Senator?
Senator BRANDIS: I do. Let me come down to the front stalls.
CHAIR: I thought we were at the pointy end of your questioning, Mr Irvine. I am sorry.
Senator BRANDIS: Mr Irvine, how many security assessments did ASIO conduct in 2010 in relation to suspected unlawful non-citizens arriving by boat?
Mr Irvine : The figures for 2010 for what we call 'irregular maritime arrivals'—
Senator BRANDIS: That is your term, is it?
Mr Irvine : It is not mine; it is the term the government is using.
Senator BRANDIS: Whatever happened to 'suspected unlawful non-citizens'? Anyway, irregular maritime arrivals—yes?
Mr Irvine : In 2010, the number of security assessments ASIO conducted specifically and only in relation to those was 2,822. That is 2009-10.
Senator BRANDIS: That is the financial year, is it?
Mr Irvine : Yes, I am going by financial year if that is all right.
Senator BRANDIS: Let us go back one, then. What about 2008-09?
Mr Irvine : In 2008-09 it was 207.
Senator BRANDIS: So, between 2008-09 and 2009-10, the number jumped from 207 to 2,822.
Mr Irvine : Yes.
Senator BRANDIS: Reflecting the sharp upward spike in the number of irregular arrivals, of course.
Mr Irvine : That is correct.
Senator BRANDIS: You would not have the figures for 2010-11, but what are the most recent figures you have?
Mr Irvine : The most recent figures I have go from 1 July 2010 to 30 April 2011, so they are less than a month old, and the comparable figure is 1,331.
Senator BRANDIS: Which, if annualised, would be a little less than—
Mr Irvine : Slightly less.
Senator BRANDIS: Slightly less, but still very substantially higher than the year before that. Of the assessments that were carried out in each of those periods that you have identified, how many of the assessments were negative assessments—in other words, to put it in an informal way, in how many was the person regarded as a security risk?
Mr Irvine : The term of art is, 'They were issued with an adverse security assessment.'
Senator BRANDIS: Well, how many adverse assessments were there?
Mr Irvine : In 2008-09, there were two. Sorry—we are only talking about maritime arrivals, right?
Senator BRANDIS: Yes.
Mr Irvine : Boat people.
Senator BRANDIS: Boat people.
Mr Irvine : There were none. In 2009-10, there were five.
Senator BRANDIS: And in 2010 until April 2011?
Mr Irvine : Twenty-eight.
Senator BRANDIS: That is interesting. Do you have a view—and, if you do, are you able to share it with us—as to why the negative security assessments on an annualised rate were roughly six times as high on a slightly lower number of irregular maritime arrivals in the most recent period?
Mr Irvine : I think I have to give you a very general and perhaps somewhat obvious answer: we have been dealing with cohorts of people who have provided, if you like, more subjects for adverse assessments; that is one thing. The second thing is that, during the course of 2009-10, at the request of the department of immigration, we were focusing a very considerable amount of assessment activity on what we will call the less complex cases.
Senator BRANDIS: You might have to flesh that out.
Mr Irvine : I have been through this at some length before but, prior to the beginning of this year, we were assessing as a complex case every person coming through, and they were receiving the full investigative assessment. And we were putting, as it turned out, a lot of effort into assessing people who, after a short while it was clear, were not going to get an adverse assessment. Since then, and particularly in the last three or four months, we have been able to devote our attention to what I will call the more complex cases, the cases that had been put off because we had to work on DIAC's priorities—
Senator BRANDIS: I see. So are you saying that some of the 28 would have been in the previous year's figures but for the fact that the assessment of those people was delayed because of the large numbers?
Mr Irvine : I suspect that almost all of them would have been—I suspect. But certainly a very large number of them would have been.
Senator BRANDIS: But does that mean, correspondingly, that there would be people in the July 2010 to April 2011 period in the same category—that is, people whose assessment has been delayed or deferred because of ASIO trying to keep up with the volume of casework?
Mr Irvine : Yes, and because of our new streamlining processes we are now able to devote a much greater amount of our resources to these complex cases and have been doing so for the last three months. That is what is throwing up, I think, more adverse assessments.
Senator BRANDIS: I suppose that the more of these assessments ASIO does the greater the body of knowledge that it accumulates in relation to the circumstances of different cohorts of these people, so the more efficiently assessments can be done.
Mr Irvine : In principle, yes; generally speaking, yes.
Senator BRANDIS: Were all these assessments done on Christmas Island, or were some of them done at onshore detention centres?
Mr Irvine : The assessments are mostly done in Canberra, with interviews and information collection in the location where the subject is. But from our point of view—
Senator BRANDIS: But at what point, if at all, do ASIO officers conduct the interviews?
Mr Irvine : At a point in the investigation. From our point of view, it does not really matter whether the person is on Christmas Island or in a detention centre in Australia; our assessment for the purposes of that person's being granted permanent residence can take place anywhere. The interview, if there is an interview—and there usually is—can take place anywhere.
Senator BRANDIS: But you do not usually bring these people to Canberra, do you?
Mr Irvine : No; we go to them, wherever they are.
Senator BRANDIS: That is what I thought. Therefore, ASIO officers conduct the interviews, and, on the basis of the interviews, they might match other data that you have available to you, and the document might be finalised here in Canberra. But I am just talking about the interview stage with the regular maritime arrival. In each of those cases, an ASIO officer attends upon that person where they happen to be detained. Is that correct?
Mr Irvine : Where a person has been referred to ASIO for a security assessment, we will interview that person wherever that person is.
Senator BRANDIS: Yes. That is what I was getting at. How many officers—and by that I mean equivalent full-time officers—does ASIO have at the moment deployed to the task of carrying out security assessments in relation to irregular maritime arrivals?
Mr Irvine : I cannot off the top of my head give you that figure; it would probably be encroaching on the operational detail in terms of the disposition of ASIO—
Senator BRANDIS: I do not want to know where they are; I just want to know a raw aggregate number.
Mr Irvine : Sorry; I meant on the relative resources ASIO devotes to each subject.
Senator BRANDIS: But—
Mr Irvine : To each of our investigative processes.
Senator BRANDIS: Does it follow from that that you are not even able to give me an estimate?
Mr Irvine : No, I would not give you an estimate at this stage.
Senator BRANDIS: All right. Plainly there has been since the 2008-09 year a massive increase in the demand on ASIO in relation to the conduct of these assessments, with a tenfold increase in the number between 2008-09 and 2009-10 at an almost constant annualised level in the most recent reporting period. Was there between 2008-09 and 2009-10 a corresponding increase in the ASIO staff establishment?
Mr Irvine : To give you a fairly full answer on that, I think you would not simply look at the question of resources. When it was clear that the numbers of people requiring to have the full ASIO assessment—and that was everybody—at that time, ASIO took a number of steps. The first thing we did was to look at our actual bureaucratic assessment processes. Was there duplication? Were we doing certain things excessively? And so on. We actually got some professionals assistance to look at those processes and to assist us to really speed them up. That proved successful, but it was not sufficient. The second thing we did was that we took resources from within the agency for what we call 'surge' programs to really focus on getting as many clearances—and at this stage they were what I will call the less complex clearances—through as fast as possible.
Senator BRANDIS: You would certainly say that an increase in one year from 207 to 2,822 was a surge.
Mr Irvine : I think that is probably an understatement.
Senator BRANDIS: I am known for my weakness for understatement!
Mr Irvine : It was certainly a very big demand on the organisation.
Senator BRANDIS: And what else? That is two approaches. Is there another approach?
Mr Irvine : The third thing we did when we realised that we were only barely keeping our heads above water, if that—and I did explain this in response to other questions earlier—was that, not we, the government made a couple of significant decisions. Firstly, ASIO would not check everyone consecutively as they came in; that we would not waste time checking people who were not in fact going to get a permanent visa for refugee status, we would only check those people for whom it had been determined that they were eligible for refugee status. The second process was that we then, also at the request of the government and working closely with the Department of Immigration and Citizenship, DIAC, found ways to streamline the process in a cooperative arrangement between DIAC and ASIO so that ASIO could free up most of its resources to focus on the most complex of the cases.
Senator BRANDIS: But doesn't that mean, under that streamlining arrangement with DIAC, that DIAC officers were doing some cases—you would say, I suppose, the simpler cases—which had previously been done by ASIO officers?
Mr Irvine : I would not characterise it that way. Right across the board, for all visa categories, DIAC assists ASIO in the implementation of an ASIO managed assessment process.
Senator BRANDIS: But you were effectively subcontracting some of this work to DIAC, weren't you? It might have been done under your supervision and according to your requirements, but it was being done by another agency rather than by you in a lot of cases.
Mr Irvine : It is supervised by us. We participate in it. I currently have people working with them. But I have to say, Senator, that has been the practice for all protective visa applications and, indeed, all visa applications since time immemorial. There is a process whereby DIAC refers people to ASIO, and ASIO stipulates the criteria under which that happens and manages and supervises that process.
Senator BRANDIS: Yes. What else did you do? You told us four things: efficiencies, tasking of resources from elsewhere within the agency, limiting checks to people who were classified as eligible for refugee status and streamlining the process by cooperation with DIAC. What other steps did you take, if any?
Mr Irvine : We are also working with DIAC to improve the IT connectivity so that we can—
Senator BRANDIS: That is part of streamlining the process.
Mr Irvine : It is, but it just happens to be another one of the things in the list.
Senator BRANDIS: Anything else?
Mr Irvine : No, I cannot think of any.
Senator BRANDIS: What strikes me with rather blinding force here is that in none of the four categories of measures that you have described to the committee was there additional resourcing by government. You have told us you made what you did more efficient—that is good. You have told us you reallocated resources within the agency, so I imagine that was absolutely necessary when there is a more than tenfold increase—indeed, close to a fifteenfold increase—but, nevertheless, those are officers taken away from other important work. You limited checks to eligible refugees—that is sensible. And you streamlined the process by involving DIAC officers to act on your supervision. But nowhere do you say, in the face of this increase from 207 to 2,822 in a single year, that you actually increase the aggregate number of ASIO officers rather than introduce these efficiencies and reallocate officers within your agency.
Mr Irvine : We certainly reallocated officers within our agency. And in addition—
Senator BRANDIS: Sorry to interrupt but the officers you reallocated were presumably at the time immediately prior to their reallocation doing important work.
Mr Irvine : Yes, but it is the function of a CEO to prioritise, and that is what I had to do.
Senator BRANDIS: Of course. I am not blaming you; you did not create the circumstances in which Australia's borders got completely out of control—we know that. It is perfectly rational for a CEO of any organisation to say, 'We had a huge surge in demand on one of our core responsibilities; therefore we reallocated staff from other important work to meet because we prioritise.' That is fine. But it does not mean that there was not an additional need which demanded more resources in aggregate to be added to your establishment. That does not seem to have happened.
Mr Irvine : It has and it has not. It has in the sense that ASIO this year has had a net increase of staff of 45 people.
Senator BRANDIS: That is not many: from 1,724 to 1,769.
Mr Irvine : Or thereabouts.
Senator BRANDIS: That is what is in table 2.1 of the PBS.
Mr Irvine : So we have actually been recruiting more people.
Senator BRANDIS: Yes, but, honestly and truly, when you have a surge from 207 to 2,822 in the demands of this core function, leaving to one side all the other important work ASIO does in respect of domestic counterterrorism, for example, and you have an increase in staff from 1,724 to 1,769, it could hardly be said that the increase in your staff is matching the demands placed upon them.
Mr Irvine : That is true, but the other issue that we have to take into account is our ability to attract and obtain extra staff. ASIO have still not filled the staff allocations for which we have been funded four years ago. We have had a period of great difficulty in attracting the right sort of staff.
Senator BRANDIS: That might be so, and I understand there are language competency skills and issues like that. That is what an economist might call a supply-side problem. You have a demand-side problem.
Mr Irvine : I do.
Senator BRANDIS: There has been, on my rough mental arithmetic, a fourteenfold increase in the need for ASIO to make security assessments for irregular maritime arrivals, and your staff establishment in aggregate has increased negligibly. Is that right?
Mr Irvine : I would not say negligibly, but it is a fact that we have not been able to attract and employ, train and bring online—
Senator BRANDIS: Or been resourced for—
Mr Irvine : and bring online—
Senator BRANDIS: And been resourced for—
Mr Irvine : In a sense we are resourced, because we still have not met our recruitment quotas.
Senator BRANDIS: All right. If you feel unable to tell me the numbers of staff that have been deployed in preparing security assessments for irregular maritime arrivals, I assume you are not permitted to tell me how many staff have been allocated from within your organisation; but may I take it that every one of the staff that have been reallocated from within your organisation was reallocated from other security related work?
Mr Irvine : Security related work as opposed to administrative work?
Senator BRANDIS: Yes.
Mr Irvine : I cannot say it would be 100 per cent—
Senator BRANDIS: But largely?
Mr Irvine : But I would think, largely, yes.
Senator BRANDIS: Okay. That will do. Thank you. A couple of other things, Mr Irvine—can I take you to Budget Paper No. 2, please, the summary of the budget measures. I just wanted to ask you briefly about the budget measures that affect ASIO. The first one is on page 96, the second item.
Mr Fricker : Senator, we are at a slight disadvantage. We have the yellows but we do not have the budget paper.
Senator BRANDIS: You have to bring Budget Paper No. 2 to these hearings! There you go—somebody has got one. Foresight! This is the summary of the budget measures by department, and the budget measures within the Attorney-General's Department and agencies begin on page 94. The first that affects ASIO is the second item on page 96. It is one of several items where the government has cut back spending on border protection. This one is entitled 'Border security—Australian Security Intelligence Organisation protective security assessments—improved targeting'. The note says:
The Government has identified savings—
those are weasel words for 'cutbacks', as of course you know—
Senator Ludwig: They are savings, unless you want to add your commentary.
Senator BRANDIS: The money you are not spending. Sure, Senator Ludwig. We all know the game of euphemism in budget papers—
Senator Ludwig: And you particularly, by the sound of that.
Senator BRANDIS: It says:
The Government has identified savings—
cutbacks, in other words—
of $6.9 million over four years through risk-based targeting of additional security checking of applicants—
Senator Ludwig: So you are continuing to do that? If you are going to read it out, read it out accurately.
Senator BRANDIS: I am reading it word for word—
for Protection Visas by the Australian Security Intelligence Organisation. Irregular Maritime Arrivals will remain subject to mandatory security checks and there will be no impact on the processing time for any visa category.
Savings from this measure will be redirected to support other Government priorities.
Well, that is a line item at the end of every one of these cutbacks. So Mr Irvine—
Senator Ludwig: Again, I would ask the record to reflect that that is not an accurate reading of the budget paper—that you have ad-libbed again.
Senator BRANDIS: No, that is not right. Have a look at it, Senator Ludwig. You may be unfamiliar with it.
Senator Ludwig: You did at the end, and you know it. The transcript will show that you did.
Senator BRANDIS: You may be unfamiliar with Budget Paper No. 2; I am not surprised that you are. In any event, let me go back to—
Senator Ludwig: I am surprised that you have it in front of you again and you do not follow the PBS.
Senator BRANDIS: I know the Labor government is very sensitive about the cutbacks to national security expenditure on border protection. If you want to get political, Senator Ludwig—
Senator Ludwig: You can make those statements—
Senator BRANDIS: we can get political. But I want to drill down into the detail, please.
Senator Ludwig: I am happy to allow you to drill down into the detail. What I object to is your adding commentary that is inaccurate.
Senator BRANDIS: I understand how sensitive the government is on this issue.
Senator Ludwig: And I understand how difficult you are on the issue. It begs the question whether or not you can actually read it. But, anyway, let us see how you go.
Senator BRANDIS: I think most people think I can read, Senator Ludwig.
CHAIR: Let us see if we can finish asking questions in this area.
Senator BRANDIS: Now, Mr Irvine, going to that line item, this budget measure, the $6.9 million of cutbacks starting in the current budget year, over the forward estimates—
Senator Ludwig: Does it say 'cutbacks' or are they reflected as 'savings'?
Senator BRANDIS: Senator Ludwig—
Senator Ludwig: You are the one who is reading it into the record.
Senator BRANDIS: I am not reading the text now; I am asking a question.
Senator Ludwig: I am sorry; it did not look like you were reading, again!
Senator BRANDIS: Mr Irvine, the $1.7 million reduction—
CHAIR: Senator Brandis. Minister, did you need to say something?
Senator BRANDIS: Are you calling me to order when I am being interrupted by the minister?
CHAIR: I am just wondering who is—
Senator BRANDIS: I am asking the questions.
CHAIR: That might be true, but Senator Ludwig also made a comment then and I just want that repeated.
Senator BRANDIS: Well, the Hansard will record it. I have the call and I am asking questions of Mr Irvine—and you did not give the call to Senator Ludwig.
CHAIR: Senator Ludwig, I am giving you the call now to see if you need to make a comment here.
Senator Ludwig: No thank you, I am happy for Senator Brandis to ask me questions. If he continues to add a commentary which is not fair, I think I do have an opportunity to engage in the banter that Senator Brandis seems to want to engage in. I will otherwise remain silent while he asks his questions.
Senator BRANDIS: Are these $1.7 million reductions over the forward estimates reductions in relation to the very activity about which we have just been speaking—that is, the preparation of security assessments in relation to irregular maritime arrivals?
Mr Irvine : No, they are not in relation to irregular maritime arrivals. ASIO makes security assessments in respect of a wide range of visas.
Senator BRANDIS: I understand that.
Mr Irvine : Irregular maritime arrivals are one category, but various onshore protection visas—in fact, any other visa stream—can be subject to comprehensive security assessments by ASIO, usually on referral from DIAC according to the system I mentioned to you.
Senator BRANDIS: All right; I understand that. Are you telling me, in effect, that the budget for carrying out security assessments for irregular maritime arrivals has been quarantined from these cutbacks to all categories of security assessments?
Mr Irvine : In effect, yes. Indeed, more resources have gone into it.
Senator BRANDIS: Is this then not a very good example of the cost to other priorities of ASIO—in this case, security assessments in relation to entrants other than irregular maritime arrivals—of the surge in irregular maritime arrivals and the need for ASIO to allocate resources to do those security checks?
Mr Irvine : Yes, in the sense that, inherent in every prioritisation process when one takes resources from one area to another, there will be a diminution in activity in the other area.
Senator BRANDIS: Sure. I understand that. We were talking in conceptual terms before but now we can quantify this by reference to the budget measure itself. It is $1.7 million a year for each of the four years over the forward estimates. Is that right?
Mr Irvine : That is correct, yes.
Senator BRANDIS: The next budget measure that directly affects ASIO is to be found on page 105:
National Security—Australian Security Intelligence Organisation—operating costs of new central office
I will come to the table in a moment, but the note says:
The Government will provide $30.6 million over four years to the Australian Security Intelligence Organisation (ASIO) towards increased operating costs for its new central office accommodation in Canberra.
That is the building that is currently being built, isn't it?
Mr Irvine : Yes.
Senator BRANDIS: Then it says:
The balance of the operating costs will be met from within existing resources.
If we look at the table that appears above that note, we see a reduction of $25.3 million in 2010-11, a reduction of $7.5 million in 2011-12, an increase of $28 million in 2012-13, an increase of $21.1 million in 2013-14 and an increase of $14.2 million in 2014-15. I want you to help me interpret this table, please. Does that indicate that, although in the outyears—that is, 2013, 2014 and 2015—there will be an allocation to ASIO of about $54 million in new money, that is to be offset by the reduction in the allocation to ASIO in the current financial year and this year's budget-that is, 2011-12-of some $32-odd million?
Mr Fricker : I think that what you just said is essentially correct. There is a combination of factors here. We have used those savings in this financial year as an offset in the next four years of $30 million over the four-year period, on top of which we are also offsetting those ongoing expenses by a $30.6 million reduction in our budget over the four-year period.
Senator BRANDIS: We can look at these across the out years—that is fine—but the reality is that there has been a cut of $25.3 million in the existing financial year, 2010-11, and a cut of $7.5 million in the next financial year, 2011-12, albeit that is going to come back to you if these figures remain constant in years to come.
Mr Fricker : That is correct. But I would not characterise this year's figure as a cut; we were working towards providing some savings in this financial year for that purpose.
Senator BRANDIS: I do not want to re-agitate the rather sterile debate I had with Senator Ludwig before, but—
Mr Fricker : But the numbers are correct; I do not want to dispute the numbers.
Senator Ludwig: It does not take only me to point that out, Senator Brandis.
Senator BRANDIS: What is described in this papers as a saving, however you slice it, means less money.
Mr Fricker : The numbers are the numbers—that is correct—but it was a deliberate strategy to move ahead and accommodate the costs of the new building.
Senator BRANDIS: By the way, Mr Irvine, when is the new building expected to be completed?
Mr Irvine : It is pretty much on time. We expect the building to be handed over for ASIO occupancy around the middle of next year and that we will be moving progressively after that.
Senator BRANDIS: Over how many months?
Mr Irvine : I am not sure exactly.
Mr Fricker : It will probably go into 2013—the move will take some time.
Senator BRANDIS: Do it slowly, Mr Irvine! The next and last of the budget measures that are described in this budget statement is the one immediately below that one on page 105. It is titled 'National Security—Australian Security Intelligence Organisation training and overseas liaison activities—savings through improved targeting'. There is that word 'savings' again, Senator Ludlam. The note says:
The Government has identified savings of $8.8 million over four years in the Australian Sec urity Intelligence Organisation (ASIO). Savings will be achieved through a risk-based re-prioritisation of resources for training and overseas liaison activities.
This will not impact on ASIO’s operational capabilities.
Saving from this measure will be redirected to support other Government priorities.
What training and overseas liaison activities will be cut back as a result of this reprioritisation?
Mr Irvine : It is an issue of both reprioritisation and greater efficiencies. Currently, we participate with another agency in providing counterterrorism training to certain friends overseas.
Senator BRANDIS: Are you able to say which agency that is?
Mr Irvine : Yes, I think I can say that that is ASIS.
Senator BRANDIS: I thought it might be.
Mr Irvine : Also, jointly we help other countries to improve and develop their counterterrorism efforts. We have found that we can achieve a variety of efficiencies in that process. There could be some reduction in the training provided, making it much more focused, and that is what essentially we are doing. With regard to foreign liaison activities, I will not comment on that too much because I do not want to get into the operational details relating to with which foreign liaison partners we are doing that.
Senator BRANDIS: I am not asking you to. I just want a sense of the kinds of programs that are falling victim to the reprioritisation. Looking at the three ASIO programs the subject of budget measures as identified by the government, in 2011-12, we are taking $1.7 million away from additional security checking. That is the budget measure on page 96. We are taking $7.5 million away from operating costs, which we expect to offset by money coming back in the out years, and we are taking $2.2 million away in 2011-12 and indeed in each of the three subsequent out years from training and overseas liaison activities. In the financial year for this budget, the 2011-12 year, ASIO on those three measures alone is having $11.4 million taken from it by the government.
Mr Irvine : Of that order.
Senator BRANDIS: Thank you.
Senator Ludwig: Just to put it in perspective, the government takes national security very seriously. Look at the funding history from 2007 when it was a total of $291.5 million. In 2008-09 it was $352.7 million, in 2009-10 it was $405.5 million, in 2010-11 it was $349.6 million and it continues in 2011 to $347.4 million and in 2012-13 to $437.9 million and 2013-14 to $434.6 million. So if you start back when this government came into office -
Senator BRANDIS: Is this a political advertisement for the Australian Labor Party?
Senator Ludwig: Then is was $291.5 million—
CHAIR: Everyone is entitled—
Senator BRANDIS: No, this is an abuse of the process of the committee, Chair. I have a point of order. Questions were asked and the questions were answered responsibly. At one or two points in the discussion where the form was not a question and answer but in response to what might be fairly be characterised as some observations I made, Senator Ludwig felt it upon himself to make some observations. This is not a response to any observations I have made. I put a question to Mr Irvine and Mr Fricker, it was answered briefly and responsibly. That is the end of my questions. If it is the practice of this committee that at the end of questioning by an opposition senator a government minister at the table is at liberty to give a speech, then you should make it clear the practice of this committee admits that. If it is not the practice of the committee, this is an abuse of the committee's process and if you were a neutral chairman of integrity you would rule it out of order.
Senator Ludwig: You are an extraordinary person.
CHAIR: Minister Ludwig, Senator Brandis has made a point of order and I am responding to that. This is budget estimates. During the budget estimates you are entitled as any other senator, Senator Brandis, to ask questions. The minister at the table, representing the minister, is entitled to make any statement in relation to clarifying the budget papers and the processes that are before us. Minister Ludwig, if you have some words of clarification that you need to provide to us, I welcome you doing that.
Senator Ludwig: I was just clarifying that when you look at the budget papers, the funding history of this organisation, from 2006-07 at $227.6 million to when Labor came into office from 2007-08 when it was $291.5 million and in out years up to 2014-15 at $415.1 million, you can see the trend has been significant throughout that period. Yes, the savings measures of approximately $5 million per annum provided by ASIO will not impact upon the agencies with core national security responsibilities of protecting the security of this country.
Senator BRANDIS: Senator Ludwig, I ask a question of you arising from your speech. If you looked at the 2007-08 portfolio budget statements for ASIO—that is, the last budget of the Howard government—I think you would find the uptick in the three subsequent years which you have identified were allocations in the out years in the Howard government's last budget and the declines in the years subsequent to that are declines in the out years budgeted by your government commencing in 2008-09.
Senator Ludwig: That is why I took us to 2014 which could not have been the out years of the Howard government which was 415.1—a significant increase over the period.
CHAIR: Is there any other point of clarification you need to make, Minister, because I would welcome you to do that now.
Senator PRATT: Chair, I have a question that seeks clarification. I note that Senator Brandis and the member for Stirling on 12 May had said that Labor weakened our national security by cutting back on $6.9 million worth of ASIO checks of asylum seekers. I wanted clarification on whether that statement was correct.
Senator Ludwig: That is not correct. The savings were achieved through ASIO's security assessment work not related to the assessment for irregular maritime arrivals but rather to other protection visas. I think Senator Brandis had elicited that information as well. He was wrong on that point.
CHAIR: Mr Irvine, it would seem we have come to the end of questioning for ASIO this evening. I thank you and Mr Fricker for joining us this afternoon and this evening.