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Legal and Constitutional Affairs Legislation Committee
24/05/2012
Estimates
ATTORNEY-GENERAL PORTFOLIO
Australian Security Intelligence Organisation

Australian Security Intelligence Organisation

[16:11]

CHAIR: Good afternoon and welcome to Mr Irvine and your team. Welcome to the officers from ASIO. Do you have an opening statement for us today?

Mr Irvine : No, I do not.

Senator HANSON-YOUNG: I want to go to the issue of adverse security assessments of asylum seekers and refugees. I just want to see firstly whether you keep figures on the numbers of people you have given adverse assessments to who are currently applying for permanent protection visas, and if so could I have those numbers?

Mr Irvine : I have to make sure that I am answering your question exactly. We have given 59 adverse assessments amongst the IMA cohort. In fact, that was at 30th of last month. There may be a couple more.

Senator HANSON-YOUNG: Okay, so that would have been 30th April.

Mr Irvine : Yes.

Senator HANSON-YOUNG: And out of those 59, do you have the ages of those people?

Mr Irvine : We would have the ages of those people, but I can assure you that out of those 59 there may be some debate over one or two. I would have to get the actual ages for you.

Senator HANSON-YOUNG: You do not have them right there?

Mr Irvine : No.

Senator HANSON-YOUNG: If you could take that on notice, that would be handy.

Mr Irvine : That is, adverse assessees?

Senator HANSON-YOUNG: Yes.

Mr Irvine : Off the top of my head, I think there is one whose age is in some doubt.

Senator HANSON-YOUNG: You do not do assessments for those under the age of 15, do you?

Mr Irvine : Not normally. We get a lot of people referred to us, and if they are under the age of 16 or thereabouts unless there are quite extraordinary circumstances we would not do anything but return them as non-prejudicial.

Senator HANSON-YOUNG: So with the one that there is an age dispute about, what is the dispute? Is it to as to whether they are a minor or not, or whether they are 15 or 16?

Mr Irvine : I am not saying there is a dispute, I am saying there is some doubt as to the age of the person on arrival in Australia and now.

Senator HANSON-YOUNG: But is that because that person is possibly a minor? Is that why it is an issue?

Mr Irvine : Yes, it is doubt about whether or not that person is a minor.

Senator HANSON-YOUNG: What would be the explanation for the difference in the number that you have just given me of 59 versus the number that I got from the immigration department yesterday, which was 51?

Mr Irvine : We have given 59 adverse assessments since I cannot remember exactly when but within the last couple of years. Fifty-one, as I understand it, is the number who are still in detention. Some of those people are not in detention in Australia. Some have been repatriated. Some I do not think actually came to Australia.

Senator HANSON-YOUNG: So you have given 59 adverse assessments as at 30 April. Eight of those people are not held in detention.

Mr Irvine : I understand that those eight have been resettled in a third country or third countries. I do not have those details. You would need to get those from DIAC.

Senator HANSON-YOUNG: When an adverse assessment is made, who gets a copy of the reasons for that assessment? I know they are kept pretty well under wraps, and I acknowledge the reasons why. But who gets a copy?

Mr Irvine : I obviously get a copy to sign off on. We provide appropriate information—I would have to check whether they got the actual copy—to DIAC. DIAC would be able to provide a copy of that to their appropriate minister. It may also be that I would inform the Attorney-General.

Senator HANSON-YOUNG: Is there a strict rule as to who has access to this information?

Mr Irvine : Within the government?

Senator HANSON-YOUNG: Yes.

Mr Irvine : That is determined by ASIO. We do not—

Senator HANSON-YOUNG: Is there a formula, though? It sounds as though it is more flexible than I would have imagined, frankly.

Mr Irvine : I would need to check exactly how and in what form DIAC is provided with the information about the adverse assessment. We are talking about that 59 here. I will need to take that on notice because I am not 100 per cent clear exactly how they are informed.

Senator HANSON-YOUNG: But in your department obviously you would see the total log of claims or statement of reasons?

Mr Irvine : I see a complete statement of reasons.

Senator HANSON-YOUNG: You see a complete statement of reasons but you are not sure at this moment, and you will take it on notice, who else sees that full statement of reasons?

Mr Irvine : I can say that to date the adverse security assessments issued by us have been provided to DIAC or to their minister. But they are not permitted to disclose that as classified information.

Senator HANSON-YOUNG: ASIO are not concerned as to who in DIAC has this information?

Mr Irvine : I have would rely on DIAC to treat classified information on a need-to-know basis in the same that other ASIO information is distributed around the government and protected accordingly.

Senator HANSON-YOUNG: DIAC is a big department, though. Is there a list of people that you permit—

Mr Irvine : Not as far as I am aware, no. I have certainly not signed off on such a list in regard to who in DIAC may or may not see that. Under the general security protection arrangements within the government, the head of the relevant department is responsible for the classified information which comes into that department and for the distribution within that department of that information.

Senator HANSON-YOUNG: Does ASIO brief the minister on these assessments?

Mr Irvine : Which minister?

Senator HANSON-YOUNG: The Minister for Immigration and Citizenship.

Mr Irvine : To my recollection, we have not personally briefed the minister. It is entirely up to the Secretary of DIAC and DIAC themselves what they provide to their minister. I believe the minister has seen some but I do not know if he has seen them all.

Senator HANSON-YOUNG: From ASIO's perspective, ASIO has not directly briefed the immigration minister on any of these 59 cases?

Mr Irvine : Not on 59 individual cases, no.

Senator HANSON-YOUNG: That is not part of the standard practice, then?

Mr Irvine : No.

Senator HANSON-YOUNG: Do you know if your department has briefed the minister on any of those 59 cases?

Mr Irvine : I would need to check that but I suspect not.

Senator HANSON-YOUNG: How frequently does ASIO conduct internal reviews for these assessments you make?

Mr Irvine : We will re-open an assessment if we receive additional information which warrants that, otherwise not.

Senator HANSON-YOUNG: Is that a regular thing?

Mr Irvine : It has been longstanding practice, yes.

Senator HANSON-YOUNG: What would trigger an internal review or re-opening?

Mr Irvine : Receipt of further information which would have a bearing on the original assessment.

Senator HANSON-YOUNG: Or a referral from the immigration minister that a case be reviewed?

Mr Irvine : No. There was one case where there was some doubt as to whether it was a referral for a review or otherwise. In that case we revised very slightly the wording of the assessment, but we did not change the assessment. On the other hand, if the Department of Immigration and Citizenship or its minister were to receive from the applicant an application, for example, for a different type of visa, they may refer that to us to do an assessment in relation to that visa. But I do not think that has actually ever happened and I cannot actually see why it would.

Senator HANSON-YOUNG: So you have not had any referrals or requests from the immigration minister to review any assessments?

Mr Irvine : Of an IMA?

Senator HANSON-YOUNG: Yes.

Mr Irvine : Not that I can recall, but I would need to check. I am almost certain that we have not.

Senator HANSON-YOUNG: I would really appreciate it if you could be very clear about that.

Mr Irvine : Yes.

Senator HANSON-YOUNG: Have you had any referrals or requests from the Attorney-General to review any of your assessments?

Mr Irvine : No.

Senator HANSON-YOUNG: Please explain to me the sorts of matters that come under section 4AA of the ASIO criteria—'protection of Australia's territorial and border integrity from serious threats'.

Mr Irvine : That can cover quite a number of things, but it certainly does cover the concept of people-smuggling, where people smugglers threaten the integrity of our borders.

Senator HANSON-YOUNG: The integrity of our borders?

Mr Irvine : I think that is the wording, yes.

Senator HANSON-YOUNG: Where that is threatened by people smuggling?

Mr Irvine : We certainly have been looking at the whole question of people smuggling under that relevant part of section 4 which relates to the integrity of our borders.

Senator HANSON-YOUNG: Does ASIO have any internal guidelines for interpreting the criteria as outlined in the act? Do you have your own check sheet?

Mr Irvine : We have really a very extensive series of criteria and standards which are embodied in our daily operating procedures and instructions, yes. I would not, however, make those public.

Senator HANSON-YOUNG: You would not be able to?

Mr Irvine : No.

Senator HANSON-YOUNG: Why?

Mr Irvine : Because they would go directly to the whole question of ASIO's sources and methodology and so on. It simply would not be appropriate.

Senator HANSON-YOUNG: Are there guidelines—which you use simply to interpret and give guidance to your staff in understanding the responsibilities under the act—that could be tabled?

Mr Irvine : Goodness. The whole life and being of an ASIO officer is guided by the ASIO Act and all of its ramifications, including all of the guidelines from the Attorney-General and the very large volume of procedural rules and regulations under which we operate. So, yes—and part of the capability, if you like, of the organisation is the ability of our officers to understand and operate within the guidelines that have been established over a very long period of time.

Senator HANSON-YOUNG: But you do not have a specific set of guidelines to help your officers interpret the criteria as outlined in the act? You have just said this is their job?

Mr Irvine : No, I have said that this is their job: to understand the very, very specific sets of guidelines and processes and so on that govern just about everything we do in the organisation, including their ability to interpret the act. We have a very big legal section which helps them do the same.

Senator HANSON-YOUNG: Are there guidelines that relate to the interpretation of the criteria for the sake of adverse security assessments—

Mr Irvine : Yes.

Senator HANSON-YOUNG: that your officers have to refer to?

Mr Irvine : Yes.

Senator HANSON-YOUNG: Are you able to table that?

Mr Irvine : No.

Senator HANSON-YOUNG: Are you able to tell me: when was the last time ASIO reviewed an adverse assessment?

Mr Irvine : Off the top of my head, no—with the exception of when, very recently, we changed a few words in an assessment.

Senator HANSON-YOUNG: Is that for everybody or just for IMAs?

Mr Irvine : I am talking about IMAs. I would really need to check—but there are very few, frankly, adverse assessments outside at the moment of the IMA cohort.

Senator HANSON-YOUNG: When was the last time the ASIO assessment criteria was reviewed in terms of national policy reform? I know it happened in 1977. You talked about abilities for appeals and merits reviews for Australian citizens. Has there been a review since then to your knowledge?

Mr Irvine : There have been numerous—in fact, internally these processes are in effect under constant review. I would need to go back—and there have been so many. On the question of IMAs and security assessments, either internally or externally within the government, I think we have 14 different reviews in the last 12 to 15 months. Internally on how we do things, we have reviews of certain aspects by Inspector General of Intelligence and Security. We have just been subject—but this report is not yet published—to a significant and far-reaching review by the ANAO. We have called external consultants in to review and make sure that our procedures are operating. In terms of external reviews before my time, I would need to go and check that.

Senator HANSON-YOUNG: Mr Irvine, yesterday Mr Wilkins explained to me that, despite the immigration minister saying only on Tuesday morning that there was a review being undertaken of these matters in terms of ASIO assessments as they relate to asylum seekers—Mr Wilkins, I do not want to paraphrase you too much, but you said—it was not to inflate the level of that review. Have you been contacted about that review?

Mr Irvine : Can I just check that we are talking about apples, not onions? As I understand it, there is no current review going on in respect of our methodology or the nature of our adverse assessments.

Mr Wilkins : Yes; what I said, Senator, was that we were looking at options.

Senator HANSON-YOUNG: But that there was no formal review?

Mr Wilkins : No. I think we were comparing it with a case where there was in fact a formal review going on, with the crew issue.

Senator HANSON-YOUNG: Yes. So, as far as you are aware, Mr Irvine, there is no formal review into this issue?

Mr Irvine : Into our security assessment investigations procedures and practices, no, except that—to go back to what I said earlier—internally we keep these things under review the whole time.

Senator HANSON-YOUNG: Are you in the process of reviewing the question of releasing statements of reasons?

Mr Irvine : No, I am not.

Senator HANSON-YOUNG: Can I take you to the answer to question on notice No. 113, which you have given me previously. ASIO told me:

ASIO’s security assessment is advice to DIAC to inform visa suitability consideration.

Are you looking for that? You do not have to.

Mr Irvine : Let me just check. Yes, I have that.

Senator HANSON-YOUNG: Okay. it said:

ASIO’s security assessment is advice to DIAC to inform visa suitability consideration.

You do not brief the immigration minister directly on these assessments; we have established that.

Mr Irvine : No.

Senator HANSON-YOUNG: You obviously brief the department to some respect, even though we are not quite clear on the extent to which the statement of reasons is given.

Mr Irvine : I think we do give them a statement of reasons.

Senator HANSON-YOUNG: You do. Is that the same statement of reasons by which you make your final decision as ASIO?

Mr Irvine : I am pretty sure it is, yes.

Senator HANSON-YOUNG: Okay, so for all intents and purposes it is the same statement of reasons.

Mr Irvine : Yes.

Senator HANSON-YOUNG: Does ASIO provide advice to DIAC as to the appropriate detention or monitoring for individuals?

Mr Irvine : No, Senator, that is not within our mandate. What decisions are taken in respect of the individual by DIAC following receipt of a notice of an adverse security assessment really is a matter for the Minister for Immigration and Citizenship and his department.

Senator HANSON-YOUNG: Mr Irvine, I have a copy of a report provided to me from legal representatives who are acting in a matter relating to an IMA that has an ASA. One of the documents they have is a report from the Ombudsman made under section 488N of the Migration Act, which is the ability to do 24-month reviews. Under the heading 'Previous consideration for alternative placement'—this person has been given an ASA, an adverse security assessment—it says: 'The department'—this is the immigration department—'received advice from ASIO on this particular individual which stated it would not be in the public interest for the minister to consider community detention for this individual.' Five weeks later, this individual was referred to the complex case resolution section. Could you explain to me what that is?

Mr Irvine : As you know, the security assessment process has a number of steps. From March last year, in order to streamline the process and to introduce appropriate risk management practices, we were asked by Immigration—it might have been later than March actually—to provide an assessment related to whether or not a person should be put into community detention. I think out of 5,000 requests for that we have probably issued one or two 'adverse'. The next step is this. Whether or not people are in detention or in community detention, there is what we call a triaging process and then there is the complex—and I will use your words—

Senator HANSON-YOUNG: Yes, the complex case resolution section.

Mr Irvine : It is a thorough, in-depth examination. It can happen that you will find someone in the very first part of the process who you can see—and I think it might have happened once or twice; I am not sure—is on the path to an adverse assessment and on that basis you would provide an adverse assessment at the first stage of the process.

Senator HANSON-YOUNG: Thank you. Let me continue. Five weeks later, after the department had first received advice from ASIO which stated it would not be in the public interest for the minister to consider community detention, this individual was referred to the complex case resolution section for an assessment for a community detention placement under that particular section of the act, 197AB—and we all know about that. ASIO then advised that they had no objections to this person being placed in community detention. So in one instance you did have a concern but five weeks later you did not.

Mr Irvine : I am not sure about these facts.

Senator HANSON-YOUNG: If I could give this to you I would. It is in the ombudsman's report though, so you would probably have access to that. We have just had a discussion about the fact that reviews do not happen very often. Here there was a review and thankfully there was, I guess, from this individual's perspective, because they were about to be told they had to be left in indefinite detention and now they are able to be in the community.

Mr Irvine : Would you not be conflating all sorts of processes into one bit? As I explained to you, there is a community detention process. I do not know in this particular case what the triaging result was but the triage might then have said, 'Yes, we have looked at this information in this slightly more detailed process and we don't think there is a problem.' But unless I looked at the specific case, which I then would not want to discuss here in public, I can only say that I suspect that that is what has happened in that case.

Senator HANSON-YOUNG: Okay. My second concern with this though is that it seems to contradict it, given the fact that you do give advice to DIAC in relation to where people are housed.

Mr Irvine : We do not give advice to DIAC on how a person is treated after we have given a security assessment. What you have read out is in fact what an adverse assessment would have been—that is, they have asked us whether we can release that person, in security terms, and we have given an adverse assessment, the consequence of which is that we would not recommend it. But we still do not make the final decision.

Senator HANSON-YOUNG: No, but you do give a recommendation.

Mr Irvine : We do not normally, I have to say, give that sort of recommendation—except possibly in that first part of the process. The first part of the process is simply designed to work out whether people should be released into community detention or not, and that is what we are asked to give a recommendation—

Senator HANSON-YOUNG: I understand that, Mr Irvine. But this is somebody who has an adverse security assessment.

Mr Irvine : Now?

Senator HANSON-YOUNG: Originally.

Mr Irvine : I simply do not know what the details of the case are and I do not know what the status of that adverse security assessment was. Was it given at the end of a deep and significant complex investigation or was it simply a request from Immigration to check against information we held as to whether this person should go into community detention before the rest of the immigration refugee process is carried out?

Senator HANSON-YOUNG: Let us just clarify this. When ASIO briefs the Department of Immigration and Citizenship when you have found an adverse security assessment against an IMA, is there advice as to how this person should be housed—whether they should be put into detention or not?

Mr Irvine : In relation to the community detention assessment process, which is right at the very beginning and is a check against our holdings of information upon that person, we have been asked to issue an assessment for that very specific purpose by Immigration. So Immigration is asking us: 'Are there any reasons that this person should not be put into community detention?' and we will issue a non-prejudicial or adverse assessment. If it is an adverse assessment, it stands to reason that the tenor of our advice to DIAC would be: 'We think you've got some concerns there.' The next stage of the process is that, whether they be in community detention or not, people go through a triage where you look at all the more complete information you have and decide whether you will put those people through the complex process, which is where ultimately the final nonprejudicial or prejudicial assessment is made. That is made against a different set of criteria. It is made against a set of criteria by which Immigration say to us: 'Could you please give us a security assessment on this person in relation to this person's application for a permanent protection visa.' The initial one is simply Immigration asking us whether we have any information that would preclude these people being put into the community.

Senator HANSON-YOUNG: Yes. Does ASIO's advice to the department when you have come up with an adverse assessment against an IMA specifically address the risk of the placement into the community of that individual?

Mr Irvine : Senator, could you just expand on the second part of that question a little bit?

Senator HANSON-YOUNG: Does your advice to the department specifically address the risks of placement of that individual into the community?

Mr Irvine : In nearly 6,000 cases they have been non prejudicial. So the advice is: 'We at this stage of the process do not have any information which would make you think those people should not be released into the community.' There could be one or two cases where we say: 'No, not at this stage', and they would proceed to be given much more complex assessments.

Senator HANSON-YOUNG: But does the advice and the briefing that you give to DIAC on an individual, once you have made an assessment that they have an ASA, specifically go to the risk that person poses to the community?

Mr Irvine : We are specifically asked by DIAC to make an assessment on the risk of that person being put into the community at this early stage of the process.

Senator HANSON-YOUNG: I am not talking about the early stage—I am talking about the thorough assessment that you do.

Mr Irvine : If you go to the thorough assessment, no, our advice to Immigration is that this person is considered to be a threat to security, and that will inform the minister for immigration's decision and he will deal with that according to their regulations. We have not been asked to give advice on 'this person is a bit of a threat and can go into the community' or 'this person is a really big threat and has to stay in jail'. We issue an adverse assessment which says 'we believe this person is a likely threat to security'.

Senator HANSON-YOUNG: And in saying that you do not give a specific recommendation as to how they should be treated from there on in?

Mr Irvine : No. That is not within our mandate.

Senator LUDLAM: I do not know whether you were in the room when we were talking to the Federal Police earlier about the Attorney-General's proposed inquiry into potential reforms of national security legislation, but was ASIO consulted on the draft terms of reference before they were put to the joint committee?

Mr Irvine : Yes, I believe we were.

Senator LUDLAM: Could you tell us what exactly it is about the system that is not working at the moment, specifically in terms of surveillance and telecommunications interception processes. The review obviously goes to broader terms of reference than that.

Mr Irvine : I am due to appear before another committee tomorrow on this issue. Let me make a really general statement, because I am hesitant to get into the detail of what is an extremely complex subject. As technology develops, the legislation which governs, for example, telecommunications interception, which was written for a specific period and a specific technology, means that you cannot necessarily do today what you could do yesterday or a little while ago. It is necessary to consider whether or not the legislation needs to be revised to take into account the current, and I would hopefully say future, prevailing circumstances in the communications sector.

Senator LUDLAM: That makes sense to me. There are entire categories of data that did not even exist five years ago, but do now. So I presume that is part of the—

Mr Irvine : It is the proliferation of means of telecommunication. It is a proliferation of user use of the systems. It is a whole range of issues.

Senator LUDLAM: Would you acknowledge that one of the datasets that I am referring to that did not exist five years ago would be very, very fine grained detailed location data for every Australian citizen carrying a phone around—that is, a set of data that now exists: exactly where you were at any given time, whether you are aware that that data is being recorded or not; that is one of the categories of data that I am referring to?

Mr Irvine : There is a whole range of various applications and so on now, as you know.

Senator LUDLAM: But that would be one. Do you think that privacy protections around the ability of government agencies and intelligence agencies to access data as intimate as that—everywhere you go, every minute of your life where you happen to be carrying your phone—should be subject to rigorous privacy protections?

Mr Irvine : I do. I would like to insist that Google and other people were subject to the same rigorous protection.

Senator LUDLAM: That would be nice; currently, they are not.

Mr Irvine : No.

Senator LUDLAM: But currently neither are you. There were roughly a quarter of a million—not warrants; I understand I am not allowed to call them warrants—requests by law enforcement agencies, including the AFP, state police forces and not including ASIO, reported in the Telecommunications (Interception and Access, Act- annual report 2010-11. Can you tell us why ASIO does not report its accessing of that material in that report?

Mr Irvine : Are you talking about call records?

Senator LUDLAM: Call records are amongst them, yes.

Mr Irvine : That is not private information per se, is it? It is information that is held by telecommunications companies, Google, whatever.

Senator LUDLAM: I would hope that it would retain a degree of privacy, but if you are familiar with—

Mr Irvine : But are you talking about the content of the emails, which is one thing?

Senator LUDLAM: That is a real grey area. But no, I am not. I am referring to metadata or telecommunications data—the kind of a halo of data around whatever the communication was, which in the instance of smartphones includes your latitude and longitude; everywhere you went where you carried your phone. It is pretty intimate stuff—not the content of a transmission, but where you were when you sent a text message, wrote an email, went to the bank, whatever it was. My question is: why it is that ASIO does not report—along with all the other agencies, whether they be police or welfare agencies—in the TIA annual report.

Mr Irvine : Frankly, we have never reported. The reason is that if we were to report those statistics in any detail, we believe we would be compromising national security by compromising our sources and efforts.

Senator LUDLAM: Is it therefore that our state policing agencies and indeed the Federal Police are compromising criminal investigations?

Mr Irvine : I am not going to speak for them.

Senator LUDLAM: They report.

Mr Irvine : I am concerned about my ability to protect Australians and the safety of Australians using intelligence methods.

Senator LUDLAM: So all this gives us, as far as the other agencies are concerned, is aggregate data. It does not say who they are spying on. There is some data about the categories of offence that are being investigated but it is pretty sparse. Are you saying that those categories of criminal investigation are being compromised through those reporting obligations?

Mr Irvine : I am not going to comment on law enforcement but I am going to say that our activities in this area are not reported publically, but there is very strong, frankly, level of accountability through the Inspector General of Intelligence and Security, who would pull us up very sharply if in this case she were to find that we were doing things which were not in accordance with our act and not in accordance with the law—and, also, not without good reason.

Senator LUDLAM: There are three different categories of activities there that are not necessarily the same thing, because the law at the moment is silent on why so many agencies are accessing so much of this telecommunications data. It does not even have to be crimes being investigated. I will leave it there. You are building the big glass palace over on the other side of the lake. Has ASIO begun moving into that?

Mr Irvine : No.

Senator LUDLAM: Not yet? In the 2012-13 budget there was an increase of a bit over $32 million resulting from increased supplier expenses relating to the old rent. Can you tell us what the increased supply expenses were and why they were not taken into account before.

Ms Hartland : Can you repeat that question please?

Senator LUDLAM: Correct me if I am wrong, but the budget statement shows an increase of nearly $32.4 million and it is annotated as 'increased supplier expenses relating to additional rent'.

Mr Irvine : I can probably answer that. I have it in front of me at the moment. Some of the additional costs were to fund additional scope—for example, to fit out additional audiovisual equipment. Some of the money was required quite early on in the project when the Department of Finance and Deregulation unexpectedly had to remove asbestos from the building site.

Senator LUDLAM: Was there asbestos on site from the previous structure?

Mr Irvine : There was.

Senator LUDLAM: From a previous structure?

Mr Irvine : There was no previous structure there, but for some reason or other there was asbestos on the site.

Senator LUDLAM: Okay. So part of it was to do with asbestos?

Mr Irvine : Yes.

Senator LUDLAM: My last question relates to the building, and this might seem a little vexatious, but trust me: I am serious. There is an enormous amount of glass in that building. Your employees are going to be going about their highly secret sensitive national security business in that office, and it occurs to me that anybody who wants can park a high-resolution camera on the other side of the lake and see everything that everybody is doing. Are there some special properties in the glass?

Mr Irvine : I have been assured that that will not be possible. I think that in fact that there are shutters going in behind that glass; they may not be there yet.

Senator LUDLAM: Okay. So there will be windows but they will be opaque?

CHAIR: If they have not put them out, they will now. Thanks, Senator Ludlam.

Ms Hartland : That is correct. There is a series of blinds there now that will mean you cannot see through.

Senator LUDLAM: Thanks. I will leave it there. You did not expect that one, did you?

Senator RHIANNON: One of the IGIS's recommendations on the Habib case was:

Australian government agencies should prepare an apology to Mrs Maha Habib for failing to keep her properly informed about Mr Mamdouh Habib’s welfare and circumstances.

Has ASIO given this apology?

Mr Irvine : The government decided that there was to be no apology, so ASIO has not become involved in that. I do not have any other answer than that.

Senator RHIANNON: Thank you. Did ASIO do its own internal review of its handling of the Habib case?

Mr Irvine : The Inspector-General of Intelligence and Security did a very comprehensive review of the case. Again, as I said in an answer earlier to Senator Hanson-Young, we are constantly reviewing the way we conduct our business. We would have done an internal review, and certainly since that case there have been a number of changes to our procedures, which I think the Inspector-General of Intelligence and Security acknowledged in the report. That case was now a very long time ago—the original outbreak of the case.

Senator RHIANNON: Is your internal review, or at least the changes that you have made, available publicly?

Mr Irvine : No, they are not.

Senator RHIANNON: Wouldn't it be useful to make them public to give the public more confidence that lessons have been learned and that this would not happen again?

Mr Irvine : You can rest assured that ASIO has agreed with the IGIS's, recommendations—which, frankly, required relatively minor adjustments in our policies and procedures. That is the way we have addressed those issues.

Senator RHIANNON: So you are actually saying that, if those minor adjustments had been in place, what happened to Mr Habib would not have happened?

Mr Irvine : No, I am certainly not saying that. We have made adjustments over a very long period of time. Can I just say in relation to the Habib case that we actually welcomed the Inspector-General's report, because in fact the report made some really very positive, and I would have thought encouraging, findings that are encouraging for the Australian public. As you know ASIO had been accused of being engaged in acts of mistreatment of Mr Habib and that we had knowledge of his mistreatment by others, that we were engaged in making arrangements for his transfer to Egypt or were present during his removal from Pakistan, that we knew his place of detention in Egypt and so on and so forth. The Inspector-General found that no Australian official was involved in any of those things. I would have thought that that was a very heartening and encouraging finding by the Inspector-General.

The Inspector-General did find that there should be amendments to ASIO's policies and procedures, first in relation to the provision of information to overseas authorities and the level of authority within the organisation that has to be given before such things happen. That is a recommendation we accepted. The second recommendation in relation to us was that we should be more assiduous in our record taking so that subsequently, when someone wants to know why a decision is taken, there is an adequate recommendation on that. And there were a number of occasions that the Inspector-General of Intelligence and Security pointed out where she felt that ASIO did not record as adequately as we should have the reasons for taking particular steps. But there is no evidence, and the Inspector-General found no evidence, that even in the absence of complete documentary records, that that had any adverse impact on Mr Habib.

Senator RHIANNON: So you would be confident that this sort of incident would not occur again, in light of these changes?

Mr Irvine : I would be confident that we have better procedures in place to ensure that we are acting in the most appropriate way in regard to an Australian citizen.

Senator RHIANNON: I want to check on some earlier responses you gave. Regarding the Parliamentary Joint Committee on Intelligence and Security, I noted some of your answers. I want to clarify whether this applies just to telecommunications surveillance warrants, or is it all types of warrants.

Mr Irvine : There are a whole range of issues that relate to telecommunications that are under discussion in terms of updating the telecommunications regime to meet the modern circumstances. We certainly have issues in relation to warrants, the way they are prepared and the nature of the warrants—

Senator RHIANNON: That was what I was just trying to assess for my understanding. So the warrants go wider than telecommunications?

Mr Irvine : No. There are three separate issues that the Attorney-General has raised in her public announcement. They relate to the telecommunications interception act; to acts affecting the provision of telecommunications, and the security of that; and they also relate to some small changes in the ASIO Act and, I think, also in the Intelligence Services Act.

Senator RHIANNON: Could you expand on the last one. What is your understanding of who will be looked at there?

Mr Irvine : In the Intelligence Services Act?

Senator RHIANNON: Yes.

Mr Irvine : No, it is not my act.

Senator RHIANNON: But you did say ASIO and the Intelligence Services Act.

Mr Irvine : Yes. There are a number of matters under the ASIO Act—some streamlining issues, some staffing issues and so on.

Senator RHIANNON: Could you expand on what those streamlining and staffing issues would be?

Mr Irvine : I would prefer to do that with the committee tomorrow.

Senator RHIANNON: Tomorrow?

Mr Irvine : I am meeting the committee tomorrow. I think I owe them the courtesy of raising those things with them.

Senator RHIANNON: I want to ask about this issue of going from 90 days to six months. Are you not in a position to talk about that?

Mr Irvine : Not publicly, at this stage. What we are talking about at this stage is ideas.

Senator RHIANNON: Can I put questions on notice or are you saying you are not in a position to answer those?

Mr Irvine : You can put questions on notice and I will see what we can do.

Senator RHIANNON: Between 2003 and 2005 ASIO obtained 14 questioning warrants. Since 2005 ASIO has obtained only two such warrants. Why were so many warrants issued between 2003 and 2005 and so few after that time?

Mr Irvine : The answer to that is entirely case specific.

Senator RHIANNON: What changes?

Mr Irvine : The nature of the cases we are dealing with. We try to avoid having to use the most intrusive and, if you like, compulsory elements of our powers unless absolutely necessary. Again, I would have thought that that is an indication of the responsibility with which ASIO goes about its business. The only answer I can give you is that at the time it was thought necessary because of the urgency of the situation, perhaps, because of the nature of the threat and the nature of the investigation that it was imperative that those powers be invoked.

Since then, during my time, the individual case has in our view only warranted those powers being invoked—and they are the questioning powers, not the detention powers—on one or two occasions.

Senator RHIANNON: Staying with the questioning powers, at the May hearing last year, Mr Irvine, you said, 'ASIO responds to literally thousands of counter-terrorism leads'. You also said that ASIO is 'currently involved in several hundred counter-terrorism investigations and inquiries'. If this is the case, why has ASIO only used its questioning power twice since 2006 and not at all in 2011.

Mr Irvine : Again, you have to see an investigation as an individual activity. If we did not believe that in over 100 investigations we needed to use those powers then we would not use them. We have other means of investigation. We do not rely solely on a compulsory interview. In fact, as it proves, we have not needed to rely on it in recent times. There could, however, come a time when tomorrow we suddenly find ourselves facing a threat, the urgency of which is very much more than the cases we have dealt with in the last year or so, and we would need to use those powers extensively.

Senator RHIANNON: Can you give us an example.

Mr Irvine : I would prefer not to, but I think you can imagine that, in the continuum of the planning, development and execution of a terrorist act, at some point, particularly as we discover that there was movement towards the carrying out or the actual execution of a terrorist act, those powers may well become very necessary indeed.

Senator RHIANNON: In 2005 I read some comments from some lawyers who described the questioning powers as a fishing expedition with no connection with any imminent terrorist threat. Would you comment on that? Because I think there is that perception.

Mr Irvine : I know—I do not think, I know—that the way in which we have exercised those powers has been directly related, if you like, to our assessment of the gravity, the potential and ultimately, I guess, the imminence of the threat. But it is not simply based on imminence. It could be based on gravity. It could be based on the fact that the only way to get the information that you absolutely really need is to conduct such interviews.

Senator RHIANNON: Could it also be based on that ASIO has changed how it conducts its questioning?

Mr Irvine : No. I think our operational methodologies have been relatively consistent. They are adapted always to changing circumstances, but I do not see that as a factor.

Senator RHIANNON: Okay. Moving on to detention warrants, is it the case that ASIO has never sought to have a detention warrant issued? In what circumstances, if any, would you envisage using the detention power?

Mr Irvine : Again, I would answer that question in terms of the issue of the nature of a threat, its gravity, its imminence, potential consequences and so on. It would be a subjective judgment, although ultimately probably not very subjective because you would be making it on such blind obvious factors.

Senator RHIANNON: It is the case that a detention warrant has never been used?

Mr Irvine : Yes, that is my understanding. It has certainly not been used in my time.

Senator RHIANNON: But you are saying it would be a subjective judgment if it were used?

Mr Irvine : It would be a judgment made by the director-general and the people who have to approve such a process.

Senator RHIANNON: But surely that would be based on something, wouldn't it?

Mr Irvine : Yes, it would be absolutely based on something. It would be absolutely based on our very, very serious concern that the use of this—I am not going to say extreme but this is very, very serious investigative tool were to be applied.

Senator RHIANNON: In the 2011 report of the Independent National Security Legislation Monitor he suggested that the criteria which must be satisfied in order to obtain a detention warrant are too broad and do not justify detention. Would ASIO consider having someone detained because, for example, it was suspected they might not appear for questioning at the stipulated time?

Mr Irvine : My reading of that report was that what the independent security legislation monitor was going to do was to examine whether it was too broad. I am not sure—I would need to read the report again—that he necessarily made such a categorical statement as that. What was the second part of your question?

Senator RHIANNON: If it was suspected that somebody would not appear for questioning at the stipulated time would that be considered as a reason for detaining somebody? I was surprised you used the word 'subjective'. I am therefore trying to get a sense of when you do use it, so I wanted to give that example and hear your response.

Mr Irvine : It would very much depend on the case and it would depend, again, on the gravity of the situation at the time. I said subjective; I mean a judgment made. I will retract the word 'subjective'. I mean a judgment made about the circumstances, the level of threat and the potentiality of the threat.

Senator RHIANNON: That could include that somebody may not turn up for questioning so you would have to detain them to ensure that you could still question them?

Mr Irvine : It could, but I would not then rush out and say, 'If someone doesn't turn up they will then be detained.'

Senator RHIANNON: In that report, the monitor stated that no apparent justification had been given for permitting ASIO to detain a person for seven days rather than some shorter period of time. Why is it necessary for ASIO to be able to detain a person for seven days?

Mr Irvine : I cannot give you the exact reasoning behind that decision of the parliament, except to say that there needs to be a time limit on the period of detention and seven days was chosen probably because that gives ASIO the best opportunity to resolve the situation. And if it needed to be continued then appropriate approvals in this process would be required.

Senator RHIANNON: Considering your last comment about appropriate approvals—that you could use those—doesn't that further emphasise the seven days, particularly in a country like Australia that really values its civil liberties? It has got used to a certain standard, I should say. I am sure everybody values their civil liberties if they have them. We have a certain standard here. Seven days seems to be an incredibly long time.

Mr Irvine : I would simply say that that is an issue that the Independent National Security Legislation Monitor has said he is going to look at and we will be very interested in his reply, and my experts no doubt will be saying what the period of time is if he asks them.

Senator RHIANNON: You would obviously be aware of the long-promised COAG review of federal and state counterterrorism laws, now about 11 months overdue. Have you had any interaction with Prime Minister and Cabinet or any other department about this review?

Mr Irvine : No. That is an issue for the Attorney-General's Department—the COAG issue.

Senator RHIANNON: Do you have a comment on the long delay?

Mr Irvine : No. I do not.

CHAIR: There are no other questions for ASIO. Mr Irvine, and your people who have joined us today, thank you very much, once again, for your attendance at estimates. It is much appreciated.