Office of the Inspector-General of Intelligence and Security

[22:18]

CHAIR: I now welcome to the table officers from the Inspector-General of Intelligence and Security. Would you like to make an opening statement?

Dr Thom : No, I do not wish to make an opening statement.

Senator XENOPHON: Dr Thom, you issued a statement on 6 December last year stating that no current or former ASIS officer has raised concerns with the office about any alleged Australian government activity with respect to ASIS activities in East Timor. Are you familiar with that statement?

Dr Thom : Yes I am. I have it in front of me.

Senator XENOPHON: In respect of that statement you state in the fifth paragraph:

I have spoken to my predecessor and he has confirmed that to the best of his recollection no current or former ASIS officer raised concerns with his office about any alleged Australian government activity with respect to East Timor, during his term as IGIS, and that he had no discussion with any former or current ASIS officer about any such concerns.

Dr Thom : That is correct.

Senator XENOPHON: Bernard Collaery's statement in the 156th Report of the Senate Privileges Committees, which was released this month, asserts that in 2008 a former ASIS officer approached the then Inspector-General of Intelligence and Security, Mr Ian Carnell. Have you had a chance to see what Mr Collaery has said in respect of that?

Dr Thom : I have seen his statement in the Senate.

Senator XENOPHON: As a result of seeing his statement to the Senate Privileges Committee are you undertaking any lines of inquiry in respect of that?

Dr Thom : No.

Senator XENOPHON: Are you now in a position, though, to alter your statement of 6 December 2013?

Dr Thom : I stand by my statement.

Senator XENOPHON: In what respect? You say that you spoke to your predecessor. So you accept that your predecessor has no recollection of any complaints made in respect of any alleged Australian government activity with respect to East Timor?

Dr Thom : All I can do is repeat the words of my statement saying I have spoken to my predecessor—

Senator XENOPHON: No, let's not waste time on that. Your statement is on the public record. As a result of Mr Collaery's statement to the Privileges Committee, and his public statement, you do not concede that there may have been an approach made to your predecessor in respect of these matters. I am not criticising your predecessor, per se. I am saying that he may not have remembered it. But you are saying that you have no cause to in any way modify your statement of 6 December.

Dr Thom : I conducted a comprehensive search of our records and I spoke to my predecessor and I have no reason to change my statement.

Senator XENOPHON: So there was no correspondence in respect of the allegations made by Mr Collaery?

Dr Thom : I cannot comment on Mr Collaery's statement at all.

Senator XENOPHON: It relates to Witness K. You are familiar with the Privileges Committee?

Dr Thom : I am familiar with his statement. I have read his statement.

Senator XENOPHON: It refers to a Witness K, and obviously the witness has to be protected, for obvious reasons, as a former ASIS officer. Have you contacted Witness K, for instance?

Dr Thom : I cannot comment on any particular potential complainant, alleged complainants, or complaint to my office. I cannot give any details of any specific matters at all.

Senator XENOPHON: So you cannot even tell this committee that as a result of the statement of Mr Collaery to the Senate Privileges Committee, which makes reference to allegations of Witness K writing to your predecessor back on 25 March 2008, and an allegation that on 2 April 2008 Mr Carnell wrote to Witness K—have you looked for the correspondence referred to in the allegations made in the Privileges Committee document?

Dr Thom : I cannot comment on any records I have in my office regarding any complaint, and that is not to say that any complaint was made. I cannot really comment on any of the functions of my office.

Senator XENOPHON: I find your answers extraordinary. But going back a step, you have said that you stand by your statement of 6 December 2013. You are able to say that?

Dr Thom : Yes.

Senator XENOPHON: And can you say that as a consequence that you have read the document referred to by Mr Collaery to the Senate Privileges Committee? Can you say that?

Dr Thom : I have read the report the Senate Privileges Committee—

Senator XENOPHON: Which is effectively a statement. It is a right of reply, if you like. You have read that?

Dr Thom : Yes, I have read that.

Senator XENOPHON: Can you tell this committee whether you have made any inquiries whatsoever as a result of the statement of Mr Collaery to the Senate Privileges Committee?

Dr Thom : I made a full and comprehensive search of our records to prepare this statement—

Senator XENOPHON: This statement is dated 6 December. This report of the Senate Privileges Committee is dated May 2014. When did you see the statement of Mr Collaery?

Dr Thom : It would be in the last couple of days.

Senator XENOPHON: Right. So at the time you made the statement of 6 December 2013, had you seen the statement of Mr Collaery?

Dr Thom : No, I could not have.

Senator XENOPHON: That makes sense to me, just in terms of the time line. As a result of the allegations contained in Mr Collaery's statement, and given your statutory powers and your statutory functions as set out in particular in section 8 subsection (2), and in particular section 8(2)(a)(iii), have you made any further inquiries in respect of that?

Dr Thom : I am aware of the searches that were conducted at the time, and I have no reason to believe that the search that was conducted in December would not have turned up any relevant information.

Senator XENOPHON: Although, in the statement, Mr Collaery makes specific reference to dates of 25 March 2008, about Witness K writing to your predecessor, and about your predecessor writing back to Witness K on 22 April 2008.

Dr Thom : My search covered all documents in the office post-2004. It would have uncovered all relevant documents.

Senator XENOPHON: And those searches were after you read Mr Collaery's statement?

Dr Thom : No. The search was conducted to prepare the statement in December.

Senator XENOPHON: Sure, but you did not see at the time you prepared the statement—6 December 2013—Mr Collaery's statement that was referred to in the Senate privileges committee's 156th report?

Dr Thom : No I had not seen that statement. That is correct.

Senator XENOPHON: As a result of now having seen that statement subsequent to the preparation of your report on 6 December 2013, what steps will you be taking—including speaking to Witness K?

Dr Thom : At the moment, I do not intend to take any further steps.

Senator XENOPHON: Are you suggesting that Witness K is mistaken?

Dr Thom : I am not suggesting anything.

Senator XENOPHON: Are you suggesting that Mr Collaery is mistaken?

Dr Thom : I am not suggesting anything.

Senator XENOPHON: Are you suggesting that Mr Carnell is mistaken?

Dr Thom : I am not commenting at all on that.

Senator XENOPHON: But what you can tell this committee, given your very clear statutory powers in section 8 of the act that establishes your functions and powers, is that you prepared a report on 6 December. Subsequent to the preparation of that report, further information and allegations were made by Mr Collaery making specific reference to Witness K, and you have not taken any further steps since that?

Dr Thom : That is correct.

Senator XENOPHON: And you are not planning to do so?

Dr Thom : At the moment, I am not planning to take any further steps.

Senator XENOPHON: Will you be reconsidering it as a result of this recently published report of the Senate privileges committee?

Dr Thom : At the moment, I am not planning to take any further steps.

Senator XENOPHON: Even though you have certain statutory powers in relation to the propriety of the particular activities of an agency?

Dr Thom : I do have statutory powers, yes.

Senator XENOPHON: So there are no alarm bells, red flags or yellow flags that you should be looking at this further?

Dr Thom : As a result of this particular statement, no.

Senator XENOPHON: Can you confirm that Witness K has not been approached by you?

Dr Thom : I cannot confirm anything in terms of the activities of my office.

Senator XENOPHON: Let us go again to the issue of Timor-Leste in relation to an undertaking given to the International Court of Justice by the Australian government that the Australian government will not be examining any of the Mr Collaery's documents in relation to the case. Are you familiar with the undertaking?

Dr Thom : I understand that there is an undertaking . I am not familiar with the exact terms of the undertaking, but I understand there is an undertaking.

Senator XENOPHON: Do you see it within the purview of your functions and powers to examine the terms of that undertaking?

Dr Thom : I do not oversee actions of the minister, so, in terms of the terms of the undertaking, no. However, if the Attorney-General had given an instruction to an agency, I would consider it to be within my powers to ensure that the agency complied with the instruction given.

Senator XENOPHON: Who checks the undertaking, in your view? Given that it relates to intelligence and given that it related to allegations in respect of ASIS?

Dr Thom : Could you repeat that question?

Senator XENOPHON: Who checks the undertaking there?

Dr Thom : I do not understand what you mean by 'who checks the undertaking'.

Senator XENOPHON: There is an undertaking given. It relates allegedly to activities by ASIS in respect of East Timor a number of years ago. That is a subject of the International Court of Justice proceedings. Undertakings have been given. Do you consider that your office has a role to, firstly, examine the undertaking and, secondly, to ensure that the undertaking is being complied with, given the subject matter of the proceedings in the International Court of Justice?

Dr Thom : If the Attorney-General was the decision maker in respect of an undertaking, my office does not have a role in looking at the terms of the undertaking. If the Attorney-General gives an agency instructions as to how the undertaking should be implemented, it would be my role to ensure that the agency followed those instructions.

Senator XENOPHON: So that means you have a role to ensure that the documents that have been sealed under the terms of the undertaking remain sealed?

Dr Thom : Yes.

Senator XENOPHON: Have you had any role to ensure that that is the case?

Dr Thom : I have been briefed by ASIO and they have given me assurances as to how they are protecting the documents.

Senator XENOPHON: And you have accepted the assurances on face value?

Dr Thom : Yes.

Senator XENOPHON: You may remember 23 April, when Senator Marshall, who is not here, pulled me up for being outside the terms of reference of that inquiry into telecommunications powers in relation to the issue of economic benefit—in other words, how do you distinguish between spying for the economic wellbeing of Australia versus the wellbeing of a particular company or companies? That relates to the powers contained in section 11(1) of the Intelligence Services Act. Do you recollect that interchange?

Dr Thom : I do.

Senator XENOPHON: I think you were going to take some of those matters on notice, so it is no surprise to you that I am raising those matters with you now. What is the test for determining whether the activities of ASIS relate to the economic wellbeing of Australia versus the wellbeing of a particular company or companies?

Dr Thom : I said at the time, and I will repeat now, that there is no simple test that can be applied in such matters.

Senator XENOPHON: I can do complex. Can you tell me what the complex test is?

Dr Thom : It is important to note that the functions of all the foreign intelligence agencies are to obtain intelligence in accordance with government's requirements. That is information or intelligence about the capabilities, intentions or activities of people or organisations outside Australia and to communicate in accordance with the government's requirements for such intelligence. So let us first remember that it has to reach the threshold of being in accordance with the government's requirements. The government's requirements for intelligence are set by the National Security Committee of cabinet. They set the priorities which guide collection by ASIS and other intelligence agencies. Australia's national security, foreign relations or national economic wellbeing are overlapping categories. You cannot always clearly differentiate between the three.

Senator XENOPHON: Can we pause there. I am grateful for your answer. If an espionage objective—or spying target, to put it colloquially—is considered to be to the economic wellbeing of an Australian owned or majority Australian owned firm, is that a factor, and I will not put it any higher than that, that can be considered to be a sufficient criterion to also deem it to be to the economic wellbeing of Australia in the context of section 11(1) of the Intelligence Services Act?

Dr Thom : I am not part of the decision making to decide what the government requirements for intelligence are.

Senator XENOPHON: But do you have a role to ensure the limits on the agencies' functions as set out in section 11(1) of the Intelligence Services Act? That section provides:

The functions of the agencies are to be performed only in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia.

You do not see that your office has a role to determine whether the limits on the agencies' functions are appropriately applied?

Dr Thom : Yes, I do have a role to ensure that the agencies act within the limits of their functions.

Senator XENOPHON: And, in order to determine whether they are acting within the limits of their functions, don't you need to apply some form of criteria or tests in order to perform your role?

Dr Thom : Yes, I do and I was explaining that those tests are complex. The first test would be to ensure that it was in accordance with government requirements. Then it would be looked at to see whether it related to, as you said, foreign relations, economic wellbeing or national security. I explained that those tests are not discrete tests; things can overlap. For example, cooperation with allies in relation to the prevention of terrorism could be for the purpose of both national security and foreign relations.

There are not many public documents that describe the subjects of intelligence reports, particularly for ASIS. The director-general of ASIS gave a public speech a couple of years ago and he described the type of thing that was covered by ASIS reporting. As he described it, it covered everything from political developments to economic growth to defence modernisation to social cohesion. He also described that ASIS intelligence reporting:

… can also improve the quality of strategic decision-making, assisting government in the prosecution of Australia's defence, foreign and trade interests, helping to enhance regional stability and avoiding strategic miscalculation.

For example, intelligence about economic growth in a particular country could be for foreign relations and also national economic wellbeing. So national economic wellbeing is a broad umbrella, if you like, and there are many areas of intelligence collection that could fall under it. The prosecution of Australia's trade interests could also be a purpose related to national economic wellbeing.

Senator XENOPHON: Dr Thom, thank you for reading that into the record. But what role do you have? It is not simply what the Director-General of ASIS says. Don't you have a role to objectively assess that?

Dr Thom : If I had questions about whether an activity of ASIS fitted within their mandate, I would firstly look to see whether it was collecting intelligence in accordance with government's priorities and then to see whether it was in accordance with the legislation and those three broad areas given in the legislation.

Senator XENOPHON: But you are aware of the allegations made by witness K, aren't you?

Dr Thom : I cannot comment on allegations made by witness K or any particular operations of an agency.

Senator XENOPHON: You cannot say whether you have spoken to witness K, can you?

Dr Thom : I cannot say whether I have spoken to witness K.

Senator XENOPHON: Finally, you are aware of the matters raised and on the public record, for instance, on Radio National's Background Briefing,about whether someone who worked for government either for a department or within government then works for another agency—and I am not putting it any higher than that. Are they matters that you would consider in the course of exercising your functions?

Dr Thom : I am sorry, I am not aware of the briefing you are talking about.

Senator XENOPHON: The radio program Background Briefing. Perhaps I will put it on notice and attach a transcript of that program.

Dr Thom : Yes.

Senator XENOPHON: Thank you very much.

Senator JACINTA COLLINS: Dr Thom, could you provide the committee with a little bit more detail about what is required in terms of the upgrade to the IT network?

Dr Thom : I am sorry, I do not know what upgrade to the IT network you are referring to. We made a minor upgrade to our own internal IT network. Is that what your referring to?

Senator JACINTA COLLINS: In the budget statement on page 237, there is the statement under balance sheet that in 2014-15 it is anticipated that the secure IT network, which represents the most significant component of your assets, will be upgraded.

Dr Thom : We are a very small agency. We rely on PM&C for our open network. We have a small internal closed network. Although it represents a major investment for us, we are talking about the replacement of desktop and the operating environment. I cannot recall the exact figure, but it is not a large number. It is just a routine periodic replacement of our internal network.

Senator JACINTA COLLINS: Perhaps you could provide me with that actual figure on notice, because you also state at that point that OIGIS also holds office equipment and furniture, the majority of which are owned by the Department of the Prime Minister and Cabinet and provided free of charge.

Dr Thom : That is correct.

Senator JACINTA COLLINS: But that is not the case with the IT.

Dr Thom : Some of the IT is owned by PM&C and provided free of charge, but we have other systems as well.

Senator JACINTA COLLINS: Perhaps if you could clarify that point for me on notice. I am assuming from the earlier discussion and from the nature of your role, talking about your inspection program would be problematic in open session?

Dr Thom : I can talk about it in general terms but I cannot provide many specifics, I am afraid.

Senator JACINTA COLLINS: In general terms would be helpful.

Dr Thom : In general terms, I have a system of inspections whereby my staff go and review records in agencies. We have full access to all the records of agencies, all their documents, all their systems, all their premises and look to ensure that they are compliant with the legislation with ministerial directions and with internal policy documents.

Senator JACINTA COLLINS: So you have an inspection program year by year? Is that the case?

Dr Thom : It is like an audit program and every year we send out a program to the agencies, saying what records we will be inspecting. Staff go to agencies on certain days and review their records and speak to their staff.

Senator JACINTA COLLINS: Is that all agencies or certain ones?

Dr Thom : They are the six agencies that we have jurisdiction over. The agencies that constitute the bulk of our work are ASIO, the Australian Signals Directorate and ASIS.

Senator JACINTA COLLINS: So in one year you might focus on one particular part of ASIO? How does the program work?

Mr Blight : With ASIO there are some areas of high risk that we target frequently. For example, we look at approximately one-third of all ASIO's special powers warrants and we look at a sample of ASIO cases. That sample is not always randomly selected. We tilt that towards cases of higher risk.

Senator JACINTA COLLINS: Is there anywhere you outline that in a bit more detail, rather than taking time now?

Dr Thom : In our annual report we set out our program.

Senator JACINTA COLLINS: In your annual report do you cover the complaints processes?

Dr Thom : Yes, we do cover the complaints processes.

Senator JACINTA COLLINS: How have complaints been trending?

Dr Thom : We get two broad categories of complaints. The majority of complaints are in fact in respect of delays in security assessments for visas. ASIO performs the security assessments and provides the result to the department of immigration. The majority of complaints are about those. They have been steady at about 450 a year for the last two years, and it looks as though this year is trending towards the same number. The other complaints we receive can be from agency employees or members of the public who have concerns about often alleged behaviour or alleged actions of the intelligence agencies.

Senator JACINTA COLLINS: What proportion of your work would you describe as complaints based, as opposed to ministerial directions or requests——I am not sure of the right word—as opposed to motions of your own instigation?

Dr Thom : Historically, the office said that it spends about 80 per cent of its time on inspections. Over the last few years the actual inquiry work—that is, work either initiated by me or inquiries that have been referred by the Prime Minister or a minister—have taken up an increasing amount of our time. I would think that over the last financial year inquiry work has probably hit about 35 per cent of our workload. Complaints probably take about 10 per cent of our time.

Senator JACINTA COLLINS: How much can you tell me about your inquiry work? I refer to inquiries initiated on your own instigation as opposed to prime ministerial or ministerial requests or directions—I am still struggling for the right word.

Dr Thom : The word is requests—which are really directions, actually. In the last current financial year I finalised three inquiries. In April last year I initiated an inquiry into the provision of weapons in the training and use of weapons and self-defence techniques in ASIS. I have now completed that inquiry.

Senator JACINTA COLLINS: Was that one of your own instigation?

Dr Thom : That was one I initiated myself. The legislation, the Intelligence Services Act, which allows ASIS to train and equip specified staff or agents with weapons and self-defence techniques, has special provisions that really require quite a lot of oversight from us. I thought it was timely, in view of the fact that these provisions had been in place for almost 10 years, to have a good look at the systems in place in ASIS. We made various recommendations to improve the systems that they have in place. They have accepted those recommendations and are currently implementing them.

Last year I also initiated an inquiry into the attendance of lawyers that ASIO interviews for security assessments. I finalised that inquiry last year, and ASIO have accepted four of the recommendations and have been implementing them. Last year, at the request of the Prime Minister, I also commenced an inquiry into the matter of an Egyptian irregular maritime arrival who arrived in Australia and was the subject of an Interpol red notice and how agencies, not just agencies in the Australian intelligence community but also the Australian Federal Police and Immigration, handled that matter. I completed that inquiry earlier this year and provided the report to the minister. The summaries of all those inquiries are on my internet site.

Senator JACINTA COLLINS: And the recommendations of the last one?

Dr Thom : The recommendations of the last one are on the website, yes.

Senator JACINTA COLLINS: Has there been any response to that one at this stage?

Dr Thom : The recommendations have all been accepted and are being implemented.

CHAIR: May I confirm that that was the case of Mr E? Is that correct?

Dr Thom : That is right.

CHAIR: Are there any further questions? As there are none, I thank you, Dr Thom, and your officers for your attendance this evening. It has been very interesting. I thank the minister, Hansard and the secretariat. The committee will now adjourn and resume tomorrow morning at 9 am with Department of the Prime Minister and Cabinet.

Committee adjourned at 22:44