18 October 2014


The latest annual report [PDF] by the Inspector-General of Intelligence & Security (IGIS) under s 35 of the Inspector-General of Intelligence and Security Act 1986 (Cth) is now online.

The report states
Under the IGIS Act, the IGIS can conduct a formal inquiry into a matter based on a complaint, of the IGIS’s own motion, or in response to a ministerial request. The Act establishes certain immunities and protections and provides for the use of strong coercive powers in such inquiries. These include the power to compel the production of information and documents, to enter premises occupied or used by a Commonwealth agency, to issue notices to persons to attend before the IGIS to answer questions relevant to the matter under inquiry, and to administer an oath or affirmation when taking evidence.
When coercive powers are used, the IGIS Act provides protections to people who have given the OIGIS information. Those compelled to give information are protected from any penalty under Commonwealth or Territory law that would ordinarily arise from disclosing that information. The responsible minister is advised when the IGIS begins an inquiry into a particular agency, and is also advised of any conclusions or recommendations arising from the inquiry. 
The IGIS also provides opportunities for ministers, agency heads and affected individuals to comment during the course of an inquiry. During 2013–14 I completed three inquiries that were carried over from the previous reporting period. Details of these are set out below. A new inquiry was initiated following on from one of these inquiries and remained open at the end of the reporting period. I will report on my conclusions and recommendations from this inquiry in my annual report for 2014–15.
Inquiry into the attendance of legal representatives at ASIO interviews
The 2012–13 Annual Report noted the progress of an inquiry following a complaint alleging ASIO officers had made arbitrary decisions regarding the attendance of legal representatives at security assessment interviews. My preliminary inquiries identified some inconsistencies between ASIO records and those of the complainant, as well as potential communication issues between ASIO and Immigration. Consequently, I decided to initiate an inquiry into the specific complaint, and to matters relating to ASIO interviews more broadly.
In conducting the inquiry, I considered a range of ASIO policy documents and records, including records of interviews other than those in the original complaint, and interviewed a number of ASIO staff. I also obtained statements from several legal representatives who had attended, or attempted to attend, ASIO interviews with their clients.
I found that ASIO’s internal guidance was both sound and appropriate, and does not preclude the attendance of legal representatives at ASIO interviews. However, ASIO has discretion not to interview a person in the presence of a particular lawyer if it believes the presence of the lawyer would be counterproductive to the conduct of the interview. As such, I concluded that the attendance of legal representatives should be considered on a case-by-case basis, with the default position to allow such attendance.
I found that the attitudes of individual officers, combined with the process established by ASIO and Immigration to arrange interviews, strongly discouraged the attendance of legal representatives. In addition, ASIO differentiated between legal representatives and migration agents, precluding migration agents from attending interviews altogether.
This inquiry led to a number of recommendations. Specifically, ASIO should: u work with Immigration to ensure arrangements for visa security assessment interviews facilitate the attendance of legal representatives u improve training in, and staff awareness of, internal policy relating to the potential presence of lawyers at visa security assessment interviews u clarify the status of any third party wishing to attend a visa security assessment interview to ascertain if they are the interviewee’s legal representative, and further consider affording migration agents the same status as lawyers, with their attendance being addressed on a case-by-case basis u improve guidance to officers in relation to undertakings of confidentiality. ASIO agreed to these four recommendations. I also noted in the report that, in my view, visa applicants should be clearly advised that interviews with ASIO are voluntary. A fifth recommendation was made to adjust the current guidance for staff. This recommendation and some supporting text was afforded a national security classification by ASIO and cannot be publicly released. ASIO agreed, in part, to this recommendation. The inquiry report is classified but a public abridged version is available on the IGIS website. 
At the end of the reporting period ASIO provided advice about the implementation of the recommendations:
  • In March 2014, after consultation between ASIO and Immigration, the advice provided by Immigration to visa security assessment interviewees was revised to state that the interviewee is entitled to bring a legal representative. 
  • ASIO has updated guidance to staff, training and policies relating to visa security assessment interviews. In particular, shortly after the end of the reporting period ASIO finalised a policy on visa security assessment interviews. Training and guidance to staff now reflect the policy position that visa security assessment interviews should commence without efforts to discourage the attendance of a legal representative. 
  • ASIO’s new policy and training requires interviewing officers to clarify the role of a third party seeking to attend a visa security assessment interview to ascertain whether they are the interviewee’s legal representative. The presence of migration agents at a visa security assessment interview is considered on a case-by-case basis. 
  • Revised guidance about confidentiality undertakings addresses the concerns raised in the inquiry.
Inquiry into the management of the case of Mr E
Last year I commenced an inquiry at the then Prime Minister’s request into the way that the Australian Federal Police (AFP), Immigration and ASIO handled the case of a particular Egyptian asylum seeker, ’Mr E’, who presented complex security issues and, more generally, the management by Australian government agencies of complex security cases.
The purpose of the inquiry was not to establish whether the identified individual posed a threat to security but rather to look at whether the relevant agencies had, and followed, appropriate procedures to identify, assess and manage any such threat.
I completed this inquiry and provided the report to the Prime Minister in January 2014. The inquiry report is classified but a public abridged version is available on the IGIS website.
The inquiry found that, although ASIO held information that might have caused it not to clear the individual for community detention, ASIO’s security assessment processes at that time did not include consideration of that information. Different areas of ASIO dealt with the potential match to alerts connected to the Interpol red notice and the community detention checks, and the two areas did not communicate effectively with one another.
Immigration lacked awareness of the types of security checks ASIO conducted and it is not clear that relevant ministers received advice about the rigour of the checks. Within ASIO, guidance provided to staff was inadequate. Operational staff misunderstood the intentions of ASIO’s senior executive and the process of checks conducted differed from that approved by the ASIO executive.
The inquiry found that Immigration made decisions on detention arrangements without a full appreciation of all relevant information. The AFP gave advice to Immigration over a period of time but there was no formal framework for such advice. Information held by separate parts of Immigration was not shared or interpreted consistently. ASIO provided no information to help Immigration assess or manage any detention risks.
The inquiry also found deficiencies in recordkeeping, particularly in Immigration. Key procedures and arrangements between mmigration and ASIO were not well documented. The report made a number of recommendations, primarily to Immigration. In summary these were:
  • u Immigration and ASIO should continue to build on recent improvements in implementing a coordinated approach to resolving potential matches to national security alerts and document agreed procedures. 
  • Immigration should develop procedures to ensure that the AFP is promptly notified of alerts for Interpol red notices. Immigration should continue to explore the feasibility of an automated system with the AFP. 
  • Immigration should access all relevant information in assessing the identity of an individual in cases that may involve national security issues and formalise arrangements to obtain identity resolution advice from the AFP. 
  • Immigration should review its procedures for conducting risk assessments in cases involving national security to ensure that those undertaking the assessment have access to relevant information and expertise, including from ASIO and the AFP. 
  • Immigration should ensure proper records are retained of a decision to place a person in a particular form of immigration detention on the basis of security concerns. 
  • Immigration and ASIO should ensure that, in the small number of cases where there are potentially national security issues, all relevant information is taken into account by Immigration when making immigration detention management decisions.
Significant changes were initiated in ASIO and Immigration prior to this case becoming a matter of public discussion. By the time this inquiry was finished, ASIO and Immigration had introduced considerably more robust security checking processes prior to community detention or the issue of bridging visas, and ASIO had published guidance for staff on how to do the checks and escalate and resolve concerns. Immigration had established a team to identify and oversight national security and serious criminality cases.
At the end of the reporting period the agencies advised me of their progress on implementing the inquiry recommendations. Immigration advised that coordination and collaboration between the Department, ASIO and the AFP had improved significantly. I was provided with details of actions taken and a copy of the Persons of interest placement operational procedures document, which guides staff regarding the placement of detainees who are of interest to law enforcement, intelligence and/or other agencies for criminal or national security matters. This document was developed in response to the inquiry recommendations.
ASIO notes that it continues to advise Immigration on significant emerging threat issues through providing adverse security assessments and discussing impending assessments where this would assist Immigration’s decision making on detention issues. Where ASIO holds information potentially relevant to Immigration’s consideration of a person’s overall visa suitability, a qualified visa security assessment may be issued. I was provided with a procedural document relating to security assessments for IMAs for whom Immigration is considering the grant or re-grant of a bridging visa, or for those being placed in community detention. This will provide formal guidance for officers in both agencies for handling referrals which potentially match national security alerts. 
The AFP advised that similar subsequent cases have seen the agency implement measures addressing the inquiry’s recommendations, including case management meetings to facilitate complete assessment and sharing of all available information among stakeholder agencies. Overall, all three agencies have made sound progress to strengthen communication and information-sharing between the agencies. Internal policies and procedures have been developed and documented to address the deficiencies highlighted in the inquiry report.
Inquiries into the use of weapons and self-defence techniques in ASIS
In April 2013, I commenced an inquiry into the use of weapons and self-defence techniques in ASIS. The inquiry was finalised in November 2013. The inquiry report is classified but an unclassified executive summary is available on the IGIS website.
The inquiry noted that overall ASIS had managed the training in and use of weapons and self- defence techniques well. Two breaches of the ISA occurred between 2004 and mid-2013, both involving the discharge of a firearm without appropriate prior approval. However, both incidents occurred within controlled weapons training environments and were not indicative of systemic issues. (I note elsewhere in this report that in the 2013–14 reporting period there were three further, similar breaches of the ISA relating to the unauthorised use of a firearm.) 
Two main concerns were identified by the 2013 inquiry. The first was in relation to delays in providing oleoresin capsicum spray and batons to some overseas Stations after this had been approved by the Minister on the basis that the weapons were necessary for the safety of staff. The inquiry found the delays were due primarily to the lack of central governance of weapons policy and procedures in ASIS. The second concern related to the consumption of alcohol. ASIS policy at the time required that a person with a blood alcohol content above zero must not be issued with or have carriage of a weapon. The inquiry found some staff misunderstanding in relation to this requirement and that ASIS did not have adequate controls in place to provide assurance that there was compliance with this requirement.
Six recommendations were made as a result of the inquiry, most relating to the governance of weapons policy and procedures in ASIS. ASIS accepted all the recommendations and by the end of the reporting period most had been implemented. A number of the recommendations were waiting on the release of revised ASIS Guidelines for the use of weapons and self-defence techniques to be fully implemented. The most significant of these guidelines are in relation to the consumption of alcohol and controls to ensure compliance. Shortly after the end of the reporting period revised Guidelines covering these issues were implemented.
In December 2013 a further more serious incident occurred overseas involving an allegedly inappropriate action by an officer of another Australian government agency towards an ASIS officer. A review of the incident confirmed that ASIS did not yet have adequate controls in place to provide assurance that a person with a blood alcohol content above zero would not be issued with or have carriage of a weapon. While no physical injury resulted, the incident had the potential to cause serious injury. ASIS’s investigation of the incident highlighted systemic issues. I was advised by the Director-General of ASIS that the investigation also revealed that there were inaccuracies in the information provided to me during the course of my 2013 inquiry. My review of the ASIS investigation report and interviews indicated other substantial discrepancies.
In June 2014, I initiated a further inquiry into the management of weapons by ASIS in that particular location to examine these issues and related matters and to review the findings of my 2013 inquiry report. Further details of the inquiry will be included in my 2014–15 annual report.