Tale of the Scorpion: ASIO and Australia’s Security: An Inside View

Barnett, Harvey, 1925-1995.  |  Australian Security Intelligence Organisation.  |  Intelligence service — Australia.  |  Secret service — Australia.  |  National security — Australia. viii, 231 p., [16] p. of plates : ill., ports. ; 25 cm. #0721 First Edition

The Australian Security Intelligence Organisation is Australia’s national security agency responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically motivated violence, attacks on the Australian defence system, and terrorism.[3][4] ASIO is comparable to the British Security Service (MI5).[5] ASIO is part of the Australian Intelligence Community.

ASIO has a wide range of surveillance powers to collect human and signals intelligence. Generally, ASIO operations requiring police powers of arrest and detention under warrant are co-ordinated with the Australian Federal Police and/or with state and territory police forces.[6]

ASIO Central Office is in Canberra, with a local office being located in each mainland state and territory capital.[7] A new A$630 million Central Office, Ben Chifley Building, named after Ben Chifley, prime minister when ASIO was created, was officially opened by then Prime Minister Kevin Rudd on 23 July 2013.

ASIO is the statutory body established and regulated under the Australian Security Intelligence Organisation Act 1979, responsible to the Parliament of Australia through the Department of Home Affairs. ASIO also reports to the Parliamentary Joint Committee on Intelligence and Security, Senate’s Legal and Constitutional Affairs Committee and is subject to independent review by the Inspector-General of Intelligence and Security. The head of ASIO is the Director-General of Security, who oversees the strategic management of ASIO within guidelines issued by the Attorney-General. The current Director-General of Security is Mike Burgess, who assumed office on 16 September 2019.^[9] There are also two Deputy Directors-General.

In 2013, ASIO had a staff of around 1,740.^[10] The identity of ASIO officers, apart from the Director-General, remains an official secret.^[3] While ASIO is an equal opportunity employer, there has been some media comment of its apparent difficulty in attracting people from a Muslim or Middle Eastern background.^[11][12] Furthermore, ASIO has undergone a period of rapid growth with some 70% of its officers having joined since 2002, leading to what Paul O’Sullivan, Director-General of Security from 2005 to 2009, called ‘an experience gap’.^[13]

Powers and accountability

Special investigative powers

The special investigative powers available to ASIO officers under warrant signed by the Attorney-General include:^[3]

• interception of telecommunications,
• examination of postal and delivery articles,
• use of clandestine surveillance and tracking devices,
• remote access to computers, including alteration of data to conceal that access,
• covert entry to and search of premises, including the removal or copying of any record or thing found therein, and
• conduct of an ordinary or frisk search of a person if they are at or near a premises specified in the warrant.

The Director-General also has the power to independently issue a warrant should a serious security situation arise and a warrant requested of the Attorney-General has not yet been granted.^[3]

An ASIO officer may, without warrant, ask an operator of an aircraft or vessel questions about the aircraft or vessel, its cargo, crew, passengers, stores or voyage; and to produce supporting documents relating to these questions.^[3]

Special terrorism investigative powers

When investigating terrorism, the Director-General may also seek a warrant from an independent judicial authority to allow:^[3]

• the compulsory questioning of suspects,
• the detention of suspects by the Australian Federal Police, and their subsequent interrogation by ASIO officers,
• ordinary, frisk or strip search of suspects by AFP officers upon their detainment,
• the seizure of passports, and
• the prevention of suspects leaving Australia.

The Director-General is not empowered to independently issue a warrant in relation to the investigation of terrorism.

Immunity from prosecution

While the Act does not define any activities specifically to be legal, that is, to grant immunity for any specific crime, it does provide exceptions that will not be granted immunity. Section 35k (1)^[3] defines these activities as not being immune from liability for special intelligence conduct during special intelligence operations. That is to say, an ASIO operative would be deemed to have committed a crime if they were to participate in any of the following activities under any circumstances:

• an activity that causes death or serious injury,
• torture,
• if the activity involves the commission of a sexual offence against any person, or
• if the activity causes significant loss of, or serious damage to property.

Collection of foreign intelligence

ASIO also has the power to collect foreign intelligence within Australia at the request of the Minister for Foreign Affairs or the Minister for Defence.^[14] Known as Joint Intelligence Operations, and usually conducted in concert with the Australian Secret Intelligence Service the purpose of these operations is the gathering of security intelligence on and from foreign officials, organisations or companies.^{[citation needed]}

Accountability

Because of the nature of its work, ASIO does not make details of its activities public and law prevents the identities of ASIO officers from being disclosed. ASIO and the Australian Government say that operational measures ensuring the legality of ASIO operations have been established.

ASIO briefs the Attorney-General on all major issues affecting security and he/she is also informed of operations when considering granting warrants enabling the special investigative powers of ASIO. Furthermore, the Attorney-General issues guidelines with respect to the conduct of ASIO investigations relating to politically motivated violence and its functions of obtaining intelligence relevant to security.^[3]

ASIO reports to several governmental and parliamentary committees dealing with security, legislative and financial matters. This includes the Parliamentary Joint Committee on Intelligence and Security and the Senate’s Legal and Constitutional Affairs Committee.^[15][16] A classified annual report is provided to the government, an unclassified edited version of which is tabled in federal Parliament.^[17]

The Office of the Inspector-General of Intelligence and Security was established in 1986 to provide additional oversight of Australia’s security and intelligence agencies. The Inspector-General has complete access to all ASIO records and has a range of inquisitorial powers.

Relationships with foreign agencies and services

Australia’s intelligence and security agencies maintain close working relationships with the foreign and domestic intelligence and security agencies of other nations. As of 22 October 2008, ASIO has established liaison relationships with 311 authorities in 120 countries.^[17]