No plans for specific ASD intelligence inquiry, says Inspector-General



news Australia’s Inspector-General of Intelligence and Security has stated they have no plans to initiate a specific inquiry to examine allegations the Australian Signals Directorate had offered to share data about Australian citizens with foreign intelligence agencies, stating they believe current oversight of the ASD to be “sufficient”.

Last week The Guardian published documents sourced from former NSA contractor and whistleblower Edward Snowden which purported to show that the ASD, Australia’s peak electronic intelligence agency, had offered to share detailed information collected about ordinary Australian citizens with its major intelligence partners.

Subsequently, QC and human rights lawyer Geoffrey Robertson published an opinionated article arguing that the ASD had broken the law in offering the data to Australia’s international partners. The news has created outrage in Australia’s digital rights community, with organisations such as the Greens, Electronic Frontiers Australia and the Pirate Party Australia calling for a full-scale parliamentary inquiry into surveillance practices. The Opposition has not yet stated it will support an inquiry, but has stated it is open to a conversation on the issue.

A number of other intelligence issues have also come to the fore of Australia’s national debate, such as the revelations that the ASD had bugged the phones of senior Indonesian officials, and also that Australian diplomatic missions had been used throughout the Asia-Pacific region for intelligence-gathering activities. The revelations are broadly sourced from and come in the context of documents released globally by Snowden.

Due to the sensitive nature of intelligence work, there are relatively few oversight mechanisms for agencies such as the Australian Signals Directorate, the Australian Security Intelligence Intelligence Organisation and the Australian Secret Intelligence Service.

One of those mechanisms, the Parliamentary Standing Committee on Intelligence and Security, has been out of action since the September election, as the Government has not yet re-established it. Another is the Inspector-General of Intelligence and Security. Attorney-General George Brandis has cited both as examples of satisfactory oversight of agencies such as the ASD.

The Inspector-General of Intelligence and Security provides independent assurance for the Prime Minister, senior ministers and Parliament as to whether Australia’s intelligence and security agencies act legally and with propriety by inspecting, inquiring into and reporting on their activities.

Last week, in the wake of The Guardian’s revelations, Delimiter contacted the Inspector-General of Intelligence and Security to inquire whether it would investigate The Guardian’s revelations, with particular consideration to Robertson’s opinion the ASD’s actions may be illegal. Subsequently, global privacy group Privacy International filed a formal complaint with the Inspector-General about the ASD’s reported actions, with the support of the Australian Privacy Foundation.

After repeated requests for comment over a period of a week, in response, the Inspector-General, Vivienne Thom, stated that she would not comment on particular allegations that have been raised in the media. “In my view, the current on-going oversight regime is appropriate and sufficient to provide assurance about the practices of ASD. I am not planning to initiate a particular inquiry,” Thom wrote in an email.

By way of further information, the Inspector-General wrote that her office’s staff had “visibility of all of ASD’s activities”.

“We are briefed on sensitive operations and receive intelligence product,” Thom wrote. “Staff have access to ASD’s systems and records. Our particular focus is on how ASD protects the privacy of Australians but we also have regard to the legality and propriety of other ASD activities and whether the activities are consistent with human rights.”

“The Intelligence Services Act 2001 sets out ASD’s functions. ASD is required to obtain intelligence about the capabilities, intentions or activities of people or organisations outside Australia for the purpose of meeting the requirement of the government for such intelligence. The limits of ASD’s functions are also set out. Broadly speaking, the functions are to be performed only in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being. Certain activities, including any activity to produce intelligence on an Australian person, require the prior authorisation of the Minister.”

Thom wrote that the legality of any particular operation would depend on whether the purpose was consistent with a function of ASD, whether it was within the limits, and whether the activity had an appropriate level of approval. If any breaches of the legislation were identified, including breaches of any directions or authorisations given by the Minister under legislation, they would be described in general terms in the Inspector-General’s annual report (available online). National security considerations usually prevent specific details from being given in a public report, according to the Inspector-General.

“ASD can only cooperate with an authority of another country to the extent authorised by the Minister for Defence,” Thom added. “IGIS staff review the exchange of information with foreign authorities to ensure that it is within the limits of this authorisation. There are particular rules regulating the communication and retention by ASD of intelligence information concerning Australian persons. IGIS staff review ASD’s application of these rules.”

The news represents the second time this month that the Inspector-General has backed away from allegations of surveillance overreach by Australian intelligence agencies. Last week Thom published a statement with respect to allegations of Australian spying on East Timor officials during negotiations.

“In light of recent media reporting I would like to confirm that, to the best of my knowledge, no current or former [Australian Secret Intelligence Service] officer has raised concerns with this office about any alleged Australian Government activity with respect to East Timor since my appointment in April 2010,” wrote the Inspector-General on 6 December.

“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 this office about any alleged Australian Government activity with respect to East Timor during his term as IGIS and he had no discussion with any former or current ASIS officer about any such concerns.”

“The practice of this office is to make detailed records of any concerns raised with it, whether the concerns are raised in writing or orally, and regardless of whether the concerns are in jurisdiction or followed up. A search of our records since 2004 has revealed no record of any former or current ASIS officer having raised concerns with us about alleged Australian Government activity in East Timor.”

The news comes as some political players — such as The Greens — have continued to push for a formal Parliamentary Inquiry into allegations of surveillance overreach.

In a speech in the Senate last week, Greens Senator Scott Ludlam pointed out that other major countries had already initiated inquiries following Snowden’s revelations. “The European parliament is extremely concerned about this,” he said. “It immediately established an inquiry on electronic mass surveillance, once the revelations had been made public by The Guardian and The Washington Post. The French, Canadian and German parliaments, and Westminster itself-all considered like-minded democracies-initiated inquiries immediately. This was followed by Brazil, Ecuador and many others. In the United States, the head of the NSA was called before congressional committees and told to explain himself.”

“What do we have in Australia? We have the ALP and the Coalition hiding-cringing, in fact-behind the statement ‘We do not comment on intelligence matters’ or they claim that everything happening here and in the US is entirely within the law. Why then refuse even the mildest terms of reference for a thorough inquiry into these matters? Until fairly recently the government’s tactics were nothing more than denial, obfuscation, ‘pretend it’s not happening’, the political equivalent of curling up into a tiny little ball under your desk and just pretending and hoping that this will all go away.”

I’m not sure whether the Australian Signals Directorate has stepped over the mark here or not; I don’t think there is enough evidence yet to know for sure. That’s why I personally would like the Inspector-General of Intelligence and Security to open an inquiry into the matter. That, after all, would appear to be their job. Thom’s statement that she believes the current oversight regime of the ASD is “appropriate and sufficient” is not, on the face of it, reassuring. It’s a pity. Because what the Australian population is demanding right now is reassurance — that our own intelligence agencies aren’t spying on us and then handing over the data to foreign countries.

Image credit: Mateusz Stachowski, royalty free