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David Irvine: ASIO’s responsibility and ‘diligence in the shadows’

During my five years as director-general of Security, I have occasionally emerged from the shadows to talk on three specific subjects: the threats from terrorism and cyber-attacks and the Australian experience of managing a secret security intelligence service in a democracy under the rule of law.

In recent months I have been in the public arena more than is customary and perhaps more than I would prefer. This is because we are currently facing significant issues in relation to the security and the safety of Australians. We are also debating how to improve the mechanisms by which Australia detects and responds to security threats.

I want today to focus on three key points:

  • The threats Australia faces from espionage and terrorism are real, but they are manageable if we maintain our vigilance and update our intelligence capabilities to meet the changing demands of the operating environment.
  • It is my firm belief that Australia needs a security service, governed by law and with appropriate safeguards in place, to protect against threats to the nation’s security and the lives of our citizens.
  • The existing regime of checks and balances in respect of ASIO is working and does not need substantial revamping that merely increases the cost and bureaucracy but adds nothing the effectiveness of the oversight we already have.

The security environment today is becoming more complex since I was appointed as director-general of security in 2009, in part due to the march of technology and in part because of changes in the nature of the threats we face.

ASIO’s operational effort remains substantially focussed on:

  • Countering terrorism in Australia and overseas;
  • Detecting and countering the clandestine activities of foreign powers, including in the whole new worlds of cyber espionage and cyber sabotage, and;
  • Assisting in the securing of Australia’s borders and critical infrastructure.

The great evil of terrorism, from whatever source, is that it is designed to strike fear and cause mass casualties among innocent civilians. Such threats can come from a variety of religious and ideologically focussed groups, from the right or the left.

But our principal concern has for more than a decade been the threat from terrorism by extremists adhering to a particularly violent interpretation of Islam. In the case of al-Qa’ida and its various offshoots in the Middle East, Africa and South East Asia, not to mention the West, the intent is to punish, to foment social upheaval, destroy the public’s confidence in their governments. It is a doctrine of hate, brutality and inhumanity.

Australians have not been immune from such violence. Over one hundred Australians have died in terrorist incidents in the past twelve years. True, we have not had a terrorist attack on Australian soil in that period, but planning for a number of mass casualty attacks on our soil was detected and the attacks were thwarted by ASIO and its state and federal law enforcement partners.

We have long been monitoring a small number of Muslim Australians who support violent extremism and who frequently express the aspiration of conducting terrorist attacks in Australia. We have needed to be in a position to move quickly, to nips things in the bud, as soon as such people moved from talk to active planning to final preparations. It was not only groups who were of concern; a recurring nightmare has been the so-called lone-wolf, radicalised over the Internet, who had managed to avoid coming across our radar.

In the past two years, however, the situation in Syria and now Iraq has radically complicated the threat, adding energy and allure to the extremist Islamic narrative. The draw of foreign fighters to Syria and Iraq is significant and includes more Australians than all other previous extremist conflicts put together. The number of Australians of potential security concern to ASIO has increased substantially.

ASIO believes there are about 60 Australians fighting with the two extremist al-Qa’ida derivatives, Jahabat-al-Nusra and the Islamic State in Syria or Iraq. We believe 15 Australians have been killed in the current conflicts, including two young Australian suicide bombers. Another hundred people here in Australia are actively supporting these extremist groups, recruiting new fighters (and grooming new suicide bombing candidates), providing funding and equipment.

Not all of those Australians will return, but some tens of Australians have already returned and a good number of these remain of concern to the security authorities — people with potentially enhanced religious commitment to violence in the name of a distorted brand of Islam — and training in the use of weapons or bomb-making.

“ASIO must not lose sight of its crucial role to prevent and mitigate against espionage and cyber security threats.” 

I believe the threat of terrorism will be with us into the future, but that it should not be allowed to panic us or dominate our lives. We should use the powers of the democratic state and the courts to protect both the community and individuals. To this end, the government has recently sought to ensure that the national counter-terrorism effort is properly resourced and has appropriate legislative backing.

ASIO recognises that the tiny number of violent extremists does not represent the Islamic communities of Australia – we are talking about a few hundred aberrant souls in a community of nearly half a million — and it is grossly unfair to blame Muslims, who see themselves as a committed component of Australia’s multi-cultural society, for the sins of a tiny minority. Our fight is with terrorism, not with Islam or with our Muslim community.

We should also recognise that the strongest defence against violent extremism lies within the Australian Muslim community itself. Recent uniformed criticism of the leadership of Australia’s Muslim community ignores the fact that most Muslim leaders, both civilian and spiritual, have striven hard to address the problem of a few misguided people in their midst. I know from my own experience that the problem in Australia would be far greater without their efforts. We should thank them and continue to work with them.

In addition to treating all relevant stakeholders in Australia as partners, we anticipate there will be a spike over the next few years in the release of terrorist prisoners in, and the return of fighters from Syria and Iraq to, Indonesia. We should continue to support our Indonesian friends as we deal with the shared phenomenon of violent extremism.

While terrorism and physical violence is plain for all to see on our TV screens or in our newspapers or online, ASIO must not lose sight of its crucial role to prevent and mitigate against espionage and cyber security threats.

There is little I can say publically about the harmful actions of foreign powers, espionage and foreign interference, which are age-old threats. However, I can say that we are seeing growth in espionage and foreign interference against Australia, through both cyber and traditional methods. Further, the threat to government information from self motivated malicious insiders has increased. We are working across government and with private sector partners to meet this challenge.

We must continue to adapt and evolve as technology evolves, and ensure we address these complex challenges. Again, the government has recently introduced legislation that will go some way to modernising the ASIO Act — an act that that is in need of regular updating to reflect the rapid advances in technology and, in particular, the social media age.

ASIO and democracy

My final theme focuses on the role of a security service in a democratic society and how ASIO operates in a way which properly balances the security of Australia and Australians with their civil liberties.

It is important to remember that the ASIO adheres to the rule of law and operates under not just a strict legislative regime, but also comprehensive oversight and accountability regimes.

Each time changes to intelligence-related legislation are mooted, a veritable avalanche of objections or expressions of disquiet fill the media. This is a healthy and robust element of our democracy although some of the arguments may be informed by misplaced concerns or outdated or lazy stereotypes. I constantly feel the need to remind people that we are not the security apparatus of a non-democratic nation or totalitarian regime. My concern is that the debate should take place against a better understanding of how Australian democracy already provides appropriate protections of civil liberties while fulfilling the first duty of any government, which is to protect national security and to protect the lives of its citizens.

It is important the debate avoid paranoia, for example evoking the spectre of Big Brother, 1984, mass surveillance and mass violations of privacy, and that we consider such issues against the background of an existing regime of effective checks and balances, including effective accountability and oversight, developed over many years, to guard against any possible abuse of power.

ASIO’s role is to identify and assess possible threats to national security or to the lives and safety of Australians in sufficient time and accuracy to prevent such threats eventuating. Our work is predictive and advisory — an exercise in informing risk management and enabling government to take preventative actions. This is different from much law enforcement work, which focuses on the evidentiary process leading to prosecutions and executive action.

The other defining characteristic is the need for a security intelligence service to operate in secrecy. “Intelligence agencies simply cannot operate in full public view if they are to be effective.”

Why is this? As any journalist will understand, we need to protect our sources. If we are not discreet in our activities, we can put our important community contacts and covert human sources in real personal danger. If our operational techniques become known our adversaries have a better chance of disguising their malicious activities. Moreover, we must protect intelligence provided by our friends and allies. Such intelligence can be a significant force multiplier for Australia’s security.

Finally, secrecy is to the benefit of individuals whom ASIO may be investigating. The reputations, livelihoods and future prospects of such people, many of whom may turn out not to be of security concern after all, may be damaged if our work is not conducted discreetly, out of the public gaze.

So there we have it: predictive judgements to forestall threats and secrecy in a democracy! How do we manage all that?

Today’s intelligence community, its conceptual philosophy, its scope, its essential structure, its balance of human rights and state power, its operating procedures and its accountability and oversight mechanisms, derive in large part from the extraordinarily insightful work of Justice Hope in the Royal Commissions on Intelligence and Security held between 1973 to 1977 and again in 1983.

Flowing from Hope’s 1977 recommendations, ASIO’s security intelligence function is clearly defined in law, including the specific threats it is to address: espionage and sabotage, acts of foreign interference, attacks on Australia’s defence system, the promotion of communal violence, territorial and border integrity and, of course, politically motivated violence from whatever source, but specifically including terrorism, in Australia or overseas.

The methods ASIO may use to collect intelligence are also subject to the law. They include the use of overt and covert human sources, information supplied by foreign partners, and a range of intrusive methods that may in certain circumstances require a warrant such as interception of communications (including content of communications), use of listening and tracking devices, remote access to computers and overt or covert entry to and search of premises. In relation to counter-terrorism, the director-general may seek a warrant from an independent judicial authority to allow compulsory questioning to collect intelligence about terrorism and in limited circumstances the detention by the police of a person for questioning about terrorism.

As the director-general of security, my challenge is to ensure ASIO is taking all necessary steps to protect the security and safety of Australians and our democratic institutions while at the same time ensuring the appropriate protection of individual civil liberties and the life of the society we cherish.

This is not just a simplistic or theoretical conflict between national security and the rights of individuals; the security and safety of our citizens living within our community is just as much a human right as are the other civil liberties of individual citizens. As Justice Hope said: “In the final analysis, public safety and individual liberty sustain each other.” That is a fundamental working principle in ASIO.

It is essential that a robust and effective oversight and accountability framework exist for agencies that must conduct their work out of the public spotlight. I believe that we already have such a system in Australia.

“Australia’s approach maintains a clear focus on lawfulness, proportionality, and accountability …” 

Australia’s approach maintains a clear focus on lawfulness, proportionality, and accountability, achieved through legislation, Parliamentary oversight, ministerial accountability, and independent oversight.

ASIO is accountable directly to the Parliament. The organisation provides an annual report to the Parliament of its activities, has its activities scrutinised at Senate Estimates, it briefs the opposition, appears before the bipartisan Parliamentary Joint Committee on Intelligence and Security, and provides as required public and private briefings to various Senate committees. It is audited by the ANAO.

It also reports to the National Security Committee of Cabinet. ASIO is responsible for all its activities to the Attorney-General, who authorises each of ASIO’s warrants for its intrusive powers.

One feature of ministerial accountability that is typically not recognised in the public debate is that the ASIO Act requires the organisation to comply with strict guidelines issued by the Attorney-General. For example, in relation to politically motivated violence, the guidelines, which are publicly available, provide that any means used for obtaining information must be proportionate to the gravity of the threat, and that inquiries and investigations into individuals and groups should be undertaken using as little intrusion into individual privacy as is possible. It is a guideline to which ASIO scrupulously adheres.

In addition, ASIO’s security assessments may be subject to review by the Administrative Appeals Tribunal, the Independent Reviewer of Adverse Security Assessments, and the courts. There is also the Independent National Security Legislation Monitor to review the legislative framework for ASIO’s counter-terrorism work and suggest improvements.

Finally, and most importantly, independent oversight is exercised through the inspector-general of intelligence and security, with powers akin to a standing royal commission. The IGIS reviews the legality, propriety and proportionality of ASIO’s work. This is much more than a tick and flick exercise. The IGIS may access all of ASIO’s records and IGIS staff may enter ASIO premises at any time. The IGIS reports to the government and the Parliament on her findings.

In my view ASIO is properly accountable and properly over-sighted. ASIO does not act unlawfully or inappropriately. Given that, we need to avoid a knee-jerk reaction to add additional oversight or approval mechanisms every time we adjust ASIO’s operating legislation, as if additional bureaucracy and increased cost would provide a more effective and greater level of assurance to the public than those layers already in place and proven over decades.

So let me make the point again. ASIO necessarily works in the shadows. But doing so does not make the organisation unaccountable. ASIO works within the law. The organisation is accountable and responsive to those who oversee our work. And we simply must be to retain the confidence of the Australian government, the Parliament and the public so that we can continue to protect Australia from the security challenges it faces.

It has been a privilege and great intellectual challenge to have served as director-general of security for the past five years. I leave the position knowing that there are still major threats to be managed in the world of terrorism and espionage, particularly with advances in technology and the use of cyberspace. But I also leave knowing that Australia has got it right in the task of integrating the needs of national security and the civil liberties of our citizens.

I leave knowing that the people of ASIO have contributed substantially by their dedication, professionalism, judgement and discretion to the security and safety of Australians. They daily wrestle with decisions that balance intrusive national security requirements with the civil liberties and privacy of their fellow Australians. They cannot be named but Australia owes them a debt of gratitude.

This is an edited speech delivered by David Irvine to the National Press Club on August 27.

Author Bio

David Irvine

David Irvine is the director-general of security for the Australian Security Intelligence Organisation. He was formerly director-general of the Australian Secret Intelligence Service.