Senator LUDLAM-Thank you, Mr Irvine, for coming in. This is by way of an icebreaker, because we have only a couple of minutes before dinner. I certainly appreciate that we have managed to make time for you on this occasion. This is my third estimates committee experience, and both previous times we have held you back so late that I think you have been sent home without actually getting in front of the committee. I am very pleased to be able to finally meet with you.

I will start with a general overview. I missed estimates this time last year. There have been very large increases in funding since 2000-in fact, quite a steep incline in the last two budget years, with some large one-off equity injections in 2007-08 and 2008-09. Can you describe for us in broad terms what the budget increases mean for your agency and what that capital funding was for?

Mr Irvine-Off the top of my head, the figures suggest that over a period of four years ASIO staffing moved from, I think, about 800 to its current position of about 1,600. By the end of next year or thereabouts, we will move to approximately 1,800. The reason for this very substantial increase is that, because of the advent of terrorism and the need to devote very considerable resources to protecting the Australian community against that particular threat, ASIO has had to increase its expertise. It is not so much its expertise but its capabilities across the spectrum-that is, it has had to develop the capability to provide reliable and useful threat assessments to the Australian government, which requires a highly developed analytical capability that four or five years ago we did not have to the extent required. It has required us to have considerably more intelligence officers who get out and do the business of security intelligence collection to identify and if necessary, and often in consultation and collaboration with other government agencies, to disrupt potential terrorist threats to Australia.

It was also found that over a period of time, due to focus initially on things such as the Olympics and then terrorism, our counterespionage capabilities had been run down and they needed to be built up again. In addition, we have had to increase the effort and the capability that we now have in respect of technology. As you know, that is a rapidly growing area and we have had to expand that to a level that is appropriate for Australia and the Australian security intelligence scene at present. That is roughly where expansion has occurred.

Proceedings suspended from 6.31 pm to 8.00 pm

CHAIR-We will reconvene our Senate estimates hearing into the Attorney-General's portfolio. We will continue with our questioning of the Australian Security Intelligence Organisation. Mr Irvine, I welcome you back to the table.

Senator LUDLAM-We had about four minutes before we broke for dinner. You had given us a basic overview of what it meant for the agency to have some quite substantial increases in funding. The second part of that question related to one-off blocks of equity funding over the last two financial years for, I understand, capital equipment. Can you just describe for us in broad terms what that was for.

Mr Irvine-The organisation has in the last two years been building up its technical capabilities very considerably in terms of IT equipment and so on. My understanding is also that another element of our capital equipment devolves on our new building and the work that will be going into that.

Senator LUDLAM-In the last two financial years-appreciating that some of this will have occurred a little while before you took up your position-there was about $150 million in 2007-08 and maybe $75 million in the last financial year.

Mr Irvine-I just ask where you are extracting those figures from.

Senator LUDLAM-I believe it actually came out of the budget papers. I can probably be more specific if you require.

Mr Irvine-Thanks.

Senator Ludwig-Sometimes it helps, Senator-

Senator LUDLAM-If you have the direct source?

Senator Ludwig-if you have the page so that the witness can view the figures with you.

Senator LUDLAM-No, I do not in this case.

Mr Irvine-What figure do you have for equity injections? You said $150 million.

Senator LUDLAM-I am reading it off a graph.

Mr Irvine-That would have been over the two previous years. I would actually prefer to give you a fuller answer on that particular question, which I basically cannot do off the top of my head. If you would allow me to come back on that one, I would be very happy to do so.

Senator LUDLAM-If you are able. While you are doing that, I will seek the direct reference for you, if you like, in the budget papers. That might be of assistance.

Mr Irvine-Thanks. I think I probably have it, but thank you.

Senator LUDLAM-Your agency operates under some fairly specific security requirements that do not apply to other agencies that we would normally speak to in estimates hearings.

Mr Irvine-Yes.

Senator LUDLAM-How do the Australian public know if they are getting value for money? What are your distinct outputs? How are we measuring the success of the agency, particularly benchmarked against big increases in funding?

Mr Irvine-I frankly think that is a difficult question to answer to the full satisfaction of the Australian public in the sense that, necessarily, ASIO's activities and its successes cannot be made public. So what the system has in place is, first of all, a form of reporting which is public. The annual report of ASIO is put forward in an unclassified form for the public. That necessarily tends to speak in generalities. For the government itself, there is a much more complete report of a highly classified nature. The second area of oversight, if you like, is through the Joint Parliamentary Committee on Intelligence and Security, which looks into the management and administration of ASIO. There are other measures of oversight that ensure or add substance to the notion of assurance to the Australian public that ASIO is indeed working effectively and with appropriate levels of probity.

Senator LUDLAM-I am a little more familiar with the role of the joint parliamentary committee, but can you describe for us in broad terms the classified reporting obligations that you have, presumably to the Attorney-General? What sort of form do they take?

Mr Irvine-In essence it takes the form of a typical Public Service annual report but sometimes it goes into quite considerable detail about cases and statistics that perhaps cannot be made public and so on.

Senator LUDLAM-That is annual? There is no form of quarterly reporting? That is one annual report document that is submitted to the AG?

Mr Irvine-Yes. There is, of course, a constant interplay between the organisation and the Attorney- General as to the activities of the organisation, sometimes on a day-to-day basis.

Senator LUDLAM-In broad terms, when we first began you obviously placed quite a strong emphasis on the counterterrorism work that you do. Can you explain that for us as a proportion of the agency's workload in rough numbers? Are you half preoccupied with counterterrorism?

Mr Irvine-I would be picking figures out of the air, but my sense is-I have not got before me a strict breakdown of operational effort-that it would be considerably more than 50 per cent.

Senator LUDLAM-So more than all the rest of the work of the agency combined?

Mr Irvine-I have to be a little more specific there. What do you mean by counterterrorism-or what do I mean by counterterrorism? Part of our threat warning responsibilities relate very directly and mostly but not completely to counterterrorism. A considerable number of our operational activities relate to counterterrorism-say, countering potential terrorism here in Australia. At the same time, we also conduct liaison activities with counterpart organisations overseas. There, again, a very large percentage of their actual work is probably devoted to the broad definition of counterterrorism, but there are other things as well. So I would say well over 50 per cent. I would be thinking, off the top of my head, probably well over 70 per cent.

Senator LUDLAM-Thanks. I guess I was just looking for that kind of broad-brush approach. You also described how over four years-I believe you mean to the end of 2010-you will have gone from 800 staff to approximately 1,800 staff, an increase of around 1,000 personnel.

Mr Irvine-Yes.

Senator LUDLAM-Is that work being almost entirely devoted to counterterrorism related operations?

Mr Irvine-Not entirely. Again, you just have that slight problem of specificity and definition. A very large part of it is going to counterterrorism, but it is also going to boost the IT and analytical capabilities of the organisations, most of which, roughly in accordance with how the organisation works, will be counterterrorism. Again, it would probably be about 70 per cent.

Senator LUDLAM-Thanks. Right at the beginning, again, you referred to owners and managers of critical infrastructure, public and private, within Australia. This is leaving the foreign domain and looking at your role within Australia. Can you just describe for us, maybe in a bit more detail, what you meant there.

Mr Irvine-I referred to that in terms of the potential for elements of critical infrastructure to come under threat. You can imagine for yourself the types of infrastructure we are talking about. It can include, obviously, the communications infrastructure, both electronic and physical. It can include the national infrastructure related to major resources and so on.

Senator LUDLAM-That is helpful. Communications networks, power infrastructure, water and critical infrastructure?

Mr Irvine-And also critical industries.

Senator LUDLAM-Such as?

Mr Irvine-At this stage, the new resource industries are pretty critical in terms of Australian national interests.

Senator LUDLAM-Again, you are still referring chiefly to the context of attack by external operatives or people of ill will? It is still the terror related side of things?

Mr Irvine-It is largely the terror related attack. We also work on the question of politically motivated violence within Australia, which frankly is at a small and manageable level. But in this case we certainly see that the biggest single threat to critical infrastructure from the violence point of view is potentially coming from terrorist-type attacks, yes.

Senator LUDLAM-This might seem as if it is something at a tangent, but it is related. I have had direct contact with constituents who have reported to me that they are people engaged in peaceful demonstrations outside power stations and so on. In one example, a man was holding up a banner outside the Kwinana coalfired power station in my state of Western Australia. He was subsequently visited by ASIO agents for a quiet chat. I wonder to what degree your agency is involved in tracking civil society groups involved in climate change activities, for example.

Mr Irvine-The short answer to that is that ASIO activities are very much governed by the ASIO Act. It is our responsibility to keep track of potential threats to national security. It is not our responsibility to prevent or impede anyone from conducting non-violent activities, as you say, as constituents of the civil society. If you like, I will try to find it quite quickly. I can actually find you that section of the act, because I think it is indeed very important.

Senator LUDLAM-If you like. That might be worthwhile.

Mr Irvine-It is section 17 of the act. It says:

This Act shall not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security, and the functions of the Organisation shall be construed accordingly.

So ASIO must operate under those conditions. It is within our rights to observe and talk to people about whether or not we may have some security concerns, but if there are no security concerns then it is not within our responsibility to pursue those matters.

Senator LUDLAM-But, given the severity and seriousness of the threats that your staff are engaged in assessing and juggling day to day, how many staff hours or how many people do you have engaged following around and tracking people who are holding up banners?

Mr Irvine-I simply cannot answer that question. I do not know. But I would be surprised if it would be very many, if any.

Senator LUDLAM-Well, it does occur. I know of more than one occasion of constituents of mine being approached after not so much as trespassing but appearing at a facility with a banner.

Mr Irvine-And you are sure they were approached by ASIO?

Senator LUDLAM-I am absolutely certain they were approached by ASIO. They were very polite and non-threatening, but I just wonder to what degree the resources of the agency are being diverted away from the very serious objectives that you outlined in your opening statement to follow people around who might have a banner in a pack.

Mr Irvine-I cannot answer that in a precise way.

Senator LUDLAM-I approached the AFP about this earlier. The degree to which Australia's security and intelligence law enforcement agencies are chewing up the time and resources of taxpayers' money tracking peaceful protests is a bit of a preoccupation of mine. I wonder whether there is a priority in the agency, because I have noticed it specifically around climate related activities as opposed to, say, antinuclear activities, for example. There does seem to be a bit of a focus around climate change issues. Is that something you would be able to identify?

Mr Irvine-No. I do not think I would be able to identify that. Certainly, in my own view, I would not be focusing huge numbers of resources or any resources at all on lawful protest in relation to views on climate change in this country.

Senator LUDLAM-I could accept it if you said maybe very few resources, but it is certainly not none at all, because I am personally aware of these activities. So I just wonder whether you might be able to take it on notice. Obviously there are some people in your employ who are doing that.

Mr Irvine-I will take it on notice, although I would not be able to respond in any way that indicated operational activities or operational priorities of the organisation.

Senator LUDLAM-Although you have been reasonably helpful so far in identifying those priorities. Is there a problem in identifying the degree to which the agency is devoting resources to the peaceful activities of demonstrators?

Mr Irvine-I will take that on notice, because I really would need to think very, very carefully about what elements of ASIO activities would be put into the public arena. I refer you back to the section of the act which really does very, very tightly constrain what activities we can conduct.

Senator LUDLAM-The part of the act that you read to me referred to preventing people from undertaking certain activities. I guess what I am referring to here is clearly surveillance and intelligence gathering.

Mr Irvine-I certainly would not go into any detail about the actual operational activities, surveillance or otherwise, of the organisation.

Senator LUDLAM-I can appreciate that. I guess members of the general public as well as in the campaigning community, I suppose, would be a bit disturbed if there were substantial resources being drawn away from the priorities that you spoke of earlier in your statement along these lines. So civil society advocacy organisations, be they climate, antinuclear, animal rights or whatever they might be-people expressing their views in Australian society-are well aware that ASIO is taking an interest in them. I suppose that is the direction of these questions. To what degree is the agency tying up resources in that kind of work? If there is anything you are able to provide to us, that would be greatly appreciated.

The second thing that I want to ask you about is that there was a report late last year by Ian Carnell, the Inspector-General of Intelligence and Security, who made some recommendations arising from the Izhar Ul-Haque case. Is that a case that you are familiar with?

Mr Irvine-I am certainly aware of it, yes.

Senator LUDLAM-We will see where we go. Justice Michael Adams of the New South Wales Supreme Court said that the evidence produced in interviews conducted with Ul-Haque was inadmissible due to ASIO operatives committing offences of falsely imprisoning and kidnapping Mr Ul-Haque, amounting to ‘unlawful interference with the personal liberty of the accused'. Essentially, he was abducted by ASIO agents. The IGIS made recommendations about the way that ASIO should work with the Federal Police in future. I am just wondering what action has been taken within your agency since that report. Could you tell us about any changes in working practices in that regard, particularly between the AFP and ASIO.

Mr Irvine-ASIO welcomed the report of the Inspector-General of Intelligence and Security into the actions of ASIO officers involved in this matter. The inspector-general made seven recommendations regarding ASIO's training, its policies and its procedures. Many of those recommendations were in fact consistent with steps that the agency had already undertaken independently of the inspector-general's inquiry.

We have taken the steps either through initiatives in the years since the Ul-Haque investigation conducted by ASIO or in the organisations responsible not simply to the inspector-general but to the Street review, which was a separate review conducted at the request of the Australian Federal Police. So most of those recommendations are already in train.

You read out the comments by Mr Justice Adams. I should say, however, that as we read the report of the inspector-general it was clear that he had carefully considered the observations made by Justice Adams and thoroughly investigated the facts underpinning them. The inspector-general's findings in respect of the ASIO officers were in fact generally positive and there were no adverse findings about the propriety of ASIO's conduct. Having made that point, yes, we are in the process of implementing, where appropriate, the recommendations.

Senator LUDLAM-Perhaps, then, I can predict what you would answer to the next question as to whether there were any internal disciplinary procedures undertaken or any form of internal review of the officers concerned in that case.

Mr Irvine-The answer to both questions is no. My sense is that the inspector-general's report justified that response.

Senator LUDLAM-I wonder whether you can clarify for us how these officers could essentially be accused of ‘unlawful interference with the personal liberty of the accused' and yet be cleared in your eyes and for there to be no need for any form of disciplinary action or internal review of those sorts of procedures.

Mr Irvine-There was a review, as you know, by the inspector-general and we acted upon his findings. But I do not think I would like to comment on the findings by the legal system.

Senator LUDLAM-Are the officers involved in that case who were mentioned in that report still in the employ of ASIO?

Mr Irvine-I understand yes, but I would have to check.

Senator LUDLAM-Maybe you could let us know if that turns out not to be the case, thanks. Have there been any notable reforms to the training and operations manual; specifically the standing operating procedure arising from that case?

Mr Irvine-I cannot answer that off the top of my head. I would have to check precisely whether there were changes to the doctrine.

Senator LUDLAM-That is something you would be able to tell us, though, if that were the case?

Mr Irvine-I cannot tell you exactly what the changes were-

Senator LUDLAM-I understand.

Mr Irvine-but the Inspector-General did recommend changes. In my earlier response I indicated that these were being implemented.

Senator LUDLAM-Thank you. My next question relates to telephone interceptions. As you would obviously know, Australians are vastly more likely than citizens of the United States to have their telephones tapped by various agencies. I think the figures that I have access to are about 12 months out of date, but I would just like to get a sense of proportion. Of the 3,287 warrants sought in the year to June 2007, for example, what proportion of those would be ASIO and what would be the various state and territory police agencies.

Mr Irvine-I cannot answer that question off the top of my head.

Senator LUDLAM-Is that something, again, that you would be able to provide to us on notice?

Mr Irvine-I am not sure. I would need to check very, very carefully on that matter to work out the extent to which it extends into actual operations.

Senator LUDLAM-Understood. If you are not able to provide us with the precise details then perhaps could you provide the degree to which these intercept warrants are requested by ASIO as opposed to other law enforcement agencies, just to give us an order of magnitude? If I were to ask you how many phones ASIO are tapping at the moment, you probably would-

Mr Irvine-I most certainly would not answer.

Senator LUDLAM-It was worth asking. Just to press the point, though, in the period that I am referring to, 2006-07, 2,929 warrants were issued in Australia compared with about 1,800 in the entire United States. So there is something rather peculiar happening in Australia that we are per capita vastly more likely to have a phone intercept than a citizen of the US is, which surprises me every time I come across that statistic.

Mr Irvine-I am surprised by those statistics too.

Senator LUDLAM-We are 23 times more likely to be bugged.

Mr Irvine-Particularly in relation to the United States.

Senator LUDLAM-That is what surprised me. Twenty-three times is the ratio. So if you are able to provide to us any information and if ASIO is only a tiny slice of those intercepts then I will not keep bugging you about it every time we get together.

Mr Irvine-Thank you.

Senator LUDLAM-Some of these next questions relate to questions that were submitted-

Mr Wilkins-Just on that point, Geoff McDonald is in charge of this policy section in the Attorney-General's Department. He might say something about the United States' practice.

Mr McDonald-Yes. Just on the United States' practice: you cannot make a direct comparison between the United States and Australia because in Australia we record very meticulously all the interception, be it by law enforcement agencies or other agencies. In the United States, the truth is that not all of it is recorded.

Senator LUDLAM-Thank you. Maybe it is an artefact of better record-keeping. But it would need to be very substantial underreporting in the United States to get close to that kind of ratio.

As I said, some of the next questions relate to questions submitted on notice to your agency that are now well outside the 30 days. I will see, if I may, whether you are able to provide us any information on them.

Is ASIO aware of a report or a brief about Mr Mamdouh Habib which was prepared by Mr Abbas Abou Abdallah, an ethnic community liaison officer attached to the Bankstown police, dated 20 June 2001? Was this document provided by the New South Wales Police Service Protective Security Group? If so, when?

Mr Irvine-Firstly, I certainly cannot answer that question off the top of my head. Secondly, if it relates to the operational activities of ASIO in the collection of security intelligence information, I probably would not answer it.

Senator LUDLAM-Let me try this on you: was the document used by ASIO or other agencies, to your knowledge, in consideration of whether Mr Habib was a national security threat? Does that put that behind the firewall?

Mr Irvine-I would not feel it appropriate or proper to respond to a question which goes to the actual operational and intelligence activities of the agency in a public forum like this.

Senator LUDLAM-Is ASIO still monitoring Mr Habib, or is that case closed?

Mr Irvine-That also would be a classified response.

Senator LUDLAM-You would be aware of pretty widespread reports that Mr Habib was repeatedly tortured while he was in the custody of the United States officers and the degree to which Australian agencies were aware that this behaviour was occurring. I guess I am just interested in the Attorney-General's recent comments on Australia's commitment to the prevention of torture. Are you able to tell us how much ASIO knew about the treatment that was received by Mr Habib while he was in custody?

Mr Irvine-My understanding and advice is that all of the information that can be put into the public arena in respect of Mr Habib has been put in this and in other forums. I also have to say in respect of Mr Habib that at the present time he is involved in at least two legal proceedings. One I think just today was granted leave to appeal to the High Court, I understand, in respect of previous proceedings he has launched. There is another one currently which he has launched. Therefore, I would be very, very hesitant to say anything in this public forum that may in any way prejudice those two proceedings.

Senator LUDLAM-This goes to the comments that I raised right at the very beginning about how the taxpayer or indeed Commonwealth agencies or the minister can be sure that the agency is meeting expectations and actually performing well when all of this sort of material is behind a firewall that we are not able to evaluate. I wonder who within the government is able to evaluate. Was it a colossal and rather disturbing waste of the agency's time or was it successful?

Mr Irvine-Are you referring to a particular instance here?

Senator LUDLAM-Well, I am referring to the entire ordeal that Mr Habib was put through, just as one notable example.

Mr Irvine-I do not think I can comment on Mr Habib's experiences with ASIO or with anyone else in this forum for the reasons that I have outlined.

Senator LUDLAM-In sessions with a couple of other agencies, I have asked the Federal Police and I think the DPP about the costs to the agencies pertaining to the prosecution of various cases. They have after a little time and collection of records been forthcoming. For example, I was told how much the AFP spent investigating Mr David Hicks. Are you at liberty to disclose for a couple of cases-perhaps we could start with Mr Hicks-what ASIO's costs were in each of those cases?

Mr Irvine-What do you mean by costs? Do you mean costs in legal proceedings, or do you mean costs in terms of operational activity?

Senator LUDLAM-The way that I have been phrasing it with the other agencies, essentially-the Department of Foreign Affairs and Trade was the other one-is costs either in staff time or actual direct costs to the agency. They have been able to provide it.

Mr Irvine-No. I do not think I would be able to give you those costs. I am not sure that it would be appropriate for an agency like ASIO to reveal those very, very specific figures on the one hand and I am not sure whether we would be able to break them down, if it were appropriate.

Senator LUDLAM-Is there a reason why, for example, the Federal Police and the department would be able to disclose that information but not ASIO?

Mr Irvine-Yes. ASIO is a security intelligence organisation. Our operational activities and the way in which we direct our priorities and our targets and so on must necessarily remain classified.

Senator LUDLAM-I have no further questions, but I look forward to receiving back some of the answers that you took on notice. Thank you.