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As Australia’s lead spy agency grows in size and powers, a crack in the legal system shows how it operates and cannot be challenged. By Debra Jopson.

ASIO resists scrutiny on passport cancellations

ASIO director David Irvine.
Credit: AAPIMAGE

In the file, he is known simply as BLBS. One September day four years ago, he arrived at Melbourne’s international airport ready to embark on a journey to Yemen, with a stopover to visit family in an undisclosed third country.

The man would later explain that in his Sunni Muslim religion Yemen is considered a blessed land. Some of the “boys at the mosque” had told him he could get cheap board there while he studied Islam.

But he never made it to the departure gate. On the order of the then foreign minister, Kevin Rudd, he was made to surrender his passport and other travel documents to authorities at the airport. His luggage was searched. Some items, including an Arabic translation of his year 12 school results, were seized and he found himself being interviewed by the Australian Federal Police.

They wanted to know about his association with terrorism suspects.

“Can I ask what your feelings are towards Australians who are currently engaged in fight in [the] Australian Army, fighting in Afghanistan and Iraq, what your opinions are on that?” a police officer asked.

“I don’t wanna answer that or give any answer,” he said.

The man was forced to abandon his travel plans. Once he was released, he learnt that at some time before this interrogation he had received an adverse security assessment from the Australian Security Intelligence Organisation. His passport had been cancelled.

The man appealed to an obscure division of the Administrative Appeals Tribunal, which is allowed access to ASIO secrets denied even to higher courts. The case took years to play out, but a few months ago it published its decision.

Open evidence at the tribunal’s Security Appeals Division, which goes by the unfortunate acronym SAD, was insufficient to support the adverse assessment. But the classified evidence was another matter. In a closed hearing, from which BLBS and his lawyer were barred, ASIO persuaded the tribunal that the assessment should stand. The passport would stay cancelled. Why this is can never be known. The decision could be appealed to the Federal Court, but only on a matter of law, and the court cannot be given the secret evidence that was put before the SAD.

Court rules to open tribunal findings

ASIO is not getting smaller. Its staff has almost doubled in the past nine years. In a few months, the organisation will move into a $589 million headquarters built to house its growing workforce.

And its powers are not shrinking, either. ASIO is set to do more with less oversight. Legislation was introduced into parliament this week to dismantle the office charged with monitoring counterterrorism and national security laws in Australia. Meanwhile, the spy agency is pushing for changes to the Telecommunications (Interception and Access) Act that would force providers to store metadata from all Australians for the purpose of interrogation by security and police agencies. Further legislation will see ASIO’s investigative powers over refugees expanded, with no capacity for review by tribunal. “Kafka on steroids” is how the Greens’ deputy leader, Adam Bandt, described it.

But while so much remains hidden, the publication of the SAD decisions was a significant step towards transparency for an intelligence agency that, according to critics such as Sydney University’s counterterrorism law specialist Professor Ben Saul, operates without the oversight of counterparts in Europe, the United States and the United Kingdom.

The tribunal that gave BLBS his lumpy initials was able to publish the decision in November thanks to Justice Lindsay Foster’s landmark Federal Court judgement a year ago, which ruled that the SAD’s findings could be made public. After more than three decades of secrecy surrounding this small ASIO watchdog, a handful of other decisions have now emerged, shedding light on the dark world of our spooks.

They provide a useful insight into ASIO’s methods, a peephole against which we can press an eye and spy upon the spies. Unsurprisingly, the “open” decisions about BLBS and two other people whose identities remain secret show that ASIO would prefer the peephole be closed.

In all these decisions, people given adverse security assessments by ASIO have appealed against the Director-General of Security, David Irvine.

Despite heavy redaction, the decisions reveal that the standard of proof ASIO requires to make an adverse finding about an individual is way below “beyond reasonable doubt” or the “balance of probabilities”. ASIO measures a risk of just 10 per cent sufficient proof that someone could be a security threat. This can be the basis of decisions that penalise a person without them ever being able to ask for the detail of what they have allegedly done wrong.

Director-General David devised another formula, which he circulated to ASIO officers almost four years ago. It is that any adverse finding about a person “should be judged to be at least likely”.

The tribunal was satisfied, for instance, that ASIO was correct in assessing that a Perth man codenamed CXQY was “at least likely to engage in politically motivated violence outside Australia”. He had his passport cancelled on the basis of association with a man he met at a pizza shop, among other factors.

But the tribunal rejected arguments by ASIO’s lawyers about what the expression “likely to” meant, describing them as “apt to mislead and plainly wrong”.

“The ASIO Act, albeit for highly relevant and fully justified reasons, makes an exception to the principle that liberty is not a gift of the government but a right of the governed,” it said in the BLBS decision. “ASIO exists to anticipate and help prevent future dangers … Certainty will rarely, if ever, be attainable.”

The lawyer for BLBS argued that ASIO is prohibited from engaging in speculation. The tribunal disagreed.

The SAD decisions also show that it is accepted practice for interviews to be conducted without recordings, leaving only ASIO officers’ records of what was said. No recordings were made during five interviews with BLBS, although the Australian Federal Police recorded its interrogation at Melbourne airport.

Nor do ASIO inquisitors necessarily put direct allegations to an interviewee. For instance, the agents’ assessment of BLBS’s likelihood to engage in militant jihad overseas stands on the basis of secret evidence unknown to him, and was arrived at without this central claim ever being put to him.

The tribunal said that it was perfectly understandable that an intelligence agency may refrain from putting specific allegations to an individual because it needs to protect its sources and methods. “ASIO is entitled to probe its suspicions obliquely,” it said.

However, the tribunal castigated ASIO officers for apparently telling the Perth man CXQY that if he wanted citizenship he had to agree to interviews, and for failing to mention he could have a lawyer with him. “He should not have been misinformed about his rights,” the tribunal said.

Despite these criticisms of conduct, the SAD decisions show ASIO’s lawyers have argued that in the interests of national security the tribunal should defer to its opinions and those of its officers – that it should as a default believe the organisation it was established to review. In BLBS’s case, they argued that courts “have repeatedly emphasised the significance which must be given to the views of senior government officials on matters of national security”. The tribunal responded that it had been established in response to “significant community disquiet and concern regarding the accountability of ASIO”.

The Kim case

What we know of the SAD decisions, we know because of a South Korean-born agricultural bureaucrat. Yeon Kim was a Canberra public servant when ASIO began surveillance of him, believing he may have passed sensitive trade negotiation information to South Korea.

After discovering he had been the subject of an adverse security assessment in September 2011, he took legal action. He discovered the negative assessment was made after interviewing him about meetings he had with a South Korean embassy staffer they believed to be a spy. Kim said that they met only socially, on the soccer field, and that he gave away no secrets.

The adverse assessment threatened his job, so he appealed to SAD, lost and then appealed to the Federal Court. ASIO lost the case there, and got a lot of bad publicity for so strenuously trying to cover up the spying activities of a supposed ally. The then attorney-general Nicola Roxon had allowed ASIO head David Irvine to argue for case details to be suppressed, including that the “friendly” country allegedly spying through Kim was South Korea.

The fight for transparency led to Justice Foster’s decision, which prised open the files holding SAD’s latest decisions. The judge ruled that Kim could be publicly named and the SAD decision about him could be published.

Because of the Kim decision, we know the name Lachlan Sawyer, a pseudonym used by one or more ASIO agents. It was Lachlan Sawyer who spied on the Perth man CXQY and helped ASIO head David Irvine declare him, “a direct or indirect risk to security” on the grounds that he held “an extremist interpretation of Islam” on which he was likely to act.

When CXQY appealed to the SAD, Sawyer gave evidence that one of CXQY’s associates had been imprisoned for most of the previous two years and had reportedly had contact with al-Qaeda in the Arabian peninsula.

CXQY, aged about 30, had migrated to Australia with his parents when he was seven or eight. He had trained in IT and once worked as an engineering company finance officer. He was very devout. “[He] said he believes that in this life we are ‘tourists’ and face judgement in the afterlife which is eternal …” the decision said. “He thinks of the afterlife a lot.”

At a pizza shop and later at a mosque, he met another man – Mr B – whom he did not know was also under surveillance. Mr B introduced him to Mr A, the man who Sawyer said had contact with al-Qaeda. CXQY said he then decided Mr B was mixing with the wrong people – at the mosque, Mr A, who he was told had only been a practising Muslim for nine months, “all of a sudden” started saying jihad was necessary.

CXQY then started getting “hadith” messages – reports of the deeds or sayings of the Prophet – by text in English on his phone. He rang the number and Mr A answered.

Despite evidence that CXQY had watched YouTube lectures by the late al-Qaeda leader American Yemeni Sheikh Anwar al-Awlaki and, more seriously, that he had invented a person called “Ali” to distract officers from their focus on Mr B, the tribunal did not find the open material supported the adverse assessment.

But on the basis of closed evidence, ASIO’s adverse assessment stuck.

ASIO's argument against scrutiny

ASIO’s quest for secrecy is most apparent in the decision relating to a figure we know only as TCXG, whose appeal was heard in Sydney. Once more, a spy using the pseudonym Lachlan Sawyer gave evidence.

Slim pickings from what remains open in the decision include that TCXG was an Australian citizen who ASIO quizzed in December 2011 about their views on politically motivated violence, including in Syria.

TCXG was asked to explain some conduct in relation to this. TCXG was refused a passport, based on ASIO’s assessment that TCXG believed in an extreme form of Islam condoning politically motivated violence. The secret material contained “conditional specific allegations”, which could be disclosed to neither TCXG nor their lawyer.

The tribunal sympathised with the difficulty this individual’s lawyer faced and said that it tested these allegations during its closed hearings as best it could. It urged that, in future, applicants be able to brief a security-cleared lawyer who could be privy to closed evidence without risking national security. Open decisions that have followed indicate that this has not happened.

TCXG told the tribunal that he/she was simply a devout Muslim who, given a passport, may move overseas to better blend in by living in a country with an Islamic majority: “I do not agree with engaging in violence such as suicide bombing, terrorist acts and thinks [sic] of that nature involving innocent people.”

But in closed submissions, the tribunal heard of associations with people who engaged in and promoted politically motivated violence. The specific details of this are unknown. TCXG asked that any particulars of their personal life and history be expunged from the tribunal’s open findings. The director-general and foreign affairs minister took the secrecy quest further, arguing that the SAD should not publish its decisions about adverse security assessments at all.

They invoked the ASIO Act, saying that it established a regime “for limiting and controlling the communication of information to government gathered in the pursuit of ASIO’s functions, as opposed to facilitating the publication of information to the public at large.”

With Justice Kerr at the helm, the tribunal held firm, saying it was in the public interest to publish the decision, however heavily redacted. The public may never know the identities of TCXG and the network considered a threat to security. The closed findings went only to the director-general of security and the attorney-general.

Since December 2003, at least 35 individuals have been prosecuted for terrorism offences in Australia. There have been at least 26 convictions.

Andrew Zammit, of Monash University’s Global Terrorism Research Centre, has estimated that possibly more than 70 passports have been confiscated over the past decade.

So ASIO is not shadowboxing. Overseas intelligence agencies operate with far greater oversight and transparency. Unlike Britain, New Zealand and Canada, Australia has set no minimum requirement on how much information intelligence agencies must disclose when they make adverse assessments about individuals.

As Professor Ben Saul says: “What you get in Australia is, ASIO calls it and you have to suck it up.”

But the peephole through which we are looking is now there. As ASIO’s powers grow, so will the decisions that mount up in the tribunal. Little by little, more light will be let in.

 

This article was first published in the print edition of The Saturday Paper on Mar 22, 2014 as "Inside ASIO’s files". Subscribe here.

Debra Jopson
is a Sydney-based investigative reporter.

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