Legislation requires Asio to tell the inspector general of intelligence and security about the missions ‘as soon as practicable’ but this did not happen

This article is more than 3 years old

This article is more than 3 years old

Australia’s domestic intelligence agency failed to notify the intelligence watchdog of a controversial “special intelligence operation” for 10 days in what is the first official confirmation of highly secretive missions that give intelligence officers immunity from prosecution.

In 2014 the government passed controversial national security laws that allow the creation of “special intelligence operations” that must be approved by the attorney general, George Brandis. The operations grant Australian Security Intelligence Organisation affiliates immunity from prosecution.

The new powers also contained a sweeping gag law that news organisations said would stifle legitimate public interest reporting on intelligence operations.

A review by the independent national security monitor, Roger Gyles, found that the move could be unconstitutional, and recommended limited changes to the law. The government has put forward a bill to amend the scope of the offence.

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But a vexed question has been whether these operations had even occurred. Last year the intelligence watchdog declined to respond to Guardian Australia’s queries about whether or not they had taken place.

But the inspector general of intelligence and security (Igis), Margaret Stone, has finally confirmed that at least one of the operations has been authorised by the attorney general and executed by Asio.

In Stone’s 2015-16 annual report, reference is made to a number of these operations being approved.

“The legislation requires that Asio notify the Igis as soon as practicable after the special intelligence operation authority is granted,” Stone wrote. “In one case the Igis was notified 10 days after the authorisation was granted. We noted that this was not in accordance with the legislation. Asio promptly implemented a new procedure, which is working well.”

She said Igis had reviewed the documents provided to the attorney general and her office relating to each operation, in some cases requesting further information. She said it had “not identified any issues of legality or propriety”.

“We will continued to pay close attention to Asio’s special intelligence operations,” she wrote.

A spokesman for Asio said: “It is longstanding practice that the Australian Security Intelligence Organisation (Asio) does not comment on operational matters.

“As noted in the inspector general of intelligence and security’s (Igis) annual report, Asio has implemented a procedure to ensure rapid notification to the Igis office that a special intelligence operation (SIO) authority has been granted.”

The annual report contained some other criticism of how Asio exercised its powers. It also noted that there was “some inconsistency” in how Asio kept records of sharing information about Australia’s with foreign intelligence agencies.

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Stone’s office has also engaged in an inspection project to review the handling of information by Asio. It identified three instances of non-compliance with how it held data.

“While these instances did not raise any serious or systemic concerns, we felt that they did highlight the need for Asio to continue its efforts to ensure that staff were aware of their responsibilities,” Stone wrote.

The Asio annual report also referred to the newly created journalist information warrants. These warrants are now required to access journalists’ telecommunications data in order to identify a confidential source. They were created after the government’s data retention scheme was passed.

Intelligence agencies require the attorney general’s approval before they can access journalists’ telecommunications data now.

Stone’s report noted there were procedures in place but was silent on whether Asio had sought or been granted any of these warrants.

“We confirmed that Asio has policies and procedures in place to address the new journalist information warrant requirements and provide staff training,” she wrote. “These policies and procedures will be reviewed in the course of our regular inspections.”

Her office declined to release any further information or comment in relation to the warrants.

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