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Grattan on Friday: In Conversation with ASIO chief David Irvine

David Irvine has admitted ASIO needs to recruit more Muslim officers. AAP/Lukas Coch

David Irvine retires next month after five years as Director-General of Security, heading ASIO; before that he was head of the Australian Secret Intelligence Service, which spies abroad. He’s spent more than a decade in what he describes as the gamekeeper and poacher business.

Last week the government had him do a rare press conference to explain and defend its controversial plan to have telcos retain metadata; this week he delivered a major address on the threat from Islamist extremists as radicalised Australians fight in Syria and Iraq.

In an interview with The Conversation at ASIO’s Canberra headquarters on Thursday, Irvine said he would ideally like to see ASIO operating under a broad law rather than having to ask for changes whenever threats and technology altered – although he doubts politicians would invest the political effort that would be required – and he rejected charges that it excessively encroaches on civil liberties.

He admitted ASIO lacks enough Muslim officers, with one of the problems in recruitment being the suspicions held by people from Muslim countries of intelligence organisations.

Irvine rejected as “un-Australian” a proposition floated from the right that immigration from Middle Eastern countries should be limited, and praised the efforts of leaders in the Muslim community in helping counter terrorism.

In commenting on Australia spying abroad he was cautious but strongly defended ASIS’s activities as ethical in what he described as “an age-old business”.

Michelle Grattan: Can we start on the proposed new anti terrorism measures which inevitably infringe on civil liberties? The most controversial is the storing of metadata. US reviews of intelligence uses of metadata have discounted the value of this in stopping terrorist acts – what is your response to those findings?

David Irvine: I don’t know what the basis of that so-called US report is. I know it was a government report but did it say “metadata did not by itself solve a crime or stop a terrorist act”? The answer is probably yes. But could a terrorist act have been stopped without the data? The answer in Australia’s case is almost certainly no.

Metadata and the ability to look at the data surrounding people’s communications is a fundamental building block in both the law enforcement and the security intelligence business. In counter espionage, counter sabotage, countering covert influencing of governments, as well as countering terrorism.

What people don’t understand is that it is also the fundamental building block of most criminal investigations in Australia. So do we need it? Yes. Can we do without it? Not these days, without very great difficulty. Is it an infringement upon people’s liberties? That is debatable. You having to obey a speed limit is an infringement on your liberties in one sense. Everything we do in society is balanced between what we need to do for the good of society and our own liberties to act in any way we like and to have privacy. My sense is that over a long period of time we have struck an appropriate balance between these two things.

When people talk about new powers for ASIO, actually most of the legislation currently going through doesn’t actually involve any significant new powers for us at all. There are some things that do. Interestingly, the metadata issue is not actually so much new powers for ASIO – it is getting the telephone companies and internet service providers to keep storing – so we can actually access it on a highly targeted basis - information about telephone usage and telecommunications usage.

All we’re actually asking for is: in the past they’ve kept it voluntarily, we want to make it an obligation for them to keep it for two years. That’s actually all this is about.

Now people say “it’s an infringement on your civil liberties, big brother, mass surveillance” and all the rest of it. Actually the information situation is not really going to change if this law goes through, except that the information would now be kept as a matter of legal obligation.

MG: This week an Essential poll found that many people think “governments are increasingly using the argument about terrorism to collect and store personal data and information, and this is a dangerous direction for society”. Do you think that people’s general distrust of government is leading to a distrust of more security measures?

DI: I think that’s one of the great shibboleths of our time at the moment. I go back and quote to you a survey conducted by the Lowy Institute about 18 months ago. They prefaced their question in the survey by saying – from memory – since 2001 Australian governments have introduced quite strong counter terrorism legislation and have very strong intrusive powers. Answer the following questions:

  1. Do you think that the Australian government has overemphasised - over-egged if you like - the terrorism pudding and ignored and trampled upon civil liberties?

  2. Do you think they’ve got the answer about right?

  3. Have they gone the other way and they are not doing enough about protecting us as a community and worrying too much about civil liberties?

The answers were really quite fascinating. They are there on the Lowy website for people to see. 19% said “no we’re really worried about our civil liberties and we’re prepared to take risks with terrorism”. 68% said “nope, I think they’ve got it about right”. 11% went the other way. If you think about those figures, that’s 80% of Australians who are prepared to accept at least current levels of infringement on their privacy and their civil liberties in order to gain the benefits of community protection.

As you and I know, it is that 19% who make all the noise. So I take heart from those figures, because I do worry about the balance issue. What people don’t understand, also when they’re talking about balance, is that these aren’t unfettered powers. For example, one of the powers that people are most complaining about is the power of questioning and detention.

Yet the critics rarely mention that the exercise of these powers must be approved by judicial authority: the Inspector General of Intelligence and Security, or a judicial officer, as well as the subject’s lawyer. The information gained can’t be used against that person in a court.

Nobody talks about those things. They simply talk about the right to question and detain someone. In terms of the intrusive powers, for example to listen to telephone conversations, nobody says “how often do they actually do it?” and nobody says “what are the rules under which they can do it?”

MG: Do we have figures on how often they do it?

DI: Not for ASIO, but you do for law enforcement.

Of course these are exactly the same powers that run across law enforcement and ASIO. So this is not just a security intelligence business. This is also a law and order and national security matter. In fact the number of times ASIO mounts intrusive tapping or content seeking operations under warrant is actually relatively small.

Just to give you an idea, if I’ve got 600-1000 investigations going, that’s not a lot of telephones I’m going to end up tapping – and not all investigations require warranted interception. Similarly, if I’ve got 600-1000 investigations right across the board – terrorism, espionage, etc – that is not going to produce a huge number of requests for access to call data. Certainly nothing that amounts to mass surveillance of the population.

MG: Are we talking specific figures here?

DI: We are talking approximate figures. I’m hesitant to give the actual figures because it does give really vital information to the people we’re looking at.

The people who talk about these powers don’t really have an appreciation for how rarely they’re used. Secondly they don’t have an appreciation that their use is governed by a whole series of guidelines whereby either under warrant or internally we have to justify the use of these powers in accordance with our act.

So I can’t go and tap your telephone because you’re writing nasty articles about me, when what you’re doing has nothing to do with national security or does not make you a threat to national security. People don’t understand this.

Then the third thing that they don’t understand is that the extent to which there is actually, at least for ASIO, far greater accountability for what we do, even though that accountability is not all public.

We have a parliamentary committee that looks at us in Canberra but reports to the federal parliament. I make an unclassified report to federal parliament every year and a classified report to the government, which the parliamentary committee sees. ASIO is subject to the Australian National Audit Office.

The Director-General of ASIO – for his sins I have to say – appears before Senate estimates frequently and I am constantly grilled. It pleases me that I give such pleasure to other people seeing me squirm!

Justice Robert Hope.

Then finally, but most importantly – this goes right back to Justice Robert Hope in the mid-70s when he framed the whole structure of the Australian intelligence community not just from an organisational point of view but from the point of view of getting that balance right – [there] is the Inspector General of Intelligence and Security.

The Inspector General of Intelligence and Security has the right to look at everything we do, and does. It is currently Dr Vivienne Thom. Whenever she picks up something – and because she doesn’t actually pick up a lot of major things, what she normally picks up these days are quite small, trivial issues – she brings them to our attention, she brings them to the government’s attention and where necessary remedial action is taken. And you’ve seen just in this last year quite a substantial report by the Inspector General of Intelligence and Security highly critical of ASIO in respect of the way we handled one of the refugee assessment processes.

So when people talk about an infringement on civil liberties, yes there is an impinging on civil liberties, as there is in so many other aspects of our life. But you [should] take into account that it is done lawfully and the law prescribes what you can and can’t do. There is accountability and there is appropriate oversight, both public and secret. I think reasonable people will accept that the security service and indeed the police are organs that are responsible and can be trusted with that particular responsibility.

MG: In the post-9/11 era security agencies have requested and received greater powers…

DI: You know it’s funny, I wouldn’t use the word power, I’d use the word scope.

MG: Do you think now, assuming that you get the legislation proposed, that you have all the scope, power that you need, or do you think in later years there will be more requests?

DI: What you’ve got to understand is that the law that governs us in both the interception area and the exercise of ASIO powers more generally has always been – and parliament will always insist that it will be - written into very specific laws.

Rather, what I would like to see, would be a more broad set of principles. When you have very specific sets of laws, as the threat changes and as the technology alters, the law doesn’t always cover the new situation.

So in all the changes we have been suggesting we’re not actually changing anything in terms of general principles. What we are doing is saying “look, we actually need to use computers in a different way”. And when the law was written there weren’t computers. So if you look at the current set of legislative changes that are before the House, and there are several more changes to come, you’ll find that a lot of these proposals are more in the way of modernisations than fundamental change.

For example, in relation to use of computers, we now need a warrant to get onto third party computers, a methodology we didn’t need before. Not to interfere with that third party or to inquire into what that third party is doing, but to find out whether some foreign state perhaps has been using that computer to attack the government. That need didn’t exist before.

Other changes are what I’ll call efficiency-making changes. At present, if I were to have to conduct a very intensive investigation, with perhaps the immediacy of a terrorist act occurring, and I needed to put full surveillance on, I would have to get a whole series of warrants from the Attorney-General to intercept the communications – different warrants for different sorts of intrusive activity.

I have to get another warrant to put a listening device near that person. I have to get a further warrant to put a tracking device on that person’s car, for example. I have to get another series of warrants to do a search and enter operation.

David Irvine with Attorney General George Brandis in a rare press conference. AAP/Lukas Coch

Now each of those warrants – and this is what people don’t understand about the warrant process – the warrant has to set out a strong justification for taking this act which is an intrusion in someone’s privacy. They run to pages and if it isn’t properly justified and documented, the Inspector General of Intelligence and Security is down on us like a ton of bricks.

What we’ve been trying to do is say “actually it is the same warrant, the same words for four or five different warrants. Why not get one omnibus warrant?” Now that’s an example of an efficiency process.

The metadata is in many ways a classic example of the need, as a result of new technology, to alter the law. With regard to metadata, the telecommunications interception act allows ASIO and law enforcement and some other people – and you can argue about the other people but certainly law enforcement and ASIO – to go to the telephone company and say “here is a case that says we have deep suspicions about Michelle Grattan as a terrorist or a spy and we would like you to be able to tell us does she own this computer number at that particular time” or whatever.

Now that was fine so long as the telephone companies were keeping the data. Increasingly they’re not, because they don’t have a business need to. But for national security and for law enforcement purposes there is a need. So that’s an example of where we need the law to keep up with the changes in technology.

MG: Now you mentioned you’d like the legislation overhauled in more generalist terms.

DI: That’s quite difficult to do of course, because that 19% I’ve talked about will have a whole series of rabbit burrows that they will want to take the legislators down. It’s actually very hard to keep it general. I accept that.

So a broad law that would enable you without having to go back to legislation every time to keep up with modern technology would be terrific. How far we can get that I don’t know.

MG: Do you think there is any sympathy in the government for that?

DI: I think there is understanding. It is a political decision of the government as to whether they want to expend that amount of energy, and there would be a lot of energy required, you’ve seen how the very simple things…

MG: You mean political capital…

DI: Possibly as well. But you’ve seen how the really actually very simple and frankly not very obtrusive things that we want to do now have just set all sorts of hares running.

MG: You’ve talked a lot recently about the current threat of Islamist extremists. How much has ASIO had to transform its operations from the days when it was at the centre of the cold war issues to today? One would think you’d need different sort of personnel, that they’d have to have different skills, including language skills. Is it a completely different operation – I guess one was more espionage and one is more terrorism?

DI: Well I think the basic operational principles, where you have a secret enemy who has to be fought by secret means, still stand.

You’re absolutely right. In October the first volume of the official history of ASIO written by Dr David Horner will be published and that will take you through the espionage years. The second volume will deal with the period when we were still doing mainly espionage. In the late 1990s, terrorism was the biggest potential threat for the Sydney Olympics and since then has dominated the work of the organisation.

Now how’s it changed us?

We had to get Arabic and other Middle Eastern and Asian language speakers. We had to learn to deal with newly-arrived communities. The Islamic community in Australia in its current form is largely a product of the mid-1990s.

We’ve had to get used to working in a community with different social customs, methods of communication, social interaction and so on.

We’ve had to develop new skills in terms of understanding the phenomenon of terrorism.

As a result, we are now able to make a contribution to countering at an early stage the development of violent extremism.

So that’s a whole set of new skills.

MG: Do you have any facts and figures in terms of the language skills and such?

DI: The answer is not enough. I think we still lack two things.

The first is, I personally believe that we do not have enough Muslim ASIO officers. People who have been brought up within the community, as opposed to being exposed to it and having to learn about it.

There’s an interesting reason for that if you think about it - so many of our Muslim Australians have actually come from societies and countries where the very notion of a secret service is an anathema. It’s really quite interesting that part of my outreach to the communities is saying “hey, actually this is how we operate under the law and by the way it’s actually our job to protect you too”. So we’ve had to change our community outreach quite considerably.

We’ve had to change also in terms of our constant investment in technology. The business of counter espionage and counter terrorism is very dependent on technology. If we were unable to keep up with technology, we would have to employ a great many more staff.

MG: In your speech this week you stressed that care should be taken not to shift blame for Islamist extremism onto the Muslim community generally, but aren’t we seeing signs of this? For example with one prominent commentator suggesting we should reduce immigration from the Middle East until we better assimilate those already here.

DI: I don’t like to become involved in those sort of controversies. I nevertheless feel that if we got to the point where we said those sort of people can’t come in because we don’t think we can absorb them and that they might become a threat to us internally as a racial or ethnic or religious group – I’m not talking about individuals who may be a threat – then aren’t we pulling the rug out from under what we think Australia’s all about?

While we do need to look very closely at some individuals, because it is possible to import threats into the country through individuals, I don’t think you can apply blanket rules discriminating against religious or ethnic groups. It would be – can I say un-Australian?

MG: There has been this call for the leaders of the Muslim community to do more. You made the point this week that often in their quiet way they were doing a lot. Do you think these calls to do more are either unreasonable or overhyped?

DI: Well I think they’re based on ignorance, in the sense that I know just how much the leaders of the community are doing. The religious imams, the civilian leaders and so on. What people don’t know is how successful they’ve actually been.

My sense is, without them we would have a very, very much greater problem. I understand why people make these claims, but for those of us who spend a lot of time working with the community I have to say that our experience is that the community leadership - and I have to stress this - in its own way, has done much.

We sometimes think of the Grand Mufti as like the Pope, with a huge authority down the line. The Grand Mufti is a spiritual leader and a scholar. The ways he deals with problems and exercises leadership are suitable for his community.

I think the role the Muslim leadership is playing in Australia is very positive. They may not to speak out as loudly as some people would expect or want them to do, though I notice in the last few days a lot of them have made their views clear.

MG: Do agencies like yours and the police have any special responsibility to try and ensure that a vigorous security regime doesn’t in fact stir up this anti-Muslim feeling?

DI: I think from the police point of view it is less of a written responsibility and more as part of the social responsibility that they carry as they go about their work. For ASIO it is also a written responsibility. In the sense that under the ASIO act we are responsible for detecting and assessing and reporting to the government on issues relating to inter-community harmony.

MG: And you fulfil that responsibility by yourself speaking and how else?

DI: Much, much more by the efforts of my officers who work very closely with state and federal police in their outreach into the communities.

MG: In general terms, how secure is Australia today compared with the start of the century? You mentioned the 2000 Olympics - compared to then?

DI: My own sense is – and I said this in the speech the other night – I don’t think we should exaggerate the terrorist threat as an absolutely existential threat to the Australian way of life. It’s not – not at the moment. Nor is the incidence of terrorist thinking widespread within the community. It’s clearly not. Nor is it widespread within the Australian Islamic community. It’s clearly not.

Nevertheless, a small number of people who have very distorted views that propel them towards violence leading to mass casualties is a real concern. There is an expectation from the public that governments will prevent that happening.

Is it greater than it was when I came in five years ago?

The answer is that the threat level is the same, but the number of threats that ASIO is looking at, in terms of the numbers of people, has grown substantially - the explosion has really come with the Syrian conflict.

MG: You would expect it to continue to grow?

DI: Well I’m hoping it won’t, but the conflict in the Middle East will for some time to come attract those sorts of people and will continue to do so.

MG: The figure of 150 individuals that has been mentioned - that is the number of people of interest to ASIO who are either fighting abroad, have fought abroad…

DI: Can I say “significant interest” to ASIO, because there are others as well. There is no firm line. We have to draw a line between people we look at very closely and people we barely look at all simply by virtue of our resource base and our ability to do so.

When we talk about 150 people, we are talking about 150 people who are of concern in respect of Syria and Iraq and need to be considered in our activities on a regular and consistent basis. People move in and out of that 150 to an extent and beyond that 150 is 3-4-500.

Australian born Khaled Sharrouf is currently fighting in Iraq.

The 150: that’s those who are in Iraq, Syria or on the border, or in Iran, so directly engaged in extremist groups; those who have returned; those who wanted to go but their passports have been cancelled; and those who are active fundraisers or facilitators.

That 150 only refers to the Syria/Iraq issue. We also have other people of concern, for example “lone wolves” who may not be associated with the particular phenomenon in Syria and Iraq.

MG: Do you think that some of the people who become extremists do so because the community has failed to integrate them, or do you think it is a bit like an extremist in other areas, who will just become attached to a cause – a violent cause in this case? What’s the line here between nature and nurture?

DI: I think the short answer is there has been a huge amount of work done on this in Australia and around the world and nobody has actually come up with a common denominator per se, beyond the notion of religious conviction.

It was fashionable early on to say these poor benighted people have come from deprived socio-economic backgrounds. Well, the Australian experience of the people in jail here is that many haven’t. They have not been fabulously wealthy, but they’ve not been deprived economically.

The alienation aspect deserves much closer consideration. Particularly when you look at the Australian phenomenon where mum and dad have come out, brought a young child or the child was born here and mum and dad have got on with building a new life. This was the great opportunity. There is a sense of alienation among some of the younger people.

So that’s what we mean when we talk about home-grown – potential terrorists who have been raised in Australia. It is a very difficult phenomenon to pick. I sometimes think someone who goes to work in Australia and comes back home to his Middle Eastern village in downtown Melbourne or wherever may be subject to much greater alienation than otherwise.

I don’t think that it is a product of racialism in Australia or social tension per se, although there are elements of those sorts of things involved. I ultimately come down to the notion that someone - for whatever reason - is convinced that this is the true way, the true power of religious belief if you like, and it just happens to have been a distorted version of Islam, replete with the advocacy or perceived obligation of violence.

Now there are many, many reasons why proselytisation is so much easier and people are much more exposed now, particularly through the internet, to these, I keep saying, distorted beliefs.

MG: You’ve had a unique combination of heading Australia’s overseas spy service, ASIS, and ASIO. Do you ever reflect on the paradox of being a spy catcher on the one hand, after overseeing the spying on the other?

DI: I like to say that I’ve gone from poacher to game keeper.

MG: I wasn’t going to put it so crudely.

DI: They’re actually quite different in many ways. Clearly there are connections between the two, but the two organisations are quite different in the sense that one organisation operates in the overseas area in the collection of information and is essentially collecting information about foreigners.

ASIO on the other hand is mainly collecting information about Australians in the current environment. Therefore the two have to operate under a totally different legal and oversight regime, because governments have put such a great emphasis on issues like the privacy and the liberty of Australians.

ASIO is a very complex organisation because of all of those legal, probity and ethical issues, which an ASIO officer has to take into account in everything he or she does.

MG: Do you think there is an ethical difference between the sort of work ASIO does and the sort of work ASIS does?

DI: No, I don’t actually. Both organisations need to have officers who have very high ethical and moral pillars.

MG: But you did mention the “poacher” yourself.

DI: Yeah and it is an age-old business.

MG: We have seen the “age-old business” be destructive to international affairs. The revelation of Australia’s role in spying on top Indonesian figures did do a lot of damage - hopefully temporary - to the relationship between the two countries. Do you think that business can be more costly than it is worth?

DI: If that were the case, we wouldn’t have it.

MG: Well these things are always reviewed from time to time and there are degrees of course.

DI: My answer is no. I think if intelligence did not deliver - particularly in this day and age when we are all in budget terms quite hard up - what governments need it to deliver, they wouldn’t be paying for it.

MG: President Obama apologised to the German Chancellor when spying on her phone calls was revealed. Is it appropriate for a country to apologise in these circumstances?

President Barack Obama and German Chancellor Angela Merkel earlier this year. AAP/Oliver Berg

DI: I’m not sure that Barack Obama actually did apologise to Angela Merkel, I’ll have to read those words again. Every government will treat these – and I’m going diplomatic here - matters in accordance with its own needs. Put it that way.

MG: Did you ever feel during your time heading ASIS uncomfortable with what you knew was happening?

DI: No. Absolutely not. Never.

Because all intelligence activities by any organisation in Australia are carried out according to the law.

MG: So you never thought “maybe we shouldn’t be going this far”?

DI: No. The equation is risk, risk of personnel, and those sorts of things.

MG: Not ethical boundaries?

DI: Well I wouldn’t be encouraging or allowing, as the law does not allow, intelligence organisations to employ kinetic force and those sorts of things, no – apart from self-protection in special circumstances.

MG: If a similar situation to that preceding the Iraq invasion were to arise, would Australian intelligence agencies be more sceptical and independent of other countries in advising the Australian government?

DI: I was only just entering the business – with ASIS – when the Iraq intelligence issues were [current].

I must say over the past ten years or so I’ve been impressed with the intellectual rigour that our assessors and particularly our Office of National Assessments and our Defence Intelligence Organisation and my own people apply to intelligence assessments.

You’re never going to get it 100% right. What is intelligence? Intelligence is all about predicting the future and as you know the future doesn’t always work out the way you think it will. We are making those sorts of judgments all the time.

MG: Yes but in that case there was a huge misjudgment by the Americans over weapons of mass destruction and Australia went along with that.

DI: There was certainly some misjudgement and that is continuing to be debated to this day.

MG: Do you think in our assessment these days Australia would be mindful of what happened then and more sceptical of information?

DI: I think our intelligence organisations – I thought they were pretty rigorous then – I think they are rigorous, in so far as you can ever have full confidence in a prediction I think certainly in my experience they’ve been accurate.

What’s interesting you know, in relation to ASIO, is that we make intelligence assessments in relation to people who have the right to appeal to courts and certainly the decisions of the administrative appeals tribunal or the court don’t indicate any gross misuse of or errors in assessments.

MG: Of these two jobs which have you found the more challenging and which have you got most satisfaction from?

DI: That’s a hard one because I’ve really derived immense satisfaction from both jobs. I think the complexity of the security intelligence job, with all those overlays of legality, of procedures, of accountability and so on, makes it more complicated and more complex. I hadn’t realised when I came from ASIS - where I described myself as being the absolute bottom of the laundry basket in Canberra, never seen never heard - to ASIO that the Director-General of Security actually had from time to time to make public statements and to explain things to people and to the press. That actually was and is still quite a challenge.

MG: And quite liberating I presume.

DI: Well it will be in a month’s time.

MG: Before we finish is there anything that you would like to add?

DI: I would like to emphasise again in relation to terrorism … I think there does need to be a balancing of the discussion. I think that’s really important.

There is also the “diversion” part of what we do.

Our philosophy always is to try and nip things in the bud as early as we can. Where we see a person or a group of people moving towards an expression of violence and there are various stages along that way, once it has moved into the criminal realm, we will try to move to court action and prosecution as quickly and as early as we can. The longer we let things run, the evidentiary base might be stronger, but the risk to the community is greater.

But before a criminal act is committed you can see young people moving in all sorts of directions and at a certain point you can see that someone’s reached a tipping stage. We will see if it is possible between us, the police, social workers, community leaders, whoever, to take preventive action.

You can’t win in this business. Late last year we were being criticised for withdrawing the passports of people who intelligence told us were going to join the terrorists in Iraq. And we were going to be taken to the High Court and so on, we still may well be. Then about six weeks ago, we were criticised, by the same lawyer, for not stopping someone going overseas.

Ideally we would like to be able to operate in such a way that these people can be convinced not to go overseas.

I guess the final thing that I’d say is, spare a thought for the 1700 and hopefully more people who must remain anonymous and get no credit for detecting and preventing threats to security – and who sometimes do some quite brave things.

These are the ASIO people and the people in the community who work with them.

They don’t expect special rewards. They come into this job with open eyes. They’re immune to the cartoons and the comments usually associated with intelligence services.

I think we owe them a great deal of gratitude but we’ll never be able to express it directly.

MG: They are getting a new building.

DI: They are and I have to tell you it is terrific. I am so angry that I’m not moving into it.

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