Disclosure offences in other Australian jurisdictions

How does an SIO compare with a controlled operation?

A ‘special intelligence function’ means a function of ASIO under paragraph 17(1)(a), (b), (e) or (f) of the ASIO Act (see the definition in section 4 of the ASIO Act). These are, in effect, the various intelligence-gathering functions of ASIO (the functions not covered by the definition are ASIO’s advisory functions, including furnishing security assessments and providing advice relating to protective security).

ASIO’s function under paragraph 17(1)(f) of the ASIO Act is to cooperate with and assist bodies referred to in section 19A (that is, Australian Secret Intelligence Service (ASIS), Australian Signals Directorate (ASD), Australian Geospatial-Intelligence Organisation (AGO), a law enforcement agency (as defined) and an authority of the Commonwealth or of a State that is prescribed by regulations—of which there presently are none) in accordance with that section. Section 19A provides that ASIO may cooperate with and assist those bodies in the performance of their functions. This may involve obtaining intelligence which (unlike under ASIO’s other relevant functions) need not be linked with ‘security’. In doing so, ASIO’s legal and policy obligations continue to apply to those activities.

ASIO’s intelligence-gathering functions are primarily directed at obtaining intelligence that will help ASIO to protect Australia and its people from specified threats to ‘security’ (as defined in, and for the purposes of, the ASIO Act). This in part involves trying to predict emerging threats to security.

As such, the purpose of SIOs differs from that of controlled operations, which are primarily for law enforcement purposes, including obtaining the evidence needed to prosecute people alleged to have committed criminal offences.

The evidence obtained during controlled operations is intended to be, and often is, used in criminal court processes in an effort to obtain a conviction. As a result, the processes by which the evidence was obtained may be subjected to judicial scrutiny. By comparison, ASIO activities are generally conducted in secrecy by necessity, due to the nature of security intelligence work, and SIOs in particular are intended, generally, to remain secret in perpetuity.

There are some circumstances in which intelligence gathered by ASIO may be used in legal proceedings, including in a prosecution (the SIO scheme contemplates this in sections 35A, 35P and 35R). Further, the Government and Parliament appear to increasingly expect ASIO to work closely with law enforcement agencies, particularly in counter-terrorism matters. Together with the tendency for the criminal law increasingly to apply to preparatory acts connected with acts of terrorism, rather than being limited to terrorist acts as such, this is one basis used to justify the SIO scheme. In other words, an SIO scheme is necessary to alleviate the increasing risk, for example, that covert conduct by ASIO employees and ASIO affiliates may expose them to prosecution.

Nonetheless, the purpose of the SIO scheme differs from that of the controlled operations scheme because the former relates to ASIO’s statutory functions. Further, ASIO’s intelligence-gathering functions extend beyond the counter-terrorism context (to include, for example, intelligence related to espionage, sabotage and acts of foreign interference). This means that SIOs may also be used in other settings. The SIO scheme is also available, for example, to counter the actions and activities of foreign state and non-state actors contrary to the interests of Australia and which may also constitute offences against Australian law. In this context also, covert conduct by ASIO employees and ASIO affiliates may involve unlawful activities.