Performance

Resource allocation

As the AIC grows in size and complexity, the demands which are being placed on OIGIS are also increasing in number and difficulty. While there has been appropriate budgetary recognition in recent years that if the AIC grows, OIGIS should also grow, the challenge is to ensure that the additional resources are being used in a way which best meets the objectives of the office.

In the very early years of OIGIS’s existence, significant resources were devoted to processing complaints and less time and effort was spent on inspection activities. There was a pent up demand from aggrieved individuals who wished to safely ventilate their concerns, and OIGIS provided a forum for these concerns. It was also the case that some of the intelligence agencies, not having had any previous experience in dealing with an external oversight body were wary of providing ready access to their records and methods until the relationship had developed and matured.

The Commission of Inquiry into ASIS conducted by the Hon. Gordon J. Samuels AC, QC and Mr Michael H Codd AC, in 1994-95, took evidence from the then Inspector-General, Mr Roger Holdich AM, on the allocation of resources within OIGIS and the focus of his work. At the time of his giving evidence, Mr Holdich estimated that handling complaints had come to occupy 75-80% of his time.³³

The Commissioners were critical of this, especially the amount of time then being devoted to handling what amounted to AIC agency staff grievances:

“The amount of time IGIS has devoted in recent years to his function in relation to inquiries into staff grievances has, in our view, distracted him from the general monitoring and oversight functions, and unduly reduced the attention which should have been given to these functions. We regard this as a matter of concern.”³⁴

The Commissioners then proposed that the IGIS’s capacity to review staff grievances be limited:

“… to allow IGIS to concentrate most of the energies of the office on the monitoring and oversight functions which we will be recommending be expanded in their coverage.”³⁵

Subsequent to the Commissioners making their report, all Inspectors-General have sought to give effect to this recommendation and ensure there is focus on regular and targeted inspection activities.

In the last five years, more of the time of the office has been directed towards assisting in the development of legislation affecting the AIC, and subsequently reviewing the impact of that legislation.

During this reporting period the resources of the office (apart from those necessary for corporate tasks associated with being a separate agency) were allocated roughly as follows:

60% monitoring the day-to-day activities of the intelligence community
35% devoted to handling complaints or inquiry related activities, and
5% on policy development, legislative review and presentations.

I can assure readers that, while I take the complaints and inquiry functions of the office very seriously, I will continue to focus the work of OIGIS on conducting regular monitoring and inspection activities.

Outcomes and outputs

In program budgeting terms, OIGIS has one outcome and one output. The fact that the office has only one outcome and output reflects its small size and the relatively narrow focus of our activities (i.e. a small specialist review agency operating within a well defined niche).

The planned outcome for OIGIS is to offer (where possible and appropriate) “assurance that Australia’s intelligence agencies act legally, ethically and with propriety”.³⁶

This outcome is achieved through a single output which is to “inspect, inquire into, and report on, the activities of the intelligence and security agencies.”³⁷

Performance indicators

The effectiveness of the office in achieving its objectives can be assessed against several key performance indicators. The following measures take into account the unique role and functions of the OIGIS:

the time taken to deal with complaints and conclude inquiries
acceptance by ministers and agency heads of recommendations arising from inquiries
the responses of agencies to issues raised arising from inspection activities, and
the level of assurance the Inspector-General can provide that the agencies are conducting their activities legally, with propriety, and regard to human rights

Levels of complaint and inquiry

At the commencement of the reporting period four preliminary inquiries remained open. Two of these inquiries related to the activities of ASIO, and two were concerned with ASIS. Three of these four preliminary inquiries were finalised in the early months of the reporting period, while the fourth was concluded early in 2007.

In addition to the four matters referred to above which were carried over into the reporting period, OIGIS received 149 approaches from individuals with new or continuing complaints against a nominated agency³⁸. I also commenced three own motion inquiries. This global figure of 152 compares with 99 complaints/inquiries in the previous reporting period.

The 152 approaches described above can be broken down as follows:

3 own motion inquiries, compared to two in the previous reporting period
10 new complaints leading to preliminary or full inquiries. Of these inquiries three remained open as at 30 June 2007. In the previous reporting period 18 complaints led to preliminary or full inquiries³⁹
28 approaches seeking a previous complaint be reviewed or a new inquiry be conducted, compared to 19 in the previous reporting period
37 new complaints where an agency was specifically identified, which were dealt with administratively. There were 34 such complaints in the previous reporting period,⁴⁰ and
74 complaints about alleged delays by ASIO in conducting immigration related security assessments that were handled administratively rather than as preliminary or full inquiries. This compares to only 17 complaints in the 2004–2005 reporting period and 26 such complaints in 2005–2006.⁴¹

Some of the above figures require clarifying comment to place them in a proper context.

Since the creation of the office in 1986–87, the average number of new matters or complaints which were formally pursued as preliminary or full inquiries averages 20.75 per annum.

In the five year period between 2001–2002 and 2005–2006, the average was 26.2 per annum.

In this reporting period I pursued 13 matters as preliminary or full inquiries (i.e. 3 own motion inquiries and 10 complaints).

The decline in the number of preliminary and full inquiries I conducted in 2006–2007 is linked to how I have chosen to handle an upsurge in complaints I have received about the timeliness with which ASIO is conducting security assessments on applicants for various forms of visas.

In the 2004–2005 reporting period, I received a total of 31 complaints on immigration related matters. I pursued 14 of these as preliminary inquiries and processed 17 complaints administratively.

In the 2005-2006 reporting period, I received a total of 34 complaints on immigration related matters. I pursued 6 of these as preliminary inquiries, 2 as full inquiries, and processed 26 complaints administratively.

In the 2006–2007 reporting period, I received a total of 76 complaints on immigration related matters. I pursued two of these as preliminary inquiries and processed 74 complaints administratively.

As has been explained elsewhere in this report, there are a number of reasons why we are receiving an increasing number of immigration related complaints. One is the pressure which workload increases have placed on ASIO. Another is that it seems an increasing number of migration agents or networks are now aware of the existence of our office and will contact us directly if they believe there is an unreasonable delay in the processing of their client’s visa application.

When our office first experienced an upsurge in immigration related complaints in the 2004–05 reporting period, I pursued 14 of these complaints as preliminary inquiries. Going through this formal process, while appropriate, was time consuming as in each case the Director-General of Security needed to be briefed and respond to my request for information.

In consequence of the time being taken, I decided to handle all such complaints administratively in the first instance, unless there is a clear need to pursue the complaints more formally. This is usually to the benefit of the complainants, as administrative inquiries can be addressed in a speedier manner.

I will continue to closely monitor ASIO’s performance in this area and adjust my approach as necessary.

While immigration related complaints increased markedly in the reporting period, OIGIS also received 65 other non-immigration related complaints where an AIC agency was named, or where reference was made to the AIC as a whole, which I chose to handle administratively.

Wherever possible we try to process complaints about AIC agencies which do not proceed to preliminary or full inquiry within a few days.

In addition to the 156 cases identified above (i.e. four preliminary inquiries carried over from the 2005–06 reporting period, 149 new or resumed complaints and three new own motion inquiries), 30 other individuals contacted the office with concerns which did not directly refer to or involve an AIC agency (compared to 61 in 2005–06). Each of these contacts was handled administratively.

It is sadly the case that a significant proportion of these 30 contacts were from individuals who were clearly suffering from delusional or imaginary concerns.

In addition to persons with manifestly delusional concerns we also received contact from persons who wished to raise matters which fell outside of our jurisdiction, or otherwise sought to provide “tip-off” information.

In the case of matters falling outside of our remit, it is our practice to refer complainants to an appropriate review body which does have the power to investigate their complaints (this is frequently the Commonwealth Ombudsman or a State-based Ombudsman).

All tip-off information we receive which may be at all credible is passed to the National Security Hotline (NSH), or other agencies as appropriate.

As the NSH has the capacity to disseminate security related tip-offs to appropriate government agencies in a more timely manner than OIGIS, we encourage persons with information of this kind to contact the NSH directly on ph. 1800 123 400 (this is a free call from anywhere within Australia).

Of course, if the information to be imparted concerns allegations of illegality or impropriety on the part of any member of the AIC, it is still appropriate for these matters to be brought to the attention of this office.

Timeliness

It is not possible or desirable to apply rigid target times for completing preliminary or full inquiries, and to use performance against such deadlines as a gauge of effectiveness. This is because a variety of factors, many of which are beyond the powers of this office to control or influence, have an impact upon the timeliness with which a complaint is disposed of.

Such factors include but are not limited to, the complexity and range of issues raised by the complainant, the accessibility of relevant files and documents to be reviewed, the availability of agency staff, and fulfilling other requirements associated with procedural fairness. Notwithstanding the above, it is our objective to minimise the time taken to complete inquiries.

In the five years between 1 July 2002 and 30 June 2007, the average time taken for inquiries to be completed was 108.95 days.

The average time taken to finalise preliminary and full inquiries in the 2006–07 reporting period was 95 days, compared to 81 days for the previous year.

While I am naturally disappointed that the time taken to finalise preliminary and full inquiries increased, on average, by 14 days per case, these delays were frequently caused by factors over which this office had no direct control. Notwithstanding this, I will strive to improve our timeliness in the 2007–08 reporting period, to the maximum extent possible.

Acceptance of recommendations

It is most uncommon for an agency to reject recommendations of the Inspector-General. This is because recommendations for change are not made lightly, generally involve prior consultation and hopefully reflect a common sense response to a particular issue or concern.

In all instances where the Inspector-General made formal recommendations in reports of inquiries which were concluded during the 2006–07 reporting period, these were accepted by the relevant agency.

Responsiveness to issues raised

Following inspection visits to each of the collection agencies, it is the agreed practice for the IGIS to write to the relevant agency head on the outcome of the visit, and where appropriate, offer suggestions on how procedures could be improved.

During 2006–07, I made a number of suggestions for procedural changes and reforms. These suggestions were generally accepted and acted upon.

I can also advise that the intelligence and security agencies continued to seek the views of my office on draft policies and procedures.

Where I have an interest or a concern about a particular activity, I do not hesitate to seek a briefing. In the vast majority of cases where I have sought such briefings, or additional information, my requests have been agreed to without question or qualification.

I continue to be encouraged by the willingness of the agencies to seek and accept input from this office and believe that it demonstrates a commitment on their part to conduct their activities legally and with propriety.

Level of assurance

The number of persons contacting my office is probably greater now than at any time during which OIGIS has existed.

This does not mean that the AIC agencies are running out of control, or that their activities are causing more offence, but is most likely a by product of the AIC’s increasing size, its greater visible engagement with the community, and its increasing operational tempo as it seeks to respond to new challenges. It may also reflect greater knowledge of the existence of my office.

Certainly I do not believe that the decline in the number of matters which I pursued as preliminary or full inquiries is the result of lack of awareness about this office. My staff and I make a significant number of presentations on the role and functions of this office, within the AIC, and also to community groups who naturally sit outside the AIC.

As reflected in the above figures individuals with a complaint about the AIC seem to have no trouble in identifying that an office of this kind exists and then making appropriate representations.

This process is aided considerably by our presence on the Internet which makes information about the role and functions of the IGIS readily accessible to a larger number of people than has ever previously been the case. We are currently redesigning our website to make it even more accessible and user-friendly.

As I have noted previously, as various community groups achieve a greater understanding of the role of this office and hopefully achieve greater comfort levels in approaching a government office on matters affecting security, it is possible that complaints to my office will rise rather than decrease.

Summary

As a result of the various inspection and inquiry activities conducted by this office during the
2006–07 reporting period a small number of instances were found where the agencies acted beyond their authority.

While any instance where an intelligence agency has acted without authority is a matter for concern, the instances detected were almost invariably due to technical or human error and appropriate remedial action was either already initiated by the affected agency, or put in train immediately an agency was made aware of a problem. There was no evidence that the intelligence and security agencies, or individual members of the agencies, have knowingly acted, or wish to act, beyond their authority.

Based on the various monitoring, inspection and inquiry activities undertaken by my office during 2006–07, I am satisfied that there is no evidence of enduring systemic deficiencies that would lead to breaches of propriety, the law, or the human rights of Australians.

I was also satisfied that the agencies were committed to acting legally and with propriety and respect for human rights, and that apart from a very small number of genuine errors, had complied with their obligations.

Footnotes
33 Quoted in the Report of the Commission of Inquiry into ASIS (Public Edition), Australian Government Printing Service, Canberra, March 1995, paragraph 9.18.
34 Ibid., paragraph 9.21
35 Ibid., paragraph 9.21.
36 PM&C Portfolio Budget Statement 2007–08 – Office of the Inspector-General of Intelligence and Security (PDF 115KB), p. 169, (accessed on 12 September 2007).
37 Ibid., p. 169.
38 For the purposes of this analysis I have construed the 37 form-letters we received in respect of the security assessment of Mr Rhuhel Ahmed as comprising one complaint rather than 37 separate complaints.
39 Tabular information relevant to these two dot points is provided at Annex 1, Table 1.
40 Summary information relevant to these two dot points is provided at Annex 1, Table 2.
41 Summary information relevant to this dot point is provided at Annex 1, Table 3.

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