Reflections on first term
OIGIS had been in existence for 17 years when I started and my predecessors had
put in place a solid base. Notable in this regard was the mature relationship which
had developed over time with the agencies with which it had had regular contact.
These agencies had to come to understand the importance of being accountable
and OIGIS was conscious that a nuanced relationship—rather than a blunt adversarial one—would best achieve the purposes of the legislation.
My view of the approach the office takes can be summarised as fair, constructive but firm when necessary.
A second valuable element I inherited was an emphasis on the inspection program. This program involves regularly attending agencies, scrutinising key records and activities, and discussing issues with staff. It is an important means of preventing or forestalling issues or problems before they become major ones, and the normative effect is significant.
But the last three years has not been a story of simple continuity. Substantial change in the security environment has also changed the AIC and hence demanded more of OIGIS.
Agency growth
One of the most obvious changes is the growth in the size of the AIC agencies. Some are doubling in size and this flows through to increases in operational activity. This in turn means an increase in inspection and related activities for OIGIS, and hence my staff has grown from four when I arrived in March 2004 to nine as at 30 June 2007.
The office has also had a tradition of seeking additional resources and/or expertise when there has been specific need and these have been readily provided by Government or agencies. I have used the former IGIS, Mr Bill Blick PSM AM, as a consultant from time to time and have also accessed other expertise when necessary (from outside the agencies I review).
Whether the approved growth of OIGIS proves to be sufficient can only be judged in light of workload trends as they unfold. In part this depends on how well the agencies select, train and guide new staff and the effectiveness of their internal mechanisms to ensure legality, quality, compliance and effective risk assessment and management. With this in mind I have taken, and will continue to take, a keen interest in these processes.
Additionally, in an endeavour to assist the right culture being present, I and my office have sought out and taken a range of opportunities to address staff in the agencies about their obligations and expectations of them. This has spanned new starters, experienced staff and managers. In the last three years we have addressed around 2,500 staff in total in about 110 sessions. Combined with our inspection program I am confident that OIGIS is well known within the AIC and that key messages about legality and propriety have been discussed with agency staff.
Protecting the rule of law and having the trust and confidence of the community have been stressed as essential overarching requirements. Particular points flowing from the legislation which are discussed with agency staff are that the agencies must:
- act only within the scope of their specified charters
- be careful not to inhibit lawful advocacy, protest or dissent
- avoid any suggestion of political partisanship
- exercise good judgement about proportionality in collection activities
- be sensitive to the privacy of Australians, and
- act objectively and with integrity.
Naturally the role of my office and other accountability arrangements have also been covered.
Agency powers and capabilities
At least as notable as the growth in the size of the agencies have been increases in the powers and capabilities available to the AIC agencies in recent years. Where relevant I and my office have contributed to parliamentary committee deliberation on legislation, particularly on safeguards and protections against abuse.
ASIO questioning and detention warrants have been one particular focus. My office plays a central role in monitoring what occurs. I have made it a personal practice to attend on at least the first day of questioning. When so attending, the legislation provides me with the capacity to raise any concerns about the process1. These concerns must be addressed by the prescribed authority (usually a retired judge, who also monitors the questioning), if necessary by suspending the questioning.
The provisions in the Australian Security Intelligence Organisation Act 1979 allowing for these warrants and experience with them were carefully reviewed by the PJCIS in 20062 and were extended subject to another sunset clause. While I well appreciate why these provisions are controversial and bear very close monitoring, and I was one of the voices urging that there should still be a sunset clause, some of the public commentary has been disappointing.
Some critics deliberately ignore one of the legal requirements for the issue of such a warrant, namely that “relying on other means of collecting that intelligence would be ineffective”.3 In my view this makes it a device of last resort and to suggest that a wide range of innocent people could be subject to such warrants is simply wrong. Similarly some critics seem determined to ignore the range of other protections and safeguards that have been put in place.
Other contentious issues which are among the subjects of close attention by OIGIS in inspection activities are the capacity for ASIS officers to carry weapons for self-defence, and changes to telecommunication interception legislation such as the introduction of B-party warrants and proposed authorisations for prospective metadata.
Legislation generally
I have also played a broader role in relation to legislation through membership of the Sheller Committee (the Security Legislation Review Committee) which conducted a review of the terrorism offence provisions in the Criminal Code and related legislation enacted in 2002 and 2003.
The Committee’s report was tabled in Parliament on 15 June 20064 and has been the subject of two subsequent inquiries by the PJCIS5. It is to be hoped that the Government takes on board the recommendations which have emerged from these processes given the careful deliberation which has lead to their formulation.
I have also been pleased to be a member of the Administrative Review Council6 which has a general advisory and monitoring role on the administrative law system in the Commonwealth.
Intelligence assessments
Another distinct development in the work of OIGIS has been in relation to ONA. Following the review in 2004 by Mr Philip Flood AO of the Australian intelligence agencies7, amendments to the IGIS Act mean that periodic reviews are to be conducted of the independence and propriety of ONA assessments.
For many years the work of OIGIS has been focussed on collection activities for the quite understandable reason that it is collection activities which are most likely to impact on the rights of Australians. However, in light of sensitivities about intelligence assessments, there is a need for processes to provide assurance that ONA assessments are not subject to improper external direction or influence and that generally the process by which assessments are formulated has integrity.
The IGIS model
It is interesting to reflect on how the Australian IGIS model has stood up over time. The recent developments are something of an evolution from what can be described as “the eyes and ears of the ministers”. There is a need for reassurance of the Parliament and the community that agencies are using their expanded powers and capabilities professionally, properly and for the purposes for which they were given. I am conscious that to satisfy this broader expectation the office needs to be better known outside the AIC in a targeted way. There might also be merit in reviewing whether some greater capacity for disclosure in the period between the annual reports to Parliament than the IGIS Act currently permits, would assist in this regard.
Other elements of the IGIS model such as the capacity to call on strong investigative powers, flexibility over how each inquiry is conducted, and having “own motion” capacity to initiate inquiries or inspections as well as being able to respond to complaints and requests from Ministers, continue to be very sound elements of the model.
The independence of the position has been strongly maintained. The IGIS is not subject to general direction on how the inspection program or particular inquiries should be formulated or conducted. The only exception to this is that the Prime Minister can direct the IGIS to inquire into a particular matter, although how the IGIS conducts the inquiry is up to that statutory office holder.
In practice I have found ministers and agencies to be properly respectful of the independence of OIGIS. This has extended to accepting that in applying the Uhrig8 templates to agencies, mechanisms such as ministerial statements of expectation and, in response, agency head statements of intent, are not appropriate for OIGIS.
Scope of jurisdiction
While to some foreign eyes it is unusual that an IGIS should review six agencies rather than focussing on one, I have found being able to compare and contrast useful, as is being able to track something across the agencies.
Indeed, the span of agencies which can be involved in issues such as counter-terrorism can be considerable and this has caused me to reflect on whether there should be some capacity to extend an inquiry under the IGIS Act to include intelligence and security activities of other agencies in special circumstances. This should not be the norm lest there be a diminution of the focus of my office on the AIC, but there are occasions when an intelligence or security issue can only be satisfactorily examined by going outside the AIC.
Another important feature of the IGIS jurisdiction is that the concerns of the office are specified in the IGIS Act as legality, compliance with ministerial directions or guidelines, propriety and respect for human rights.
Propriety is not defined in the Act. The view taken by successive Inspectors-General has been that in the context of this particular legislation “propriety” does not mean efficiency or reasonableness (at least in themselves), but rather conformity with a standard as to what is “proper”. This would seem to be in accord with the view of Justice Madgwick of the Federal Court that when the IGIS reviews an assessment made by ASIO in relation to a visa holder, the review cannot extend to the actual merits of the assessment.9
While conscious that there are outer boundaries to the concept of propriety, I have seen it as usefully encompassing issues such as procedural fairness, the integrity of intelligence assessments, and proportionality in intelligence collection activities (i.e. that actions taken and the degree of intrusion must be proportionate to the nature of the threat and its apparent urgency).
While this flexibility has been generally suitable, that there are outer boundaries to the jurisdiction of this office does arguably raise two broader issues about the accountability of the AIC which are worth comment.
One is quite specific and is whether merits review should be available for certain categories of people who currently are precluded from appealing to the AAT. While people who are Australian citizens or permanent residents can appeal to the AAT on decisions such as the refusal or cancellation of a passport because of an ASIO security assessment, people outside these categories (such as refugee claimants for a visa) do not have resort to the AAT.
My predecessor had recommended that the legislation be changed to provide for AAT review for refugee applicants where appropriate Australian authorities find that the applicants have a well-founded fear of persecution if returned to their country of origin.10 This was not taken up at the time but I think it would be worthwhile revisiting the proposal. The number would be very small (hence cost should not be a barrier) and there would be greater public assurance that a sensitive group of cases have been carefully examined. As noted earlier, the jurisdiction of my office does not extend to the merits of security assessments, so the extent of review my office can offer is constrained.
The second issue worth comment is a broader one about the best means for reviewing the efficiency and overall effectiveness of the AIC agencies, individually and collectively.
This has been the subject of consideration by the PJCIS11 and by the 2004 Flood review. The approach taken by the latter was that the Department of the Prime Minister and Cabinet (PMC) should advise the National Security Committee annually on the performance of the foreign intelligence community and conduct an annual review of ONA’s performance (activities which that Department has subsequently taken up), and additionally that the intelligence community should be subject to periodic external review every five to seven years.12
I should also note another limitation to the role of the IGIS. Generally complaints by employees of the AIC agencies which concern their treatment as employees or their conditions of service are outside the legislative remit of this office. The intention is that there be other mechanisms to deal with such matters, and that the focus of IGIS review be squarely on the operational activities of the AIC agencies. I believe this is still a valid approach in respect of individual matters. Importantly, the IGIS Act does not preclude IGIS review of policy, procedures and general practice around human resources processes including those for staff grievances.
Liaison
I have been conscious that however well one devises particular mechanisms, the important issue in public administration is often how different mechanisms fit together. This is particularly important in the accountability area where gaps, overlaps or territorial battles between different watchdogs could defeat the overall effectiveness of arrangements.
With this in mind I have consciously sought to ensure good links with the PJCIS, the Commonwealth Ombudsman, the Privacy Commissioner, the ANAO and the Human Rights Commissioner. All have had the same view about having a suitable relationship and where necessary, alignment.
Footnotes
1 Section 34 Q, Australian Security Intelligence Organisation Act 1979.
2 Parliamentary Paper No: 454/2005.
3 Sections 34D(4) and 34F(4), ASIO Act, op. cit.
4 Security Legislation Review Committee 2006, Report of the Security Legislation Review Committee, SLRC, Attorney-General’s Department, Canberra.
5 Parliamentary Paper No: 423/06. Parliamentary Paper No: 201/07.
6 See Part V of the Administrative Appeals Tribunal Act 1975.
7 P. Flood, Report of the Inquiry into Australian Intelligence Agencies, Canberra, July 2004.
8 Uhrig, J (2003) Review of the Corporate Governance of Statutory Authorities and Office Holders, Commonwealth of Australia, Canberra.
9 See Leghaei v Director-General of Security [2005] FCA 1576.
10 IGIS Annual Report 1998-1999, p 17.
11 Parliamentary Paper 572/2002; Parliamentary Paper 83/2005.
12 Flood, op. cit., recommendations 10 and 22.