The year 2007- 08 in prospect
The following is a summary of the main activities planned for the 2007–08 reporting period.
Continuation of final term as Inspector-General
As noted earlier in this report, I was reappointed as IGIS on 27 April 2007 for a period of four years.
Section 26 of the IGIS Act provides that persons holding the office of IGIS may not be appointed to the office more than twice. I think that it is entirely appropriate and desirable for the position of IGIS to be term limited. Equally it is important to have a sufficient time in the position so as to obtain a good grasp of the inner workings of the AIC agencies but without becoming captive to their institutional interests, or becoming identified in the public mind as an “intelligence insider”.
The following plans reflect my current short term intentions but will be supplemented as necessary, as the new reporting year progresses and my thinking develops further.
Staffing and recruitment
During this reporting period I recruited two full time officers and one part time officer. One of these positions was filled in anticipation of the impending retirement of a long serving OIGIS officer early in the 2007–08 reporting period. It is my current intention to engage at least one additional member of staff in 2007–08.
The anticipated increase in resources detailed above means that I will be able to improve our existing visits and inspections program by devoting more time and more staff to specific inspection and review tasks, and to add new inspection tasks as appropriate.
Inspection activity
ASIO – new powers
In 2005 the ASIO Act was amended to provide ASIO with the power to compel airline and vessel operators to provide information (see section 23). In the coming period I propose to conduct inspection activity which examines the requests made and how the data is handled.
As indicated elsewhere in this report, ASIO used “B-party” telecommunications interception warrants for the first time during this reporting period. We will continue to be especially vigilant in monitoring all aspects of the use of “B-Party” warrants during the 2007–08 reporting period.
It is my intention in the 2007–08 reporting period to conduct periodic meetings with senior ASIO personnel, along similar lines to meetings which I already conduct with the other intelligence collection agencies.
The purpose of these meetings will be to provide a regular forum in which I can be briefed on emerging trends or developments, candidly exchange views on issues of mutual interest, and to monitor progress on matters in which my office has a direct interest.
As indicated in the chapter of this report dealing with legislative developments, the Telecommunications (Interception and Access) Amendment Bill 2007 was introduced to Parliament in June 2007, to give legislative effect to those recommendations contained in the Blunn Review which were not dealt with in earlier legislation.
The Senate referred the provisions of this Bill to the Senate Standing Legal and Constitutional Affairs Committee on 21 June 2007 for inquiry.
In my submission to this review I observed that one of the proposals contained in the Bill is that very senior officers within ASIO will be able to issue authorisations requiring telecommunications carriers or carriage service providers to provide prospective telecommunications data to ASIO for the duration of the authorisation (i.e. up to 90 days).
In commenting on this provision I stated that:
“While this requirement for more senior level approval is appropriate, I believe that it is also a process which should be examined as a part of my office’s inspection program. This would involve periodic visits by my staff during which they would review all of the authorisations granted in the preceding period to ensure that there was sufficient justification and that the requirements imposed by the Communications Access Coordinator under the proposed section 183 were met.” 57
The Senate Standing Legal and Constitutional Affairs Committee discussed this suggestion in their report and formally recommended that such inspection activities occur.58
Should this Bill be passed and given effect during the 2007–08 reporting period, I will implement this recommendation.
ASIO - warrants
My office will continue to pay very close attention to the granting of special powers warrants to ASIO and the execution of these warrants.
These warrants are, for the most part, issued by the Attorney-General rather than by a judicial officer. It is therefore appropriate that these warrants be subject to some form of external scrutiny, even if it is necessarily ex post facto.
Another reason why this office seeks to review 100% of ASIO’s special powers warrants is that they are, by their very nature, inherently intrusive into the personal affairs of the subject of the warrant, and this is perhaps doubly true when these powers are exercised covertly.
In light of this it is my intention to inspect all requests for warrants which are made by ASIO during 2007–08, and to review associated documentation.
It is also my intention that, in selected cases, we will seek full details of the investigations which are carried out under warrant authority, including examining relevant operational case files and, if necessary, discussing operations with the responsible ASIO officers.
We will also continue to conduct independent checks on telecommunications services which are being intercepted to ensure that they comply with relevant warrant conditions.
As discussed in the ASIO chapter of this annual report, it has been the practice of the office to be present for at least the first day of questioning which is conducted pursuant to any questioning warrant which has been granted to ASIO. It is my intention to continue this practice during 2007–08, should any questioning, or questioning and detention warrants be granted to ASIO.
ASIO – other reviews
We will examine all approvals to investigate generated in ASIO’s central office and as many approvals generated by ASIO’s State and Territory offices as we can access during our periodic visits. The files on which actions resulting from the authorities are recorded will also be examined.
We will continue monitoring ASIO’s access to, and use of, AUSTRAC and taxation records, to ensure compliance with the legislation and the MOU under which this access is provided.
We will continue to monitor ASIO’s procedures for controlling the use of alternative documentation associated with assumed identities.
We will also continue to monitor ASIO’s performance with regard to its obligations under the Archives Act 1983.
Later in the reporting year we will revisit ASIO procedures and practice in the exchange of information with foreign liaisons, to check that standards are being maintained.
My office will continue to make presentations to ASIO training courses on ethics and accountability. We also intend to observe, participate in and otherwise support training activities associated with ASIO’s intelligence officer training program.
ASIO’s internal audit program will be monitored and I will obtain reports on reviews that are of interest to this office.
ASIS
During the 2007–08 reporting period my office will review any instance where ASIS has used its new status as a “designated agency” to access any financial transaction records which are held by AUSTRAC, or to communicate any information of this kind to other parties.
This is necessarily a new inspection activity and how we go about this task will be informed by experience, but as a minimum, we will be checking that ASIS is acting in compliance with its legal obligations under the AML/CTF Act 2006, and any MOU it enters into with AUSTRAC.
In addition to this new inspection activity my office will continue our standing practice of reviewing all ministerial submissions which are lodged by ASIS with its minister, and also closely reviewing all MAs which are sought by ASIS under the terms of the ISA.
We will continue to very closely monitor the application of the guidelines and protocols associated with the provision of, training in, and use of weapons and self-defence techniques by ASIS staff.
If it is feasible, I propose that either I or a senior member of my staff will attend a weapons training course, as an observer, to gain a first hand appreciation of what is involved.
We will continue to closely inspect operational files having regard to the legality and propriety of the conduct of ASIS officers. It is my intention to continue to engage former Inspector-General, Mr Bill Blick, to assist in this task until at least the end of 2007, at which time I will review this arrangement.
I intend to maintain our close scrutiny of records relevant to ASIS’s compliance with the privacy rules.
It is my intention to meet with ASIS’s intelligence coordinators, legal and policy staff approximately every six weeks, to be briefed on emerging issues and to discuss issues arising out of our inspection activities.
ASIS’s procedures for controlling the use of alternative documentation associated with assumed identities will also be the subject of review.
I or senior members of my staff will continue to address ASIS training courses and other forums on accountability.
I will also continue to meet with more senior ASIS officers before they proceed on postings to reinforce that they are subject to internal and external scrutiny and are accountable for their conduct.
DSD
I will complete the inquiry into OSA policy, procedures and practices in DSD (as well as DIGO and DIO).
My office will continue to access and review each DSD submission to the Minister for Defence seeking an MA under the ISA.
We will continue to monitor DSD’s compliance with its obligations under the DSD privacy rules.
We will meet key DSD staff on a monthly basis to discuss issues arising out of our monitoring activities, the internal monitoring activities undertaken by the relevant section in DSD which deals with such matters, and policy issues affecting compliance.
I expect DSD to continue to consult me on a range of operational matters and my office will provide prompt advice on issues related to legality and propriety.
I will continue to address DSD training courses and other forums on accountability.
It is my intention to visit DSD or DSD related sites in Australia, as the opportunity presents.
DIGO
I will complete the inquiry into OSA policy, procedures and practices in DIGO (as well as DSD and DIO).
My office will review all submissions made by DIGO to the Minister for Defence seeking an MA under the ISA.
We will review internal submissions made to Director DIGO specifically seeking authorisation in respect of Australian territory or Australian interests.
We will closely monitor compliance with the DIGO privacy rules.
We will conduct meetings approximately every two months at DIGO Headquarters to discuss issues arising out of the above inspection activities, and to discuss matters of common interest with relevant DIGO senior managers.
ONA
I intend to complete the inquiry I commenced in the second half of this reporting period into the independence and propriety of ONA’s assessment work.
I will meet with Director-General ONA on an occasional basis, to discuss matters affecting his agency, or the wider AIC, as circumstance dictates.
We will also closely monitor the application of ONA’s privacy guidelines.
DIO
I will complete the inquiry into OSA policy, procedures and practices in DIO (as well as DSD and DIGO).
Following a foreshadowed briefing on the framework for ensuring the integrity of DIO assessments, I will contemplate whether any further activity on my part is warranted.
My office will regularly review DIO’s compliance with the recently issued DIO privacy guidelines. It is my intention to meet with DIO senior management either prior to, or after, each privacy guidelines related visit we undertake to DIO headquarters.
Inquiries and complaints
Three inquiries under the IGIS Act were in progress at the close of the reporting period. I expect to conclude investigations into each of these during the first half of the new reporting period.
Footnotes
57 My submission is submission number 14, which is located at Parliament of Australia (PDF 330KB) (accessed on 29 August 2007).
58 Report of the Senate Standing Committee on Legal and Constitutional Affairs on the Telecommunications (Interception and Access) Amendment Bill 2007, 1 August 2007, p. 33-36.