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Role and Responsibilities of the Inspector-General
1991-92 has been at least as busy a year as the previous one, with a large number of complaints from members of the public and an increase in complaints by ASIS officers and ex-officers. Somewhat surprisingly, in view of ASIO's extensive activities among the Muslim community during the Iraq war and among the communities from those states that used to comprise Yugoslavia, I received only one complaint against ASIO about this kind of activity.
Happily, the turmoil that existed among ASIO staff when I wrote my last annual report has reduced considerably as new procedures for handling grievances and for dealing more generally with personnel matters have been put in place. In addition, staff accommodation arrangements in ASIO's regional offices in Canberra, Sydney and Melbourne have all been improved. While there is still some apprehension among ASIO officers about changes that will flow from the Government's major review of the intelligence community that occurred during the year, and feelings of uncertainty about the extent of possible staff cuts coming from that review, I would expect the Organisation to emerge with a much sharper focus and a much improved morale. In the meantime morale remains delicately poised and management will need to give concerted attention to ensuring that the recent improvements are maintained.
During the year I met delegations from Russia and the Republic of Korea and had discussions with representatives from New Zealand and Poland. These countries are looking at how they can put into place some accountability arrangements for their intelligence and security agencies.
I received Government approval to increase the staff of my office by one and to upgrade two of the existing three staff positions so as to enhance our research capacity. Nevertheless, I still needed to obtain the services of additional staff when particularly complex or demanding matters were being investigated. I am grateful to the Department of the Prime Minister and Cabinet for providing me with one of its officers, without charge, for some three months.
Financial and administrative matters continue to create disproportionate demands on my office, largely because the same rules apply to us - an office of only five – as are applied to large Government Departments.
The role and responsibilities of the Inspector-General are mainly set out in the Inspector-General of Intelligence and Security Act 1986. Briefly, I am to help Ministers oversee the activities of Australia's intelligence and security agencies to ensure that the agencies act legally and with propriety, comply with Ministerial guidelines and directives and respect human rights.
My responsibilities vary from agency to agency, broadly in accordance with the degree to which the agency concerned has the potential to intrude into the lives of Australian citizens. Thus I have:
- Limited responsibilities and powers regarding the Office of National Assessments (ONA) and the Defence Intelligence Organisation (DIO), neither of which collects intelligence. Apart from matters relating to human rights and grievance procedures, which I can investigate of my own motion, I can conduct inquiries only at the request of the responsible Minister, that is, the Prime Minister in the case of ONA and the Minister for Defence in respect of DIO. The thinking behind giving me the power to investigate human rights violations is to meet the need for such matters to be examined by an independent authority with unrestricted access to classified information.
- Substantial responsibilities and powers regarding the Defence Signals Directorate (DSD) and the Australian Secret Intelligence Service (ASIS). As well as having the power to investigate human rights and grievance procedures, I can conduct inquiries into the legality and propriety of acts by these bodies. I can do this in response to a complaint, at the request of the responsible Minister, that is, the Defence Minister in respect of DSD and the Minister for Foreign Affairs and Trade in the case of ASIS, or of my own motion.
- Greatest responsibilities and powers in respect of the Australian Security Intelligence Organisation (ASIO), where I have the same responsibilities as I have for DSD and ASIS but also have the power to protect the rights of a person who has no recourse to the Security Appeals Tribunal and against whose interests ASIO has furnished an adverse report, and to review certain directions given to ASIO by the Attorney-General. In respect of the latter, the Attorney-General cannot over-ride the opinion of the Director-General of Security on the question of whether the collection or communication of intelligence concerning a particular individual is justified on security grounds, except by a direction in writing setting out the Attorney's reasons. I have the function of inquiring into such directions, specifically into whether collection is justified by reason of its relevance to security or whether communication would be for a purpose relevant to security. I can also, of my own motion, investigate ASIO's procedures that are designed to ensure that the Organisation acts legally and with propriety. (I can conduct such investigations into the procedures of the other agencies only if the responsible Minister asks me to do so.)
I also have significant responsibilities for various staffing matters in respect of ASIS. I can, for example, inquire into complaints concerning employment related matters such as promotions, termination of employment, discipline or remuneration, although I can conduct such inquiries only if the complainant has first tried to resolve the problem by using the agency's internal grievance procedures. I have, those same powers also in respect of ASIO, but the situation has changed with the appointment in July 199I of Mr Norm Attwood, AO, a member of the Administrative Appeals Tribunal and the Security Appeals Tribunal, as independent chairperson of the ASIO Grievance Review Committee. Section 8(7) of the Inspector-General of Intelligence and Security Act expressly precludes me from inquiring into a complaint made by an employee of ASIO where the matters complained about are reviewable by a person external to ASIO. I can still investigate an ASIO staff grievance which raises an issue relating to legality, propriety or human rights.
Public complaints against the intelligence and security agencies
During 1991-92 my office received 33 complaints which seemed worthy of serious examination. Of these, 27 were against ASIO, the remainder being against ASIS.
As well, we received a number of complaints from people who were clearly mentally disturbed, alleging, for example, that ASIO was using laser beams to plant evil thoughts in a complainant's mind; or that ASIO was involved in the implanting of transmitters during a complainant's eye surgery; or that ASIO gassed a complainant and made him impotent. These complaints were generally disposed of quickly, after a check with ASIO to ascertain whether the complainant had ever been of interest to them.
As the following table shows, there has been a steady increase in the number of "substantive" complaints received by my office.
| 1986/87 | 1987/88 | 1988/89 | 1989/90 | 1990/91 | 1991/92 | |
|---|---|---|---|---|---|---|
| Substantive complaints received | 8 | 12 | 13 | 15 | 27 | 33 |
| Substantive complaints disposed of | 5 | 9 | 7 | 18 | 14 | 33 |
At the end of the financial year 22 such complaints remained under investigation.
It has been my practice to try to dispose of complaints as quickly as possible. In some cases we have been able to do this without taking the formal step of undertaking "preliminary inquiries". This can often be the most expeditious way of dealing with a complaint. When the complaint appears to be more complex, however, I would normally go into preliminary inquiry mode under section 14 of the Inspector-General of Intelligence and Security Act. This enables me to make inquiries of the head of the agency concerned for the purpose of determining whether I could, or should, inquire further. If I decided to do so, the next step would be to go into full inquiry, in which I have extensive powers to obtain information, roughly like those of a Royal Commission.
The following table shows the way in which the various "substantive" complaints that my office has investigated or is presently investigating have been disposed of:
| 1986/87 | 1987/88 | 1988/89 | 1989/90 | 1990/91 | 1991/92 | |
|---|---|---|---|---|---|---|
| Dealt with informally | 1 | 4 | 1 | 5 | 3 | 5 |
| Dealt with in preliminary inquiry mode | 6 | 6 | 7 | 9 | 7 | 17 |
| Dealt with by full inquiry | 1 | 2 | 5 | 1 | 17 | 11 |
| Total | 8 | 12 | 13 | 15 | 27 | 33 |
Of the 22 cases presently before the office, five are being handled informally, six are the subject of preliminary inquiries and 1I are the subject of full inquiry.
Generally speaking, it is the simpler cases that can be handled informally or in preliminary inquiry mode, and the more difficult that require me to take the formal step of instituting a full inquiry. Among the former would typically be allegations of surveillance or other interference, concerns regarding possible adverse security assessments and concerns that ASIO has incorrect information about a person on its files. Some of these matters can be easily disposed of by my going into ASIO and making a search myself using the ASIO central registry computer.
I have discussed in my previous two annual reports some of the matters that have been the subject of full inquiries by me, and I discuss some more such cases later in this report. While staff grievances have been a significant component of this group, the rest of the full inquiries undertaken by my office have been very varied. The one thing that they have had in common has been their complexity. I have found that if a matter gets to full inquiry stage it can be expected to be very difficult to resolve and to take some considerable time. Many full inquiry cases have required literally weeks of interviews of people who may have something relevant to offer. The current Hilton bombing inquiry (which is discussed more fully later in this report) is one such; another is the case involving allegations by an ex-ASIO employee that ASIO gave her bad advice about her superannuation entitlements and discriminated against her on various grounds. The latter case has been concluded after an investigation lasting nearly two years.
The length of time it takes to complete some inquiries can be very trying for complainants. I am aware of the stress caused especially for those people whose futures may depend on the outcome of my investigations. This has been particularly so in the case of a number of ASIO and ASIS officers who have brought matters to me after the internal grievance processes of their agency have not settled the issue of concern. However, in spite of my best efforts, slender resources coupled with the complexity and seriousness of some of the issues complained of sometimes result in long delay before an inquiry can be completed.
It is because of the variety and complexity of these cases that I find it impossible to set realistic performance indicators against which to measure the effectiveness of my office. The time taken to complete a case is not an accurate indicator. Nor is the number of cases that we investigate. An increase in cases could mean that we are doing a good job and that knowledge of and confidence in the Office is increasing; or it could mean the reverse, because, despite the presence of the Office and the assurances that we have been able to give to date, there is still concern among the community that the intelligence and security agencies are not to be trusted.