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My philosophical approach
14. Before discussing my activities during the past year, it may be useful if I discuss the philosophical approach that I have adopted during the five years that I have been Inspector-General.
15. My starting point is to take the fact that there are three collecting agencies, each performing particular functions, as given. My main task is to help Ministers ensure that these agencies carry out their functions according to the law, with propriety and without unnecessarily impinging upon the rights of Australians.
16. I recognise that when I am conducting an inquiry, I have very significant powers, which I can exercise if necessary. However, I have preferred to hold them in reserve and to work so far as possible in a relationship of cooperation with the heads of the various agencies. Thus, I give notice of my proposed visits -to the agencies - indeed, I am required to do so by section 19(1) of my Act – and prior warning of the broad subject matters I wish to examine, but not prior warning of the detailed files etc that I wish to look at.
17. My Act does not give me a role in the management of any of the agencies and it is clear from the Hope Royal Commission Report and from the parliamentary debates w',-.en the Inspector-General of Intelligence and Security Bill was being considered that neither the Government nor the Opposition intended the Inspector-General to perform this sort of role. I am therefore careful not to obtrude on the responsibility of the Directors-General of the different agencies to run their own organisations. Inevitably, I do impinge on the management of the agencies when I investigate complaints of a grievance nature by members of an agency, but I have tried to draw the line at the point where I might make recommendations for changes in management processes but certainly not for changes in managers. in my view this would be against the spirit and the letter (eg section 17(10)) of my Act, and I would regard it as improper.
18. There is no provision in my Act for the delegation of the Inspector-General’s functions. As a result, I have had to become very deeply involved in the investigation of all complaints against the agencies and in the regular monitoring functions expected of my Office.
19. Under section 17(1) of my Act, I have a discretion as to the manner in which I conduct inquiries, subject to certain procedural requirements expressed in the Act. My basic approach has been first to undertake a preliminary inquiry under section 14 of my Act, which enables me to determine on a number of grounds set out in section 11 of my legislation whether I am authorised to inquire further and whether I should do so. If the answer to both of these questions is positive, then I would normally proceed to undertake a full inquiry. This has generally involved me in conducting a series of interviews with the complainant and relevant members of the agency and other people who might be able to help me come to a clearer understanding of the case.
20. At the same time as I conduct the inter-views, I would normally also obtain from the agency concerned and from other relevant bodies all papers and documents related to the complaint.
21. I have tried to conduct all inquiries as informally as possible. To this end, I have discouraged parties to a complaint from relying on solicitors. I have recently developed a set of procedures for the conduct of inquiries into complaints under the Inspector-General of Intelligence and Security Act, and have sought the views of the agency heads on them. The draft procedures are to be found at Annex A of this report. In preparing them I have sought to meet the following criteria:
- consistency with my Act,
- procedural fairness; and
- a balance between thorough investigation and reasonable expedition.
22. In explanation of the comment about procedural fairness, I have for some time been concerned about the procedural disadvantages which my Act imposes on complainants. The inquiry procedures prescribed in my Act give significant protection to an agency as the respondent to a complainant. I am required to give the agency head a reasonable opportunity to make submissions before expressing critical opinions in a report (section17(4)), to provide a copy of my draft report to the agency head (section 21(1)) and to incorporate the agency head's relevant comments in my final report (section 21(2)). The head of an agency will have at least two opportunities to respond to potential adverse findings and criticism of the agency, but a complainant may have, at best, a limited opportunity to comment on those responses. The complainant does not receive a copy of my proposed or final reports: he or she is given only a response, in a form agreed between me and the responsible Minister. Under the procedures that I have drafted and am now following, it may be possible (subject to there being no risk to security, defence or Australia's international relations and after consultation with the Director-General) to give complainants access to the Director-General’s response to the complaint (clause 16 of the draft procedures), or to arrange a meeting between the Director-General and the complainant (clause 25) or to give the complainant access to additional material that might have been obtained during the course of the inquiry (clause 27). I hope in this way to ensure that complainants receive - and recognise that they receive - a greater measure of procedural fairness than might be apparent from a reading of the Act.
23. My Act (section 22(2)(b)) permits me to recommend the payment of compensation to a person who has been adversely affected by action taken by an agency. In such cases I have, as a matter of principle, sought expert advice from the appropriate area of government as to the amount of compensation that should be recommended. In most cases this would be the Attorney-General's Department, but in one case (involving the superannuation payments of an ex-ASIO officer) I sought the advice of the Retirement Benefits Office.
24. Where an agency is responsible for the action that has led me to recommend compensation, I believe that the agency concerned should pay that compensation from its regular budget. Hopefully, this will make the agency more careful in the future.
25. I hold strongly to a particular view about the duty of care that managers of closed organisations such as ASIS and ASIO have towards their employees, and this view has now been endorsed by agency heads as well as by the Foreign Minister and successive Attorneys-General. My view may be summarised as follows.
26. All managers have a duty of care towards their employees. Many large organisations have various checks and balances built into their management systems to ensure that employees get a fair go. In ASIS and ASIO such checks and balances are limited. Members of these agencies, not being Public Service Act employees, do not have access to the normal public service mechanisms for the resolution of grievances. Nor are they permitted to join a union. It is therefore extremely important that management recognise its duty of care towards its employees. Indeed, in such closed organisations management needs to exercise a greater duty of care towards its employees than do the managers of an open organisation. In the event that an employee of one of these agencies feels that resignation is the only alternative to continuing to put up with what he or she might see as an unjust decision, alternative job opportunities are less easy to come by than they are for a regular public servant who can at least speak openly to potential employers about his or her work and experience. This is seldom possible for ASIO or ASIS employees.
27. I have found that in closed bodies, with limited channels for the resolution of problems and equally limited opportunities even for the discussion of problems (they cannot, for example, normally be discussed with outsiders, including, sometimes, family members), relatively minor matters can fester and may come to assume an exaggerated or disproportionate importance in the mind of the person concerned. Because of this I have consistently urged the staff of these agencies to use the channels that are available to them, including my office.
28. While not seeking to drum up business for my Office I have sought regularly to meet staff of these closed organisations so that they will at least know what I look like and have an opportunity to form a view about me in case they should ever need to see me, either officially or informally. I have also maintained contact with the office holders of the ASIS Staff and Welfare Association and the ASIO Staff Association.
29. Consistent with this approach, I have tried to encourage management to maintain a caring approach to staff and their problems, and to extend the communications process within their organisation.