Role and responsibilities of the Inspector-General

1. The role and responsibilities of the Inspector-General are set out in the Inspector-General of Intelligence and Security Act. Briefly, I am to help Ministers oversee the activities of Australia’s five intelligence and security agencies to ensure that the agencies act legally and with propriety, comply with Ministerial guidelines and directives and respect human rights. In addition, the Minister responsible for the Australian Security Intelligence Organization (ASIO) may request the Inspector-General to inquire into a matter or specified aspects of a matter arising pursuant to section 65(1) of the Australian Security Intelligence Organization Act 1979. This section provides for the Inspector-General to determine whether it is desirable for the Security Appeals Tribunal (SAT) to investigate ASIO’s actions where the Organization makes a security assessment of a person before the SAT was established or where the person did not get a copy of that assessment.

2. My Office had its genesis in the Royal Commission on Australia’s Security and Intelligence Agencies conducted in 1983/84 by Mr Justice Hope. The Royal Commissioner saw the Inspector-General as being an independent watchdog of the agencies’ activities, able to bring them to book if they were not acting legally or with propriety and to provide reassurances to the public when public fears about them were misplaced.

"The Inspector-General’s role would be that of an independent watchdog assisting the Minister and looking after the public interest in the proper functioning of the intelligence services".*

3. During his second reading speech (22 May, 1986) on the Inspector-General of Intelligence and Security Bill 1986, the then Attorney-General, Mr Lionel Bowen, said:

..."The three Bills I am introducing today will allow considerably increased scrutiny of the intelligence and security agencies. Butthe Government has also ensured that their effectiveness is in no way diminished. Indeed, we are satisfied that, as a result of these measures, public confidence in the agencies will be increased and as a consequence they will become more effective. The measures set out in the bills are based on the Government’s firm belief that the agencies should be accountable.

"... I now turn to the proposal for an independent watchdog over all the agencies, which stems from the Australian Labor Party submission to the Royal Commission, and which was further developed by Mr Justice Hope. The Government’s aims in establishing an Office of Inspector-General of Intelligence and Security include assisting Ministers with the oversight and review of: Firstly, the compliance with the law by Australian intelligence and security agencies; secondly, the propriety of their particular activities; thirdly, the effectiveness and appropriateness of certain procedures; and, finally, certain other aspects of the activities and procedures of some of those agencies, for example, concerning employee grievances. Our aims also include assisting Ministers in ensuring that the activities of the agencies are consistent with human rights and allowing for review of certain directions given to ASIO by the Attorney-General.

"… A person of exceptional skills and particular qualities will be required for the Office. Being a new position, having a pivotal role in Australia’s security and intelligence machinery, its occupant will deal with highly sensitive issues and respond to a range of ministerial and public requests. In recognition of the importance of this appointment, the Bill requires that before a recommendation on appointment is made to the Governor-General, the Prime Minister shall consult with the Leader of the Opposition. As the Prime Minister mentioned in May last year, the Office will be within his portfolio. Initially, it will comprise a small staff, but the Government will closely monitor its work load to ensure that staffing remains adequate.

"… We believe the maintenance of trust and good communications between all parties involved will be essential to the effective operation of the Office of the Inspector-General.

"… The Inspector-General will be able to monitor action - or inaction - arising from reports. Where an agency head proposes taking action as a result of a report, the Inspector-General is to be given details. If the Inspector-General believes this action to be inadequate, he or she may discuss the matter with the responsible Minister and provide a report to the Prime Minister.

"… Madam Speaker, the creation of an Inspector-General of Intelligence and Security is a key recommendation of Mr Justice Hope and constitutes a vital component of the Government’s reform package developed for the intelligence and security area. The Government embraced the concept and, having now translated it into draft legislation, is more than ever convinced that the creation of the Office is a highly beneficial addition to the machinery of government. We believe that the legislation establishes an Office which will, to paraphrase the Royal Commissioner, provide an independent oversight of the agencies’ activities, give the public a greater assurance that those activities are proper ones, and clear the agencies, or bring them to task, as the case may be, if allegations of improper conduct are made against them."

* Royal Commission on Australia’s Security and Intelligence Agencies, General Report, Commonwealth Government Printer, Canberra, December, 1984 paragraph 3.23

4. 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). At the request of the responsible Minister, or of my own motion, I can inquire into the grievance procedures of these agencies or matters referred to me pursuant to section 11(3) of the Human Rights and Equal Opportunity Commission Act 1986. Otherwise, I can conduct inquiries into the legality or propriety of particular activities of these agencies and the effectiveness and appropriateness of their procedures relating to the legality or propriety of these activities only at the request of the responsible Minister; that is, the Prime Minister in the case of ONA and the Minister of Defence in respect of DIO.
  • Substantial responsibilities and powers regarding the Defence Signals Directorate (DSD) and the Australian Secret Intelligence Service (ASIS). I can inquire into the legality and propriety of acts of these agencies, their compliance with the relevant Ministers’ directions or guidelines and (following a reference from HREOC) the agency’s observance of human rights and discrimination laws. 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 in the case of ASIS), or of my own motion. In addition, I may (at the request of the relevant Minister) inquire into the effectiveness and appropriateness of the agency’s procedures relating to the legality or propriety of its activities.
  • Greatest responsibilities and powers in respect of 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 whom ASIO has furnished an adverse report.
  • I also have the power to review certain directions given to ASIO by the Attorney-General. In respect of the latter, the Attorney-General cannot override the opinion of the Director-General of Security on the question of whether the collection or communication of intelligence about 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, and am specifically concerned with the question of 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 Organization 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.)

5. I also have significant responsibilities for various staffing matters in respect of both ASIS and ASIO, whose staff are not public servants and are therefore unable to have access to the normal public service mechanisms and arrangements for the resolution of grievances. Under my Act I am prevented from inquiring into complaints relating to the promotion, termination of appointment, discipline, remuneration or other employment-related matters of a complainant (that is, a matter of the kind referred to in section 8(6) of my Act) if.. 

  • in respect of ASIO only, the employee making the complaint was or is able to have those matters reviewed by a body constituted by or including non-ASIO persons (section 8(7) of my Act)., or 
  • I am satisfied at the time the complaint is made that the procedures of the relevant agency relating to the redress of grievances of employees are adequate and effective, or I am satisfied that the complainant has not pursued such procedures as are in place as far as practicable, or I am satisfied that the subject matter of the complaint is not sufficiently serious or sensitive to justify an inquiry (section 11(5) of my Act). I have received legal advice from the Deputy General Counsel in the Attorney-General’s Department that a complainant is not precluded from requesting me to inquire into a matter of the kind referred to in section 8(6) of my Act even though I had previously endorsed the agency’s internal grievance procedures as adequate and effective and the complainant’s complaint has previously been dealt with through those grievance procedures. but before inquiring into the matter I would have to be satisfied that those procedures, as applied to the complainant, were no longer "adequate and effective".

6. I have not conducted an own motion inquiry under section 8(2)(b) of my Act into ASIS’s procedures for the resolution of grievances, but I have addressed some aspects of this matter in my report on an inquiry that I conducted in 1992 into certain complaints against ASIS. More recently, in response to a request by the Director-General of ASIS, I have examined those procedures and have conveyed my views on them to the Director-General. The procedures have since been changed to take account of my comments and I have now agreed that they are adequate and effective. I have interpreted the legal advice I have received from the Attorney-General’s Department (see paragraph 5 above) to mean that whether they have been applied in a manner that is adequate and effective is something that needs to be considered on a case by case basis. To the extent that the ASIS arrangements prove to be adequate and effective, my own role in the ASIS staff grievance process would become more limited and my powers in this area more in the nature of "reserve" ones - as they are now in the case of ASIO.

7. There are some things that I am either not empowered to do in respect of ASIS or can do only if the Foreign Minister (or the Prime Minister) asks me or agrees that I might do them. (Neither I nor my predecessor have received any such requests.)

8. I have no general authority to examine how ASIS conducts its activities outside Australia, the collection of foreign intelligence and liaison with intelligence and security services abroad. If such activities raise one of the issues referred to in section 8(2)(a) or section 8(6) of my Act, I may have authority to inquire, subject to the following restrictions:

  • An Australian citizen or a permanent resident must be affected, or possible violation of Australian law must be involved: section 8(4).
  • If the activity in question occurred outside Australia or before 1 February, 1987, I must have the approval of the Minister: section 8(8)(a). I have sought the Minister’s approval to conduct inquiries into six complaints of the type referred to in section 8(8)(a), and approval was given in each case.
  • If such activities bear upon ASIS procedures for the redress of employee grievances, within section 8(2)(b) of my Act, I can inquire (of my own motion or at the request of the Minister) subject to the following restriction:
  • If the activity in question occurred outside Australia or before 1 February, 1987, I must have the approval of the Minister: section 8(8)(a).

9. Alternatively, if such activities are relevant to ASIS procedures relating to the legality or propriety of its activities within section 8(2)© of my Act, I can inquire (at the request of the Minister). In such a case I would regard myself as having the necessary ministerial approval to inquire where the activity in question occurred outside Australia or before 1 February, 1987. However, during my time as InspectorGeneral, the Minister has made no request of me under section 8(2)© of my Act.

10. I am able to investigate, and reach conclusions about the actions of persons and agencies other than the five agencies for which I have specific responsibilities where that conduct is relevant to an inquiry - but I cannot make recommendations about such persons or agencies. (In developing my views on this issue, I have had the benefit of considering legal advice prepared by the Office of General Counsel.)

  • Section 17(5) of my Act contemplates my expressing criticism of "a person". However, I am required (apart from situations where security, defence or international relations might be prejudiced) to give the person an opportunity to appear before me and make submissions before I express any such criticism.

11. The following are the main Commonwealth statutes, Ministerial guidelines and agreements which I must take into account in my overseeing role:

Statutes

  • The Inspector-General of Intelligence and Security Act 1986
  • The Australian Security Intelligence Organization Act 1979
  • The Telecommunications (Interception) Act 1979
  • The Archives Act 1983
  • The Human Rights and Equal Opportunity Commission Act 1986
  • The Privacy Act 1988

Other

ASIS

  • The Directive to the Director-General of ASIS
  • Rules for the Retention and Communication of Foreign Intelligence Information Concerning Australian Persons

DSD

  • Rules on Foreign Signals Intelligence and Australian Persons

ASIO

Ministerial Guidelines on:

  • Politically Motivated Violence
    Sections 85 and 86 of the ASIO Act (this set of guidelines covers certain staffing matters, especially relating to the determination of salaries and terms and conditions of employment)
  • Intelligence Relevant to Security
     Agreements/Draft Agreements Governing the Exchange of Information between ASIO and the State and Northern Territory Police Services.

12. Since the Office was established in February, 1987, we have consistently had more involvement with ASIO than with ASIS or DSD. There are various reasons for this. My chief concern under my Act is to ensure that the agencies obey Australian laws and act with propriety towards Australian citizens or permanent residents; this means that virtually all of ASIO’s activities are of interest to me, while the bulk of ASIS’s and DSD’s activities are beyond my purview. Furthermore, among all of the intelligence agencies AS10 is the one that attracts most attention from Australian commentators and most complaints from members of the public; by contrast, ASIS and DSD have attracted very little similar attention and complaint. Finally, ASIO is required to abide by various acts of Parliament, many of which (eg the ASIO Act 1979 and the Telecommunications (Interception) Act 1979) are extremely detailed, as well as the Ministerial guidelines and draft agreements mentioned above; ASIS and DSD, on the other hand, do not have a similar broad range of checkpoints. This means that I need to undertake a regular series of detailed cheeks of ASIO activities to ensure that they are abiding by the various Acts, guidelines and draft agreements.

13. Thus, on the basis of the breadth of activity of relevance to the Inspector-General of Intelligence and Security Act; on the basis of public interest and public complaints against the different agencies; and on the basis of the number of spot-checks that need to be undertaken, ASIO has proved consistently to be my Office’s main focus of interest.