Australian Security Intelligence Organisation
57. From the monitoring done by my predecessor, and from my own observations, I can report that ASIO has maintained the high standards of past years in the care it has exercised in having proper authority for the intrusive activities it conducts.
58. The minor qualification I would make relates to two instances involving telephone interception and listening device operations undertaken in 1992-93. In the course of a preliminary inquiry held this year (see below), it was discovered that warrant review and revocation documents required to be kept under the provisions of the Telephone (Interception) Act and the ASIO Act could not be located in their original form. While valid warrants existed to authorise the ASIO actions undertaken, the documents which the legislation requires covering provision of reports to the Attorney-General on the result of the interceptions and termination of the original warrant authority had been mislaid, although there were computer records which indicated that the documents had been created. ASIO has taken action to remind its staff of the importance of proper filing of documentation of this kind which is required by legislation to be retained.
Authorities To Investigate
59. During the year, my predecessor and I visited ASIO headquarters and regional offices for the purpose of monitoring Authority to Investigate registers and files. Nothing was found which gave cause for concern.
60. The exchanges of intelligence both ways were monitored between ASIO and each State and Territory Police Service except the AFP. Where applicable, liaison is maintained with the equivalent police oversight authority.
ASIO's Archives Act Responsibilities
61. No monitoring of the Organisation's performance under the Archives Act was carried out during the reporting period. As a consequence, I intend to familiarise myself with this activity at an early opportunity.
Was compensation appropriate for a former staff member who was charged by the Australian Federal Police (AFP) with various espionage and official secrets offences, the more serious of which were subsequently dropped, and did ASIO act with propriety?
62. The former member resigned from ASIO following his arrest and the charges being laid. After committal proceedings, he was committed for trial on all charges. Before the matters went to trial, however, the Director of Public Prosecutions reviewed the evidence and decided not to proceed with the more serious espionage-related charges. The former member pleaded guilty to the lesser offences relating to official secrets under the Crimes Act. A relative and another person lodged complaints relating to actions they alleged ASIO had undertaken in the course of its investigations.
63. My predecessor commenced preliminary inquiries to determine whether he could or should conduct inquiries into those matters. When I assumed office, I reviewed the results of the former Inspector-General's investigations, which were well advanced. I also undertook further discussions and record examinations with ASIO. I concluded that there was no evidence of unlawfulness or impropriety on ASIO's part, and therefore determined that full inquiries into the actions of ASIO were not warranted in relation to any of these complaints, and that there was no justification for compensation.
Did ASIO act improperly in providing a psychological report on an ex-agent to the Family Court?
64. In August 1994, my predecessor made a report to the Attorney-General on an inquiry into a complaint by an ex-agent of ASIO. (This inquiry was mentioned in my predecessor's Annual Report for 1992-93.) The complainant, who was involved in access proceedings in the Family Court of Australia, alleged that ASIO acted unlawfully and improperly in producing to the Court, in answer to a subpoena, a psychological report relating to him.
65. The complainant alleged that the production of the document had an adverse impact on his case and caused him psychological harm.
66. My predecessor's main conclusions and recommendations were as follows:
- ASIO acted lawfully and with propriety in producing the document to the court, having given due consideration to the issue of public interest immunity, and having sought deletions on that ground.
- It would have been appropriate for ASIO to have forewarned the complainant about the production of the document and to have briefed him about its contents.
- The court took the report into account, but regarded it as "vague in the extreme", and did not rely on it in reaching its decision.
- Although ASIO is not bound by the Privacy Act 1988, as a matter of propriety it should, in dealing with its own personnel records, take into account the Information Privacy Principles and Article 17 of the International Covenant on Civil and Political Rights (which refers to arbitrary or unlawful interference with a person's privacy).
- The psychological report was out-of-date and inaccurate, and ASIO should have either destroyed it or ensured it was accurate and up-to-date, in accordance with the Information Privacy Principles.
- ASIO's failure to destroy or amend the document was inappropriate and imprudent but not improper.
- It was not appropriate that the complainant be compensated; however, it was consistent with ASIO's responsibility to the complainant that it contribute to the cost of his psychological counselling.
67. I am advised that ASIO has taken steps to implement my predecessor's recommendations.
Did ASIO act legally and with propriety in offering a voluntary early retirement package to one of its former officers?
68. In his last annual report, my predecessor mentioned a complaint by an ex-ASIO officer relating to the circumstances in which he was offered a voluntary early retirement (VER) package by ASIO in 1993. The inquiry was still in progress when I took office as Inspector-General.
69. Having reviewed the papers dealing with this matter, I decided that it was unnecessary for me to inquire further into this case, as there was nothing in the material before me to suggest that ASIO had done anything improper or illegal. While acknowledging that an administrative error occurred in the course of the complainant being offered voluntary retirement, it was apparent that the complainant was under no obligation to proceed with VER and, when he chose to do so, he was in possession of an accurate assessment of his entitlements.
Is ASIO able to assure the Inspector-General that it has no interest in an individual?
70. In two cases investigated by my predecessor, ASIO initially advised that it could find no record relating to the complainant, only to discover some time later that it did hold relevant material which it had overlooked due either to clerical errors, or (in the case of a former Member of Parliament) because it was impractical for ASIO to index all material concerning individuals which it holds on its files.
71. The Director-General informed the Inspector-General that, as a result of improved office procedures, the risk of such errors occurring in future had been minimised. My predecessor welcomed this response, and suggested that he be shown through ASIO's current registry procedures, including the indexing of names and the way in which checks of ASIO's databases are conducted in response to IGIS inquiries and requests for information. I intend to follow up my predecessor's suggestion.
Did ASIO give the Retirement Benefits Office (now ComSuper) a speculative interpretation of events surrounding an employee's selection of superannuation options on resignation?
72. A former ASIO staff member applied to the then Retirement Benefits Office (now ComSuper) for approval to make a late election to preserve his superannuation benefits on the basis that, at the time of his resignation, ASIO had not given him sufficient information to make an informed choice among his options. In assessing his claim, ComSuper had asked ASIO specific questions about its procedures for advising staff on superannuation matters. The former employee complained to me that ASIO had failed to answer these questions, but instead had provided ComSuper with a speculative interpretation of the events leading to his resignation, based on inadequate records. He believed that ComSuper's subsequent decision to reject his application had been adversely influenced by the ASIO advice.
73. Following a preliminary inquiry into this complaint, I was satisfied that, while ASIO's records of its dealings with the complainant and the Retirement Benefits Office could have been more carefully documented, ASIO's handling of the matter, both at the time of the complainant's retirement and subsequently, did not give rise to any issue of impropriety or illegality. In particular, it seemed to me that ASIO's internal review of the case in 1994 was thorough and fair. Accordingly, it was not necessary for me to inquire further into this complaint and I advised the complainant of my conclusions.