Year in Review

2. The work of the Office during 1994-95 continued to be dominated by the Commission of Inquiry into ASIS. The Commission ceased taking evidence in December 1994, when its activities had been expected to conclude. On 20 December 1994, however, the Government extended the Commission until the end of March 1995 to enable it to complete its work.

3. The ASIS Commission of Inquiry reported to the Government on 31 March 1995. The major recommendations affecting the Office were as follows:

  • The Office had devoted too many of its resources to handling complaints, and was criticised for the lengthy delays in completing inquiries.
  • The Commission considered that greater attention needed to be paid to monitoring the activities of the agencies.
  • The IGIS should be given the function of conducting retrospective audits of a sample of ASIS operations.
  • A Parliamentary Committee on ASIS should be created, to which both the IGIS and ASIS would be accountable.
  • Jurisdiction over staff grievances should be transferred from the IGIS to the proposed Security Division of the Administrative Appeals Tribunal.

4. The Government's response to the Commission of Inquiry into ASIS was outlined to the Parliament on 1 June 1995 by Senator the Hon Gareth Evans QC, the Minister for Foreign Affairs. The Government accepted the majority of the Commission's recommendations including those referred to above, with the exception of the proposed change in jurisdiction over staff grievances. The Government preferred to retain the Inspector-General in this role. It proposed, however, to strengthen the capacity of ASIS to deal internally with grievances of staff and former staff, and saw the Inspector-General as the appropriate body to undertake the function of external review of staff grievances, but with strengthened powers and improved procedures.

5. A change in the appointment of Inspector-General occurred during the course of the year. Mr Roger Holdich AM, who had held this post since 28 September 1989, tendered his resignation with effect from 5 April 1995. I took up office as Inspector-General on 6 April 1995. This report therefore covers the work of the Office for most of the year while my predecessor was Inspector-General, together with the last three months under my leadership.

6. The appointment of my predecessor as a Member in the General Division of the Order of Australia was announced in the New Year's Day Honours list.

7. When I took office, there were seventeen substantive complaints outstanding. I saw reduction of this backlog as my immediate priority, and at the time of reporting all of the ASIS inquiries have been completed and only two ASIO complaints remain, one of which is at the Draft Report stage. I expect that these remaining cases will be completed early in the new financial year.

8. Over the year regular contacts were made with the heads and staff of the agencies, and the Office's normal monitoring program continued. I am pleased to report that neither the previous Inspector-General nor I found anything of concern.

9. In each of his annual reports, my predecessor had urged the Government to finalise agreements with all the States and Territories in relation to cooperation between ASIO and the State and Territory Police Services. I am pleased to record that, in the year under review, agreements were signed with Victoria, Western Australia and the Northern Territory. I note, however, that an agreement has not yet been finalised with South Australia, and I recommend that this be pursued as a matter of priority.

10. As noted in his last annual report, in September 1994 the Inspector-General completed a major inquiry into allegations that ASIO had improperly withheld evidence about the 1978 Hilton Hotel bombing and the so-called "Yagoona incident" (the alleged attempted murder of National Front leader Robert Cameron at Yagoona, NSW, in 1978). Following the agreement of the then Acting Attorney-General, an unclassified version of my predecessor's report was prepared with the assistance of ASIO and the Attorney-General's Department. The Attorney-General tabled the unclassified version in Parliament on 28 June 1995.

11. The Office provided comments to the Australian Law Reform Commission on a discussion paper the Commission had circulated suggesting changes to the Freedom of Information (FOI) Act. Included in the paper was a proposal for the withdrawal of the general exemption from the application of the FOI Act given to the Inspector-General and the intelligence and security agencies. This would place agencies in the position of having to rely on the specific exclusion provisions of the Act, on a case by case basis, to justify withholding release of information on national security grounds. I consider that this would impose additional resource costs on the agencies without affecting the principle that there are often overriding arguments against disclosure when national security interests are involved, even though the public interest, in most situations, is best served by general disclosure of the internal workings of government.

12. Agreement to the proposal would also transfer final responsibility to the Administrative Appeals Tribunal to determine whether release of material is appropriate. This fails to recognise that the Inspector-General exists, amongst other reasons, to deal with citizens' complaints in relation to the security and intelligence agencies. I favour retention of the present separate, and self-contained, accountability arrangements for the security and intelligence community.

Commission of Inquiry into ASIS

13. The work of the Office during the year was heavily focussed on the Commission of Inquiry into ASIS, which commenced in May 1994 and finished in March 1995. The Office provided the Inquiry with written statements and submissions, made files available and responded to requests for information. The Inspector-General appeared before the Inquiry on five occasions (in addition to two occasions during the previous reporting year) and the Assistant Inspector-General on one occasion, to give sworn evidence. The Office was represented at the Inquiry by legal counsel, and an instructing solicitor from the Australian Government Solicitor's office. It was necessary to supplement the resources of the Office by establishing a small task force to service and support the Inspector-General during the period the Commission of Inquiry was in session.

14. The terms of reference of the Commission of Inquiry were:

  1. to inquire into the effectiveness and suitability of existing arrangements for:
    1. the control and accountability of ASIS;
    2. the organisation and management of ASIS;
    3. the protection of ASIS intelligence sources;
    4. the resolution of grievances and complaints relating to ASIS; and
  2. to consider whether any changes in existing arrangements are required or desirable.

15. On 1 June 1995 the Government released the Public Edition of the Report of the Commission of Inquiry, and in a Ministerial Statement in the Parliament, announced the decisions it had reached on the Commission's recommendations. The Government accepted most of the Commission's recommendations, the principal ones of which were directed towards enhancing the arrangements for ASIS accountability. In particular, ASIS is to be placed on a statutory basis through the enactment of legislation, affirming its existence and providing for parliamentary acknowledgment of its role and functions.

16. Other decisions announced by the Government which have an impact on the Inspector-General are as follows:

  • creation of a Parliamentary committee to monitor the operation of ASIS legislation and to review the Inspector-General's activities in relation to ASIS;
  • amendment of the IGIS Act to enable the Inspector-General, with the Minister's approval, to examine ASIS's procedures concerning the legality and propriety of its activities;
  • power for the Inspector-General to conduct a preliminary inquiry when contemplating an own motion inquiry;
  • provisions for the Inspector-General to conduct retrospective checks and audits of ASIS's compliance with Australian law and operational procedures;
  • primary emphasis on internal resolution of ASIS staff grievances, relying on improved arrangements covering consultation, counselling, investigation and review by an internal panel with an independent chairperson, the Inspector-General retaining an external review role as a last resort;
  • power for the Inspector-General to determine grievances, not merely to recommend, in cases involving compensation and unfair dismissal;
  • power for the Inspector-General to be able to delegate some of his powers of inquiry; and
  • authority for the Inspector-General to be able to disclose information in the public interest.

17. Some technical amendments to the IGIS Act covering modifications of existing procedures are also proposed. The Government's intention at the time of reporting was to introduce legislative changes in the 1995 Spring Session of Parliament.

18. The Commission of Inquiry also made a number of observations on the work of the Inspector-General, the procedures under which the Office works, and some of the practices which have been followed. The Commission found some deficiencies in the procedural approach taken to past investigations and in the time taken to resolve cases. Some of the procedural problems are related to provisions contained within the IGIS Act, and proposals were put forward to improve these.

19.The Commission recommended the transfer of the function of external review of staff grievances from the Inspector-General to the proposed Security Division of the AAT, which will have determinative powers. The Commission saw this proposal as having the advantage of placing the staff grievance review function on a more detached and adjudicative basis. This would provide for legally binding findings, as well as freeing the Inspector-General to spend more time on monitoring the activities of the agencies.

20. The Government did not accept this proposed change of jurisdiction, but agreed to provide new powers for the Inspector-General to act in a more adjudicative manner in relation to staff grievances and to reach binding decisions rather than recommendations in certain instances. In adopting this course, the Government noted that the Inspector-General already has the flexibility to adopt more adjudicative processes in handling staff grievances where appropriate, and has the experience and knowledge of the agencies. The Government had never envisaged a role for the AAT in the resolution of staff grievances within the intelligence community. It believed such a role would be more appropriately performed by the Inspector-General under modified procedures, and with new determinative powers in relation to compensation and to reinstatement in cases of unfair dismissal.

21. The Commission of Inquiry commented on the sudden increase in complaints and grievances in 1990-91. This had created a backlog in inquiry work which had increased in each year since then. The Commission acknowledged the efforts which my predecessor and his staff had made to reduce the backlog, but concluded that the delays and remaining backlog were still not acceptable. (More comment on the workload affecting the Office is contained in the sections which follow.)

22. In previous annual reports there were references to complaints made about ASIS by four former officers and the wife of one of them. These matters raised questions whether ASIS had followed natural justice principles when investigating allegations against an officer and his spouse; whether ASIS had acted legally and with propriety in its dealings with another officer who was under investigation by the Australian Federal Police; and whether it had dealt legally and properly with yet another officer and his assistant, who had been withdrawn from an overseas post in the mid 1980's. The last annual report also mentioned that towards the end of 1993-94 four more complaints about ASIS had been received.

23. As to the first group of complainants, the Commission of Inquiry noted its reluctance to rehear the details of matters which had already been dealt with by the Inspector-General (and in one case, also by an ASIS internal grievance panel). The Commission of Inquiry concluded, however, that in the light of its terms of reference, it could not assess the adequacy of existing arrangements concerning the resolution of grievances and complaints relating to ASIS without examining the responses of ASIS and the Inspector-General to the events which had resulted in the Commission's intervention. Furthermore, it concluded that natural justice would be served by such an examination and that therein lay the best chance of settling the disputes once and for all.

24. The Commission of Inquiry's findings in relation to these cases have not been publicly released, but have been made available to the complainants. So far as the Inspector-General's role is concerned, the Commission found that, despite procedural flaws in the handling of the cases, his conclusions and recommendations were nevertheless reasonable.

25. I expect that Government decisions flowing from the recommendations made by the Commission of Inquiry regarding the role and functions of the Inspector-General and the changes proposed to the statutory procedural framework and the benefits of improvements which were already in hand within ASIS, will improve the handling of future staff grievances.

26. In paragraphs 77 to 86, I discuss the outcomes of the Inspector-General's inquiries into the second group of complaints which the Commission of Inquiry received, but referred to the Inspector-General for examination.