PERFORMANCE
PERFORMANCE INDICATORS
43. The effectiveness of the office may be assessed against a range of quantitative and qualitative performance indicators, including:
• the time taken to deal with complaints and conclude inquiries;
• the acceptance by ministers and agency heads of recommendations of the Inspector General arising from inquiries;
• positive responses from the agencies to issues the office raises arising from inspection activities; and
• the level of assurance I can give that the agencies are conducting their activities legally, with propriety, and with regard to human rights.
TIMELINESS
Statistics
44. At the start of the reporting period four inquiries or preliminary inquiries remained open. These comprised separate ministerial referrals regarding the activities of DSD and DIO, and two complaints about ASIO.
45. Three of these were concluded during the reporting period. The other, while ongoing at the end of the reporting period, should be completed in the first half of 2002 2003.
46. In addition, 80 people contacted the office with new or continuing complaints or queries (compared with 64 for the previous reporting period).
47. These comprised:
• 26 new complaints leading to preliminary or full inquiries (12 in 2000 2001);
• 27 new complaints nominating an agency that were dealt with without need for inquiry action (25 in 2000 2001);
• 7 approaches seeking review of previous complaints (10 in 2000 2001); and
• 20 approaches of a generic or non specific nature that were also dealt with without need for inquiry action (17 in 2001 2002).
Analysis
48. We try, and in almost all cases succeed, to deal within a few days with approaches not requiring a preliminary or formal inquiry. All were closed by the end of the reporting period.
49. Of the 26 new complaints leading to preliminary or formal inquiries, 5 remained open at the end of the reporting period.
50. We do not have specific target times for completing preliminary or formal inquiries because we have less control over the process.
51. In the five years between 1 July 1997 and 30 June 2002, the average time taken on each such inquiry was 95.68 days, while the average times taken in 2000 2001 and 2001 2002 were 166 days and 72.9 days respectively.
52. This does not necessarily, however, say anything about effort on the part of this office compared to previous years. Resolution of inquiries is also influenced by factors such as:
• the complexity and range of issues raised;
• the immediacy of the matters to be inquired into;
• the accessibility of necessary information;
• locating persons with knowledge of the matters being inquired into; and
• the need to observe the formal processes set out in the IGIS Act.
53. The office’s capacity to further reduce the time it takes to conclude its investigations will continue to depend on the complexity of the cases that come to our attention and the responsiveness of others, as well as our own efficiency.
ACCEPTANCE OF RECOMMENDATIONS
54. It is very rare for an agency to reject recommendations of the Inspector General. All were accepted in this reporting year, during which the reports of two inquiries contained formal recommendations. The inquiries were:
• the Tampa inquiry (see Annex 2); and
• a case involving ASIO, described in more detail in the chapter on ASIO. The report made several recommendations, including that ASIO refer the conduct of several former officers to the Australian Federal Police for investigation.
RESPONSIVENESS TO ISSUES RAISED IN INSPECTIONS
55. During and following inspection visits to each of the collection agencies, we made a number of suggestions on how procedures could be streamlined or improved. We have not sought to quantify these, but in most cases the agency concerned accepted and acted upon such suggestions. When they did not, I accepted that there were good reasons for not doing so.
56. This year ASIS and DSD have had to make major revisions to their procedures in light of the requirements of the Intelligence Services Act and the privacy rules made under the Act. They have consulted extensively with the office on these and have incorporated our suggestions with alacrity. All four collection agencies seek, and take into account, my views on draft policies and procedures where issues of propriety and/or legality arise, or are likely to arise.
57. The willingness of the agencies to seek and accept input from my office demonstrates a genuine commitment on their part to conduct their activities legally and with propriety.
LEVEL OF ASSURANCE
Increase in new complaints
58. In previous years there have been far fewer complaints leading to preliminary or full inquiries than those handled without need for inquiry action. In this reporting year, however, almost half the complaints warranted at least a preliminary inquiry.
59. It is legitimate to ask whether this might reflect any reduction in the standards that the agencies normally apply to their work.
60. It appears more likely, however, that external factors may have been influential.
61. First, the 11 September terrorist attacks required greatly increased investigative effort by ASIO in relation to international terrorism, with consequent impacts on the community and greater media focus on ASIO.
62. Secondly, as mentioned at paragraph 23, the media publicity generated by the Tampa inquiry probably led to heightened awareness of the existence and role of the office.
63. Other developments tending to raise public consciousness of intelligence and security matters were the various pieces of legislation debated in the Parliament during the year, including the Intelligence Services Bill and the counter terrorism proposals.
64. Finally, in a small number of cases we have needed to treat what might seem a single issue as more than one complaint for statistical purposes.
65. For example, a complainant expressed concern that neither ASIS nor DSD had made public the privacy rules made under the Intelligence Services Act.
66. We construed this as complaints about each of ASIS and DSD and commenced preliminary inquiries, which led to the Minister for Foreign Affairs and the Minister for Defence separately deciding to make the ASIS privacy rules and the DSD privacy rules publicly available.
67. There were also several complaints about allegations that DSD had acted improperly or illegally at the time of the Tampa incident. Although these complaints had some similarities, there were differences in the complainants’ circumstances that led to their being counted as separate complaints.
68. It seems reasonable to conclude, therefore, that the upsurge in new complaints does not reflect any lowering of standards by the agencies.
DSD and the Tampa incident.
69. It is also appropriate to consider whether the circumstances revealed by the Tampa inquiry should reduce public confidence in the propriety with which DSD conducts itself.
70. As the summary at Annex 2 describes, DSD did make mistakes by reporting intelligence that should not have been reported. They were not trivial mistakes and inquiry into them revealed some deficiencies in DSD systems that were not previously apparent. On the other hand, the circumstances of the Tampa incident were unlike any other in the experience of the DSD reporters and the rules then in operation (since superseded by the privacy rules made under the Intelligence Services Act) did not clearly exclude reporting of this kind.
71. Perhaps more importantly from the point of view of public reassurance, DSD:
• immediately ceased that line of reporting once it became aware of the Inspector General’s concern;
• has restricted certain collection activities in view of legal reservations;
• seeks legal advice about its obligations whenever any doubt arises, and has taken steps to recruit an in house legal adviser;
• has revised and improved its recording and approval processes for reporting intelligence on Australians;
• has gone to great lengths to further develop and refine systems, including both automated systems and human checks, designed to prevent reports being issued that might breach the privacy rules;
• has instituted intensive training courses, to instil in all relevant staff thorough understanding of the applicable legislation and rules; and
• has consistently involved the Inspector General in developing the training courses and improved accountability mechanisms.
72. One can, therefore, conclude that DSD is strongly committed to acting legally and with propriety and has demonstrated this by drawing on the experience of the Tampa episode to improve its performance.
ASIS, the Intelligence Services Act and privacy rules.
73. ASIS, too, has undergone a period of adjustment since the coming into operation of the Intelligence Services Act and the privacy rules.
74. Like DSD it has demonstrated its commitment to legality and propriety by revisions to reporting and recording processes and the institution of special training, involving the Inspector General. On legal issues it frequently seeks advice from the Australian Government Solicitor and consults with DSD on legal issues affecting both agencies.
ASIO and DIGO
75. The Intelligence Services Act does not regulate ASIO’s or DIGO’s functions, so the need for major changes to their accountability regimes did not arise.
76. Nevertheless they, too, are committed to behaving with propriety and compliance with the law.
77. This is demonstrated by the punctilious application of the various rules and guidelines applying to them, by their preparedness to inform and consult the Inspector General when issues arise that might be of concern, and their willingness to adopt suggestions and recommendations of this office.
SUMMARY
78. During the reporting period there were some instances where the agencies acted beyond their authority. These instances are described in those chapters of this report that deal with each agency individually.
79. I have, however, seen no evidence to suggest that the intelligence and security agencies have deliberately acted, or wish to act, beyond their authority.
80. I am also satisfied that there is no evidence of enduring systemic deficiencies that would lead to breaches of propriety, the law, or the human rights of Australians.