THE YEAR IN REVIEW

OVERVIEW

7. During 2002-03 Australia’s intelligence and security agencies continued to increase their efforts against global terrorism and other intelligence related targets.

8. This heightened effort demanded, particularly in the wake of the terrorist attack in Bali in October 2002, continued attention to the possible involvement of Australian persons in terrorist activity, either from within Australia or overseas.

9. In the course of my inspection and inquiry work, however, I observed no diminution in the agencies’ adherence to appropriate standards of legality, propriety and respect for human rights.

LEGISLATION

ASIO Act

10. The Parliament passed amendments to the ASIO Act to empower ASIO to obtain warrants for the detention and questioning of people reasonably believed to be able to provide important information relating to terrorism.

11. The amendments include several relating to the role of the Inspector-General:

the Director-General of Security must make a statement of procedures to be followed in the exercise of warrants and before doing so must consult the Inspector-General;
the legislation does not affect the exercise of any powers or functions of the Inspector-General under the IGIS Act;
a detainee must be able to contact the Inspector-General, a warrant must specify the Inspector-General as someone whom the detainee is permitted to contact and the prescribed authority (the person who oversees the questioning) must inform the detainee of his or her right to complain to the Inspector-General, either orally or in writing, about ASIO;
a detainee must be provided with facilities to complain to the Inspector-General;
the Inspector-General may be present when a person is taken into custody or questioned;
if the Inspector-General is concerned about impropriety or illegality in connection with the exercise of powers in relation to a person specified in a warrant, the Inspector-General may inform the prescribed authority, who must consider the Inspector-General’s concern and may give directions, such as requiring suspension of questioning, until the Inspector-General’s concern has been satisfactorily addressed. If the concern cannot be satisfactorily addressed within the remaining period of detention, the prescribed authority may direct the release of the detainee;
the Inspector-General must inspect material relating to multiple warrants and must report the results in the IGIS annual report; and
the Director-General must as soon as practicable give the Inspector-General:
- a copy of any draft request to the Attorney-General seeking consent to request a warrant;
- a copy of the warrant;
- a copy of video recordings of questioning, etc required under the legislation; and
- statements detailing any seizure, taking into custody or detention and any action taken in response to concerns expressed by the Inspector-General.

12. The Director-General has informed me that, in addition to the statutory procedures, ASIO will put in place measures to ensure that the Inspector-General has adequate advance notice of any proposals to exercise the powers provided under the legislation.

Intelligence Services Act

13. The first full year of operation of the Intelligence Services Act saw ASIS and DSD further develop the internal checks and balances designed to improve compliance with the requirements of the Act designed to safeguard the privacy of Australian persons.

14. We continued working with both agencies, both by assisting with development of guidelines and other compliance related processes, and by participating in training activities conducted within the agencies.

15. The Act provides (at section 14) that a staff member of an agency is not subject to civil or criminal liability for certain acts that might otherwise attract liability, provided the act is done in the proper performance of a function of the agency.

16. A further provision empowers the Inspector-General to certify in writing facts relevant to whether an act was done in the proper performance of the agency’s functions. Such certificates are prima facie evidence for the purposes of proceedings.

17. It was necessary, following passage of the Act, to develop protocols to ensure that, in the event of any claim for immunity under the legislation, there would be an appropriate mechanism, involving consultation with the Inspector-General, to enable law enforcement agencies to consider the legitimacy of the claim.

18. Considerable progress was made with the protocols during the reporting period and it should be possible to finalise them in the first half of 2003-04.

19. As mentioned in last year’s report, experience with the Act and the privacy rules has revealed some deficiencies and unintended consequences that should be rectified by legislative amendment in due course. As the second anniversary of the Act’s passage approaches it would be timely to review its operation to develop a package of such amendments.

Inspector-General of Intelligence and Security Act

20. There were no amendments to the IGIS Act during the reporting period. I have, however, suggested some minor amendments for inclusion in a bill when convenient.

INSPECTIONS, COMPLAINTS AND INQUIRIES

Inspections

21. As in previous years, inspection of the activities of the collection agencies (ASIO, ASIS, DSD and DIGO) has occupied the bulk of the effort of the office.

22. We visit each of these agencies regularly to inspect operational records, to check that their activities are conducted with propriety and comply with the law.

23. In the case of ASIS and DSD we also access their classified reporting and some other records electronically from computer terminals in our office.

24. Details of inspection activities are in the chapters of this report that deal with the individual agencies.

Complaints

25. The number of new complaints continued the upward trend noted in recent years. There were 29 new complaints leading to preliminary or full inquiries (26 in 2001-02) and 32 new complaints nominating a specific agency that were dealt with without the need for inquiry action (27 in 2001-02).

Bali inquiry

26. I provided the Prime Minister with a report on whether there was any intelligence that warned of the terrorist bombing in Bali. A copy of the introduction and summary of the report is at Annex 2 to this annual report.

DSD inquiry alleged bugging of politician

27. Following media allegations I conducted an inquiry into whether DSD intercepted the communications of The Hon Laurie Brereton MP. The inquiry report is reproduced at Annex 3 to this annual report.

ASIO searches

28. There were a number of complaints on behalf of people whose premises were searched under warrants issued by the Attorney-General. Details of the inquiries relating to these are in the chapter on ASIO.

Defence Force complainant

29. An inquiry into the concerns of a serving member of the Defence Force about matters related to DIO, referred by a former Minister for Defence, was completed during the year and I provided a report to the minister.

Asylum seeker compensation

30. The 1999-2000 report provided details of an inquiry into a complaint from an asylum seeker where I expected to recommend compensation. The complainant’s lawyer finally submitted a detailed claim in June 2003 and as a result I expected to complete the matter early in the new reporting year.

EXTERNAL PROFILE

Commonwealth Parliament

31. I attended hearings of, and gave evidence to the Senate Finance and Public Administration Legislation Committee examining the budget estimates and the Parliamentary Joint Committee on ASIO, ASIS and DSD.

Media

32. There was media interest in several matters involving the Inspector-General, such as the Bali inquiry, the inquiry into alleged bugging of Mr Brereton’s office and the execution of ASIO search warrants.

33. Our practice in such cases is not to confirm or deny the existence of a complaint, or to discuss the particulars of inquiries beyond process issues such as expected time frames for completion and the formal requirements of the IGIS Act.

Internet presence

34. The IGIS website (http://www.igis.gov.au) provides information about the office, including copies of previous annual reports and occasional statements about current activities.

35. We receive numerous inquiries about the work of the office via the electronic mail facility (info@igis.gov.au).

36. There is also a continuing upward trend in its use by complainants, both for initial contact and correspondence about the progress of complaints. We will correspond with complainants via e-mail, but will not include classified information in e-mails.

International

37. There was no meeting of international intelligence and security oversight bodies this year as the next is scheduled for 2004.

38. The United Kingdom’s Intelligence Services Committee however, visited Australia in October 2002. In the course of the visit we consulted about our respective inquiries into the Bali bombing.

39. I also corresponded with some overseas counterparts about possible cooperation in relation to matters affecting each others’ citizens.

40. Other countries have oversight bodies with different powers and responsibilities from the Australian Inspector-General. With the permission of the United Kingdom committee, Annex 4 to this report is an adaptation of a chart prepared for the committee, which provides a comparative analysis of the functions, powers and freedoms of oversight mechanisms in the United States, Canada, Australia, New Zealand, South Africa and the United Kingdom.

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