THE YEAR IN REVIEW
new inspector-general
7. Mr Bill Blick PSM, formally concluded his second and final term as IGIS on 18 February 2004.
8. Mr Blick served as Acting Inspector-General for several weeks beyond this date whilst administrative actions associated with the permanent filling of this position were completed.
9. I was formally appointed as IGIS for a period of three years, with effect from 23 March 2004.
10. While much of the work of the office referred to in this report was undertaken while Mr Blick was in office, responsibility for the contents of this report rests with me.
mr bill blick psm
11. Mr Blick was the IGIS from February 1998 to February 2004, following a long and distinguished career in the Australian Public Service.
12. During the two terms Mr Blick served as the IGIS the remit and workload of the office expanded considerably.
13. Mr Blick conducted a number of inquiries during his time as Inspector-General that have helped positively shape the way in which the Australian Intelligence Community (AIC) goes about its business and the environment in which it currently operates.
14. In marking Mr Blick's retirement the Prime Minister noted that Mr Blick had served with distinction, providing balanced and professional oversight of a range of sensitive and complex matters.
15. I would like to take the opportunity afforded by this report to thank Mr Blick for his major contribution and to wish him well in his retirement. The staff of the office will certainly miss his dry wit and easy manner.
overview
16. The 2003-04 reporting period was one of very considerable activity within the AIC.
17. The AIC has been allocated and spent considerable resources coming to terms with, and where possible, countering the global terrorist threat which has emerged in recent years.
18. While the emergence of a credible terrorist threat to Australian persons and Australian national interests has led to a reordering of intelligence priorities, considerable efforts continue to be expended on providing intelligence support to the Government on a wide range of other issues.
19. During the reporting period intelligence support for Australian Defence Force (ADF) deployments in widely disparate theatres of operation around the world placed a heavy demand on the intelligence community.
20. Other significant demands have included a continuing strong focus on border security, illegal immigration, and counter-proliferation activities.
21. Notwithstanding the demands placed on the intelligence agencies, no slackening was observed in the agencies' adherence to legality, propriety and respect for human rights.
inquiries into the aic
PJCAAD on Iraqi WMD
22. Two major external reviews of the Australian Intelligence Community occurred during the 2003-04 reporting period.
23. The first of these reviews was established by the Senate, which passed a motion on 18 June 2003, formally requesting that the Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD) undertake an inquiry into the nature, accuracy and independence of the intelligence used by the Australian government on Iraqi Weapons of Mass Destruction (WMD), and the accuracy and completeness of the presentation of that intelligence by the Australian government to the Parliament and the Australian people.
24. The PJCAAD's report was tabled on 1 March 2004, and is available on the Internet at, http://www.aph.gov.au/house/committee/pjcaad/WMD/report.htm.
25. The PJCAAD made three recommendations, one of which was that an independent assessment of the performance of the intelligence agencies should be undertaken by an experienced former intelligence expert, with full access to all materials, in light of the matters raised by the consideration of the pre-war intelligence on Iraq. The other recommendations concerned the capacity of ONA and the maintenance of independence and objectivity by the AIC.
Flood Inquiry
26. The government accepted the recommendations contained in the PJCAAD Report, and on 4 March 2004 the Prime Minister formally asked Mr Philip Flood AO, to conduct the recommended review.
27. Without seeking to limit his inquiry, the Prime Minister asked Mr Flood to provide advice on:
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the effectiveness of the intelligence community's current oversight and accountability mechanisms as they relate to such matters as the setting of priorities, the assigning to the priorities of appropriate resources, and the delivery of high quality and independent intelligence advice to the government
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the suitability of the current division of labour among the intelligence agencies and communication between them
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the maintenance of contestability in the provision to government of intelligence assessments, and
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the adequacy of current resourcing of intelligence agencies and in particular ONA.
28. During his inquiry, Mr Flood naturally examined the various oversight and accountability mechanisms which operate in respect of the Australian intelligence community, including the role and functions of this office.
29. I met with Mr Flood on several occasions to provide him with the perspectives of this office on some of the issues into which he was inquiring. I made two written submissions to Mr Flood responding to specific queries he had posed. There was also collaboration as required between the small Secretariat which supported Mr Flood's inquiry and my office.
30. Mr Flood received submissions and took evidence from all elements of the AIC, as well as from other interested parties, including two former Inspectors-General.
31. Mr Flood provided his report to the government approximately four and a half months after he was tasked, and a public version of the report was published on 22 July 2004. It is available on the Internet at: http://www.dpmc.gov.au/publications/intelligence_inquiry/index.htm.
32. Mr Flood made 23 recommendations, all of which were accepted by the government except a proposal for ONA to be renamed as the Australian Foreign Intelligence Assessments Agency.
33. Mr Flood made several recommendations which bear directly on the role and functions of the IGIS. These are dealt with briefly below under the subheading of 'Legislation' and in the chapter elsewhere in this report entitled 'The Year 2004-2005 in Prospect'.
ASIO Act
34. The Parliament passed the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 on 26 June 2003. The practical effect of this Act was to insert a new Division into Part III of the Australian Security Intelligence Organisation Act 1979, permitting the Director-General of Security, with the Attorney-General's consent, to seek a warrant authorising the questioning or detention of a person where doing so would substantially assist the collection of intelligence in relation to a terrorism offence.
35. Several sections of the amending Act required the development of a written statement of procedures (namely a 'protocol') to be followed in the exercise of authority to detain persons and conduct questioning under warrants issued under section 34D of the ASIO Act.
36. These provisions also provided that no warrant could be issued until the protocol was tabled in Parliament.
37. Mr Blick was consulted in the development of this protocol and provided a written statement on 28 July 2003 that he had no concerns with its contents.
38. The then Attorney-General, the Hon Daryl Williams AM QC MP, tabled the protocol on 12 August 2003.
39. In the interests of giving the protocol the widest possible exposure, I have reproduced it at Annex 2 of this report.
40. The execution of the first questioning warrants granted under section 34D of the ASIO Act occurred in the later part of 2003. Practical experience derived from seeking, then executing these warrants, led the government to propose further amendments to the ASIO Act.
41. The new Attorney-General, the Hon. Philip Ruddock MP, introduced the ASIO Legislation Amendment Bill 2003 in late November 2003, which was then passed by the Parliament on 5 December 2003. The changes brought about by this Act included:
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extending the maximum time available for questioning the subject of a warrant from 24 to 48 hours in cases where an interpreter is used
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the creation of offences if the subject of a warrant were to fail to surrender any passports issued to the subject, or leaves or attempts to leave the country after being notified of the issuing of a warrant
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preventing a person from making disclosures of information without authorisation where the information relates to the warrant, the questioning or detention of a person under the warrant, or operational information while the warrant is in force, and
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clarifying the role of the Prescribed Authority to give directions consistent with questioning warrants, including in relation to detention.
42. Comments on how these new questioning and detention powers have actually been applied are recorded in the ASIO chapter of this report.
Intelligence Services Act
43. The Intelligence Services Act 2001 (ISA) came into effect on 29 October 2001, meaning that as at 30 June 2004, it had been operating for approaching three years.
44. On 15 October 2003, the Minister for Foreign Affairs, the Hon Alexander Downer MP, introduced into Parliament the Intelligence Services Amendment Bill 2003.
45. The primary objective of the Bill was to provide a legislative framework that would allow ASIS to undertake its functions more effectively and more safely. This was to be achieved by improving the ability of ASIS to work with other agencies and, in limited circumstances overseas, allowing ASIS people to be protected, including through the use of weapons, and to use weapons for their own protection.
46. The Bill envisaged that the Inspector-General would play a role in the development of appropriate guidelines on the provision of, training, handling and use of weapons, and in monitoring any actual use.
47. The Bill was referred to the PJCAAD on 15 October 2003, which upon consideration of the Minister for Foreign Affairs' request decided to conduct a private inquiry into the provisions of the Bill.
48. Mr Blick appeared in private session before the Committee on 27 October 2003. The Director-General of ASIS and a number of other interested parties were similarly questioned.
49. The PJCAAD tabled the report of its review of the Bill on 11 March 2004. The Committee made nine recommendations.
50. In dealing with the question of reporting and accountability, the PJCAAD reflected on the potential role of the Inspector-General and commented as follows:
"… the Committee feels that there is a need for a reporting and accountability regime, to ensure that there is sufficient visibility of how ASIS' new capabilities are being put into practice. The Inspector-General of Intelligence and Security (IGIS), Mr Bill Blick, indicated to the Committee that he anticipated being able to 'incorporate inspection of this kind of matter into our normal inspection routine', to ensure that ASIS was complying with the conditions under which approval had been given.
The Committee proposes that the results of the IGIS' inspections should be included in the IGIS' annual reports to Parliament, and could include - at the unclassified level - basic data on how frequently the new capabilities are being exercised."[1]
51. The government accepted the recommendations of the PJCAAD, with some minor qualifications. The Bill was returned to Parliament and was passed on 1 April 2004.
52. In the period between the passage of the Bill and the end of the reporting period my office was consulted on the development of the guidelines and protocols envisaged in the amended ISA. This work was ongoing at the end of the reporting period.
53. During the reporting period ASIS and DSD continued to develop and refine their internal procedures in order to improve compliance with the requirements of the ISA and to safeguard the privacy of Australian persons from unnecessary or inappropriate intrusion.
54. Mr Blick and I each devoted significant resources to the ongoing development of guidelines and other compliance‑related processes, and by participating in training activities conducted within the agencies.
55. As mentioned in last year's annual report, the ISA provides, at section 14, that a staff member of a relevant 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.
56. 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.
57. 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.
58. Protocols with most of the police services have been finalised. I am hopeful that this will be completed in the near future with the remaining police services.
59. My predecessor mentioned in his last annual report that experience with the Act and the privacy rules had revealed some issues that should be addressed by legislative amendment in due course.
60. Mr Blick formally pursued this matter with the Secretary of the Department of the Prime Minister and Cabinet (DPM&C) before his retirement. The Secretary of DPM&C, Dr Peter Shergold, wrote to me shortly after I took up my appointment agreeing that such a review would be valuable.
61. I am grateful that Dr Shergold has accepted the suggestion of my predecessor, and my office stands ready to support this review whenever it occurs.
Inspector-General of Intelligence and Security Act
62. There were no amendments to the IGIS Act during the reporting period.
63. Mr Flood made several recommendations in his report which if accepted by the Parliament, will require changes to the IGIS Act.
64. Although Mr Flood submitted his report to the Prime Minister after the conclusion of the 2003-04 reporting period, it is appropriate to flag in this report those recommendations which are relevant to the IGIS Act:
"Recommendation 2 - … the Inspector-General of Intelligence and Security Act 1986 should be amended to include scrutiny of DIGO on a basis comparable with that which applies to DSD and ASIS.
Recommendation 3 - The mandate of the Inspector-General of Intelligence and Security should be extended to allow IGIS to initiate inquiries at his or her own discretion into matters relating to ONA and DIO without ministerial referral, consistent with the IGIS jurisdiction in respect of ASIO, ASIS and DSD. The Inspector-General should also conduct a periodic review of ONA's statutory independence."[2]
65. I hope to take the opportunity afforded by these proposed amendments to the IGIS Act, to also progress a small number of minor technical amendments, some of which have previously been suggested by my predecessor.
Inspections, complaints and inquiries
Inspections
66. As in previous years, inspection of the activities of ASIO, ASIS, DSD and DIGO has occupied the bulk of the effort of the office.
67. 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.
68. In the case of ASIS and DSD we also access their classified reporting and some other records electronically from computer terminals in our office.
69. Details of inspection activities are in the chapters of this report that deal with the individual agencies.
Complaints
70. The number of new complaints, when taken as a global figure, stabilised during 2003-04. There were 23 new complaints leading to preliminary or full inquiries (29 in 2002‑03) and 35 new complaints nominating a specific agency that were dealt with without the need for inquiry action (32 in 2002‑03).
71. The office received a number of complaints during the 2002-03 reporting period concerning the execution of entry and search warrants by ASIO. These complaints required detailed inquiry and investigation and as a consequence, most were carried over into the 2003-04 reporting period.
72. All of these complaints were finalised by my predecessor before his retirement in March 2004.
73. While Mr Blick found that the actions of ASIO were reasonable and appropriate in most of the cases he examined, he did identify some procedural issues which he believed required further attention. In two cases issues of compensation arose. More on these matters are contained in the ASIO chapter.
74. Since taking up the position of Inspector-General I have been pursuing the procedural matters with relevant parties, both within and external to ASIO. This work was ongoing at the completion of the reporting period.
Recruitment and employment related concerns
75. The number of staff employed by the Australian intelligence community has risen substantially in the last few years, in lockstep with changed perceptions of the global security situation.
76. As a consequence of the above, the AIC agencies have been undertaking large-scale recruitment campaigns. It is not surprising therefore that my office has noted some increase in complaints about recruitment and selection processes.
77. Section 8(5) of the IGIS Act limits the capacity of the IGIS to inquire into complaints made by an employee of an agency over which this office has jurisdiction, to the extent that those matters are directly related to the promotion, termination of appointment, discipline or remuneration of the complainant or to other matters relating to the complainant's employment.
78. This limitation does not apply to members of the public applying for employment in the first instance; members of one AIC agency applying for employment in another AIC agency; or where a complainant is referring to systemic problems rather than a specific employment related concern.
79. The majority of the recruitment/selection related complaints received by this office during 2003-04 were from members of the public. These complaints covered a variety of issues including the nature of security background checking, the use and interpretation of standardised psychometric instruments and other aspects of Organisational Suitability Assessment (OSA) procedures.
80. These complaints were spread fairly evenly across the agencies with the notable and pleasing exception of ASIO which did not generate any complaints of this type.
81. Mr Blick and I both encouraged those agencies with whom we have dealt on specific complaints to provide more detailed feedback to unsuccessful candidates for specific positions, where doing so would not compromise security.
Defence Force complainant
82. A serving member of the ADF, Lieutenant Colonel Lance Collins wrote to the Prime Minister in March 2004, with a series of grievances which were subsequently made public. In his letter Lt Col Collins was critical of an inquiry conducted by Mr Blick, which was finalised in May 2003.
83. In April 2004, the Prime Minister released an unclassified version of Mr Blick's report. The primary conclusion drawn by Mr Blick was that while Lt Col Collins' concerns were genuinely and sincerely held, they did not stand up to objective scrutiny.
84. Further discussion of this matter is provided elsewhere in this report, in the chapter on DIO.
Asylum seeker compensation
86. The complainant's lawyer submitted a detailed claim to ASIO in June 2003. I am happy to report that the matter has been finalised and compensation has been paid.
[1] Parliamentary Joint Committee on ASIO, ASIS and DSD 2004, Review of the Intelligence Services Amendment Bill 2003, PJCAAD, Canberra, 2004, p. 7.
[2] Australian Government, Inquiry into Australian Intelligence Agencies, Report of the Inquiry into Australian Intelligence Agencies, (Philip Flood AO), Canberra, 2004, p. 180.