IGIS Annual Report 1989-90

ANNUAL REPORT 1989-90


Role and Responsibilities of the Inspector-General

The role of the Inspector-General of Intelligence and Security is mainly set out in the Inspector-General of Intelligence and Security Act 1986. Briefly, 1 am to help Ministers oversee and review the activities of Australia's intelligence and security agencies to ensure that the agencies act legally and with propriety, comply with Ministerial guidelines and directives and respect human rights.

My office had its genesis in the Royal Commission on Australia's Security and Intelligence Agencies conducted in 1983/84 by Mr Justice Hope. Hope saw the Inspector-General as being an independent watchdog of the agencies' activities, able to bring them to book if they were not acting legally or with propriety and to provide reassurances to the public when public fears about them were misplaced.

"The Inspector-General's role would be that of an independent watchdog assisting the Minister and looking after the public interest in the proper functioning of the intelligence services". (Royal Commission on Australia's Security and Intelligence Agencies, General Report, Commonwealth Government Printer, Canberra, December, 1984, paragraph 3.23)

In accepting Hope's recommendations the Government applied them to all five intelligence and security agencies, i.e., ASIO (the Australian Security Intelligence Organization), ASIS (the Australian Secret Intelligence Service), DSD (the Defence Signals Directorate of the Department of Defence), ONA (the Office of National Assessments) and JIO (the Joint Intelligence Organization of the Department of Defence). The Inspector -General of Intelligence and Security Act sets out my responsibilities in respect of each of these bodies. They vary from agency to agency, broadly in accordance with the degree to which the agency concerned has the potential to intrude into the lives of Australian citizens. Thus I have:

 i) limited responsibilities and powers regarding ONA and JIO. 1 can conduct inquiries only at the request of the responsible Minister, that is, the Prime Minister in the case of ONA and the Minister for Defence in respect of JIO.

ii) substantial responsibilities and powers regarding DSD and ASIS. I can conduct inquiries in response to a complaint, at the request of the responsible Minister, that is, the Defence Minister in respect of DSD and the Minister for Foreign Affairs and Trade in the case of ASIS, or of my own motion.

iii) greatest responsibilities and powers in respect of ASIO, where I have the same responsibilities as I have for DSD and ASIS but also have the power to review certain directions given to ASIO by the Attorney-General and to protect the rights of a person who has no recourse to the Security Appeals Tribunal and against whose interests ASIO has furnished an adverse report.

The Australian Security Intelligence Organization Act 1979 also confers a responsibility on me to assist the Attorney-General, at his request, to determine whether the Security Appeals Tribunal should report on the actions of ASIO in relation to a security assessment, and also to review that assessment, where the assessment was provided by ASIO before the Tribunal was established or where ASIO has not provided a copy of it to the person concerned.

For each agency I can inquire into the legality and propriety of its activities and the effectiveness and appropriateness of its procedures that are designed to ensure that it acts legally and with propriety. I can also investigate each agency's procedures relating to redress of employees' grievances. In addition I can inquire into an act or practice referred to me by the Human Rights and Equal Opportunity Commission that may be inconsistent with or contrary to any human right. In the case of grievance procedures and human rights 1 can conduct an inquiry on my own decision or the relevant minister can ask me to do so.

Once I begin an inquiry, I have a range of powers I can call on. For instance I can make preliminary investigations of the head of an agency, obtain access to premises occupied by an agency and require a person to attend before me and answer questions under oath or produce documents. At the completion of an inquiry I report my conclusions and recommendations to the responsible Minister and, in certain circumstances, to the Prime Minister as well.

In relation to members of ASIO and ASIS, who do not have access to the grievance mechanisms available to staff of the other agencies (who are employed under the Public Service Act), I can inquire into complaints concerning employment-related matters, including promotion, termination of appointment, discipline or remuneration. However, in such cases, 1 can initiate an inquiry only if the complainant has tried to resolve the problem by using the agency's internal grievance procedures and, in the case of ASIO, if there is no provision for other outside review. Consistent with my role concerning staff grievances, I fulfil an ombudsman/staff counselling role to members of the intelligence agencies. This source of independent advice decreases the prospect that work-related problems could be taken to an unauthorised source, with a consequent risk to national security.


Are the Agencies acting Legally? Do they comply with Ministerial Guidelines and Directives?

As my main responsibility is to help Ministers ensure that the agencies act legally and with propriety, it is reasonable to expect me in my annual report to address this question. However, after a year as Inspector-General, I have concluded that it is simply not feasible to give an unequivocal assurance that the agencies are indeed acting totally legally and properly and that they do completely comply with Ministerial guidelines and directives. The reason I cannot give such an assurance is that I cannot be sure that I have seen everything of relevance in every agency. Indeed, I doubt that I or any other person in my Office could ever give such an unequivocal assurance. But I believe, on the basis of my examinations and discussions, that the agencies are acting legally and with propriety. 1 have noted mistakes that have been made and inefficiencies in administration, but have not uncovered one act of an agency that could be construed as illegal or improper nor one instance of an agency knowingly failing to comply with a Ministerial guideline or directive.

I have tried to fulfil my main responsibility in a variety of ways:

 I have devoted proportionately more time to examining ASIO than any other agency. I have done this because ASIO has the greatest potential to intrude into people's lives and is of greatest public interest and concern.

In accordance with the provisions of the Inspector -General of Intelligence and Security Act, I monitor compliance by the agencies with the following legislation and guidelines: 

ASIO:

 
ASIS:


DSD:



ASIO

During the year I visited every ASIO regional office at least once and spoke to all staff about the role and responsibilities of my office. I also spent some time individually with each staff member. I visited all branches of the ASIO central office on a number of occasions. I have had regular contact with executive members of the ASIO Staff Association, both in Canberra and in the regions. I addressed one large training course and propose to speak to future training courses. My visits were encouraged by the Director-General of Security, Mr John Moten, and his senior colleagues and seemed to be welcomed by staff.

This regular program of visits, which I intend to continue, has given me the opportunity to examine in detail the work that ASIO does, to obtain full briefings on matters that seemed of particular interest or sensitivity, and to develop a relationship with the staff of the Organization that is of particular value to me in carrying out my ombudsman/staff counseling role.


ASIO's Warrant Operations

In accordance with my responsibility to ensure that the agencies act legally and comply with Ministerial guidelines, I have conducted regular spot-checks of ASIO's records concerning its more sensitive operations, especially those involving warrants issued by the Attorney-General to permit the Organization to intercept telephone conversations and telex messages, to open mail, to enter and search premises and to use listening devices. Such activities are conducted under the Telecommunications (Interception) Act and the Australian Security Intelligence Organization Act.

During the year under review I saw ASIO's files covering 28 different operations, 6 involving warrants to intercept telephone conversations, 5 to intercept mail, 3 to intercept telex messages, 9 to place eavesdropping devices and 5 to enter and search a premises.

I found that in every case ASIO behaved legally and with propriety. The case for each operation was carefully developed and documented; the Attorney-General's approval was given in each case; and the Attorney-General's guidelines were observed in each case. Telephone taps, for example, stayed on for no longer - and often for a shorter time - than was agreed by the Attorney-General. In each case a report on the outcome of the operation was provided to the Attorney-General.

As a general comment it can be said that the Australian Government and people are well served by the fact that ASIO is in these particularly sensitive areas generally a rather bureaucratic organization. Certainly, emergency arrangements exist whereby a warrant operation can be put in place very speedily if necessary on the Director-General of Security's approval followed up by confirmatory approval by the Attorney-General. Proposals are developed carefully and pass through a number of hands within the Organization before they are put to the Attorney-General. Ale opportunity exists, therefore, (and from my reading of ASIO's files it is invariably taken) to inject cautionary views if a particular case may seem not to be well-founded. The upshot is that while a case that reaches the Attorney-General may read somewhat like an inter-departmental committee report, those that 1 have seen have all been soundly argued.


ASIO and the Queensland Police Special Branch "Files"

As a result of public expressions of concern, including from Members of Parliament, that the former Queensland Police Special Branch's files or some of their contents had been passed to ASIO in contravention of the Queensland Government's decision to destroy those files, I decided to conduct a full inquiry into the matter. Apart from the claim that a duplicate set of files had been passed to ASIO, other claims were that much of the information passed was not related to matters of national security; that some of it was unimportant, remained unprocessed, and could flow into the "national security network", thereby creating problems for the people concerned, especially when they applied for jobs. The view was put that information that bore no relevance to security had no place on the files of the nation's security intelligence organization and that if such information was being kept by ASIO, it should be destroyed immediately.

The terms of reference of my inquiry were to ascertain whether ASIO had acted legally and with propriety in its receipt and handling of information received from the Queensland Police. 1 have no powers with respect to the activities of any of the State or Federal police forces. My investigation was thus an investigation into the activities of ASIO, and not into those of the Queensland Police.

During the course of my investigation I examined all ASIO files relating to the subject as well as the registers covering all documents received by ASIO under the agreement that governs exchanges of information between the Queensland Police and ASIO. I examined every such document received in 1989 and 1990 as well as most of those received during 1986, 1987 and 1988. I also looked at some of the documents received in earlier years. I discussed various aspects of the matter with ASIO officers in Canberra and Brisbane, with the Commissioner and a member of the Queensland Police and with the Chairman and a member of the Queensland Criminal Justice Commission.

As a result I was able to say with certainty that there had been no wholesale transfer of files or papers to ASIO before, at or after the change of government in Queensland in December, 1989. I was also able to say, again quite definitely, that ASIO had acted legally and with propriety in its handling of information passed to it by the Queensland Police under the intergovernmental agreement. Information of relevance to ASIO's functions had been properly used and information that was not relevant had been held securely and not used. None of the latter had been passed to other bodies, nor did it find its way into the "national security network" as was feared by some commentators.

I found, however, that out of a total of 1,549 reports passed by the Queensland Police to ASIO during the period 1982 to 1989, only 778 or 50.3%, were judged to be relevant to security and worthy of processing. The remaining 77I or 49.7% were not relevant and were not acted upon by ASIO and remained on file in the Brisbane Regional Office. No "files" as such were passed. Some, but not most, documents that were passed to ASIO were of a composite nature. A typical example would be a single document conveying a report of a meeting of a target group, together with a number of attachments, perhaps including a list of the people who attended, a copy of the constitution of the group and copies of any resolutions that might have been passed at the meeting. However, by far the majority of documents passed by the Queensland Police to ASIO were single documents, many only one page in length with most running to a second page.

Much of the information that was relevant to ASIO's legislative functions concerned activities of people or groups of security interest and some concerned information about threats to the safety of Australian and foreign dignitaries visiting the State. Other information related to counter-terrorism assessments and contingency planning and some information was provided to assist ASIO in its function of properly identifying persons who may be of security interest.

I do not propose to provide details of information that was passed to ASIO and that was deemed irrelevant to security, other than to say that from my careful reading of the registers and the actual reports, I saw no evidence that information about the activities of politicians, whether State or Federal, was provided, apart from information that was relevant to the protection of those politicians. This serves to complement one of the findings of the Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, that:

"past rumours of politically inspired intelligence gathering on a wide scale could not be substantiated, (though basic information was obtained from all Parliamentarians to assist in the event of a threat)." (Report of a Commission of Inquiry Pursuant to Orders in Council, Government Printer, Queensland 1989, page 242)

Nevertheless, I felt that the fact that ASIO was holding information that was not relevant to security was properly a matter of public concern and should be remedied. I concluded that there was no need for ASIO to continue to hold every document provided to it by the Queensland Police and that those documents that were judged not to be relevant to ASIO's functions as defined in the ASIO Act should be destroyed. As to the charge that a great deal of information may have been passed towards the end of 1989 or early in 1990 so as to subvert the intentions of the new Government, I found this wholly without substance. If anything, the Queensland State election had the contrary effect to that alleged, i.e. of a large-scale transfer of documents, in that there was a decline in the amount of information provided by the Queensland Police to ASIO. Since the election the amount provided has been less than in the past but more precisely focussed and all relevant to ASIO's function. As a result of my inquiry, I recommended:

"that all of those documents passed to ASIO by the Queensland Police since 1982 that are irrelevant to the functions of ASIO should be destroyed immediately, and that in future, if a document is judged not to be worthy of processing, i.e. as irrelevant to security, it too should be destroyed. This will serve to reduce public concern that ASIO might hold personal information for which it has no need; it will also relieve the burden on ASIO's information system.

... that regular discussions be held between ASIO and the Queensland Police to ensure that the latter remains aware of ASIO's functions and chief areas of interest and continues to be selective in what it provides in the future to ASIO.

(and) ... that the present intergovernmental agreement governing the exchanges between ASIO and the Queensland Police be amended to reflect the significant changes that were made in 1987 to the Australian Security Intelligence Organization Act 1979. " (Proposals to amend the agreement had already been suggested by the Commonwealth and were at the time of my inquiry under study by the Queensland Government.)

My recommendations have been accepted by the Director-General of Security, who has now asked the Director-General of Archives to issue a new disposal schedule under the Archives Act 1983 for the disposal of documents provided to ASIO by Australian police forces under the present intergovernmental agreements that are judged by ASIO to be not relevant to its statutory functions.

I propose to take follow-up action in relation to the agreements between ASIO and all police forces, and to monitor the flow, both ways, of information passed between them.


ASIO and Propriety

I received a number of complaints from members of the public alleging impropriety by ASIO. On examination 1 found that many of them had no basis in fact and I was able to reassure the complainants of this. Twelve complaints were worthy of further examination and were the subject of a preliminary investigation by me. In preliminary investigation mode 1 am able to discuss the issue with the Director-General of Security and gain access to documents with a view to deciding whether a full investigation is warranted. Apart from the inquiry relating to ASIO and the Queensland Police, two other matters were the subject of a full investigation.

I do not propose to give specific details of these cases. It would be an invasion of the privacy of the individuals concerned if I were to do so and in any case I have already furnished reports to the Attorney-General, as the responsible Minister, and to the Director-General of Security and, where relevant, to other Ministers and Department heads . However, the two cases that reached full investigation stage are worthy of some further, general, description, as is a third case which 1 have under examination now.


Did ASIO act improperly in conducting a security assessment?

I received a complaint from a person who had applied for a security-designated position in a Government Department some four years ago. The person had been offered the position but had been told that confirmation would need to await a security clearance by ASIO. During the following months the person's enquiries as to the progress of the application were stalled by the Department concerned which regularly blamed ASIO for delays. In the meantime ASIO was conducting its own checks, including overseas. Some time after the person had first been interviewed by the Department, the latter told ASIO, almost in passing, that the Department held information about the applicant which had a very significant bearing on that person's suitability or otherwise for a security-sensitive position. At that point ASIO acted with admirable efficiency in producing a brief to be used as the basis for an interview with the person concerned, at which time the Department told ASIO that it no longer intended to employ the person. It seems that the person was never told that a decision had been taken not to employ him until I told him so as a result of my investigations, some three and a half years from the date of his original application.

It is for individual Government departments to determine whether an applicant for a job is "a fit and proper person" for a position requiring a security clearance. If they determine positively then the next step would be to approach ASIO for a security assessment. The Protective Security Manual prescribes that any information of security interest that a department might have about an applicant should be forwarded to ASIO at the same time as a request is made for a security assessment. In this particular case 1 found that despite some relatively minor inefficiencies ASIO acted properly and promptly when it received information of relevance to this case. If 1 had had the power to make a recommendation in respect of the Department concerned I would seriously have considered a finding of impropriety for the Department's failure to observe the requirements of the Protective Security Manual and for the shabby way in which the person concerned was treated.


Did ASIO act legally and with propriety in recommending that an immigration application be refused?

An Australian citizen and would-be sponsor of the migration to Australia of his daughter and her husband, complained that the couple's migration application had been refused because the husband failed to meet the good character requirements, essentially on the grounds of security.

The issue was not one concerning the review of an adverse assessment of a non-Australian, which neither the Security Appeals Tribunal nor the Inspector-General can investigate. The issue was whether the advice from ASIO, which led to the application being refused, complied with the law, Ministerial directions or guidelines, propriety and human rights.

Upon inquiry, it was found that ASIO's recommendation that the application be refused was strictly consistent with the existing regulations and that the complaint had no foundation.

Another outcome of this case was that it clarified the extent of the Inspector-General's powers. The Attorney-General's Department provided an opinion that, under the Inspector-General of Intelligence and Security Act, the Inspector-General has the power to inquire into matters touching on ASIO's security assessments of prospective migrants where issues of legality, propriety and consistency with human rights arise in relation to the activities of ASIO.


Did ASIO discriminate against an ASIO officer on grounds of race, gender and her submissions to Mr Justice Hope?

This case concerns an ex-employee of ASIO whose complaint was referred to me by the Human Rights and Equal Opportunity Commission. Her complaint covers a variety of matters going back many years and includes allegations of misadvice by ASIO in respect of her superannuation entitlements, and allegations that ASIO discriminated against her on grounds of race and gender, and because of submissions that she had made to the two Royal Commissions into the intelligence and security organizations by Mr Justice Hope in 1977 and in 1983/84.

Because this particular case pre-dates the Inspector-General of Intelligence and Security Act it has been necessary to obtain the approval of the Attorney-General, as the Minister responsible for ASIO, to conduct an inquiry into it. Because of the amount of relevant material held on file by ASIO and three other Departments and because of the legal complexity of the case, it seems highly unlikely that 1 will be able to conduct it properly without the loan or secondment of additional staff.

There has been speculation that the person concerned will publish her memoirs from a basis of dissatisfaction with her treatment by ASIO.


Media comment

ASIO is a favourite target for the media, which, during the period under review, has often claimed that ASIO has acted improperly or illegally. I have followed up those of the media accusations that appeared likely to have some basis in fact, but have concluded that none of them warranted a full inquiry. The following are three particular cases that I examined:


ASIO's procedures for ensuring that the Organization acts legally and with propriety

ASIO has in place extensive and effective procedures for ensuring that the Organization acts legally and with propriety in seeking and applying warrants to intercept telephone conversations, mail and telex messages, to enter a premises and to place a listening device. Cheek lists exist covering the key aspects of each of these operations.

In addition, the rather bureaucratic approach that ASIO follows in this particular area provides a further safeguard against ASIO acting illegally or improperly. The fact that an application for a warrant must pass across many desks in ASIO minimises the chances of mistakes being made. The following comments from two warrant files are typical of those that may be found on any of the papers that are prepared in developing a case for a warrant.

Some procedures are in process of being rewritten. It is ASIO's practice which I welcome - to provide me with drafts of these revised procedures for comment.

Other procedures exist covering other parts of the Organization's activities. They appear to be broadly satisfactory, but I am worried about the recent spate of claims that ASIO is delaying its handling of requests under the Archives Act. I have submitted my preliminary views on ASIO and the Archives Act to the Parliamentary Joint Committee on ASIO, but I propose to examine this matter in greater detail next year.

Similarly, I want next year to devote some time to examining ASIO's program for disposing of records in accordance with disposal schedules approved by the Director-General of Archives to ensure that ASIO does not maintain files on people about whom there is no longer a security interest.


ASIO Staffing Matters

I do not wish to intrude into the management responsibilities of the Director-General of Security, but I think that in the context of my role and responsibilities the following are either of broad interest or potentially the source of difficulties in the future and are therefore worth mentioning.


Staff quality

The recruiting of graduates that the Organization has been undertaking is beginning to pay off. Some good young staff have been selected and their presence is now beginning to be felt, including in the regions.


Staff morale

I believe morale is reasonable, but it does vary. The Director-General's attempts to improve conditions of service, e.g. by the institution of an ASIO Mobility Allowance that is available to all officers who are compulsorily moved interstate and is intended to offset the additional costs they may incur in meeting high rents at their new location; by the improvement of office accommodation in Sydney; and by recognition of the importance of the ASIO Staff Association, have been welcomed. However, there are some countervailing pressures, including:


The Need for Privacy Guidelines

With the amendment in January, 1990, of the Privacy Act 1988, ASIO is exempted from the provisions of that legislation, but there are to be guidelines issued by the Attorney-General dealing with the collection of intelligence by ASIO. Once these guidelines are in place, I am to ensure ASIO's adherence to them, in consultation with the Privacy Commissioner on the policy issues involved.

I understand that the guidelines are presently being drafted. It is to be hoped that they are issued soon.


Parliamentary Joint Committee on ASIO

I have appeared before this Committee once, to provide a general briefing on the work of my office, and have had informal contact on various occasions with the Presiding Member and Secretary of the Committee. I put a submission to the Committee on its reference regarding ASIO and the Archives Act.