|
IGIS Annual Report 1990-91 |
ASIO
During the year under review, I carried out a program of regular visits to all ASIO offices, primarily to examine their more sensitive operations, but also to keep in touch with management and staff of the Organization at a time when the certainties of the cold-war era were rapidly disappearing, with consequential implications for ASIO. I also spoke to ASIO training courses about the role and responsibilities of my Office and its place in the general accountability framework for the intelligence and security community.
ASIO's Warrant Operations
As I did last year, I again conducted a series of spot-checks of ASIO's records regarding warrant operations, ie operations sanctioned by the Attorney-General and involving the tapping of someone's telephone, the interception of mail and/or telex messages, the placing of eavesdropping devices and the entry and searching of a premises or combinations of some or all of these.
I found that in each case ASIO acted legally and with propriety. All applications for warrants were carefully developed and duly approved by the Attorney-General and the conditions of every warrant that I saw were met. ASIO has developed extensive check lists for its warrant operations and these are carefully followed. Although they make the whole operation rather bureaucratic, they provide a valuable safeguard against mistakes. It is for consideration whether the present arrangements should not be examined jointly between ASIO and the Attorney-General's Department to see whether they might with benefit be developed into guidelines which might then be issued by the Attorney-General. The advantage of such an action would be to enhance the importance of the checks and balances that are already built into the system and to emphasise to the people who are using the system the need continually to take care.
It is worth noting that other countries employ similarly bureaucratic systems for their more sensitive operations. In the United States, for example, the FBI is required to obtain at least as many signatures as ASIO during the preparation of an application for a wan-ant.
ASIO/Police Exchanges
As a result of a case that I conducted last year (that of the Queensland Police Special Branch "Files", reported in my last annual report), all regional offices of ASIO now maintain special registers inwhich are recorded all items of correspondence sent to and received from the State or Territory Police. During my visits to ASIO's regional offices I take the opportunity to examine these registers and, where necessary, the relevant files, to ensure that the exchanges are in accordance with the Australian Security Intelligence Organization Act 1979. I also try to meet the State and Territory Police concerned to discuss the relationship between them and ASIO.
I am pleased to be able to report that the exchanges during the last twelve months have indeed been in accord with the ASIO Act and that there is general satisfaction with the relationship that exists between ASIO and the various police forces. I remain concerned, however, that the present inter-governmental agreements that govern these exchanges still have not been brought up to date to reflect the significant changes that were made in 1987 to the Australian Security Intelligence Organization Act 1979. I understand that negotiations are under way between Commonwealth departments and the States and Territories, and I hope that the revised agreements will be concluded soon
Public Complaints
During the year, I received 44 complaints from members of the public and from ASIO staff members against the Organization. I conducted preliminary inquiries into 19 of these, and completed 14 of them during the year. I went into full inquiry mode in respect of 6 new complaints during the year. In preliminary inquiry mode I can make inquiries of the head of the agency concerned, and this enables me to ascertain whether any further action may be required. In full inquiry mode I have a range of powers similar to those of a royal commission. For instance, I can obtain access to premises occupied by an agency and can require any person to attend before me to answer questions under oath or produce documents.
It will be obvious from the statistics that many complaints that I received were so far-fetched as to be clearly without foundation. Many of them emanated from people whom I believe must have been mentally disturbed. In these cases we have done our best to reassure the complainants that they were not the subject of ASIO attention, even to the extent in some cases of my visiting ASIO Central Office to check ASIO's records index so that I could truthfully tell the complainant that I had personally checked ASIO's records and had satisfied myself that the complainant was not of security interest.
ASIO and Propriety
Almost all complaints that my Office receives from members of the public involve questions of propriety. Only a few relate to issues of legality. Given the subjective nature of what might constitute propriety or impropriety, these are generally, in my experience at least, more difficult matters for judgement than are questions of legality or illegality. Questions of propriety do not lend themselves, as do many questions of legality, to the use of check lists as monitoring aids. What check list can be devised, for example, to permit the measurement of whether the balance between the reasonable considerations of security and the equally reasonable considerations of individual privacy has been abused? Or whether the least intrusive means of achieving an objective has been used? In the absence to date of any reliable check list approach, our own experience suggests that a case by case approach of deciding on the merits is the best one.
In all of the cases that I have already mentioned, and in those that are described below, we have examined the complaints against the same basic standard of reasonableness. We have sought first of all to ascertain the facts and to hear explanations, then to arrive at a judgement as to whether the action complained about was reasonable and whether the methods used were, in the circumstances of the case, appropriate.
Did ASIO discriminate against an ASIO officer on grounds of race, gender and her submissions to Mr Justice Hope? Did ASIO misadvise her about her superannuation entitlements?
This case, which is now nearing completion, has been an extremely complex one. It concerns an ex-employee of ASIO who alleges that ASIO management advised her badly regarding her superannuation entitlements, with the result that she receives a much smaller pension than she would have received if the advice had been better. She also alleges that ASIO discriminated against her on grounds of race and gender and because of submissions that she made to the two Royal Commissions into the intelligence and security organizations conducted by Mr Justice Hope in 1977 and in 1983184.In this particular case there has been a very large amount of material to examine, held on the files not only of ASIO but also of various Government Departments and other agencies. In addition, it has been necessary to conduct interviews with a large number of ex-ASIO officers. All of the preliminary work has now been completed and I have prepared a draft report, which, in accordance with my legislation, I must now submit to the Director-General of Security before I can finalise it. One of the particular difficulties that this case has entailed has been the need to come to judgements against the background of the legal and social context of the time when the events occurred rather than against the background of today's much more enlightened scene.
Does ASIO act legally and with propriety in relation to requests made for access to its material under the Archives Act?
In my last annual report, I noted that as a part of my work program for 1990-9I I intended to examine the way in which ASIO handled requests made of it under the Archives Act. Subsequently, two researchers who make extensive use of the access to government records provided by the archives legislation complained to me. One complaint was that ASIO did not respect the letter let alone the spirit of the Archives Act. The complainant made several specific allegations. First, ASIO does not provide the Australian Archives (and hence researchers) with indices of its files which are older than thirty years. This makes the task of researching the Organization's past role in relation to security and intelligence matters more difficult. Secondly, applications for access to ASIO material are not met within the time specified under the archives legislation. Thirdly, archival material released by ASIO is extremely heavily censored to the point of mass culling of files. Fourthly, ASIO's so-called practice of mass culling forces the researcher to seek a review, a process said by the complainant to be time-consuming and which has led to only a small amount of new material being released.
The complainant claimed further that ASIO had placed his requests at the bottom of the pile because it did not regard him as a "serious" researcher and saw him as fishing in people's personal affairs,
After making preliminary inquiries into this complaint, I decided that a full inquiry was warranted and informed the Attorney-General and the Director-General of Security accordingly.The second complaint alleged that "the present long delays experienced by myself and others combined with ASIO's desire to have itself excluded from the purview of the Archives Act makes me question the propriety with which it is handling its obligations not only to the law but also to the community".
This complaint, like the first, also claimed that ASIO does not respond to requests within the 90-day time limit required by the Archives Act and that ASIO refuses to simplify searches by releasing indices of its files in the open access period. In addition, the complainant questioned the completeness of ASIO's responses to requests for material. One example cited was that ASIO had released additional papers after it had said that there was no material or no more material held about certain individuals. In another instance ASIO had stated that it had no records about a particular subject when it became apparent later that a file had once been kept on that person. The complainant asked also whether cine film taken by ASIO was intact and stored properly so that it was protected from physical deterioration.
I decided to investigate this complaint also and to do so in the course of the inquiry I had already started.
Investigation of these complaints is continuing.
What I can say at this stage of my inquiry is that the very large proportion of the total requests for archives access made to ASIO by the two researchers who have complained to me has overwhelmed ASIO's capacity to respond within the time limit required by the Archives Act. To this extent ASIO is failing to abide by the law. On the other hand, I accept the need for ASIO to screen carefully the material for which public release is sought, so that national security and confidentiality is protected. This is a time-consuming process and without extra resources devoted to the task it can lead to long delays. Most of the claims made in the complaints are denied or rejected by ASIO, which points out that the Administrative Appeals Tribunal has consistently upheld the position adopted by the Organization in its decisions to release or to withhold material.
Did ASIO act legally and with propriety in interviewing a member of the public?
I received a complaint from an Australian citizen who arrived in this country many years ago as a political refugee about an approach that had been made to him by ASIO. The complaint was about the way the approach was made and what transpired to be some misunderstanding of the way in which the person's assistance was sought.
I conducted a full inquiry into this complaint and found that the interview with the person was conducted both legally and with propriety. During the course of the inquiry I looked at the training provided to ASIO officers in interviewing techniques and on the basis of what I saw consider that it is appropriate. The inquiry also gave me the opportunity to speak with the relevant ASIO officers to reinforce the need to continue to be alert to the concerns of the people they interview and to avoid giving offence.
Was ASIO information used improperly to hinder an Australian citizen's search for employment?
I received a complaint from an Australian citizen alleging that information which ASIO held had been used to prevent him from obtaining professional employment. The complainant cited a number of instances where he believed ASIO information relating to his political activities in the 1970s had been conveyed to potential employers, and that they had led the latter to decide not to offer him a job.
I am at present conducting a full inquiry into this matter.
ASIO Staffing Matters
I mentioned in my last annual report some signs that all was not well so far as ASIO personnel matters were concerned. I drew attention then to feelings of uncertainty on the part of some staff as to who or what should be the prime target of ASIO in the presently fast-changing international situation; I referred to the cramped working conditions of staff employed in the Canberra regional office; and I noted the dissatisfaction of some staff with the new employment contracts, which were seen as unsatisfactory because they seemed to have removed a significant right of appeal.While the matter of the physical working conditions of the Canberra regional office have now been improved, I have to report that the situation regarding staff morale deteriorated during the year.
I have reported separately on this matter to the Prime Minister and the Attorney-General.
Parliamentary Joint Committee on ASIO
In December 1989, the Parliamentary Joint Committee on ASIO (PJC) announced an inquiry into the reference given to it by the Attorney-General about the effect on ASIO activities of the operation of the Archives Act 1983. Thus, my investigation of the complaints made by two researchers has proceeded at the same time as an inquiry by the Committee into the broad policy questions arising from the access provisions of the archives legislation in relation to ASIO.
I made a written submission to the inquiry and have appeared twice before the Committee to give evidence. I expect to be called on at least one more occasion.
One of the researchers who had complained to me also brought his concerns regarding ASIO to the attention of the PJC in a written submission which addressed the same issues as his complaint to me. Since the PJC cannot investigate individual complaints, the respective inquiries by the PJC and by me have remained quite separate.
Privacy Guidelines
ASIO is exempted from the provisions of the Privacy Act 1988, 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.
The guidelines have been drafted and are at present under consideration by the Privacy Commissioner and me.In my last annual report I referred to difficulties that I had experienced in obtaining access to the staff of ASIS. I am pleased to be able to report that those difficulties have been overcome and that during the year under review I had a number of meetings with ASIS staff both individually and in groups. I regard my free access to staff and their access to me as of vital importance if I am to carry out my functions properly.
As happened last year, I was given briefings on ASIS activities whenever I or the Director-General felt it to be necessary. I also met from time to time with the President of the ASIS Staff and Welfare Association. I addressed various ASIS training courses about the role of my Office and its place in the general accountability arrangements for the intelligence and security community. Finally, I conducted regular spot-checks on the way in which ASIS was handling any foreign intelligence information received about Australian persons and companies.
From what I have seen, I believe that ASIS is very conscious of the need to act legally and with propriety and is in fact doing so. I believe that the procedures that the Service has in place to ensure that it continues to act in this way are effective and are working well.