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IGIS Annual Report 1992-93 |
AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION (ASIO)
During the course of the year I continued with my program of regular visits to all ASIO offices, primarily to examine their more sensitive operations. As in previous years, I spoke at 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.
Again this year I found no evidence of illegality or impropriety in the conduct by ASIO of its warrant operations, that is, 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. Nor did I find anything that caused me concern in the exchanges that occurred during the year between ASIO and the Police. The warrant operations continue to be strictly in accord with approvals given by the Attorney-General, and the exchanges with Police are in accordance with the current draft intergovernmental agreement between the Commonwealth and the States and Northern Territory.
This is the fourth year running in which I have expressed my concern that the draft intergovernmental agreement still has not been finalised. As I noted last year, I do not understand why the agreement remains a draft after all these years, and I hope that the various parties are able to conclude it soon. Certainly, not much is lost while all the parties continue to act in accordance with the draft, but it would be preferable to have the agreement finalised.
I remain surprised at the misconceptions among the community about ASIO's role and responsibilities. During the year a journalist noted that my Act made special arrangements for me to deal with complainants who might be detained in custody. He assumed that this meant that ASIO had the power to detain people in custody. This, of course, is not the case. Other people have assumed that ASIO is able to roam far and wide and to investigate all manner of matters; they find it hard to accept that ASIO is limited by its Act and by the various Ministerial guidelines that I have mentioned to investigations into matters of security relevance. It is to be hoped that the more outward-looking and open approach of the present Director-General of Security will help dispel some of these misconceptions.
ASIO continues to be the main target of complaints against the activities of the intelligence and security community. The following are brief summaries of some of the cases my Office has handled this year.
What information did ASIO obtain about the Hilton bombing and the alleged attempted bombing at Yagoona in 1978, and what did it do with it?
In my last annual report I referred to a complaint I had received from a former NSW Police Special Branch agent who had been the principal Crown witness at the trial of three members of the Ananda Marga sect - Timothy Anderson, Ross Dunn and Paul Alister - for their alleged involvement in an attempted bombing at Yagoona, New South Wales, on 15 June 1978. (The 'Yagoona Three', as they became known, were convicted, but later released and pardoned in 1985 following a judicial inquiry in which the police agent's evidence and credibility were strongly attacked.) The complainant also alleged that the 'Yagoona Three' were involved in the Sydney Hilton Hotel bombing on 13 February 1978.
In 1991, it was asserted on a television program, 60 Minutes, that ASIO had an agent in the Ananda Marga in the late 1970s. The complainant alleged to me that, even though ASIO may have held intelligence and evidence which supported his account, ASIO never came forward to assist him or the Crown. The complainant says that ASIO owed him and the Crown a duty to provide relevant material, and that its failure to do so was improper. He seeks compensation.
The complainant also says the alleged ASIO agent had access to the 'inner core' of the Ananda Marga which, according to the complainant, was prepared to use violence to further its aims. On the basis of this assumption, the complainant speculated that the agent must have been involved in violent acts as part of his cover and that he may even have been offered immunity from prosecution.
This inquiry has proved to be a very lengthy and complex one. I have not been assisted in completing it by staff changes, limited resources and a heavy caseload of other pressing matters. However, at the time of writing, I have prepared a working paper which I have sent to ASIO for comment.
Without pre-empting my report, I have already reached some reasonably firm conclusions.
- In assessing ASIO's duties to the criminal justice system, it needs to be borne in mind that ASIO is neither a law enforcement body nor a criminal intelligence-collecting body. Its overriding responsibility, as set out in the ASIO Act, is to protect national security. Any assistance it provides to the police or the courts must, in my view, be consistent with this statutory duty.
- At the time of writing, my research indicates that ASIO had no prior warning of the Hilton bombing, and I have not seen or heard anything which substantiates rumours regarding ASIO involvement in the bombing.
- ASIO's files contain material which appears to be relevant to the Hilton bombing and the Yagoona incident. However, three important points need to be made about ASIO's holdings. First, in the case of the Hilton, virtually all the relevant material was collected some time afterwards. Secondly, the intelligence relating to both incidents needs to be treated with caution, as most of it is open to interpretation and some of it is contradictory. Thirdly, as I mentioned in my last annual report, much of the ASIO material appears to be inadmissible in any court proceedings (for example, because it is hearsay evidence which does not fall within any of the established exceptions to the rule against hearsay).
- In June 1983, ASIO officers met with members of the NSW Police and briefed them on some 36 intelligence items ASIO held which were relevant to the Hilton bombing and the Yagoona incident. The police expressed the view that seven items were 'of interest' but would only be of use to them if 'further information' could be obtained. As the police did not follow up with ASIO, it seems no 'further information' emerged.
Did ASIO act improperly in providing a psychological report on an ex-agent to the Family Court?
In my last annual report I mentioned a complaint to me by an Australian citizen who was involved in proceedings in the Family Court of Australia.
Prior to the break-up of his marriage, the complainant had revealed to his wife that he had worked for ASIO as an agent. After the divorce, the complainant and his ex-wife reached an informal agreement on access to the only child of the marriage. Subsequently the complainant approached the Court seeking to vary the agreement and secure more favourable terms of access.
Before proceedings commenced, solicitors representing the complainant's ex-wife served ASIO with a subpoena seeking "medical or similar records". ASIO complied with the subpoena by producing a psychological assessment of the complainant, which had been prepared for the purpose of assessing his suitability to be an agent. The Australian Government Solicitor's Office, which was acting for ASIO, allowed the ex-wife's solicitor to see the document prior to production to the Court, in order to demonstrate the nature of deletions made to the document on the basis of a claim of public interest immunity. The complainant alleges that the conduct of ASIO and the Australian Government Solicitor's Office was improper.
It seems that ASIO did not brief the complainant before producing the psychological report to the Court. Nor did ASIO instruct the Australian Government Solicitor's Office to address the Court as to the nature or relevance of the report. Although ASIO's inaction in respect of the complainant was lawful, it raises issues of propriety, because in my opinion ASIG owes its agents and ex-agents a special duty of care. (I note here, however, that I have no power to reach conclusions or make recommendations about members of the Australian Government Solicitor's Office.)
There have been considerable delays in finalising this case, in part because of the complexity of the issues and in part because of delays caused by other pressures on ASIO.
Did ASIO miscalculate the compensation entitlements of two ex-officers at the time of their retirement?
In my annual report for 1991-92, I referred to a complaint from a former ASIO officer who had been receiving invalidity compensation payments since retiring from ASIO in 1987. Some delay occurred with this case while I determined whether the relevant legislation allowed waiver of any overpayment.
Subsequently, another former ASIO officer who had also been receiving invalidity compensation payments since 1985, made a complaint against ASIO. Together, these complaints have raised questions about the Organisation's administrative procedures and arrangements relating to compensation and the propriety of its conduct in such matters. Specifically, the complainants claimed that ASIO miscalculated their compensation entitlements and this led to them being overpaid. The complainants also raised the question of whether it would be proper in these circumstances for the ex-members concerned to make repayment, and whether access by ex-ASIO employees to advice and information about compensation entitlements and allowances generally was adequate.
My investigation of these complaints is continuing.
Was ASIO improperly involved with the alleged access to a publisher's computer typesetting system?
I referred in my previous annual report to a complaint made to me by a publisher. The concerns of the complainant have become clearer in the course of my investigation of the matter.
One of the publisher's concerns was about alleged false statements by a computer expert who used to be a Victoria Police informer. The computer expert allegedly claimed that he worked for the complainant's publishing company and enabled ASIO to gain access to the complainant's computer typesetting system. The expert also allegedly said that ASIO paid him to destroy the typesetting system and a manuscript of a book (which my complainant says never existed). The complainant had a further concern that the computer expert may have given ASIO and other agencies information about him that was false and that may be now on their records.
My inquiry, which focuses on the extent of ASIO's possible involvement, is continuing.
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?
I concluded this case in June 1992. I found that although the complainant suffered from discrimination on the basis of her gender, such discrimination was neither illegal nor (having regard to contemporary values) improper at the time it occurred. (It would certainly be both illegal and improper if it occurred today.) However, I concluded that the complainant, who had worked for ASIO overseas before migrating to Australia, was wrongly required to serve a further three years after taking up her appointment with ASIO in Australia before being allowed access to the Commonwealth superannuation scheme.
I recommended that an act of grace payment be made to the complainant to compensate her for the loss which she suffered through not being able to join the superannuation scheme soon after taking up her appointment in Australia with ASIO. I also recommended that the Commonwealth meet the complainant's legal costs.
I refer to this matter now because the case still has not been finalised. The Attorney-General accepted my recommendations and I sent them to the Department of Finance on 9 July 1992. I understand that the Finance Minister received a briefing on this case from his Department on 11 January 1993, and the matter is still before him for decision. The complainant continues to suffer financially.
My inquiry was a full and thorough one and I am convinced of the rightness of its conclusion. So, apparently, was the Attorney-General. The amount of money involved is not large. I cannot understand why it should take such a long time to conclude the case.
Did ASIO act legally and with propriety in its conduct of a community interview'?
I discussed this case in my last annual report and noted that I intended to conduct a full inquiry into ASIO's practice of community interviewing.
I have now decided to postpone such an inquiry while I examine how ASIO meets the requirements of the new Ministerial guidelines on the collection of intelligence relevant to security. It may well be that the operation of these guidelines will dispel the concerns that I had last year.
In last year's annual report I referred to my inquiries into complaints about ASIO's performance under the Archives Act. In response to my conclusions and recommendations, as well as those made by the Parliamentary Joint Committee on ASIO, ASIO has changed its approach to archives matters: it has revised its procedures and allocated more staff and technical resources. ASIO has also established informal communication with researchers and improved its liaison with the Australian Archives. As a result, ASIO's archives output has increased significantly.
I am satisfied that ASIO's activities relating to its statutory archives obligations are conducted in accordance with the law and with propriety.
As already noted, the appointment of independent chairpersons of ASIO's grievance and review committees has had the effect of removing me from the ASIO grievance process. During the year I received representations from ASIO officers on a number of subjects. As I did last year, I undertook a 'good offices' role in these cases, giving advice where possible and encouragement where appropriate.
The arrangements in ASIO for resolving grievances seem to be working very well and staff can, and increasingly do, have confidence in them. Other significant changes to ASIO personnel management arrangements have been made and these should make the Organisation a fairer and more efficient place. Morale in ASIO is uncertain at present, largely because of major staffing changes resulting from the restructuring of the Organisation but also because of significant changes to working practices and procedures, including the introduction of performance-based pay arrangements.