IGIS Annual Report 1993-94

MY PHILOSOPHICAL APPROACH


14. Before discussing my activities during the past year, it may be useful if I discuss the philosophical approach that I have adopted during the five years that I have been Inspector-General.

15. My starting point is to take the fact that there are three collecting agencies, each performing particular functions, as given. My main task is to help Ministers ensure that these agencies carry out their functions according to the law, with propriety and without unnecessarily impinging upon the rights of Australians.

16. I recognise that when I am conducting an inquiry, I have very significant powers, which I can exercise if necessary. However, I have preferred to hold them in reserve and to work so far as possible in a relationship of cooperation with the heads of the various agencies. Thus, I give notice of my proposed visits -to the agencies - indeed, I am required to do so by section 19(1) of my Act - and prior warning of the broad subject matters I wish to examine, but not prior warning of the detailed files etc that I wish to look at.

17. My Act does not give me a role in the management of any of the agencies and it is clear from the Hope Royal Commission Report and from the parliamentary debates w',-.en the Inspector-General of Intelligence and Security Bill was being considered that neither the Government nor the Opposition intended the Inspector-General to perform this sort of role. I am therefore careful not to obtrude on the responsibility of the Directors-General of the different agencies to run their own organisations. Inevitably, I do impinge on the management of the agencies when I investigate complaints of a grievance nature by members of an agency, but I have tried to draw the line at the point where I might make recommendations for changes in management processes but certainly not for changes in managers. in my view this would be against the spirit and the letter (eg section 17(10)) of my Act, and I would regard it as improper.

18. There is no provision in my Act for the delegation of the Inspector-General’s functions. As a result, I have had to become very deeply involved in the investigation of all complaints against the agencies and in the regular monitoring functions expected of my Office.

19. Under section 17(1) of my Act, I have a discretion as to the manner in which I conduct inquiries, subject to certain procedural requirements expressed in the Act. My basic approach has been first to undertake a preliminary inquiry under section 14 of my Act, which enables me to determine on a number of grounds set out in section 11 of my legislation whether I am authorised to inquire further and whether I should do so. If the answer to both of these questions is positive, then I would normally proceed to undertake a full inquiry. This has generally involved me in conducting a series of interviews with the complainant and relevant members of the agency and other people who might be able to help me come to a clearer understanding of the case.

20. At the same time as I conduct the inter-views, I would normally also obtain from the agency concerned and from other relevant bodies all papers and documents related to the complaint.

21. I have tried to conduct all inquiries as informally as possible. To this end, I have discouraged parties to a complaint from relying on solicitors. I have recently developed a set of procedures for the conduct of inquiries into complaints under the Inspector-General of Intelligence and Security Act, and have sought the views of the agency heads on them. The draft procedures are to be found at Annex A of this report. In preparing them I have sought to meet the following criteria:

22. In explanation of the comment about procedural fairness, I have for some time been concerned about the procedural disadvantages which my Act imposes on complainants. The inquiry procedures prescribed in my Act give significant protection to an agency as the respondent to a complainant. I am required to give the agency head a reasonable opportunity to make submissions before expressing critical opinions in a report (section17(4)), to provide a copy of my draft report to the agency head (section 21(1)) and to incorporate the agency head's relevant comments in my final report (section 21(2)). The head of an agency will have at least two opportunities to respond to potential adverse findings and criticism of the agency, but a complainant may have, at best, a limited opportunity to comment on those responses. The complainant does not receive a copy of my proposed or final reports: he or she is given only a response, in a form agreed between me and the responsible Minister. Under the procedures that I have drafted and am now following, it may be possible (subject to there being no risk to security, defence or Australia's international relations and after consultation with the Director-General) to give complainants access to the Director-General’s response to the complaint (clause 16 of the draft procedures), or to arrange a meeting between the Director-General and the complainant (clause 25) or to give the complainant access to additional material that might have been obtained during the course of the inquiry (clause 27). I hope in this way to ensure that complainants receive - and recognise that they receive - a greater measure of procedural fairness than might be apparent from a reading of the Act.

23. My Act (section 22(2)(b)) permits me to recommend the payment of compensation to a person who has been adversely affected by action taken by an agency. In such cases I have, as a matter of principle, sought expert advice from the appropriate area of government as to the amount of compensation that should be recommended. In most cases this would be the Attorney-General's Department, but in one case (involving the superannuation payments of an ex-ASIO officer) I sought the advice of the Retirement Benefits Office.

24. Where an agency is responsible for the action that has led me to recommend compensation, I believe that the agency concerned should pay that compensation from its regular budget. Hopefully, this will make the agency more careful in the future.

25. I hold strongly to a particular view about the duty of care that managers of closed organisations such as ASIS and ASIO have towards their employees, and this view has now been endorsed by agency heads as well as by the Foreign Minister and successive Attorneys-General. My view may be summarised as follows.

26. All managers have a duty of care towards their employees. Many large organisations have various checks and balances built into their management systems to ensure that employees get a fair go. In ASIS and ASIO such checks and balances are limited. Members of these agencies, not being Public Service Act employees, do not have access to the normal public service mechanisms for the resolution of grievances. Nor are they permitted to join a union. It is therefore extremely important that management recognise its duty of care towards its employees. Indeed, in such closed organisations management needs to exercise a greater duty of care towards its employees than do the managers of an open organisation. In the event that an employee of one of these agencies feels that resignation is the only alternative to continuing to put up with what he or she might see as an unjust decision, alternative job opportunities are less easy to come by than they are for a regular public servant who can at least speak openly to potential employers about his or her work and experience. This is seldom possible for ASIO or ASIS employees.

27. I have found that in closed bodies, with limited channels for the resolution of problems and equally limited opportunities even for the discussion of problems (they cannot, for example, normally be discussed with outsiders, including, sometimes, family members), relatively minor matters can fester and may come to assume an exaggerated or disproportionate importance in the mind of the person concerned. Because of this I have consistently urged the staff of these agencies to use the channels that are available to them, including my office.

28. While not seeking to drum up business for my Office I have sought regularly to meet staff of these closed organisations so that they will at least know what I look like and have an opportunity to form a view about me in case they should ever need to see me, either officially or informally. I have also maintained contact with the office holders of the ASIS Staff and Welfare Association and the ASIO Staff Association.

29. Consistent with this approach, I have tried to encourage management to maintain a caring approach to staff and their problems, and to extend the communications process within their organisation.  




PERFORMANCE CRITERIA


30. I have given further consideration to the criteria that might be used to assess the effectiveness of my Office. It seems to me that there are five main ones.

 

 Timeliness of Inquiries

 
3 1. In my 1989-90 Annual Report, I said that if my Office had to conduct more than one major inquiry at any given time, we would be swamped. At that time my staff resources, excluding myself, consisted of three permanent officers. In 1990-9I the number of new substantive complaints I received jumped to 15 (from 11 in the previous financial year). As a result, I and my staff were faced with a dozen or more significant inquiries at once. In response I borrowed staff and was also successful in obtaining one extra staff position and upgrading two others. Nevertheless, some inquiries took a long time to finish. These long delays are unsatisfactory to all involved, the complainants, the agencies concerned and my office, which finds itself under great pressure from many complainants. They are also unsatisfactory from a security point of view because complainants are likely to become frustrated and may be tempted to pursue their complaints through other channels, including the media. 

32. The charts opposite (a more detailed summary is included at Annex (B) tell the story. At present I have 27 substantive complaints either under inquiry or awaiting the opportunity to start inquiring into them. 

33. Unfortunately, delay is built into the inquiry process that I must follow under the Inspector-General of Intelligence and Security Act 1986. It is very much a consultative and inquisitorial process as distinct from the adversarial process typical of court and tribunal proceedings. For example, the Act requires me to consult with the agency that is complained against if it is my intention to criticise that agency. The agency has the right to put its views to me and I am required by the Act to reflect in my final report those of the agency's comments that are relevant. Likewise, if I intend to criticise an agency I am required to give the responsible Minister a reasonable opportunity to discuss my proposed report with me. If I intend to criticise a person I must also give that person the opportunity to put submissions to me, unless doing so would prejudice security, the defence of Australia or Australia's relations with other countries.

34. The response that I give to a complainant must also be agreed between me and the responsible Minister, again to ensure that it will not prejudice security, the defence of Australia or Australia's relations with other countries. In the first place I would normally consult with the head of the agency concerned to ensure that the proposed response met this requirement of the Act.

 


Complainant/Agency Acceptance of my Conclusions/Recommendations


35. In the case of complaints against ASIO, there has been broad acceptance of my conclusions by the complainants and by ASIO itself

36. With the complaints against ASIS, in two cases what appeared to be initial reluctant acceptance on the part of the complainants has turned into rejection. Another complainant appeared to accept my role and my conclusions even though these were not favourable to him. In another case the complainant rejected outright the outcome of my inquiry.

37. ASIS has accepted the recommendations resulting from my inquiries and has implemented them.

 


Acceptance by Ministers of Recommendations


38. In nearly all cases, Ministers have accepted the recommendations I have made in my reports on my inquiries. In one instance the Attorney-General declined my suggestion that he should issue guidelines to ASIO concerning that agency's responsibilities under the Archives Act. In another case the Attorney-General indicated that I may have been too soft on ASIO. 

39. In the case of certain complaints against ASIS, the Foreign Minister told a Senate Estimates Committee that he thought those cases had been fully and fairly resolved. He also said that a judgement made in these cases was a generous judgement in the circumstances. On another occasion, in responding to my report on a particularly difficult complaint against ASI.S, the Foreign Minister thanked me for

 "the sustained and systematic effort you have put into resolving this matter"



Level of Assurance


40. The level of the assurance I can give to Ministers and to the public that the agencies are conducting their activities legally and with propriety and complying with Ministerial guidelines is closely related to the extent of my contact with individual agencies. I have made judgements in past annual reports about such matters. These judgements are based on various types of contact, including contact arising from my inquiry activities, contact with staff associations, monitoring of guidelines, discussions with individual members at all levels in agencies, visits to agency establishments, and regular discussions (both formal and informal) with Commonwealth and State government agencies, eg those agencies with which the intelligence agencies have dealings: (see p.4 of my 1990-91 Annual Report). Comparing ASIO and the other intelligence collection agencies, I have always been able to give a relatively higher level of assurance about the former. This is because I and my office have had a closer and more multi-layered association with that agency than with the others.

 


Extent to which there has been change within the Agencies as a result of our Activities


41. Many complaints I have investigated have resulted in recommendations directed at changing the procedures of an agency. Furthermore, in some cases these changes have led to continuing interest by my Office in that particular aspect of the agency's operations. Ongoing monitoring has been the result.

42.ASIO's Archives Procedures: Concern about ASIO's operations under the Archives Act led to an inquiry by the Parliamentary Joint Committee on ASIO and also led to complaints to me. As a result of a major inquiry which I conducted into these complaints, ASIO changed its procedures and allocated more staff and technical resources to enable it to meet its legal obligations in this area. ASIO also established informal communication links with researchers and improved its liaison with the Australian Archives. Huge backlogs of requests are now being overcome because of these changes.

43. I now regularly monitor ASIO's performance relating to its statutory archives obligations.

44. ASIO/Police Exchanges: In the course of an "own motion" inquiry I discovered that just under 50% of information passed from the Queensland Police Service to ASIO was not relevant to security. The cause was an outmoded inter-governmental agreement under which the exchange occurred. As a result of my inquiry all agreements relating to exchanges between ASIO and the various State and Territory Police Services have been or are being renegotiated.

45. Registers of such exchanges have been established and I examine them during my regular visits to ASIO regional offices. I also discuss the exchanges with the Police. Where one exists, State oversight authorities conduct a reciprocal activity for police records.

46. Links with the ASIO and ASIS Staff Associations: I have placed emphasis on developing and maintaining links with the staff associations of ASIO and ASIS. In my view an active, well-informed staff association can do a lot to alleviate tensions that occur in the closed environment of an intelligence agency. Through regular contact with the executives of such bodies I can lend moral support to those officers engaged in this difficult and sometimes thankless task.

47. I was very pleased recently to receive a letter of thanks for the work of my Office from the now-retired President of the ASIO Staff Association. In thanking me for our work on behalf of the staff of ASIO, the President said, 

"I know, as few others do, how crucial your wise intervention in some issues was to the welfare of ASIO. Keep it up"

48.ASIO and ASIS Personnel Management: Following my investigation of a series of complaints made to me by ASIO officers in 1991, ASIO has now made a number of significant changes to its personnel arrangements, including the appointment of an independent chair of ASIO's grievance committees. These committees were subsequently given determinative powers instead of the recommendatory powers previously vested in them. Also, an internal Ombudsman was appointed to help in resolving staff grievances, and a full-time person has been provided at the Organization's expense to work on Staff Association matters.

49. The improvements in ASIO's personnel management arrangements are perhaps the most significant results which have flowed from any of my inquiries. As a result of my work in 1991, I was able to alert the Minister to a very serious situation regarding staff management and morale.

50. As regards ASIS, a number of changes to their personnel procedures were made as a result of recommendations by my Office, flowing from a major inquiry into a complaint against ASIS. We have also contributed to the development of the ASIS grievance procedures to the point where I have now determined that they are "adequate and effective" in the terms of section 11(5)(a) of my Act. 

51. ASIO and Community Interviews: Following expressions of concern by me about the way in which (ASIO) conducted community interviews (ie among particular ethnic groups in the community), ASIO revised their training syllabus to take account of my concerns. (A community interview serves two basic purposes. It provides intelligence about the view of the particular community but it also demonstrates that ASIO is watching them.) Their new training syllabus has a very heavy emphasis on ethics and propriety and this, combined with the issue by the Attorney-General of his Guidelines on the Collection of Intelligence, has substantially reduced my worries about the way in which ASIO conducts this activity. In writing to me about this, the Attorney-General commented that 

"... these are encouraging developments which, I believe, demonstrate to value of your Office"