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IGIS Annual Report 1996-97 |
AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION
Monitoring Activities
99. I have written elsewhere that ASIO is the agency most likely to come into contact with members of the public, and in consequence it attracts the largest proportion of complaints of any of the five agencies. It was natural then that a significant proportion of my monitoring activities should be directed towards ASIO operations.
100. In February 1997, I wrote to the Director-General of Security advising him of my wish to adopt a more systematic approach to my monitoring activities, and proposed a draft work plan, with the intention of assisting coordination and planning within my Office and in ASIO. The Director-General accepted this plan, which now forms the basis of my continuing monitoring activities.
101. A key element of this plan involved my staff and I reviewing as many current and recently expired warrant operation files as possible covering telecommunications interceptions and other forms of intelligence gathering.
102. In conducting this monitoring activity, I have developed a pro forma check list, to assist in establishing that all necessary approvals and administrative actions have been completed in obtaining and executing the special powers warrants.
103. After a comprehensive review/audit of relevant files, I wrote to the Attorney-General in April 1997, advising him that I had found ASIO's records to have been kept in very good order, that all key accountability requirements were being met and that the systems which are presently in place appear generally to be working well.
104. In previous annual reports, reference has been made to the need for the Commonwealth and the States and Territories to finalise contemporary agreements on cooperation between ASIO and the respective Police Services. As part of my monitoring program, I regularly check ASIO's adherence to the terms of the agreements and liaise with the State authorities, where they exist, which monitor the Police side.
105. In the course of the reporting period I met with the Police Commissioners of New South Wales, Queensland, South Australia and Western Australia, to discuss liaison arrangements between their respective organisations and ASIO. As in past years these visits helped me to gain an impression of the relationships between ASIO and the Police from a Police perspective. In all cases, I was assured that the relationship was considered to be valuable and working satisfactorily.
106. I was also satisfied that ASIO is sensitive to the need to limit its passage of information to the Police to that which is directly relevant to the commission, or potential commission of serious crimes.
107. During the year I also visited most of the State collection offices of ASIO and met with many of the regional staff so as to become better acquainted with their activities and their perspectives away from ASIO Central Office.
108. In the course of these visits I carried out inspections of the records covering warrant operations, and the registers and files which contain Authorities to Investigate. I did not detect any discrepancies or omissions which gave me any real cause for concern. I made some suggestions on records management practices which are being adopted by the Organization.
109. Generally the staff I met and spoke with in the reporting period, both in Canberra and in ASIO's other offices, were well versed in the legal requirements governing the Organization's use of its special powers, and the detail of the relevant internal operating procedures.
Complaints about ASIO
110. Fifteen of the eighteen complaints received in my Office during the year related to ASIO. In addition to these new cases, I closed six cases which were carried over from the 1995-96 reporting period. As has been the case in previous years, the majority of complaints, upon investigation, were revealed to be unfounded.
111. Having said that, a few of the cases I examined exposed some deficiencies in the manner in which the Organization has dealt with particular matters. ASIO responded positively to my recommendations and has my confidence that it is a body which is keen to learn from past experiences and readily introduces necessary corrective action.
112. Some of the cases involving ASIO dealt with during the reporting period, are summarised below.
Did ASIO have reasonable grounds for not employing an individual? What is the likely impact of ASIO's decision on the individual's future employment prospects?
113. An individual complained to me that he had recently failed in his efforts to obtain a temporary training position with ASIO, but when he sought an explanation as to why his application had been unsuccessful, he was given no reasons. The complainant speculated that he might have failed on security grounds and expressed concern that if he had been rejected on security grounds, this might affect his future prospects with other employers.
114. In investigating this complaint, I learnt that ASIO had indeed interviewed the complainant but had rejected his application on the grounds that he was considered to be generally unsuitable, rather than because of any adverse security assessment. The complainant was not told that he was considered unsuitable, rather he was simply advised that he had been unsuccessful.
115. While I concluded that ASIO had sound reasons for rejecting the complainant, I also suggested that the complainant should be provided with specific reasons why he was unsuccessful, should he wish to pursue the matter further.
116. I was also able to assure the complainant that as no adverse or qualified security assessment had been made against him, there was no reason, on security based grounds, for him to be concerned about his future employment prospects elsewhere with the Commonwealth.
Did ASIO seek to use 'privileged' information to facilitate the conviction of an individual in a criminal trial?
117. I received a complaint from an individual who belonged to an organisation whose activities were of interest to ASIO. He complained that ASIO had obtained information of his planned defence in a criminal trial and had passed that information to the Police who were involved in his prosecution. The complainant also alleged, amongst other things, that ASIO withheld from his trial admissible evidence which would have supported his alibi.
118. I conducted a full inquiry into these allegations and found that ASIO's actions had not involved a breach of legal professional privilege and had not jeopardised the right of the complainant to a fair trial. I found no evidence to support the second assertion.
Did ASIO arrange a 'sham' marriage between a person whom it resettled in Australia on behalf of a foreign intelligence service, and an unwitting Australian citizen?
119. In my last report I indicated that I was investigating a case in which a member of the public had complained, amongst other things, that ASIO had set her up in a sham marriage and otherwise improperly involved itself in her personal affairs.
120. This complaint attracted some media attention when the complainant appeared on a national television program in April 1996, to publicly air her concerns.
121. At the request of the Attorney-General, I undertook a full inquiry into the substance of this complaint. After conducting my investigation, I concluded that while ASIO did not in any way engineer or manipulate the meeting of the complainant and her husband, or their subsequent wedding, it had, through the actions of one of its staff members acted inappropriately in certain respects.
122. In my report to the Attorney-General, I identified the areas where I believed errors of judgement occurred which had an adverse impact on the complainant. I made certain recommendations to the Attorney-General. These were accepted and are in the course of implementation.
Did ASIO place an electronic listening device in the home of a named individual?
123. It is not uncommon for my Office to receive complaints from members of the public who believe that they are under some form of technical surveillance by ASIO.
124. As it is long standing Government policy to 'neither confirm or deny' that an individual has been, or is, of interest to any of its intelligence and security agencies, I am sometimes left in the difficult position of trying to provide reassurance in a vacuum.
125. The above complaint, is a case in point. The complainant wrote to my Office stating that he had found a listening device in his house (it had fallen from his ceiling). He had privately sought advice on who would use such a device and been told that it was "a government bug used by ASIO".
126. I conducted a preliminary inquiry into this complaint but because of the 'neither confirm or deny policy' could only speak in generalities rather than specifics.
127. In my response to the complaint, I wrote that ASIO is permitted to undertake some forms of surveillance but only on the specific authority of the Attorney-General, and only then in connection with activities which raise reasonable concerns about national security.
128. I added that my experience of ASIO has been that it is meticulous in confining its activities to those areas where it has a legitimate role and that it exercises considerable care not to exceed the bounds of its authority.
129. In the case in question I assured the complainant that ASIO had done nothing illegal or improper but if he remained concerned that someone had illegally placed a listening device in his house, he should pursue those concerns with his local Police, as law enforcement bodies also have the capacity to undertake electronic surveillance.
Did ASIO make an adverse security assessment of a named individual on the basis of his religion?
130. This complaint was referred to me by the Human Rights Commissioner, as I am empowered under section 8(1)(a)(v) of the IGIS Act to inquire into any "... act or practice of ASIO that is or may be inconsistent with or contrary to any human right, that constitutes or may constitute discrimination ...".
131. The complainant did not have a legal right of appeal to the Security Division of the Administrative Appeals Tribunal because of his particular citizenship/ residency status.
132. I examined all relevant papers and was satisfied that ASIO conducted its assessment in accordance with established procedures and that its actions were legal and proper. I found nothing to suggest that the adverse security assessment was founded on religious discrimination.
Did ASIO staff members treat a visitor to ASIO Central Office in a less than professional and courteous manner?
133. In April 1997, I received a letter and several phone calls from a member of the public who claimed she was treated in something less than a professional and courteous manner when she arrived unannounced at ASIO Headquarters.
134. Although the complainant was emotionally distraught, extremely difficult to understand, and appeared to be in need of medical assistance, I initiated a preliminary inquiry as I could not discount the possibility that the complainant's concerns might have been true.
135. I also decided to pursue this complaint with the Director-General believing that the response of an organisation to the more vulnerable members of society, can throw some light on its core values and general management philosophy.
136. I am pleased to report that upon investigation, I concluded that the duty officer who dealt with the complainant took all reasonable steps to offer assistance and accorded the complainant a good measure of courtesy and respect, in somewhat trying circumstances.
137. While cases of this kind are not uncommon, it served as a timely reminder that disadvantaged and vulnerable members of society have rights which need to be respected, and that they are entitled to be dealt with sensitively by official bodies.
Did ASIO lead a campaign of harassment against a named individual and her family?
138. In December 1996 I received a complaint from an individual who complained that ASIO had been responsible, in association with various Police services, of a systematic campaign of harassment.
139. In the course of a preliminary investigation into this complaint, I learnt that the complainant had a past association with ASIO, and I decided to initiate a full inquiry in order to fully assess the claims which had been made.
140. By early June 1997, I had concluded my inquiries and prepared a draft report setting out my findings. I have referred a copy of this draft report to the Director-General of Security, as I am required to do under the IGIS Act, as a precursor to reporting to the Attorney-General. This complaint remained open at the end of the reporting period.