IGIS Annual Report 1997-98

Role of the Inspector-General

1. The Office of the Inspector-General of Intelligence and Security (OIGIS) is a budget funded agency headed by a statutory appointee and staffed under the provisions of the Public Service Act 1922.

2. The position of Inspector-General of Intelligence and Security (IGIS) derives its authority from the Inspector-General of Intelligence and Security Act 1986.

3. The IGIS is appointed by the Governor-General on the recommendation of the Prime Minister. The Leader of the Opposition is required to be consulted by the Prime Minister, prior to any nomination being put forward. The IGIS is appointed for a fixed term of up to three years and is eligible to be reappointed for one further term of office.

4. The function of the IGIS is to help the Government of the day to oversee and review the activities of the following bodies:

5. The primary duty of the IGIS is to provide assurance to the Government, and through it, the wider community, that Australia's intelligence and security agencies:

6. It is also the job of the IGIS to:

7. The IGIS can undertake an inquiry into the activities of an agency in response to a complaint, on reference from a responsible Minister, or on his 'own motion'.

8. In conducting an inquiry, the IGIS can require the attendance of witnesses, take sworn evidence, copy and retain documents, and demand entry into an agency's premises. The IGIS can also conduct preliminary inquiries in order to decide whether or not to commence a full inquiry.

9. Inquiries are not conducted publicly, as most investigations are concerned with, or touch on, national security issues.

 

THE YEAR IN REVIEW


10. The work of the office during the 1997-98 reporting period was marked by a mixture of continuity and change.

11. As in past years, most effort was directed towards:

New Inspector-General

12. On 30 December 1997, the Government announced a number of changes at the Secretary/Chief Executive Officer level. Amongst these changes, it was announced that Mr Ron McLeod AM, would become the new Commonwealth Ombudsman, and that I would replace Mr McLeod as Inspector-General of Intelligence and Security, from 19 February 1998.

13. I would like to take this opportunity to pay tribute to Mr McLeod and the splendid job he did in his nearly three years as Inspector-General.



Complaints

14. The office received 34 complaints during the reporting period. Most of these were from members of the public, several were lodged by current/former employees, and one was received from a current/former human source (ie. agent). No matters were referred to the Inspector-General by a minister during the reporting period.

15. Of the 34 complaints received, preliminary inquiries were pursued in 18 instances. This compares with 18 preliminary inquiries conducted in the 1996-97 reporting period, and an average of 21 preliminary inquiries per annum, since the inception of the office in February 1987.

16. Four cases were carried over into the 1997-98 reporting period, and as at 30 June 1998, only one case (of fairly recent origin), remained open. Detailed comments on the performance of the office in handling complaints/inquiries appear in a later chapter of this report.


Agency Monitoring

17. The relatively small case load means that I and my staff are able to devote our energies to resolving complaints as quickly and effectively as possible, and to devote a significant proportion of our time to monitoring activities.

18. Justice Gordon Samuels AC QC and Mr Michael Codd AC touched on the issue of monitoring in the course of their Commission of Inquiry into ASIS, in 1994-95. The Commissioners were firmly of the view that the Inspector-General should have a significant monitoring role and recommended that this activity should in future be accorded a higher priority by the office.

19. To this end my predecessor wrote to each of the collection agencies in February 1997, setting out those activities he intended to monitor, and providing an indicative guide to the frequency with which he expected his monitoring visits to occur. Mr McLeod's suggested work program and timetable was agreed to by each agency head.

20. Since taking over as Inspector-General, I have continued to follow Mr McLeod's work plan and schedule. However, as I become more familiar with the work of the collection agencies, I may wish to revisit the range of activities reviewed and the frequency of visits.



FEMM Inquiry

21. A major activity undertaken by Mr McLeod during the reporting period arose when he was asked by the Secretary to the Treasury, Mr Ted Evans, to inquire into and report on the circumstances in which confidential briefing prepared for the Australian delegation to the South Pacific Forum Economic Ministers Meeting (FEMM), in Cairns in July 1997, came to be published in the Australian media.

22. Mr McLeod undertook this inquiry not as IGIS, but as an experienced and respected public servant. He presented Mr Evans with his final report within two weeks of being tasked. The costs were met by the Treasury.



International Conference of Inspectors-General

23. Another major activity undertaken by Mr McLeod during the reporting period was his planning for, and hosting of, the first international meeting of Inspectors-General of Intelligence and Security (and like office holders).

24. This conference was held in Canberra, in November 1997, to mark the 10th anniversary of the creation of OIGIS, and to provide a forum for the exchange of information and ideas, to discuss trends and to compare models for effective review and oversight.

25. Office holders responsible for reviewing the activities of all or parts of the intelligence and security community of their respective countries were invited from Australia, Canada, New Zealand, the United Kingdom, the United States and South Africa.

26. The Attorney-General, the Hon. Daryl Williams AM QC MP, opened the conference; Senator David MacGibbon and his colleagues on the Parliamentary Joint Committee on ASIO hosted one of the conference sessions; and the heads of the Australian intelligence and security agencies gave presentations and responded to questions.

27. His Excellency, the Hon. Sir William Deane AC KBE and Lady Deane, hosted a reception at Government House for the conference delegates.

28. The conference gave participants the opportunity to survey the broad array of options and alternatives apparent in the charters and organisational arrangements of the Inspectors-General represented at the conference. By way of comparison, the Australian IGIS, the New Zealand IGIS, and the Inspector General of the Canadian Secret Intelligence Service, all have legislated mandates. Others represented at the conference are independent of, or embedded in, the agencies they oversee, to varying degrees. The mandates of Inspectors General in the United States run the gamut of these alternatives.

29. The conference also discussed the merits of various options for parliamentary review and oversight mechanisms. It was evident that while there are commonalities in how the countries represented achieve their goals, there are also significant differences in methods and approach.

30. Notwithstanding this, there was consensus that intelligence and security agencies benefit from and generally appreciate regular review and oversight, whatever form it takes, as it causes them to assess and, if necessary, modify the way they conduct their business.

31. Although I was not present at the conference, the extremely positive feedback I have received about it convinces me that there is worth in maintaining those links which were established at the conference. I look forward to the next meeting of Inspectors-General which is scheduled to be held in Ottawa, Canada, in June 1999.


Whistleblower Protection

32. In December 1997, Mr McLeod met with the Deputy Public Service Commissioner, Mr Peter Kennedy, to discuss proposed changes to the Public Service Act and the Public Service Regulations, setting out the procedures to be followed by whistleblowers who are also public servants.

33. At this meeting it was agreed that the IGIS had primary responsibility for grievances concerning DSD, DIO and ONA, where the issues concerned have some security sensitivity and do not relate to conditions of employment.

34. Subsequently, the Public Service and Merit Protection Commission has issued guidance on whistleblower protection, which makes reference to the role and functions of this office.



Meetings

35. In the course of the reporting period Mr McLeod met with the Attorney-General, the Foreign Minister and the Minister for Defence, to provide an overview of his activities.

36. Mr McLeod also met with the Privacy Commissioner, Ms Moira Scollay, the Director of the Australian Transaction Reports and Analysis Centre, Ms Elizabeth Montano, the Chairperson of the National Crime Authority, Mr John Broome, and a number of visiting officials with an interest in the work of the office.

37. As soon as possible after taking office, I engaged in a series of briefing and greeting visits to each of the agencies the office oversees. I am grateful to each agency for the time and effort they spent in introducing me to their work and many of their staff.



Legislation Proposals

38. I have made three recommendations for minor amendments to the Inspector-General of Intelligence and Security Act 1986.

39. The first is the inclusion of explicit legislative recognition that the Inspector-General is expected to monitor the activities of the intelligence and security agencies.

40. Every Inspector-General since the inception of the office has undertaken monitoring activities of some kind, but the legislation as it stands does not make separate provision for this role.

41. The second proposed amendment is to section 34 of the Act, to permit me to pass information about individual complainants to relevant authorities, if there is an actual or perceived threat to the safety of any individual.

42. In such cases, it has been the practice of this office to seek expert medical guidance, or to refer the matter to the relevant police service. While in my view there is nothing improper in such actions, I have suggested that the Act be amended to remove any doubt about the legality of this practice.

43. Thirdly, I have recommended streamlining the number of steps which are involved in clearing reports following a formal inquiry. The Act currently requires that at the completion of an inquiry into a complaint, the IGIS must provide a written response to the complainant. This response cannot be released until the relevant minister has agreed that it will not prejudice security, the defence of Australia, or Australia's international relations. This process typically involves correspondence from the IGIS to the minister, advice from the minister's department and/or the relevant agency, and correspondence from the minister back to the IGIS, before the complainant can receive a response. All these steps may take several weeks or even months.

44. I am proposing that the relevant agency head clear proposed responses on security and related grounds. If this is agreed, I would provide the minister with a copy of each draft response at the time I forward it to the agency head.

45. My office is consulted as a matter of course on any significant proposed changes to the legislation, rules and guidelines, applying to the intelligence and security agencies. During the reporting period, we contributed to reviews relevant to the collection and reporting activities of DSD and ASIS, and provided comment on various drafts of a bill to amend the Australian Security Intelligence Organization Act 1979.

46. In April 1998, the Parliamentary Joint Committee on the NCA tabled its Third Evaluation of the National Crime Authority, recommending amongst other things that:

47. At the time of writing, the Government had not yet determined its position in response to the Committee's report and recommendations. I have provided comments to the officials preparing a proposed response.



Administrative Matters

48. During the last few weeks of the financial year my staff negotiated individual Australian Workplace Agreements with me. We lodged them with the Employment Advocate on 24 June 1998.

49. Finally, I would like to take this opportunity to express my appreciation of the support provided to my office during the past 12 months by Mr Max Moore-Wilton, the Secretary to the Department of the Prime Minister and Cabinet, and his staff.

50. My office is physically located in the premises occupied by the department, and in consequence we rely heavily on it for support for a range of services. We could not operate to full effectiveness without the assistance provided to us by the Personnel Management & Development, Workplace Relations, Finance and Information Support and Telephone Services sections.

51. In conclusion, the last 12 months has been a very active period for the office and there is every indication that the next 12 months will be no different. I would like to thank my staff for their efforts over the last year, and look forward to the challenges of the year ahead.