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IGIS Annual Report 1999-00 |
IGIS Annual Report 1999-00
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION
COMPLAINTS AND INQUIRIES
118. Fifteen complaints about ASIO were dealt with administratively, without proceeding as far as a preliminary inquiry.
119. Three outstanding matters were carried over from the 1998-1999 reporting period. In relation to the complaint which also involved DSD (see paragraphs 105-107 and 144-146 of last year's report), as mentioned at paragraph 24 above I found no evidence of any improper or illegal activity by ASIO or DSD. The other carried?over matters are discussed at paragraphs 134-141 and 153-167 below.
120. The office also conducted preliminary inquiries into nine new matters. A preliminary inquiry allows the Inspector-General to conduct a quick review of a complaint, to determine whether the issues raised fall within the jurisdiction of the office and to address complaints where the use of formal powers is considered unnecessary. A full inquiry allows the Inspector-General to use the complete range of statutory powers in the IGIS Act.
121. In conducting inquiries I sought briefings on a range of subjects, as well as access to files and to individuals. The Director-General of Security met all such requests.
122. Some of the complaints dealt with during the reporting period are summarised below.
Conduct of security assessment interviews
123. In April 2000, an applicant for a position in a public service department complained about ASIO's conduct during his security assessment interviews. He considered that the attitude of the interviewers was patronising and combative. He was also concerned that the clearance process was taking too long and that he had already provided enough information to ASIO.
124. The applicant was a naturalised Australian who had held senior positions in the government of his country of origin. A preliminary inquiry revealed that ASIO was in the process of finalising the security assessment and did not intend to interview the applicant again. His unusual career background had, however, complicated the assessment process and led ASIO to make more detailed and searching inquiries than for the normal run of cases.
125. In all the circumstances I concluded that it was reasonable for ASIO to take so much time and trouble over the assessment. I also concluded, after reviewing the tapes and transcripts of the relevant interviews, that the ASIO interviewers conducted themselves in a thoroughly professional manner.
Correcting the record
126. In the 1950s a young man (later a complainant to the Inspector-General) associated with students whose activities were of interest to ASIO because of their possible connection with communism.
127. After graduation he unsuccessfully applied for employment with a Commonwealth government institution for which he considered himself highly qualified. Either then or later he formed the belief that ASIO had been responsible for his rejection and for many years has blamed ASIO for his lack of career success.
128. He wrote to me in October 1999, dissatisfied with a former Inspector-General's conclusion that ASIO had not acted improperly or illegally. After reviewing the case I agreed with that conclusion but after careful consideration of all the circumstances, including that there was material the complainant had been unable to obtain from ASIO through Archives Act applications, decided to pursue the matter further.
129. The complainant, when still a student, came to ASIO's attention as a member of a youth delegation to an international peace conference. The ASIO records also revealed, however, that he denounced the exercise as a communist plot and left the delegation before it reached the conference.
130. ASIO's consideration of the Archives Act applications had caused it to make deletions to the material released to the complainant, basically to protect its sources of information from identification. The deleted material was not adverse to the complainant but it seemed possible that the partial release of information had led him to form erroneous conclusions.
131. We therefore suggested to ASIO that it release further material to him and, where that was not possible without the risk of identifying sources, that it agree to my describing the nature of the deleted material to him in some detail.
132. ASIO agreed with this approach and I wrote to the complainant providing him with additional information and describing what was in the material that remained exempted. I also informed him that there were no records suggesting any approach by ASIO to anyone in relation to his employment. Furthermore, since the only material ASIO held on him was favourable to him in terms of its preoccupations at the time, it seemed highly unlikely that it would have made such an approach.
133. ASIO also offered him the opportunity to put his own account of events on the front of ASIO's file holdings on him. While the complainant does not seem to have relinquished his long-held suspicion, he has acknowledged that there does not appear to be anything further the office can do on this matter.
Did ASIO break undertakings of support to a former source?
134. In January 1999 the Attorney-General referred to me for inquiry a complaint from a former source for ASIO.
135. The complainant claimed that ASIO promised to arrange permanent residency for him in a foreign country. After he arrived there with his family, however, the promise was not kept and he had to sell up and return to Australia, incurring substantial financial losses in the process.
136. He wanted ASIO to compensate him for these losses, to provide a house for him in Australia and help him find employment. He believed that ASIO had given him an undertaking at the outset of their relationship with him, that he would never have to worry about his financial or physical security - that he would be looked after for life.
137. There was no doubt that ASIO had received valuable assistance from the complainant and it in turn had provided him with considerable financial and other assistance over a period of some years.
138. I could find no evidence, however, that there was ever any agreement for ASIO to obtain residency for the complainant in another country. Indeed, had such a promise been made it could not have been honoured since decisions about residence are for the government of the country concerned. While ASIO could, and did, make inquiries on the complainant's behalf, the ultimate decision was not within its gift.
139. The inquiry found, in fact, that ASIO several times cautioned the complainant to wait until his residency application had been approved before leaving Australia but he decided to leave anyway. After he arrived it made various efforts to assist him but ultimately without success. It could not be held responsible for the losses he incurred.
140. There was also no evidence to support the suggestion that ASIO undertook that the complainant would be looked after for life. While, as noted above, it has made considerable efforts on his behalf over the years it has always taken the view, with which he has agreed, that he should be able to stand on his own feet financially. ASIO will alert him, and provide assistance, if it becomes aware of a threat to his safety but has, in my opinion, no further obligation for his welfare in other respects.
141. I reported accordingly to the complainant and the Attorney-General. The complainant indicated vigorous disagreement with my conclusions.
Did ASIO abuse its powers by pursuing an individual for apparently personal motives?
142. An anonymous correspondent, claiming to work with ASIO, wrote to me alleging that 'certain elements' within ASIO abused its powers by pursuing an individual for apparently personal motives, without reasonable grounds.
143. ASIO examined the letter and believe that the letter was not written by an ASIO officer on the basis of the terminology used and lack of knowledge of the Organisation. I agreed with that assessment.
144. It seems reasonable to assume that if the author was not an ASIO officer then he or she was the person allegedly being pursued, who in fact was of no interest to ASIO. Had this person complained in the normal way we would have been quite prepared to deal with the complaint.
Application for ASIO employment - internal review
145. In September 1999 I received a complaint from an unsuccessful applicant for a temporary position within ASIO. The complainant raised a number of concerns about the completeness, appropriateness, security and accuracy of the selection process.
146. Although not expecting the complaint to result in a different decision, the complainant was concerned that the failed application might have implications for future attempts to obtain employment, particularly if there were ongoing reservations on security grounds.
147. I brought the complaint to the attention of the Director-General of Security, who immediately wrote asking if I could delay my inquiries as he had arranged for an internal review of the decision. This seemed a reasonable approach given that the review would be conducted quickly, and by someone who had no previous involvement with the case.
148. The internal review found that the handling of the application had been deficient and that the decision not to employ the applicant did not stand up to scrutiny.
149. One of the review's recommendations was to make the complainant an offer of employment with the Organisation. The Director-General made this offer, which the complainant accepted.
150. The deficiencies in the case were in large part attributable to the work pressures associated with the lead up to the Olympic Games. ASIO acted promptly and effectively to correct them and in these circumstance I decided not to proceed with an inquiry.
Was ASIO involved in delaying delivery of luggage from a passenger flight?
151. In December 1999 I received a complaint concerning the possible involvement of ASIO in the delayed delivery of the complainant's luggage after his flight on a domestic airline.
152. The complainant had noticed several odd occurrences during his travel, culminating in his baggage not being on the aeroplane carrying him when it arrived at its destination, but being delivered on a later flight. Inquiries with ASIO satisfied me that there was no evidence of illegality or impropriety of any kind on the part of ASIO. I informed the complainant that I believed that there was no reason for him to have any continuing concerns about ASIO's possible involvement.
Defective security assessment process - compensation
153. Last year's report mentioned (at paragraphs 92-95) an inquiry into allegations that ASIO's security assessment of an applicant for a protection visa was defective.
154. But for the adverse assessment, the applicant qualified for a protection visa. At the time of the complaint to the Inspector-General he had been in detention for some considerable time.
155. When lodging the complaint the applicant's legal representative also made representations to the Director-General of Security, who instigated an internal review, as a result of which ASIO withdrew the original assessment. The applicant received the visa and was released from detention in May 1999, some 2 years after being taken into detention and 18 months after the initial assessment.
156. Following a request from the applicant's legal representative I instituted a formal inquiry into the matter.
157. This was a relatively simple inquiry because the ASIO internal review was rigorous and critical. I provided the Director-General with a draft report in August 1999. In it I said that, while there were some respects in which one might differ from the comments in the report of the internal review, these were matters of degree and emphasis rather than substance.
158. The ASIO review found that there were substantive defects in the assessment process. It concluded that there was no evidence that the applicant would in fact be a risk to national security.
159. The principal conclusions of the review, paraphrased, were:
- ASIO relied on adverse reports from an overseas security service which were internally inconsistent;
- ASIO took no action to corroborate the allegations in the reports, contrary to internal guidelines;
- The reports should have been viewed with scepticism because ASIO knew that the country concerned has been assessed as having a poor human rights record, particularly in relation to the ethnic group to which the applicant belonged;
- ASIO did not have reasonable grounds to believe the applicant had been untruthful in his statements supporting his application for a protection visa;
- ASIO failed to seek from the applicant an explanation of the adverse imputations in the reports from the overseas security service before it issued the assessment. Had it done so it is likely that he would have been able to provide satisfactory responses;
- In cases, like the applicant's, where a person does not have a right to have an assessment reviewed by a court or tribunal, ASIO has as much responsibility to accord natural justice as it does when there is a right of review.
160. My draft report said that while I would endorse all these points, they did not deal explicitly with one potential area of contention, i.e. whether it was appropriate for ASIO to seek information from the overseas security service. I concluded that it is entirely possible that a cooperating service, even one from a country with a dubious human rights record, could supply information relevant to a security assessment of a refugee claimant, and ASIO should be able to seek information from such a source.
161. What is important, however, is that the information be capable of corroboration, as ASIO's internal guidelines require. In this case ASIO accepted the foreign service's version of events without corroboration or serious question.
162. I concluded that had the assessment been conducted properly it is reasonable to suppose that the applicant would have received a protection visa towards the end of 1997 rather than in May 1999.
163. It is important to note that when ASIO received material suggesting that it review its position there was prompt and effective remedial action from the Director-General down. Furthermore, after resolving this case, the Director-General directed that:
- the guidelines for such cases be reaffirmed;
- further training be conducted to raise awareness and sensitivity among decision-makers;
- existing adverse assessments be reviewed; and
- in future any applicant in respect of whom an adverse assessment is proposed should be interviewed prior to the issue of the assessment.
164. These reactions were appropriate and, I believe, demonstrate real commitment on the part of the Director-General and senior management to maintaining high professional standards within ASIO.
165. In the draft report I indicated my intention to recommend compensation to the applicant in respect of the period he spent in detention following the adverse assessment.
166. The Director-General informed me that he considered the report fair and reasonable. In November 1999, following consultations with ASIO and the Australian Government Solicitor about possible compensation mechanisms, I wrote to ASIO proposing a course of action. In May 2000 the Director-General put forward an alternative proposal, which I was happy to accept. In June I wrote to the applicant's legal representative informing him of the results of the inquiry and inviting a claim from his client, subject to certain conditions.
167. At the close of the reporting period I was awaiting his response.