Proceedings of the
First International Meeting of
Inspectors-General of Intelligence and Security
Canberra, Australia
17-18 November 1997
Conference Background
In December 1996, the Australian Inspector-General of Intelligence and Security (IGIS), Mr Ron McLeod AM, raised with a number of international counterparts the idea of hosting a conference of fellow Inspectors-General and like office holders.
The primary motivation for this initiative was to provide an opportunity for office holders from traditionally aligned countries to discuss international trends, and exchange ideas and compare models of democratic accountability in the field of intelligence oversight.
Such a conference was also seen as an appropriate means of recognising the 10th anniversary of the creation of the Australian Office of Inspector-General of Intelligence and Security, which came into being on 1 February 1987.
Following support from the persons approached, arrangements were made for the conference to be held in Canberra, Australia, in November 1997. Invitations were also extended to several delegates from South Africa in the knowledge that it was considering permanent intelligence oversight mechanisms in that country.
Conference Opening
On the morning of Monday, 17 November 1997, 22 delegates and several observers gathered in Australia's Parliament House. Countries represented at the conference were, Canada, New Zealand, South Africa, United Kingdom, United States, and Australia.
The Hon. Daryl Williams AM, QC, MP, Attorney-General of Australia opened the conference.
Mr Williams remarked upon the trend in most western countries in the last three decades towards "greater openness in government" and "enhanced public accountability".
Mr Williams observed that western security and intelligence agencies have not escaped being caught up in the push towards greater accountability and transparency in government, and in consequence there has been widespread support for the creation of independent oversight or 'watchdog' offices.
Mr Williams commended the conference as an opportunity for delegates to reassess their roles and functions and to assist them to identify international 'best practice'.
Formalities and Apologies
The consensus of delegates was that Mr McLeod, as convenor of the conference, should be invited to chair the discussions. Mr McLeod accepted the invitation.
The Chair reminded delegates that it had been agreed that operationally sensitive/classified matters would not be discussed in the conference.
The Chair thanked all the participants for their support of the conference through their attendance. He extended a warm welcome to the South African delegation. The Chair explained that South Africa was in a transitional phase in the development of their national institutions, and he felt that the conference was a unique opportunity for the more mature democracies to assist in this process.
Apologies from the following persons, each of whom had expressed a keen interest in attending, were noted:
The Rt Hon Tom King Chair of the British Parliamentary Intelligence and Security Committee
The Hon. Claude Bisson Communications Security Establishment Commissioner, Canada
Mr Walter Jajko Assistant to the Secretary of Defense (Intelligence Oversight), United States
Mr Gene Robey Inspector General, National Reconnaissance Office, United States
Mr Brian McAndrew Assistant Inspector General (Policy & Oversight), National Security Agency, United States.
Representatives from each of the organisations listed above, nonetheless attended the conference.
Apologies were also received on behalf of the following persons:
Lord Nolan UK Communications Interceptions Commissioner
Lord Justice Stuart-Smith UK Commissioner for the Security and Intelligence Services
Country/Organisation Briefings
Every organisation represented at the conference was invited to briefly outline their role and function, to describe how they go about their business, and to raise current issues for discussion.
These country by country reviews were presented at various times over the two days of the conference but are recorded here, seriatim.
Australia
Mr Philip Moss commenced proceedings with a brief historical overview of the creation of the office of the Inspector-General of Intelligence and Security.
Mr Moss said that the idea of an Inspector-General was first mooted by Royal Commissioner, Justice Robert Hope, in 1984. Initially, it was thought that this office should be limited to overseeing the activities of Australia's domestic security organisation, ASIO.
Justice Hope developed this idea and expanded the scope of the office to cover the activities of all five of Australia's intelligence and security agencies. The Government of the day embraced this recommendation and an Act of Parliament to this effect was passed in late 1986, and the Office of Inspector-General of Intelligence and Security came into existence on 1 February 1987.
Mr Moss joined the Office in its first month and worked with the organisation as Assistant Inspector-General for most of its first 10 years of existence.
Mr Moss recalled that the birth of the IGIS was not easy. In Mr Moss's view the Australian intelligence community had not adequately responded to changing societal mores, and viewed calls by public interest advocacy groups for greater openness and transparency with considerable suspicion. It was not surprising therefore, that the first IGIS was confronted with, at best, professional coolness, and at worst, outright hostility.
Mr Moss said that while the effect of 'personalities' might have had something to do with this, it was always going to be difficult to change the culture of the agencies and convince them of the benefit of a formal oversight arrangement.
However, with the passage of time the Australian Intelligence Community has come to appreciate the value of the IGIS.
While Mr Moss characterised current relations as very being cordial, he said that the nature of the function demanded that the IGIS could not and should not become too close to the bodies it oversees.
Questions from the floor prompted further discussion about the issue of independence. Discussion also turned to the employment of generalist public servants rather than intelligence specialists within the IGIS office, and the competing interests of the legislative and executive branches of government with regard to intelligence oversight issues.
Mr Mike McNamara (Inspector-General, Australian Dept of Defence) explained that his body was set up in 1987 with two branches, Management Audit and General Investigations and Reviews.
In recent months, he has assumed responsibility for the Defence Security Branch, and the Defence Department's market testing/outsourcing function. Mr McNamara characterised his 170 staff as being "ratcatchers, ideologues and bean counters".
Mr McNamara said that while his organisation shared some features with the IGIS, it was a different creature in other respects. Mr McNamara said that while his organisation was embedded in the Defence Department, and he reported to the Secretary of the Department and the Chief of the Defence Forces, the IG also stood apart from the normal line organization in Defence.
Mr McNamara indicated that the notion of separateness and independence, while not enshrined in statute, was integral to his work in the fields of management audit, ethics/probity and whistleblowing.
Mr McNamara was questioned about parliamentary oversight of his activities. He responded that he was directly responsible to his Minister(s), and this provided a measure of parliamentary scrutiny, but because many of his activities are concerned with uncovering criminal activities and preparing prosecution briefs, it was inappropriate for these matters to be openly canvassed by parliamentary committees.
It was noted that watchdog bodies set up by statute usually had statutory protections against being obliged to make disclosures to parliamentary committees about classified matters or about individual cases, whereas administrative bodies like Mr McNamara's, had no such protection. However, in practice, this had not been a difficulty.
Messrs Beith and Rogers (UK) both intimated that from their perspective it seemed that a Committee of Parliamentarians, rather than a Parliamentary Committee might be more sensitive to such concerns.
Mr Fred Hitz (USA) asked whether it was possible for Parliament to play 'hard ball', and reduce appropriations as a means of pressuring the Inspector-General or the IGIS to be more compliant. Mr McNamara said that his budget appeared as a single line item in the broader Defence budget and would be difficult to separate out for 'special treatment'. Mr McLeod indicated that his budget was more visible but he considered that it would hardly be worth the government's while to take punitive action against his office as its budget was already quite small.
United States of America
Mr Ethan Bauman (Inspector General, National Security Agency) informed the conference that there is no single Inspector General with coverage over the US Intelligence Community, rather there are a series of agency based Inspectors General which are embedded in the structure of the organisation in which they have oversight responsibilities.
As IG NSA, Mr Bauman said that he headed 45 staff. Mr Bauman indicated that he did not have a statutory charter, but operated under the authority of the Director NSA.
This revelation prompted some questions from the floor about the independence of oversight bodies which are embedded in the bodies they oversee, and are reliant on the authority of the head of agency for their authority and continued existence.
Mr Bauman recognised this as a practical constraint, and acknowledged that he could not act contrary to a direction made by the Director NSA. Having said that, Mr Bauman said that his relations with the Director NSA were cordial and professional and so far as he was aware few problems arose where his autonomy or jurisdiction was questioned. He noted that when any matter arises at NSA which cannot be impartially considered by the internal NSA IG, the US Defense Department has a separate IG function, independent of NSA or its Director, which has redundant jurisdiction over the Agency.
Mr Bauman advised that the NSA was a large and far flung organisation and that resource constraints meant that not all of its activities could be continually monitored. This being so, a planned or strategic approach is required to direct the work of the Inspector General's Office.
Mr Bauman said that the primary focus of his work was to ensure that the NSA adhered to its charter requirements, that the US Nationality Rules were being honoured in the NSA's collection and reporting activities, and that all NSA offices were visited/inspected periodically.
A second string to the Inspector General's activities is to investigate allegations of waste and abuse of government resources, to examine allegations of procurement fraud, and to deal with issues of individual accountability.
Ms Susan Duclos (Associate Inspector General, National Reconnaissance Office) informed the conference that the IG NRO ran a very small office and therefore, can only hope to scratch the surface of the NRO's activities. The IG NRO is seeking to more clearly define his role and function but is being confronted with a degree of 'coolness'. She explained that the NRO was the most recent US Intelligence Agency to 'come out of the closet' and its culture had not yet fully embraced the level of accountability which other agencies had become more used to.
Ms Duclos indicated that while the need to gain acceptance of the independence of the IG was a very important issue, her office was receiving strong support from other Inspectors General in the intelligence community, and was currently being subjected to peer review/guidance from the Inspector General of the CIA.
The conference Chair observed that history has shown that intelligence agencies are very wary of having an Inspector General imposed upon them, and that it often took a considerable period of time (or a crisis of some sort), before the value of 'independent' oversight was fully appreciated by closed organisations. There were murmurings of support for this proposition.
Mr Fred Hitz (Inspector General, Central Intelligence Agency) said that the United States had spawned a number of Inspectors General, and one of the first had been an Inspector General for the CIA, in the early 1950's.
Despite being one of the first federal agencies to appoint an Inspector General, Mr Hitz intimated that some of his predecessors lacked the wherewithal to be effective in their job because their powers were more limited than his.
Mr Hitz said that the need for a stronger and more powerful internal oversight mechanism was recognised by a Congressional Committee investigating the Iran-Contra affair. That committee concluded that in order for mistakes of the past to be averted, the IG CIA should be more independent and be better resourced.
Mr Hitz said that in his time in the position, the IG CIA had a very strong investigatory focus, and this was born out by major reports into alleged atrocities in Guatemala, counter-intelligence failures in the Ames case, issues associated with the so-called 'Gulf-War illness', and allegations made (and subsequently withdrawn) by the San Jose Mercury that the CIA was responsible for the importation and sale of crack cocaine into disadvantaged neighbourhoods in order to finance covert operations.
Mr Hitz said that to his mind it was absolutely crucial that the CIA, NSA, NRO and DIA IG's should be as independent as possible, and adequately resourced. Inspectors General from these and several other bodies offer each other mutual support, and meet every six months in an Inspectors General Forum. They had been encouraged to do this as an alternative to there being an over-arching IG oversighting the intelligence and security community as a whole.
Mr Hitz offered his opinion that the Inspector General function is now fully entrenched, and in all likelihood there would be more, not fewer, Inspectors General in the future.
Questions from the floor returned to the subject of the independence of 'embedded' offices. Mr Hitz said this was a legitimate concern, but such concerns could be countered by producing reports which are comprehensive and incisive, and which demand a response from the agency. Mr Hitz said he adopted the approach of smothering potential criticisms with detail.
On the relationship of the IG with the Director of Central Intelligence and other higher executives, Mr Hitz said that with the passage of time (and several scandals), senior management had come to the view that it was better for the CIA to do its own dirty laundry rather than have it exposed by others.
Mr Hitz was questioned as to whether the CIA had moved on from its 'Cold War' preoccupations. Mr Hitz offered the view that it had, but its new approaches to doing business needed to be bedded down, and more needed to be done.
Mr Laurie Greig (NZ) asked whether the CIA learnt from its mistakes, as revealed by the IG. Mr Hitz was firm in his view that, "it wouldn't go through the agony" of IG reviews if it didn't.
Ms Mapisa-Nqakula (South Africa) asked how public confidence in the CIA could be measured. Mr Hitz said that public confidence in the agency could be measured by continued support by the Executive, which is elected by public mandate.
Ms Gauthier (Canada) inquired how, if at all, the public was informed of the work of the IG CIA. Mr Hitz said that there was not much public discourse on his work, but that he was trying to make more of his reports public. He saw the Internet as a good means of dealing directly with the public.
Mr Frank Howatt (Defense Intelligence Agency) spoke to a paper he had prepared which sets out the background to the establishment of his office. Mr Howatt commended his paper as a good guide for anybody who is 'starting from scratch'. (This paper was circulated to delegates at the conference.)
Mr Howatt explained that the US Department of Defense has an Inspector General, whose position was created by statute. The Inspector General of Defense reports to the Secretary of Defense, and has jurisdiction over all of the intelligence elements of the Department of Defense, including the Defense Intelligence Agency.
Mr Howatt observed that while there might appear on the surface to be some overlap between the roles and functions of the Inspector General of Defense, and the administratively created IG's within the Defense portfolio, he thought that in practice, the system worked pretty well.
Mr Howatt indicated that the Inspector General of Defense focussed primarily on identifying fraud, waste and abuse, while the agency specific IG's in Defense have a greater focus on monitoring compliance with laws and rules which relate directly to their missions.
Mr Howatt expressed the view that IG's cannot be effective in their duties unless the independence of their office is guaranteed. Non-statutory IG's are likely to be a waste of resources and effort if they do not enjoy the confidence of their agency head, from whom their independence and authority is derived.
Mr George B Lotz II (Deputy Assistant to the Secretary of Defense - Intelligence Oversight) said that his organisation had both a broad and narrow focus. The broad focus centers on his office acting as the "eyes and ears" of the Secretary of Defense on intelligence matters. His office, during the course of its intelligence oversight inspections, highlights problem areas which need high level Departmental attention, and ensures that the appropriate agencies or offices work toward their resolution.
The more narrow, but very important and primary, mission is to act as the safeguard for the constitutional rights of US persons. This particular mission stems from the abuses of US citizens' constitutional rights during the US Civil Rights struggle of the 1960s and the anti-Vietnam War protests of the early 1970s.
Mr Lotz explained, in some detail, and in response to questions from members of the South African delegation, some of the history of these American abuses and how the US Congress and President worked together to correct the situation through congressional hearings and promulgation of a Presidential Executive Order, the successor of which still exists today.
Compliance with the intelligence oversight function in the Department of Defense is enforced in every intelligence entity (some 1200 in all) at every level in the Department. To perform these broad and narrow charters, Mr Lotz's office has only a staff of 12 persons - - - a formidable task.
As an example of the work performed by his office, Mr Lotz said that his office is presently directing a Departmental-wide review, supporting the studies of Gulf War Illnesses, of all intelligence and operational information available within the Defense Department regarding Iraqi chemical warfare sites and how that information was disseminated and used during the Gulf War. This investigation is being conducted for the Deputy Secretary of Defense. Mr Lotz said that a private contractor, the MITRE Corporation, is reviewing some 55 million documents and analysing the pertinent ones in support of his investigation.
Mr Lotz also stressed the need for independence and objectivity, if the work of his office was to be worthwhile. This was a consistent theme in every one of the American presentations.
South Africa
Ms Nosiviwe Mapisa-Nqakula MP (Chair of the Joint Standing Committee on Intelligence) thanked the chair for the invitation for South Africa to be represented at the conference. Ms Mapisa-Nqakula said that her committee was most keen to attend because the South African Government was presently weighing up which model to chose/adapt for intelligence oversight purposes.
Ms Mapisa-Nqakula said that her committee comprised 17 members, drawn from a wide range of parties represented in the South African Parliament, and that all members of the committee were selected by the President.
Ms Mapisa-Nqakula said that she was particularly keen to explore the role of Parliamentary oversight bodies, and how they interacted with Inspectors-General of Intelligence and Security.
Ms Mapisa-Nqakula informed the conference that there are significant changes occurring to South Africa's intelligence and security agencies, with up to six such bodies being amalgamated into one agency. Given South Africa's recent past, there is much suspicion of the activities and motivations of many persons who are still employed in the intelligence and security agencies. Ms Mapisa-Nqakula indicated that she sees her committee and the ultimate appointment of an Inspector-General, to be positive forces to facilitate change.
It was conceded that the process of transformation is difficult and will be arduous. It is therefore important, in Ms Mapisa-Nqakula's opinion, that the relationship between Parliament, oversight bodies, and the intelligence agencies be resolved quickly.
Ms Mapisa-Nqakula said that her committee met every week for approximately three hours, and that they had a busy agenda.
Mr Linda Mti (Coordinator for Intelligence, Convenor of the National Intelligence Coordinating Committee) spoke of his role in coordinating the functions of South Africa's intelligence agencies. Mr Mti said that he reports to the Cabinet Committee on Security every two weeks, and can report directly to the President should the need arise.
Mr Mti observed that it is no easy task to deal with the legacy of the apartheid era, and some of the intelligence agencies appear resistant to change. It is hoped that the amalgamation of the various agencies will provide the catalyst for a significant culture change. Mr Mti is hopeful that the appointment of an Inspector-General, however modelled, will also contribute to this process.
Canada
Ms Paule Gauthier (Chair, Security Intelligence Review Committee) advised the conference that she is one of five Privy Councillors, who are each appointed for five year terms, to serve as members of Security Intelligence Review Committee (SIRC). Members of the SIRC serve in a part time capacity and are eligible for reappointment.
Ms Gauthier said that appointments to the SIRC tried to reflect the political balance in the Canadian House of Commons, but appointees were expected to act in a bi-partisan/non-party political manner which was consensus driven.
The SIRC is supported by an office of 14 staff who act upon the strategic direction set by the SIRC. The primary focus of the SIRC is on the activities of the Canadian Security Intelligence Service (CSIS). CSIS is also subjected to review by the Inspector General of CSIS.
Ms Gauthier explained that the SIRC and IG CSIS had complementary rather than over-lapping roles. The major difference between the two bodies is one of focus. SIRC reports to the legislative branch of government, while the IG CSIS acts as the eyes and ears of the executive. The interests of these arms of government are not always identical.
Ms Gauthier said that the system of intelligence oversight in Canada works well, but requires fine tuning from time to time. Ms Gauthier characterised the relationship between SIRC and CSIS as being professional, and as still evolving.
Ms Gauthier said that her committee sought to encourage CSIS to display more openness with the public on intelligence issues. It is Ms Gauthier's firm belief that a well informed public is an asset for CSIS.
Ms Gauthier was questioned as to how SIRC chooses issues which require its attention. Ms Gauthier responded that much of the work of her committee was complaints driven, with the majority of complaints it dealt with coming from members of the public, and several from whistleblowers within CSIS.
Mr David Peel (Inspector General of the Canadian Security Intelligence Service) observed that the Canadian model was somewhat different from the Australian experience of having one IG covering five agencies.
In Canada, SIRC and IG CSIS both focus on CSIS, there is no foreign intelligence service as such, there is a Commissioner to oversee the activities of the Communications Security Establishment, while military intelligence is not subjected to direct external oversight.
Mr Peel observed that CSIS sometimes feels that it is overscrutinized but he personally doubted this. Mr Peel added that his office only has nine staff, and SIRC has not many more. In round figures CSIS has about 2000 employees and is overseen by about 20 people.
Mr Peel said that the relationship between his office and SIRC was good. He reiterated Ms Gauthier's point that each body has a different function to perform. Mr Peel said that his task is to provide assurance to the Solicitor-General that CSIS is acting lawfully and properly. One means of doing this is by means of an annual certification procedure. This procedure is arduous and requires plenty of consultation, but is necessary if the Solicitor-General is to have confidence in the Inspector-General's assessments.
Ms Joanne Weeks (Commission Secretary, Office of the Communications Security Establishment Commissioner) informed the conference that her office is the most recent addition to the Canadian security and intelligence review framework, having only been established in June 1996.
The inaugural Commissioner is the Hon. Claude Bisson, a retired Chief Justice of the Court of Appeal in Quebec. Mr Bisson serves on a part time basis. It is Mr Bisson's job to monitor the activities of the Communications Security Establishment (CSE). The CSE is Canada's foreign signals intelligence collector, and was only publicly avowed in 1984.
The Office of the Commissioner has a staffing establishment of five persons. Only two of those positions are currently substantively occupied, the other three positions being filled by contractors, who have expertise in a variety of areas. Ms Weeks described relations between her office and the CSE as being cordial but not cosy.
Several questions from the floor were directed to all three Canadian Offices. One general question which prompted some discussion concerned the role of the Auditor-General in intelligence oversight.
Mr Vic Gooch responded that the Auditor-General had several years ago expressed a keen interest in auditing CSIS but had finally conducted a broad overview of accountability arrangements in the intelligence community generally. He doubted that the AG would conduct frequent audits given existing review mechanisms and the specialised knowledge required.
Ms Weeks supported this view, saying that the Auditor-General had concluded that while his report constituted an excellent snapshot of the security and intelligence community at a moment in time, it wasn't worth the effort and angst.
New Zealand
The Hon. Justice Laurie Greig (NZ Inspector-General of Intelligence and Security) was welcomed as the youngest representative at the conference, in the sense that his office was only established on 1 December 1996.
Mr Greig said that it is his function to assist his Prime Minister to oversight the activities of New Zealand's two intelligence bodies. The NZ IGIS is required to be a former High Court judge, is appointed for a three term, and is currently engaged on a part time basis. Mr Greig explained that he has no staff as such, but draws resources as necessary from the Prime Minister's office. Thus far, the NZ IGIS has dealt with two complaints, and one own motion inquiry.
Mr Greig said that he does not perform a financial auditing function, but does respond to complaints, referrals from the Prime Minister and can investigate certain matters on his own motion. Mr Greig indicated that he is presently developing an inspection/visits program of the NZSIS and GCSB establishments.
Parliamentary oversight is provided via a small select committee, comprised of the Prime Minister, the Opposition Leader and three appointees. This committee is relatively new, and thus far meets about three times a year. This committee has no inquiry powers.
United Kingdom
Mr Allan Rogers MP (Senior government member of the Parliamentary Intelligence and Security Committee) said that overall responsibility for the UK intelligence and security services resides with the Prime Minister.
The Intelligence and Security Committee (ISC), of which Mr Rogers is a member, is appointed by, and reports to, the Prime Minister, and is a committee of parliamentarians rather than a formal statutory committee of the Parliament. This means that the ISC draws its three staff from the Cabinet Office rather than the Parliament, and that it acts in a sense as an adjunct of the executive rather than legislative branch of government.
Mr Rogers observed that the framework for overseeing the British intelligence community is quite new, and is still evolving. The intelligence and security services themselves have only recently been put on a statutory footing (MI5 in 1989, and MI6 and GCHQ in 1994), and many of the UK's oversight arrangements have developed in the wake of these changes.
Mr Rogers said that much of the framework for intelligence oversight in the UK was put in place by the Thatcher and Major Conservative governments. Mr Rogers said that this was a good thing because it was his belief that if these mechanisms had been put in place by a Labour government, the security and intelligence services would have been more resistant to their implementation.
Mr Rogers told the conference that the ISC itself came into being on 15 December 1994, under the chairmanship of a former Defence Minister, the Rt Hon. Tom King. The ISC is a multi-party body which operates in a non-partisan consensus-driven manner. The apolitical nature of the ISC is exemplified by the fact that the chair of the committee, a former Tory minister, was reappointed to that position by the incoming Labour government after the recent British election.
Mr Rogers said that the ISC meets every week and is kept very busy. Members of the ISC regularly visit the agencies they oversight, and the committee has recently involved itself in issues such as recruitment practices, security vetting, and access to and keeping of records.
Mr Rogers pointed out that the ISC does not deal with complaints from the public, has no direct involvement in the budget-setting process, and has no charter to examine matters which occurred prior to the establishment of the Committee (ie. December 1994).
Mr Rogers added that he is often questioned on the committee's work by his colleagues in Parliament, but is unable to discuss the Committee's deliberations in any detail. Mr Rogers put the view that the integrity and work of the ISC has to be taken largely on trust.
Mr Alan Beith MP (Deputy Leader of the Liberal Democrat Party and member of the Intelligence and Security Committee) provided in greater detail an overview of the Central Intelligence Machinery which exists in the UK.
Mr Beith briefly explained the role and functions of the Security Services Tribunal, the Interceptions Commissioner, and the Commissioner for the security and intelligence services. Mr Beith observed that these bodies are not especially accessible to members of the public and that the various Tribunals had not upheld a single complaint made to them. This outcome did not contribute greatly to public confidence in these institutions.
By way of contrast, Mr Beith made the point that the ISC was forward looking, and sought to make a positive contribution to the strategic direction of the intelligence agencies, as it did not have the time or the charter to rake over past scandals.
There followed a very lively round table discussion on the merits of Parliamentary oversight committees versus non-Parliamentary oversight. The main point of conjecture was Mr Rogers claim that the work of the ISC had largely to be taken on trust.
Mr Peel quoted an old Russian proverb suggesting that one should "trust but verify". Mr Peel acknowledged that trust was very important, but it was devalued unless there was an independent means of verifying an assertion. This view was strongly supported by the delegates from the United States. Mr Rogers held firm to his view that, in a mature democracy, some measure of faith must be put into representatives of the people.
A second major talking point revolved around how to engender public confidence when oversight mechanisms find no fault with the bodies they oversee. Mr Archdeacon said that SIRC finds in favour of their complainants in 30-40% of cases, and that many people think this ratio is too low. It was Mr Archdeacon's view that if SIRC had not found in favour of any complainants it would have a serious credibility problem.
Mr Beith conceded that the fact that the Security Services Tribunal had never found in favour of a complainant was a matter for some concern, at least in presentational terms.
Parliamentary Joint Committee on ASIO
The Parliamentary Joint Committee on the Australian Security Intelligence Organization joined delegates on the first day of the conference and participated in an open forum on the value of Parliamentary/Congressional oversight versus other official independent oversight mechanisms.
The Chair of the Committee, Senator David MacGibbon, briefly described the history of his committee and his plans for the future before inviting questions from the floor. Other committee members present were Sen. Robert Ray, Sen. Sandy MacDonald, Mr Paul Zammit, Mr Bob Sercombe and Mr Noel Hicks.
Senator MacGibbon explained that his committee came into being in 1988 and that its focus is exclusively on ASIO. Senator MacGibbon said that his committee formed one strand of a multi-strand approach to intelligence oversight in Australia, and that it shares the field with those Ministers directly responsible for Australia's intelligence and security agencies, the Secretaries Committee on National Security, the National Security Committee of Cabinet, the Office of National Assessments and the IGIS.
Senator MacGibbon suggested that his committee was in the process of redefining its role and he was hopeful that it would be a more active player than had been the case to date.
Senator MacGibbon told the conference that he is developing a proposal which would expand the scope of his committee, so that it will cover all five of Australia's intelligence and security agencies, and that the range of matters with which it could involve itself would also be expanded.
In developing this proposal, the ASIO Committee has been examining different models of Parliamentary/Congressional oversight around the world. Senator MacGibbon said that the models they examined ranged from almost suffocating legislative oversight (eg. the US) to practically no oversight at all (eg. France). Senator MacGibbon said that he, and others on the committee, were most attracted to the British model of a non-partisan, consensus driven committee of Parliamentarians.
Senator MacGibbon was questioned on how his committee is constituted. He responded that the parties represented in the Parliament can nominate who they wish to fill positions and that the allocation of positions roughly accords with the party balance in the Parliament. Members of the committee serve for the life of the Parliament, and there is no limit to the number of times that members can be reappointed to the committee.
Senator MacGibbon said he believed that if a new model were adopted he would prefer to see a different nomination process put in place, and a requirement that nominees should be subject to security background checks.
Ms Mapisa-Nqakula asked about the relationship between the committee and ASIO, and also with the IGIS. Senator MacGibbon said that in each instance the relationship was cordial, professional and proper and that when briefings were called for, they received prompt and frank assessments.
Senator Robert Ray spoke briefly of his experience of 13 years in government and his involvement with the Australian intelligence committee. Senator Ray said that he thought it was very much to the agencies advantage to be subject to regular and ongoing external oversight, as this was more manageable than being "belted" with a Royal Commission every five to ten years.
Senator Ray said that there is currently a proposal to put the Australian Secret Intelligence Service on a legislative footing (flowing from the 1995 Samuels Commission of Inquiry into ASIS) and that it is proposed that a Parliamentary ASIS Committee should be created.
Senator Ray said that the other three Australian agencies (namely, the Defence Signals Directorate, the Defence Intelligence Organisation and the Office of National Assessments) would be better off signing up to Parliamentary oversight now, rather than "stuffing up" at a later date, and having Parliamentary oversight foist upon them, after a costly and damaging Royal Commission.
There followed some spirited discussion about the difference between 'executive oversight' and 'executive responsibility', and the merits of Parliamentary oversight over 'executive oversight'. There were divided opinions about this subject.
Ms Gauthier (Canada) asked Senator MacGibbon why he personally favoured the British model, and asked whether he had considered a Canadian style approach (eg. a nominated body of non-parliamentarians as per SIRC). Senator MacGibbon said that he preferred the British model because it is, "politically obtainable" in the Australian context. It was Senator MacGibbon's opinion that the Australian public would be distrustful/suspicious of a non-elected body exercising what were seen as the prerogatives of the Parliament.
Mr Rogers (UK) said that elected politicians had a greater responsibility to the people because they are popularly elected. He thought this gave the legislative arm of government some measure of moral authority, as it expresses the will of the people.
Mr Luwellyn Landers (South Africa) supported this line of argument, saying that the people, through the politicians they elect, will dictate the oversight mechanism most appropriate to their needs.
Following the conclusion of this forum, the members of the ASIO Committee hosted a lunch for the conference delegates.
Australian Agency Heads
Immediately prior to lunch on the second day of the conference, delegates were joined by Mr Dennis Richardson (Director-General of Security), Mr Rex Stevenson (Director-General of ASIS), Mr Dick Smith (Director-General of ONA), and Mr Martin Brady (Director, DSD). Major-General Bill Crews, Director of the Defence Intelligence Organisation was unable to attend, as he was overseas.
The purpose of this session was to provide the Agency Heads with the opportunity to express their views on the external oversight/review of their agencies, and to comment on how they relate to their watchdogs.
The Agency Heads unanimously indicated that they considered external oversight of their organisations to be a necessary and valuable function in reassuring the Government, the Parliament and the Australian public that appropriate standards are being upheld.
The Agency Heads felt it was important not to be too defensive but to rather, develop a relationship based on openness and trust. This, of course, is not always easy, as there is an understandable degree of nervousness on the part of agencies about access to extremely sensitive material, or where there is prima facie evidence of some failure in procedures.
Each of the Agency Heads indicated that they were keen to dispel the widespread public perception that they are immune from scrutiny. This is not the case, nor should it be in a liberal democracy.
Several of the Agency Heads believed that the work of the IGIS was significant in promoting cultural changes within their organisations, as it is most important for agencies to adjust with the times and be alert to changing societal norms and mores.
The Agency Heads said that it was extremely useful to have an outside body, such as the IGIS, with whom they can bounce ideas, or seek opinions. Several delegates expressed surprise that the relationship between the IGIS and the Agency Heads was such as to permit this, but each of the Agency Heads said that they regarded it as a positive advantage.
The Agency Heads were questioned about their attitude to Parliamentary oversight. Mr Richardson, who is the only Agency Head presently subjected to direct oversight said that he was in favour of a stronger, differently constituted ASIO Committee. He was relaxed about this committee playing a larger role, so long as it does not seek to involve itself in current operational matters.
Mr Stevenson said that he also favoured improved Parliamentary oversight, and said that he was attracted to the UK model. Messrs Smith and Brady concurred.
Mr Smith added that as a senior public servant with more than 34 years experience, he was concerned that officials should not arrogate too much power to themselves, at the expense of the people's representatives.
At the conclusion of the forum, the Agency Heads joined the delegates for lunch. Mr Kim Jones (Deputy Secretary in the Department of Foreign Affairs and Trade) and Mr Allan Taylor (Executive Coordinator in the Department of the Prime Minister and Cabinet) also joined the delegates for informal discussions over lunch.
Closing Forum
The conference concluded with an open forum during which issues on any topic could be raised.
Mr Fred Hitz asked whether the relationship between the IGIS and the Australian Agencies was ever adversarial in nature. Mr Philip Moss, who spent nearly 10 years in the office, explained that while there have certainly been some very difficult patches, particularly in the early years, these seem to have receded. Mr McLeod indicated that this was a reflection of differing personalities holding the key offices now, and also a greater acceptance of the role and function of the IGIS.
Ms Gauthier revisited the question of the Australian Agency Heads feeling able to seek informal advice from the IGIS. Mr McLeod responded that he sees himself as a part of the Executive branch of Government, and that anything he can reasonably do which assists the Executive is a good thing.
Mr McLeod said that the flexible/pro-active approach adopted by himself and the Agency Heads served to nip many problems in the bud. Having said that, Mr McLeod said it was important for his Office to be seen as independent, so one can not afford to get too cosy.
Mr Mti explained a little of the situation in South Africa and how the Government is considering various models for overseeing their intelligence agencies. Mr Mti sought views from conference delegates on whether it was better to have a single overarching Inspector-General, or to have an Inspector-General dedicated to each agency/component.
Mr McLeod said that it was difficult for outsiders to offer a view, but issues such as the size of the organisation to be overseen, the resources to be allocated to the task, and the nature of the issues to be dealt with where all issues which should be taken into consideration. He added that as far as he was concerned the Australian model worked pretty well, but there was no guarantee that it would necessarily be the best model in the South African context.
Mr David Peel joined the discussion by saying that two oversight bodies focus on CSIS, and this model worked well enough. On the question of resources, he added that if more people were allocated to the review function there was certainly the work available for them to do.
Mr Hitz said that the US oversight model had not been achieved overnight. The Inspector General system has evolved over time and is still evolving. He suggested that in his view it was not a bad idea to start with one Inspector General and work on it from there.
Mr Ethan Bauman (USA) said that there is periodic debate in the United States whether there should be one over-arching Inspector General for the US intelligence community. He was not sure whether this would be a good thing, or simply add another layer to an already labyrinthine bureaucracy.
Another topic for discussion was the move by some agencies to overlap intelligence and law enforcement functions. Mr McLeod asked whether this had any particular implications for oversight bodies. The US representatives, while acknowledging that these two areas of government were cooperating more closely than in the past, there were very real differences between the two areas and all were quite firm in their belief that common oversight arrangements for both areas was not a good idea.
In closing the conference Mr McLeod thanked all present for travelling so far to attend and for participating fully in all of the planned conference activities.
Following Mr McLeod's closing remarks, Ms Gauthier then took the floor. Ms Gauthier expressed appreciation for Mr McLeod's initiative in organising the conference, which she said had been a most worthwhile experience.
Ms Gauthier then announced that the body she chairs, SIRC, is to celebrate its 15th anniversary in 1999, and that she would like to mark that anniversary by organising a similar conference in Ottawa. Ms Gauthier's invitation was meet with universal support.