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Activity 1: Conducting inquiries

Conducting inquiries as appropriate (which may be 'own motion', in response to complaints or referrals, or at the request of intelligence agency ministers or the Prime Minister)

Introduction

Under the IGIS Act, the IGIS can conduct an inquiry into a matter based on a complaint, of the IGIS's own motion, or in response to a ministerial request. The Act establishes certain immunities and protections and provides for the use of strong coercive powers in such inquiries. These include the power to compel the production of information and documents, to enter premises occupied or used by a Commonwealth agency, to issue notices to persons to attend before the IGIS to answer questions relevant to the matter under inquiry, and for the IGIS to administer an oath or affirmation when taking evidence.

When coercive powers are used, the IGIS Act provides protections to people who have given the IGIS information. Those compelled to give information are protected from any penalty under Commonwealth or Territory law that would ordinarily arise from disclosing that information.

The responsible minister is advised when the IGIS begins an inquiry into an agency, and is also advised of any conclusions or recommendations arising from the inquiry. The IGIS also provides opportunities for ministers, agency heads and affected individuals to comment during the course of an inquiry.

Quantitative performance measures

The following metrics, identified in the OIGIS Corporate Plan 2015–19, were used to support the quantitative assessment of our performance in relation to this activity:

  • number of inquiries conducted
  • number of inquiry recommendations accepted and implemented.

One inquiry was finalised during the reporting period, although the majority of the work was carried out during the 2014–15 reporting period. The 157 day duration of this inquiry was considered to be reasonably proportionate to its level of complexity.

The same number of inquiries were finalised during 2014–15. The fact that no new inquiries were commenced in 2015–16 is mainly due to there being no major issue of concern arising during the period, a decision to prioritise the inspection of new functions carried out by agencies as a result of legislative change, there being no referrals received from a responsible minister and no substantiated complaint of sufficient complexity or seriousness to warrant an inquiry.

Discussion

2015 IGIS inquiry into an Australian Signals Directorate matter

In February 2015 an inquiry into an Australian Signals Directorate (ASD) matter was initiated by the then IGIS pursuant to s 8(2) of the IGIS Act. The final report was provided to ASD in July 2015. The report included four (classified) recommendations, however it did not find any failure of ASD to comply with the law, nor did it reveal any systemic failures of governance or improper activity. As requested ASD responded to the report in October 2015.

Figure 3.1: Number of inquiries concluded by year

Figure 3.1: Number of inquiries concluded by year
Figure 3.2: Summary of inquiries conducted during 2015–16
Agency Source Subject of inquiry Date initiated Date finalised Duration (days)
ASD IGIS Inquiry into a matter relating to ASD 9 February 2015 15 July 2015 157

ASD accepted the principles underlying the recommendations and the Inspector-General was satisfied that ASD has appropriate ongoing arrangements in place in relation to the subject of the inquiry and was responsive to the recommendations. Routine reporting arrangements between ASD and the office have been revised to ensure appropriate levels of ongoing oversight in relation to the subject of the inquiry.

A full account of the inquiry is contained in the classified report which has been provided to the Director of ASD and the Minister for Defence and copied to appropriate Australian Government recipients for information. Given the highly classified nature and details of the inquiry, no further information will be released publicly.

Inquiries conducted in accordance with paragraph 8(1)(d) or 8(3)(c) of the IGIS Act

There were no inquiries conducted in accordance with paragraph 8(1)(d) or 8(3)(c) of the IGIS Act during the reporting period.2

Employment of persons under section 32(3) of the IGIS Act

In 2015–16 there were no persons employed under subsection 32(3) of the IGIS Act and no delegations in force under section 32AA of the Act.3

2 The Inspector-General is required under subsection 35(2) of the IGIS Act to include in the annual report comments on any inquiry conducted during the reporting period in accordance with the specific functions in paragraph 8(1)(d) or 8(3)(c) of the Act.

Paragraph 8(1)(d) provides that a function of the IGIS is:

where the responsible Minister has given a direction to ASIO on the question of whether

(i) the collection of intelligence concerning a particular individual is, or is not, justified by reason of its relevance to security; or

(ii) the communication of intelligence concerning a particular individual would be for a purpose relevant to security;

to inquire into whether that collection is justified on that ground or whether that communication would be for that purpose, as the case may be.

Paragraph 8(3)(c) provides that it is a function of the IGIS to, at the request of the responsible Minister or of the Inspector-General's own motion, inquire into any matter in relation to the statutory independence of ONA.

3 The Inspector-General is required under subsection 35(2AA) of the IGIS Act to include in the annual report comments on the employment of any person under subsection 32(3) and any delegation in force under section 32AA during the reporting period.

Subsection 32(3) allows the Inspector-General to, by written agreement, employ a person to assist the Inspector-General to perform functions and exercise powers for the purposes of a particular inquiry, specified in the agreement.

Section 32AA enables the Inspector-General to delegate her inquiry and reporting powers to such a person for the purposes of the particular inquiry.