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Activity 3: Responding to complaints

Providing effective and timely responses to complaints or referrals received from members of the public, ministers or members of parliament

Introduction

Most of the communications our office receives are treated as 'contacts' or 'complaints'.

We consider a matter to be a 'contact' where the issues raised are clearly not credible, where they are not intelligible, where they fall outside of the jurisdiction of the office, or where the communication is relevant to the office but is not a complaint (e.g. requests for information about the office or the Australian intelligence community).

We consider a matter to be a 'complaint' if it raises an initially credible allegation of illegality, impropriety or abuse of human rights, in relation to an action of an intelligence agency. Complaints can be made orally or in writing, however there is no obligation on the Inspector-General to pursue complaints that are not made in writing if this has been requested.

Each communication is assessed to determine whether it falls within the jurisdiction of the office and, if so, the most appropriate course of action. Where it is assessed that a communication is a complaint that justifies further action, it will be handled administratively in the first instance. All contacts and complaints are also assessed to determine whether they should be handled under the Public Interest Disclosure (PID) scheme.

In most cases, complaints and other matters can be resolved quite quickly and efficiently by our staff speaking to the relevant agency or reviewing their records. This approach can determine whether a particular matter is within jurisdiction and reduces the procedural burden of an inquiry. Administrative resolution can allow for a timely response to be provided to the complainant. Information provided by agencies in this way can help the IGIS determine whether to conduct an inquiry for more serious or complex matters.

Irrespective of how a matter is handled, all persons contacting the office are advised of the actions taken, and the outcomes, to the maximum extent possible, consistent with the office's overriding security obligations.

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 complaints received and handled
  • target percentage (90%) of complaints acknowledged within five business days, and 85% of visa-related complaints resolved within two weeks.

Figure 3.3: Number of complaints by year and type

Figure 3.3: Number of complaints by year and type
Figure 3.4: 2015–16 complaints (including PID) by agency and source
Complaints by agency and source ASIO ASIS ASD AGO DIO ONA
Number of complaints 139 4 3 0 1 0
From public 137 3 0 0 1 0
From intelligence agency employee or ex-employee 2 1 3 0 0 0
Figure 3.5: Performance against complaint acknowledgement and resolution targets
Complaint type

Total number of complaints

Percentage acknowledged within 5 business days (Target: 90%)

Percentage of visa-related complaints resolved within two weeks (Target: 85%)

Visa-related 118 97% 72%
PID 4 100% n/a
Other 25 88% n/a
TOTAL 147 95% 72%

In the 2015–16 reporting period, the IGIS received 147 complaints that justified action. Of these, four were assessed as meeting the threshold to be handled under the PID scheme; 118 complaints were about delay with visa-related security referrals; and 25 raised other concerns about the activities of the Australian intelligence agencies.

This represents an overall decrease in complaints received by the office over the last three years. The decrease is solely attributable to the significant drop in complaints about delay in visa-related security assessments.

Complaints about security referrals for visa applicants

In 2015–16 there was a significant drop in the number of visa security referral related complaints. In 2014–15, the office received 473 visa security referral related complaints. In 2015–16, the office received 118 such complaints, an average of 10 complaints per month. The drop in complaints is considered to be most likely as a result of changes in national security considerations and other factors for which this office is not responsible. The majority of complaints were in relation to visa security assessments (94 per cent).

As with previous years, the largest number of complaints made to the office came from individuals seeking skilled business or work visas (49 per cent). There was also a substantial number of complaints relating to family reunion visas (20 per cent) and protection or refugee visas (21 per cent). The office also received a small number of complaints relating to security assessments in relation to applications for Australian citizenship.

The main complaint about visa security referrals is delay. Most of the factors that lead to delay are outside the control of the relevant intelligence agencies.

During the reporting period, we acknowledged 97 per cent of visa-related complaints within five working days, well above our performance indicator of 90 per cent.

We consider a complaint about delay in visa security assessments to be resolved once we have completed our administrative inquires and responded to the complainant. On average, we resolved visa-related complaints within 12 days, however while the office aimed to resolve 85 per cent of visa-related complaints within two weeks, we were only able to resolve 72 per cent of visa-related complaints within this period. This was due to complex circumstances of some of the visa security assessments that were reviewed by our staff.

Other complaints

We received 25 non visa-related complaints in the reporting period (excluding PID matters), marginally higher than the 23 we received in 2015–16. Nineteen complaints in this reporting period concerned ASIO, four related to ASIS, one to ASD and one to DIO.

The average time taken to acknowledge other complaints in the reporting period was 2.9 business days. We responded to 88 per cent of complaints within five business days, just outside our performance goal of 90 per cent. The three complaints that were acknowledged outside the five day performance measure exceeded the measure by a maximum of two days. Delay in the three cases was unavoidable, caused by the need to translate documents into English before responding (one complaint), and an intention to provide an acknowledgement and substantive response in a single communication being hampered by unexpected delays in receiving external inputs (two complaints).

Of the 25 complaints received in the reporting period, twenty three were closed at the end of the reporting period, with an average of 37 days until a final response was sent.

Other contacts with the office

We also received around 325 contacts from individuals seeking advice or expressing concern about matters affecting them that were assessed to be outside the jurisdiction of the office, or as lacking credibility. This compares with approximately 300 such contacts in 2014–15, and around 200 contacts in 2013–14.6

This continued increase in the number of contacts may be attributable to the increased focus on intelligence related matters in public discourse and in the media, greater awareness of the existence of this office, and public debate about the powers and surveillance capabilities that are available to the intelligence agencies.

When we are contacted in the above circumstances, we provide written or oral advice about the jurisdiction of the office and alternative avenues to pursue, including other complaint-handling bodies, such as the police and the National Security Hotline. In cases where there has been previous contact about matters that have already been assessed, we take no further action unless substantially new and credible information is provided.

6 Individuals who contacted the office on multiple occasions are counted as a single 'contact' in these figures.

Discussion

Visa-related security referrals

ASIO provides Commonwealth agencies with security assessments relevant to their functions and responsibilities. A visa application to travel to, or remain in, Australia may be referred to ASIO with a request to provide a security assessment. We do not assess the merits of any particular security assessment, nor do we request a change in the priority in which cases are processed, either in general or in particular. In contrast, however, where visa applicants have raised reasonable concerns that an error may have occurred, we examine ASIO's processes.

For approaches about visa-related security assessments, we consider the length of time ASIO has had to respond to a request for a security assessment before determining if the matter should be treated as a complaint or a contact. Specifically, we consider if the visa application was submitted more than 12 months earlier, or whether six months have passed since any previous enquiry about that application was made. Approaches about visa-related security assessments that do not meet these criteria are counted as 'contacts' (see above).

Visa–related complaints

During 2015–16, we continued to focus on ASIO's handling of visa security assessments because of the significant impact this can have on individuals. We note, however, that delays in the processing of visas can arise from factors outside ASIO's control and not related to ASIO's handling of security assessments. We continued to access ASIO's systems directly as well as to increase liaison with other government stakeholders, including the Department of Immigration and Border Protection (Immigration) and the Office of the Commonwealth Ombudsman.

In one case, we received a complaint from a visa applicant whose case had been remitted to Immigration by the Refugee Review Tribunal. Following our inquiries, Immigration determined that an administrative oversight by its visa processing area had caused the delay in ASIO performing the visa-related security assessment. Immigration advised this office and ASIO of the oversight and took steps to rectify the situation.

While reviewing another complaint, our office found that the complainant's representative was no longer registered as a migration agent. The Office of Migration Agents Registration Authority (OMARA) had found that the complainant's representative was not a fit and proper person to give immigration assistance and accordingly cancelled the representative's registration. Our office liaised with Immigration's National Security Branch and OMARA, and subsequently advised the complainant of the agent's deregistration.

Other complaints

All 25 'other' complaints received during the reporting period were investigated administratively, rather than by means of a formal inquiry.

The complaints covered a wide range of matters, including allegations or concerns about:

  • the execution of, or legal basis for, search warrants and related interactions with ASIO
  • failure to provide a duty of care to an individual who previously assisted ASIO
  • discrimination and harassment based on race
  • inappropriate access to information
  • security assessments for passports and employment
  • delays in security checks for Aviation Security Identification Card (ASIC) and Maritime Security Identification Card (MSIC).

All complainants were given advice about the action we had taken in response to their complaints. This included details about our examination of agency records and consideration of agency briefings, and our degree of confidence in the legality and propriety of agency actions. Where appropriate, complainants were also invited to make further contact with us if their concerns persisted.

Three complainants received prompt, practical remedies as a result of their complaints to the IGIS. In the first case, the remedy included an apology from the agency concerned and improvements to agency systems. In the second, relating to an ASIO search warrant, ASIO attended the complainant's home and addressed the concerns personally. The third case was resolved when ASIO was able to finalise its security assessment after particularly urgent concerns were brought to its attention.

We do not contact complainants to ask about their level of satisfaction with our handling of their complaint. In 2015–16, few complainants contacted us after the finalisation of their complaint to express either disappointment or satisfaction with the outcome.

On the other hand, people raising matters that were outside the jurisdiction of the office or lacked substance frequently expressed their frustration that we had not pursued their concerns.

In all cases, we provide advice about our role, and the role and functions of relevant Australian intelligence agencies. Where we do not directly address specific concerns, we provide details of suitable alternative avenues to pursue, if this is appropriate.

Further details of some of the complaints we investigated are contained in the case studies below. The complaints that were assessed as falling within the PID scheme are discussed in the following pages.

Referrals from the Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) is required by section 11(3) of the Australian Human Rights Commission Act 1986 to refer to the IGIS human rights and discrimination matters relating to an act or practice of the intelligence and security agencies.

In this reporting period the AHRC referred two cases to the IGIS. Broadly these cases alleged that:

  • surveillance by ASIO was racially motivated, contrary to the complainant's human rights as set out under the United Nations International Covenant on Civil and Political Rights (ICCPR)
  • surveillance by ASIO amounted to an inappropriate interference in the complainant's personal affairs, contrary to the ICCPR.

In the first of these referred matters, we did not find any evidence to support the complainant's claims.

In the second case, we explained the role and functions of ASIO, and the role of the IGIS in overseeing ASIO's functions (as the complainant seemed confused about these matters). The complainant was also invited to provide additional information in support of the claims. As the complainant did not reply, and there was insufficient cogent information contained in the initial complaint, the Inspector-General decided that further inquiry into the matter would be futile.

Case study 1: Execution of an ASIO search warrant

An individual whose family home had been the subject of an overt ASIO entry and search warrant made a complaint alleging that her home had been left in a disordered state at the end of the search. The complainant also said ASIO had provided a copy of its seizure list that was too faint to read and it was impossible to identify the items ASIO had taken.

We raised the matter with ASIO. We also reviewed the relevant files, and noted that a video recording of the search had not been made because of faulty equipment.

As well as providing details to the IGIS about the execution of the search warrant, ASIO officers promptly visited the complainant's residence. The complainant refused the officers entry to the property and therefore they were not able to inspect it for the alleged damage. In the circumstances, ASIO offered, and the complainant accepted, a sum of cash sufficient to pay for professional carpet cleaning, as well as a legible copy of the seized goods list.

Case study 2: ASIC/MSIC cases

During the reporting period, we maintained an interest in ASIO's processing of security assessments for Aviation Security Identification Cards (ASIC) and Maritime Security Identification Cards (MSIC).

As we reported last year, some cases can be subject to lengthy delays, and we sought further briefings on ASIO's management of these assessments. ASIO provided information about how cases are prioritised and allocated for assessment.

We received eight complaints about ASIO's handling of these cases. All related to significant delay. In the course of investigating one complaint we obtained further details of the person's personal circumstances which caused us concern. When ASIO was made aware of these circumstances, their response was prompt and the matter was resolved.

Case study 3: Recruitment complaints

We received two complaints from persons formerly employed within the Australian intelligence community (AIC) who raised concerns about recruitment processes when they sought engagement within the AIC. Both complaints related to how AIC agencies took account of each applicant's employment and security-related history within the AIC in determining their suitability for further employment.

In the first case, the agency identified that its approach to the complainant's application for a return to employment, following his resignation some years earlier, was not given appropriate or fair consideration. The agency took steps to address these concerns, including by providing a written apology to the complainant. It also revised its processes to ensure fair and balanced consideration of relevant information in this and all future applications.

The second complaint related to information exchange between AIC agencies. As it also raised other matters, the complaint was treated as a Public Interest Disclosure. IGIS considered whether the agencies concerned had followed relevant security guidelines such as those set out in the Protective Security Policy Framework. The complaint remained open as at 30 June 2016.