Complaints and contacts
We consider a matter to be a 'complaint' if it concerns a credible allegation about illegality or impropriety in relation to an action of an intelligence agency. Complaints can be made orally or in writing.
Each contact made with the office is assessed to determine whether it falls within the functions of the office and what is the most appropriate course of action. Where it is assessed that a complaint justifies further action, it will be handled administratively in the first instance. Contacts are also assessed to determine whether they should be handled under the Public Interest Disclosure scheme.
In most cases complaints and other matters can be resolved quite quickly and efficiently by IGIS staff speaking to the relevant agency or looking at their records. This approach can resolve 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 also help the Inspector-General to decide whether to pursue an inquiry for more serious or complex matters.
Notwithstanding how a matter is handled, all persons contacting the office are advised of the actions taken, and the outcomes, to the extent possible.
For approaches about delay with 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, where an individual has previously approached the office, whether six months have passed since previous inquiries were made. Approaches about delay with visa-related security assessments that do not meet these criteria are counted as 'contacts' (see below).
In 2014–15, IGIS received a total of 496 complaints, of which 473 were about delay with visa-related security assessments and 23 were non visa-related (see also Annex 1 Table 1.2).
In 2013–14, IGIS received a total of 504 complaints, of which 487 were about visa-related security assessments and 17 concerned non visa-related matters.
In 2012–13, IGIS received a total of 375 complaints, of which 361 were about visa-related security assessments and 14 concerned non visa-related matters.
The number of visa-related complaints has remained fairly stable. The number of non-visa matters which were treated by our office as complaints has increased somewhat but the number still remains relatively low.
Complaints about security assessments for visa applicants
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 request a change in the priority of processing of cases, or request that any particular case be expedited. However, where visa applicants have reasonable concerns that an error may have occurred, we examine ASIO's processes.
During 2014–15 we continued to focus on ASIO's handling of visa security assessments because of the significant impact this can have on individuals. We continued to directly access ASIO's systems as well as increase liaison with other government stakeholders including the Department of Immigration and Border Protection (Immigration) and the Office of the Commonwealth Ombudsman. Three OIGIS staff members attended a familiarisation visit of the Villawood Immigration Detention Centre in Sydney in 2015.
In cases where a complaint is about delay in relation to a visa application lodged more than 12 months previously, we examined ASIO's systems to determine whether or not the applicant had been referred to ASIO for a security assessment and, if so, reviewed ASIO's handling of the matter. In each case, we looked at whether ASIO had acted unreasonably or had made a processing error.
We do not ordinarily advise complainants whether they have or have not been the subject of a security assessment by ASIO, unless this has already been confirmed to them by Immigration or ASIO, or where we have found a significant issue of concern involving ASIO which would justify the office doing so. Where we are satisfied that there is no evidence of error by ASIO, staff will advise complainants of that. While we identify few errors, where we do find ASIO has made an error, we request that it rectify the matter. Where we find that no referral to ASIO has been made, or that one has been made and finalised, we advise the complainant that there is currently no referral with ASIO.
The office received 473 visa security assessment related complaints in 2014–15, a decrease of 14 from 2013–14. This is an average of 40 complaints per month.
The visa complaints inspections identified a small number of issues. In each case ASIO took action to rectify the issue. In one case an inspection found that ASIO had not given advice to Immigration about a particular visa case even though ASIO's assessment had been completed. This meant Immigration could not progress the case. We brought this to ASIO's attention and it provided the relevant advice to Immigration and reminded ASIO staff of the need to communicate the outcome of ASIO assessments promptly. Another issue identified related to ensuring that cases are administratively 'unassigned' when a staff member who had been assigned the case leaves the area or ceases working on the case for some other reason. If cases are not 'unassigned' appropriately they cannot be 'reassigned' to another staff member and this can lead to unnecessary delays. ASIO provided further guidance and training to staff on this issue and subsequent inspections indicate an improvement in practice in this area.
Complaints by visa type
As in previous years, complaints about visa security assessments came from a wide variety of individuals, with the largest number of complaints coming from individuals seeking skilled business or work visas (64%). There were also a substantial number of complaints in relation to family reunion visas (18%) and protection or refugee visas (16%).
During the reporting period we received a small number of complaints from individuals who had received adverse security assessments (ASAs) in relation to their visa applications or had their visas cancelled. These individuals were all in immigration detention. OIGIS staff examined procedural aspects of the ASAs made by ASIO and did not identify any issues of concern except in the one case highlighted below. ASIO reviews certain categories of Migration Act related adverse and qualified assessments of individuals based in Australia when it becomes aware of new information of sufficient relevance to impact the assessment. Most individuals with an adverse security assessment in immigration detention are able to apply for an administrative review of their security assessment annually (see page 26 on the work of the Independent Reviewer of Adverse Security Assessments).
Visa-related security assessment complaints continue to represent around 95 per cent of complaints made to the IGIS since 2011–12. The main complaint about visa security assessments is delay. Most of the factors that lead to these delays are outside of ASIO's control.
Review of an ASIO adverse security assessment for a visa applicant
During the reporting period the office received a complaint from an individual in immigration detention about the adverse security assessment (ASA) they had received in relation to their visa application. As the person's protection claims had not been processed they were not eligible for a review by the Independent Reviewer of Adverse Security Assessments. In August 2014 the Inspector-General suggested to the Attorney-General's Department that it would be reasonable for a separate request or arrangement to be made for the Reviewer to review this assessment. This was not agreed to.
The Inspector-General reviewed the person's ASA as there were no other practical review mechanisms available to that person. The review of ASIO records did not identify any issues that caused the IGIS to suggest that ASIO should reconsider the assessment immediately. From the documents provided to the IGIS the submission did not appear to take into consideration all relevant factors and current circumstances. However, ASIO considered that all relevant factors were considered. The Inspector-General suggested that ASIO review its decision to issue the ASA within 18 months and consider whether any changes in circumstances would change the risk to security.
Non visa-related complaints
We received 23 non visa-related complaints in the reporting period. This is comparable to the seventeen complaints received in 2013–14. Nineteen complaints in this reporting period were about ASIO, while three related to ASIS and one to ASD. All 23 complaints were investigated administratively.
The complaints covered a broad array of matters, including:
- concerns about the manner in which search warrants were executed and related interactions between the subjects of those warrants and ASIO
- the basis for, and processes associated with, several sensitive individual security assessments
- the removal of security clearances from agency employees leading to the termination of their employment
- members of the public making credible claims of detriment caused by the actions of intelligence agencies
- the potential impact of organisational suitability testing results on private sector employment opportunities
- the effectiveness or otherwise of IT security arrangements to protect personal information contained in on-line job applications from prospective employees.
- delays in Aviation Security Identification Card (ASIC) and Maritime Security Identification Card (MSIC) security checks.
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 public interest disclosure scheme are summarised on page 16.
Execution of an ASIO search warrant
An individual whose family home had been the subject of an overt ASIO entry and search warrant earlier that day made a complaint about the conduct of that search. The complainant alleged that the entry into the premises had been made in an unnecessarily aggressive manner causing significant distress to a young child; that the ASIO officers conducting the search refused to personally identify themselves; and that no timeframe was provided for the return of seized materials.
We sought a briefing on the execution of this and several other search warrants which had also been executed on the same day. OIGIS staff reviewed internal ASIO guidance on how operations of this kind should be planned and conducted, inspected relevant operational files, logs and running sheets, and also viewed a video recording which had been made as the search of the premises commenced.
The video did not record the entry to the premises, so we were unable to reach a firm view on the manner of entry. We suggested to ASIO that in future it should ensure that such recordings should commence prior to entry being effected.
Despite this deficiency, the video recording confirmed that the complainant was properly advised of the purpose of the persons who had entered the premises, and that entry into the premises was lawfully authorised under a warrant.
While the unexpected entry into a house of a large number of individuals in the early hours of the morning would likely cause alarm or disquiet to any person, regardless of age, it seemed from the material available, that the child who was present was given appropriate care and attention until such time as other family members could arrive at the premises.
In respect of the other matters raised, we found that the ASIO team leader had properly identified himself by providing his name and a contact number, and that while other ASIO officers present did not provide their names, they could nonetheless be identified for accountability purposes, should the need arise, as each carried a unique identification number.
The complainant also advised us that ASIO had provided the household with an incorrect ASIO phone number. When OIGIS asked ASIO to look into the matter, ASIO confirmed that an incorrect phone number was inadvertently given to individuals at all Sydney addresses where search warrants were executed on that date. At OIGIS request, ASIO ensured all those affected by the error were provided the correct contact number.
On the question of the seized goods, IGIS was satisfied that it was reasonable for the ASIO team leader not to provide a definite timeframe for their return on the day the warrant was executed, and that appropriate arrangements had been put in place to facilitate further discussion on the subject, at a later date.
An ASIS employee contacted us with concerns about the outcome of a misconduct investigation conducted by ASIS. After examining records and discussing the case with relevant staff, it appeared that the misconduct investigation and recommendation were appropriate. However the complainant had raised similar concerns with ASIS some years earlier and these were only partially addressed via informal means. The IGIS recommended that ASIS consider particular aspects of the case as ASIS had not given sufficient regard to the seriousness of the issues when they were first raised.
ASIO's Canberra-based staff moved into new premises in the second half of the reporting period.
In March 2015, we received a complaint from an individual living in the suburb adjacent to ASIO's new building. The complainant said that the emergency alarm systems in the new building:
... continually goes off, often in the middle of the night waking our whole family and our neighbours ... I have found it hard to find someone who actually cares about the problem as there doesn't appear to be anyone in the actual building when I have gone down there when the alarms are going off. ... This problem has gone on for the last year and must not be allowed to continue.
The complainant suggested that either the alarm systems were faulty or the operators were incompetent, and that ASIO was unresponsive in addressing local residents' concerns about the resulting noise and disruption caused in their otherwise peaceful neighbourhood.
Following receipt of this complaint we sought and received a detailed briefing from the ASIO senior executive responsible for the new building project on these concerns. This briefing revealed the nature and extent of the problem with the alarms, and also detailed the total number of alarms which had occurred since ASIO took possession of the building, and the number of those alarms which had occurred out of hours.
We also separately reviewed ASIO's files which indicated that ASIO, the building owner (the Department of Finance), the body responsible for property on which the new ASIO building sits (the National Capital Authority) and the contractor responsible for installing the alarm system, were acutely aware of the issue and were working as quickly as they could to address the issue.
While satisfied with ASIO's response to the issues which had been raised, we also referred this matter to the Commonwealth Ombudsman, so that the Ombudsman could consider whether the actions of the Department of Finance and the National Capital Authority were also reasonable in the circumstances described above. ASIO advise that the issues associated with the alarm system have now been resolved.
Application for Compensation for Detriment
In December 2014, a former complainant to this office complained about the manner in which ASIO was managing an application submitted by him under the Commonwealth scheme for Compensation for Detriment Caused by Defective Administration (CDDA).
Putting aside the basis or merits of the complainant's CDDA claim, the complainant raised concerns about the length of time it took ASIO to acknowledge and respond to his CDDA application and the allegedly complex and legalistic nature of the process.
Our investigation of these concerns involved a thorough review of relevant ASIO files, examination of guidance from the Department of Finance and the Commonwealth Ombudsman, and detailed discussions with the senior executive responsible for handling this matter.
At the conclusion of our investigation ASIO acknowledged that it would have been better if this CDDA application had been progressed in a more timely manner and that existing internal arrangements for processing future CDDA claims should be enhanced, including through the allocation of dedicated resources and the development of guidelines to better support staff involved in the process.
ASIC and MSIC card delays
We received several complaints about delays in ASIC and MSIC security checks. Some of the delays were lengthy. Where an ASIC or MSIC card is refused on the basis of an ASIO security assessment the applicant has a right of appeal to the AAT; that right cannot be exercised where no decision has been made. We sought several briefings from ASIO to determine if there were any underlying systemic issues which required attention, in addition to investigating each complaint. We also engaged with the Commonwealth Ombudsman on the subject; the Ombudsman has oversight of other Commonwealth agencies involved in the processing of ASIC/ MSIC cards including AUSCHECK (a branch of the Attorney-General's Department). Our investigations into these matters are ongoing.
The impact of organisational suitability testing on employment with contractors
In February 2015, we received a complaint from an individual seeking employment with several private sector companies which regularly provide contract services to the Department of Defence.
The complainant expressed concern that ASD had blocked his prospective employment on security grounds. The complainant was concerned that those grounds had not been revealed to him, that he therefore had no basis to appeal, and this meant that his career opportunities in his chosen field were greatly diminished.
An examination of this complaint revealed that rather than raising security concerns ASD had raised reservations about the complainant's organisational suitability (that is, the capacity of the complainant to quickly accept and adapt to the agency's culture and established work methods).
This judgement was informed by an organisational suitability assessment that relied upon recent psychological and organisational test results.
ASD has an obligation to ensure that it operates as securely, effectively and efficiently as possible, and it is appropriate for ASD to raise concerns with contractors about the suitability or otherwise of prospective employees who will undertake work in a specialised environment.
We informed the complainant that they had been found not to be suitable for employment with the agency and that there was no evidence that ASD has acted unlawfully or without propriety.
Other contacts with the office
We also received around 300 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 200 contacts in the previous reporting period.
The increase might 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 which are actually available to the intelligence agencies.
When we are contacted about matters that fall outside of our jurisdiction, we provide written or verbal advice about the jurisdiction of the office and suggest alternative avenues that may be appropriate, including other complaint-handling bodies, the police and the National Security Hotline. In appropriate cases and with the agreement of the individual concerned we can also pass matters directly to the Commonwealth Ombudsman. In cases where there had been previous contact about matters that had already been assessed, we took no further action unless substantially new and credible information was provided.
Statistics on matters raised are at Annex 1 – Summary of inquiries and complaints.
Public Interest Disclosure scheme
The Public Interest Disclosure Act 2013 (PID Act) is intended to promote integrity and accountability within the Commonwealth public sector including by: encouraging the making of public interest disclosures by public officials; providing appropriate support to disclosers to ensure that they are not subject to adverse consequences relating to their disclosures; and ensuring that disclosures by public officials are properly investigated and dealt with.
Key IGIS responsibilities under the PID scheme include:
- receiving and where appropriate investigating disclosures about suspected wrongdoing within the intelligence agencies
- assisting current or former public officials who belong or had previously belonged to the intelligence agencies, in relation to the operation of the PID Act
- assisting the intelligence agencies in meeting their responsibilities under the PID Act, including through education and awareness activities
- overseeing the operation of the PID scheme in the intelligence agencies.
In the reporting period four disclosures were made to IGIS under the PID scheme.
One of these disclosures was made by a former employee of an intelligence agency who raised concerns about the legality and propriety of operational activities allegedly undertaken by an Australian intelligence agency in cooperation with a foreign intelligence agency in Australia a number of years earlier at a specific location. This matter was investigated under the IGIS Act. There were comprehensive records of activities undertaken at the relevant time and location. On the basis of these records and other inquiries the Inspector-General was satisfied that no evidence existed to substantiate claims that conduct of the kind alleged by the discloser had in fact occurred. The agency concerned has a comprehensive policy and appropriate training in place to prevent the type of misconduct which had been alleged.
The IGIS investigation identified another matter, not raised in the original complaint; this was pursued separately with the agency. In relation to that matter the IGIS recommended the agency undertake specific actions to provide enhanced assurance about relevant past and current practices of the agency. The agency has acted in accordance with this recommendation.
The second disclosure was made by an individual who had previously had a close working relationship with one of the intelligence agencies. This individual was deemed to be a 'public official' for the purposes of the PID Act to facilitate investigation of the discloser's complaint. This matter included a contractual dispute and also raised broader concerns about agency conduct which fell within the ambit of the PID Act.
After a lengthy investigation which was conducted under the IGIS Act, the IGIS found that there were serious gaps in the record keeping of the relevant agency which impeded the IGIS investigation. Some of the discloser's concerns were serious and IGIS considered that better systems should have been in place to ensure these were detected and addressed earlier. In relation to other matters raised, IGIS considered it was not unreasonable for the agency to rely on the contract signed by the parties when a claim for additional payments was made; and that while there was concern about how another entitlements issue was handled, once it was brought to the agency's attention, proper action was initiated. At the conclusion of the investigation the agency concerned agreed that valuable lessons had been learnt.
The third public interest disclosure received by this office revolved around claims of workplace bullying and harassment which were allegedly left unaddressed by management; that partiality was shown in the conduct of a functional review and subsequent 'spill and fill' selection exercise; and that a manager sought to obtain private advantage by use of their office. This matter was allocated to the agency in question for investigation, with the investigation report being provided to the IGIS at its conclusion.
The investigation of these matters found that responsible line managers had sought to address inappropriate workplace behaviours and that counselling was provided to those involved to enable them to align their behaviour to the expected workplace standard.
The investigation found no evidence that there was anything improper about the functional review and subsequent 'spill and fill' process which the discloser had raised concerns about. The report's author noted that the panel involved in making a recommendation regarding the preferred candidate for the one ongoing position: was comprised of experienced senior staff; did not include a direct line manager from the affected work area; included a member from the recruitment area of the agency; and, had acted in an independent way.
The investigation also concluded that there was no evidence to corroborate claims made by the discloser that an agency staff member had sought to obtain private advantage by use of their office.
The fourth internal disclosure made to the Inspector-General raised issues which had previously been the subject of thorough review, and the new issues raised in the disclosure were found not to meet the PID threshold.
In addition to the four disclosures made directly to the Inspector-General the intelligence agencies advised this office that four PID cases had been processed by the agencies during the reporting period.
Investigations were completed in two of these cases prior to 30 June 2015 and reports provided to the Inspector-General on the outcomes:
- An anonymous discloser raised concerns that sensitive information had been 'leaked' to a media outlet. Investigation of this concern revealed that this was an authorised rather than an unauthorised disclosure, and that no further action was warranted.
- A discloser alleged that partiality was shown in identifying staff who were to be made voluntary redundancy offers and in how some senior level appointments were made. The resulting investigation did not identify evidence of conduct which could be construed as amounting to maladministration, wastage of public money, or abuse of public trust, as alleged in the original disclosure.
The other two PID disclosures made directly to agencies were not pursued under the PID Act but are being investigated under other relevant Commonwealth laws. These investigations were ongoing as at 30 June 2015. One relates to alleged potential procurement fraud and the other is an allegation which is being investigated as a potential security matter.
The work of the OIGIS complements the work of the Commonwealth Ombudsman and there is a Memorandum of Understanding between the offices. During 2014–15 we continued to hold face to face meetings every two months at the Assistant IGIS/Deputy Ombudsman level. The purpose of these meetings was to ensure the coordination of our investigative activities, to reduce duplication of effort, and also to discuss issues of mutual interest including any legislative changes affecting integrity and oversight bodies.
The most frequent area of overlap between our respective offices relates to the handling of immigration and visa-related security assessment complaints. Where appropriate OIGIS officers either refer matters directly to the OCO or recommend to the visa applicant that they may wish to lodge a complaint with the OCO where the matter does not come within IGIS's jurisdiction, for example in cases where the application was never referred to ASIO for security checks. OIGIS staff also raise any systemic issues that appear to relate to Immigration with the OCO, for example in cases where that has apparently been prolonged delay by Immigration in processing certain visa applications.
This office also liaised closely with OCO during 2014–15 on the management of the Commonwealth's Public Interest Disclosure Scheme. While the Commonwealth Ombudsman has overarching responsibility for the operation of the PID scheme, IGIS is responsible for oversighting the scheme for the intelligence and security agencies.
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 human rights and discrimination matters relating to an act or practice of the intelligence and security agencies to the IGIS.
In this reporting period the AHRC referred three cases to IGIS. Broadly these cases alleged that:
- the failure by ASIO to provide access to sensitive records to a complainant was contrary to the complainant's human rights under the United Nations International Covenant on Civil and Political Rights (ICCPR)
- surveillance by ASIO, and interference in the complainant's personal affairs, was contrary to their human rights under the ICCPR
- the dismissal of an ASIO staff member on security grounds and the lack of any avenue for independent review of that decision was contrary to the International Labour Organization Convention (No.111) concerning Discrimination in Respect of Employment and Occupation.
In respect of the first complaint the Inspector-General found that while there had not been a breach of human rights ASIO had not handled a request for access to open period files as efficiently as it could have. The processing of the request was subject to a number of internal delays and it was apparent that the access request should have been resolved earlier. ASIO may not have prioritised the request appropriately, given the applicant's personal circumstances. The Inspector-General suggested to ASIO that it apologise for the delays which arose in its handling of the access request. ASIO wrote to the complainant explaining its reasons for the delay but did not make an apology.
The second matter is one that had been investigated by this office on a number of previous occasions. Having regard to all the circumstances the Inspector-General decided that further inquiry into the matter was not warranted.
Investigation into the third matter was ongoing at the end of the 2014–15 reporting period.
As discussed elsewhere in this report, we concluded one inquiry during the 2014–15 reporting period and a further one shortly afterwards.
The first of these inquiries examined the management of weapons by ASIS at a particular overseas location. This inquiry was completed 184 days after it commenced.
The IGIS Act has prescriptive and comprehensive procedural fairness requirements allowing individuals, agency heads and ministers the opportunity to comment on or discuss a report's findings before the report is finalised. It is not uncommon for these processes and requirements to take longer than the investigative phase of an inquiry and add months to the length an inquiry runs.
All contacts with the office were assessed promptly upon receipt during the reporting period, to determine whether they should be treated as a credible complaint requiring investigation, handled administratively, or referred to another agency (such as the Commonwealth Ombudsman) if they fall outside of IGIS jurisdiction.
We aim to acknowledge a written contact or complaint made to the IGIS within five business days. This benchmark is sometimes exceeded in cases where we are reliant on external inputs to our proposed response that take more than five days to be received, or due to unanticipated staff absences.
Of the 473 complaints about visa security assessments that were handled administratively during 2014–15, around 90 per cent were completed within two weeks of the complaint being received, with the average time taken being nine days.
For the 23 other complaints received and investigated by this office during 2014–15, 21 were finalised and 2 cases remained open as at 30 June 2015. 14 per cent of the finalised cases were completed within two weeks of the complaint being received (compared to 35 per cent in 2013–14), while the average time taken on each completed case was 52 days (compared to an average of 55 days in 2013–14).
These variations in timeliness for resolving complaints reflects wide differences in the nature of the complaints which the office receives, with common themes arising in many of the complaints we receive about visa security assessments compared to the diversity of complex issues that can arise in other types of complaints. We are also implementing changes to our management of complaints about ASIO to improve our direct access to ASIO information in order to reduce the time it takes to obtain relevant information.