Finance and Public Administration Legislation Committee
Estimates hearings, 22 May 2012
Office of the Inspector-General of Intelligence and Security
- Senator Evans, Minister for Tertiary Education, Skills, Science and Research, Leader of the Government in the Senate
- Dr Vivienne Thom, Inspector-General of Intelligence and Security
- Mr Jake Blight, Assistant Inspector-General of Intelligence and Security
- Ms Rachel Noble, acting Deputy National Security Adviser
Senator RHIANNON: The public version of your December 2011 report into Mr Habib's case was released in March this year. What is your assessment of the implementation of the recommendations you made, particularly to the AFP and ASIO, and do you have any role in the implementation of those recommendations?
Dr Thom: When I made the recommendations, I had discussions with the agencies and I was assured at that time that they would be implemented. I have written to the agencies and asked that they report back to me by 30 June on their implementation and also provide me with any updated policies so that I can report it in my annual report.
Senator RHIANNON: Does that mean that by 30 June you expect that the recommendations will have been implemented?
Dr Thom: I would hope that they have been implemented by 30 June, but I will be in a position to comment on the implementation in my annual report.
Senator RHIANNON: One of your recommendations was for an apology to be made to Maha Habib for:
... failing to keep her properly informed about Mr Mamdouh Habib's welfare and circumstances.
Your report outlines your reasons for this recommendation. Can you elaborate on what effect you think this would have on Mrs Habib receiving the apology?
Dr Thom: I do not know Mrs Habib personally so I cannot really comment on the effect it would have on her personally. But I think that when administrative action is deficient in some way, it is appropriate for government agencies to apologise in general.
Senator RHIANNON: You note in your report that Mr Habib did not provide you with an 840-word statement from an Egyptian intelligence officer. Is one of the documents Mr Habib provided you with the agreement he signed with the government regarding his compensation and the matters on which he should remain silent?
Dr Thom: Mr Habib did not provide me with that document.
Senator RHIANNON: With no documents?
Dr Thom: He did not provide me with that document.
Senator RHIANNON: To what extent are you continuing to monitor ASIO's use of its questioning and detention powers?
Dr Thom: ASIO has not used those powers in the last two years. However, were it to use those powers, my office would have to notified and I could choose to attend those questioning sessions, and I would in all likelihood attend or send a staff member to attend the questioning session.
Senator RHIANNON: When you say 'would have to be notified', at what point in the ASIO process do you have to be notified before it starts?
Dr Thom: My colleague is looking up the legislation, but I think it is when they intend to issue a warrant. I would expect some days notice.
Senator RHIANNON: Some days notice?
Dr Thom: I can clarify that. As soon as practicable is the answer.
Senator RHIANNON: So that leaves it up to ASIO really.
Dr Thom: I would expect, and I am sure, that they would provide me with sufficient notice for me to either attend personally or send an officer to attend.
Senator RHIANNON: Have there been any significant changes in the way that ASIO exercises those powers around questioning and detention? I appreciate you said that they have not happened lately, but anything that you can expand on or share with us would be useful.
Dr Thom: I have been in the position for two years and they have not been used in the time I have been in my current position, so I cannot really comment on any trends.
Senator RHIANNON: Between 2003 and 2005 ASIO obtained 14 questioning warrants. Since 2005, ASIO has only obtained two such warrants. Do you have any idea why so many warrants were issued between 2003 and 2005, and so few after that time?
Dr Thom: I cannot comment on that. I have no information about that.
Senator RHIANNON: Because it does not come under your terms of reference?
Dr Thom: Because I was not in the position at the relevant time.
Senator RHIANNON: I will move on to the whistleblower scheme. The government promised a bill to reform whistleblower laws, to bring in best practice legislation to protect public interest disclosures. A commitment was made to have this before parliament by June last year. As we know, however, it did not happen and there is no publicly available copy of the bill. A report released this month by the Media Entertainment and Arts Alliance, Kicking against the cornerstone of democracy, says that the government has failed to deliver on its 2007 pledge to reform the law to protect whistleblowers. Could you share with us your understanding of where this is up to? Has the bill hit a roadblock?
Dr Thom: The Department of the Prime Minister and Cabinet have policy responsibility for the bill, so they are best placed to advise you on that.
Senator RHIANNON: Is there somebody here who can help us?
Ms Noble: Yes, but I will have to take that on notice.
Senator RHIANNON: Can you tell us why it has not occurred and why there have been repeated delays? That is certainly how it appears.
Ms Noble: Okay.
Senator RHIANNON: Can you tell us if the bill has been drafted?
Ms Noble: No, I am sorry, I will have to take that on notice. I do not know.
Senator RHIANNON: Nobody knows? Minister?
Senator Chris Evans: I do not have any briefing on where this is up to, so I cannot help you out.
Senator RHIANNON: Hopefully, Ms Noble, you can share with us, or otherwise take on notice, the timeline for getting the new bill to a vote in parliament.
Ms Noble: We will take that on notice as well.
Senator RHIANNON: Will there be a consultation on the draft of the bill?
Ms Noble: Again, we will have to take that on notice.
Senator RHIANNON: How many staff in total are working on whistleblowers and what is the budget for that work?
Dr Thom: Are you referring to the policy development occurring within the Department of the Prime Minister and Cabinet or are you asking about my agency?
Senator RHIANNON: Your agency.
Dr Thom: In my agency, because the legislation is not through yet, we are not receiving any whistleblower complaints. We will of course have to prepare for the legislation and provide consultation comments on the draft bill. But at the moment we have nobody actually handling whistleblower complaints under that legislation.
Senator RHIANNON: What will activate the process for you—the legislation going through or notification from PM&C? How are you brought into the work on whistleblowers?
Dr Thom: We are having ongoing consultation with the relevant area in the department and will expect to be drafting guidelines on things when the legislation is framed.
Senator RHIANNON: You are saying that you are having ongoing negotiations. So there are negotiations about the legislation?
Dr Thom: I have not spoken to them for a while, but I think my staff have been having discussions with PM&C.
Senator RHIANNON: About the legislation?
Dr Thom: About legislation proposals.
Senator RHIANNON: Could you also take on notice what your understanding is of when the bill will be ready? If there are discussions going on about this, it sounds as if we are getting closer.
Senator Chris Evans: I think Dr Tom's evidence relates to discussing the nature of the legislation and its implications for her agency. The carriage is not with her. Ms Noble has taken those questions on notice and she will give you the advice about those things—about timeframes et cetera.
Senator RHIANNON: But it sounds as if there is interaction with the inspector-general's office on this precise thing.
Senator Chris Evans: You would expect them to be consulted about it, yes. But the management—where the buck stops-is not with Dr Thom. All I am saying is that she is not able to take your question on notice and come back to you. It is not within her control. Ms Noble will do that and you will get the answer from her
Senator RHIANNON: In the 2011-12 budget, there was new money for one new position to work on the whistleblower scheme. At the February 2011 estimates, we were told that the person would be working to implement the new whistleblowing provisions when the legislation was implemented. The legislation did not go through parliament, so what does this person do?
Dr Thom: I have a small office and to date that funding has been put towards building and sustaining the capability of the office in other ways—to deal with complaints and conduct inquiries.
Senator RHIANNON: So that person is employed?
Dr Thom: Yes.
Senator RHIANNON: But they are employed in this other way in your office?
Dr Thom: Yes.
Senator RHIANNON: Does that mean that, when the whistleblower legislation is passed and that person is needed, you would then need an additional person? It sounds as if that person is very busy with the important work of the office.
Dr Thom: In a small office with a fixed budget you always have to reprioritise and look at the tasks at hand. Were I to get whistleblowing complaints, I would reprioritise my work and deal with those complaints.
Senator RHIANNON: I would like to move to drones in Victoria. Victoria Police have flagged an interest.
Senator Chris Evans: You might want to specify that. I am thinking of a couple of people in particular!
Senator RHIANNON: I am glad you said it, Minister. The Victoria Police have flagged an interest in using drone technology for the collection of intelligence following a move towards the use of this technology in US. The AFP is also looking to this possibility. In the case that the technology were adopted, what powers of insight into the collection of intelligence via these means would your office required to ensure they are not used to infringe upon the civil rights and liberties of the community?
Dr Thom: At the outset I need to say that I do not have jurisdiction over either the Federal Police or any state police, but were one of the agencies I have oversight over to contemplate the use of such means, I would expect to be fully briefed as to what safeguards they would put in place—guidelines, procedures and policies.
Senator RHIANNON: So if you were required to look into the action of police forces using remote control surveillance, how much would you require in increased funding, staffing and resourcing because it is such a new area?
Dr Thom: I do not currently have the jurisdiction over those areas and it would be impossible to estimate.
Senator Chris Evans: It is highly hypothetical in the sense that you refer to Victoria Police and that is not the responsibility of the Inspector-General of Intelligence and Security. There are no current propositions that I am aware of or agencies in her area of responsibility to utilise that technology. Obviously, if it occurred—
Senator RHIANNON: I appreciate that, Minister. I admit I am concerned that in another estimates we will be coming back to it, maybe in a detailed way. Has your office undertaken any reviews or assessments of Australia's intelligence agencies' investigations into the WikiLeaks organisation or its editor-in-chief?
Dr Thom: I have received no complaints related to WikiLeaks and I have had no cause to initiate an inquiry or preliminary inquiry related to WikiLeaks.
Senator RHIANNON: Were there any recommendations coming out of the independent review of intelligence agencies—which was at last released in January this year—which affect the mandate practices or resourcing of IGIS?
Dr Thom: No.
Senator RHIANNON: Is the capacity of your office being maintained with the pace of security agency expansion?
Dr Thom: I believe we currently have sufficient resources to maintain adequate oversight of the security agencies.
Senator RHIANNON: I understand that last year you were given one additional staff.
Dr Thom: That is correct.
Senator RHIANNON: ASIO has had, however, an increase from nearly $400,000 to $410,000 just in the agency resourcing and ASIO staffing has increased to 1,760 with a target of 1,800. Is one additional staff member sufficient for you, considering the huge expansion?
Dr Thom: I am not sure what time period you are talking about for the ASIO increase in funding but although my office has been given only one additional staff member in the last two years, prior to that there was a period of expansion of the office. I do not have the exact figures at hand but certainly over the last five to seven years there has been an expansion. Also I do not think there is a direct correlation between the expansion of an agency and the needs of an agency that oversights it.
Senator RHIANNON: For the record, the figures I gave were from one financial year to the next, from 2011-12 to 2012-13. By what percentage do you expect to expand agency inspection activities?
Dr Thom: I have not planned all of my inspection activities for the next financial year, but I do not expect to expand the number of inspections over the next financial year.
Senator RHIANNON: You have previously stated that 25 to 30 per cent of ASIO investigations are closely scrutinised—so you think it will stay around that? Is that how I should read it?
Dr Thom: I am sorry; I do not know that statement came from, the 25 to 30 per cent of ASIO investigations—
Senator RHIANNON: Sorry, 25 to 33 per cent of ASIO investigations are closely scrutinised. That is what I have. And you called it a significant sample'
Dr Thom: I apologise, but I cannot recall where that statement came from.
Senator RHIANNON: Maybe I will put that on notice, and I will give you the source of that.
Dr Thom: Yes. Thank you.
Senator RHIANNON: Not worrying about the figures but just so I have a clear understanding, do you have targets to meet, and will you implement a target to ensure you can provide effective oversight to the intelligence community?
Dr Thom: I do not have externally directed targets. I really set my targets internally in terms of what I think is reasonable to maintain an effective oversight regime. There are targets in terms of timeliness in handling complaints; the numbers of, for example, warrants that we inspect; and timeliness in respect of handling preliminary and full inquiries. Those are the sorts of targets I set internally.
Senator RHIANNON: Okay. I will finish off with a few general questions so I get a better understanding of how it all works. You undertake proactive inspections of the activities of these various bodies. What proactive investigations did you conduct last year? I am interested in the details and what the outcome was—what you can share with us.
Dr Thom: It is all set out in the annual report. Regarding inspection activities, we do file based inspections of warrant files and—
Senator RHIANNON: They are publicly available, are they?
Dr Thom: No—
Senator Chris Evans: The annual report is publicly available.
Senator RHIANNON: I also want to know if there were any adverse findings against any intelligence agency. You have to do proactive investigations; I am just trying to get an idea of how much the committee and therefore the public can ascertain about them.
Dr Thom: It is all fully set out in the annual report. When we do a full inquiry, we provide a detailed report to the agency. When we do inspection activities, we examine the files at the agencies. That is really the proactive work that we do.
Senator RHIANNON: Can you describe how that is undertaken. Do you just arrive?
Dr Thom: At the end of my full inquiries and preliminary inquiries, I make recommendations to the agencies on how they might make improvements. Certainly, when we do the proactive inspections of, for example, their warrants, we raise any issues with the agencies and follow them up in detail later.
Senator RHIANNON: I am just trying to understand the process. A warrant is issued, and therefore the agency knows that you will be making an inspection?
Dr Thom: Yes.
Senator RHIANNON: Right. How much warning to they have?
Dr Thom: They know that we go regularly to their premises and inspect their files. For example, we go to the ASIO premises about once a month and inspect their files. So they know that, for every warrant, there is a fair chance that the records of that warrant will be inspected at some stage.
Senator RHIANNON: Do they know which files you will inspect when you arrive?
Mr Blight: Senator, we do a mixture of things. We get their entire list of warrants and, depending on the resources available, sometimes we check all of them and sometimes we make either a selection based on risk or a random selection, so they do not know which ones it will be. If we need more files, we request them.
Senator RHIANNON: Did any of your investigations in the previous year make any adverse findings against any intelligence agency?
Dr Thom: In terms of major inquiries, the Habib inquiry led to some recommendations and findings. Some of the other inquiries led to some recommendations for them to improve their processes, which I cannot go into now. With most inspections, although we do not make formal adverse findings, we often find ways that they can improve their processes.
Senator RHIANNON: As you released considerable details of Mr Habib's case, are you able to release a similar amount of detail about these other cases?
Dr Thom: No, I am not able to release any further details about the other cases. In my annual report, I put as much information as I am able to put without prejudicing security. There is no further information that I can provide.
Senator RHIANNON: Can you explain why it seems that there was much more detail provided about Mr Habib's case compared to the other investigations you are undertaking?
Dr Thom: There are a number of reasons for that. Firstly, a lot of the information that was in the public report was already publicly available in some form. It relates to events that happened some 10 years ago and, because of the high public interest in the matter, I thought it was really important to put as much information out into the public domain as possible. But the report does not release any information about, for example, ASIO's operations.
Senator RHIANNON: So would public interest in an issue be a determining factor in what you might release?
Dr Thom: There is still the constraint that I cannot release material that would prejudice security, international relations, law enforcement or the privacy of individuals. That is an overriding constraint.
Senator RHIANNON: Maybe to ask that again, obviously you have to respect all of those requirements but if there was considerable interest in a case, like with Mr Habib's or Mr Haneef's, would that influence you then to do a more detailed report and provide more information to the public?
Dr Thom: More information to the public but still subject to those constraints.
Senator RHIANNON: Last year, did IGIS conduct any inquiries as a result of a complaint given to you or as a request from a relevant minister?
Dr Thom: The inquiry into the actions of Australian agencies in relation to Mr Habib arose as a request from the Prime Minister. The inquiry that I completed last year into the Defence Security Authority also arose as a result of a request from the Prime Minister. There was a further one from a minister but I cannot give you any details of that inquiry.
Senator RHIANNON: When you say you cannot give any details—
Dr Thom: Provide any details of that inquiry at present. It is still being conducted.
Senator RHIANNON: Does that mean you cannot say who the minister was or would that—
Dr Thom: I would rather not say anything about that inquiry.
Senator RHIANNON: Thank you very much.