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FINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE
24/05/2010
PRIME MINISTER AND CABINET PORTFOLIO
Office of the Inspector-General of Intelligence and Security

CHAIR —I welcome Dr Thom, Acting Inspector-General of Intelligence and Security. I apologise for the delay. We have a senator who is otherwise engaged in another committee. Do you have an opening statement to make?

Dr Thom —No, I do not.

CHAIR —In that case we will go to the expert, Senator Ryan.

Senator RYAN —Apologies for the delay, Dr Thom. I note that there are no budget measures for the office of the inspector-general. But in your portfolio budget statement there was an indication that the new whistleblower legislation may actually place a slight burden or have a potential impact, as it is described. Could you explain how that will relate to the office of the inspector-general and whether you are expecting an impact or that is just a contingency.

Dr Thom —Under the proposed legislation we have a role in respect of whistleblowing complaints about the intelligence and security agencies. At the moment the legislation has not been passed and I think it is not expected to be implemented or to commence until at least the beginning of 2011. It is very difficult to predict how many of these complaints we will get. We do get some complaints at the moment that could be characterised as whistleblowing complaints, but we would not anticipate a huge increase. We will have a role in formulating some guidelines for agencies, but at the moment I think it is too early to predict how much the workload would be, and we anticipate that in the first six months at least we will be able to absorb it within our existing resources.

Senator RYAN —Excuse my ignorance—I am not familiar with the bill. In short, what role does the inspector-general have with respect to whistleblowing and how does it operate within the intelligence community?

Senator Ludwig —Where there are security related issues, it would then go to IGIS, if the relevant agency could not deal with it. I guess that is a shorthand way of expressing it. So we would not know exactly how many there would be. I would not expect a high volume, quite frankly. These are professional people working in very difficult areas, but nonetheless, because of the security sensitive nature of the work that they deal with, it would be appropriate for such legislation to use IGIS. The Ombudsman and IGIS would work hand in glove. The Ombudsman would broadly deal with the Australian Public Service matters and the IGIS would then deal with the security agency related ones.

Senator RYAN —That would obviously involve protecting confidential information, because I assume in that case the Ombudsman is not necessarily cleared, for lack of a better word, to deal with what may or may not arise.

Senator Ludwig —I did not want to get into second-guessing, but you could imagine—perhaps I am now doing that. But it is for what you would classify as sensitive security related matters, and I would be the appropriate person for that person to subsequently go to if the own agency at first instance did not deal with it appropriately or if it was necessary as part of the legislative scheme to go to the IGIS as the next step.

Senator RYAN —Again, I am not familiar with the bill, but an investigation, for lack of a better way of putting it, would be potentially undertaken by IGIS. How would IGIS report that and to whom? Or is action taken by the inspector-general?

Senator Ludwig —It would depend on if there is anything in the public interest disclosure. But, given that what we have done to date is to provide a response, the legislation will be drafted and when that is introduced I think the way it all gels together will be a little clearer.

Senator RYAN —Sure.

Senator Ludwig —But ostensibly, as I think I indicated, complaints would go to the Ombudsman at first instance or the own agency, and only intelligence complaints would go to IGIS, if they are related to sensitive security information or the like. There would not be, and you would not expect, public reporting of intelligence material. It may be reported as a fact of the complaint, but certainly you would not have this area providing a public report of what would otherwise be sensitive security related information.

Senator RYAN —Thank you, Minister.

Senator TROOD —My apologies, Chair, I was delayed by ASIO.

CHAIR —You have the call now, so the floor is yours.

Senator Ludwig —You can put that on the transcript, anyway!

Senator JACINTA COLLINS —In the corridor, or in another committee?

Senator Ludwig —With a dark room!

Senator TROOD —Senator Ryan can testify to where I have been. I assume we are doing OIGIS, are we?

CHAIR —That is where we are.

Senator TROOD —I will begin by dealing with the matter of Mr Carnell’s replacement. Are you able to—

Dr Thom —I am acting at the moment.

Senator TROOD —I understand that.

Dr Thom —There is a selection process underway.

Senator TROOD —I understand that as well. But there are some questions that I have with regard to the matter. You are the Deputy Commonwealth Ombudsman, as I understand it.

Dr Thom —Yes.

Senator TROOD —Are you continuing to perform those functions while you are performing these functions?

Dr Thom —No, I am not. I am full-time in the role at the moment.

Senator TROOD —Are you in that role until such time as a replacement for Mr Carnell has been found?

Dr Thom —The instrument states that the time in it is for three months or less if a replacement is put in the position within that three-month period.

Senator TROOD —I see. And when do the three months expire?

Dr Thom —I think I started on 10 April, so three months from that date: 10 July.

Senator TROOD —Can you tell us whether any progress has been made in securing a replacement for Mr Carnell?

Senator Ludwig —It would be a matter for Prime Minister and Cabinet to advise tomorrow because it goes through a merit selection process, and my recollection is that the secretaries conduct that. If you hold that question for tomorrow they will be able to describe where they are up to in the process.

Senator TROOD —And I can cite you, Senator Ludwig, as being the authority—

Senator Ludwig —You can also ask—

Dr Thom —Prime Minister and Cabinet is running the process.

Senator TROOD —Okay, that is fine; I can hold those questions over until tomorrow. Just in relation to the work of the office: do you have any statistics about complaints against ASIO that you have received over the last financial year?

Dr Thom —Yes, I do have statistics in relation to their security assessment processes in particular.

Senator TROOD —And what are those figures?

Dr Thom —I can give you the statistics for the last two financial years and year to date for this financial year. In 2007-08 there were 193 complaints about their security assessment processes; in the last financial year there were 157 and for the year to date there are 850.

Senator TROOD —Eight hundred and fifty! Is that up until today?

Dr Thom —That is up until 30 April; it is for the first three quarters of this financial year.

Senator TROOD —So it is ¾ of a financial year, more or less?

Dr Thom —Yes.

Senator TROOD —And there has been an almost exponential increase in the number of complaints, from 157 in 2008-09 to 850?

Dr Thom —Yes, there has been a large increase.

Senator TROOD —And these are about ASIO, is that right?

Dr Thom —Yes.

Senator TROOD —And they are about ASIO’s work in relation to security assessments of—

Dr Thom —They are largely about the timeliness of the security assessments.

Senator TROOD —In other words, the time they are taking to complete the assessments.

Dr Thom —Yes, that is right.

Senator TROOD —Are they all about that?

Dr Thom —No, 842 were to do with timeliness; eight were to do with other matters.

Senator TROOD —Of this year’s—

Dr Thom —This current financial year?

Senator TROOD —Yes, the current financial year—of the 850, how many of those have now been disposed of by your office?

Dr Thom —When you say disposed of, we do not have any inquiries currently underway about any of them.

Senator TROOD —So they have been completed?

Dr Thom —Sorry, that is wrong. We do have one preliminary inquiry about one of them. We have investigated a number of them, but we have not found any reason to believe that ASIO has acted unreasonably, and we have closed the complaints, by and large.

Senator TROOD —Is that true of all 850? You said there is one on foot.

Dr Thom —There is one on foot.

Senator TROOD —Is that true of all of the 849?

Dr Thom —We have not investigated all of them, but the ones we have investigated we have closed.

Senator TROOD —Why do you not investigate all of them?

Dr Thom —Because they are largely about delay. They have similar characteristics and it is not efficient to investigate each and every one. We refer them to ASIO. We ask for information, we look at the information and decide whether to investigate them.

Senator TROOD —How do you select which ones you are investigating? Do you make a judgment on the basis of the initial response from ASIO?

Dr Thom —With the large increase, it has taken us a little while to work out how we should be selecting the ones that we investigate. I think that is still a work in progress but we do look at the information that comes from ASIO and we look at the characteristics of the complaint. Where there are a large number with similar characteristics it is not efficient to investigate all of them.

Senator TROOD —Do you keep any statistics about the country of origin of the people who are complaining about ASIO?

Dr Thom —I do not have the statistics with me.

Senator TROOD —But you do keep the statistics?

Dr Thom —I think we do have some breakdown but I am not sure of the exact breakdown.

Senator TROOD —Could you take that on notice for me?

Dr Thom —I can. Could you clarify the question?

Senator TROOD —What I am interested in is the country of origin of the complaints about the speed with which ASIO is undertaking its assessments. Have you considered why there has been such a substantial increase?

Dr Thom —We believe there has been a substantial increase because of the increase in activity, the increase in the numbers of assessments they are having to conduct and the resource implications of the number of assessments.

Senator TROOD —So it is a consequence of the number of people arriving as asylum seekers?

Dr Thom —Not necessarily just asylum seekers but the overall workload of ASIO in their assessment process.

Senator TROOD —For the 850 this year do you have a breakdown of the categories of these people?

Dr Thom —I do not have a complete breakdown—205 were made from individuals located in Christmas Island immigration detention centre.

Senator TROOD —Do you mean that you do not have the breakdown with you or you do not keep the statistics?

Dr Thom —I am not sure exactly how we breakdown those numbers. I do not have them with me.

Senator TROOD —You are not sure whether you do that kind of thing or you are not sure whether or not you actually compile those numbers? Perhaps you could explore that with your office.

Dr Thom —I can do.

Senator TROOD —Perhaps you can provide that information on notice as well, that is to say the categories in relation to these complaints by asylum seekers. Would it include people who come by other means? The phrase that ASIO uses is, I think, ‘irregular maritime rivals’.

Dr Thom —I think it does, but I would need to clarify that and get back to you.

Senator TROOD —If you could do that, I would be grateful. Are you confident that you have the resources to continue to deal with such a substantial increase in claims?

Dr Thom —I do not think we have a problem with resources. We have two staff exclusively working on processing complaints. I think even with additional resourcing it would not be efficient or effective to investigate each and every complaint. We understand that the root of the problem is the increase in the number of assessments that ASIO has had to perform and then resource allocation to those assessments. I do not believe that putting in extra resources from us would actually help resolve those issues.

Senator TROOD —It would not help you to resolve them or it would not help—

Dr Thom —It would not provide a resolution for the people who are seeking to have the security assessments done in a more timely way.

Senator TROOD —That is not your responsibility is it—to undertake the security assessments in a more timely fashion?

Dr Thom —No, but we believe that we understand the issues that ASIO is facing in doing these security assessments and just seeking more information on each and every complaint will not in fact expedite the process.

Senator TROOD —On the matter of staffing for the office, I think I am right in saying there are no increases in staff allocated under this budget.

Dr Thom —There is one extra ASL compared to the previous year. For 2009-10 we have an estimated average staffing level of 12. For the next financial year, there is an estimated staffing level of 13—not including the Inspector-General position.

Senator TROOD —But it is not significant, is it?

Dr Thom —No.

Senator TROOD —Bear with me as I seek to understand the new responsibilities that have been given to the Inspector-General’s office over the past 12 months, perhaps even less time. It relates to new functions in relation to freedom of information, as I understand it, to appear before the Administrative Appeals Tribunal. It relates to public interest disclosures. There is an increasing responsibility under national security legislation with regard to intelligence and security matters of departments and agencies. There is a potential increase in the demands on the office with regard to changes to the Archives Act over the next period of time. How do you anticipate you are going to meet all of these demands with the staffing numbers that you have?

Dr Thom —In respect of the changes to the FOI Act, there were some in the new legislation but there are some that have already commenced and the Inspector-General has a role, particularly with the AAT, in terms of material that might be sensitive or top-secret. We have not been called upon yet to fulfil that role. We do not expect it to happen very often; we do not think it would be a significant impost on our resources. In terms of the public interest disclosure, I have already explained that that does not commence for at least another six months. Again, we would not expect to see a significant increase within the next financial year of the numbers of complaints to the office. If we were to have to do a number of significant inquiries, we would have to seek additional resources, but at the moment, with the predicted workload, we believe that we have enough resources to do it.

Senator TROOD —So you are confident that the 13 you will have will be sufficient to cover all of these additional areas of activity?

Dr Thom —We do not expect to have very large workloads associated with those new roles.

Senator TROOD —I see. Apart from ASIO, have there been any significant increases in the demands on the Inspector-General with regard to other agencies?

Dr Thom —I have been in the position for six weeks and I am not aware of any. None have been brought to my attention and I do not have any statistics indicate that.

Senator TROOD —Maybe you can take that on notice as well just to see whether or not there hasn’t been.

Dr Thom —Yes.

Senator TROOD —I think the Director-General of ASIO just used the word ‘surge’ in relation to some of the evidence he has given. Has there been a surge in demand for your services in relation to any other agency or any other area of work besides ASIO? I would be interested to know.

Dr Thom —Not that I am aware of.

Senator TROOD —Can you take that on notice. I will leave the matter of Mr Carnell’s replacement until tomorrow.

CHAIR —Dr Thom, as there are no further questions, I thank you very much. Enjoy the rest of your evening.

 [9.19 pm]