Introductory Info
Date introduced: 30 November 2022
House: House of Representatives
Portfolio: Attorney-General
Commencement: Schedules 1 and 3 commence the day after Royal Assent.
Part 1 of Schedule 2 commences the later of immediately after the commencement of Schedule 1, and the commencement of Parts 2 to 9 of the National Anti-Corruption Commission Act 2022 (Anti-Corruption Act 2022) (but will not commence at all if Parts 2 to 9 of the Anti-Corruption Commission Act do not commence).
Part 2 of Schedule 2 commences immediately after the commencement of Schedule 1 (but will not commence at all if Parts 2 to 9 of the Anti‑Corruption Act 2022 commence before that time).
Purpose of
the Bill
The primary purpose of the Inspector-General
of Intelligence and Security and Other Legislation Amendment (Modernisation)
Bill 2022 (the Bill) is to amend the Inspector-General
of Intelligence and Security Act 1986 (the IGIS Act) to:
- ensure
that the enabling legislation of the Office of the Inspector-General of
Intelligence and Security (IGIS) is contemporary by clarifying and modernising
drafting expressions, removing redundant provisions and enhancing the IGIS’s
oversight powers
- enhance
the oversight functions and powers of the IGIS and ensure that IGIS officials
have full access to relevant information by support information sharing,
including by allowing protected information to be disclosed to IGIS without
breaching secrecy obligations and
- implement
Recommendations 172 and 174 of the Comprehensive
Review of the Legal Framework of the National Intelligence Community
(National Intelligence Review) relating to
- the
appointment of the IGIS Inspector-General and
- consideration
of employment related grievances (Explanatory
Memorandum (EM), p. 4).
Structure
The Bill is divided into three Schedules.
Schedule 1 has two parts. Part 1 contains the
primary amendments to the IGIS Act which the Government states are aimed
at improving and streamlining IGIS reporting and information sharing procedures,
as well as modernising and clarifying drafting expressions and removing
redundant provisions. (EM, p. 4).
Part 2 of Schedule 1 contains consequential
amendments to a wide range of related legislation[1]
including the Australian
Human Rights Commission Act 1986, Australian Security
Intelligence Organisation Act 1979 (ASIO Act), Intelligence
Services Act 2001 (IS Act) and Office of National
Intelligence Act 2018 (ONI Act). Schedule 2 includes amendments
in line with the National
Anti-Corruption Commission Act 2022 (EM, p. 4).
Schedule 3 contains application and transitional
provisions.
Background
The Inspector-General
of Intelligence and Security (IGIS) is an independent statutory office
holder in Australia established under the IGIS Act. It reviews the
activities of Australia's intelligence and security agencies to ensure they are
acting with legality, propriety and consistency with human rights. The IGIS has
the power to investigate certain complaints, conduct own-motion inquiries,
inquiries as directed by a Minister, and has the power to access information
held by intelligence agencies when doing so. In doing so, the IGIS aims to:
- ‘ensure
that the public interest in the proper functioning of the security and
intelligence agencies is met’[2]
and
- promote
public confidence in the National Intelligence Community (NIC).[3]
Purpose and
functions of the Inspector-General of Intelligence and Security
The purposes of the IGIS include assisting ministers in
the oversight and review of:
- legal
compliance and propriety of intelligence agencies, effectiveness and
appropriateness of the procedures of intelligence agencies and other aspects relating
to the activities and procedures of those agencies
- ensuring
that the activities of intelligence agencies are in alignment with human rights
- investigating
Commonwealth agency intelligence or security matters which can include agencies
that are not intelligence agencies and
- assisting
the Government in assuring Parliament and the public that there is scrutiny of
intelligence and security matters associated with Commonwealth agencies with a
focus on intelligence agencies (section 4 of the IGIS Act; Inspector-General
of Intelligence and Security: 2021–2022 Annual Report, p. 6).
The IGIS reviews the following intelligence agencies under
its jurisdiction:
IGIS also has
oversight of network activity warrants by the Australian Criminal Intelligence Commission
(ACIC) and the Australian Federal Police
(AFP).
In fulfilling the above purposes and powers, the IGIS has
the power to formally inquire into the activities of Australian intelligence
agencies in instances of a complaint or a reference from a minister. The
Inspector-General can also initiate inquiries, conduct inspections, and monitor
agencies and, in some instances, investigate complaints. When conducting
inquiries, the Inspector-General has
the power to require the attendance of a witness, take sworn evidence, copy
and retain documents and enter the premises of Australian intelligence agencies,
among others.[5]
Review of
the Legal Framework of the National Intelligence Community
The National Intelligence Review was commissioned by the then
Attorney-General on 30 May 2018 and was undertaken by Mr Dennis
Richardson AC. The terms
of reference of the review provided that the review would ‘comprehensively
examine the effectiveness of the legislative framework for the National
Intelligence Community (NIC) and prepare findings and recommendations for any
reforms.’ (p. 1).
Outcomes of the review were delivered
in a report released by the Attorney-General on 4 December 2020.
With respect to the amendments in the Bill, relevant recommendations included:
- Recommendation
172: ‘The Inspector-General of Intelligence and Security Act should be amended
to preclude the appointment to the Office of the IGIS of a person whose
immediate prior role was as head or deputy head of an agency within the IGIS’
oversight remit.’ (volume 1, p. 81)
- Recommendation
174: ‘The Inspector-General of Intelligence and Security Act should be amended
to give the IGIS an inquiry function for employment related grievances of staff
employed under the Office of National Intelligence Act.’ (volume 1, p. 81).
The Government
response to the report was released on the same day as the report. With
respect to Recommendations 172 and 174, the Government noted:
- Recommendation
172: ‘Agreed. The IGIS has a unique role as the primary body with
responsibility for intelligence oversight. Accordingly, this additional
safeguard on IGIS's independence (and perceived independence) is appropriate.’
(p. 44).
- Recommendation
174: ‘Agreed.’ (p. 45).
Committee
consideration
Senate
Standing Committee for the Selection of Bills
At the time of writing, the Senate Standing Committee for
the Selection of Bills had deferred consideration of the Bill to its next
meeting (Report
No. 8 of 2022).
Senate Standing
Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not yet considered the Bill (Index
of Bills Considered by the Committee as of 24 November 2022).
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents have not commented publicly on the Bill.
Position of
major interest groups
At the time of writing, no major interest groups have
commented publicly on the Bill.
Financial
implications
The EM to the Bill states the Bill will not have a
financial impact on the Commonwealth (p. 5).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth),
the Government has assessed the Bill’s compatibility with the human rights and
freedoms recognised or declared in the international instruments listed in
section 3 of that Act. The Government considers that the Bill is compatible
(EM, p. 6).
On the human rights implications of the Bill, the EM
notes (p. 10):
The Bill is compatible with human rights because it promotes
compliance with the protection of human rights through enhanced oversight of
intelligence agencies’ activities. To the extent that human rights are limited,
these limitations are proportionate and rationally connected to achieving the
legitimate objectives of overseeing intelligence activities, and ensure
adequate safeguards are in place to protect against improper interference with
individuals’ human rights.
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights has not considered the Bill. A
Scrutiny Report has not been released since the Bill was introduced.
Key issues
and provisions
The following are a selection of issues and provisions
contained in the Bill. For a more comprehensive list please see the Bill
itself and the EM.
Appointment
to the Office of the IGIS
Currently the IGIS Act does not impose any criteria
or limitation on who may be appointed as the IGIS, such as having certain
qualifications or experience, other than imposing consultation requirements,
namely that the Prime Minister must consult with the Leader of the Opposition
in the House of Representatives prior to making a recommendation to the
Governor-General regarding an appointment (subsection 6(3)).
This is similar to the provisions dealing with the
appointment of the Directors-General of ASIO, ASIS, ASD, Ombudsman and ONI, but
contrasts with the Integrity Commissioner (which requires the Director-General
to be a Judge or legal practitioner).[6]
In contrast, appointment to some other statutory positions
requires that a person meet certain specified criteria.[7]
Proposed
reforms to how members will be appointed to the body that will replace the
Administrative Appeals Tribunal seek to do the same.
National
Intelligence Review
The National Intelligence Review noted that:
To maintain the institutional integrity of the role,
individuals appointed to the role of IGIS should be capable of commanding the
trust and confidence of the public by virtue of their integrity, impartiality
and diligence. Securing these qualities is the overwhelming priority. The IGIS,
in discussions with the Review, expressed the view that while both the IGIS’
substantive capacity and public perception of that substantive capacity are
important, ultimately it was most important for the IGIS to be impartial and
independent.[8]
In this regard, the National Intelligence Review endorsed
the view put forward in the Second Hope Royal Commission, which recommended the
establishment of the IGIS, namely that:
Integrity, independence of mind and a capacity for rigorous
inquiry are obvious prerequisites. Experience in public administration would be
an advantage, as would some previous acquaintance with relevant areas. But
prior employment in, or a very close association with, security or intelligence
agencies would generally not be appropriate.[9]
This view is reflected in Recommendation 172, which provides
that the IGIS Act should be amended so that an individual cannot be
appointed to the Office of the IGIS if their immediate prior role was a head or
deputy of an intelligence agency with IGIS oversight (National Intelligence
Review, volume 1, p. 81).
New criteria
Recommendation 172 of the National Intelligence Review is
reflected in proposed subsection 6(3A)[10]
which provides:
A person must not be appointed as Inspector-General if the
person is, or the person’s most recent position was, the head or a deputy head
(however described) of an intelligence agency.
No other amendments are made to who can, or cannot be,
appointed as the IGIS.
The role of
prior experience and importance of public confidence
The Government notes that experience in an intelligence
agency does not mean that a person has a bias. The EM to the Bill explains: ‘It
is important to clarify that an individual having some experience within
intelligence agencies does not necessarily create bias within that person, such
that would prevent them from providing robust oversight.’ (EM, p. 14).
To clarify the impact of previous experience on the
appointment of an individual to the role of Inspector-General, the Government
clarifies that ‘some period of service within an intelligence agency does not
necessarily preclude a person from being appointed as the Inspector-General in
the future.’ (p. 14). This qualification proposed in the Bill is said by the
Government to reflect the importance of the independence of the role of the
Inspector-General from the intelligence agencies that IGIS oversees (EM, p.
14).
The Government highlights the maintenance of public
confidence as a key consideration in proposing this amendment. This is due to
the importance of the public perception of the integrity of the office which
‘would be damaged if a person who was seen to be too closely connected with an
intelligence agency were to move directly from being overseen to being the
overseer.’ (EM, p. 14).
The concern addressed by the Bill over an individual being
‘seen to be too closely connected with an intelligence agency' (EM, p.
14) highlights considerations of public perception in proposing these
amendments. The importance of the independence of the role of Inspector-General
is however not just measured by public perception, but by practice.
The independence must be seen but it must also be genuine.
The EM notes that ‘this amendment reflects the importance of ensuring the
Inspector-General is, and is seen to be, independent from the agencies
they oversee to maintaining public confidence in the office.’ (EM, p. 14).
The Bill, therefore, addresses a potentially damaging
situation where the positive public perception of IGIS’s independence may be
jeopardised if, for example, an individual who was head of an intelligence
agency was subsequently appointed Inspector-General of Intelligence and
Security without a break in between the two positions. This hypothetical
appointment would give the individual the remit to review the agency that they
had previously headed, amongst other agencies within IGIS’s jurisdiction, which
may cause negative public perception.
Despite this, the Bill does not seek to provide any other
criteria to guide the appointment of the IGIS such as the person being ‘suitable
for appointment because of the person’s qualifications, training or experience’.[11]
Broadening
of oversight role of the IGIS
The IGIS is responsible for a range of oversight
functions, including the intelligence agency inquiry functions set out in section
8 of the IGIS Act. Importantly, the circumstances in which IGIS can
exercise its oversight powers currently varies according to the relevant
agency.
The Government explains that ‘successive Governments,
Parliaments and independent reviews have placed emphasis and value on the role
of the IGIS in reviewing all aspects of intelligence agencies’ actions and
activities, without reference to distinctions or limitations of the kind
contemplated by the original policy justification underlying subsection 8(4)’
(namely the legality and propriety of actions undertaken in Australia or
affecting Australian citizens) (EM, p. 19).
The amendments discussed below reflect that view.
Oversight
over ASIS, AGO and ASD
Currently, the oversight functions of IGIS over ASIS, AGO
and ASD are limited so that the IGIS cannot commence an own-motion inquiry or
respond to a complaint where it does not involve actions taken by those
agencies that affect either an Australian citizen or permanent resident, or involve
the violation of a law of the Commonwealth, state or territory.[12]
This current restriction reflects the original policy
position adopted in the IGIS Act and the belief that the jurisdiction of
IGIS ‘should be limited to reviewing, and providing assurance to Ministers
about, the legality and propriety of actions undertaken in Australia, or
affecting Australian citizens; rather than performing a broader check on all
aspects of these agencies’ (EM, pp. 18–19).
The Bill repeals subsection 8(4) (item 23). This
removes the need for that nexus in the exercise of IGIS’s functions in relation
to ASIS, AGO and ASD. The effect of this amendment, and others discussed below,
is to broaden the oversight role of the Inspector-General in relation to ASIS,
AGO and ASD, and align it with the oversight functions of the IGIS in relation
to other agencies, subject to the limitations discussed below.
The IGIS would still be able to commence own-motion
inquiries (or inquiries in response to a request from the Attorney-General or
responsible Minister) into matters without an Australian nexus, thus ensuring
that there is not a gap in oversight (EM, p. 19).
Oversight
over DIO and ONI
Currently IGIS can only conduct inquiries into DIO or ONI
if it is upon the request of the Attorney‑General, the responsible
Minister or on the IGIS’ own motion (see subsections 8(3)(a) and (b)). That is,
unlike its oversight powers in relation to ASIO, ASIS, AGO, ASD, ACIC or the
AFP, the IGIS cannot conduct inquiries in relation to the DIO or ONI in response
to complaints.[13]
Item 20 repeals and replaces paragraphs 8(3)(a) and
8(3)(b) so that IGIS can inquire into matters in response to a complaint in
relation to the DIO or ONI, subject to the limitations discussed below. The EM
notes that the justification for this is to provide greater consistency (p.
16):
Enabling the IGIS to consider complaints would provide
greater consistency with IGIS’s functions across the agencies IGIS oversees, as
well as reflecting the potential impact that analytical agencies such as DIO
and ONI can have on Australian citizens or permanent residents.
Definition
of permanent residents
Currently, the IGIS Act provides that certain
functions of the IGIS are only relevant in relation to Australian citizens and
permanent residents.[14]
Whilst the Bill retains these limitations, it makes
various amendments to ensure that uses of the term ‘permanent resident’ in the IGIS
Act would be by reference to the definitions in the ASIO Act, IS
Act or ONI Act (as appropriate).[15]
The effect of this is to align the meaning of the term ‘permanent resident’ for
the purposes of IGIS oversight with the meaning of that term in the legislation
governing the particular intelligence agency that is subject to oversight.
Due to the existing definitions of a ‘permanent resident’
in those Acts, another effect of the amendments is that permanent residents
will include both natural persons as well as some categories of bodies
corporate. In this regard the EM (p. 12) notes:
Using these definitions would clarify the IGIS’s ability to
receive complaints from both natural persons and bodies corporate. This is
appropriate as intelligence agencies can perform functions in relation to
bodies corporate, as well as individuals (for example, the use of industry
assistance powers under the Telecommunications Act).
Matters
occurring outside Australia
Under the existing IGIS Act, IGIS is required to
obtain the approval of the relevant responsible Minister or Prime Minister
(where applicable) when inquiring into matters relating to a Commonwealth
agency that have occurred outside of Australia (existing paragraph 9AA(a)). Item 34
repeals this requirement.
This means that the IGIS will be able to inquire into a
matter relating to a Commonwealth agency that occurred outside of Australia on
its own motion, as directed by the Attorney-General or responsible Minister, or
in response to a complaint by an Australian citizen or permanent resident. The
Government notes that this requirement is repealed to reflect Australians
moving abroad and an increase in the number of Australian laws with
extraterritorial application. The Government explains that the result of this
internationalisation is that (EM, p. 22):
… the activities of agencies that are undertaken wholly
outside Australia are far more likely to have an impact on Australian persons
(including members of the agencies themselves) and be subject to Australian
laws than was the case at the commencement and over the first 10 years of
operation of the IGIS Act.
Inquiry
into human rights issues
The Australian Human
Rights Commission (AHRC) was established by
the Australian Human Rights
Commission Act 1986 with its role including investigating and
conciliating discrimination and human rights complaints.
Currently, the IGIS has the function of inquiring into
matters relating to acts by ASIO, ASIS, AGO, ASD, DIO, ONI, ACIC or the AFP that:
- is
or may be inconsistent with or contrary to any human right, that constitutes or
may constitute discrimination
- that
is or may be unlawful under Commonwealth anti-discrimination legislation and
- was
referred to the Inspector General by the AHRC.[16]
The Bill removes references to referral of matters from the
AHRC, meaning that the IGIS will be able to inquire into such matters, without
a referral from the AHRC.[17]
The IGIS will remain able to inquire into such a situation when it is in
response to a complaint, at the request of the Attorney-General, the
responsible Minister or by IGIS’ own motion.
Information
gathering powers
As noted above, currently the IGIS has the power to require the
attendance of a witness, take sworn evidence, copy and retain documents and enter
the premises of Australian intelligence agencies, among others. However, those
powers are found in a few different provisions.[18]
Currently existing subsection 9A(2) provides that when
conducting an inspection in relation to AFP or ACIC, the IGIS, or a member of
staff assisting the IGIS, are entitled to:
- enter
and remain on any premises at all reasonable times
- all
reasonable facilities and assistance that the head of the agency is capable of
providing
- full
and free access at all reasonable times to any information, documents or other
property of the agency, and
- examine,
make copies or take extracts from any information or documents.
Item 37 amends existing subsection 9A(2) to apply the
above powers to inspections of any intelligence agency, rather than just the
AFP and ACIC.
In relation to ASIS however, proposed paragraphs
9A(2)(a) and (b) and proposed subsection 19(2) provide that the
IGIS does not have the right to enter premises occupied in another country by
ASIS unless the Director-General of ASIS and the IGIS have made arrangements
relating to entry. The Explanatory Memorandum notes that:
This is intended to reflect that ASIS, as Australia’s foreign
intelligence service, is predominantly located overseas, and as such,
particular practical considerations are required for the IGIS to visit a site.
(EM, para 102)
Information
sharing
Currently, the IGIS Act contains a series of
limited, ad-hoc, provisions that explicitly deal with information
sharing.[19]
Despite this, the IGIS has noted ‘information sharing with other integrity
bodies is, arguably, already implicitly permitted by the IGIS
Act’.[20]
[emphasis added]
The Bill repeals and replaces the existing information
sharing provisions in Part IIIA of the IGIS Act, with the effect that
the IGIS is expressly empowered to share information obtained generally by an
IGIS official in the course of exercising powers, or performing functions or
duties, as an IGIS official with an integrity body (item 131,
proposed sections 32AF to 32AH).
Amendments are proposed by the Bill which focus on
managing the duplication of oversight between the IGIS and other integrity
bodies (item 131, proposed subsections 32AB), alongside
amendments which facilitate information‑sharing and complaints transfer
between the IGIS and other integrity bodies (item 131). The EM states
that the intention is to (p. 48):
… reduce the potential for duplication of individual
oversight activities by integrity bodies through the sharing of information and
cooperation. For example, if the IGIS were to share information with another
integrity body it may enable that integrity body to satisfy itself that there
are no further issues arising in respect of its specific statutory functions
that would require it to undertake separate oversight activity in relation to
that matter. Sharing information to avoid duplication reduces administrative
burdens on both overseen agencies and integrity bodies.
IGIS
inquiry function for employment related grievances
Currently, the IGIS can receive and inquire into employment
complaints relating to employees of ASIO, ASIS, and ASD in relation to:
- the
promotion, termination of appointment, discipline or remuneration of the
employee by the agency or
- another
matter relating to the agency’s employment of the employee.[21]
Individuals employed by these agencies (ASIO, ASIS and
ASD) are employed under the respective Acts, not the Public Service Act
1999, making the current provision for complaints by those employees in
the IGIS Act necessary. In contrast, however, currently the IGIS is
precluded from considering similar complaints from AGO, DIO, ACIC, AFP and ONI
employees.[22]
National
Intelligence Review
Recommendation 174 of the National Intelligence Review
noted that the IGIS Act should be amended to give IGIS an inquiry
function for employment related grievances of staff who are employed under the ONI
Act (volume 1, p. 81).
As background,
the ONI notes that its role as the senior intelligence assessment body in
Australia is to ‘lead the National Intelligence Community’. ONI is the
principal advisory agency to the Prime Minister on intelligence matters.
ONI outlines that it has an important role in supporting senior decision
makers:
We provide the Prime Minister and others [sic] members of the
National Security Committee of Cabinet with intelligence-based advice, analysis
and assessments. By delivering insight, context, situational awareness and
warning, we provide the Government with a strategic decision-making advantage.
We seek to explain events in a complex and rapidly changing
world, identify risks and opportunities for Australia, and distil facts and
insights in an often crowded and contested information environment. We provide
robust, tested analysis and focus on the major issues facing our nation.
Expansion of employment-related complaints
jurisdiction
ONI employees can be employed under either the Public Service Act
or the ONI Act. ONI Act employees are not able to address
employment grievances through avenues under the Public Service Act. This
means that, currently, ONI staff employed under the ONI Act are not able
to address their employment complaints. The Bill will therefore enable the
Inspector‑General to inquire into employment related complaints made by
ONI employees through the IGIS Act.
Recommendation 174 of the National Intelligence Review is implemented
by items 25, 26 and 27 of the Bill which amend subsections 8(5) and 8(6)
of the IGIS Act. These amendments provide that the functions of the IGIS
include considering complaints made by ONI Act employees on the topics
of ‘promotion, termination of appointment, discipline or remuneration’ and
other matters relating to the employment of an individual within ONI.
The Bill does not, however, make amendments that would
enable the IGIS to consider complaints from AGO, DIO, ACIC, or AFP employees.
Further facilitating these changes, item 2 of the
Bill provides for the insertion of new definitions into subsection 3(1) of the IGIS
Act including ‘ONI Act employee’ to be defined as ‘a member of the staff of
ONI employed under subsection 33(3) of the Office of National Intelligence
Act 2018.’
Further changes to language in the Act relating to ONI
employees is found in item 4 of the Bill which inserts the new
definition of ‘Public Service Act ONI employee’ into subsection 3(1) of the IGIS
Act to mean ‘a member of the staff of ONI engaged under the Public
Service Act 1999’.
As discussed, the distinction between whether an ONI staff
member is an ONI Act employee, or a Public Service Act ONI
employee is important in terms of potential avenues for complaints.
No jurisdiction over Public Service Act ONI
employees
Related to this change, item 25 amends subsection
8(5) to outline that IGIS does not have the jurisdiction to consider employment
complaints from ONI staff who are employed under the Public Service Act,
only those employed under the ONI Act. This item clarifies that the
power to inquire is focused on ONI Act employees.
Clarifying the identity of the ‘responsible
Minister’
The Bill amends the definition of the ‘responsible
Minister’ in subsection 3(1) of the IGIS Act to clarify who the
responsible Minister is, where more than one Minister has responsibility for an
Act that establishes an agency. The amended definition clarifies that the
responsible Minister is the Minister who is responsible for ‘the part of the
Act that establishes the agency or continues the agency in existence’ (item
5).