CHAPTER 3

Views on the bill

Support for the bill

3.1        Submitters to the inquiry were supportive of the intent of the bill to update and modernise the operation of the IGIS Act. The Department of Prime Minister and Cabinet, for example, argued that:

the amendments proposed in the Bill will assist the Office of the IGIS fulfil its mandate, noting the amendments represent refinements judged desirable based on years of experience by the Office in operating under the current Act.[1]

3.2        The majority of the provisions of the bill were supported by all submitters to the inquiry. Specifically, the amendments relating to: the expansion of the IGIS powers relating to own-motion full inquiries (Item 2) and preliminary inquiries (Items 4-5); the ability of the IGIS to assist Royal Commissions (Items 14-15); and the role of the IGIS in relation to AIC employment matters (Item 3) were  all welcomed by submitters with no concerns raised.

Support from government agencies

3.3        The inquiry received submissions from several relevant government departments and agencies, including the Department of Defence (representing the Defence Signals Directorate, Defence Intelligence Organisation and Defence Imagery and Geospatial Organisation), the Department of Prime Minister and Cabinet, the Attorney-General's Department, the Office of National Assessments and the Inspector-General of Intelligence and Security herself. 

3.4        All of these submitters were supportive of the bill. The submissions from Defence and the ONA in particular show that the proposed amendments are welcomed by the intelligence agencies which the IGIS oversees. The Department of Defence noted their commitment to engaging with the IGIS:

The Department of Defence is committed to engaging fully with the office of the Inspector-General of Intelligence and Security in assuring that the Australian Parliament and, ultimately, the Australian people, have confidence in the legality and propriety of activities conducted by the Australian Intelligence Community.[2]

3.5        The current Inspector-General, Dr Vivienne Thom, noted in her submission that she had been consulted in the drafting of the bill and was fully supportive of the proposed amendments.[3]

Commentary on the bill's provisions

3.6        Submissions to the inquiry raised issues relating to several of the bill's proposed amendments.  Submitters commented on the provisions relating to: the new object of the IGIS Act (Item 1); the delegation of IGIS powers and functions (Items 7-9); the proposal to give copies of IGIS reports to the Prime Minister (Item 6); and amendments to the secrecy provisions of the Act (Items 10-13).  

New object of the IGIS Act

3.7        All submitters to the inquiry were supportive of the introduction of the new object for the Act. The NSW Council for Civil Liberties (NSWCCL) did, however, question the ability of the IGIS to achieve the specified objects of the Act:

NSWCCL cannot see that the Act confers capability on IGIS to assess ‘the propriety of particular activities of, Australian intelligence agencies’ 4(a)(i) or to ensure ‘that the activities of those agencies are consistent with human rights’ 4(b).

The Act does not enable the IGIS to assure the public that intelligence agencies are under appropriate and effective scrutiny. Such assurance requires a deal more openness and transparency in the operation of the IGIS and more information about the content and outcome of reviews than is currently available. There is no indication that the IGIS can move beyond agencies’ activities and procedures to assess the evidentiary basis for their findings and assessments.[4]

Committee view

3.8        The committee notes the Inspector-General's comment on this amendment in her submission to the inquiry. She reiterates that currently reassurance is provided to the parliament and the public through the yearly publication of the IGIS annual report and through the IGIS's regular appearances before various parliamentary committees.[5] 

3.9        The committee considers that the Inspector-General has the functions and powers necessary to achieve the objects of the Act.  

Employment of individuals to whom IGIS functions and powers can be delegated

3.10      In its report referring the bill to this committee, the Senate Selection of Bills Committee queried whether the delegation of powers provisions are appropriate, and requested that the committee's inquiry investigate the oversight of the use of coercive powers by delegates. [6]

Views of submitters

3.11      All submitters to the inquiry were supportive of these amendments. The Attorney-General's Department commended these provisions in its submission, stating 'the Bill strikes an appropriate balance by allowing the IGIS to delegate his or her powers while maintaining safeguards to ensure the delegation powers can only be exercised in appropriate circumstances'.[7]

3.12      The Inspector-General made the point in her submission that the ability to employ delegates would only be used during times of extraordinary activity:

I believe that the functions, powers and staffing currently available to me are sufficient to ensure that I can effectively oversight the activities of the AIC, in all but the most unusual circumstances. Notwithstanding this, the provisions in Clauses 8 and 9 of Schedule 1 to the Bill seek to provide me with a ‘surge capacity’ to progress multiple inquiries, within a short space of time, should that be required...

This would add some flexibility to the current arrangements, in which I must personally be in attendance at all interviews where the subject of the interview wishes to be protected by the immunities in the Act.[8]

3.13      She also stated that these proposed arrangements were preferable to establishing a new permanent role within the office of the IGIS with access to coercive inquiry powers:

I believe that arrangements for the short-term engagement of a suitable person to assist me in this way are more appropriate than, for example, the appointment of a permanent Deputy IGIS. I do not consider the regular workload of the office would justify such an appointment at this time.[9]

Oversight of delegates' use of coercive powers

3.14      The bill contains several inbuilt oversight mechanisms for any delegates appointed to assist in the undertaking of an IGIS inquiry.

3.15      Firstly, the appointment of delegates is subject to Ministerial approval under the conditions specified in the bill. The Minister's comments in the Second Reading Speech (see paragraph 2.21) make it clear that a rigorous vetting process would be undertaken to ensure the exemplary character of any candidates that qualify for the role.[10]

3.16      Secondly, the bill specifies that delegates must comply with any written directions of the Inspector-General, and also provides that the Inspector-General may delegate any or all of its powers to an appointed delegate. This means that the Inspector-General need only delegate those functions and powers which it considers necessary for the delegate to conduct the inquiry for which they have been appointed. Hence, any use of coercive powers by delegates will have been pre-approved directly by the Inspector-General.

3.17      A cursory reading of publicly available reports of the Inspector-General[11] reveals that the IGIS inquiry reports include information about the conduct of inquiries and the means by which the IGIS gathered relevant information, including the use of the coercive powers outlined in sections 18 and 19 of the Act. This shows that delegates would need to report clearly on the activities they undertake in carrying out inquiries, making it difficult for powers to be used inappropriately.

3.18      In addition to this formal reporting, it is also clear that there would be a significant level of ongoing interaction between the Inspector-General and any delegate throughout the duration of the delegate's employment, giving the Inspector-General ability to oversee the use of the office's coercive powers by the delegate.

3.19      Finally, subsection 17(7) of the IGIS Act allows for the Inspector-General to discuss any matters concerning an IGIS inquiry with the relevant Minister during the course of the inquiry. This would provide ample opportunity for the Inspector-General to discuss any matters relating to the performance of delegates with the Minister, including any concerns that may arise about potential inappropriate use of powers by delegates.

Committee view

3.20      The employment and activities of any delegate under the proposed amendments are subject to both Ministerial approval and explicit direction from the Inspector-General, and as such the committee considers that the delegation of powers provisions are appropriate. 

3.21      Given that these arrangements represent a significant change in practice, the committee also considers that the Inspector-General should formally report to the Minister each year on any matters relating to the employment of delegates under proposed sections 32 and 32AA of the IGIS Act. This could be easily done through the IGIS Annual Reports, which are presented to the Minister and then tabled in Parliament. 

Recommendation 1

The committee recommends that section 35 of the IGIS Act be amended to include a provision stating that an annual report prepared under subsection 35(1) of the Act must include comments on any matters arising during that year relating to the employment of and delegation of powers to individuals under proposed sections 32 and 32AA of the Act.

Copies of IGIS reports

3.22      All submitters to the inquiry were supportive of the amendment to allow copies of all IGIS reports to be given to the Prime Minister. The NSW Council for Civil Liberties did propose, however, that this provision should be extended to require a copy of any reports covered in this amendment to be made available to the Leader of the Opposition in federal parliament.[12]

3.23      There are already statutory provisions which require the Leader of the Opposition in the House of Representatives to be briefed regularly regarding the activities of ASIO and ASIS.[13] Additionally, any classified information in the Annual Reports of the IGIS must be passed on to the Leader of the Opposition before being redacted for the report's tabling in parliament.[14]

3.24      Furthermore, the IGIS already provides classified briefings to the Parliamentary Joint Committee on Intelligence and Security, whose membership includes members of the Federal Opposition.

Amendments to the Act's secrecy provisions

3.25      Items 10-13 propose minor alterations to the secrecy provisions contained in section 34 of the Act. While these amendments are intended to clarify the operation of the secrecy provisions in the Act, rather than altering them substantively, several submitters raised concerns about these amendments and the secrecy provisions as a whole.

3.26      The NSW Council of Civil Liberties voiced strong opposition to these amendments in its submission:

NSWCCL does not support these amendments to section 34 which insert explicit prohibitions on the IGIS of unauthorised disclosure of sensitive or classified material to a court or tribunal.

NSWCCL considers the secrecy provisions in the intelligence legislation to be excessive and disproportionate and a danger to civil liberties and the democratic process. Inserting an explicit prohibition provides a further blanket barrier to legal challenges exploring access to relevant information from the IGIS.[15]

3.27      Dr Patrick Emerton from the Castan Centre for Human Rights Law at Monash University, raised concerns that the secrecy provisions in the Act prohibiting the disclosure of documents or information from the IGIS to a court could potentially be subject to legal challenge in the future:

Recent decisions of the High Court of Australia, in relation to Chapter III of the Constitution and the nature of the judicial power that it confers, suggest that it may be unconstitutional for Australian parliaments to attempt to impose blanket restrictions on the communication of documents or information to courts that are exercising, or are capable of exercising, federal judicial power.[16]... As the High Court has recently reiterated, the judicial power of the Commonwealth, with which it is vested by the Constitution, “brings with it such powers as are incidental and necessary to the exercise” of that power.[17] This may include “A broad power to protect the procedures of the Court against abuse.” [18]

It is conceivable, in principle at least, that in some cases the proper exercise of the judicial power of the Commonwealth by a federal court, or the proper discharge of its judicial function by a State court capable of being vested with federal judicial power,[19] would require the disclosure of information and/or documents in the possession of the Inspector-General, or of a staff member of that office. If such a situation arose, then the constitution would prevail over the Act’s attempt to forbid such disclosure. This is not at all to suggest that these provisions are per se unconstitutional. It is simply to point out to members of the Committee that the independence of the judiciary in Australia, which is guaranteed by Chapter III of the Constitution, means that blanket attempts to regulate the court’s access to information and documents – such as those found in the Act, and amended by the Bill – may not be effective in all circumstances.[20]

Response from the Attorney-General's Department

3.28      The Attorney-General's Department lodged a supplementary submission to the committee responding to the concerns raised by Dr Emerton. The Department outlined the intent of the proposed amendments and the necessity of providing some limits to the ability of the IGIS to become involved in legal cases: 

Provisions of this kind, particularly in the context of the IGIS' role, which requires unfettered access to highly sensitive intelligence and security information, are important as they are intended to prevent the unnecessary and indirect disclosure of sensitive information during the course of legal proceedings that do not relate to the performance of functions or duties or the exercise of powers under the relevant Act, or that may be frivolous or vexatious. The proposed provisions are also intended to ensure that the IGIS' important oversight role is not unnecessarily diverted by the IGIS' Office becoming involved in legal proceedings.[21]

3.29      The Department stated that it had carefully reviewed the proposed amendments and is satisfied with the policy rationale behind them.[22] It also highlighted the fact that the amendments still allow for the IGIS to provide information to a court when performing his or her statutory duties:

The proposed amendments do not seek to impose 'blanket restrictions' on the communication of documents or information to courts nor do they intend to restrict the independence of the judiciary which is guaranteed by Chapter III of the Constitution. On the contrary, the proposed amendments provide for further exceptions to the non-disclosure obligations contained in subsections 34(1), (IAA) and (lAB) of the Act, by expressly preserving the discretion of the court to examine information or documents where the information or document:

• is obtained in the performance of functions or duties or the exercise of powers under the [IGIS] Act, for the purposes of the Act;
• is obtained in the performance of functions or duties or the exercise of powers under Division 9 of Part VII of the Freedom of Information Act 1982 (FOI Act), for the purposes of that Division;
• is obtained by the person in the performance of functions or duties or the exercise of powers under section 60A of the FOI Act, for the purposes of that section; and
• is obtained by the person in the performance of functions or duties or the exercise of powers under section 50A of the Archives Act 1983, for the purposes of that section.

..qguished from those proposed by the amendments. Indeed, they related to provisions that removed the court's discretion entirely and created an imperative on the court to make a particular decision, such as the issue of a control order, as was the case in State of South Australia v Totani & Anor. As detailed above, the proposed amendments in the Bill do not seek to compel the court to make a particular decision.[23]

3.30      The Department noted that the kinds of provisions in the proposed amendments are not uncommon in Commonwealth legislation, and that other statutory office holders such as the Commonwealth Ombudsman are afforded similar non-disclosure provisions.[24]

Committee view

3.31      The committee notes that any provisions limiting the disclosure of material to courts must be thoroughly considered to ensure they do not restrict the flow of information to courts in legitimate circumstances. The committee is satisfied that the proposed amendments are consistent with other Commonwealth legislation and allow disclosure of sensitive material by the IGIS when necessary. The committee therefore considers that the proposed amendments are appropriate.

Recommendation 2

3.32      The committee recommends that the Senate pass the bill.

Senator Patricia Crossin

Chair

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