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).