2. Consideration of the Bill
   1. The Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 contains a number of amendments to modernise expressions and clarify meaning, about which no concerns were raised in evidence to the review, and these clauses are not considered further in this report. The remainder of this chapter discusses the key provisions of the Bill and the evidence received as part of this inquiry.

Key measures proposed by the Bill

2.2Several of the provisions in the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 (‘IGIS Modernisation Bill’) were contained in the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (‘Integrity Measures Bill’), which the Committee reviewed and reported on in February 2022, and which lapsed at the dissolution of Parliament in April 2022.

2.3Notwithstanding this, the following sections describe the Committee’s consideration of the provisions of the present Bill—the Inspector-General of Intelligence and Security and Other Legislation Amendment Bill 2022—based on the information before the Committee at the time of this review. Direct comparisons between the Integrity Measures Bill and the IGIS Modernisation Bill are not made unless relevant to the consideration of the present Bill.

Qualifications for appointment to Inspector-General role

2.4Section 6 of the Inspector-General of Intelligence and Security Act 1986 (‘IGIS Act’) sets out the requirements for appointment to the role of the Inspector-General. The IGIS Act requires the Inspector-General of Intelligence and Security to be appointed by the Governor-General,[1] requires the Prime Minister to consult with the Leader of the Opposition in the House of Representatives prior to making a recommendation to the Governor-General,[2] and allows for the Governor-General to enter into arrangements with the Governor of a State or of the Northern Territory to secure the services of a person who is the holder of a judicial office.[3]

2.5Where those actions are undertaken, the IGIS Act contains no further barrier or qualification standards for the appointment of an individual to the role of Inspector-General.

2.6The Comprehensive Review of the Legal Framework of the National Intelligence Community (‘Richardson Review’) considered the need for legislative amendment to strengthen the IGIS’ independence and concurred with the conclusion reached in the second Hope Royal Commission that it would not be generally appropriate to appoint someone to the role of IGIS who had prior employment or a very close connection with security or intelligence agencies.[4]

2.7However, the Richardson Review noted that there may be circumstances where an individual had a connection with one or more security or intelligence agencies, and that the timing and nature of the connection would not impact the independence—real or perceived—of the officeholder. Therefore, rather than recommending that a person who had served in the National Intelligence Community (NIC) for any period of time be precluded from appointment to the role, the Richardson Review recommended that appointment be precluded where a person’s immediate prior role was the head or deputy head of an agency within the IGIS’ jurisdiction.[5]

2.8Proposed new subsection 6A(3A) of the IGIS Act which would be inserted by the Bill gives effect to this recommendation, providing that a person must not be appointed as Inspector-General if their most recent position was the head or deputy head of an intelligence agency. The Explanatory Memorandum indicates that this amendment assists the Inspector-General in remaining independent:

This amendment reflects the importance of ensuring the Inspector-General is, and is seen to be, independent from the agencies they oversee to maintain public confidence in the office. This perception, and the perception of the integrity of the office, 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.[6]

2.9The Law Council of Australia suggested that additional eligibility and selection criteria should be enshrined in legislation to align the role of Inspector-General with other integrity officers, including the Law Enforcement Integrity Commissioner, National Anti-Corruption Commissioner, Independent National Security Legislation Monitor and the Freedom of Information Commissioner.[7] Criteria suggested by the Law Council included:

• having previously been a judge of a federal court or a court of a State or Territory, or be enrolled as a legal practitioner for at least five years; and
• having suitable experience or knowledge of the Australian intelligence community.[8]
  10. Further, the Law Council of Australia recommended that consideration be given to implementing a model for appointment like that put forward in the nomination process for National Anti-Corruption Commissioners. The Law Council said that this process required appointment by the Governor-General on the basis of a ministerial recommendation that received approval by the relevant Parliamentary Joint Committee.[9]
  11. It was the view of the Law Council that this Committee, the Parliamentary Joint Committee on Intelligence and Security, should approve ministerial nominations for the role of Inspector-General of Intelligence and Security.[10]

Employment-related grievances for staff employed under the ONI Act

2.12The IGIS Act contains provisions to allow employees of Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS) and the Australian Signals Directorate (ASD) to complain to the IGIS regarding promotion, termination of appointment, discipline, remuneration or any other employment-related matter; as employees of these agencies are not engaged under the Public Service Act 1999 (PS Act).[11]

2.13The Explanatory Memorandum suggests that this is because staff members engaged under the PS Act have existing pathways to raise grievances about the employment-related matters mentioned above, but ASIO, ASIS and ASD do not have a grievance pathway.[12]

2.14The Office of National Intelligence Act 2018 (ONI Act) provides that staff of the Office of National Intelligence (ONI) are to be engaged under the PS Act, or may be engaged under the ONI Act where the Director-General of National Intelligence (DGNI) considers it necessary for the performance of ONI’s functions. The ONI Act provides that the PS Act principles should apply to individuals employed under subsection 33(1)(b) of the ONI Act:

A person mentioned in paragraph (1)(b) is to be employed on the terms and conditions that the Director‑General determines in writing. Although such a person is not employed under the Public Service Act 1999, the Director‑General must adopt the principles of that Act in relation to the person to the extent to which the Director‑General considers they are consistent with the effective performance of ONI’s functions.[13]

2.15Ms Susan Littlehales, Assistant Director-General, Office of National Intelligence advised the Committee that no one had been engaged under the ONI Act to date.[14] In relation to the power for DGNI to engage staff under the ONI Act, Ms Littlehales indicated that the provision provided flexibility in a similar form to that available to other agencies in the NIC:

The ability for the Director-General of National Intelligence to engage staff under the Public Service Act 1999 or the ONI Act was included in the ONI Act to provide flexibility for DGNI to set terms and conditions of employment of ONI staff in a similar way to that of other heads of agencies in the NIC, several of which are not Public Service agencies.[15]

The ability for ONI to engage staff members under its enabling legislation has existed since prior to the establishment of ONI, where the Office of National Assessments Act 1977 (now repealed) provided the Director-General of the Office of National Assessments a similar ability to engage staff members directly under the Act.[16]

2.16Ms Littlehales said that ONI had not yet set up a framework to govern the employment conditions of those engaged under the ONI Act, but that the engagement of staff under the ONI Act may be considered more closely in the future:

ONI is currently working with the APS reform office on the APS reform agenda, including workforce issues and enterprise bargaining. Alternative employment modes, including the ONI Act, may become relevant at a later stage for reasons of national security.[17]

2.17Ms Littlehales indicated that the anticipated impact of the IGIS Modernisation Bill on ONI was expected to be minimal, but that ONI considered it appropriate that staff members engaged under the ONI Act have access to mechanisms to raise employment-related grievances:

Should we employ staff under the ONI Act, it's appropriate that they have access to mechanisms to address employment related grievances, and this should be the case no matter what act they were employed under. The ability of the IGIS to inquire into complaints made about the activities of ONI aligns us with other intelligence agencies that are under the IGIS jurisdiction.[18]

2.18The Explanatory Memorandum states that the amendment inserted by Item 26 of Schedule 1 of the IGIS Modernisation Bill would implement recommendation 174 of the Richardson Review.[19]

Information sharing between Commonwealth integrity bodies

2.19The IGIS Act defines integrity bodies as the Commonwealth Ombudsman, the Australian Human Rights Commissioner (AHRC), the Information Commissioner, the Integrity Commissioner and the Inspector-General of the Australian Defence Force (IGADF).[20] Existing Part IIIA of the IGIS Act provides for information sharing between the Inspector-General and integrity agencies.

2.20The IGIS Act provides that IGIS information or documents may be shared, related to a complaint or otherwise,[21] with an integrity body if:

1. the information or documents are obtained by the Inspector‑General in the course of exercising powers, or performing functions or duties, in relation to ACIC or the Australian Federal Police; and
2. the information or documents are relevant to the receiving body’s functions; and
3. the Inspector‑General is satisfied on reasonable grounds that the receiving body has satisfactory arrangements in place for protecting the information or documents.[22]
   21. The IGIS Act provides that where the Inspector-General decides not to inquire further into a complaint, the Inspector-General can transfer a complaint to another integrity body,[23] and other integrity bodies may do the same.[24] Where a complaint is transferred, the complaint is taken to have been made under the Act establishing the relevant integrity body.[25]
   22. The IGIS Modernisation Bill proposes to repeal and replace this Part.[26] The Explanatory Memorandum indicates that the updated Part IIIA proposed in the Bill would provide mechanisms to:

• Manage the duplication of oversight between the IGIS and other integrity bodies, and
• Facilitate information-sharing and complaints transfer between the IGIS and other integrity bodies.[27]
  23. The IGIS said that the new Part IIIA would provide a ‘stronger and more holistic information sharing and complaints transfer regime between the IGIS and other integrity bodies’.[28]
  24. The new Part IIIA of the IGIS Modernisation Bill would require the IGIS to have specific regard to the functions of other integrity bodies and the Auditor-General in order to avoid duplication in oversight.[29]
  25. The provision would also allow the Inspector-General to consult with integrity bodies or the Auditor-General to avoid more than one inquiry being conducted into a matter. This provision is intended to be a general obligation and not require the Inspector-General to undertake consultation before each discrete activity.[30]
  26. The IGIS noted that the integrity bodies referred to above have limited jurisdiction over the NIC; however, given the IGIS’ oversight of the intelligence functions of the Australian Criminal Intelligence Commission (ACIC) and the Australian Federal Police (AFP) there are ‘likely to be certain matters that could fall within the jurisdiction of both the IGIS and another integrity body’ and vice versa.[31]
  27. The amendments proposed by the IGIS Modernisation Bill would also provide express authority for the IGIS to share information with integrity agencies, expanding the existing provision that allows the IGIS to share information obtained in the course of exercising powers, or performing functions or duties, in relation to the ACIC and the AFP.[32] The Explanatory Memorandum states that this provision is intended to reduce the potential for duplication of oversight activities.[33]

Express entry power for conducting inspections

2.28The IGIS Act provides for the inspection of intelligence agencies as the IGIS considers appropriate to fulfil its overarching purpose. The IGIS said it regularly conducts inspections to ensure compliance with ministerial guidance and internal policies:

IGIS regularly conducts inspections to determine if each agency is acting in accordance with its statutory functions, and is complying with any guidance provided by the responsible Minister and with its own internal policies and procedures. Inspections enable IGIS to monitor the activities of agencies and to identify concerns before they develop into systemic problems.[34]

2.29As presently enacted, the IGIS Act does not provide an express power for the IGIS to enter into premises and access records for the purpose of performing the inspection.[35] The IGIS Modernisation Bill would insert a new provision to provide that the Inspector-General or a member of staff assisting the Inspector-General may do the following for the purposes of conducting an inspection:

1. may, at all reasonable times, enter and remain on any premises (including any land or place) (except premises occupied in another country by ASIS); and
2. may, at all reasonable times, enter and remain on any premises (including any land or place) occupied in another country by ASIS if the Director-General of ASIS and the Inspector-General have made arrangements relating to entry under this section; and
3. is entitled to all reasonable facilities and assistance that the head of the agency is capable of providing; and
4. is entitled to full and free access at all reasonable times to any information, documents or other property of the agency; and
5. may examine, make copies of or take extracts from any information or documents.
   30. In the view of the IGIS, the inclusion of this provision would align the powers of the IGIS with legislation conferring inspection functions on other integrity bodies.[36]
   31. The Hon. Christopher Jessup KC, Inspector-General of Intelligence and Security, said that inspections undertaken to date had not been impacted by the lack of express entry provisions, and that intelligence agencies were cooperative with IGIS processes:

We get a very high standard of cooperation from the agencies over which we have oversight, and we have never noticed any shortcoming in our capacity to carry out that role due to the absence of those express powers… As I also indicated just now, we really don't feel any deficiency or practical need to exercise powers of this kind, but we live in a changing world. It's a matter of policy. Someone obviously thought that it was valuable to give the office those kinds of powers, and we make no complaint about it.[37]

Delegation of Inspector-General functions

2.32The Inspector-General may delegate functions and powers for the purposes of inquiry and reporting powers set out in Divisions 3 and 4 of Part II of the IGIS Act to staff employed under subsection 32(3).[38]

2.33The Explanatory Memorandum indicates that those employed under subsection 32(3) may be engaged because of specific skills or expertise:

An example of a staff member employed under subsection 32(3) may include a person engaged by the Inspector-General for a particular inquiry, on the basis that they have highly specialised skills or expertise necessary for that inquiry.[39]

2.34The Bill proposes to empower the Inspector-General to delegate any or all of the IGIS’s functions under the IGIS Act or any other Act to an IGIS staff member employed under the PS Act, with an exception that would prevent the Inspector-General delegating the power to employ a staff member under subsection 32(3). The Explanatory Memorandum states that this power is designed to adapt the IGIS to the modern operating environment:

This amendment is intended to reflect the modern realities and the breadth of work of the office of the IGIS. Without the ability for the Inspector-General to delegate functions, in some circumstances, it would be difficult to fulfil their statutory functions in a timely manner.[40]

The IGIS made a similar statement, noting that expanding delegation powers would reflect the ‘modern realities of a busy office and the breadth of work of the Office’.[41]

2.35The Bill would not limit the class of staff members that functions and powers may be delegated to, rather, the Bill would limit the ability of the Inspector-General to delegate functions to those with the appropriate qualifications. Mr Luke Muffett, Assistant Secretary, Security Law and Policy Branch, Attorney-General's Department, said that those conditions would operate as a limit on the Inspector-General’s powers:

There is a limitation on the powers that can be delegated. There's a carve-out there for certain powers and functions that can't be delegated. That's another limitation on that delegation. It otherwise doesn't specify that the person must be of a particular level, because, again, it allows, depending on the nature of the work to be undertaken, the discretion of the IGIS to determine what is appropriate.[42]

2.36Additionally, the Bill proposes to limit the new delegation powers by preventing the Inspector-General from delegating functions and powers to consultants, contracted service providers or seconded officers working within the office of the IGIS.[43] The position of these officials is discussed further in the following section.

Expansion of powers to engage an ‘IGIS Official’

2.37Section 32 of the IGIS Act presently provides for two categories of staff members: those engaged under the PS Act and those engaged under subsection 32(3) for the purposes of assisting with a specified inquiry.

2.38The Explanatory Memorandum suggests that this provision does not reflect the reality of modern employment relationships and expanding it would allow the Inspector-General to engage more technical expertise and specialised skill sets:

These current provisions do not reflect the range of modern employment agreements. The changes will modernise the provisions and clarify the ability of the Inspector-General to engage people with specific skill sets to support the functions of the IGIS generally (without being tied to a particular inquiry, as currently required). This might include employing a consultant with highly specialised technical skills to support the IGIS’s capacity to understand the impacts of specific types of technology on the operations of intelligence agencies, or seconding an officer from another Commonwealth agency with particular expertise in certain legislation to support in the development of general oversight protocols.[44]

2.39The IGIS notes that relevant secrecy offences would be amended to cover the range of employment relationships provided by the amendments—including consultants, contracted services providers or secondees from other agencies—in both the IGIS Act and also other legislation, via consequential amendments arising from the Bill.[45]

Removing the requirement for human rights inquiries to be referred by the Australian Human Rights Commission

2.40Section 8 of the IGIS Act provides the functions of the Inspector-General in relation to ASIO,[46] ASIS, Australian Geospatial-Intelligence Organisation (AGO), ASD,[47] Defence Intelligence Organisation (DIO), ONI,[48] as well as the intelligence functions of the ACIC and the AFP.[49]

2.41As presently enacted, the IGIS Act provides that in order for the Inspector-General to investigate an act or practice of an intelligence agency that may be inconsistent with a human right or that could constitute discrimination, the matter must be referred by the AHRC.[50]

2.42The Bill proposes to omit ‘referred to the Inspector-General by the Australian Human Rights Commission’ in each relevant paragraph of the IGIS Act: sections 8(1), 8(2), 8(3), 8(3A).

2.43The Explanatory Memorandum states that the IGIS would ‘still only be able to inquire into an act or practice where it is in response to a complaint, as well as at the request of the Attorney-General, the responsible Minister or by the IGIS’ own motion’.[51]

2.44The Australian Human Rights Commission Act 1986 provides that it is not the function of the AHRC to inquire into the act or practice of an intelligence agency,[52] which is defined to include the intelligence agencies the IGIS oversees.[53]

2.45The Attorney-General’s Department suggested that this legislative provision made the referral pathway of the AHRC to the IGIS ineffective because ‘matters relating to intelligence agencies are unlikely to come before the AHRC in the first instance’.[54]

2.46The Hon. Christopher Jessup, Inspector-General of Intelligence and Security, said that the limitation on the ability of the IGIS to inquire into human rights matters was a result of the legislative history, and the proposed amendments in the bill would allow the IGIS to deal with human rights issues more effectively:

For example, under the present act we have as an object of the act concern for human rights, but in fact when you actually look at the detail of the act we cannot conduct an inquiry with respect to a human rights matter unless it has been referred to us by the Human Rights Commission. That is the result of legislative history. The Human Rights Commission Act and the IGIS Act were both first enacted very much in the same time frame, a year or so apart. I think the philosophy then was, 'The Human Rights Commission does human rights matters, but carved out of their responsibility is things which relate to the intelligence community. They can pass them across to the IGIS.'

But there are many instances—not many instances, but we do get occasions—where human rights-type issues either actually or potentially cross our radar, and it would be more efficient if we were able to deal with them directly.[55]

2.47The IGIS indicated that it had not received any referrals by the AHRC within the last five years. The IGIS did not provide analysis earlier than financial year 2017-2018, but said that if it had ever received any such referrals, they would have been reported in the IGIS Annual Report.[56]

2.48The Australian Muslim Advocacy Network (AMAN) expressed similar concerns that the requirement for referral from the AHRC was too restrictive, and provided an example of its own experience with the complaints process. AMAN said that it made a complaint about discrimination by ASIO to the AHRC. In response, the AHRC said it did not have jurisdiction to investigate complaints against ASIO and suggested that AMAN contact the IGIS. The IGIS investigated the complaint and responded to AMAN almost a year and a half after the incident occurred.[57]

2.49The Law Council of Australia supported the ‘empowerment of the Inspector-General to investigate violations of human rights or discriminatory actions of the ASIO, ASIS, AGO and ASD without requiring a referral from the AHRC’ but considered that the Bill should still contain an express ability for the AHRC to refer human rights complaints to the IGIS. The Law Council considered that an ‘explicit and direct institutional link’ should be maintained between the organisations.[58]

Clarification of the application of secrecy offences

2.50Section 34 of the IGIS Act sets out a range of secrecy offences that apply to the Inspector-General or anyone that has been in the role of Inspector-General of Intelligence and Security, or a member of the staff of the Inspector-General. In addition, section 20 of the IGIS Act requires the Inspector-General to make arrangements with the head of the relevant agency for the protection of classified documents, where the Inspector-General proposes to remove them for the purposes of an inquiry, while they remain in the possession of the Inspector-General.

2.51The IGIS Modernisation Bill proposes to amend the secrecy offence to ensure it captures the definition of ‘IGIS official’ as discussed above. The Attorney-General’s Department notes that this amendment was originally proposed in the Integrity Measures Bill:

The [Integrity Measures] Bill would have amended these provisions so that they apply to all categories of current and former IGIS officials (including secondees, contractors and subcontractors). The Modernisation Bill would incorporate this measure with an amendment to ensure the provisions also continue to apply to persons acting, consistent with the current scope of section 34 of the IGIS Act.[59]

2.52The Bill also proposes to amend the IGIS Act to clarify that the secrecy provisions apply to both ‘information’ and ‘documents’. The Explanatory Memorandum states that as ‘both information and documents obtained by IGIS officials may be highly sensitive, it would be arbitrary for secrecy offences not to apply to the recording, divulging communication or use of documents’.[60]

2.53Additionally, whereas the IGIS Act currently requires the Inspector-General to protect only documents with a protective security classification,[61] the Bill proposes amendments to cover both ‘information’ and ‘documents’ given the ‘broad types of information which may be subject to classification’.[62]

2.54The Bill also provides that the obligation on the Inspector-General to protect the security of documents would apply to the inspection functions, preliminary inquiries or an inquiry undertaken by the authority of relevant provisions in the IGIS Act. The Bill also provides that the Inspector-General must make arrangements to protect the information from unauthorised disclosure, taking into account any advice provided by the head of the relevant agency.[63]

2.55The Explanatory Memorandum states that the arrangements made under these provisions do not override the duty of intelligence agencies to cooperate fully with any inspection under the IGIS Act or provide information under notice provisions in the IGIS Act, nor does the obligation override the obligation for the IGIS to comply with the Protective Security Policy Framework (PSPF).[64]

2.56In relation to section 34 of the IGIS Act, the Bill proposes to insert a new section to stipulate that the secrecy offences outlined in the section continue to apply despite any other provision of a law of the Commonwealth unless that provision manifests a clear intention to apply despite the secrecy provisions in section 34. The Explanatory Memorandum states that this would ensure any sensitive information provided to the IGIS is appropriately protected:

This provision is intended to ensure that the secrecy offence in the IGIS Act prevails over all other disclosure provisions and overrides any immunities for disclosing information or documents. This would ensure that information provided to the IGIS is protected to the greatest extent possible and preserves a position where information can only be shared by IGIS officials in narrow, statutorily prescribed circumstances.[65]

2.57Further, the provisions state that a Commonwealth law must explicitly refer to an ‘IGIS official’ to ‘manifest a clear intention to apply despite section 34 of the Act’;[66] and that the secrecy provisions apply despite any provision of state or territory law.[67]

Preliminary inquiries undertaken by the Inspector-General

2.58The IGIS Act provides for the Inspector-General to undertake preliminary inquiries into a complaint made in respect of action undertaken by an intelligence agency[68] or in considering an own-motion inquiry.[69] The provision allows the Inspector-General to make inquiries of the head of an intelligence agency to determine if the Inspector-General is authorised to inquire into an action, and whether the Inspector-General should inquire into an action.

2.59The IGIS Modernisation Bill proposes to insert a new ‘Division 2A—Preliminary inquiries’ to make a distinction between the complaints-related procedures and the preliminary inquiry function. The Explanatory Memorandum states that this amendment is intended to clarify the structure of the IGIS Act and is not intended to have a substantive effect.[70] Other amendments are proposed to modernise expressions and clarify the structure of the provisions.[71]

2.60The Bill proposes to include a new provision allowing the Inspector-General to determine that an inquiry into an action is not warranted after undertaking preliminary inquiries.[72]

2.61The Attorney-General’s Department noted that the IGIS Act was ‘silent as to whether the IGIS may make reports on preliminary inquiries’.[73] The IGIS Modernisation Bill includes an amendment that would provide explicit authorisation for the Inspector-General to prepare a report on a preliminary inquiry:

If the Inspector-General makes inquiries of the head of an intelligence agency under section 14 (preliminary inquiries), the Inspector-General may prepare a report on the inquiry (which may include the Inspector-General’s conclusions and recommendations) for the responsible Minister or the head of the relevant agency.[74]

2.62The proposed amendment also includes a note to clarify that tax information, financial transaction reports information or AUSTRAC information may only be included where permitted by relevant legislative provisions.[75]

Annual reporting requirements

2.63The IGIS Act provides that the Inspector-General is required to include in its annual report, prepared under section 46 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Inspector-General’s comments on:

• Any inquiry conducted in accordance with subsections 8(1)(d) or 8(3)(c).
• Any inspections conducted in accordance with section 9A.
• The employment of any person employed under subsection 32(3).
• Any delegation of powers under section 32AA.
• The extent of compliance by ASIS, AGO, ASD and DIO with rules made under relevant sections of the Intelligence Services Act 2001 (IS Act).
• The extent of compliance by ONI with privacy rules made under the relevant section of the ONI Act.[76]
  64. As presently enacted, the IGIS Act does not provide authority for the Inspector-General to make comment on any other matter. The IGIS Modernisation Bill proposes to insert a provision allowing the Inspector-General to include comments on any other activity during the reporting period:

The Inspector-General may include in a report referred to in subsection (2) the Inspector-General’s comments on any other activity of the Inspector-General during the period to which the report relates.[77]

2.65The proposed amendment would still be limited by subsection 35(5) of the IGIS Act which provides that the Attorney-General may make deletions from an annual report considered necessary to ‘avoid prejudice to security, the defence of Australia, Australia’s relations with other countries, law enforcement operations or the privacy of individuals’.[78]

Legislative limitations on information sharing

2.66The IGIS Act is prescriptive about those with whom the Inspector-General may share details of completed reports as set out in Part IV, Div. 4. For example, reports related to a completed inquiry must be given to the head of the relevant intelligence agency as well as the responsible Minister.[79]

2.67Similarly, where the Inspector-General has conducted an inquiry in response to a complaint, the Inspector-General is required to give the complainant a written response relating to the inquiry, as well as providing a copy to the responsible Minister.[80]

2.68In relation to the inspection function of the Inspector-General, the IGIS Act provides that the Inspector-General may provide a copy of a resulting report to the head of an intelligence agency or the responsible Minister.[81]

2.69Amendments to the annual report provisions are discussed above—nevertheless, while the Inspector-General is required to prepare an annual report under the PGPA Actand the report must be tabled in each House of Parliament, the contents of the public report may not reflect the entirety of information prepared by the Inspector-General.

2.70The IGIS Act requires the Inspector-General to provide a copy of the report prepared by the Inspector-General to the Leader of the Opposition, with the Leader of the Opposition required to treat as secret any aspect that does not appear in the public report.[82] The IGIS Act does not authorise any further distribution of the annual report.

2.71The secrecy offences in the IGIS Act prevent the Inspector-General from sharing any information more broadly. This includes in circumstances where the sharing of information is permitted in other legislation for example, provisions of the IS Act that provide for the Inspector-General to brief this Committee in the performance of its functions.[83]

2.72The IGIS Modernisation Bill contains amendments to clarify that the Inspector-General may share reports with this Committee when related to an authorisation directed to the identification of a media source or retained data, as provided by the Telecommunications (Interception and Access) Act 1979.[84] The Bill does not contain any additional provisions directed to improving information sharing with this Committee, and the Bill is likely to have the effect of further restricting the ability for information to be shared, by the enhancements to the secrecy provisions discussed above and in the following section.

Production of documents and information and abrogation of privilege

2.73Section 18 of the IGIS Act provides that where the Inspector-General has a reasonable belief that a person is capable of providing information or producing a document in relation to a matter under inquiry by the Inspector-General, the Inspector-General may require the person to produce the information or documents.

2.74Further, section 18 of the IGIS Act applies regardless of whether the disclosure of information or documents would tend to incriminate an individual, or would disclose legal advice given to a Minister or Commonwealth Agency.[85] The IGIS Modernisation Bill would extend this provision to include information that would disclose information that is, or may be, subject to a claim of legal professional privilege by the Commonwealth or a Commonwealth agency.[86]

2.75The Law Council of Australia noted that the wording of the IGIS Modernisation Bill in relation to the abrogation of legal professional privilege differed from the wording contained in the relevant provisions of the Commonwealth Ombudsman Act 1976 and the Law Enforcement and Integrity Commissioner Act 2006. The Law Council recommended that consideration be given to amending Item 86 of schedule 1 to the IGIS Modernisation Bill to read:

After “agency”, insert “or would disclose a communication between an officer of a Commonwealth agency and another person or body, being a communication protected against disclosure by legal professional privilege”.[87]

2.76Information obtained in these circumstances may not be admitted as evidence in proceedings against the person except where provided by subsections 18(6)(c) to 18(6)(d) of the IGIS Act. The IGIS Modernisation Bill proposes to extend the exceptions on the prohibition of use of self-incriminating information to additional offences under the Criminal Code 1995 and the Crimes Act 1914.[88]

2.77Section 34B of the IGIS Act provides certain protections against criminal liability for those who voluntarily provide information to the IGIS for the purposes of the IGIS undertaking any of its inquiry, complaints, or inspection functions. The IGIS Modernisation Bill proposes to extend this protection to ‘ensure all persons who cooperate with the IGIS are treated equally, irrespective of the technical legal basis upon which they are doing so’.[89]

2.78The Law Council of Australia supported granting immunity from prosecution under Commonwealth laws for those who willingly provide information to the IGIS in support of its function; however the Law Council considered that unless ‘a clear constitutional impediment exists’ the proposed immunity should apply to offences under Commonwealth, State and Territory laws.[90]

2.79The Law Council of Australia also considered that the IGIS Act, and the proposals contained in the IGIS Modernisation Bill, do not include ‘adequate procedural limitations on the use of coercive powers nor sufficiently recognise the vital importance of the privilege as a guarantee of fair trials’.[91] The Law Council recommended that the Inspector-General be required to consider the following, prior to compelling the production of information or documents:

• the nature and gravity of the specific issue under inquiry;
• the substance and importance of the information or documentation sought and the weight likely to be attached to it as part of a fact-finding determination; and
• whether any other information or documentation concerning the issues to which the material is said to relate is reasonably available to the Inspector-General from another source.
  80. The Law Council also recommended that a prohibition on the derivative-use of self-incriminatory material be included on material provided by persons compelled to give information or documents to the Inspector-General.[92]
  81. Derivative-use immunity prevents information gathered through compulsion being used against that person in subsequent criminal or civil proceedings and is wider than the ‘direct-use’ immunity granted by the IGIS Act and the Bill.[93] The Law Council of Australia said that derivative-use immunities strike an appropriate balance between the interests of the Executive and individual rights:

Derivative-use immunities guard against investigatory bodies’ misuse of their powers and ensure that an appropriate balance is struck between the interests of executive bodies and individual rights. In addition, immunities from the derivative use of information or documents obtained under coercive powers are not alien to Australian law. Derivative-use immunities were included, for instance, in:

• subsection 16(2) of the Inspector-General of Taxation Act 2003 (Cth), which until its repeal in 2015 rendered inadmissible against an individual in subsequent proceedings material ‘obtained as a direct or indirect consequence of giving the information or answer or producing the document’; and
• subsection 68(3) of the Australian Securities Commission Act 1989 (Cth), which similarly prevented ‘any information, document or other thing obtained as a direct or indirect consequence of’ the use of coercive powers being thereafter used against an individual in criminal proceedings and civil proceedings that may result in a penalty.[94]
  82. Additionally, the Law Council recommended the Bill be amended to include a prohibition against derivative-use of material subject to legal professional privilege against those compelled to provide that material to the Inspector-General.[95]

Inspector-General’s functions in relation to DIO and ONI

2.83Section 8 of the IGIS Act provides the functions of the Inspector-General in relation to each of the intelligence agencies within its remit. Unlike other intelligence agencies, the Inspector-General does not have the power to commence an inquiry in relation to a complaint relating to DIO or ONI. Rather, the IGIS Act provides that the IGIS can commence an inquiry at the request of the Attorney-General, the responsible Minister, or based on the IGIS’ own motion.

2.84The IGIS Modernisation Bill would provide the authority for the Inspector-General to commence an inquiry into DIO or ONI on the basis of a complaint by an Australian citizen or permanent resident. The Explanatory Memorandum states that this power would ‘provide greater consistency with IGIS functions across the agencies the 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’.[96]

2.85While the Integrity Measures Bill included a provision which would have allowed the Inspector-General to inquire into security clearance related complaints by DIO and ONI, a similar provision was not included in the IGIS Modernisation Bill. Mr Luke Muffett, Assistant Secretary, Security Law and Policy Branch, Attorney-General's Department said that this provision was under consideration as part of broader reforms:

That is one that was not carried over and is subject to consideration from government as part of understanding the broader context around security clearances and considering that in a holistic way. So that one is under consideration by government.[97]

Definition of ‘permanent resident’

2.86The definition of ‘permanent resident’ in the IGIS Act is currently:

permanent resident means a person, other than an Australian citizen:

(a)whose normal place of residence is situated in Australia;

(b)whose presence in Australia is not subject to any limitation as to time imposed by law; and

(c)who is not an illegal entrant within the meaning of the Migration Act 1958.[98]

2.87The IGIS Modernisation Bill would repeal this definition and instead define the term by reference to its definition in the Australian Security Intelligence Act 1979 (ASIO Act), IS Act or ONI Act, as appropriate. The Explanatory Memorandum states that the amendment of the definition of ‘permanent resident’ in the IGIS Act is necessary as it refers to ‘illegal entrant’ which is outdated terminology and no longer included in the Migration Act 1958 (Migration Act). The definitions in the ASIO Act, IS Act and ONI Act already reflect the current terminology in the Migration Act. The Explanatory Memorandum also said this change would ensure the terminology remained current:

Linking the definition of ‘permanent resident’ in the IGIS Act with the definition of that term in the ASIO Act, IS Act and ONI Act would ensure that the IGIS Act is updated automatically if the latter three Acts are amended from time-to-time to reflect any changes to the terminology used in the Migration Act.[99]

Footnotes

[1]Inspector-General of Intelligence and Security Act 1986 (‘IGIS Act’), s. 6(2).

[2]IGIS Act, s. 6(3).

[3]IGIS Act, s. 6(4).

[4]Mr Dennis Richardson AC, Comprehensive Review of the Legal Framework of the National Intelligence Community, December 2020, Volume 3, p. 278.

[5]Mr Dennis Richardson AC, Comprehensive Review of the Legal Framework of the National Intelligence Community, December 2020, Volume 3, p. 278.

[6]Explanatory Memorandum (EM), sch. 1, para. 25.

[7]Law Council of Australia, Submission 3, pp. 8-9.

[8]Law Council of Australia, Submission 3, p. 9.

[9]Law Council of Australia, Submission 3, p. 9.

[10]Law Council of Australia, Submission 3, p. 9.

[11]IGIS Act, s. 8.

[12]EM, sch. 1, para. 73

[13]ONI Act, s. 33(3).

[14]Ms Susan Littlehales, Assistant Director-General, Executive, Office of National Intelligence (ONI), Committee Hansard, Canberra, 3 March 2023, p. 1.

[15]Ms Littlehales, Committee Hansard, Canberra, 3 March 2023, p. 1.

[16]See section 17 of the Office of National Assessments Act 1977 (repealed)

[17]Ms Littlehales, Committee Hansard, Canberra, 3 March 2023, p. 2.

[18]Ms Littlehales, Committee Hansard, Canberra, 3 March 2023, p. 2.

[19]EM, sch. 1, para 75.

[20]IGIS Act, s. 3.

[21]IGIS Act, s. 32AC(2).

[22]IGIS Act, s. 32AC(1).

[23]IGIS Act, s. 32AD.

[24]IGIS Act, s. 32AE.

[25]IGIS Act, ss. 32AD and 32AE.

[26]Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 (IGIS Modernisation Bill), sch. 1, item 131.

[27]EM, sch. 1, para. 258.

[28]Inspector-General of Intelligence and Security (IGIS), Submission 1, p. 7.

[29]EM, sch. 1, para. 260. See also IGIS Modernisation Bill, sch. 1, item.131.

[30]EM, sch. 1, para. 263.

[31]IGIS, Submission 1, p. 7.

[32]IGIS Modernisation Bill, sch. 1, div. 3.

[33]EM, sch. 1, para. 288.

[34]IGIS, Submission 1, p. 6.

[35]IGIS, Submission 1, p. 6.

[36]IGIS, Submission 1, p. 6.

[37]The Hon. Christopher Jessup, Inspector-General of Intelligence and Security, Committee Hansard, Canberra, 3 March 2023, p. 6.

[38]IGIS Act, s. 32AA.

[39]EM, sch. 1 para. 251.

[40]EM, sch. 1, para. 253.

[41]IGIS, Submission 1, p. 9.

[42]Mr Luke Muffett, Assistant Secretary, Security Law and Policy Branch, Attorney-General's Department, Committee Hansard, 3March2023, Canberra, p. 9.

[43]IGIS, Submission 1, p. 9.

[44]EM, sch.1 para. 241.

[45]IGIS, Submission 1, p. 8.

[46]IGIS Act, s. 8(1).

[47]IGIS Act, s. 8(2).

[48]IGIS Act, s. 8(3).

[49]IGIS Act, s. 8(3A). The intelligence functions of the ACIC and AFP are defined in section 3 of the IGIS Act.

[50]IGIS Act, s. 8.

[51]Explanatory Memorandum, sch. 1, para. 31, 41 and 62. See also Explanatory Memorandum, sch. 1, para. 52.

[52]Subsections 11(3) and 11(3C).

[53]Subsection 11(4).

[54]Attorney-General’s Department, Submission 2, p. [2].

[55]The Hon. Christopher Jessup KC, IGIS, Committee Hansard, 3March2023, p. 4.

[56]IGIS, Supplementary Submission 1.1, p. [1].

[57]Australian Muslim Advocacy Network, Submission 4, pp. 2-3.

[58]Law Council of Australia, Submission 3, p. 10.

[59]Attorney-General’s Department, Submission 2, p. 3. See also IGIS, Submission 1, p. 8.

[60]EM, sch. 1, para. 314.

[61]IGIS Act, s. 20.

[62]EM, sch. 1, para. 277.

[63]IGIS Modernisation Bill, sch. 1, item 128 – proposed cl. 32AD.

[64]EM, sch. 1, paras. 280-281.

[65]EM, sch. 1, para 330.

[66]EM, sch. 1, para 331.

[67]IGIS Modernisation Bill, sch. 1, item 152.

[68]IGIS Act, s. 14(1).

[69]IGIS Act, s. 14(2).

[70]EM, sch. 1, paras. 117-118.

[71]See, for example, IGIS Modernisation Bill, sch. 1, items 52 and 56.

[72]IGIS Modernisation Bill, sch. 1, item 58.

[73]Attorney-General’s Department, Submission 2, p. 2.

[74]IGIS Modernisation Bill, sch. 1, item 118.

[75]EM, sch. 1, para. 228.

[76]IGIS Act, s. 35.

[77]IGIS Modernisation Bill, sch 1, item 163.

[78]IGIS Act, s. 35(5).

[79]IGIS Act, s. 22.

[80]IGIS Act, s. 23.

[81]IGIS Act, s. 25A.

[82]IGIS Act, s. 35(3).

[83]Intelligence Services Act 2001 (IS Act), s. 30(c). Notwithstanding the provisions of the IS Act preventing the Committee from requiring the Inspector-General to produce documents or provide information.

[84]Sections 185D(3) and 185E(1).

[85]IGIS Act, s. 18(6)(b).

[86]IGIS Modernisation Bill, sch. 1, item 86.

[87]Law Council of Australia, Submission 3, p. 16.

[88]IGIS Modernisation Bill, sch. 1, items 87-88.

[89]EM, sch. 1, para 266.

[90]Law Council of Australia, Submission 3, p. 11.

[91]Law Council of Australia, Submission 3, p. 13.

[92]Law Council of Australia, Submission 3, p. 13.

[93]Law Council of Australia, Submission 3, p. 12.

[94]Law Council of Australia, Submission 3, pp. 12-13.

[95]Law Council of Australia, Submission 3, p. 16.

[96]EM, sch. 1, para. 46.

[97]Mr Luke Muffett, Assistant Secretary, Security Law and Policy Branch, Attorney-General's Department, Committee Hansard, Canberra, 3 March 2023, p. 9.

[98]IGIS Act, s. 3(1).

[99]Explanatory Memorandum, sch. 1, para. 16.