Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Inspector-General of Intelligence and Security Amendment Bill 2011

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2010-2011

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY

AMENDMENT BILL 2011

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of

the Special Minister of State for the Public Service and Integrity,

the Honourable Gary Gray AO MP)



INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY

AMENDMENT BILL 2011

 

Outline

 

The Inspector-General of Intelligence and Security Amendment Bill (‘the Bill’) contains amendments to the Inspector-General of Intelligence and Security Act 1986 (‘the Act’) intended to update and modernise the operation of the Act. 

 

The amendments will:

·          recognise expressly the role of the Inspector-General of Intelligence and Security (IGIS) in assisting the Government to provide the Parliament and the public with assurances that the use of special powers and capabilities by the Australian Intelligence Community (AIC) is subject to scrutiny;

·          provide the IGIS with the capacity to undertake own-motion preliminary inquiries;

·          extend the capacity of the IGIS to undertake own-motion full inquiries;

·          provide the IGIS with the capacity to delegate the powers of the Office of the IGIS, subject to Ministerial approval;

·          provide the IGIS with the capacity to release material to Royal Commissions, at the discretion of the Government, to assist Royal Commissions, while ensuring the effective operation of limitations on any unauthorised release of sensitive or classified material by current or former IGIS officers to a court, coronial inquiry or Royal Commission; and

·          update and modernise a number of provisions of the Act, while not changing substantively the role, powers or functions of the IGIS.

 

The amendments are primarily targeted at updating and modernising the operation of the Act, including addressing issues which have arisen or become evident since the legislation was originally enacted. 

 

The Bill will ensure the IGIS is able to undertake the work of the Office of the IGIS more effectively and efficiently. 

 

The Bill will also strengthen the accountability and oversight framework governing the activities of the agencies that make up the AIC, and will provide greater assurance regarding the legality and propriety of their activities.

 

Financial Impact Statement

 

The proposed amendments have no financial impact.

 

 



Notes on Clauses

 

List of abbreviations used

 

ASIS               Australian Secret Intelligence Service

DIGO              Defence Imagery and Geospatial Organisation

DSD                Defence Signals Directorate

IGIS                Inspector-General of Intelligence and Security

 

Clause 1: Short title

 

This clause is a formal clause which provides the citation of the Bill.

 

Clause 2: Commencement

 

The table in this clause sets out when provisions in the Bill will commence.  The table provides that sections 1 to 3 (and anything else not covered in the table) will commence on the day on which the Act receives the Royal Assent.  Schedules 1 and 2 will commence the day after which the Act receives the Royal Assent. 

 

Clause 3: Schedule(s)

 

This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 - Amendment of the Inspector-General of Intelligence and Security Act 1986

 

Clause 1: At the end of section 4

 

This clause provides that the object of the Act includes assisting the Government in assuring the Parliament and the public that intelligence and security matters relating to Commonwealth agencies are open to scrutiny, in particular the activities of intelligence agencies.

 

Clause 2: Paragraph 8(2)(c)

 

This clause provides the IGIS with the capacity to undertake own-motion full inquiries into the effectiveness and appropriateness of the procedures of ASIS, DIGO or DSD relating to the legality or propriety of the agency’s activities.

 

Clause 3: Subsections 8(5), (6) and (7)

 

This clause simplifies the operation of subsections 8(5), (6) and (7), which relate to the scope of the IGIS’s authority to inquire into employment matters concerning intelligence agency employees, and clarifies the inquiry functions of the IGIS covered by these provisions, while not altering the substantive role, powers or functions of the IGIS in relation to the intelligence agencies.

 



Clause 4: Section 14

 

This clause takes account of the introduction of a proposed new subsection 14(2), which is covered by Clause 5.

 

Clause 5: At the end of section 14

 

This clause provides the IGIS with the capacity to undertake own-motion preliminary inquiries of the head of an intelligence agency to determine whether the IGIS is authorised to proceed with a full inquiry into an action of the agency or, if the IGIS is so authorised, whether the IGIS should proceed with such an inquiry.  This provides the IGIS with an option of a more limited preliminary inquiry into a matter prior to any decision to proceed, or not, with a full inquiry.

 

Clause 6: After subsection 22(4)

 

This clause provides that if a copy, or a version of a copy, of an IGIS report relating to an inquiry into a Commonwealth agency is provided to the responsible Minister, the IGIS must give the Prime Minister a copy or version where the Prime Minister requests it.  The clause also provides that the IGIS may give the Prime Minister a copy or version where the IGIS considers it appropriate to do so. 

 

Clause 7: Subsection 32(1)

 

This clause provides for the employment by the IGIS of a person to whom some IGIS functions and powers can be delegated, subject to Ministerial approval, which is covered by Clauses 8 and 9.

 

Clause 8: At the end of section 32

 

This clause addresses the employment by the IGIS of a person to whom some IGIS functions and powers can be delegated, subject to Ministerial approval. 

 

Proposed subsection 32(3) provides for the employment by the IGIS of a person to assist the IGIS perform functions and exercise powers under Division 3 or 4 of Part II of the Act in relation to a particular inquiry, and specifies that the purpose of this clause is to cover the employment of a person for delegation in accordance with proposed new section ^32AA, which is covered by Clause 9.

 

Proposed subsection 32(4) requires that the responsible Minister must first be satisfied that the employment of a person to assist the IGIS in relation to a particular inquiry is necessary and that the person to be employed has appropriate expertise for the inquiry.

 

Proposed subsection 32(5) requires that the IGIS must determine in writing the terms and conditions of employment.

 

Proposed subsection 32(6) requires that u nless the responsible Minister otherwise agrees in relation to a particular inquiry the person to be employed must be appropriately cleared for security purposes (to at least the same level, and at the same frequency, as staff members of ASIS).

 

Clause 9: At the end of Part III

 

This clause addresses the delegation by the IGIS of some IGIS functions and powers. 

 

Proposed subsection ^32AA(1) provides that the IGIS may delegate all of his or her functions or powers as set out under Division 3 or 4 of Part II of the Act to a person referred to in proposed new subsection 23(3) for the purposes of a particular inquiry.  The delegation must be in writing (an instrument of delegation).

 

Proposed subsection ^32AA(2) requires that a person to whom the IGIS delegates any of his or her functions and powers must, in exercising those functions and powers, comply with any written directions of the IGIS.

 

Proposed subsection ^32AA(3) requires that a delegate must, if asked, produce for inspection the instrument of delegation (or a copy of it) to any person affected by the delegate’s use of his or her functions and powers.

 

Clause 10: Paragraphs 34(1)(a), (1AA)(a) and (1AB)(a)

 

This clause clarifies that the secrecy provisions of the Act are intended to prevent any unauthorised disclosure by a current or former IGIS officer of sensitive or classified material, including to a court or tribunal.

 

Clause 11: Subsection 34(5)

 

Consistent with Clause 10 above, this clause clarifies that no person must be required by a court to provide documents or information where the secrecy provisions of the Act prohibit the person from making such disclosure.

 

Clause 12: Paragraph 34(5)(a)

 

This clause rectifies a drafting oversight that arose when a new requirement was introduced by the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 for the IGIS to give evidence in Information Commissioner reviews in certain circumstances, requiring a consequential amendment to be made to paragraph 34(5)(a).

 

Clause 13: Before paragraph 34(5)(c)

 

This clause rectifies an unintended inconsistency in subsection 34(5) regarding the treatment of ‘documents’ as opposed to ‘information’ that arose when the subsection was repealed and substituted by Schedule 4 to the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 , and then amended by Schedule 6 to the Freedom of Information Amendment (Reform) Act 2010

 

Currently, paragraphs 34(5)(c), (ca), (d) and (e) deal with circumstances in which a person can be required to divulge or communicate information, but there are no equivalent provisions relating to documents.  Proposed paragraphs 34(5)(ba), (bb), (bc) and (bd) correct this drafting oversight.

 



Clause 14: Subsection 34A(1)

 

This clause takes account of the proposed new definition of a Commission, which is covered by Clause 15.

 

Clause 15: Subsection 34A(7) (definition of Commission )

 

This clause repeals the prevailing definition of Commission as meaning the 1994 Commission of inquiry into matters relating to the ASIS by the Honourable Gordon Jacob Samuels AC QC and Michael Henry Codd AC (‘the Samuels-Codd Royal Commission’), and substitutes with a new definition of Commission as meaning a Royal Commission (within the meaning of the Royal Commissions Act 1902 ) prescribed for the purposes of proposed subsection 34A(7). 

 

The prevailing definition was made by amendment to the Act to enable the IGIS to cooperate with the Samuels-Codd Royal Commission only.  The proposed new definition is intended to enable the IGIS to release material to any Royal Commission where it is expressly prescribed in regulations as authorised to seek evidence from, or cooperate with, the IGIS, in order to assist the work of prescribed Royal Commissions.

 

Schedule 2 - Consequential amendment

 

Clause 1: Section 5 (paragraph (b) of the definition of IGIS official )

 

This clause makes a consequential amendment to the Anti-Money and Counter-Terrorism Financing Act 2006 to update the definition of ‘IGIS official’ in that Act in accordance with the amendments proposed in this Bill.