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Part 3—Information gathering

Part 3 Information gathering

   

25   Simplified outline of this Part

The Commissioner has a range of powers to obtain information, including conducting inquiries, holding hearings (including private hearings in certain circumstances), requiring the giving of information or the production of documents and applying for search warrants.

Commonwealth, State and Territory bodies may disclose information to the Commissioner for the purpose of assisting in the performance or exercise of the Commissioner’s functions or powers.

26   Inquiries

             (1)  For the purposes of paragraph 11(1)(a), the circumstances that the Commissioner may inquire into include, but are not limited to, the following matters in relation to a defence member or veteran who has, or is suspected to have, died by suicide:

                     (a)  the person’s service in the ADF (including training , and, for a person who has ceased serving in the ADF, the person’s transition from the ADF);

                     (b)  issues (including relevant personal circumstances) connected to:

                              (i)  the manner or time in which the person was recruited to the ADF; and

                             (ii)  for a person who has ceased serving in the ADF—the manner or time in which the person transitioned from the ADF;

                     (c)  the availability of health, wellbeing and counselling support services to the person in the person’s capacity as a defence member or veteran and the effectiveness of any such services;

                     (d)  the quality and effectiveness of responses to any complaints made by the person or the person’s family, friends or associates in relation to:

                              (i)  the health and wellbeing of the person; or

                             (ii)  the person’s access to support services mentioned in paragraph (c);

                     (e)  the extent to which the circumstances of the death reflect broader or systemic issues contributing to defence and veteran death by suicide rates, having regard to the circumstances of other defence and veteran deaths by suicide;

                      (f)  any other matter the Commissioner considers relevant and reasonably incidental to defence and veteran deaths by suicide.

             (2)  To avoid doubt, the Commissioner may perform the Commissioner’s inquiry function on the Commissioner’s own initiative.

             (3)  For the purposes of performing the Commissioner’s inquiry function, the Commissioner may inquire into a defence and veteran death by suicide that occurred before the commencement of this subsection.

27   Hearings

             (1)  The Commissioner may hold a hearing for the purposes of performing the Commissioner’s functions.

             (2)  A hearing is to be held in public and the procedure for a hearing may be such as the Commissioner thinks fit.

Note:          For circumstances where hearings may not be held in public see subsections 28(1) and (2), and 42(6).

             (3)  The Commissioner is not bound by the rules of evidence.

             (4)  The Commissioner must ensure that a record of a hearing is made.

28   Private hearings

Disclosure of information that is personal

             (1)  Despite subsection 27(2), a hearing, or part of a hearing, may be held in private if the Commissioner is satisfied that:

                     (a)  information relating to a deceased person or the family, friends or associates of a deceased person may be disclosed at the hearing; and

                     (b)  the information is personal and private.

Disclosure of operationally sensitive information

             (2)  Despite subsection 27(2), a hearing, or part of a hearing, may be held in private if the Commissioner is satisfied that a person appearing at the hearing may give evidence that discloses operationally sensitive information.

Note:          See also section 33, which requires a person to give notice of likely disclosure of operationally sensitive information to the Commissioner.

Commissioner must have regard to certain matters when considering whether to hold private hearings

             (3)  When considering whether to hold a hearing, or part of a hearing, in private because of subsections (1) and (2), the Commissioner must have regard to:

                     (a)  the potential risk of prejudice to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ), or to the operations of a law enforcement or security agency; and

                     (b)  whether holding the hearing in private would have a substantial adverse effect on the exercise or performance of the Commissioner’s functions or powers; and

                     (c)  if the Commissioner invites submissions under subsection 33(3)—any submissions received in response; and

                     (d)  the safety and security of any person; and

                     (e)  whether legal professional privilege, or any other immunity, privilege or restriction may apply to the disclosure of the information; and

                      (f)  any other matters the Commissioner considers relevant.

29   Consultation in relation to certain private hearing evidence

             (1)  If a witness gives evidence at a private hearing because of subsection 28(2) (disclosure of operationally sensitive information), the Commissioner must:

                     (a)  consult any law enforcement or security agency to which the evidence relates and consider any information received from the agency following the consultation; and

                     (b)  consider any potential risk of prejudice to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 ); and

                     (c)  consider the safety and security of any person.

             (2)  If a witness gives evidence at a private hearing because of subsection 28(1) or (2) (disclosure of personal or operationally sensitive information), the Commissioner must, before disclosing or using any evidence the witness has given at, or in relation to, the private hearing:

                     (a)  consider consulting the witness, and any other person whose interests are affected by the evidence; and

                     (b)  consider any potential risk of prejudice to a person if the person is not consulted before using or disclosing information given at, or in relation to, a private hearing; and

                     (c)  consider any preference the witness communicates (whether before, during or after a private hearing) to the Commissioner in relation to consultation.

30   Summons

             (1)  The Commissioner may, by notice in writing, summon a person to attend a hearing at a time and place specified in the notice:

                     (a)  to give evidence; or

                     (b)  to produce documents or things specified in the notice.

Note:          Failure to comply with a notice is an offence: see section 45.

             (2)  The notice must:

                     (a)  be in writing and be signed by the Commissioner; and

                     (b)  be served on the person required to attend the hearing.

             (3)  A time specified in a notice must be at least 14 days after the day on which the notice is given.

             (4)  However, subsection (3) does not apply if the Commissioner reasonably believes that the circumstances to which the notice relates are urgent or serious.

             (5)  For the purposes of sections 45 (failure to produce), 48 and 49 (legal professional privilege), the power of the Commissioner under this section to require a person to give evidence, or produce a document or thing, includes the power to require the person to give evidence, or produce a document or thing, that is subject to legal professional privilege.

Note:          Under section 48, legal professional privilege might still be a reasonable excuse for failing to produce the document.

             (6)  If the Commissioner gives a notice under subsection (1) to an official of a Commonwealth entity, the Commissioner must give a copy of the notice to:

                     (a)  if the official performs duties in, or services for, an Australian intelligence entity—the head of the Australian intelligence entity; or

                     (b)  in any other case—the accountable authority of the Commonwealth entity.

31   Evidence on oath or by affirmation

             (1)  At a hearing, the Commissioner may:

                     (a)  require a witness to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to the witness.

Note 1:       Refusal to take an oath or make an affirmation is an offence: see section 46.

Note 2:       This means that a hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914 , which creates various offences in relation to judicial proceedings.

             (2)  The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

             (3)  The Commissioner may allow a person attending a hearing who has been sworn, or who has made an affirmation, to give evidence by tendering a written statement and verifying it by oath or affirmation.

32   Commissioner may require information etc.

             (1)  For the purposes of performing the Commissioner’s functions, the Commissioner may, by written notice, require a person:

                     (a)  to give the Commissioner the information, or a statement, in writing referred to in the notice; or

                     (b)  to produce to the Commissioner the documents or things referred to in the notice.

Note:          Failure to give the information or statement, or produce the documents or things, is an offence: see section 45.

             (2)  The notice must:

                     (a)  be in writing; and

                     (b)  specify the period within which the person must comply with the notice.

             (3)  A time specified in a notice must be at least 14 days after the day on which the notice is given.

             (4)  However, subsection (3) does not apply if the Commissioner reasonably believes that the circumstances to which the notice relates are urgent or serious.

             (5)  For the purposes of sections 45 (failure to produce), 48 and 49 (legal professional privilege), the power of the Commissioner under this section to require a person to give information or a statement, or produce a document or thing includes the power to require the person to give information or a statement, or produce a document or thing, that is subject to legal professional privilege.

Note:          Under section 48, legal professional privilege might still be a reasonable excuse for failing to produce the document.

             (6)  If the Commissioner gives a notice under subsection (1) to an official of a Commonwealth entity, the Commissioner must give a copy of the notice to:

                     (a)  if the official performs duties in, or services for, an Australian intelligence entity—the head of the Australian intelligence entity; or

                     (b)  in any other case—the accountable authority of the Commonwealth entity.

33   Notice of likely disclosure of operationally sensitive information

Notice requirement

             (1)  If:

                     (a)  a person either:

                              (i)  intends to give evidence, or give or produce to the Commissioner information or a statement, document or thing (including as authorised under section 40 or section 41); or

                             (ii)  is required under section 30 or 32 to give evidence at a hearing, or to give or produce to the Commissioner information or a statement, document or thing; and

                     (b)  the person considers that giving the evidence, or giving or producing the information or statement, document or thing, may involve the person disclosing operationally sensitive information;

the person must give written notice to the Commissioner before giving or producing the evidence, information or statement, document or thing.

Note:          Failure to give written notice is an offence if the person holds or has held an Australian Government security clearance: see subsection 47(1).

             (2)  The notice must describe the evidence, information or statement, document or thing that the person considers to be operationally sensitive information.

Call for submissions

             (3)  If the Commissioner is given a notice under subsection (1), the Commissioner may invite submissions from persons or bodies (including law enforcement or security agencies) whose interests may be affected by disclosure of the information.

             (4)  If the Commissioner invites submissions, the Commissioner must ensure that the information is not disclosed inappropriately in the course of inviting submissions.

34   Notice of likely disclosure of intelligence information

                   If:

                     (a)  a person either:

                              (i)  intends to give evidence, or give or produce to the Commissioner information or a statement, document or thing (including as authorised under section 40 or section 41); or

                             (ii)  is required under section 30 or 32 to give evidence at a hearing, or to give or produce to the Commissioner information or a statement, document or thing; and

                     (b)  the person considers that giving the evidence, or giving or producing the information or statement, document or thing, may involve the person disclosing intelligence information;

the person must give written notice to the Commissioner before giving or producing the evidence, information, statement, document or thing.

Note:          Failure to give written notice is an offence if the person holds or has held an Australian Government security clearance: see subsection 47(2).

35   Powers of Commissioner in relation to documents or other thing

                   The Commissioner may:

                     (a)  inspect any document or other thing:

                              (i)  produced or given to the Commissioner; or

                             (ii)  produced or given under a notice under section 30 or 32; and

                     (b)  retain the documents or other thing for so long as is reasonably necessary for the purposes of performing the Commissioner’s functions; and

                     (c)  in the case of documents:

                              (i)  produced or given to the Commissioner; or

                             (ii)  produced or given under a notice under section 30 or 32;

                            make copies of any documents that contain matter that is relevant to the Commissioner’s functions or powers.

36   Search warrants

             (1)  The Commissioner or an authorised member may apply for a search warrant under subsection (4) in relation to a matter that is relevant to the Commissioner’s functions.

             (2)  The Commissioner may, in writing, authorise a person, or each person in a class of persons, to be an authorised member for the purposes of this section, if the person, or each person in the class of persons, is a member of the Australian Federal Police, or of the police force of a State or Territory.

             (3)  If:

                     (a)  the Commissioner, or an authorised member, has reasonable grounds for suspecting that there may be, at that time or within the next following 24 hours, on any land or on or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a matter into which the Commissioner is inquiring ( things of the relevant kind ); and

                     (b)  the Commissioner, or the authorised member, believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed;

the Commissioner, or the authorised member, may apply to an eligible Judge for the issue of a search warrant under subsection (4).

             (4)  If an application is made under subsection (1) to an eligible Judge, the eligible Judge may, if satisfied that there are reasonable grounds for issuing the warrant, issue a search warrant authorising a member of the Australian Federal Police or of the police force of a State or Territory, or any other person named in the warrant (the authorised person ), with such assistance as the authorised person thinks necessary, and if necessary by reasonable force;

                     (a)  to enter onto the land or on or into the premises, vessel, aircraft or vehicle; and

                     (b)  to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and

                     (c)  to seize any things of the relevant kind found on the land or in the premises, vessel, aircraft or vehicle and deliver things so seized to the Commissioner.

             (5)  A warrant issued under this section must include the following information:

                     (a)  a statement of the purpose for which the warrant is issued, which must include a reference to the matter into which the Commissioner is inquiring and with which the things of the relevant kind are connected;

                     (b)  whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;

                     (c)  a description of the kind of things authorised to be seized;

                     (d)  a date, not being later than 1 month after the date of issue of the warrant, on which the warrant ceases to have effect.

             (6)  If, in the course of searching, in accordance with a warrant issued under this section, for things of a particular kind connected with a matter into which the Commissioner is inquiring, the person executing the warrant finds:

                     (a)  any thing of another kind that the person believes on reasonable grounds to be connected with that matter; or

                     (b)  any thing that the person believes on reasonable grounds to be connected with another matter into which the Commissioner is inquiring;

and the person believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss, mutilation or destruction, the warrant is taken to authorise the person to seize that thing.

37   Application by telephone for search warrants

             (1)  An application for a search warrant under subsection 36(1) may be made by telephone if the applicant for the warrant considers it necessary to do so because of circumstances of urgency.

             (2)  If an eligible Judge issues a search warrant on an application made by telephone, the eligible Judge must:

                     (a)  complete and sign that warrant; and

                     (b)  inform the applicant of the terms of the warrant and the date on which and the time at which it was signed; and

                     (c)  forward a copy of the warrant to the applicant.

             (3)  If a search warrant is issued on an application made by telephone, the Commissioner or a member of the Australian Federal Police or of the police force of a State or Territory may complete a form of warrant in the terms indicated by an eligible Judge under subsection (2).

             (4)  A form of warrant completed in accordance with subsection (3) is taken to be a warrant issued under section 36.

38   Witnesses subject to questioning

             (1)  Any of the following may, so far as the Commissioner thinks proper, examine or cross-examine a witness on a matter relevant to a hearing:

                     (a)  a legal practitioner assisting the Commissioner;

                     (b)  any legal practitioner authorised by the Commissioner to appear before it for the purpose of representing any person;

                     (c)  any person authorised by the Commissioner to appear before the Commissioner.

             (2)  Subject to this Act, a witness who is examined or cross-examined has the same protection and is subject to the same liabilities as if examined by the Commissioner.

Note:          For other witness protections, see section 64.

39   Witnesses to be paid expenses

             (1)  A witness appearing before the Commissioner at a hearing may, on behalf of the Commonwealth, be paid a reasonable amount for the expenses of the witness’s attendance in accordance with the scale prescribed in the rules.

             (2)  In the absence of a prescribed scale, the Commissioner may authorise the payment of an amount the Commissioner considers reasonable.

40   Disclosure of information to the Commissioner—Commonwealth

Authorisation to disclose

             (1)  A Commonwealth body, or an individual who holds any office or appointment under a law of the Commonwealth, may, on their own initiative or at the request of the Commissioner, disclose information (including personal information) for the purpose of assisting in the performance or exercise of the Commissioner’s functions or powers.

             (2)  A disclosure of information is taken not to have been made by a Commonwealth body for the purposes of subsection (1) if the individual making the disclosure is acting beyond the individual’s authority in relation to the body.

Authorisation for Commissioner to use

             (3)  The Commissioner is authorised to use information disclosed under this section for the purposes of performing or exercising any of the Commissioner’s functions or powers.

Authorisation not affected by State or Territory law or the general law

             (4)  The authorisation in subsection (1) has effect despite anything in a law of a State or Territory, or the general law, that restricts or prohibits disclosure of information.

Note:          Penalties also do not apply under secrecy provisions: see section 58.

41   Disclosure of information to the Commissioner—States and Territories

Authorisation to disclose

             (1)  Any of the following may, on their own initiative or at the request of the Commissioner, disclose information (including personal information) for the purpose of assisting in the performance or exercise of the Commissioner’s functions or powers:

                     (a)  a State body or Territory body;

                     (b)  an individual who holds any office or appointment under a law of a State or Territory;

                     (c)  a Coroner or a Coroner’s court.

             (2)  A disclosure of information is taken not to have been made by a State body or Territory body for the purposes of subsection (1) if the individual making the disclosure is acting beyond the individual’s authority in relation to the body.

Authorisation for Commissioner to use

             (3)  The Commissioner is authorised to use information disclosed under this section for the purposes of performing or exercising any of the Commissioner’s functions or powers.

Authorisation not affected by State or Territory law or the general law

             (4)  The authorisation in subsection (1) has effect despite anything in a law of a State or Territory, or the general law, that restricts or prohibits disclosure of information.

Note:          Penalties also do not apply under secrecy provisions: see section 58.

42   Arrangements for obtaining and protecting intelligence information

Arrangements

             (1)  The Commissioner must take all reasonable steps to ensure that entrusted persons obtain, store, access, use and disclose intelligence information relating to an Australian intelligence entity only in accordance with an arrangement, between the Commissioner and the head of the entity, that deals with:

                     (a)  the manner in which entrusted persons obtain intelligence information relating to the entity; and

                     (b)  the protection of intelligence information relating to the entity while in the possession of entrusted persons; and

                     (c)  the disclosure by entrusted persons of intelligence information relating to the entity.

             (2)  The Commissioner must take all reasonable steps to ensure that an arrangement is in force for the purposes of subsection (1) with the head of an Australian intelligence entity before obtaining intelligence information relating to the entity.

             (3)  Subsections (1) and (2) apply despite any other provision of this Act.

             (4)  Without limiting subsection (1), an arrangement may:

                     (a)  limit the circumstances in which intelligence information may be disclosed in a report under section 60 or 62; and

                     (b)  set out matters to which the Commissioner must have regard in disclosing intelligence information under section 57.

             (5)  However, except as mentioned in paragraph (4)(a), an arrangement cannot prevent the exercise of the Commissioner’s powers or the performance of the Commissioner’s functions under any provision of this Act (including section 57).

Conduct of hearings

             (6)  Despite subsection 27(2), if the Commissioner is satisfied that a person appearing at a hearing may disclose intelligence information:

                     (a)  the Commissioner may, subject to paragraph (b) of this subsection, conduct the hearing in public or private; and

                     (b)  the conduct of the hearing must be consistent with an arrangement entered into for the purposes of subsection (1) of this section with the Australian intelligence entity to which the information relates.

Arrangement not a legislative instrument

             (7)  If an arrangement is entered into for the purposes of subsection (1) in writing, the arrangement is not a legislative instrument.

43   Application of this Act in relation to current and former IGIS officials

                   Despite anything else in this Act:

                     (a)  an entrusted person may obtain information from another person that the other person acquired as an IGIS official; and

                     (b)  a person may disclose information, that the person acquired as an IGIS official, to an entrusted person;

only in accordance with sections 34 and 34A of the Inspector-General of Intelligence and Security Act 1986 .