2019-2020

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Attorney-General the Honourable Christian Porter MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

AIC	Australian Intelligence Community (comprising ASIO, ASIS, ASD, AGO, DIO and ONI)
ACIC	Australian Criminal Intelligence Commission (established as the Australian Crime Commission in the ACC Act)
ACC Act	Australian Crime Commission Act 2002
ACLEI	Australian Commission for Law Enforcement Integrity
AML/CTF Act	Anti-Money Laundering and Counter-Terrorism Financing Act 2006
AFP	Australian Federal Police
AGO	Australian Geospatial-Intelligence Organisation
AHRC	Australian Human Rights Commission
AHRC Act	Australian Human Rights Commission Act 1986
ASD	Australian Signals Directorate
ASIO	Australian Security Intelligence Organisation
ASIO Act	Australian Security Intelligence Organisation Act 1979
ASIS	Australian Secret Intelligence Service
AUSTRAC	Australian Transaction Reports and Analysis Centre
CEO	Chief Executive Officer
Citizenship Act	Australian Citizenship Act 2007
Crimes Act	Crimes Act 1914
Criminal Code	Schedule 1, Criminal Code Act 1995
Defence Act	Defence Act 1903
DIO	Defence Intelligence Organisation
Home Affairs	Department of Home Affairs
IIR	2017 Independent Intelligence Review
IGADF	Inspector-General of the Australian Defence Force
IGIS	Office of the Inspector-General of Intelligence and Security
IGIS Act	Inspector-General of Intelligence and Security Act 1986
ITA Act	Income Tax Assessment Act 1997
Inspector-General	The individual holding the statutory position of Inspector-General of Intelligence and Security, under section 6 of the IGIS Act
Integrity bodies	The Commonwealth Ombudsman, the Australian Human Rights Commission, the Information Commissioner, the Integrity Commissioner, and the Inspector-General of the Australian Defence Force
IS Act	Intelligence Services Act 2001
LEIC Act	Law Enforcement Integrity Commissioner Act 2006
Migration Act	Migration Act 1958
NIC	National Intelligence Community (comprising ASIO, ASIS, ASD, AGO, DIO, ONI, the ACIC, and the intelligence functions of the AFP, AUSTRAC and the Department of Home Affairs)
Ombudsman	Commonwealth Ombudsman
Ombudsman Act	Ombudsman Act 1976
ONI	Office of National Intelligence
PJCIS	Parliamentary Joint Committee on Intelligence and Security
PJCLE	Parliamentary Joint Committee on Law Enforcement
PID	Public interest disclosure
PID Act	Public Interest Disclosure Act 2013
Privacy Act	Privacy Act 1988
PSPF	Protective Security Policy Framework
SCI Act	Security of Critical Infrastructure Act 2018
SD Act	Surveillance Devices Act 2004
TA Act	Taxation Administration Act 1953
Telecommunications Act	Telecommunications Act 1997
TIA Act	Telecommunications (Interception and Access) Act 1979
WP Act	Witness Protection Act 1994

 

INTELLIGENCE SERVICES AND OTHER LEGISLATION AMENDMENT (INTEGRITY MEASURES) BILL 2020

GENERAL OUTLINE

The intelligence enterprise that supports Australia’s national security has traditionally comprised the six Australian Intelligence Community (AIC) agencies (Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Australian Signals Directorate (ASD), Australian Geospatial-Intelligence Organisation (AGO), Defence Intelligence Organisation (DIO) and Office of National Intelligence (ONI)).

 

AIC agencies are overseen by the Inspector-General of Intelligence and Security (Inspector-General when referring to the statutory office holder). The Inspector-General is an independent statutory office holder with the powers of a Royal Commission, including the powers to require the attendance of witnesses, take sworn evidence, copy and retain documents and entry into an Australian intelligence agency's premises. The Inspector-General is supported by an office of staff (hereafter referred to collectively as the IGIS) in performing his or her functions of providing robust, independent oversight over intelligence agencies’ activities. AIC agencies are also subject to oversight through their Ministers, and to the parliament, particularly through the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

 

Increasingly, the intelligence capabilities of other agencies contribute to protecting Australia’s national security. In recent years, the Australian Criminal Intelligence Commission (ACIC, established as the Australian Crime Commission under the Australian Crime Commission Act 2002 (ACC Act)), the Australian Federal Police (AFP), the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Department of Home Affairs (Home Affairs) have been brought together with the AIC to form the National Intelligence Community (NIC), whose activities are centrally coordinated by ONI.

 

However, these additional four agencies are more disparate than AIC agencies and their intelligence functions are not necessarily equivalent. They are also subject to a range of different oversight and transparency mechanisms that are not suitable for AIC agencies. While oversight varies for each agency, it generally includes oversight by the Commonwealth Ombudsman (Ombudsman), the Australian Commission on Law Enforcement Integrity (ACLEI), Privacy and Freedom of Information frameworks. It also includes different forms of parliamentary oversight, such as the Parliamentary Joint Committee on Law Enforcement (PJCLE) in relation to the ACIC and the AFP and the PJCIS for the AFP’s counter-terrorism functions.

 

With the creation of the NIC, it is appropriate to consider whether intelligence oversight settings are appropriate. For these additional agencies, consideration needs to be given to how additional oversight would complement existing arrangements without duplication. A tailored approach also allows finite oversight resources to be targeted to the areas of greatest risk.

 

The intelligence functions of AUSTRAC and the ACIC are more substantial and closer aligned with traditional AIC agency activities, and would benefit from specialised intelligence oversight. Accordingly, the Bill implements reforms to increase oversight for the intelligence functions of the ACIC and AUSTRAC. Specifically, the Bill would expand the oversight jurisdiction of the:

·          IGIS, to include the intelligence functions of the ACIC and AUSTRAC, and

·          PJCIS, to include the intelligence functions of AUSTRAC.

The Comprehensive Review of the Legal Framework of the National Intelligence Community, which was led by Mr Dennis Richardson AC and released on 4 December 2020, recommended that the IGIS not have oversight of the AFP or the Department of Home Affairs.  This was based on observations that, while some overlap between oversight bodies is useful to ensure full coverage, duplication should be minimised to avoid unnecessary burdens. 

The Comprehensive Review considered that existing oversight mechanisms were sufficient for the intelligence functions of the AFP - which generally support the AFP’s policing functions rather than being primary functions - and Home Affairs - which is a department of state whose intelligence functions are limited.  However, it considered there to be a stronger case for IGIS’s specialised intelligence oversight to be extended to ACIC and AUSTRAC’s intelligence functions, which are more central to their activities as Australia’s national criminal intelligence body and financial intelligence units respectively.

While the Bill will not extend IGIS oversight over the AFP’s intelligence functions generally, it would ensure IGIS retains oversight of the AFP’s (and the ACIC’s) use of network activity warrants, should the Security Legislation Amendment (Identify and Disrupt) Bill 2020 pass the Parliament. 

The Bill would also amend the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure that the legislation governing the IGIS is adapted to contemporary circumstances. This includes technical amendments to improve clarity, modernise drafting expressions and remove redundant provisions, as well as amendments to address certain limitations in the IGIS’s oversight functions and powers in order to improve the flexibility and strengthen the integrity of inquiry processes.

 

Schedules 1 and 2 contain the proposed main, consequential and contingent amendments. Schedule 3 contains application and transitional provisions.

 

Part 1 of Schedule 1 amends the IGIS Act and the Intelligence Services Act 2001 (IS Act). The main amendments include:

·          amendments necessary to expand IGIS’s jurisdiction to the intelligence functions of the ACIC and AUSTRAC,

·          expanding PJCIS oversight to the intelligence functions of AUSTRAC,

·          measures to improve and streamline IGIS reporting procedures, and

·          m easures to improve clarity, modernise drafting expressions and remove redundant provisions.

 

Part 2 of Schedule 1 contains consequential amendments to the following Acts:

·          Anti-Money Laundering and Counter Terrorism Financing Act 2006

·          Australian Crime Commission Act 2002

·          Australian Human Rights Commission Act 1986

·          Australian Security Intelligence Organisation Act 1979

·          Crimes Act 1914

·          Criminal Code Act 1995

·          Income Tax Assessment Act 1997

·          Inspector-General of Taxation Act 2003

·          Intelligence Services Act 2001

·          Office of National Intelligence Act 2018

·          Ombudsman Act 1976

·          Public Interest Disclosure Act 2013

·          Surveillance Devices Act 2004

·          Taxation Administration Act 1953

·          Telecommunications Act 1997

·          Telecommunications (Interception and Access) Act 1979

·          Witness Protection Act 1994

 

These Acts would be amended to ensure that information that is protected by secrecy offences under this legislation can be disclosed to IGIS officials performing duties or functions, or exercising powers, as IGIS officials. This supports the IGIS’s oversight functions by ensuring the IGIS has full access to information, and that persons are able to voluntarily disclose information to the IGIS without breaching secrecy obligations.

 

Schedule 2 of the Bill contains contingent amendments that arise as a consequence of the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019 (AML/CTF Bill), the Australian Security Intelligence Organisation Amendment Bill 2020 (ASIO Bill), and the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (SLAID Bill) which are yet to be passed.

 

Part 1, Schedule 2 contains amendments which would ensure the IGIS is able to access and deal with ‘AUSTRAC’ information. As the AML/CTF Bill would significantly amend these provisions of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (AML/CTF Act), contingent amendments are necessary to ensure that the IGIS has appropriate access to information under either iteration of these provisions.

 

Part 2, Schedule 2 contains amendments which would ensure that the IGIS is able to access all premises where a person is being questioned under particular types of warrants. As the ASIO Bill would repeal and replace the “questioning and detention warrants” with “questioning and apprehension warrants”, these amendments are necessary to ensure that the IGIS retains access to all relevant places where a person would be questioned under either warrant type.

 

Part 3, Schedule 2 contains amendments to extend the IGIS’s jurisdiction to include the intelligence functions of the ACIC and AUSTRAC.

 

As the SLAID Bill would extend the IGIS’s jurisdiction to include the ACIC and Australian Federal Police (AFP) insofar as these entities exercise powers, duties or functions relating to network activity warrants and any intelligence obtained under these warrants, contingent amendments are necessary. The effect of the contingent amendments would be to ensure IGIS’s jurisdiction covers functions and powers of the ACIC and the AFP in relation to network activity warrants, if the SLAID Bill passes. This would be in addition to the expanded jurisdiction over intelligence functions of the ACIC and AUSTRAC outlined above.

 

Part 3, Schedule 2 also contains provisions necessary to support information sharing and complaints transfer between Commonwealth integrity bodies, which are necessary as a result of the IGIS’s expanded jurisdiction.

 

Schedule 3 contains application and transitional provisions.

 

FINANCIAL IMPACT

 

In the 2017-18 Portfolio Additional Estimates, and in the 2018-19 Budget, the IGIS was allocated $52.1 million over five years (2017­-18 to 2021-22) to support its expanded oversight responsibilities. The funding will enable the IGIS to sustain a full-time staff of around 55. The funding also provided for capital expenses, including IT systems, the secure fit-out costs of new premises and commercial rent for new premises.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Intelligence Services and Other Legislation Amendment (Integrity Measures) Bill 2020

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the  Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

1.       The Bill amends the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to expand the jurisdiction of the Inspector-General of Intelligence and Security (IGIS) to oversee additional agencies whose intelligence capabilities increasingly contribute to protecting Australia’s national security.

2.       Currently, the IGIS oversees the six Australian Intelligence Community agencies - the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Australian Signals Directorate (ASD), Australian Geospatial-Intelligence Organisation (AGO), Defence Intelligence Organisation (DIO) and Office of National Intelligence (ONI). The Bill would to expand the IGIS’s jurisdiction to include the intelligence functions of the Australian Criminal Intelligence Commission (ACIC, established as the Australian Crime Commission under the Australian Crime Commission Act 2002 (ACC Act)), and the Australian Transaction Reports and Analysis Centre (AUSTRAC).

3.       The Bill would also amend the IGIS Act to ensure that the legislation governing the IGIS is adapted to contemporary circumstances. This includes technical amendments to improve clarity, modernise drafting expressions and remove redundant provisions, as well as amendments to address certain limitations in the IGIS’s oversight functions and powers in order to strengthen the integrity of inquiry processes.

4.       The Bill also amends the Intelligence Services Act 2001 (IS Act) to expand the oversight jurisdiction of Parliamentary Joint Committee on Intelligence and Security (PJCIS) to include the intelligence functions of AUSTRAC.

5.       Together, these measures are designed to complement and strengthen the existing oversight settings for National Intelligence Community agencies and enhance the IGIS’s capability to perform its important role.

Human rights implications

6.       The Bill’s proposed measures would engage:

·          the right to privacy under article 17 of the International Covenant on Civil and Political Rights (ICCPR),

·          minimum guarantees in criminal proceedings under articles 14(3) of the ICCPR,

·          the right to human treatment in detention under article 10(1) of the ICCPR, and

·          the right to freedom of expression under article 19 of the ICCPR.

Right to Privacy

7.       Some of the Bill’s proposed measures engage the right to privacy in article 17 of the ICCPR, which provides:

(1)     No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)    Everyone has the right to the protection of the law against such interference or attacks.

8.       Although the United Nations Human Rights Committee has not defined privacy, it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

9.       The right to privacy may be limited in pursuit of a legitimate objective, and where the limitation is rationally connected to legitimate objectives and is not arbitrary. Any limitation should be proportionate to the objectives of the limitation.

10.   Schedule 2, items 47, 50, 68, 73, 80, 87, 90, 94, 117, 118, 138, 139, 140, 156, 159, 171, 176, 184, 186, and 187 limit the right to privacy.

11.   Schedule 2, items 65 and 167 would enable the IGIS, or a member of staff assisting the IGIS, to full and free access to any information, documents or other property of an overseen agency, and to examine, make copies of or take extracts from any information or documents when undertaking an inspection under the IGIS Act. Information accessed might include personal information that an overseen agency has acquired as part of its intelligence functions.

12.   Schedule 2, items 73 and 176 (which would insert section 32AE into the IGIS Act) would provide an authorisation for the purposes of the Privacy Act 1988 (Privacy Act), which would permit agencies (specifically AUSTRAC) to share personal information with the IGIS.

13.   Schedule 2, items 73 and 176 (which would insert section 32AF into the IGIS Act) would allow the IGIS to share information with other integrity bodies, and creates safeguards around information sharing. This may involve the transfer of personal information to an entity that it was not originally disclosed to, thus engaging the right to privacy.

14.   Schedule 2, items 73 and 176 (section 32AG of the IGIS Act), 47, 117, 156 ( Australian Human Rights Commission Act 1986 (AHRC Act)) , and 90, 139, 186 ( Ombudsman Act 1977 (Ombudsman Act)) create a range of measures that would allow the IGIS (and other integrity bodies) to transfer complaints to other integrity bodies. These measures may involve the transfer of personal information to or by an entity that it was not originally disclosed to, thus engaging the right to privacy.

15.   Schedule 2, items 73 and 176 (section 32AH of the IGIS Act), 49, 157 (AHRC Act), 80 ( Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)), 87, 138, 184 (Ombudsman Act), and 94, 140 and 187 (Privacy Act) create measures that would deem complaints that have been transferred to an integrity body to have been received by that body. These measures may involve the transfer of personal information to or by an entity that it was not originally disclosed to, thus engaging the right to privacy.

16.   The legitimate objective of the Bill is to ensure that the intelligence functions of the ACIC and AUSTRAC are appropriately overseen by a body with specialised intelligence oversight capacities, while also ensuring the efficient and effective operation of oversight between integrity bodies.

17.   Measures which allow the IGIS full access to information held by intelligence agencies are rationally connected to this objective by ensuring that the IGIS is able to oversee the activities of these agencies, including ascertaining whether intelligence agencies are handling personal information appropriately.

18.   Measures which allow the IGIS to transfer and receive complaints, and to share information, are rationally connected to the legitimate objective of enabling effective cooperation between integrity bodies by ensuring that where complaints could be more appropriately dealt with by another body, there are clear pathways for matters to be referred. These measures also support complainants, by removing the need to re-submit their complaint to another integrity body. These measures support the effective allocation of limited resources, which upholds robust oversight without integrity bodies needlessly duplicating oversight activities.

19.   Each of the measures are proportionate in achieving the legitimate objectives outlined above, and are subject to safeguards.

20.   Measures allowing access to information held by intelligence agencies are proportionate to the objective to supporting robust oversight. The IGIS is only able to access information for the purposes, duties or functions as an IGIS official, which limits the information they are able to access to that necessary to perform their oversight functions. This information, once obtained by the IGIS, is protected by the Protective Security Policy Framework (PSPF), and improper disclosure is a criminal offence under section 34 of the IGIS Act.

21.   Measures supporting information and complaints transfers are proportionate to the objective of ensuring efficiencies between Commonwealth integrity bodies by limiting information sharing to situations where the information is relevant to the functions of the receiving agency (rather than allowing indiscriminate and potentially irrelevant information to be shared). Complaints may only be transferred where an integrity body has determined that a matter could be more effectively or appropriately dealt with by another integrity body. Additionally, all integrity bodies are subject to offences for the improper disclosure of information (that is, disclosure of information that is not connected to their duties, functions or powers as an official of their integrity body).

22.   Schedule 1, items 87 and 146 promote the right to privacy.

23.   Schedule 1, item 87 requires that, after conducting an inquiry into a complaint in respect of action taken by an intelligence agency, the IGIS must give a written response to the complainant. It then requires that this written response must not be given without agreement from the head of the relevant agency that the terms of the proposed response to the complainant will not, among other things, prejudice the privacy of individuals.  

24.   Schedule 1, item 87 specifically promotes the right to privacy by ensuring that there are appropriate safeguards around the disclosure of personal information when responding to complainants.

25.   Similarly, schedule 1, item 146 would limit the ability of the PJCIS to disclose certain types of information, including information whose disclosure could unreasonably disclose personal information, in a report to Parliament. This promotes the right to privacy by ensuring adequate and appropriate safeguards around the disclosure of personal information.

26.   On balance, the right to privacy is permissibly limited by the measures in the Bill.

Minimum guarantees in criminal proceedings - the right against self-incrimination

27.   Some of the proposed measures engage the right not to incriminate oneself, which is enshrined in article 14(3)(g) of the ICCPR, which states:

(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

                        (g) Not to be compelled to testify against himself or to confess guilt.

28.   This right is embedded in Australian common law and protects a person from being compelled to disclose information or documents that would incriminate themselves.

29.   Schedule 1, items 72 and 73 would expand existing exceptions to the use immunities where a person is compelled to provide information or documents to the IGIS under section 18 of the IGIS Act. These amendments engage the right under Article 14(3)(g) of the ICCPR which protects a person from being compelled to testify against himself or to confess guilt.

30.   Section 18 of the IGIS Act provides that the IGIS has the power to require a person to provide information or documents. Specifically, subsection 18(1) allows the IGIS to use this power by issuing a notice in writing to the person, and subsection 18(3) allows the IGIS to issue a notice in writing to require a person to attend before the IGIS at a specified time and place. Under subsection 18(6), a person must still disclose information to the IGIS where that information “might tend to incriminate the person or make the person liable to a penalty”.

31.   Subsection 18(6) confers a use immunity on persons who provide information or documents under the notices issued in subsections 18(1) and 18(3), which prevents any information and documents provided under those circumstances from being admitted in evidence in proceedings against the person, except in proceedings in relation to conduct under section 18 of the IGIS Act (that is, providing information to the IGIS).

32.   Currently, this use immunity is subject to narrow exceptions outlined by paragraphs 18(6)(c)-(d), whereby a person may be may be prosecuted where they provide false or misleading information to the IGIS, or where they interfere with another person’s evidence to the IGIS.

33.   Schedule 1, item 72 would amend paragraph 18(6)(ca) to include sections “137.2 (false or misleading information and documents), 145.1 (using forged document) or 149.1 (obstruction of Commonwealth public officials)” after “137.1” in paragraph 18(6)(ca) (all offences under the Criminal Code Act 1995 ). Item 73 of Schedule 1 would also insert a new paragraph to allow a person to be prosecuted for an offence under Division 3 of Part III of the Crimes Act 1914 (which relates to conduct relating to court proceedings).

34.   Similarly to the existing exemptions, these amendments remove the use immunity for conduct related to the provision of information to IGIS, rather than the content of the information itself. Consequently, any self-incriminating information provided to IGIS under subsections 18(1) and (3) is subject to a use immunity and cannot be used against the individual. The information will only be exempted from the use immunity where it is required to prove unlawful conduct committed in the course of providing the requested documents.

35.   Consequently, these amendments engage, but do not limit, the privilege against self-incrimination. They do not directly require an individual to disclose incriminating information to the IGIS. Further, they provide that any prosecution (thus abrogation of the use immunity) would relate to the conduct of producing documents or disclosing information (or interfering with a witness), not the facts within the documents or information that the individual may have been trying to obscure. A person would not be charged for, for example, having committed theft, however they could be prosecuted for lying about that fact to the IGIS if it were pertinent to the oversight functions of the IGIS.

36.   Therefore, the proposed amendments engage, but do not limit, the privilege against self-incrimination and are consistent with Australia’s obligations under Article 14(3)(g) of the ICCPR.

Right to humane treatment in detention

37.   A proposed measure in the Bill would promote the right to humane treatment in detention, which is codified under article 10(1) of the ICCPR, as below:

(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

38.   The interpretation of the right to humane treatment in detention extends to the monitoring and supervision of places of detention.

Items relating to monitoring places of detention

39.   Schedule 2, items 35-38 would repeal and substitute new sections 9B and 19A into the IGIS Act. These new sections would allow the IGIS, for the purpose of an inspection under section 9A, or an inquiry under the IGIS Act, to enter any place where a person is being detained under either Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 , or sections 31 and 34D of the ACC Act.

40.   Previously, sections 9B and 19A only applied to the prescribed section of the Australian Security Intelligence Organisation Act 1979 , but the inclusion of the ACC Act reflects the IGIS’s expanded remit over the ACIC, which can detain persons under the ACC Act. These items would promote the right to humane treatment in detention, by enabling independent oversight of places of detention.

Right to freedom of expression

41.   Some items in the Bill would engage the right to freedom of expression, set out in article 19(2) of the ICCPR:

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

42.   The right in article 19(2) protects freedom of expression in any medium, for example written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising.

43.   Under article 19(3) freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation, necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.

44.   Schedule 1, items 108-123 of the Bill would limit the right to freedom of expression

45.   Items 108-123 amend section 34 of the IGIS Act to provide that all IGIS staff members (including contractors, consultants and secondees) are bound by the secrecy provision in the IGIS Act. Schedule 1, item 124 would further provide that the IGIS Act secrecy offence (section 34 of the IGIS Act) can only be overridden by legislation which specifically provides that it overrides the IGIS Act. These amendments limit IGIS officials’ right to freedom of expression by criminalising the disclosure of information obtained by an IGIS official obtained in the course of their duties, functions or powers as an IGIS official.

46.   The legitimate objective of the legislation is to ensure that information provided to the IGIS may only be disclosed in narrow, tightly controlled circumstances. This is necessary to maintain confidence in the IGIS’s ability to protect the sensitive information it obtains from Australian intelligence agencies, which includes information which would affect Australia’s national security. Criminalising the disclosure of information other than as part of the IGIS’s duties, functions or powers supports this objective, and is proportionate, given the sensitivity of the information held by the IGIS and the need to protect national security and public safety.

47.   Additionally, the Bill would promote the right to freedom of expression (specifically the freedom to seek, receive and impart information under Article 19(2) of the ICCPR) by providing exceptions to secrecy offences to allow individuals to disclose information to the IGIS. These exceptions would ensure that a person within an intelligence agency, or who holds information regarding intelligence agency activities that would otherwise be subject to secrecy offences, does not commit an offence by disclosing information to IGIS that would otherwise constitute an offence.

Conclusion

48.   The Bill is compatible with human rights because it promotes 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.

 

NOTES ON CLAUSES

Clause 1:                  Clause 1: Short title

1.       This clause provides that the Bill, when passed, may be cited as the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Act 2020.

Clause 2:                  Clause 2: Commencement

2.       This clause sets out when the various parts of the Bill commence. Subclause 2(2) provides that information in column 3 of the table are not part of the Act and have no legal effect.

3.       Item 1 of the table provides that sections 1 to 3 of the Bill (the short title, commencement and schedules provisions) and anything in the Bill not covered elsewhere in the table would commence on the day the Act receives Royal Assent.

4.       Schedule 1, Part 1 would make the main amendments to the IGIS Act and the IS Act. Table item 2 of the table provides that Part 1 of Schedule 1 to the Bill would commence the day after the day the Act receives Royal Assent.

5.       Schedule 1, Part 2 contains amendments that are consequential to the amendments in Part 1 of Schedule 1 to the Bill. Table item 3 of the table provides that Part 2 of Schedule 1 to the Bill would commence immediately after the commencement of the provisions in Part 1 of Schedule 1.

6.       Schedule 2, Part 1, Division 1 contains amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) that are contingent on the passage of the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019 (AML/CTF Bill). Table item 4 provides that these amendment would commence immediately after the amendments contained in Part 1 of Schedule 1, but will not commence at all if Part 4 of Schedule 1 to the AML/CTF Bill commences prior to that date.

7.       Schedule 2, Part 1, Division 2 contains amendments to the AML/CTF Act and IGIS Acts, that are contingent on the passage of the AML/CTF Bill. Table item 5 would provide that these provisions would commence on the later of:

·          immediately after the commencement of Part 1 of Schedule 1 to the Bill, and

·          the commencement of Part 4 of Schedule 1 to the AML/CTF Bill.

However, these provisions do not commence at all if Part 4 of Schedule 1 to the AML/CTF Bill does not commence.

8.       Schedule 2, Part 2, Divisions 1 and 2 would amend sections 9B and 19A of the IGIS Act, which outlines when the IGIS may enter places of detention. These amendments are contingent on the passage of the Australian Security Intelligence Organisation Amendment Bill 2020 (ASIO Bill). Item 6 of the table provides the amendments that would commence if the Bill passes before the ASIO amendments commence. It also provides that if the ASIO Bill has commenced, the provisions in Schedule 2, Part 2, Division 1 do not commence at all.

9.       Item 7 of the table provides the amendments that would commence if the Bill passes after the ASIO Bill commences. It also provides that the Division 2 provisions commence on the later of:

·           immediately after the commencement of Part 1 of Schedule 1 to the Bill, or

·          the commencement of the ASIO Bill.

However, if the ASIO Bill has not commenced, the provisions in Schedule 2, Part 2, Division 2 do not commence at all.

10.   Schedule 2, Part 3, Divisions 1-4 contain amendments that are contingent on the passage of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (SLAID Bill). This Bill and the SLAID Bill make similar amendments to a number of pieces of legislation to reflect expansions in IGIS’s jurisdiction, and the four divisions of this part reflect contingent amendments depending on the commencement dates of these two Bills.

11.   Schedule 2, Part 3, Division 1 contains amendments which commence immediately after the main amendments (Schedule 1, part 1), if the SLAID Bill has not commenced (item 8 of the table). Items in this part give IGIS jurisdiction over the intelligence functions of the ACIC and AUSTRAC. This division also establishes information sharing and complaints transfer between Commonwealth integrity bodies.

12.   Schedule 2, Part 3, Division 2 would repeal a number of items from the SLAID Bill (those items which are duplicated by Division 1). Item 9 of the table provides that this division only commences if part 2 of Schedule 2 of the SLAID Bill has not commenced when this Bill would commence.

13.   Schedule 2, Part 3, Division 3 contains items which would only commence after the SLAID Bill has commenced (item 10 of the table). These items would give effect to the SLAID Bill by expanding the IGIS’s jurisdiction to include the Australian Federal Police (AFP) insofar as the AFP is performing functions or powers related to network activity warrants. The Division would not commence at all if the SLAID Bill has already commenced.

14.   Schedule 2, Part 3, Division 4 contains items which would only enter force if the SLAID Bill has already commenced at the time that this Bill commences (table item 11). These items would expand the IGIS’s jurisdiction to include all intelligence functions performed by the ACIC (whereas the SLAID Bill would only extend IGIS’s jurisdiction to network activity warrant functions), and AUSTRAC. This Division would also renumber provisions inserted by the SLAID Bill, and update cross-references in relation to complaints transfer and information-sharing.

15.   Item 12 of the table provides that Schedule 3 to the Bill, which contains application and transitional provisions, would commence at the same time as Part 1 of Schedule 1 to the Bill.

Clause 3:                  Clause 3: Schedules

16.   Clause 3 provides that amendments to, or repeal of, legislation contained in the Act are set out in the Schedules to the Act and any other item in a Schedule to the Act has effect according to its terms.

 

 

Schedule 1 : Amendments

Part 1: Main amendments

Inspector-General of Intelligence and Security Act 1986

17.   The amendments to the Act set out in this Schedule would amend the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure that the legislation is adapted to contemporary circumstances. This includes amendments to streamline and strengthen the IGIS’s inquiry processes, and technical amendments to clarify the operation of the Act, modernise drafting expressions and remove redundant provisions.

Item 1: Section 2

18.   This item would amend section 2 by omitting the term “shall come into operation” and substituting “commences”. This amendment would modernise language within the IGIS Act.

Item 2: Subsection 3(1)

19.   This item would insert the following new definitions into subsection 3(1) of the IGIS Act:

‘ APS Code of Conduct ’ means the rules in section 13 of the Public Service Act 1999 (Public Service Act)

‘ AUSTRAC ’ means the Australian Transaction Reports and Analysis Centre continued in existence by the AML/CTF Act.

‘ AUSTRAC CEO ’ has the same meaning as in the AML/CTF Act. Section 5 of the AML/CTF Act provides that AUSTRAC CEO means the Chief Executive Officer of AUSTRAC.

‘ contracted service provider’ means a person under an IGIS contract (defined by item 4) who is responsible for providing services to the IGIS as well as subcontractors (defined by item 9) under an IGIS contract. This amendment is necessary due to the amendments to the employment structures available to the Inspector-General under item 101 of Schedule 1).

‘IGIS contract’ to mean a contract, to which the Inspector-General is a party, under which services are to be, or were to be, provided to the Inspector-General. This amendment is necessary due to the amendments to the employment structures available to the Inspector-General under item 101 of Schedule 1).

‘IGIS official’ to mean both the Inspector-General as well as other people covered under section 32(1) of the IGIS Act (as amended by items 99 and 101 of Schedule 1).

Item 3: Subsection 3(1)

20.   This item would amend subsection 3(1) by inserting a new definition for an ‘ONI Act employee’ and a ‘Public Service Act ONI employee’. These definitions respectively refer to:

‘ONI Act employee’ means a member of the staff of ONI employed under subsection 33(3) of the Office of National Intelligence Act 2018.

‘ paid work ’ means work for financial gain or reward, including as an employee, a self-employed person or otherwise. This definition is necessary due to the amendments in item 97 of Schedule 1, relating to the circumstances in which the Inspector-General’s appointment may be terminated.

 ‘Public Service Act ONI employee’ means a member of the staff of ONI engaged under the Public Service Act.

21.   These amendments are necessary due to the amendments to the IGIS’s ability to consider matters relating to ONI staff depending on the legislative basis of their employment (inserted by items 18, 21-23, 39 of Schedule 1, and items 63 and 167 of Schedule 2).

 Item 4: Subsection 3(1) (definition of permanent resident )

22.   This item would amend subsection 3(1) by repealing the definition of ‘permanent resident’. Subsequent uses of the term ‘permanent resident’ in the IGIS Act would be by reference either to the definition in the Australian Security Intelligence Organisation Act 1979 ( ASIO Act) or Intelligence Services Act 2001 (IS Act) (as appropriate). This would 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.

23.   The intention is also to apply a consistent meaning to a ‘permanent resident’ between ASIS, ASD, AGO, ONI, DIO and the intelligence functions of the ACIC and AUSTRAC in relation to the limitations on the IGIS’s intelligence agency inquiry functions and the Public Interest Disclosure Act 2013 (PID Act) deeming provisions in sections 8 and 8A.

24.   Additionally, while the existing IGIS Act definition of ‘permanent resident’ is not explicitly limited to natural persons, both the ASIO Act and IS Act clearly set out that permanent residents are both natural persons as well as some categories of bodies corporate. 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 1997 (Telecommunications Act)).

25.   Further, the amendment is necessary as the definition of ‘permanent resident’ in the IGIS Act refers to the term “illegal entrant” under the Migration Act 1958 (Migration Act), which is no longer defined in that Act. The definition of ‘permanent resident’ in the ASIO Act and IS Act have been updated to reflect this. Moving forwards, linking the definition of ‘permanent resident’ in the IGIS Act with the definition of that term in the ASIO Act and IS Act would ensure that the IGIS Act is updated automatically if the latter two Acts are amended from time-to-time to reflect any changes to the terminology used in the Migration Act.

Item 5: Subsection 3(1) (paragraph (a) of the definition of responsible Minister )

26.   This item would amend subsection 3(1) by amending the definition of ‘ responsible Minister ’ by inserting “, or the part of the Act that establishes the agency or continues the agency in existence” after “that Act”.

27.   This amended definition is intended to resolve ambiguity where more than one Minister has responsibility for an Act that establishes an agency. The provision would clarify that the responsible Minister is the Minister responsible for the part of the Act that establishes the agency or continues the agency in existence.

Item 6: Subsection 3(1)

28.   This item would amend subsection 3(1) of the IGIS Act to insert a definition of ‘subcontractor’ in relation to an IGIS contract (inserted by item 2 of Schedule 1). The definition captures persons who are responsible for providing services to the Inspector-General whether the person is a party to a contract with a contracted service provided for the IGIS (under the definition inserted by item 2 of Schedule 1) as well as subcontracts for an IGIS contract. This amendment is necessary due to the amendments to the employment structures available to the Inspector-General under item 101 of Schedule 1.

Item 7: Subsections 6(1) and 6(2)

29.   This item would amend subsections 6(1) and 6(2) by omitting the word “shall” and substituting “is to”. This amendment would modernise language within the IGIS Act.

Item 8: Before subsection 6(3)

30.   This item would insert the heading ‘Consultation requirement’ before subsection 6(3). This would clarify the structure of the section.

Item 9: After subsection 6(3)

31.   Section 6 of the IGIS Act provides for the appointment of the Inspector-General. The IGIS Act does not contain any criteria as to who may be appointed as the Inspector-General, other than 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. This item would insert a new heading and subsection (3A) into section 6 of the IGIS Act to provide that the head or deputy head of an agency within IGIS’s jurisdiction is not to be appointed as the Inspector-General immediately following their service in an intelligence agency.

32.   It is important to clarify that an individual having some experience within intelligence agencies doesn’t necessarily create bias within that person, such that would prevent them from providing robust oversight. Further, some period of service within an intelligence agency doesn’t necessarily preclude a person from being appointed as the Inspector-General in the future. However, 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. This perception, and thus 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.

33.   This item would also insert a new heading ‘Arrangements with States and Territories’ before subsection 6(4). This would clarify the structure of the section.

Item 10: Subparagraph 6AA(1)(ii)

34.   This item would repeal and replace subparagraph 6AA(1)(ii), which relates to the staff assisting the Inspector-General within the Office of the IGIS. This section is updating the reference to include staff in subsection 32(1) of the IGIS Act, as amended by item 99 of Schedule 1.

Item 11: Before subsection 8(1)

35.   This item would insert a new subheading ‘Intelligence agency inquiry functions in relation to ASIO’ before subsection 8(1). This amendment would make clear that sections under this subheading relate to the IGIS’s inquiry functions as they relate to ASIO.

36.   Existing section 8 is a lengthy provision and this amendment would clarify the structure of the section.

Item 12: Paragraph 8(1)(c)

37.   This item would amend paragraph 8(1)(c) by omitting “in a case where” and substituting “(within the meaning of the Australian Security Intelligence Organisation Act 1979 ) if”. This amendment is consequential to the removal of the definition of permanent resident from the IGIS Act by item 4 of Schedule 1.

38.   Subsection 8(1) outlines the IGIS’s functions in relation to ASIO, as such the ASIO Act definition of ‘permanent resident’ is used here. The ASIO Act definition makes clear that both natural persons and some categories of bodies corporate are ‘permanent residents’, and will be able to complain to the IGIS. It is not intended that there will be a substantive change to the functions of the IGIS as a result of this amendment.

Item 13: Subparagraph 8(1)(c)(i)

39.   This item would omit “the Australian Security Intelligence Organisation Act 1979 ” from subparagraph 8(1)(c)(i) and substitute “that Act”. This amendment is consequential to the insertion of a reference to the ASIO Act earlier in paragraph 8(1)(c) by item 12 of Schedule 1.

Item 14: Paragraph 8(1)(d)

40.   This item would amend subsection 8(1)(d) by omitting the word “where” and substituting the word “if”. This amendment would modernise language within the IGIS Act.

Item 15: Before subsection 8(2)

41.   This item would insert a new subheading ‘Intelligence agency inquiry functions in relation to ASIS, AGO or ASD’ before subsection 8(2). This amendment would make clear that sections under this subheading relate to the IGIS’s inquiry functions as they relate to ASIS, AGO and ASD.

42.   Existing section 8 is a lengthy provision and this amendment would clarify the structure of the section.

Item 16: Paragraph 8(2)(a)

43.   This item would amend paragraph 8(2)(a) by inserting “(within the meaning of the Intelligence Services Act 2001 )”. This amendment is consequential to the removal of the definition of permanent resident from the IGIS Act by item 4 of Schedule 1.

44.   The functions of ASIS, AGO and ASD are all set out in the IS Act. As such, it is consistent that IGIS’s oversight functions align with the IS Act definition of an Australian citizen and permanent resident. Further, the IS Act definition makes clear that both natural persons and some categories of bodies corporate are ‘permanent residents’, and will be able to complain to the IGIS. It is not intended that there would be a substantive change to the functions of the IGIS as a result of this amendment.

Item 17: Before subsection 8(3)

45.   This item would insert a new subheading ‘Intelligence agency inquiry functions in relation to DIO or ONI’ before subsection 8(3). This amendment would make clear that sections under this subheading relate to the IGIS’s inquiry functions as they relate to DIO and ONI.

46.   Existing section 8 is a lengthy provision and this amendment would clarify the structure of the section.

Item 18: Paragraphs 8(3)(a) and 8(3)(b)

47.   This item would repeal and substitute paragraphs 8(3)(a) and 8(3)(b).

48.   Subsection 8(3) sets out the inquiry functions of the IGIS in relation to DIO and ONI. Currently under subsection 8(3), the IGIS can only commence inquiries into DIO or ONI at the request of the Attorney-General, the responsible Minister or on the IGIS’s own motion.

49.   New paragraphs 8(3)(a) and 8(3)(b) are similar to the existing paragraphs, but would allow the IGIS to inquire into certain matters in response to a complaint made by an Australian citizen or permanent resident (within the meaning of the IS Act). Enabling the IGIS to consider complaints would provide greater consistency with IGIS’s functions across the AIC, as well as reflecting the potential impact that analytical agencies such as DIO and ONI can have on Australian citizens or permanent residents. This amendment would also ensure that complainants have the protections offered under the IGIS Act when making a complaint.

50.   It is not intended that the amendments made by this item would in any way diminish the existing scope of the inquiry powers of the IGIS.

Paragraph 8(3)(a)

51.   Existing paragraph 8(3)(a) allows the IGIS to commence an inquiry into:

·           the compliance by DIO or ONI with the laws of the Commonwealth and of the States and Territories; or

·          in the case of ONI—the compliance by ONI with directions given to ONI by the responsible Minister; or

·          the propriety of particular activities of that agency; or

·          the effectiveness and appropriateness of the procedures of that agency relating to the legality or propriety of the activities of that agency

at the request of the Attorney-General or relevant Minister (Ministerial direction) or by the IGIS’s own motion.

52.   New paragraph 8(3)(a) would allow the IGIS to consider DIO or ONI’s

·          compliance with the laws of the Commonwealth and of the States and Territories; or

·          compliance with directions or guidelines given to that agency by the responsible Minister; or

·          the propriety of particular activities of DIO or ONI

by Ministerial direction, by the IGIS’s own motion, or in response to a complaint made by an Australian citizen or permanent resident (within the meaning of the IS Act).

53.   New paragraph 8(3)(a) would expand IGIS’s jurisdiction to consider compliance with laws, propriety of activities, and compliance with guidelines by both agencies to include a new complaints jurisdiction. It would also expand IGIS’s jurisdiction to include DIO’s compliance with directions or guidelines.

Paragraph 8(3)(aa)

54.   New paragraph 8(3)(aa) is substantially similar to existing subparagraph 8(3)(a)(iii). The provision would allow the IGIS to “inquire into any matter that relates to the effectiveness and appropriateness of the procedures of that agency relating to the legality or propriety of the activities of that agency”, based on Ministerial direction or by the IGIS’s own motion. There is no complaints jurisdiction for these activities. This is consistent with the approach that has been taken in relation to ASIS, AGO and ASD in existing paragraph 8(2)(c).

Paragraph 8(3)(b)

55.   New paragraph 8(3)(b) outlines where the IGIS may inquire into matters referred to it by the Australian Human Rights Commission (AHRC). It would allow the IGIS to conduct an inquiry in response to a complaint made by an Australian citizen or permanent resident (within the meaning of the IS Act), as well as at the request of the Attorney-General, the responsible Minister or by the IGIS’s own motion. This is consistent with the approach taken with ASIO in subsection 8(1)(a)(v) and ASIS, AGO and ASD in subparagraph 8(2)(a)(iv).

56.   New subparagraphs 8(3)(b)(i)-(iii) are substantially similar to existing subparagraph 8(b)(i) although they have been separated and reordered to improve clarity.

Paragraph 8(3)(ba)

57.   New paragraph 8(3)(ba) is substantially similar to existing subparagraph 8(3)(b)(ii). The provision has been moved out into a separate paragraph as, unlike the rest of existing paragraph 8(3)(b), the IGIS’s functions in relation to new paragraph 8(3)(ba) would not be extended to allow the IGIS to inquire into a matter in response to a complaint. This is the same approach that has been taken in relation to ASIO in existing paragraph 8(1)(b) and ASIS, AGO and ASD in existing paragraph 8(2)(b).

58.   This limitation does not relate to employment complaints themselves, only matters relating to the overarching procedures of agencies to respond to employment grievances. The IGIS’s ability to consider complaints relating to employment grievances is outlined in section 8(6)-(7) of the IGIS Act, as amended by items 21-23 of Schedule 1.

Paragraph 8(3)(bb)

59.   New paragraph 8(3)(bb) would allow the IGIS to inquire into complaints regarding decisions about security clearances (of the highest level), made by Australian citizens and permanent residents who are employees of ONI. The phrase “security clearances (of the highest level)” is intended capture the Top Secret (Positive Vetting) clearance, as it known at the time of the Bill’s introduction, as well as any clearance of equivalent level (regardless of what that clearance is called, from time to time).

60.   This provision is necessary as the majority of ONI employees are required to maintain a Top Secret (Positive Vetting) security clearance as a part of their employment, and the loss of that clearance generally results in the termination of that employee’s employment. ONI employees differ from employees in other intelligence agencies in that it is not possible in most cases to redeploy an ONI employee to another role where a lower clearance would suffice. This is different from, for example, an employee in a defence intelligence agency (DIO or AGO), where a person may be able to be employed in another role in the Department of Defence that does not require a high level security clearance if they are not able to obtain the requisite clearances.

61.   This provision would ensure that, where an ONI employee’s security clearance is processed by an agency that does not have an appeals process to contest decisions, there would be an opportunity for an employee to request a review. This would ensure that an individual would not face the consequences of a loss of a Top Secret (Positive Vetting) clearance without having access to a review process. The IGIS’s jurisdiction in relation to security clearance complaints applies to all ONI staff, whether employed under the Public Service Act or under the ONI Act.

Item 19: Subsection 8(4)

62.   This item would repeal subsection 8(4).

63.   Existing subsection 8(4) limits the oversight functions of the IGIS over ASIS, AGO and ASD under paragraph 8(2)(a) by requiring that either an Australian citizen or permanent resident be affected by the law, or that a law of the Commonwealth, State or Territory may have been violated. This reflects the policy position adopted in the original IGIS Act that the IGIS’s jurisdiction 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’ operations within the scope of paragraph 8(2)(a).

64.   More recently, successive Governments, Parliaments and independent reviews have placed emphasis and value on the role of the IGIS in reviewing all aspects of AIC agencies’ activities, without reference to distinctions or limitations of the kind contemplated by the original policy justification underlying subsection 8(4). By repealing subsection 8(4) it is intended that the exercise of the IGIS’s functions under paragraph 8(2)(a) no longer require that nexus.

65.   Despite this amendment, the IGIS would only be able to consider complaints about these matters where they were made by Australian citizens or permanent residents (as provided by section 8 of the IGIS Act). However, 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.

Item 20: After subsection 8(5)

66.   This item would insert new subsection (5A) after subsection (5).

67.   New subsection (5A) provides that the inquiry functions of the IGIS under paragraph 8(3A) (which provides the inquiry powers relating to the ACIC and AUSTRAC) do not extend to a matter where the complainant is a contractor, and the matter directly relates to their contract, agreement or other arrangement. This is intended to make clear that, just as the IGIS would not consider employment complaints for employees of the ACIC or AUSTRAC, they would not consider employment-related complaints from contractors for these agencies.

68.   New subparagraph 8(5A)(b)(ii) provides a narrow exception, which would allow the IGIS to inquire into a matter where the contractor is complaining about the legality or propriety of the functions or services they are performing under a contract. The intention of this provision is to ensure that the IGIS is able to oversee situations where agencies are contracting external parties to perform activities which constitute ‘intelligence functions’.

69.   This reflects similar wording in existing subsection 8(8) which provides that the IGIS may inquire into a matter where the complainant is a person performing functions or services for ASIO under a contract, agreement or other arrangement, and the matter directly relates to that contract, agreement or other arrangement.

Items 21-22: Subsection 8(6), Paragraphs 8(6)(a) and (b)

70.   These items would amend subsection 8(6) to provide that the functions of the IGIS includes considering complaints regarding promotion, termination, discipline, remuneration or any other matters relating to an individual’s employment within ONI. Currently the IGIS’s employment complaints jurisdiction under subsection 8(6) relates to ASIO, ASIS and ASD employees. Employees within these agencies are employed under Acts other than the Public Service Act, and as such are not able to access the conventional avenues for addressing employment grievances under that Act.

71.   Staff in ONI may be employed under both the Public Service Act or the ONI Act. Staff employed under the ONI Act do not have the ability to complain as the IGIS was precluded from considering such complaints (section 8(5) IGIS Act, although this would be amended by items 62-63 of Schedule 2). These amendments ensure fair treatment for this category of ONI employees.

Item 23: After paragraph 8(7)(b)

72.   Subsection 8(7) provides that the IGIS must not inquire into an employment-related complaint (under subsection 8(6)) to the extent that the complainant is able to have the complaint considered by a body that is independent of their agency (that is, it does not include the head of the intelligence agency or any employees from that agency).

73.   This item would amend this subsection to provide that the IGIS must not consider a complaint from an ONI staff member to the extent that the ONI staff member is able to have the matter considered by a body that does not include the Director-General of National Intelligence or any other ONI employee (note that this includes any ONI employee, regardless of which Act they are employed under). This amendment provides equal treatment between ONI staff and staff from other intelligence agencies who may bring complaints to the IGIS (currently ASIO, ASIS and ASD).

Item 24: Subsection 8(7) (note)

74.   This item would repeal and substitute the note to subsection 8(7). The revised note is intended to signpost that in addition to subsection 8(7), subsection 11(5) may also be relevant, in that it also relates to the IGIS’s discretion not to inquire into a matter referred under subsection 8(6). This note is intended to clarify the operation of the IGIS Act.

Item 25: At the end of subsection 8(8A)

75.   This item would insert a note after subsection 8(8A). Subsection 8(8A) provides that the IGIS may decide not to inquire into an ASIO affiliate’s contractual complaint where there is another, independent, body who could consider the complaint. The note would draw attention to subsection 11(6) which also relates to the IGIS’s discretion not to inquire into an ASIO affiliate’s complaint where the IGIS considers that ASIO’s redress procedures are adequate and those procedures have not been exhausted by the complainant. This note is intended to clarify the operation of the IGIS Act.

Item 26: Before subsection 8(9)

76.   This item would insert the subheading ‘Functions conferred by other Acts’ before subsection 8(9). Existing section 8 is a lengthy provision and this amendment would clarify the structure of the section.

Item 27: Subsection 8A(2)

77.   The Bill would update the IGIS’s public interest disclosure (PID) functions to align with the IGIS’s new jurisdiction in relation to intelligence agencies under section 8 of the IGIS Act (as updated by items 18 and item 61 of  Schedule 2). This item would repeal subsection 8A(2).

78.   Section 8A outlines the IGIS’s PID functions under the PID Act. The section, as it currently operates, ensures that where the IGIS receives information under the PID scheme, and some of the disclosed conduct occurred in an intelligence agency, the PID is to be treated in the same manner as a complaint made to the IGIS about the propriety of particular activities of the intelligence agency (under section 8 of the IGIS Act, the IGIS may inquire into complaints in relation to the propriety of activities for all intelligence agencies).

79.   Existing subsection 8A(2) provides that the IGIS should disregard existing subsection 8(4) when determining whether they are authorised to inquire into the complaint. This subsection is obsolete as subsection 8(4) would be repealed by item 19 of Schedule 1.

Item 28: subsection 8A(4)

80.   This item would update subsection 8A(4) to reflect the expansion of the IGIS’s jurisdiction to the intelligence functions of the ACIC and AUSTRAC, as well as the creation of a complaints jurisdiction in relation to ONI and DIO (item 18 of Schedule 1).

81.   Section 8A provides the functions of the IGIS in relation to the PID Act. Subsection 8A(3) establishes parallels between the PID scheme and the IGIS’s existing complaints functions under the IGIS Act. Paragraph 8A(3)(c) provides that, if a PID disclosure is allocated to the IGIS, then the person who disclosed the information is taken to have made a complaint to the IGIS in respect of the disclosable conduct. However, under existing subsection 8A(4), the discloser would not receive protection equivalent to an IGIS complainant if:

·          the conduct related to ASIS, AGO or ASD, and the discloser is not an Australian citizen or permanent resident, or

·          the conduct related to DIO or ONI.

82.   This item would repeal and replace subsection 8A(4) to instead provide that the discloser would not receive protection equivalent to an IGIS complainant if:

·          the relevant intelligence agency is ASIS, ASD, AGO, DIO, ONI, ACIC or AUSTRAC, and

·          the person who makes the disclosure is not a natural person who is an Australian citizen or permanent resident (within the meaning of the IS Act)

83.   This approach diverges from the existing approach to subsection 8A(4) in three ways.

84.   Firstly, PIDs relating to DIO and ONI are no longer automatically excluded from being considered complaints made to the IGIS. This reflects the amendments to subsection 8(3) (item 18 of Schedule 1) which would allow the IGIS to inquire into complaints (from Australian citizens and permanent residents) regarding propriety in relation to DIO and ONI.

85.   Secondly, amended subsection 8A(4) would extend to all the agencies subject to IGIS oversight (excluding ASIO). This is consequential to the expansion of the IGIS’s jurisdiction, and is necessary to ensure that the intelligence functions of the ACIC and AUSTRAC are treated in an analogous manner to AIC agencies. ASIO is not included in this subsection as the IGIS’s complaint function in relation to ASIO is not limited to Australian citizens or permanent residents.

86.   Thirdly, the definition of permanent resident is now taken from section 3 of the IS Act rather than within the IGIS Act. This is consequential to the repeal of that definition in subsection 3(1) (item 4 of Schedule 1).

Item 29: paragraph 9AA(a)

87.   This item would repeal paragraph 9AA(a). Paragraph 9AA(a) requires the IGIS to obtain the approval of the relevant responsible Minister or Prime Minister (as applicable) to inquire into a matter relating to a Commonwealth agency that occurred outside of Australia.

88.   The repeal of paragraph 9AA(a) is intended to reflect the reality that the contemporary movement of Australians abroad, and the large number of Australian laws with extraterritorial application, means that 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. It is appropriate that these activities are subject to IGIS oversight, and that the IGIS should be able to oversee these matters as a matter of course, rather than having to seek permission.

Item 30: Subsection 10(2)

89.   This item would amend subsection 10(2) to replace “Where a complaint is made orally to the Inspector-General, the Inspector-General shall” with “If a complaint is made orally to the Inspector-General, the Inspector-General must”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 31: Before subsection 11(1)

90.   This item would amend section 11 by inserting a new subheading ‘Requirement to inquire into certain complaints’ before subsection 11(1). This heading would clarify the structure of the section.

Item 32: Subsection 11(1)

91.   This item would amend subsection 11(1) by omitting the word “Where” and substituting the word “If”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 33: Subsection 11(1)

92.   This item would amend subsection 11(1) by replacing the word “shall” with the word “must”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 34: Before subsection 11(2)

93.   This item would amend section 11 by inserting a new subheading ‘When inquiry or further inquiry into complaints is not required’ before subsection 11(2). This heading would clarify the structure of the section.

Item 35: Subsections 11(2) and (3)

94.   This item would amend subsections 11(2) and (3) by omitting the word “Where” and substituting the word “If”. These amendments are intended to modernise and standardise language within the IGIS Act, and are not intended to have a substantive effect.

Item 36: Subsection 11(3)

95.   This item would amend subsection 11(3) by omitting the word “shall” and substituting the word “must”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 37: Subsection 11(4)

96.   This item would amend subsection 11(4) by omitting the word “Where” and substituting the word “If”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 38: Subsection 11(5)

97.   This item would amend subsection 11(5) by omitting the word “shall” and substituting the word “may”. Existing subsection 11(5) provides that the IGIS “shall not” inquire into complaints about employment grievances of ASIO, ASIS, ASD (and ONI, due to the amendments in items 21-23 of Schedule 1) employees under subsection 8(6) where the IGIS considers the employee’s agency has adequate procedures for addressing employment matters and the complainant has not pursued those procedures as far as practicable. Subsection 11(5) also provides that the IGIS “shall not” inquire into matters which are “not of sufficient seriousness or sensitivity to justify an inquiry”.

98.   Although the use of the word ‘may’ would often be linked with a discretion, this amendment would not provide the IGIS with discretion in relation to subsection 11(5), so long as the IGIS is satisfied of the criteria in paragraphs 11(5)(a)-(c). This is appropriate to ensure that complainants exhaust all existing avenues for redressing grievances in relation to employment matters prior to complaining to the IGIS.

Item 39: Paragraph 11(5)(a)

99.   This item would add ONI Act employees to the list in paragraph 11(5)(a). This is consequential to the IGIS’s new employment complaints jurisdiction created by items 21-23 of Schedule 1). The section provides that the IGIS may not inquire into an employment complaint where they are satisfied that the complainant has not exhausted existing grievance mechanisms within their agency, and the IGIS is satisfied those mechanisms are adequate and effective. It also provides that the IGIS may not inquire into an employment complaint where the matter of the complaint is “not of sufficient seriousness or sensitivity to justify an inquiry”. This amendment would prevent the IGIS from being required to inquire into large volumes of trivial complaints.

Item 40: Section 12

100.    This item repeals and replaces section 12. The effect of new section 12 is that where the IGIS makes a decision not to inquire into, or inquire further into, a complaint in relation to an intelligence agency, the IGIS is no longer required to notify the complainant in writing. Instead, the IGIS must take reasonable steps to notify the person in writing of this decision. This amendment reflects that it is not possible to notify a complainant in all circumstances, for example, where contact details are incorrect or outdated.

101.    The requirement to notify the responsible Minister and the head of the agency of the decision in writing is not changed by the amendment.

Item 41: Subsection 13(2)

102.    This item would amend subsection 13(2) by omitting the word “shall” and substituting the word “must”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 42: Before section 14

103.    This item would insert a new heading - ‘Division 2A—Preliminary inquiries’ into Part II into the Act. The new division would contain existing section 14 (as amended by item 43 of Schedule 1). The effect of this amendment would be to divide existing Division 2 into two divisions - Division 2 which relates to procedures around complaints (sections 10-13), and new Division 2A which deals with preliminary inquiries (section 14). This distinction is appropriate due to the difference in the two types of procedures.

104.    This amendment is intended to clarify the structure of the IGIS Act, and is not intended to have a substantive effect.

Item 43: Subsection 14(1)

105.    This item would amend subsection 14(1) by omitting the word “Where” and substituting the word “If”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 44: Before section 15

106.    Items 44, 47 and 60 would create subdivisions in Division 3 of Part II. This item would create new Subdivision A (Obligations before commencing an inquiry). This subdivision is intended to clarify the structure of the Division, and is not intended to have a substantive effect.

Item 45: Subsection 15(1)

107.    This item would amend subsection 15(1) by omitting the word “shall” and substituting the word “must”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 46: Section 16

108.    This item would repeal section 16. Section 16 requires the IGIS to have regard to the functions of the Auditor-General and the Ombudsman before commencing an inquiry. Section 16 also provides a discretionary power for the IGIS to consult with the Auditor-General and Ombudsman, to avoid duplication in oversight.

109.    Section 16 is no longer necessary, as new section 32AB (inserted by item 73 or 176 of Schedule 2) would recreate and extend this requirement so that the IGIS must also have regard to the functions of other integrity bodies. This provision has been moved and expanded as a consequence of the increased scope of the IGIS’s oversight powers, and to co-locate provisions relating to the IGIS’s relationships with other integrity bodies.

Item 47: Before section 17

110.    Items 44, 47 and 60 would create subdivisions in Division 3 of Part II. This item would create new Subdivision B (Conduct of Inquiries). This subdivision is intended to clarify the structure of the Division, and is not intended to have a substantive effect.

Item 48: Before subsection 17(1)

111.    This item would insert a new subheading ‘Conduct of inquiries’ before subsection 17(1). Section 17 is a long section and the new heading is intended to improve the section’s structure.

Item 49: Subsection 17(1)

112.    This item would omit the word “shall” and substitute the word “must” in subsection 17(1). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 50: Subsection 17(4)

113.    This item would omit from subsection 17(4) the words “shall not make a report” and substitute the words “must not make a report”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 51: Subsection 17(4)

114.    This item would omit the phrase “, before completing the inquiry,” from subsection 17(4). Subsection 17(4) provides that where an IGIS report would be critical of a Commonwealth agency, the IGIS must give the head of an agency a reasonable opportunity to respond before the inquiry is completed.

115.    Existing section 21 requires the IGIS, upon the completion of an inquiry, to prepare a draft report and give a copy to the agency head (or the responsible Minister or the Secretary of the Department of Defence in certain circumstances). Subsection 21(2) then requires the IGIS to include the agency heads’ relevant comments on the draft report in its final report.

116.    The interaction between section 17 (which requires agency heads to be consulted before an inquiry is finalised) and section 21 (which only allows the IGIS to prepare and share draft reports where an inquiry has been finalised) is duplicative and complicated. It prolongs the duration of IGIS inquiries without a commensurate benefit to the outcomes of that inquiry or the probity of the inquiry process.

117.     This item would remove the requirement that the agency be given an opportunity to respond before the inquiry is completed. This amendment would not remove the requirement that the IGIS give the head of an agency reasonable opportunity to appear before the IGIS and to make submissions in relation to the matters that are the subject of the inquiry. It just allows greater flexibility in when that may occur throughout the inquiry process.

118.    This amendment is consistent with the amendments at item 81 of Schedule 1 which would allow the IGIS to prepare draft reports while they are conducting an inquiry, rather than only upon the inquiry’s closure.

Item 52: Subsection 17(5)

119.    This item would omit the word “Where” and substitute the word “If” in subsection 17(5). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 53: Subsection 17(5)

120.    This item would omit from subsection 17(5) the words “Inspector-General shall” and substitute the words “Inspector-General must”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 54: Subsection 17(6)

121.    This item would omit the word “Where” and substitute the word “If” in subsection 17(6). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 55: Before subsection 17(7)

122.    This item would insert a subheading ‘Discussions and consultation with Ministers or Prime Minister’ before subsection 17(7). Section 17 is a long section and the new heading is intended to improve the section’s structure.

Item 56: Subsection 17(7) and (8)

123.    This item would amend subsections 17(7) and (8) by omitting the words “before completing” and substituting the words “while conducting” in relation to an inquiry. The effect of this amendment is to improve the drafting and align the language of the IGIS Act.

Item 57: Subsection 17(9)

124.    This item would omit from subsection 17(9) the words “shall not make a report” and substitute the words “must not make a report”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect

Item 58: Subsection 17(10)

125.    This item would repeal subsection 17(10). Subsection 17(10) requires the IGIS to bring evidence of any breaches of duty or misconduct by a member of a Commonwealth agency to the relevant agency head (or to the responsible Minister, where the head of the agency is the perpetrator of misconduct). This amendment is consequential to the insertion of new section 17A by item 59 of Schedule 1, which would recreate and extend this requirement.

Item 59: After section 17

126.    This item would create new section 17A which would require the IGIS to notify the responsible Minister, agency head or the Australian Public Service Commissioner where they find evidence of a breach of duty or misconduct by a member of a Commonwealth agency in the conduct of an investigation or inquiry.

127.    This section is based on former section 17(10) of the IGIS Act (repealed by item 58 of Schedule 1), however requires the IGIS be ‘satisfied on reasonable grounds’ as to the breach of duty or misconduct (as opposed to ‘forms the opinion’ under former subsection 17(10)). This would link the Inspector-General’s determination to notify an oversight body to a reasonableness threshold, rather than the subjective opinion of that officer.

128.    Section 17A would extend former subsection 17(10) by requiring the IGIS to bring the matter to the attention of the Australian Public Service Commissioner where the evidence indicates that an agency head has breached the APS Code of Conduct. This measure would ensure that the appropriate oversight bodies, including the APS Commissioner, are also notified where there is a breach of duty or misconduct by an agency head within the Commonwealth public service.

Item 60: Before section 18

129.    Items 44, 47 and 60  would create subdivisions in Division 3 of Part II. This item would create new Subdivision C (General powers in relation to inquiries). This subdivision is intended to clarify the structure of the Division, and is not intended to have a substantive effect.

Item 61: Before subsection 18(1)

130.    This item would insert a new subheading ‘Requiring information or documents’ before subsection 18(1). Section 18 is a long section and the new heading is intended to improve the section’s structure.

Item 62: Subsection 18(1)

131.    This item would omit the word “Where” and substitute the word “If” in subsection 18(1). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 63: At the end of subsection 18(1)

132.    This item would add a note at the end of subsection 18(1). Subsection 18(1) relevantly allows the IGIS to give a notice in writing to a person to require the person to provide information or documents. The proposed note would signpost that a failure to comply with such a note is an offence under subsection 18(7). The note is intended to assist with the interpretation of the IGIS Act.

Item 64: Subsection 18(2)

133.    This item would omit the word “Where” and substitute the word “If” in subsection 18(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 65: Paragraph 18(2)(c)

134.    This item would omit the word “shall” and substitute the word “must” in paragraph 18(2)(c). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 66: Before subsection 18(3)

135.    This item would insert a new subheading ‘Requiring attendance’ before subsection 18(3). Section 18 is a long section and the new heading is intended to improve the section’s structure.

Item 67: Subsection 18(3)

136.    This item would omit the word “Where” and substitute the word “If” in subsection 18(3). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 68: At the end of subsection 18(3)

137.    This item would add a note at the end of subsection 18(3). Subsection 18(3) relevantly allows the IGIS to give in writing a notice to a person requiring the person to attend at a specified time and place. The proposed note would signpost that a failure to comply with such a note is an offence under subsection 18(7). The note is intended to assist with the interpretation of the IGIS Act.

Item 69: At the end of subsection 18(4)

138.    This item would add two notes at the end of subsection 18(4). Subsection 18(4) relevantly allows the IGIS to administer an oath or an affirmation when a person is required to attend before the IGIS by the action of subsection 18(3). Subsection 18(5) makes clear that such an oath or affirmation made by a person under subsection 18(4) would provide that the evidence given by that person is true.

139.    Note 1 would signpost that the failure to take such an oath or affirmation is an offence under subsection 18(7). The note is intended assist with the interpretation of the IGIS Act.

140.    Note 2 would clarify that a person’s attendance before the IGIS under subsection 18(3) is a judicial proceeding for the purposes of Part III of the Crimes Act   1914 (Crimes Act). Part III of the Crimes Act contains offences relating to the administration of justice, including giving false testimony, interfering with evidence or witnesses and perverting the course of justice, amongst others. This note is intended to clarify a person’s obligation to cooperate with IGIS inquiries, and their exposure to criminal liability for non-compliance, but does not change the existing laws.

Item 70: Before subsection 18(6)

141.    This item would insert a new subheading ‘Self-incrimination and legal professional privilege’ before subsection 18(6). Section 18 is a long section and the new heading is intended to improve the section’s structure.

Item 71: Paragraph 18(6)(b)

142.    This item would insert the phrase “, or would disclose any other information that is, or may be, the subject of a claim of legal professional privilege by the Commonwealth or a Commonwealth agency” after “agency” in paragraph 18(6)(b).

143.     Paragraph 18(6)(b) provides that a person is not excused from giving information, producing a document or answering a question when required under section 18 solely because doing so would breach another law, would incriminate the person or would be contrary to the public interest, or would disclose legal advice to a Minister or Commonwealth agency. The proposed amendment extends the “legal advice” limb to include any information that may be subject to legal professional privilege by the Commonwealth or a Commonwealth agency.

144.    This amendment would address an anomaly in the scope of the abrogation of legal professional privilege. The current section applies only to the disclosure of certain legal advice itself, and does not cover communications that are made for the dominant purpose of giving legal advice. This amendment would ensure that the duty to comply with section 18 notices to provide information or documents addresses both the ‘advice’ and ‘litigation’ limbs of legal professional privilege as recognised in sections 118 and 119 of the Evidence Act 1995 (Evidence Act), and all of the component elements of each limb.

145.    This is intended to avoid the situation where a technical argument about what constitutes advice could excuse a person (who provides legal advice to the Commonwealth government) from giving information to the IGIS as part of an inquiry.

146.    The limitation of the amendment to information that could be the subject of a claim to legal professional privilege by a Commonwealth agency or by the Commonwealth is intended to ensure that the abrogation of privilege is limited to that held by the Commonwealth, not private entities who may seek legal advice about their rights or liabilities in their dealings with a Commonwealth agency.

Item 72: paragraph 18(6)(ca)

147.    This item would amend paragraph 18(6)(ca) to include “, 137.2 (false or misleading information and documents, 145.1 (using forged document) or 149.1 (obstruction of Commonwealth public officials)” after “137.1” in paragraph 18(6)(ca). This amendment would expand the exceptions to use immunity under subsection 18(6) of the IGIS Act to capture a range of conduct relating to providing false documents or obstructing an IGIS investigation.

148.    Section 18 of the IGIS Act relevantly provides the IGIS with the power to require a person to provide information or documents. Paragraphs 18(6)(a) and 18(6)(b) relevantly provide that a person is not excused from giving any information, producing a document or answering a question when required to do so under section 18 on the grounds that doing so would:

·          contravene the provisions of any other Act, or

·          would be contrary to the public interest; or

·          might tend to incriminate the person, or

·          make the person liable to a penalty; or

·          would disclose any legal advice given to a Minister or Commonwealth agency; or

·          would disclose any information that may be subject to a claim of be legal professional privilege by the Commonwealth or a Commonwealth agency.

149.    However, subsection 18(6) also confers a use immunity on persons who provide information or documents in compliance with a notice issued under subsections 18(1) or 18(3), meaning that the information and documents provided to the IGIS (and the fact of their provision) cannot be admitted in evidence in proceedings against the person, other than in prosecutions for offences against, or relating to, section 18 itself. As outlined in subsection 18(6), this exception includes the prosecution of the person for an offence against section 137.1 of Schedule 1 to the Criminal Code Act 1995 (Criminal Code) for providing false or misleading information to the IGIS.

150.     This item would extend the exception to the use immunity to allow a person to be prosecuted for:

·          providing false or misleading documents to the IGIS (section 137.2 of the Criminal Code)

·          using or providing forged documents in IGIS proceedings (section 145.1 of the Criminal Code), or

·          obstructing an IGIS official in the performance of their functions (section 149.1 of the Criminal Code).

151.    As notices issued under section 18 of the IGIS Act can be used to compel the production of documents, it is appropriate that persons who provide false or misleading documents in purported compliance with a notice to produce are able to be prosecuted for that conduct under the ‘document offence’ in section 137.2 of the Criminal Code, as well as the more general ‘information’ offence in section 137.1 of the Criminal Code. Further, it is appropriate that, where a forged document is provided, the individual could be appropriately prosecuted under section 145.1 of the Criminal Code.

152.    Amending the exception to the use immunity in subsection 18(6) to include the prosecution of person for offences against section 149.1 of the Criminal Code would ensure that persons who engage in conduct which obstructs the IGIS in performing inquiry functions can be exposed to prosecution under an appropriate offence. This might include, for example, circumstances in which a person deliberately provides delayed or incomplete information to the IGIS, with the intention of hindering or frustrating an inquiry or delaying its completion.

153.    It is important to note that any prosecution under this section would require that the offence ‘relate’ to section 18. The use of the word ‘relate’ is intended to ensure that any documents, information or answers provided by a person to the IGIS, which provided evidence that the person committed an offence against the section, the Criminal Code or Crimes Act (as referenced in paragraphs 18(6)(c)-(d)), could not be used as evidence in a prosecution against the person if the offence committed was unrelated to the provision of documents or information to the IGIS.

Item 73: after paragraph 18(6)(ca)

154.    This item would insert new paragraph 18(6)(cb), which would provide an additional exception to the use immunity within section 18(6) for offences against Division 3 of Part III of the Crimes Act that relate to section 18.

155.    The power of the IGIS to question persons under oath or affirmation under subsection 18(4) of the IGIS Act brings these hearings within the definition of a ‘federal judicial proceeding’ and the component term ‘judicial proceeding’ under section 31 of the Crimes Act (and thereby enlivens the offences in Division 3 of Part III). Division 3 of Part III relates to the administration of justice, and contains offences such as giving false testimony, fabricating evidence, intimidation of witnesses, corruption of witnesses, deceiving witnesses, destroying evidence and preventing witnesses from attending court.

156.    The inclusion of these offences in the exception to the use immunity in subsection 18(6) of the IGIS Act is intended to ensure that, if a person appears before the IGIS to answer questions during an inquiry, evidence of the following kind could be admitted in proceedings against the person:

·          the person’s testimony in answers to questions asked by the IGIS, for the purpose of prosecuting the person for offences in sections 35 and 39 of the Crimes Act (giving false testimony and fabricating evidence); and

·          if the IGIS had occasion to investigate allegations that a person has intimidated or interfered with another witness appearing before the IGIS in an inquiry, by calling the first-mentioned person to appear before the IGIS to answer questions—the first-mentioned person’s answers to questions asked by the IGIS, for the purpose of a prosecution of the person for offences against sections 36A, 37, 38 or 40 of the Crimes Act (intimidation, corruption and deception of witnesses, or preventing a witness from attending a hearing).

157.    It is important to note that any prosecution under this section would require that the offence ‘relate’ to section 18. The use of the word ‘relate’ is intended to ensure that any documents, information or answers provided by a person to the IGIS, which provided evidence that the person committed an offence against a section of the Criminal Code or Crimes Act, referenced in paragraphs 18(6)(c)-(d) could not be used as evidence in prosecution against the person if the offence committed was unrelated to the provision of documents or information to the IGIS.

Item 74: After subsection 18(6)

158.    This item would insert subsection 18(6A) and an associated note, and a new heading after subsection 18(6).

159.    Subsection 18(6A) is intended to clarify that legal profession privilege is preserved where documents have been coercively obtained under section 18. This would provide agencies and other persons to whom section 18 notices are issued with an assurance about the maintenance of privilege over their information. The new provision is declaratory of the existing law, and is not intended to introduce a substantive change to how legal professional privilege operates in relation to provided documents, information or answers.

160.    The proposed note to subsection 18(6A) confirms that legal professional privilege is also not waived in relation to information or documents where information or documents are provided voluntarily under new section 32AC (inserted by item 73 or 176 of Schedule 2). This would assist readers in understanding the interaction between the protections afforded to individuals who voluntarily provide information to the IGIS and those who are required to provide information under section 18.

161.    This item would also insert a new subheading “Offence for failing to comply” before section 18(7). Section 18 is a long section and the new heading is intended to improve the section’s structure.

Item 75: Paragraph 18(7)(c)

162.    This item removes the phrase “a natural person” and substitutes “an individual” in section 18(7). This amendment is intended to modernise the language in the IGIS Act, and ensure the offence provision is consistent with the language of the Criminal Code (which uses the term “individuals” rather than “natural persons” in penalty provisions).

Item 76: Before subsection 18(9)

163.    This item would insert a new subheading ‘Immunity from other penalties’ before subsection 18(9). Section 18 is a long section and the new heading is intended to improve the section’s structure.

Item 77: Section 19

164.    This item would omit the phrase “The Inspector-General may” from section 19 and substitute “(1) The Inspector-General may (subject to subsection (2))”. This amendment is a consequence of the insertion of new subsection (2) into section 19 by item 78 of Schedule 1, and is intended to address any perceived contradiction between the two subsections.

Item 78: At the end of section 19

165.    This item would insert subsection 19(2) which would only allow the IGIS to enter a place occupied in another country by ASIS if the Director-General of ASIS and the IGIS have made arrangements in relation to entry for the purposes of section 19. This is a limit on the general power of the IGIS under existing section 19 to enter into any place occupied by a Commonwealth agency.

166.    This is consistent with the IGIS’s entry powers in relation to an inquiry (set out in new subsection 9A(2), inserted by item 68 of Schedule 2) which would allow the IGIS to enter and remain in a premises occupied in another country by ASIS only if the Director-General of ASIS and the IGIS have made arrangements relating to entry. This limitation is intended to reflect the practical considerations that would be required for the IGIS to visit a site outside of Australia.

Item 79: Section 20

167.    This item would repeal section 20. The requirements that were imposed by section 20 have been recreated and expanded in proposed section 32AD (inserted by item 73 or 176 of Schedule 2) to co-locate a number of provisions relating to the IGIS’s relationships with other agencies.

Item 80: Before section 21

168.    This item would insert a section 20A and a related note. New section 20A is intended to clarify that reports under the IGIS Act must be prepared in accordance with Division 4 of the IGIS Act. The new section also acknowledges that the IGIS can (or must) prepare reports under other legislation. Section 20A is intended to be declaratory of existing law.

169.    The intention is to make explicit reference in the IGIS Act to the existence of additional reporting requirements under other enactments, so that they are consolidated in the IGIS’s governing legislation.

170.    The note to section 20A specifies that the IGIS prepares reports under subsections 9B(8A) and 9C(6) of the IS Act, relating to agency heads’ compliance with processes for issuing an emergency authorisation for certain activities where the responsible Minister or the Attorney-General (as applicable) are unavailable to issue an authorisation.

Item 81: Subsection 21(1)

171.    This item would amend subsection 21(1) by omitting the word “completes” and substituting the word “conducts”. The amendment would allow the IGIS to prepare a draft report while an inquiry is ongoing. This amendment is intended to remove an unintended consequence of the existing language of section 21 that requires the IGIS to complete an inquiry before preparing a draft report, and to harmonise the reporting process with the inquiry process outlined in section 17 (amended by item 51 of Schedule 1).

172.    Existing section 21 requires the IGIS, upon completion of an inquiry, to prepare a draft report and give a copy to the agency head (or the responsible Minister or Secretary of the Department of Defence in certain circumstances). Subsection 21(1C) provides that the requirements to provide these persons with draft reports are subject to section 17, which currently requires the IGIS to allow agencies to respond before an inquiry is completed. Subsection 21(2) requires the IGIS to include relevant comments from the person or persons to whom the draft report was provided in the final report on the inquiry.

173.    Without the amendments proposed by this Bill, it may be that the requirements in section 17 cannot be satisfied concurrently with the draft report requirements in section 21, because the section 17 requirements apply before an inquiry is completed and the draft reporting requirements apply after an inquiry is completed. As outlined in item 51 of Schedule 1 above, this is duplicative and may prolong the time taken to complete an inquiry without returning a commensurate benefit to the outcomes or the probity of the inquiry process.

Item 82: Subsection 21(2)

174.    This item would omit the word “Where” and substitute the word “If” in subsection 21(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 83: Subsection 21(2)

175.    This item would omit the word “shall” and substitute the word “must” in subsection 21(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 84: Subsection 22(1)

176.    This item would amend subsection 22(1) by omitting the word “completes” and substituting the word “conducts”. This amendment is intended to remove an unintended consequence of the existing language of section 21 (amended by item 81 of Schedule 1) that requires the IGIS to complete an inquiry before preparing a report.

Item 85: At the end of subsection 22(1)

177.    This item would add a note to subsection 22(1) to clarify that if the IGIS’s report (prepared under the IGIS Act) relates to an authorisation intended to identify a media source or retained data, a copy of the report may be given to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) under subsections 185D(3) or 185E(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act).

178.    Subsection 22(1) provides that where the IGIS conducts an inquiry into a Commonwealth agency they must prepare a report which sets out the IGIS’s conclusions and recommendations and must provide a copy to the person to whom a draft report was provided under section 21 (either the responsible Minister or the Secretary of the Department of Defence).

179.    Subsections 185D(3) and 185E(1) of the TIA Act place an obligation on a Minister, where they have been given a report by the IGIS under sections 22 or 25A of the IGIS Act and where the report relates to authorisations or warrants under the TIA Act, to ensure a copy of the report is given to the PJCIS. The note would remove ambiguity in the Act and make clear that Ministers may share the IGIS’s final report with the PJCIS, if required under the TIA Act.

Item 86: Subsection 22(2)

180.    This item would omit the word “shall” and substitute the word “must” in subsection 22(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 87: subsections 23(1) and (2)

181.    This item would repeal and replace subsections 23(1) and (2).

182.    Existing subsection 23(1) requires the IGIS to provide a complainant with a written response after the conclusion of an inquiry that flows from the complaint. Existing subsection 23(2) requires that, before the response can be given under subsection 23(1), the IGIS and the head of the relevant agency must agree that the response would not prejudice security, the defence of Australia or Australia’s relations with other countries.

183.    This item would amend subsection 23(1) to provide that the IGIS would only be obligated to take reasonable steps to provide a written response to a complainant after the conclusion of an inquiry. This amendment reflects that it is not always possible to comply with current subsection 23(1), for example if the complainant cannot be located or if their supplied contact details are no longer accurate.

184.    New subsection 23(1) would retain the ability for the IGIS to not give a written response relating to the inquiry to the complainant if the IGIS is satisfied on reasonable grounds that doing so would prejudice security, the defence of Australia or Australia’s relations with other countries.

185.    New subsection 23(2) provides that where the IGIS proposes to respond to a complainant, the IGIS must not give the response until the relevant agency head and the IGIS have agreed that the response does not prejudice:

·          security, the defence of Australia or Australia’s relations with other countries;

·          law enforcement operations, including methodologies and investigative techniques;

·          the privacy of individuals;

·          confidential commercial information; or

·          the fair trial of a person or the impartial adjudication of a matter.

186.    This subsection reflects that due to the nature of the IGIS’s oversight, as well as the functions of the overseen agencies, there may be information that is not appropriate for release to complainant, even though that information does not prejudice security, the defence of Australia or international relations.

Security, the defence of Australia or Australia’s relations with other countries

187.    This category of information may be excluded from a response to a complainant based on its sensitivity, and the potential harm as a result of its publication. It is consistent with existing subsection 23(2) of the IGIS Act, as well as government policy governing the distribution of classified information that information with a protective marking is not released to the public without agreement between agency heads.

Law enforcement operations, including methodologies and investigative techniques

188.     This information may be excluded to ensure that law enforcement and intelligence agencies are able to develop and deploy capabilities and tools, and to ensure that these operations are not compromised.

189.    This category of information is intended to exclude information such as information about the effectiveness of the operational methods, or investigative practices or techniques, as well as information that would be reasonably likely to reveal, or enable a person to ascertain, the existence or identity of a confidential source of law enforcement information.

Privacy of individuals

190.    This category of information may be excluded to protect a third party’s data from unauthorised disclosure to a complainant. It would not be appropriate for the IGIS to provide any other individual’s personal information in a response to a complainant.

191.    Given the sensitivity of the complaints to the IGIS, it may be appropriate to limit information in a response to a complainant which could cause that complainant to identify and target a third party. Information that would prejudice the privacy of individuals would include personal information (as defined in the Privacy Act), as well as protected taxation information (as defined under Division 355 of the Taxation Administration Act 1953 (TA Act).

Confidential commercial information

192.    This category of information may be excluded to support confidence between intelligence agencies and non-government partners. Confidential commercial information may be obtained by intelligence agencies where they cooperate with the private sector, and could include business structures, algorithms or trade secrets used by private corporations, and corporate financial information. Confidential commercial information should also be understood to include protected taxation information (as defined under Division 355 of the TA Act).

Fair trial or impartial adjudication

193.    This category of information may be excluded to support and protect the integrity of the justice system. Examples of information that may be excluded would include evidence which may form part of a proceeding or the identity of potential witnesses who may be called in a proceedings. This is particularly relevant to agencies such as AUSTRAC whose intelligence functions may align with its investigation functions, and whose information could directly feed into judicial processes.

Item 88: Subsection 24(1)

194.    This item would omit the word “Where” and substitute the word “If” in subsection 24(1). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 89: Subsection 24(1)

195.    This item would omit the word “shall” and substitute the word “must” in subsection 24(1). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 90: Subsection 24(2)

196.    This item would omit the word “Where” and substitute the word “If” in subsection 24(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 91: Subsection 25(1)

197.    This item would omit the word “shall” and substitute the word “must” in subsection 25(1). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Items 92-93: Subsections 27(1) and 27(2)

198.    These items would omit the word “shall” and substitute “is to” wherever occurring in subsections 27(1) and 27(2). These amendments are intended to modernise and standardise language within the IGIS Act, and are not intended to have a substantive effect.

Item 94: Subsection 30(1)

199.    This item would repeal and substitute subsection 30(1). Subsection 30(1) currently provides that the Governor-General may terminate the appointment of the Inspector-General by reason of misbehaviour or physical or mental incapacity.

200.    New subsection 30(1) retains the ability of the Governor-General to terminate the employment of the Inspector-General for misbehaviour, but provides in paragraph 30(1)(b) that the Governor-General may only terminate the appointment of the Inspector-General on the grounds of a physical or mental incapacity if the Inspector-General is unable to perform the duties of their office.

Item 95: Paragraph 30(2)(b)

201.    This item repeals paragraph 30(2)(b). Paragraph 30(2)(b) directs that the Governor-General must terminate the appointment of the Inspector-General if they engage in paid employment outside of their duties as the Inspector-General without the Attorney-General’s consent, or if they are absent from duty for 14 consecutive days, or 28 days over any 12 month period (unless they are on leave).

202.    This section is inconsistent with new subsection 30(2A) (inserted by item 97 of Schedule 1), which is discussed below.

Item 96: Subsection 30(2)

203.    This item would omit the word “shall” and substitute “must” in subsection 30(2). This amendment is intended clarify (along with the amendments in item 97 of Schedule 1), where the Governor-General is required to terminate the appointment of the Inspector-General and where there is a discretion to do so.

204.    Currently, subsection 30(2) provides that the Governor-General “shall” terminate the appointment of the IGIS on any of the grounds listed. In subsection 30(2), the insertion of “must” in lieu of “shall” is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect, as the current language of subsection 30(2) does not confer a discretion on the Governor-General.

Item 97: After subsection 30(2)

205.    This item would insert a new subsection 30(2A), which is based on existing subsection 30(2)(b) (removed by item 95 of Schedule 1). Existing subsection 30(2)(b) provided that the Governor-General “shall” terminate the appointment of the Inspector-General if the Inspector-General holds the office on a full time basis and engages in other paid employment without the Attorney-General’s consent, or is absent from duty without leave for 14 consecutive days or for 28 days in a 12 month period (unless they are on leave).

206.    New subsection 30(2A) would recreate that requirement, but would provide that the Governor-General has the discretion to terminate the appointment rather than requiring them to do so. This would ameliorate the potentially arbitrary or disproportionately harsh effects of the existing provision requiring mandatory termination in the event of technical breaches. An example of a technical breach may include circumstances in which the Inspector-General receives a nominal amount of remuneration for speaking at a public event, or being a board member of a charitable organisation, or where the Inspector-General is physically incapacitated and unable to seek leave of absence.

Item 98: Subsection 30(3)

207.    This item would omit “and (2)” from subsection 30(3) and substitute “, (2) and (2A)”. This amendment is consequential to the insertion of new subsection 30(2A) by item 97 of Schedule 1.

Item 99: At the end of subsection 32(1)

208.    This item would insert paragraphs (c) and (d) at the end of section 32(1), to extend the types of persons who may be considered staff members of the IGIS to include consultants, contractors and persons made available to the IGIS under secondment arrangements.

209.    Currently section 32 of the IGIS Act allows for two categories of IGIS employee - those employed under the Public Service Act, and those employed under subsection 32(3) for specific inquiries.

210.    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.

Item 100: Subsection 32(3)

211.    This item would omit “section 32AA” from subsection 32(3) and substitute “subsection 32AA(1)”. This amendment is consequential to the renumbering of section 32AA by the insertion of new subsection 32AA(1A) (inserted by item 102 of Schedule 1).

212.    Section 32(3) states that the Inspector-General may employ someone to perform inquiry and/or reporting functions  under the IGIS Act (contained in Division 3 and 4 of that Act). The amendment clarifies that the lawful authority for the Inspector-General to delegate to a contractor is based in section 32AA(1), not the section as whole.

Item 101: After section 32

213.    This item would insert sections 32AAA, 32AAB, 32AAC and 32AAD into the IGIS Act, to deal with the Inspector-General’s ability to engage consultants, contracted service providers (defined in item 2 of Schedule 1), to second IGIS officials to other entities and to host seconded officers within the IGIS office (respectively). These amendments modernise the IGIS Act by providing greater flexibility to the Inspector-General in how they may constitute their office, and clarifying the ability of the IGIS to procure highly technical and specialised experts without needing to limit this expertise to a specific inquiry.

New section 32AAA - Consultants

214.    Section 32AAA would clarify the ability of the Inspector-General to engage consultants to assist in the performance of the Inspector-General’s functions. Such consultants must have suitable qualifications and experience (32AAA(1)), and must be engaged in writing (32AAA(2)) under such terms and conditions determined by the Inspector-General (32AAA(3)). This provision clarifies the ability of the Inspector-General to engage contracted resources on a commercial basis to support IGIS in the performance of its functions.

New section 32AAB - Contracted Service Providers

215.    Section 32AAB(1) would clarify the ability of the Inspector-General to engage contracted service providers (defined in item 2 of Schedule 1) to assist in the performance of the Inspector-General’s functions. Contracted service providers must be engaged in writing (32AAB(2)) under such terms and conditions determined by the Inspector-General (32AAB(3)). This provision clarifies the ability of the Inspector-General to engage contracted resources on a commercial basis to support IGIS in the performance of its functions.

New section 32AAC - Secondment of employees of Inspector-General

216.    Section 32AAC(1) would clarify the ability of the Inspector-General to arrange to second an IGIS employee to another body or organisation. The Inspector-General may terminate any secondment, at any time, by notifying the body or organisation hosting the seconded IGIS official (32AAC(2).

217.    Secondment arrangements are commonly used to allow staff members to develop breadth of experience or specialist skills while remaining connected to the IGIS.

New section 32AAD - Secondment of employees of Inspector-General

218.    Section 32AAD(1) would clarify the ability of the Inspector-General to arrange for a person employed by another entity to be made available to the IGIS to perform functions in connection with the IGIS’s functions. The terms of such arrangements will be determined as an agreement between the Inspector-General and the originating entity of the secondee (section 32AAD(2)).

Item 102: After subsection 32AA(1)

219.    This item would amend section 32AA by inserting new subsection (1A) after subsection (1). New subsection 32AA(1A) would enable the Inspector-General to delegate their functions under the IGIS Act to IGIS staff who the Inspector-General considers are appropriately qualified to exercise the delegated functions.

220.    Under current section 32AA, the Inspector-General may only delegate their functions or powers to staff employed under subsection 32(3), and may only delegate inquiry and reporting powers contained in Divisions 3 and 4 of Part II of the IGIS Act. Staff employed under subsection 32(3) may only be employed by the Inspector-General to assist with a particular inquiry, subject to the responsible Minister’s consent under subsection 32(4). An example of a staff member employed under subsection 32(3) may include a contractor engaged by the Inspector-General for a particular inquiry, on the basis that they have highly specialised skills or expertise necessary for that inquiry.

221.    New section 32AA(1A) empowers the Inspector-General to delegate any or all of the IGIS’s functions under the IGIS Act to an IGIS staff member employed under the Public Service Act. There is one exception to this - the Inspector-General may not delegate their ability to employ a person to assist with an inquiry under section 23(3). This is appropriate to ensure that the Inspector-General retains control over situations where contractors are used by their agency, as employing individuals under section 32(3) requires Ministerial approval.

222.    This amendment is intended to reflect the practicalities of the expanded office of the IGIS as a result of the increased oversight of the intelligence functions of the ACIC and AUSTRAC. Without the ability for the Inspector-General to delegate functions, it would be difficult to fulfil their inquiry and other functions in a timely manner.

223.    It is important to note that the provision only allows the Inspector-General to delegate functions to an officer who the Inspector-General considers has the appropriate expertise to perform the functions or powers. A further safeguard against the misuse of delegated powers is contained in subsection 32AA(2), which requires that any delegated powers be exercised in a way that is compliant with the Inspector-General’s written directions.

224.    It is also noted that this subsection does not allow the Inspector-General to delegate their functions or powers to consultants, contracted service providers, seconded officers within the IGIS office (under new sections 32AAA-AAAD), where these employees are not employed under the Public Service Act.

Item 103: Subsection 32AA(2)

225.    This item would amend subsection 32AA(2) by inserting “under subsection (1) or (1A)” after “a delegation”. This amendment is consequential to the insertion of new subsection 32AA(1A) by item 102 of Schedule 1, and is intended to clarify that a staff member who is performing delegated functions must comply with any written instructions issued by the Inspector-General.

Item 104: Subsection 32A(1)

226.    This item would omit the phrase “which are issued on or after the day on which the Prime Minister and Cabinet Legislation Amendment Act 1991 commences” from subsection 32A(1). This would enable the IGIS to request documents mentioned in the paragraphs to subsection 32A(1) regardless of when they were issued, including documents issued before the commencement of the Prime Minister and Cabinet Legislation Amendment Act 1991 on 18 December 1991.

227.    This amendment is intended ensure that the IGIS’s ability to compel the production of documents and information under section 18 of the Act is not subject to any limitations.

Item 105: Subsection 32A(5)

228.    This item would omit the word “Where” and substitute the word “If” in subsection 32A(5). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 106: Subsection 32B(1)

229.    Section 32B requires Ministers to provide the IGIS with a copy of any guidelines or directions given to the head of certain organisations.

230.    This item would amend subsection 32B(1) by inserting “, DIO” after “AGO”. The amendment is intended to clarify that section 32B would also apply to any guidelines or directions given by the responsible Minister to the head of DIO. This is consequential to the IGIS’s expanded functions in relation to DIO (inserted by item 18 of Schedule 1), which allow the IGIS to consider DIO’s compliance with Ministerial directions.

Item 107: Subsection 33(2)

231.    This item would omit the word “Where” and substitute the word “If” in subsection 33(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 108: Before subsection 34(1)

232.    This item would insert a new subheading ‘Offence: unauthorised disclosure of information acquired under this Act’ before subsection 34(1). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Item 109: Subsection 34(1)

233.    This item would amend the chapeau to the offence contained in section 34(1) (relating to the unauthorised disclosure of information or documents obtained by an IGIS official). The item would replace the phrase ‘a person who is, or has at any time been, the Inspector-General or a member of the staff of the Inspector-General or who is acting, or has at any time acted, as the Inspector-General or as a member of the staff of the Inspector-General shall”, and substitute “a person who is an IGIS official, or former IGIS official, must”.

234.    This amendment streamlines the section, by referring to the defined term of an ‘IGIS official’ (inserted by item 2 of Schedule 1), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 99 of Schedule 1). Using this terminology ensures that the secrecy offences within the IGIS Act apply equally to all IGIS staff members, however employed. This ensures that all information provided to any IGIS official is protected from improper disclosure, which is imperative as IGIS officials have access to highly sensitive information by virtue of their positions.

235.    The inclusion of “must” rather than “shall” in this chapeau is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 110: Paragraphs 34(1)(a) and (b)

236.    This item would amend paragraphs (1)(a) and (b) of section 34(1) to clarify that the secrecy provision applies equally to both information and documents. 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.

Item 111: Before subsection 34(1AA)

237.    This item would insert a new subheading ‘Offence - unauthorised disclosure of information acquired under the Freedom of Information Act 1982 ’ before subsection 34(1AA). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Item 112: Subsection 34(1AA)

238.    This item would amend the chapeau to the offence contained in section 34(1AA) (relating to the unauthorised disclosure of information or documents obtained by an IGIS official acquired under the Freedom of Information Act 1982 (FOI Act)). The item would replace the phrase ‘a person who is, or has at any time been, the Inspector-General or a member of the staff of the Inspector-General or who is acting, or has at any time acted, as the Inspector-General or as a member of the staff of the Inspector-General shall”, and substitute “a person who is an IGIS official, or former IGIS official, must”.

239.    This amendment streamlines the section, by referring to the defined term of an ‘IGIS official’ (inserted by item 2 of Schedule 1), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 99 of Schedule 1). Using this terminology ensures that the secrecy offences within the IGIS Act apply equally to all IGIS staff members, however employed. This ensures that all information provided to any IGIS official is protected from improper disclosure, which is imperative as IGIS officials have access to highly sensitive information by virtue of their positions.

240.    The inclusion of “must” rather than “shall” in this chapeau is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 113: Paragraphs 34(1AA)(a) and (b)

241.    This item would amend paragraphs (1)(a) and (b) of section 34(1AA) to clarify that the secrecy provision applies equally to both information and documents. 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.

Item 114: before subsection 34(1AB)

242.    This item would insert a new subheading ‘Offence - unauthorised disclosure of information acquired under the Archives Act 1983 ’ before subsection 34(1AB). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Item 115: Subsection 34(1AB)

243.    This item would amend the chapeau to the offence contained in section 34(1AB) (relating to the unauthorised disclosure of information or documents obtained by an IGIS official acquired under the Archives Act 1983 ). The item would replace the phrase ‘a person who is, or has at any time been, the Inspector-General or a member of the staff of the Inspector-General or who is acting, or has at any time acted, as the Inspector-General or as a member of the staff of the Inspector-General shall”, and substitute “a person who is an IGIS official, or former IGIS official, must”.

244.    This amendment streamlines the section, by referring to the defined term of an ‘IGIS official’ (inserted by item 2 of Schedule 1), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 99 of Schedule 1). Using this terminology ensures that the secrecy offences within the IGIS Act apply equally to all IGIS staff members, however employed. This ensures that all information provided to any IGIS official is protected from improper disclosure, which is imperative as IGIS officials have access to highly sensitive information by virtue of their positions.

245.    The inclusion of “must” rather than “shall” in this chapeau is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 116: Paragraphs 34(1AB)(a) and (b)

246.    This item would amend paragraphs (1)(a) and (b) of section 34(1AB) to clarify that the secrecy provision applies equally to both information and documents. 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.

Item 117: before subsection 34(1A)

247.    This item would insert a new subheading ‘Exception’ before subsection 34(1A). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Item 118: Paragraph 34(1A)(a)

248.    Subsection 34(1A) provides a narrow exception to the general secrecy offences contained in subsections 34(1)-(1AB). These exceptions allow the Inspector-General to disclose information other than in accordance with their functions, duties or powers as an IGIS official where they believe on reasonable grounds that the disclosure is necessary to protect the well-being or safety of another person (paragraph 34(1A)(a)), and the Inspector-General authorises the disclosure (paragraph 34(1A)(b)).

249.    This item would clarify that the exception permits the Inspector-General to authorise the disclosure of documents as well as information.

Item 119: before subsection 34(2)

250.    This item would insert a new subheading ‘Dealing with offence as indictable or summary offence’ before subsection 34(2). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Item 120: Subsection 34(4)

251.    This item would omit the word “Where” and substitute the word “If” in subsection 34(4). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 121: Before subsection 34(5)

252.    This item would insert a new subheading ‘Limitation on disclosures to courts’ before subsection 34(5). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Item 122: Subsection 34(5)

253.    This item would amend the chapeau to subsection 34(5) to align its drafting with the other chapeaus in section 34 (as amended by the Bill). As with the other sections, clarifying that the limitations on disclosures to courts applies to all IGIS officials employed under section 32(1) of the IGIS Act (as updated by this Bill), regardless of their employment arrangements.

Item 123: Subsection 34(5)

254.    This item would omit the phrase “except where” and substitute “except if”. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 124: After subsection 34(5)

255.    This item would insert a new subheading ‘Section to apply despite other laws’, new subsection (5A) and a new note.

256.    Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

257.    New subsection (5A) provides that section 34 of the IGIS Act applies despite any provision of a state or territory law, and despite any Commonwealth law unless the Commonwealth law explicitly overrides section 34 of the IGIS Act. 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 (sharing information with integrity bodies in accordance with newly-created Part IIIA, with the permission of the IGIS under subsection 34(1A) or as part of statutory reporting functions).

258.    The note inserted to follow new subsection (5A) confirms the operation of the section outlined above.

Item 125: Before subsection 34(6)

259.    This item would amend section 34 by inserting a new subheading ‘Definitions for this section’ before subsection 34(6). Section 34 is a long section, and the new heading is intended to clarify the section’s structure.

Items 126-130: Subsection 34A(4), subsection 34A(5), paragraph 34A(5)(a), subsection 34A(6) and subsection 34A(7) (definition of staff member )

260.    Items 126-130 would remove references to “a staff member or a former staff member” throughout section 34A and update them to refer to “an IGIS official” or “an IGIS official or former IGIS official” as appropriate. These amendments use the defined term of an ‘IGIS official’ (inserted by item 2 of Schedule 1), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 99 of Schedule 1).

261.    Item 130 would remove the existing definition of ‘staff member’ contained in section 34A, as it is no longer required.

Item 131: Subsection 35(2)

262.    This item would omit the word “shall” and substitute the word “must” in subsection 35(2). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 132: Paragraph 35(2AA)(b)

263.    This item would omit the reference to “section 32AA” and substitute a reference to “subsection 32AA(1)”. This amendment is consequential to the renumbering of section 32AA by the insertion of new subsection 32AA(1A) (item 102 of Schedule 1).

264.    Section 35 sets out the Inspector-General’s obligations for the preparation of the agency’s annual report. Subsection 35(2AA) requires the Inspector-General to include information in their annual report relating to the employment of a member of staff employed under subsection 32(3) during the period covered by the annual report, and the delegation of any of the Inspector-General’s functions or powers to that member of staff during the same period. This provision ensures that the IGIS is accountable to the Australian public (by tabling the annual report a House of Parliament) for any functions, powers or abilities that are delegated as well as any contractors who are employed.

265.    Existing subsection 32AA(1) allows the Inspector-General to delegate inquiry and/or reporting functions (Division 3 and 4 functions) under the IGIS Act to a person employed under subsection 32(3) (a person who is not employed under the Public Service Act - effectively, a contractor). For completeness, new subsection 32AA(1A) would allow the Inspector-General to delegate functions to IGIS staff members employed under the Public Service Act (that is, ongoing or fixed-term employees).

266.    This item is intended to clarify that the reporting requirements attach to the delegation power provided by subsection 32AA(1) rather than delegations across the section as a whole. As the purpose of paragraph 35(2AA)(b) is to ensure public accountability where the IGIS is using staff employed under subsection 23(3) of the IGIS Act, and is delegating functions to these staff, this amendment is necessary to ensure that the provision is appropriately targeted.

Item 133: Subsection 35(4)

267.    This item would omit the word “shall” and substitute the word “must” in subsection 35B(4). This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Intelligence Services Act 2001

268.    Items 134-149 would amend the IS Act, to give effect to the PJCIS’s expanded oversight of the intelligence functions of AUSTRAC. This oversight would be analogous to the PJCIS’s existing oversight of the AIC, and the PJCLE’s oversight of the ACIC and AFP.

Item 134: Section 3

269.    This item would amend section 3 by inserting the following definitions:

‘AUSTRAC’ means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 .

‘AUSTRAC CEO’ has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

‘ AUSTRAC information’ has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

Item 135: Section 3 (paragraph (b) of the definition of IGIS official )

270.    This item would update the definition of ‘IGIS official’ in the IS Act to refer to “a person covered by section 32(1)” of the IGIS Act, rather than “a member of the staff referred to in section 32(1)”. This amendment is minor and reflects the expanded nature of section 32(1) of the IGIS Act as amended by item 99 of Schedule 1.

Item 136: Section 3

271.    This item would amend section 3 by inserting a new definition of ‘intelligence function’:

‘intelligence function’ means the collection, correlation, analysis, production and dissemination of intelligence by AUSTRAC for the purpose of performing its functions.

272.    This definition broadly reflects the definition of ‘intelligence function’ inserted by item 60, item 121 or item 162 of Schedule 2 (depending on timing) of the Bill, however is more general in its application to AUSTRAC than the definition of ‘intelligence function’ in the IGIS Act. The definition of ‘intelligence function’ in the IGIS Act, as amended, refers to:

‘the collection, correlation, analysis, production and dissemination of intelligence by AUSTRAC for the purposes of  the AUSTRAC CEO performing the CEO’s financial intelligence functions under the AML/CTF Act; or

a function performed by AUSTRAC, the AUSTRAC CEO or any other official of AUSTRAC referred to in paragraph 209(4)(c) of that Act that is incidental to the CEO’s financial intelligence functions’

273.    The definition inserted by this item does not limit the PJCIS’s jurisdiction to the financial intelligence functions of the AUSTRAC CEO (and staff assisting the CEO), as is the case with the IGIS. This reflects that the focus of IGIS oversight is on the particular activities of AUSTRAC, and would necessarily require the IGIS to access specific pieces of AUSTRAC information for that purpose. In contrast, the PJCIS’s function is not focused on specific operations, and in fact, the PJCIS is explicitly prevented from considering operational information or methods by the amendments to section 29(3) (inserted by items 138-140 of Schedule 1). The PJCIS are also prevented from considering any non-intelligence functions performed by AUSTRAC (item 141 of Schedule 1).

Item 137: After paragraph 29(1)(bac)

274.    Subsection 29(1) of the IS Act specifies the functions of the PJCIS in overseeing the AIC. This item would insert new paragraphs 29(1)(bad), (bae) and (baf) which would create functions for the PJCIS in relation to AUSTRAC. These amendments would allow the PJCIS to oversee AUSTRAC on similar terms to its oversight of the AFP in relation to its functions under Part 5.3 of the Criminal Code (paragraphs 29(1)(baa)-(bac)).

275.    Paragraph 29(1)(bad) would provide that the PJCIS can monitor and review the performance of AUSTRAC’s intelligence functions.

276.    Paragraph 29(1)(bae) would allow the PJCIS to report to both Houses of the Parliament on any matter that relates to AUSTRAC intelligence functions, as the Committee sees fit. This is consistent with the PJCIS’s reporting powers in relation to the AFP, contained in paragraph 29(1)(bab).

277.    Paragraph 29(1)(baf) would allow the PJCIS to inquire into the performance of AUSTRAC intelligence functions, under paragraphs 29(1)(bad) or 29(1)(bae), where either of the Houses of the Parliament have referred a question to the PJCIS. If the PJCIS inquires into such a matter, the PJCIS may report to the referring House of Parliament. This mirrors the PJCIS’s oversight of the AFP under paragraph 29(1)(bac).

278.    These amendments would also ensure that the PJCIS’s oversight in relation to AUSTRAC is similar to the PJCLE’s oversight in relation to the AFP and ACIC.

Items 138-140: Paragraph 29(3)(g), paragraph 29(3)(j), and paragraph 29(3)(k)

279.    Subsection 29(3) provides express limitations to the functions of the PJCIS. Relevantly:

·          paragraph 29(3)(g) provides that the functions of the PJCIS do not include conducting inquiries about the activities of the various intelligence agencies under its oversight, stemming from individual complaints about these agencies;

·          paragraph 29(3)(j) provides that the functions of the PJCIS do not include reviewing sensitive operational information or operational methods of the AFP;

·          paragraph 29(3)(k) provides that the functions of the PJCIS do not include reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by the AFP.

280.    These items would amend these provisions so that the existing limitations on PJCIS oversight are extended to AUSTRAC.

281.    Item 138 would amend paragraph 29(3)(g) to preclude the PJCIS from conducting inquiries into individual complaints about the activities of AUSTRAC, consistent with current PJCIS oversight of agencies within its remit.

282.    Item 139 would amend paragraph 29(3)(j) to preclude the PJCIS from reviewing sensitive operational information or operational methods available to AUSTRAC (including AUSTRAC information), consistent with current PJCIS oversight of agencies within its remit, particularly the treatment of operational information by the AFP.

283.    Item 140 would amend paragraph 29(3)(k) to preclude the PJCIS from reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by AUSTRAC, consistent with current PJCIS oversight of agencies within its remit, particularly the treatment of operations and investigations by the AFP.

Item 141: after paragraph 29(3)(k)

284.    This item would insert a new express limitation on the functions of the PJCIS as paragraph 29(3)(l). It would provide that the functions of the PJCIS do not include reviewing any function performed by AUSTRAC that is not an intelligence function. This is intended to ensure that PJCIS oversight is limited to AUSTRAC’s intelligence functions.

285.    Non-intelligence functions which are excluded from PJCIS oversight include, but are not limited to, law enforcement and regulatory functions. These matters are appropriately overseen by other entities (for example, the courts, ACLEI and the Ombudsman oversee law enforcement and regulatory functions).

Item 142: After paragraph 30(d)

286.    Section 30 contains a list of agency heads (as well as the IGIS) from whom the PJCIS may request briefing.

287.    This item would insert a new paragraph 30(da) specifying that the AUSTRAC CEO is a person from whom the committee may request briefing. This reflects the expansion of the PJCIS’s functions to include the oversight of AUSTRAC.

Items 143-144: Clause 1A of Schedule 1 (definition of agency ) and clause 1A of Schedule 1 (after paragraph (e) of the definition of agency head )

288.    Clause 1A of Schedule 1 to the IS Act contains definitions for use in that Schedule.

289.    Item 143 would update the definition of ‘agency head’ to include the AUSTRAC CEO.

290.    Item 144 would insert a new paragraph 1A(ea) to the definition of ‘agency head’ to include the AUSTRAC CEO as an agency head. This reflects the expansion of the PJCIS’s functions to include the oversight of AUSTRAC.

Item 145: clause 1A of Schedule 1 (at the end of the definition of operationally sensitive information )

291.    This item would insert new paragraphs (d) and (e) to the definition of ‘operationally sensitive information’ in clause 1A of Schedule 1. ‘Operationally sensitive information’ is currently defined in the IS Act as information that would reveal:

·          sources of information, operational assistance or operational methods of an agency,

·          particular operations (past, present and planned) by an agency, or

·          information made available to an agency by a foreign government, where that foreign government has not consented to the public disclosure of that information.

292.    ‘Operationally sensitive information’ cannot be required to be disclosed to the PJCIS, although a witness may give such information voluntarily (clause 1 of Schedule 1). Further, a Minister may issue a certificate which would prevent a person from disclosing operationally sensitive information, whether or not the person would have provided the information voluntarily or if compelled by the PJCIS’s powers to obtain information or documents (clause 4 of Schedule 1). Where the PJCIS does obtain ‘operationally sensitive information’, it is prohibited from disclosing that information in a report to a House of Parliament (clause 7 of Schedule 1). These measures are necessary to protect sensitive law enforcement or intelligence operations from interference or disruption.

293.    New paragraph (d) would provide that sources of information, other operational assistance or operational methods available to AUSTRAC (including AUSTRAC information) as part of its ‘intelligence functions’, are to be treated as operationally sensitive information under the IS Act. This is consistent with the protection provided to the same category of information where it pertains to operations conducted by AIC agencies.

294.    New paragraph (e) would provide that information about particular operations or investigations that have been, are being, or are proposed to be, undertaken by AUSTRAC is operationally sensitive information. The effect of this amendment is to ensure that this information can be treated as operationally sensitive and receives the relevant protections. This is consistent with the protection provided to similar information available to AIC agencies.

295.    These amendments are necessary as a result of the PJCIS’s oversight of AUSTRAC’s intelligence functions. Similar to the AIC agencies within PJCIS’s jurisdiction, AUSTRAC conducts operations and investigations, manages sources of information, and develops operational methods. It is therefore consistent, as well as necessary, that these categories of information are protected from disclosure.

Item 146: at the end of subclause 7(1) of Schedule 1

296.    Clause 7 of Schedule 1 to the IS Act provides that there is certain information that the PJCIS must not disclose to parliament, such as identities of staff members of intelligence agencies, information that could reveal a staff member’s identity or operationally sensitive information that could prejudice Australia’s national security or an agency’s functions.

297.    This item would insert additional paragraphs 7(1)(d)-(i) , adding additional types of information that the Committee must not disclose in a report. Specifically:

·          any information disclosure of which could reveal, or enable a person to ascertain, the existence or identity of a confidential source of information (paragraph (d)),

·          any information disclose of which could endanger a person’s life or physical safety (paragraph (e)),

·          any information disclosure of which could prejudice the protection of public safety (paragraph (f)),

·          any information disclosure of which could prejudice the fair trial of a person or the impartial adjudication of a matter (paragraph (g)),

·          any information disclosure of which could prejudice the proper enforcement of the law or the operations of law enforcement authorities (paragraph (h)),

·          any information whose disclosure could unreasonably disclose confidential commercial information (paragraph (i)).

298.    These new categories of information are based on section 4 of the PJCLE Act, and have been inserted in response to the PJCIS’s oversight of AUSTRAC. This is because, unlike the PJCIS’s existing oversight of the AIC, AUSTRAC is likely to deal with information that may not constitute national security information, yet is still sufficiently sensitive to warrant appropriately limited disclosure, particularly to the public-at-large through a report to Parliament.

299.     While it is likely that these categories of information would be captured by existing subparagraph 7(1)(c)(ii) (information that might prejudice an agency’s performance of its functions), the list would put beyond doubt that this information must not be disclosed in a report to Parliament.

Item 147: subclause 20(2) of Schedule 1

300.    This item would amend subclause 20(2) of Schedule 1 by inserting the words “or inquiry” after the word “review”. Subclause 20(1) provides that the Committee may determine how its proceedings may occur. However, subclause 20(2) provides that the Committee must not conduct a review in public without Ministerial approvals.

301.    New paragraph 29(1)(baf) (inserted by item 137 of Schedule 1), and existing paragraph 29(1)(bac) permit the Committee to “inquire” into matters (as opposed to other paragraphs which refer to “reviews”). This item would clarify that both inquiry and review functions are subject to the same procedural safeguards. It is appropriate that inquiries conducted by the PJCIS attract the same secrecy protections as a review or any other proceedings conducted by the PJCIS.

Item 148: at the end of subclause 20(2) of Schedule 1

302.    Subsection 20(2) provides that the PJCIS must not conduct a review in public without the approval of the Minister responsible for the relevant intelligence agency. This item would insert paragraph 20(2)(e) which would require the PJCIS to seek the approval of the Minister responsible for AUSTRAC where they would seek to hold public proceedings relating to the intelligence functions of AUSTRAC.

303.    It is appropriate that where public proceedings are anticipated, the responsible Minister for the agency whose conduct would be subject to such a proceeding consents to the hearing. This allows the Minister and agency to take appropriate steps to protect information which may be made publicly available through a public proceeding. This amendment is consistent with the treatment of AIC agencies already within the PJCIS’s jurisdiction.

Item 149: subclause 20(3) of Schedule 1

304.    This item would amend subclause 20(3) of Schedule 1 by inserting the words “or inquiry” after the word “review”. The amendment is consequential to the insertion of paragraph 29(1)(baf) by item 137 of Schedule 1.

305.    Paragraph 29(1)(baf) would provide that one of the functions of the PJCIS is to ‘inquire’ into certain matters. This item would clarify that both inquiry and review functions are subject to the same procedural safeguards. It is appropriate that inquiries conducted by the PJCIS in accordance with paragraph 29(1)(baf) attract the same secrecy protections as a review or any other proceedings conducted by the PJCIS.

Part 2: Consequential amendments

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 150: After subsection 123(8A)

306.     This item would insert new subsection 123(8B) into the AML/CTF Act. Subsection 123(1) of the AML/CTF Act provides that where a person has disclosed information about ‘suspicious matter reporting obligation’ (defined in section 41 of the AML/CTF Act) to the AUSTRAC CEO, they must not tell any other person that they have disclosed that information to the AUSTRAC CEO.

307.    Subsection 123(2) extends this obligation to provide that even in situations where a person has formed a suspicion about the existence of a ‘suspicious matter reporting obligation’ they must not disclose either (a) that they have formed the suspicion or (b) information that could lead a person to infer that the suspicion exists to any person other than specified AUSTRAC staff. Subsection 123(2) also provides that where a person has disclosed a ‘suspicious matter reporting obligation’ to the AUSTRAC CEO, they must not provide information that could lead a person to infer that disclosure to the AUSTRAC CEO has occurred.

308.    New subsection 123(8B) would provide an exception to the restrictions in subsections 123(1) and (2) which would allow a person to disclose information relating to a ‘suspicious matter reporting obligation’ to an IGIS official for the purposes of, or in connection with, the IGIS official performing a function or duty, or exercising a power, as an IGIS official

309.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 151: Before subsection 207(2)

310.    This item would amend section 207 by inserting a new subheading ‘Exceptions’ before subsection 207(2). The new heading is intended to clarify the section’s structure.

Item 152: After subsection 207(2)

311.    Subsection 207(1) provides that it is an offence for a person who is given a notice to produce information under section 202 to disclose the existence or nature of that notice, if the notice specifies that information about the notice must not be disclosed.

312.    This item would insert new subsection (2A) which would provide that the offence contained in section 207(1) does not apply in relation to the disclosure of information to an IGIS official for the purposes of, or in connection with their functions, duties or powers as an IGIS official. This amendment ensures that it is clear on the face of the legislation that information relating to AUSTRAC and its intelligence functions can be provided to the IGIS without limitation. This is necessary to support the IGIS in performing its oversight functions in relation to AUSTRAC’s intelligence functions by enabling it to access relevant information.

Australian Crime Commission Act 2002

Item 153: subsection 4(1)

313.    This item would insert a new definition of ‘IGIS official’ in subsection 4(1) of the ACC Act. This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Item 154: after paragraph 19A(5)(d)

314.    This item would amend subsection 19A(5) to ensure that IGIS secrecy offences are not displaced by the ability of an ACIC examiner to request information from agencies. Section 19A provides ACIC examiners with broad information collection powers, as well as setting out some limitations on how these powers interact with existing secrecy provisions.

315.    Subsections 19A(1) and (2) empower an ACIC examiner to request specified information, documents or things that are relevant to an ACIC operation or investigation from particular officials in Commonwealth and State agencies. Subsections 19(3) and (19)(4) allow an officer who receives such a request to comply.

316.    Subsection 19A(5) provides that subsections 19(3) and (4) are subject to a number of secrecy provisions, including tax secrecy offences, the prohibition on dealing with intercepted or accessed information under the TIA Act (sections 63 and 133), conditions agreed between the Commonwealth Minister with State Ministers to obtain information (section 20A of the ACC Act) and the secrecy offences under the ASIO Act that apply to members of the Security Appeals Tribunal (subsection 19A(6) of the ACC Act) (noting that the Security Appeals Tribunal is now part of the AAT).

317.    This item would extend subsection 19A(5) by adding paragraph 19A(5)(e), which would provide that subsections 19(3) and (4) are also subject to section 34 of the IGIS Act. Section 34 of the IGIS Act relevantly contains a number of offences that prohibit a person who is or was the Inspector-General, or an IGIS official, to divulge or communicate any information acquired under various provisions that list functions or duties that relate to the Inspector-General and their officials.

318.    Paragraph 19A(5)(e) is intended to make clear that subsections 19(3) and 19(4) of the ACC Act do not override the secrecy requirements in the IGIS Act. This is intended to maintain the security of the information that is provided to, or obtained by, the IGIS. It also reflects the general policy position that the IGIS should not provide a back-channel for agencies to obtain information that they would not otherwise be entitled to access.

Items 155-156: after paragraph 21C(2)(g) after paragraph 21C(4)(e)

319.    These items would amend section 21C of the ACC Act to ensure that it is clear on the face of the legislation that individuals are not liable to prosecution for disclosing information to an IGIS official as part of an IGIS official’s duties, powers or functions.

Subsection 21C(1)-(2)

320.    Subsection 21C(1) creates an offence for a person who discloses information about, or the existence of, a notice that was served on them under section 21A (where the notice must not be disclosed publicly due to an order under section 21B) unless the notice has been cancelled or it has been more than 5 years since the notice was served.

321.    Subsection 21C(2) creates a number of circumstances in which subsection 21C(1) does not apply, including where a person discloses the existence of the notice to the Ombudsman for making a complaint, or to the Integrity Commissioner in relation to notifying them of a corruption issue.

322.    Item 155 would add paragraph 21C(2)(h) to subsection 21C(2), and would permit a notice to be disclosed to the IGIS for the purpose of the IGIS official performing their powers, functions or duties as an IGIS official.

Subsection 21C(3)-(4)

323.    Subsection 21C(3) creates a similar offence to subsection 21C(1) that would apply to on-disclosure situations. That is, it would impose liability on a person who has been told about a notice on the basis of their being an excluded person under subsection 21C(2), who then tells another person about the existence of the notice. Subsection 21C(4) contains a list of circumstance in which 21C(3) would not apply, and includes where a person on-discloses the existence of a notice to the Ombudsman for the purposes of making a complaint, or to the Integrity Commissioner in relation to notifying them of a corruption issue.

324.    Item 156 would add paragraph 21C(4)(f) which would permit a notice to be disclosed to the IGIS for the purpose of the IGIS official performing their powers, functions or duties as an IGIS official.

325.    These amendments are intended to ensure that subsections 21C(1) and (3) do not prevent the IGIS from accessing information that is relevant to an inquiry. Further, the amendments would ensure that it is clear, on the face of agencies’ governing legislation, that individuals can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. The amendment aims to maximise certainty for persons who are subject to notices under section 21A as to when they are able to disclose information to the IGIS.

Item 157: at the end of subsection 25A(4)

326.    This item would insert new paragraph 25A(4)(c) to clarify that an IGIS official may be present during examinations by ACIC examiners (subject to new subsection 25A(4A), inserted by item 158 of Schedule 1).

327.    Section 25A sets out how ACIC examinations are to be conducted, including the arrangements for legal representation for the person giving evidence (section 25A(2)), examination of witnesses (section 25A(6)) and the confidentiality of information obtained through an examination (section 25A(9)), amongst other matters.

328.    Subsection 25A(3) allows the examiner to direct who may be present for an examination. Section 25A(4) provides that, despite subsection (3), an ACIC examiner cannot exclude:

·          a person representing the person giving evidence; or

·          a person representing a person who is not giving evidence (as is permitted under paragraph 25A(2)(b))

from being present during an examination.

329.    This item would insert new paragraph 25A(4)(c) which would provide that an examiner could not make a direction under subsection 25A(3) that would exclude an IGIS official who is present for the purpose of conducting an inquiry or inspection under the IGIS Act, from an examination. This would be subject to new subsection 25A(4A), inserted by item 158 of Schedule 1.

330.    This amendment would ensure that the default position for an ACIC examination is that an IGIS official is entitled to be present (if that official is conducting an inquiry or inspection under their Act). This ensures that the IGIS is able to access the information required to perform oversight functions in relation to the ACIC.

Item 158: after subsection 25A(4)

331.    This item would insert subsections 25A(4A), (4B) and (4C) that would allow an ACIC examiner to exclude an IGIS official from an ACIC examination in particular circumstances, and provide safeguards if an IGIS official were to be excluded from an examination.

332.    New subsection 25A(4A) would allow an ACIC examiner to prevent an IGIS official from attending an examination if the examiner considered that the IGIS’s attendance would be reasonably likely to prejudice:

·          the life or safety of a person; or

·          the effectiveness of the examination.

333.    Under new paragraph 25A(4B)(a), where an ACIC examiner wishes to exclude an IGIS official from an examination before the examination commences, they must notify the IGIS official in writing.

334.    Under new paragraph 25A(4B)(b), where an ACIC examiner wishes to exclude an IGIS official from an examination during the examination, they may give an oral direction. If an examiner gives an oral direction that an IGIS official must leave an examination, they must confirm the direction by notice in writing as soon as practicable after the end of the examination.

335.    It is necessary to ensure an examiner can exclude an IGIS official both before and during an examination as information may only come to light during an examination that would indicate that an IGIS official’s presence could prejudice the safety of a person or the effectiveness of the examination.

336.    In either circumstance where an IGIS official is not able to be present for an examination, or any part thereof, the IGIS official must be provided with an audio-visual recording of the examination as soon as practicable afterwards (new subsection 25A(4A)). This would ensure that an IGIS official is not restricted from performing an inspection or inquiry except where doing so is necessary for operational reasons, and that the IGIS official will be able to review what occurred during the examination if prevented from being present.

337.    The inclusion of the phrase “without limiting subsection (1) and (3)” in item 161 is intended to preserve the current operation of those provisions. It is important to note that the ability of an examiner to exclude an IGIS official from some or part of an examination does not limit an examiner’s overall ability to direct who may be present for an examination, as outlined in section 25A(3). Nothing in the new provision affects how subsections 25A(3) and (4) currently operate.

Item 159: after subsection 25A(14A)

338.    This item would insert new subsections (14A) and (14B) within section 25A, to provide that examination materials could be disclosed to the IGIS, and to clarify the operation of the principles of criminal liability in relation to prosecutions of the offence in subsection 25A(14).

339.    Subsection 25A(14A) provides that it is an offence to use or disclose examination material where the examiner has directed that the material remain confidential under subsection 25A(9).

New subsection (14B)

340.    Subsection 25A(14B) would provide that subsection 25A(14A) does not apply (and so the use or disclosure is not an offence) when the examination material is used or disclosed to an IGIS official for the purpose of an IGIS official exercising a power or performing a function or a duty as an IGIS official. The amendment would ensure that the IGIS is able to obtain the information it requires in order to perform its oversight role in relation to the ACIC.

341.    The amendment would also ensure that it is clear, on the face of agencies’ governing legislation, that persons who have been examined, witnesses and legal representatives can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. The amendment aims to maximise certainty as to when a person may disclose information to the IGIS.

New subsection (14C)

342.    New subsection 25A(14C) would provide that in a prosecution under subsection 25A(14A) where the defendant is an IGIS official, the defendant does not bear an evidential burden in relation to whether the disclosure or use of examination material was for the purposes of an IGIS official exercising a power or performing a function or duty as an IGIS official, displacing the general rules in subsections 13.3(2) and (3) of the Criminal Code.

343.    Subsection 13.3(2) of the Criminal Code provides that a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3, which relates to incapacity by reason of mental impairment) bears an evidential burden in relation to that matter. Subsection 13.3(3) of the Criminal Code relevantly provides that if a defendant wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence, the defendant bears an evidential burden in relation to that matter.

344.    The effect of new subsection 25A(14C) is that, in a prosecution under subsection 25A(14A), an IGIS official is not required to adduce evidence that would point to the reasonable possibility that the examination material was disclosed to or by them for the purposes of that IGIS official’s duties, functions or powers.

345.    IGIS officials are subject to strict secrecy offences under section 34 of the IGIS Act which prevents IGIS officials from disclosing ‘any information or documents’ obtained in the course of their duties, functions or powers to any person, including to a court. As such, an IGIS official is not permitted to adduce any evidence in a court hearing without breaching the secrecy offences in their primary legislation. Given the importance of ensuring the security of information provided to, or obtained by, the IGIS in the course of its duties, and the difficulty this would pose to an IGIS official seeking to rely on the defence, it is appropriate to ensure that the evidential burden is on the prosecution.

346.    As the legal burden of disproving all elements of the defence already falls to the prosecution, it is not an undue burden that the prosecution also bear the evidential burden in relation to establishing that a disclosure was not for the purposes of the IGIS official’s powers or functions. This is consistent with the approach taken in section 18D of the ASIO Act, section 41B of the IS Act and section 63AC of the TIA Act.

Items 160-161: at the end of subsection 29B(2) and at the end of subsection 29B(4)

347.    These items would amend section 29B of the ACC Act to ensure that it is clear on the face of the legislation that individuals are not liable to prosecution for disclosing information to the IGIS for the purpose of an IGIS official exercising their duties, powers or functions.

Subsections 29B(1)-(2)

348.    Subsection 29B(1) provides that it is an offence for a person to disclose the existence of a summons, served or otherwise given to that person, containing a notation made under section 29A. A notation made under section 29A would require that the person who received the summons not disclose any information about the summons or any matter related to it.

349.    Subsection 29B(2) creates a number of circumstances in which subsection 29B(1) does not apply, including where a person discloses the existence of the summons to the Ombudsman for making a complaint, or to the Integrity Commissioner in relation to notifying it of a corruption issue.

350.    The paragraphs to subsection 29B(2) list people and bodies to whom a disclosure is not prevented by subsection 29B(1). Subsection 29B(4) provides to whom a person who has receive a disclosure authorised by subsection 29B(2) or 29B(4) may further disclose that information.

351.    Item 160 would insert new paragraph 29B(2)(h) to subsection 29B(2) which would permit a summons to be disclosed to the IGIS for the purpose of the IGIS official performing their powers, functions or duties as an IGIS official.

Subsections 29B(3)-(4)

352.    Subsection 29B(3) creates a similar offence to subsection 29B(1) that would apply to on-disclosure situations. That is, it would penalise a person who has been told about a summons on the basis of their being an excluded person under subsection 29B(2), who then tells another person about the existence of that summons.

353.    Subsection 21C(4) contains a list of circumstances in which 21C(3) would not apply, and includes where a person on-discloses the existence of a notice to the Ombudsman for the purposes of making a complaint, or to the Integrity Commissioner in relation to notifying them of a corruption issue.

354.    Item 161 would insert new paragraph 29B(4)(f) which would clarify that a person to whom information has been disclosed, as permitted by subsection 29B(2) or subsection 29B(4), may disclose that information to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty as an IGIS official.

355.    These amendments are intended to ensure that subsections 29B(1) and (3) do not prevent the IGIS from accessing information that is relevant and necessary for the IGIS to perform its oversight functions.

356.    Further, the amendments would ensure that it is clear, on the face of agencies’ governing legislation, that individuals can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. The amendment aims to maximise certainty for persons who are subject to summonses under section 28 and 29A as to when they are able to disclose information to the IGIS.

Item 162: subsection 36(4)

357.    This item repeals and substitutes subsection 36(4).

358.    Section 36 provides certain protections to examiners. Subsections 36(1)-(3) provide that ACIC examiners, legal practitioners, and persons appearing or summonsed to attend before examiners have the same protections and immunities as High Court judges (in the case of examiners), or as persons appearing as barristers (in the case of legal practitioners) or witnesses in proceedings in the High Court (in the case of persons appearing or summonsed).

359.    Current subsection 36(4) is an avoidance of doubt provision that clarifies that the protections under section 36 do not limit the powers of the Ombudsman under the Ombudsman Act 1976 (Ombudsman Act). New subsection 36(4) retains the effect of current section 36(4) but further clarifies that the powers of the IGIS under the IGIS Act, or any other law of the Commonwealth that confers powers on the IGIS, are similarly not limited by section 36.

360.    This is intended to ensure that the protections and immunities conferred on examiners, legal practitioners and witnesses (for example, immunities from suit) will not be open to construction as precluding, by necessary implication, inquiries by the IGIS including the exercise of its coercive powers.

361.    The reference to ‘any other law of the Commonwealth that confers powers on the Inspector-General’ is intended to reflect that (as recognised in subsection 8(9) of the IGIS Act) the Parliament may confer functions (and attendant powers) on the IGIS under other Acts. For example, the Inspector-General has functions under the IS Act, PID Act, Archives Act and FOI Act.

Australian Human Rights Commission Act 1986

Item 163: subsection 3(1)

362.    This item would amend subsection 3(1) by inserting new definitions of:

 ‘AUSTRAC’ means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 .

Australian Security Intelligence Organisation Act 1979

Item 164: Section 4 (paragraph (b) of the definition of IGIS official )

363.    This item would update the definition of ‘ IGIS official ’ in the ASIO Act to refer to “a person covered by section 32(1)” of the IGIS Act, rather than “a member of the staff referred to in section 32(1)”. This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Items 165-168: subsection 18(2B), subsection 18A(2A), subsection 18B(2A) and paragraph 35P(3)(f)

364.    Subsections 18(2), 18A(1), 18B(1) and 35P(1)-(2A) of the ASIO Act provide secrecy offences that apply to ASIO employees, ASIO affiliates and persons who have entered into a contract, agreement, or arrangement with ASIO. Existing subsections 18(2B), 18A(2A), 18B(2A) and paragraph 35P(3)(g) contain exceptions to the offences in their respective sections. The exceptions apply when a person communicates the information or matter to an IGIS official (subsection 18(2B)), discloses the information to an IGIS official (paragraph 35P(3)(g)) or deals with a record (subsection 18A(2A)), or makes a record (subsection 18B(2A)), for the purposes of the IGIS exercising a power or performing a function or duty under the IGIS Act.

365.    These items would repeal and substitute subsections 18(2B), 18A(2A), 18B(2A) and paragraph 35P(3)(f). The new provisions are intended to clarify the operation of those provisions as they relate to the exercise of powers by IGIS officials. As currently drafted the subsections refer to something being done for the purpose of the “Inspector-General of Intelligence and Security” exercising a power. The new subsections would instead refer to something being done for the purpose of an “IGIS official” exercising a power. This is intended to remove any ambiguity about whether it is appropriate to provide information/deal with a record/make a record to an IGIS official performing functions delegated by the Inspector-General.

366.    The definition of IGIS official in the ASIO Act includes the Inspector-General, so the provisions will continue to operate in regard to the exercise of powers by the Inspector-General.

367.    The proposed notes at the end of new subsections 18(2), 18A(2A) and 18B(2B) remain identical to the current notes. Their inclusion in the items is an artefact of drafting and should not be considered a substantive change.

Item 169: paragraph 35P(3)(g)

368.    This item would amend paragraph 35P(3)(g) by omitting the words “under that Act” and substituting “as an IGIS official”. This amendment is intended to reflect the fact that IGIS officials also exercise powers under other Acts (for example, the PID Act), and that information may be disclosed to an IGIS official as part of any of their duties, functions, or powers.

Item 170: subsection 35P(3) (note)

369.    This item would repeal and replace the note following subsection 35P(3). The note updates the drafting to specify that the defendant bears an evidential burden in relation to subsection (3), where the previous drafting related to ‘this subsection’. This amendment would harmonise the drafting of the notes across section 35P.

 Crimes Act 1914

Item 171: subsection 3(1)

370.     This item would insert a new definition of ‘IGIS official’ in subsection 3(1) of the Crimes Act. This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Item 172: paragraph 15HK(3)(a)

371.    This item would expand paragraph 15HK(3)(a) to permit the disclosure of information to the IGIS as well as the Integrity Commissioner and Ombudsman.

372.    Subsections 15HK(1)-(1E) contain a number of offences related to unauthorised disclosure of information in relation to controlled operations. Subsection 15HK(3) contains a number of situations in which those offences do not apply. Paragraph 15HK(3)(a) provides that those offences do not apply if the disclosure is to the Ombudsman or the Integrity Commissioner.

373.    This item would omit “or the Integrity Commissioner”, from paragraph 15HK(3)(a) and substitute “, the Integrity Commissioner or the Inspector General of Intelligence and Security”. This is intended to reflect the expansion of the IGIS’s oversight to include the ACIC, as the ACIC may perform controlled operations. The amendment would clarify that officials can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to enable the IGIS to access information that is relevant to its oversight jurisdiction.

Item 173 : subparagraph 15HK(3)(c)(ii)

374.    This item would omit “operation; and” from subparagraph 15HK(3)(c)(ii) of the Crimes Act and substitute “operation; or”. This amendment is consequential to the insertion of an extra subparagraph in paragraph 15HK(3)(c) by item 174 of Schedule 1.

Item 174: at the end of paragraph 15HK(3)(c)

375.    This item would add an additional subparagraph to paragraph 15HK(3)(c) of the Crimes Act.

376.    Paragraph 15HK(3)(c) provides that the offences in subsection (3) to (3E) do not apply if the disclosed information concerns certain subject matters specified in the subparagraphs. Proposed subparagraph 15HK(3)(c)(iii) would add an additional subject matter exception where the disclosure is to the Inspector-General—that the information concerns action taken by the ACIC. This is intended to reflect the expansion of the IGIS’s oversight to include the ACIC’s intelligence functions.

377.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to enable the IGIS to access information that is relevant to its oversight jurisdiction.

Item 175: after paragraph 15LC(4)(d)

378.    Subsections 15LC(1)-(3) contain offences that relate to disclosing information about an assumed identity, and subsection 15LC(4) contains exceptions to those offences with each paragraph providing a circumstance in which the disclosure of information would not be an offence.

379.    This item would insert new paragraph 15LC(4)(da), specifying an additional circumstance as an exception to an offence under subsections 15LC(1)-(3). Specifically, paragraph 15LC(4)(d) would provide that a disclosure for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official, is not an offence under subsections 15LC(1)-(3).

380.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to enable the IGIS to access information that is relevant to its oversight jurisdiction.

Items 176-180: at the end of paragraph 15MS(1)(e), subparagraph 15MS(2)(e)(iii), at the end of paragraph 15MS(2)(e), subparagraph 15MS(3)(e)(iii), and at the end of paragraph 15MS(3)(e)

381.    Subsections 15MS(1)-(3) contain offences that relate to disclosing information about the identity or place of residence of an operative subject to a witness identity protection certificate. The subparagraphs to paragraphs 15(1)(e), (2)(e) and (3)(e) list a number of conditions which, if any apply, mean the conduct is not an offence under the associated subsection.

382.    Items 176, 178 and 180 would insert additional subparagraphs into paragraphs 15(1)(e), 15(2)(e) and 15(3)(e) respectively. These new subparagraphs would provide that if the person’s conduct is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official, then the conduct does not constitute an offence. These amendments are intended to clarify that the offence provisions in subsection 15MS(1)-(3) do not prevent a person from providing information to the IGIS. Unlike the similar provisions in subsection 15LC, not meeting the conditions under paragraphs 15MS(1)(e), (2)(e) and (3)(e) would be an element of the offence, not an exception to the offence. This reflects the current drafting of section 15MS.

383.    The amendments would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to enable the IGIS to access information that is relevant to its oversight jurisdiction.

384.    Items 177 and 179 make technical amendments consequential to the insertion of the new paragraphs.

Item 181: at the end of subsection 15MT(1)

385.    Section 15MT provides that the chief officer of a law enforcement agency may sign a certificate stating certain facts relating to an offence under section 15MS, and that such a certificate is prima facie evidence of that fact.

386.    This item would insert a new paragraph 15MT(1)(e), which would specify a new matter that a chief officer could certify. Specifically, a chief officer would be able to certify that for the purposes of new subparagraphs 15MS(1)(e)(iv), (2)(e)(iv) and (3)(e)(iv) (inserted by items 176, 178 and 180 of Schedule 1) the conduct is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. As the relevant facts make up elements of the offences, it is appropriate that a chief officer is able to provide certification to the accuracy of the relevant fact.

387.    The effect of the certificate is that, in a prosecution for the breach of a secrecy offence relating to a witness identify protection certificate, an officer involved would not have to give evidence in court about the disclosure.

Criminal Code Act 1995

Item 182: Subparagraph 122.5(3)(1)(i) of the Criminal Code

388.    This item would update a reference to the Inspector-General and IGIS officials in the Criminal Code to refer to “a person covered by section 32(1)” of the IGIS Act, rather than “a person engaged or employed to assist the Inspector-General as described in section 32(1)”. This amendment is minor and reflects the expanded nature of section 32(1) of the IGIS Act.

Income Tax Assessment Act 1997

Item 183: subsection 995-1(1)

389.    This item would insert a new definition of ‘IGIS official’ in subsection 995-(1) of the Income Tax Assessment Act 1997 (ITA Act). This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

390.    The term ‘IGIS official’ is not used in the ITA Act, but the term would be used in section 355-185 of Schedule 1 to the TA Act, which would be inserted by item 203 of Schedule 1 . Under subsection 3AA(2) of the TA Act an expression used in Schedule 1 of that Act has the same meaning as in the ITA Act.

Inspector-General of Taxation Act 2003

Item 184: at the end of paragraph 15(j)

391.    Paragraph 15(j) of the Inspector-General of Taxation Act 2003 provides that sections 35AA-37 of the Ombudsman Act also apply in relation to the Inspector-General of Taxation.

392.    This item would insert “(except section 35AB)” at the end of paragraph 15(j), providing that section 35AB of the Ombudsman Act would not apply in relation to the Inspector-General of Taxation. Item 92 of Schedule 2 would insert section 35AB into the Ombudsman Act. New section 35AB ensures that the Ombudsman has the power to disclose certain information to the IGIS. Due to the lack of overlap in subject matter, the Inspector-General of Taxation is not an integrity body with whom the IGIS is likely to transfer cases, and as such, it would not be appropriate for section 35AB to apply.

Intelligence Services Act 2001

Items 185-193: subsections 39(3), 39A(3), 40(3) and 40B(3), subsection 40C(2A), subsection 40D(2A), subsection 40E(2A), subsection 40F(2A), subsection 40G(2A), subsection 40H(2A), subsection 40L(2A), subsection 40M(2A)

393.    Division 1 of Part 6 of the IS Act contains secrecy offences relating to the:

·          communication of certain information,

·          unauthorised dealing with records, and

·          unauthorised recording or information or matters,

relating to ASIS, AGO, ASD and DIO.

394.    Subsections 39(3), 39A(3), 40(3), 40B(3), 40C(2A), 40D(2A), 40E(2A), 40F(2A), 40G(2A), 40H(2A), 40L(2A) and 40M(2A) each contain an exception to a secrecy offence contained in the associated section. These exceptions provide that the offences do not apply if the person’s conduct (e.g. communicating, making a record, dealing with a record) is for the purposes of the Inspector-General exercising a power, or performing a function or duty under the IGIS Act. Where the conduct is ‘communicating’, the communication also needs to be to an IGIS officer for the exception to apply.

395.    These items would each repeal and substitute each of these subsections. The redrafted exceptions would clarify that the exceptions apply when the conduct was for the purposes of an IGIS official (not just the Inspector-General) exercising a power, or performing a function or duty, as an IGIS official. For the offences where the conduct that makes up the element of the offence is ‘communicating’ these provisions would also require that the communication of the information or matter was to an IGIS official.

396.    The new provisions would remove any ambiguity about whether it is appropriate to provide information/deal with a record/make a record to an IGIS official performing functions delegated by the Inspector-General.

Items 194-195: section 41 and at the end of section 41

397.    These items amend section 41, which creates an offence for disclosing the identity of an ASIS staff member.

398.    Item 194 renumbers the section, as a result of the insertion of a new subsection 41(2) by item 195.

399.    Item 195 would create new subsection 41(2) which would provide an exception to the offence in section 41 where a person identifies a person as an ASIS employee to an IGIS official, for the purposes of that IGIS official exercising a power, or performing a function or duty, as an IGIS official. This exception is similar to the existing exceptions to Division 1, Part 6 secrecy offences that apply to IGIS officials. The amendment would clarify that officials can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. The amendment aims to maximise certainty for officials as to when they are able to disclose information to the IGIS, and to provide legal protections for such disclosures.

Item 196: subsection 41B(3) (at the end of the definition of information offence provision )

400.    This item would add ‘of paragraph 41(1)(a)’ to the list of information secrecy offence provisions in section 41B. This amendment would ensure consistent treatment of IGIS officials (specifically in relation to evidential burdens) in a prosecution under any offences in Division 1 of Part 6, of the IS Act.

Office of National Intelligence Act 2018

Item 197: Subsection 4(1) (paragraph (b) of the definition of Inspector-General of Intelligence and Security official or IGIS official )

401.    This item would update the definition of ‘ IGIS official ’ in the ONI Act to refer to “a person covered by section 32(1)” of the IGIS Act, rather than “a member of the staff referred to in section 32(1)”. This amendment is minor and reflects the expanded nature of section 32(1) of the IGIS Act.

Ombudsman Act 1976

Item 198: subsection 3(1)

402.    This item would insert the following definition into subsection 3(1) of the Ombudsman Act:

‘AUSTRAC’ means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 .

Public Interest Disclosure Act 2013

Items 199-200: Paragraph 69(3)(b) and Subsection 77(3)

403.    These items would update the references to IGIS staff members in the PID Act to refer to “a person covered by section 32(1)” of the IGIS Act, rather than “a member of the staff referred to in section 32(1)”. These amendments are minor and reflect the expanded nature of section 32(1) of the IGIS Act.

Surveillance Devices Act 2004

Item 201: subsection 6(1)

404.    This item would insert a new definition of ‘IGIS official’ in subsection 6(1) of the Surveillance Devices Act 2004 (SD Act). This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Item 202: after subsection 45(6)

405.    Subsections 45(1) and (2) contain offences for the use, recording, communication or publishing of protected information, except as permitted by sections 45, 45A and 65B. This item would insert new subsection 45(6A) that would provide that use, recording and communication of protected information is authorised if it is necessary to do so for the purposes of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.

406.    This is intended to ensure that the IGIS is able to access information relevant to an inquiry despite the offences in subsection 45(1) and (2).

407.    Due to the wording of subsection 45(1) and (2), the fact that a particular use, recording or publication is not authorised is an element of the relevant offence. As such, new subsection 45(6) does not provide an exception to the offences, and subsection 13.3(3) of the Criminal Code is not engaged, meaning the evidential burden for that aspect of the offence would need to be met by the prosecution, not the defence.

Taxation Administration Act 1953

Item 203: section 355-185 in Schedule 1

408.    Section 355-155 of Schedule 1 to the TA Act provides that it is an offence for an entity to make a record of, or share, information which was acquired through an exception to Subdivision 355-B (which relates to the Disclosure of protected information by taxation officers) or Subdivision 355-C (which relates to the on-disclosure of protected information by other people), where the entity is not a taxation officer.

409.    Current section 355-185 of Subdivision 355-C provides exceptions to section 355-155 relating to disclosures to, and on-disclosures by, the IGIS and members of the IGIS’s staff in relation to the IGIS’s functions in relation to ASIO.

410.    This item would repeal and replace section 355-185. The substituted provision expands the scope of excepted disclosures to the IGIS to reflect the new functions of the IGIS under the IGIS Act.

411.    New subsection 355-155(1) would largely recreate existing subsection 355-155(1), however it would contain a number of amendments consequential to other amendments made by the Bill:

·          New paragraph 355-185(1)(a) would require the entity to be an officer of an Australian government agency, rather than an authorised ASIO officer. This is intended to reflect that the IGIS will have oversight of a broader range of agencies who have access to protected tax information.

·          New paragraph 355-185(1)(b) would use simplified language to describe an IGIS official, utilising the new definition of ‘IGIS official’ inserted by item 219.

·          New paragraph 355-185(1)(c) would be more general than its predecessor, only requiring that the record or disclosure is for the purposes of the IGIS official performing functions, or exercising powers, as an IGIS official. These changes are consequential to the broader scope offered by new paragraphs 355-185(1)(a) and (b).

·          The note to subsection 355-185(1) is not substantially changed.

412.    New subsection 355-155(2) would largely recreate existing subsection 355-155(2), however it would contain a number of amendments consequential to other amendments made by the Bill:

·          New paragraph 355-185(2)(a) would use simplified language to describe an IGIS official, utilising the new definition of ‘IGIS official’ inserted by item 217.

·          New paragraph 355-185(2)(b) would be identical to existing paragraph 355-185(2)(b)

·          New paragraph 355-185(2)(c) would be more general than its predecessor, only requiring that the record or disclosure is for the purposes of the IGIS official performing functions, or exercising powers, as an IGIS official. This is intended to reflect that the IGIS will have oversight of a broader range of agencies who have access to protected tax information

·          The note to subsection 355-185(2) would be removed, due to the operation of new section 34B of the IGIS Act (inserted by item 78 of Schedule 2).

413.    This item is intended to ensure that the IGIS has appropriate access to information that is relevant to an inquiry, while ensuring that it is clear that government officials can share information and records with IGIS officials for the purpose of the IGIS performing its statutory oversight functions. These functions should be understood to only capture duties, functions or powers which relate to the oversight functions of an IGIS official.

Telecommunications Act 1997

Item 204: section 7

414.    This item would insert a new definition of ‘IGIS official’ in section 7 of the Telecommunications Act. This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Item 205-206: subsection 315H(1), after paragraph 315H(1)(b)

415.    Subsection 315H(1) provides that when a person obtains information or a document under section 314A, 314B, 314C, 314D, 315C or subsection 315H(1) of the Telecommunications Act, that person may disclose the information or provide the document in the circumstances specified in the paragraphs to that subsection.

416.    Item 206 would insert a new paragraph 315H(1)(c) to allow an individual to share information acquired under sections 314A, 314B, 314C, 314D, 315C or 315H for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.

417.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

418.    Item 207 would make a technical change to the wording of subsection 315H(1) consequential to the insertion of paragraph of 315H(1)(c).

Item 207: section 317B (definition of IGIS official)

419.    This item would repeal the definition of ‘IGIS official’ in section 317B. This is consequential to the insertion of a definition of IGIS official applicable to the whole Telecommunications Act by item 204 of this Schedule.

Telecommunications (Interception and Access) Act 1979

420.    Part 2-6 of the TIA Act provides how and when a person may deal with intercepted information (as defined by section 6E of that Act), information intercepted in breach of section 7 of that Act and interception warrant information.

Item 208: subsections 63AB(3) to (6)

421.    Section 63 provides that a person shall not, subject to Part 2-6 and section 299 of the TIA Act, communicate, make use of, make a record of, or give in evidence in a proceeding, any such information. Section 63AB of the TIA Act provides exceptions to that general prohibition, in relation to dealing in computer access intercept information.

422.    Existing subsections 63AB(3)-(6) provide that a person can communicate, make use of, or make a record of computer access intercept information in connection with the performance by an Ombudsman official of the Ombudsman official’s functions or duties; or the exercise by an Ombudsman official of the Ombudsman official’s powers.

423.    This item would repeal subsections 63AB(3)-(6) and substitute new subsections 63AB(3), (4) and (5). While the subsections would be substantially restructured, the new subsections are intended to maintain the existing exceptions that relate to Ombudsman officials while also extending those exceptions to apply to IGIS officials.

424.    New subsection 63AB(3) would provide that a person may communicate, use or make a record of certain information (being information referred to in new subsection 63AB(4)) in connection with an Ombudsman or IGIS official’s functions or duties, or the exercise of such an official’s powers. This would effectively recreate existing paragraphs 63AB(3)(a), (b), 63AB(4)(a) and (b) and subparagraphs 63AB(4)(d)(i), (ii), 63AB(4)(e)(i) and (ii), except the scope would be expanded to include the functions, duties and powers of an IGIS official. This restructure is intended to reduce repetition and improve the clarity of the TIA Act.

425.    The inclusion of the functions, duties and powers of IGIS officials is intended to reflect that the IGIS also oversees these types of activities, and therefore requires access to this information to perform its functions.

426.    New paragraph 63AB(4) would provide the types of information which may be shared by an IGIS or Ombudsman official under new section 63AB(3). The types of information which may be shared are:

·          general computer access intercept information; or

·          information that was obtained by intercepting a communication passing over a telecommunications system if:

§   the interception was purportedly for the purposes of doing a thing specified in a general computer access warrant; and

§   the interception was not authorised by the general computer access warrant.

These types of information are consistent with the previous version of the section, however have been drafted in a more streamlined manner.

427.    Paragraph 63AB(5) retains the operation of former paragraph 63AB(6) and provides that an Ombudsman official does not bear an evidential burden in relation to whether they have communicated or used information in connection with the performance of their functions as an Ombudsman official in a prosecution under section 63. This provision would displace the general rules in subsections 13.3(2) and (3) of the Criminal Code.

428.    Subsection 13.3(2) of the Criminal Code provides that a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3, which relates to incapacity by reason of mental impairment) bears an evidential burden in relation to that matter. Subsection 13.3(3) of the Criminal Code relevantly provides that if a defendant wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence, the defendant bears an evidential burden in relation to that matter.

429.    Displacing these subsections would ensure that Ombudsman officials would not bear an evidential burden in relation to whether they communicated information in relation to their duties, functions or powers as an Ombudsman official. This retains the effect of former subsection 63AB(6) in relation to Ombudsman officials.

430.    This item would also insert a note after subsection 63AB(5) to refer to new section 34B of the IGIS Act (inserted by item 78 of Schedule 2), which provides that an IGIS official does not bear an evidential burden in relation to whether information was communicated or used in connection with their functions as an IGIS official. This note is to explain the interaction between the TIA Act and the IGIS Act.

Items 209-211: section 64 (heading), subsection 64(1), and subsection 64(2)

431.    Existing subsections 64(1) and (2) provide circumstances in which a person may communicate or make a record of certain lawfully intercepted information, interception warrant information or foreign intelligence information, in connection with the performance of functions by ASIO or IGIS.

432.    Existing subsection 64(3) provides that information may not be shared under subsections 64(1) and (2) unless the information has been communicated to the Director-General of Security under section 68 of the TIA Act in some circumstances. Information which may not be communicated includes:

(a)    information obtained by an ASIO employee or a person assisting ASIO, or

(b)    information communicated to an ASIO employee from a person who has intercepted communications under a warrant, or

(c)     ‘interception warrant information’ (defined in section  6EA of the TIA Act) in relation to a warrant issued to an agency.

433.    The term “agency” in (c) is defined as an “interception agency” in Chapter 2 (where section 64 is location), which is defined (for the purposes of Part 2-6) as:

·          a Commonwealth agency; or

·          an eligible authority of a State;

434.    ‘A Commonwealth agency’ is then defined as the:

·          AFP; or

·          ACLEI; or

·          ACIC.

435.    The effect of this provision is that the IGIS is not able to deal with ‘interception warrant information’ in relation to a warrant issued to the ACIC, unless that information has first been provided to the Director-General of Security.

436.    As the IGIS would have jurisdiction in relation to ACIC, (and already oversees ASIO), it is not appropriate that the IGIS’s ability to access information is contingent on notification to the head of an overseen agency. New section 64A (inserted by item 212 of Schedule 1) would allow the Inspector-General to deal with information without this restriction.

437.    Items 209 to 211 are intended to retain the operation of section 64 in relation to ASIO. Item 209 would amend the heading to section 64 so that it no longer referred to the IGIS. This is consequential to the removal of the IGIS from section 64 by items 210 and 211.

438.    Items 210 and 211 would amend subsection 64(1) and repeal and replace subsection 64(2) (respectively) to remove references to the functions of the IGIS. New subsection 64(2) is intended to be effectively identical to existing subsection 64(2) except for the removal of references to the functions of the IGIS. The textual changes to 64(2) are intended to reflect modern drafting practices, and are not intended to change the operation of the provision (apart from the removal of IGIS functions).

Item 212: after section 64

439.    This item would insert new section 64A. New subsection 64A(1) would allow a person to communicate, or make use of, or record:

·          information obtained by intercepting a communication passing over a telecommunications system (this phrasing is intended to include, for example, ASIO computer access intercept information and general computer access intercept information), whether or not that information is lawfully intercepted, or

·          interception warrant information

by or to the IGIS in connection with the performance of the IGIS’s functions.

440.    New subsection 64A(2) would provide that section 64A applies despite any other provision in Part 2-6. Primarily this is intended to overcome the restriction in section 63 to the sharing of certain information.

441.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions (including duties and powers as an IGIS official). This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 213: after section 139

442.    This item would insert new section 139AA into the TIA Act.

443.    Division 1 of Part 3-4 of the TIA creates a general prohibition on dealing with “accessed information”. Section 133 establishes the offence for communicating, making use, recording or giving evidence in proceedings, which is punishable by imprisonment for two years or 120 penalty units, or both.

444.    Division 2 of Part 3-4 of the TIA Act set outs the permissible dealings with information that has been accessed under that Act, which include dealing with information in communication with an Australian Communications and Media Authority investigation (section 138), a law enforcement operation (section 139) or for integrity purposes (section 139A).

445.    Item 213 would insert a new section into Division 2 which would allow a person to communicate:

·          lawfully accessed information;

·          information obtained by accessing a stored communication (whether or not that information is lawfully intercepted information);

·          preservation notice information; or

·          stored communications warrant information,

with the IGIS, in connection with the IGIS’s functions.

446.    New subsection 139AA(2) would provide that section 139AA applies despite any other provision in Part 3-4.

447.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 214: at the end of subsection 139A(2)

448.    Section 139A provides that an officer or staff member of a Commonwealth agency may communicate, make use of, or record certain information in defined circumstances for the purposes of integrity investigations and operations.

449.    Subsection 139A(2) defines the limited circumstances in which a staff member may communicate the information in subsection 139A(1). This item would expand subsection (2) to include sharing information with an IGIS official in accordance with their duties, powers and functions as a permitted reason to communicate this information.

450.    The amendment would clarify information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 215: section 142

451.    This item would amend section 142 to insert a reference to section 139AA.

452.    Section 142 provides that where information is provided to a person under subsection 135(4) (where a carrier’s employee provides information to criminal law enforcement and others, as provided by that section), section 139 (providing information to a criminal law enforcement agency), 139A (dealing in information for integrity purposes), 139B (dealing in information in relation to control orders and preventive detention orders) or 139C (dealing in information for continuing detention orders), and subsection 140(2) (dealing in information where access is suspected to be unlawful), the recipient may also disclose that information in furtherance of those purposes. This item would add section 139AA to this list. This amendment is consequential to the insertion of section 139AA by item 213 of Schedule 1.

453.     This amendment would allow IGIS officials to on-disclose information that was provided to them under section 139AA, so long as that on-disclosure is associated with the IGIS’s functions. This is necessary to enable the IGIS to manage its concurrent jurisdiction with other integrity bodies.

Item 216: paragraph 181A(3)(c)

454.     Subsections 181A(1) and 181A(2) introduce criminal penalties for the disclosure of information or a document that relates to the authorisation or revocation of a warrant as outlined in Division 3.

455.    This item repeals and replaces paragraph 181A(3)(c) which provides exemptions from the criminal penalties in subsections 181A(1) and 181A(2) for a disclosure to or by an IGIS official as part of their duties, powers or functions. The new paragraph removes reference to the Inspector-General of Intelligence and Security and the IGIS Act and clarifies that the exemption applies to an IGIS official in their duties, functions or powers as an IGIS official. This reflects that IGIS officials perform duties, functions and powers under legislation other than the IGIS Act (for example, the PID Act).

456.    The new provision would remove any ambiguity about whether it is appropriate to provide information/deal with a record/make a record to an IGIS official performing functions delegated by the Inspector-General, or where an IGIS official is performing duties, functions or powers provided by another piece of legislation.

Item 217: paragraph 181A(6)(c)

457.    Subsections 181A(4) and 181A(5) introduce criminal penalties for the use of information or a document that relates to the authorisation or revocation of a warrant as outlined in Division 3.

458.    This item repeals and replaces paragraph 181A(6)(c) which provides exemptions from the criminal penalties in subsections 181A(4) and 181A(5) for a disclosure to or by an IGIS official as part of their duties, powers or functions. The new paragraph removes reference to the Inspector-General of Intelligence and Security and the IGIS Act and clarifies that the exemption applies to an IGIS official in their duties, functions and powers as an IGIS official.

459.    The new provision would remove any ambiguity about whether it is appropriate to provide information/deal with a record/make a record to an IGIS official performing functions delegated by the Inspector-General, or where an IGIS official is performing duties, functions or powers provided by another piece of legislation.

Item 218: after paragraph 181B(3)(b)

460.     Subsections 181B(1) and 181B(2) introduce criminal penalties for the disclosure of information or a document that relates to the authorisation or revocation of a warrant as outlined in Division 4.

461.    This item would insert paragraph 181B(3)(c) which provides exemptions from the criminal penalties in subsections 181B(1) and 181B(2) for a disclosure to or by an IGIS official as part of their duties, powers or functions. The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 219: after paragraph 181B(6)(b)

462.    Subsections 181B(4) and 181B(5) introduce criminal penalties for the use of information or a document that relates to the authorisation or revocation of a warrant as outlined in Division 3.

463.    This item would insert paragraph 181B(6)(c) which provides exemptions from the criminal penalties in subsections 181B(4) and 181B(5) for a disclosure to or by an IGIS official as part of their duties, powers or functions as an IGIS official. The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions, or exercising functions or duties. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 220: paragraph 182(2)(b)

464.     Subsection 182(1) introduces criminal penalties if a person receives information or a document as allowed under Division 4, and then communicates or uses the information or document.

465.    This item repeals and replaces paragraph 182(2)(b) which provides exemptions from the criminal penalties in subsection 182(1) for a disclosure to or by an IGIS official as part of their duties, powers or functions. The new paragraph removes reference to the Inspector-General of Intelligence and Security and the IGIS Act and clarifies that the exemption applies to an IGIS official in their duties, functions or powers as an IGIS official.

466.    The new provision would clarify that it is appropriate to provide information/deal with a record/make a record to an IGIS official performing functions delegated by the Inspector-General and under any legislation which creates functions for an IGIS official.

Item 221: paragraph 182(3)(b)

467.    Subsection 182(1) introduces criminal penalties if a person receives information or a document as allowed under Division 4, and then communicates or uses the information or document.

468.    This item would repeal and replace paragraph 182(3)(b) which provides exemptions from the criminal penalties in subsection 182(1) for a disclosure to or by an IGIS official as part of their duties, powers or functions, and if the information or document disclosed relates to information of a person who is not a missing person. The new paragraph removes reference to the Inspector-General of Intelligence and Security and the IGIS Act and clarifies that the exemption applies to an IGIS official in their duties, functions or powers as an IGIS official.

469.    The new provision would remove any ambiguity about whether it is appropriate to provide information/deal with a record/make a record to an IGIS official performing functions delegated by the Inspector-General, or where an IGIS official is performing duties, functions or powers provided by another piece of legislation.

Item 222: paragraphs 182B(c) and (d)

470.     Division 4C provides that a disclosure must not be authorised where it relates to a journalist, unless a journalist information warrant has been authorised.

471.    Section 182A introduces criminal penalties if a person discloses or uses information or a document which relates to the existence, authorisation or revocation of a journalist information warrant as outlined in Division 4C.

472.    This item would repeal and replace paragraphs 182B(c) and 182B(d). These paragraphs currently provide exemptions for the disclosure and use of information or a document which relates to a journalist information warrant. This amendment will retain the existing purpose of these paragraphs, but removes reference to the Inspector-General of Intelligence and Security and the IGIS Act and clarifies that the exemption applies to an IGIS official in their duties, functions and powers as an IGIS official, covering the full spectrum of activities that may be performed by an IGIS official.

Witness Protection Act 1994

Item 223: section 3

473.    This item would insert a new definition of ‘IGIS official’ in section 3 of the Witness Protection Act 1994 (WP Act). This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Items 224-226: after paragraph 22(5)(d), after paragraph 22A(5)(d), and after paragraph 22B(3)(d)

474.    Sections 22, 22A and 22B of the WP Act contain a number of offences relating to disclosure of information. Subsections 22(5), 22A(5) and 22B(3) contain circumstances in which the offences in their respective sections do not apply.

475.    Items 224, 225 and 226 would insert new paragraphs 22(5)(e), 22A(5)(e) and 22B(3)(e) respectively. Each of these paragraphs would provide a new circumstance in which the offences in their respective sections do not apply. In each case, that circumstance is that the disclosure is made for the purposes of an IGIS official exercising a power or performing a function or duty as an IGIS official. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

 

 

Schedule 2 — Contingent amendments

Part 1 - Amendments contingent on the AML CTF Amendment Act

Division 1 - Amendments contingent on the AML CTF Amendment Act that might not commence

476.    Items 1-25 would amend the AML/CTF Act. These amendments would commence immediately after commencement of Part 1 of Schedule 1 to the Bill. However, these amendments would not commence at all if Part 4 of Schedule 1 to the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019 (AML/CTF Amending Act) commences prior to Part 1 of Schedule 1 to the Bill.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 1: after paragraph 121(3)(e)

477.    This item would insert new paragraph 121(3)(f) into the AML/CTF Act. Subsection 121(2) of the AML/CTF Act provides that an entrusted public official commits an offence when that official has obtained AUSTRAC information, other than via Division 4 of that Act, and discloses that information to another person.

478.    Subsection 121(1) sets out the definition of an ‘entrusted public official’ as a person who is or was, in performing or assisting the performance of the AUSTRAC CEO’s functions:

·          the AUSTRAC CEO,

·          an AUSTRAC staff member,

·          consultants employed by AUSTRAC,

·          secondees and consultants made available to AUSTRAC from Commonwealth, state or territory agencies and police forces,

·          other people with suitable qualifications from other organisations, and

·          the Director of AUSTRAC.

479.    Where an ‘entrusted public official’ obtains AUSTRAC information, other than as lawfully permitted by Division 4 of Part 11 of the AML/CTF Act, they are not permitted to disclose it to another person. To do so would contravene subsection 121(2).

480.    Subsection 121(3) contains a number of exceptions to subsection 121(2), including where an ‘entrusted public official’ discloses information that is connected with the official’s duties under the AML/CTF Act (or the Financial Transaction Reports Act 1988 ) or where the disclosure is for the purposes of the Integrity Commissioner’s functions in relation to a corruption issue relating to any law enforcement agency.

481.    New paragraph 121(3)(f) would provide an additional exception which would allow an ‘entrusted public official’ who has obtained information through any means (outside of Division 4 of Part 11) to disclose that information to an IGIS official where that disclosure is for the purposes of, or in connection with, an IGIS official performing a function or duty, or exercising a power, as an IGIS official in relation to AUSTRAC.

482.    This amendment reflects the extension of IGIS oversight to AUSTRAC, and would ensure that individuals who have access to AUSTRAC information are able to disclose this to the IGIS, regardless of how they obtained that information (ie. under Division 4, or otherwise).

483.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the oversight functions of the IGIS by enabling it to access relevant information.

Item 2: After paragraph 122(3)(c)

484.    This item would insert new paragraph 122(3)(ca) into the AML/CTF Act.

485.    Section 122(2) of the AML/CTF Act limits the ability of ‘entrusted investigating officials’ (defined in subsection 122(1) of the AML/CTF Act) to disclose of information obtained under a section 49 certificate (a mechanism to compel additional information under the AML/CTF Act).

486.    New paragraph 122(3)(ca) would provide that an ‘entrusted investigating official’ would be able to disclose section 49 certificate information to an IGIS official performing a function or duty, or exercising a power, as an IGIS official in relation to AUSTRAC.

487.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 3: after subsection 126(4)

488.    This item would insert new subsection 126(4A) to section 126 of the AML/CTF Act. The amendment would provide that the Inspector-General and IGIS officials are deemed to have an authorisation under section 126 to access any AUSTRAC information. New subsection 126(4) would include a subheading of “ Inspector-General of Intelligence and Security etc .”

489.    Section 126 of the AML/CTF Act allows the AUSTRAC CEO to authorise specific officials (or classes of officials) to access designated classes of AUSTRAC information. The amendment would explicitly provide the IGIS with the right to access any AUSTRAC information (provided that it is for the purposes of performing the functions or exercising the powers of the IGIS), without access being conditional on the authorisation of the AUSTRAC CEO.

490.    As IGIS would have oversight over AUSTRAC’s intelligence functions, AUSTRAC may be subject to an inquiry or investigation by IGIS officials. It is therefore appropriate that the Inspector-General can access to information relevant to performing their oversight role, and that this access cannot be revoked by the agency head of the overseen agency.

491.    This amendment is not expected to change existing practices of agencies upon commencement, as the IGIS currently holds an authorisation from the AUSTRAC CEO to access AUSTRAC information under section 126.

Item 4: paragraph 127(3)(b)

492.    This item would amend an exception to an offence under subsection 127(2). Subsection 127(2) provides that it is an offence for an ‘entrusted agency official’ who obtains accessed information (as defined by subsection 127(4)) to disclose that information to another person.

493.    Subsection 127(1) defines an ‘entrusted agency official’ as a person who is or was an official of a ‘designated agency’. ‘Designated agency’ is defined in section 5 of the AML/CTF Act, and relevantly includes the ACIC, ASIO, ACLEI, ASIS, AGO, DIO, ASD, ONI, IGIS and Commonwealth Royal Commissions (amongst others).

494.    Each paragraph to subsection 127(3) of the AML/CTF Act contains an exception to subsection 127(2). Paragraph 127(3)(b) contains an exception to subsection 127(2) that applies when the disclosure is authorised under specified provisions of the AML/CTF Act. Item 4 would add section 133BA to the list of specified provisions in subsection 127(3)(b).

495.    Section 133BA allows the Director-General of ASD to communicate AUSTRAC information to a foreign intelligence agency in specific circumstances. The section was created by the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018 , in conjunction with ASD becoming a statutory agency. Section 133BA is equivalent to sections 133, 133A, 133B and 133C, which allow the heads of ASIO, ASIS, defence intelligence agencies and ONI (respectively) to communicate AUSTRAC information to a foreign intelligence agency in specific circumstances.

496.    By explicitly excepting disclosures made in accordance with 133BA from the offence under subsection 127(2), this amendment would clarify that the Director-General of ASD (and authorised staff) are able to communicate AUSTRAC information to a foreign intelligence agency without committing an offence under subsection 127(2).

497.    Item 6 of Schedule 2 would amend the definition of ‘accessed information’ to include a reference to section 133BA, to ensure that ASIO, ASIS, defence intelligence organisations, ONI and ASD are treated consistently throughout section 127.

Item 5: after paragraph 127(3)(b)

498.    This item would insert new paragraph 127(3)(c). New paragraph 127(3)(c) would provide an exception to the offence contained in subsection 127(2) where accessed information is disclosed to an IGIS official, in connection with an IGIS official exercising a power, or performing a function or duty, as an IGIS official in relation to AUSTRAC.

499.    This amendment reflects the extension of IGIS oversight to AUSTRAC, and would ensure that the offence under subsection 127(2) does not prohibit an IGIS official from obtaining information needed to complete an inquiry, or performing any other duties, functions or powers as an IGIS official.

Item 6: paragraph 127(4)(f)

500.    This item would insert “, 133BA” after “133B” in paragraph 127(4)(f). The effect of this amendment is to add section 133BA, which allows the Director-General of ASD to disclose AUSTRAC information to a foreign intelligence agency, to the definition of ‘accessed information’. It is intended that as a result of being defined as accessed information, information obtained under section 133BA would now be subject to the protections that apply to accessed information under section 127 of the AML/CTF Act.

501.    Section 133BA was created by the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018 , as a result of ASD becoming a statutory agency. It is consistent with sections 133, 133A, 133B and 133C, which allow the heads of ASIO, ASIS, defence intelligence agencies and ONI to communicate AUSTRAC information to a foreign intelligence agency in particular circumstances. Including section 133BA in the list of ‘accessed information’ would ensure that ASIO, ASIS, defence intelligence organisations, ONI and ASD are treated consistently throughout section 127.

Items 7-21: Subsections 128(1) and (2), paragraphs 128(12A)(a) and (13)(a), subparagraph 128(13)(b)(i), paragraph 128(13)(c), subparagraph 128(13)(ca)(i), paragraph 128(13B)(a), paragraph 128(13B)(c), paragraph 128(13B)(ca), paragraph 128(13BA)(a), paragraph 128(13BA)(c), paragraph 128(13BA)(d), paragraph 128(13C)(a), paragraph 128(13C)(b), paragraph 128(13C)(ba), paragraph 128(14)(f)

502.    Items 7-21 would amend several provisions within section 128. Section 128 prescribes when AUSTRAC information can be passed on by an official , including by ASIS, ASIO, defence intelligence, ASD, ONI and ACIC officials.

503.    Subsections 128(1) and (2), paragraphs 128(12A)(a) and (13)(a), subparagraph 128(13)(b)(i), paragraph 128(13)(c), subparagraph 128(13)(ca)(i), paragraph 128(13B)(a), paragraph 128(13B)(c), paragraph 128(13B)(ca), paragraph 128(13BA)(a), paragraph 128(13BA)(c), paragraph 128(13BA)(d), paragraph 128(13C)(a), paragraph 128(13C)(b), paragraph 128(13C)(ba), paragraph 128(14)(f) all provide that information may be disclosed by an official in the performance of their “duties” or “functions”. The amendment would update each of these provisions so that they consistently permit disclosure in connection with the relevant official’s or Minister’s duties, functions or powers.

Item 22: at the end of subsection 128(14)

504.    Subsection 128(14) sets out when ACIC officials are able to disclose AUSTRAC information. This item would insert new paragraph 128(14)(g).

505.    New paragraph 128(14)(g) would permit a member of the staff of the ACIC to disclose AUSTRAC information to an IGIS official for the purposes of the IGIS official exercising a power, or performing a function or duty, as an IGIS official in relation to the ACIC.

506.    This amendment reflects the extension of IGIS oversight to ACIC, and would ensure that ACIC employees who have access to AUSTRAC information are able to disclose this to the IGIS to facilitate the necessary information sharing relevant to the IGIS’s oversight of the ACIC.

Item 23: paragraph 128(19)(a)

507.    This item would amend paragraph 128(19)(a) to allow an IGIS official to disclose AUSTRAC information in connection with their functions, duties or powers as an IGIS official. This amendment would ensure consistency throughout section 128 in how officials may disclose AUSTRAC information.

Item 24: after subparagraph 128(19)(a)(iv)

508.    This item would amend subsection 128(19) to extend the existing circumstances where an IGIS official may disclose AUSTRAC information, to reflect the IGIS’s new jurisdiction over the ACIC and AUSTRAC.

509.    Subsection 128(19) outlines when an IGIS official may disclose AUSTRAC information. Paragraph 128(19)(a) provides that an IGIS official may disclose AUSTRAC information to another IGIS official for the purposes of, or in connection with, that official’s duties in relation to an agency, or the employees of an agency, listed in the subparagraphs to paragraph 128(1)(a).

510.    This item would add additional subparagraphs to paragraph 128(19)(a). These new subparagraphs would specify the ACIC and AUSTRAC. While this is not a substantive change to the law (these agencies were already covered by subparagraph 128(19(a)(v) which refers to ‘any other Commonwealth agency within the meaning of the IGIS Act’), this amendment does highlight the expansion of the IGIS’s oversight to these organisations.

Item 25: paragraph 128(19)(b)

511.    This item is a technical amendment that would add precision to the reference in paragraph 128(19)(b) to Division 4 of the IGIS Act. It would clarify that the reference is to Division 4 of Part II of that Act. There is no substantive impact on the law as only Part II of the IGIS Act contains a Division 4.

Division 2 - Amendments that commence after the AML CTF Amending Act

512.    Items 26-34 would amend the AML/CTF Act (as amended by the AML/CTF Amending Act) and the IGIS Act. These amendments would commence the later of:

·           immediately after the commencement of the provisions in Part 1 of Schedule 1 to the Bill, and

·          on the commencement of Part 4 of Schedule 1 to the AML/CTF Amending Act.

513.    However, the provisions do not commence at all if Part 4 of Schedule 1 to the AML/CTF Amending Act does not commence.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (as amended by the AML/CTF Amending Act )

Item 26: section 5

514.    This item would insert a new definition of ‘IGIS official’ in section 5 of the AML/CTF Act. This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Item 27: After paragraph 50A(2)(b)

515.    This item would amend section 50A of the AML/CTF Act (as amended), which limits the ability of ‘entrusted investigating officials’ (defined in section 5 of the AML/CTF Act) to disclose information obtained under a section 49 certificate (a mechanism to compel additional information under the AML/CTF Act).

516.    This item would insert new paragraph 50A(2)(c) to provide that the offence limiting disclosure of information would not apply where the entrusted investigating official discloses information to an IGIS official for the purposes of, or in connection with, the IGIS official performing a function or duty, or exercising a power, as an IGIS official.

517.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 28: After subsection 121(6)

518.    This item would insert new subsection 121(6A) into the AML/CTF Act. Section 121(1) prohibits an ‘AUSTRAC entrusted person’ from accessing, recording, disclosing or otherwise using AUSRAC information, other than in the situations provided by subsections 121(2) and (3).

519.    Subsections 121(5) and (6) provide offences for secondary dealings in AUSTRAC information, where a person has obtained AUSTRAC information under a lawful disclosure via subsections 121(2) and (3). Subsection 121(4) provides that the AUSTRAC CEO may impose conditions on how AUSTRAC may be secondarily dealt with.

520.    New subsection 121(6A) would provide that the limitations on secondary dealings in AUSTRAC information provided by subsections 121(5) and (6) would not apply where the entrusted investigating official discloses information to an IGIS official for the purposes of, or in connection with, the IGIS official performing a function or duty, or exercising a power, as an IGIS official.

521.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 29-30: before subsection 123(8B), subsection 123(8B)

522.    These items would amend section 123 of the AML/CTF Act (as amended).

523.    Section 123(1) would provide that a reporting entity must not disclose information about a ‘suspicious matter reporting obligation’, including information that could suggest that a matter had been reported to a person other than an AUSTRAC entrusted person.

524.    Item 29 would insert a heading in section 123 to signpost that section (8B) applies to IGIS officials.

525.    Item 30 would amend subsection 123(8B) (inserted by item 150 of Schedule 1) to provide that the IGIS exception applies to the prohibition under subsection 123(1). This reflects the restructuring and renumbering of section 123.

526.    The amendment would clarify that information and records can be shared with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. This is necessary to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

 

Item 31: after subsection 125(2)

527.    This item would insert new subsection 125(2A) after subsection 125(2). New section 125(2A) would provide that the Inspector-General and IGIS officials are taken to hold an authorisation under the AML/CTF Act.

528.    Section 125 AML/CTF Act (as amended) allows the AUSTRAC CEO to authorise specified Commonwealth, State or Territory agencies to access designated classes of AUSTRAC information. New subsection 125(2A) would provide that the Inspector-General and IGIS officials are deemed to hold an authorisation to access any AUSTRAC information (provided that it is for the purposes of performing the functions or exercising the powers of the IGIS), without access being conditional on the authorisation of the AUSTRAC CEO.

529.    As IGIS has oversight of AUSTRAC’s intelligence functions, AUSTRAC may be subject to an inquiry or investigation by IGIS officials. It is therefore appropriate that the Inspector-General and IGIS officials have access to information relevant to the IGIS’s functions, and that this access cannot be revoked by the agency head of the overseen agency.

Item 32: subsection 129(2)

530.    This item would repeal and replace subsection 129(2) of the AML/CTF Act (as amended). Subsection 129(1) creates an offence for the improper disclosure of AUSTRAC information.

531.    Existing subsection 129(2) provides an exception to the offence in subsection 129(1) where the disclosure is made to an ‘appropriate authority’ investigating the disclosure. New subsection 129(2) would provide that AUSTRAC information may be disclosed for the purposes of, or in connection with:

·          an appropriate authority investigating disclosure of AUSTRAC information, or

·          an IGIS official’s duties, functions or powers as an IGIS official.

532.    The item would also insert a note after subsection 129(2) noting that, due to subsection 13.3(3) of the Criminal Code, a defendant bears an evidential burden in relation to whether the disclosure was for the purposes of, or in connection with, an investigation by an appropriate authority, or an IGIS official’s duties, functions or powers.

Inspector-General of Intelligence and Security Act 1988

Items 33-34: Section 25A (note), at the end of section 25A

533.    Section 25A provides that where the IGIS completes the inspection of an intelligence agency under section 9A, it may report on the inspection to the head of the relevant agency or the responsible Minister.

534.    Item 33 would amend the note to section 25A by omitting “Note” and substituting “Note 1”. This amendment is consequential to the insertion of a second note to section 25A by item 34.

535.    Item 34 would insert a second note to section 25A to clarify that a copy of the report may also be given to the PJCIS under subsection 185D(3) or 185E(1) of the TIA Act.

536.    Subsections 185D(3) and 185E(1) of the TIA Act require a Minister, where they have been given a report by the IGIS under sections 22 or 25A of the IGIS Act and where the report relates to authorisations or warrants under that Act, to ensure a copy of the report is given to the PJCIS.

Part 2 - Amendments that are contingent on the ASIO Amendment Act

Division 1 - Amendments that commence before ASIO Amendment Act

537.    Items 35-36 would amend sections 9B and 19A of the IGIS Act, which outlines when the IGIS may enter places of detention. These amendments would commence immediately after commencement of Part 1 of Schedule 1 to the Bill. However, these amendments would not commence at all if Part 3 of Schedule 1 to the Australian Security Intelligence Organisation Amendment Act 2020 commences prior to Part 1 of Schedule 1 to this Bill.

Inspector-General of Intelligence and Security Act 1986

Item 35: Section 9B

538.    This item would repeal and replace section 9B. New section 9B allows the IGIS to, for the purposes of an inspection under section 9A, enter any place where a person is being detained under either Division 3 of Part III of the ASIO Act or sections 31 or 34D of the ACC Act (the relevant sections of that Act which allow detention).

539.    New section 9B reflects the expansion of the IGIS’s jurisdiction to include the ACIC. As the ACIC has the ability to detain persons under the ACC Act, it is appropriate that IGIS is able to oversee these facilities in a manner consistent with its oversight of other intelligence agencies with detention powers.

540.    The requirement for the IGIS to notify the Director-General of Security or the CEO of ACIC, as the case requires, prior to entering a place of detention is unchanged under new subsection 9B(2).

Item 36: Section 19A

541.    This item repeals and replaces section 19A. New section 19A would allow the IGIS to, for the purposes of an inquiry under the IGIS Act, enter any place, at any reasonable time, where a person is being detained under either Division 3 of Part III of the ASIO Act or under sections 31 and 34D of the ACC Act (the relevant sections of that Act which allow detention) provided that the IGIS has notified the Director-General of Security (for ASIO matters) or the CEO of ACIC (for ACC Act matters).

542.    New section 19A is a consequence of the IGIS’s expanded remit over the ACIC which has the power to detain persons under the ACC Act. The requirement to notify the Director-General of Security or the CEO of ACIC, as the case requires, remains unchanged with the new subsection.

Division 2 - Amendments that commence after ASIO Amendment Act

543.    Items 37-38 would amend the IGIS Act. These amendments would commence on the later of the commencement of Part 1 of Schedule 1 to the Bill or the commencement of Part 3 of Schedule 1 to the Australian Security Intelligence Organisation Amendment Act 2020 . However, the provisions do not commence at all if the Australian Security Intelligence Organisation Amendment Act 2020 does not commence.

Inspector-General of Intelligence and Security Act 1986

Item 37: Section 9B

544.    This item would repeal and replace section 9B. New section 9B allows the IGIS to, for the purposes of an inspection under section 9A, enter any place where a person is being questioned or apprehended under either Division 3 of Part III of the ASIO Act or detained  under sections 31 or 34D of the ACC Act.

545.    New section 9B reflects the expansion of the IGIS’s jurisdiction to include the ACIC. As the ACIC has the ability to detain persons under the ACC Act, it is appropriate that IGIS is able to oversee these facilities in a manner consistent with its oversight of other intelligence agencies with detention powers.

546.    The requirement for the IGIS to notify the Director-General of Security or the CEO of ACIC, as the case requires, prior to entering a place of detention is unchanged under new subsection 9B(2).

Item 38: Section 19A

547.    This item repeals and replaces section 19A. New section 19A would allow the IGIS to, for the purposes of an inquiry under the IGIS Act, enter any place, at any reasonable time, where a person is being questioned or apprehended under either Division 3 of Part III of the ASIO Act or detained under sections 31 and 34D of the ACC Act (the relevant sections of that Act which allow questioning and apprehension) provided that the IGIS has notified the Director-General of Security (for ASIO matters) or the CEO of ACIC (for ACC Act matters).

548.    New section 19A is a consequence of the IGIS’s expanded remit over the ACIC which has the power to detain persons under the ACC Act. The requirement to notify the Director-General of Security or the CEO of ACIC, as the case requires, remains unchanged with the new subsection.

Part 3 - Amendments that are contingent on the Surveillance Legislation Amendment (Identify and Disrupt) Act 2020

Division 1 - Amendments that commence if this Act commences first

549.    Schedule 2, Part 3, Division 1 would amend the IGIS Act to expand IGIS’s jurisdiction to cover the intelligence functions of the ACIC and AUSTRAC. It would also amend the Australian Human Rights Commission Act 1986 (AHRC Act), Australian Information Commissioner Act 2010 (Information Commissioner Act), IGIS Act, Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), Ombudsman Act, and the Privacy Act to support this expanded oversight by establishing greater information sharing and complaints transfer between Commonwealth integrity bodies. It would also amend the ACC Act to allow ACIC staff and statutory officers to disclose information to the IGIS, and the PID Act to grant the IGIS functions in relation to PIDs regarding the intelligence functions of the ACIC and AUSTRAC.

550.    These items are contingent on the items contained in Part 2 of Schedule 2 to the Surveillance Legislation Amendment (Identify and Disrupt) Act 2020 (SLAID Act). The SLAID Act would also expand IGIS’s jurisdiction to the Australian Federal Police (AFP) and the ACIC insofar as those agencies exercise functions or powers in relation to network activity warrants. It contains a number of similar amendments to support the IGIS’s expanded jurisdiction.

551.    Items 39-114 would commence immediately after commencement of the main amendments (contained in Part 1 of Schedule 1 of this Bill), so long as the SLAID Act has not commenced. These items do not commence at all if the SLAID Act has commenced.

Australian Crime Commission Act 2002

Item 39: subsection 51(4) (at the end of the definition of relevant Act )

552.    Section 51 contains secrecy offences that apply to ACIC staff and statutory officers. This item would amend section 51 to ensure that these secrecy offences do not preclude ACIC officials (the CEO, Board members, staff members and examiners) from disclosing information to the IGIS.

553.    Section 51 criminalises ACIC officials from disclosing information they obtained as a result of their duties under the ACIC Act, including to a court, unless they are permitted to disclose the information under a ‘relevant Act’.

554.    This item would add new paragraph (e) to the definition of ‘relevant Act’ in subsection (4). Subsection (4) currently provides that ACIC officials may disclose information under the LEIC Act, Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act), laws under which the ACIC performs functions and the ACC Act. New paragraph (e) would include the IGIS Act, or any other Act, or instrument made under an Act, that confers functions, duties or powers on the IGIS in the definition of relevant Act.

555.    This amendment is intended to ensure that the secrecy offences in section 51 would not stop a person from divulging information that is relevant to the IGIS’s powers, functions or duties. This is necessary to ensure that it is clear, on the face of agencies’ governing legislation, that ACIC officials can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions. The amendment aims to maximise certainty as to when ACIC officials are able to disclose information to the IGIS.

Items 40-43: after paragraph 59AA(1B)(f)

556.    Item 42 would insert new paragraph 59AA(1B)(fa) to provide that the ACIC CEO is able to disclose national policing information to the Inspector-General without seeking the approval of the ACIC Board.

557.    Section 59AA(1B) provides that the ACIC CEO must obtain the ACIC Board’s approval before they can release national policing information (noting that national policing information can only be released in accordance with policies or directions issued by the board, per subsection 59AA(1A)), unless they are disclosing it to an entity that is listed in paragraphs (a)-(g) of the subsection.

558.    New paragraph 59AA(1B)(fa) would specify the ACIC CEO can disclose national policing information to the IGIS without the approval of the ACIC Board. This amendment reflects the expansion of the IGIS’s oversight function to the intelligence functions of the ACIC, and would ensure that the IGIS is able to access the information required to fulfil its oversight functions.

559.    Items 40, 41, and 43 make technical amendments throughout section 59AA to update references to “entities” to include persons. This is necessary as the Inspector-General is a statutory appointee, and not an “entity”.

Australian Human Rights Commission Act 1986

Item 44: subsection 3(1)

560.    This item would amend subsection 3(1) by inserting new definitions of:

‘ACIC’ means the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.

‘examiner’ of ACIC means an examiner within the meaning of the Australian Crime Commission Act 2002.

‘IGIS official’ means:

(a)        the Inspector General of Intelligence and Security; or

(b)        any other person covered by subsection 32(1) of the Inspector General of Intelligence and Security Act 1986 .

Item 45: at the end of subsection 11(3)

561.    This item would add a note after subsection 11(3) to clarify the operation of the section with regard to the concurrent oversight from the AHRC and the IGIS in relation to the ACIC and AUSTRAC.

562.    Subsection 11(1) relevantly provides the functions of the AHRC include such functions as are conferred on the Commission by the Age Discrimination Act 2004 , the Disability Discrimination Act 1992 , the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 or any other enactment (paragraph 11(1)(a)), to inquire into, and attempt to conciliate, complaints of unlawful discrimination (paragraph 11(1)(aa)), and to inquire into any act or practice that may be inconsistent with or contrary to any human right; and attempt to effect a settlement to the matter (paragraph 11(1)(f)).

563.    Subsection 11(3) specifies that where a complaint relates to an AIC agency (ASIO, ASIS, ASD, AGO, DIO and ONI), the AHRC must not inquire into a matter and must transfer it to the IGIS.

564.    The Bill would create concurrent jurisdiction between the IGIS and the AHRC in relation to the ACIC and AUSTRAC. The IGIS would have jurisdiction in relation to agencies’ compliance with human rights and anti-discrimination law within their intelligence functions, while the AHRC would have oversight of the agencies’ compliance with these matters in all other functions. Due to this intersection, it is not appropriate to require the AHRC to automatically transfer all matters relating to these agencies to the IGIS.

565.    The note would highlight this overlap and note that IGIS and AHRC may transfer matters between each other and share information in relation to actions taken by any of these agencies as appropriate for their respective oversight responsibilities. This would clarify the interrelation between the AHRC Act and the IGIS Act, and how complaints relating to the ACIC and AUSTRAC may be managed by these integrity bodies.

Item 46: at the end of subsection 20(1)

566.    This item would add a note after subsection 20(1) to clarify that complaints are deemed to have been made to the AHRC where they have been transferred to the AHRC by the IGIS.

567.    Subsection 20(1) provides that the AHRC must inquire into any act or practice that may be inconsistent with or contrary to any human right; and attempt to effect a settlement to the matter (a function of the AHRC set out in paragraph 11(1)(f)) in response to

·          a direction from the Minister,

·          a complaint (made in writing), or

·          where the Commission determines it is desirable to do so.

568.    This item would insert a note after subsection (1) to note that, where the IGIS transfers a complaint to the AHRC (as it is able to do under new section 32AG, inserted by item 73 of Schedule 2), the transferred complaint is taken to have been made to the AHRC for the purposes of the AHRC’s functions. This streamlines the complaints process for complainants, as it removes the need to re-submit complaints to the AHRC.

Item 47: after subsection 20(4B)

569.    This item would insert new subsections 20(4C) and (4D). Section 20 deals with the AHRC’s performance of its functions relating to human rights. New subsections 20(4C) and (4D) would facilitate the transfer of a complaint from the AHRC to the IGIS.

570.    New paragraphs 20(4C)(a)-(b) would allow the AHRC to decide not to inquire into a complaint or part of a complaint about acts or practices of the ACIC (except for complaints about examiners), or AUSTRAC on the basis that the complaint could be more effectively or conveniently dealt with by the IGIS under the IGIS Act.

571.    Where the AHRC makes a decision not to inquire into a matter based on new paragraphs 20(4C)(a)-(b), they must consult the IGIS (per new paragraph 20(4C)(c)), and if the IGIS agrees to receive the complaint, transfer that complaint to the IGIS as soon as is reasonably practicable (per new paragraph 20(4C)(d)). Under subsection 20(4C)(f) the AHRC would have to give to the IGIS any information or documents that relate to the complaint, and are in the possession or under the control, of the AHRC.

572.    Finally, under new paragraph 20(4C)(e) the AHRC must also take reasonable steps to give the complainant written notification that the complaint has been transferred to the IGIS.

573.    These amendments are intended to assist with the management of the concurrent oversight responsibilities of the AHRC and the IGIS, by allowing matters to be transferred from the AHRC to the IGIS when it is appropriate to do so. Provisions in new Part IIIA of the IGIS Act (inserted by item 73 of Schedule 2) would allow the IGIS to transfer complaints to the AHRC.

574.    New subsection 20(4D) is intended to allow the AHRC and the IGIS to enter into a standing agreement relating to the transfer of cases, although such agreements cannot limit subsection 20(4C). Subsection 20(4D) is not intended to affect any existing standing arrangements between the AHRC and the IGIS.

Item 48: Subsection 46P(1) (note)

575.    This item would amend the note after subsection 46P(1) by omitting “Note” and substituting “Note 1”. This amendment is a consequence of item 49 of Schedule 1 inserting a second note after subsection 46P(1).

Item 49: at the end of subsection 46P(1)

576.    This item would insert a second note after subsection 46P(1). Section 46P(1) provides that a written complaint may be lodged with the AHRC for conciliation by the President of the AHRC.

577.    The proposed note would highlight that in addition to a person lodging a complaint under section 46P, a complaint may be deemed to have been lodged if transferred from IGIS under section 32AF of the IGIS Act (inserted by item 73 of Schedule 2). This note would clarify the means by which a complaint may come to the AHRC, noting that a transferred complaint has the same effect as a written notification directly to the AHRC.

Item 50: before section 47

578.    This item would insert section 46PZ. Subsection 46PZ(1) would allow the AHRC to determine whether certain complaints transferred by the IGIS under section 32AG of the IGIS Act (inserted by item 73 of Schedule 2), should be deemed to be

·          made as referred to in paragraph 20(1)(b) of the AHRC Act (for human rights complaints), or

·          lodged under section 46P of the AHRC Act (for unlawful discrimination complaints).

579.    Both types of complaint are subject to a different set of procedures, and a decision by the AHRC under section 46PZ would effectively determine which set of procedures to apply. It is intended that the AHRC would base its determination on which set of procedures is most appropriate to the specifics of each transferred matter.

580.    Subsection 46PZ(2) would provide that such a determination would be effective in deeming the provision to have been made or lodged. Subsection 46PZ(3) would provide that such a determination (under 46PZ(2)) would not be a legislative instrument, and as such would not be subject to disallowance under section 42 of the Legislation Act 2003 (Legislation Act) or sunsetting under section 50 of the Legislation Act. This characterisation is appropriate as these determinations would not meet the definition of legislative instrument in section 8 of the Legislation Act. Specifically, it would not meet subparagraph 8(4)(b)(i) as the declaration would be determining particular cases rather than determining the law or altering the contents of the law. As such subsection 46PZ(3) is declaratory of the law and intended to remove any ambiguity as to the status of a declaration made under subsection 46PZ(3).

581.    Overall, the new section is intended to facilitate the transfer between the IGIS and the AHRC, and to minimise disruption or administrative delay for complainants.

Items 51-52: subsection 49(4A) and after subsection 49(4B)

582.    These items would amend provisions in section 49 regulating the disclosure of private information by AHRC staff members, to ensure that this information can be disclosed to IGIS officials without penalty.

583.    Section 49 creates an offence for the inappropriate disclosure of private information by AHRC officials. Subsection 49(4A) provides that the offence in subsection 49(1) does not prevent the AHRC from giving information or documents in accordance with paragraph 20(4A)(e) (which allows the AHRC to give documents and information to the Information Commissioner when transferring complaints from the AHRC to the Information Commissioner).

584.    Item 51 would insert “or (4C)(f)” after “20(4A)(e)” in subsection 49(4A). This amendment reflects the insertion of new paragraph 20(4C)(f) by item 44. New subsection 20(4C)(f) is analogous to existing 20(4A)(e), the only difference being that it permits information and documents to be transferred to the IGIS where a complaint is transferred. It is appropriate that these provisions are treated in a like manner, to ensure that AHRC officials are not subject to penalties depending on which agency they transfer a complaint to.

585.    Item 52 would insert new subsection 49(4C). Subsection 49(4C) would provide that the offence in subsection 49(1) does not prevent the AHRC, or a person acting for or on behalf of the AHRC, from giving information or documents to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official. This would ensure that IGIS officials are able to access any information required to perform their duties, functions or powers as IGIS officials. This would include information that is relevant to the IGIS’s own-motion functions, not just complaints jurisdiction.

586.    A note at the end of subsection 49(4C) would highlight that a defendant (being the person who disclosed information to an IGIS official) bears an evidential burden in relation to a matter in subsection 49(4C), which refers to the action of subsection 13.3(3) of the Criminal Code . The effect of this provision is that, in a prosecution under section 49(1), the AHRC official would have to lead evidence that would point to the reasonable possibility that they gave the information or documents to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official. It is noted that, under new section 32AC of the IGIS Act (inserted by item 73 of Schedule 2), individuals who voluntarily provide information to the IGIS are immune from prosecution.

587.    It is intended that these items would ensure that the offence in subsection 49(1) would not stop the AHRC, or a person acting for or on behalf of the AHRC, from divulging information that is relevant to the IGIS’s powers, functions or duties. This supports the ability of the IGIS to perform its oversight functions by ensuring they are able to access relevant information.

Australian Information Commissioner Act 2010

Item 53: section 3

588.    This item would insert a new definition of IGIS official into section 3 of the Information Commissioner Act. This definition would give IGIS official the meaning given subsection 29(6) of that Act (which is inserted by item 55 of Schedule 2).

Item 54: after Paragraph 29(2)(c)

589.    This item would insert new paragraph 29(2)(d), which would provide a defence for disclosing information to an IGIS official.

590.    Subsection 29(1) of the Information Commissioner Act criminalises the recording or disclosing of information acquired by a person in the course of performing functions or exercising powers conferred for the purposes of an Information Commissioner function, a freedom of information function or a privacy function.

591.    Subsection 29(2) contains circumstances in which the offence in subsection 29(1) does not apply. New paragraph 29(2)(d) would provide that the offence does not apply when the record, use or disclosure relates to an IGIS official exercising a power, or performing a function or duty as an IGIS official. This item is intended to ensure that the secrecy offence in section 29 will not stop a person from divulging information to the IGIS where that information is relevant to the IGIS’s powers, functions or duties. This supports the ability of the IGIS to perform its oversight functions by ensuring they are able to access relevant information.

Item 5255 at the end of section 29

592.    This item would insert new subsection 29(6) to provide the definition for the defined term ‘IGIS official’ referred to in section 3 of the Act (inserted by item 53 of Schedule 2). The definition is included here rather than in section 3 as it is only relevant to section 29 of the Act. The definition provided by subsection 29(6) matches the definition of IGIS official inserted into a number of Acts by the Bill and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Inspector-General of Intelligence and Security Act 1986

Item 56: Subsection 3(1)

593.    This item would insert the following new definitions into subsection 3(1) of the IGIS Act:

‘ ACIC ’ means the agency known as the Australian Criminal Intelligence Commission established by the ACC Act .

 ‘ CEO of ACIC ’ means the Chief Executive Officer of ACIC.

Item 57: Subsection 3(1) (after paragraph (d) of the definition of head )

594.    This item would amend the definition of “head” (referring to agency heads) in subsection 3(1) of the IGIS Act to capture the heads of the new agencies subject to IGIS oversight. The definition would be amended to include

·          in relation to ACIC: the CEO of ACIC,

·          in relation to AUSTRAC: the AUSTRAC CEO.

595.    These definitions would be in addition to the existing definitions of ‘head’, which apply to AIC agencies (ASIO, ASIS, ASD, AGO, DIO and ONI).

Item 58: Subsection 3(1)

596.    This item would amend subsection 3(1) of the IGIS Act by inserting the following definitions:

‘ Information Commissioner ’ refers to section 3A of the Australian Information Commissioner Act 2010 , which contains a definition of Information Commissioner that applies in all Acts. The Information Commissioner means the person appointed under section 14 of that Act as the Australian Information Commissioner.

‘ Inspector-General ADF ’ means the Inspector General of the Australian Defence Force referred to in section 110B of the Defence Act 1903 (Defence Act).

‘ integrity body ’ means any of the following:

(a)     the Ombudsman;

(b)    the Australian Human Rights Commission

(c)     the Information Commissioner

(d)    the Integrity Commissioner

(e)     the Inspector-General ADF.

It is noted that this definition does not define ‘integrity body’ for purposes of dealing with complaints. For a complaint, integrity body has the meaning given by paragraph 11(4A)(a) (inserted by item 70 of Schedule 2)

‘ Integrity Commissioner ’ has the meaning given by section 5 of the LEIC Act. Section 5 of the LEIC Act provides that ‘Integrity Commissioner’ means the Integrity Commissioner appointed under section 175 of the LEIC Act.

Item 59: Subsection 3(1) (definition of intelligence agency )

597.    This item would amend subsection 3(1) by repealing the current definition of ‘intelligence agency’ and replacing it with an expanded definition capturing the ACIC and AUSTRAC. However, the IGIS’s jurisdiction over the ACIC and AUSTRAC must be read in conjunction with the definition of ‘intelligence function’ (inserted by item 60 of Schedule 2) and IGIS’s functions in relation to these agencies (outlined in section 8 of the IGIS Act, as amended by item 61 of Schedule 2).

Item 60: Subsection 3(1)

598.    This item would amend subsection 3(1) by inserting a new definition for intelligence function :

‘ intelligence function ’ means the collection, correlation, analysis, production, and dissemination:

(a)     for ACIC: of intelligence by ACIC for the purpose of performing its functions under section 7A of the ACC Act (except in relation to Indigenous violence or child abuse within the meaning of that Act); or

(b)    for AUSTRAC: of intelligence by AUSTRAC for the purposes of:

(i)                   the AUSTRAC CEO performing the CEO’s financial intelligence functions under the AML/CTF Act; or

(ii)                the AUSTRAC CEO, AUSTRAC or an official of AUSTRAC referred to in paragraph 209(4)(c) of that Act performing functions incidental to that function

599.    This definition reflects that the remit of IGIS would only extend to the intelligence-related activities of the ACIC and AUSTRAC. The definition is derived from the definition of ‘agency with an intelligence role or function’ in section 4 of the ONI Act, with four modifications to reflect IGIS’s role as an oversight body.

600.    The definition does not limit “intelligence function” to intelligence that relates to the “national intelligence priorities, requirements or capabilities”. This reflects the difference in the role of ONI as opposed to the IGIS. ONI’s leadership functions include coordinating the intelligence activities of the NIC agencies to meet Australia’s national intelligence priorities, requirements or capabilities. The IGIS’s role is to oversee the activities of agencies with intelligence functions and powers for legality, propriety, compliance with ministerial guidelines and directives, and respect for human rights . As such, IGIS’s oversight should not be limited to intelligence activities linked to particular purposes.

601.    Secondly, the Bill would not bring the entire Department of Defence within the IGIS’s oversight. Rather IGIS would continue to oversee AGO and DIO, which are those parts of the Department of Defence which have distinct intelligence functions.

602.    Thirdly, the ONI Act definition of ‘agency with an intelligence role or function’ contains a second limb in subsections (f)(i)-(ii) of that Act which captures agencies that maintain, develop, or are developing, a capability that materially assists with the collection, correlation, analysis, production or dissemination of intelligence. This second limb is not in this Bill’s definition of ‘intelligence function’. This reflects the nature of the IGIS’s functions in, amongst other things, overseeing the legality and propriety of agencies’ activities (including the use of coercive powers) which is different to ONI’s enterprise management, evaluation and coordination functions in relation to Australian intelligence agencies. It is not relevant to the IGIS that an agency simply has or is preparing a capability— it is the exercise of that capability to collect, correlate, analyse, produce or disseminate intelligence that engages the IGIS’s oversight.

603.    Finally, the ACIC is captured as a whole in the ONI Act definition, however in the Bill, only particular intelligence functions are included (see below).

Intelligence function as it relates to the ACIC

604.    In relation to the ACIC, the definition of ‘intelligence function’ excludes the collection, correlation, analysis, production, and dissemination of intelligence by the ACIC for matters relating to serious violence or child abuse committed against an Indigenous person.

605.    Indigenous violence and child abuse have been excluded from IGIS oversight as the IGIS is not the appropriate body to conduct oversight of these matters. Oversight of these matters would require specialist subject-matter expertise, including cultural competencies that the IGIS could not be expected to possess, or to obtain readily . These functions are overseen by the Office of the Commonwealth Ombudsman (the Ombudsman).

Intelligence function as it relates to AUSTRAC

606.    An ‘intelligence function’ in relation to AUSTRAC is defined as the collection, correlation, analysis, production, and dissemination of intelligence for the purposes of the AUSTRAC CEO’s financial intelligence functions under the AML/CTF Act. The definition covers financial intelligence functions performed by the AUSTRAC CEO, as well as AUSTRAC staff, consultants and persons whose services are made available to AUSTRAC (secondees), who are assisting the AUSTRAC CEO to perform these  functions.

607.    Section 210 of the AML/CTF Act provides that the functions of AUSTRAC are to assist the CEO in the performance of his or her functions under section 212. Subsection 212(1) of the AML/CTF Act states that the CEO’s functions are:

                     (a)  to retain, compile, analyse and disseminate eligible collected information or AUSTRAC information; and

                    (aa)  to provide access to, and to share, AUSTRAC information to support domestic and international efforts to combat money laundering and terrorism financing and other serious crimes; and

                     (b)  to provide advice and assistance, in relation to AUSTRAC information, to the persons and agencies who are entitled or authorised to access AUSTRAC information under Part 11; and

                     (c)  to advise and assist reporting entities in relation to their obligations under this Act, the regulations and the AML/CTF Rules; and

                     (d)  to advise and assist the representatives of reporting entities in relation to compliance by reporting entities with this Act, the regulations and the AML/CTF Rules; and

                   (da)  to facilitate gaining access on a timely basis to the financial, administrative and law enforcement information that the AUSTRAC CEO requires to properly undertake the AUSTRAC CEO’s financial intelligence functions; and

                     (e)  to promote compliance with this Act, the regulations and the AML/CTF Rules; and

                      (f)  such other functions as are conferred on the AUSTRAC CEO by or under:

                              (i)  this Act; or

                             (ii)  the regulations; or

                            (iii)  any other law of the Commonwealth; and

                     (g)  to do anything that is incidental or conducive to the performance of a function referred to in a preceding paragraph.

 

                    Note:          The AUSTRAC CEO’s other functions include:

                                       (a)    monitoring compliance with this Act, the regulations and the AML/CTF Rules (see section 190); and

                                       (b)    making AML/CTF Rules (see section 229).

608.    The intention is for the definition of ‘intelligence function’ in relation to AUSTRAC to cover that agency’s actions in supporting the CEO to perform only his or her functions under section 212 of the AML/CTF Act, to the extent that they involve intelligence. It is not intended for the definition to cover the agency’s actions in supporting the CEO to perform his or her regulatory functions.

609.    The reference to “functions incidental” in the definition of intelligence function in relation to AUSTRAC is not intended to include AUSTRAC’s regulatory functions, such as the supervision of regulated businesses’ compliance with the AML/CTF Act. For example, the AML/CTF Act imposes transaction and suspicious matter reporting obligations on regulated businesses. AUSTRAC engages with industry in meeting these obligations, and may take enforcement action to ensure that regulated businesses are complying with their reporting obligations. This supervision and engagement as part of AUSTRAC’s regulatory function will not generally be ‘incidental’ to its financial intelligence function, even though the transaction and suspicious matter reports form the basis, or the ‘raw material’ for, AUSTRAC’s financial intelligence function.

Item 61: After subsection 8(3)

610.    This item would insert:

·          a new subheading ‘Intelligence agency inquiry functions in relation to ACIC and AUSTRAC after subsection 8(3) referring to new subsections 8(3A) and 8(3B)

·          new subsections 8(3A) and 8(3B)

·          a new subheading after paragraph 8(3B) ‘Intelligence agency inquiry functions in relation to complaints about employment, contracts and related matters’ referring to subsections 8(5)-8(8A).

611.    New subsection 8(3A) sets out the inquiry functions of the IGIS in relation to intelligence functions of the ACIC and AUSTRAC, while subsection (3B) sets out matters that are outside of IGIS jurisdiction.

612.    The new headings are intended to improve the accessibility of the IGIS Act by providing guidance as to the different parts of section 8. As existing section 8 is a lengthy provision, this amendment would clarify the structure of the section.

Subsection 8(3A)

613.    New subsection 8(3A) sets out the IGIS’s inquiry functions in relation to the intelligence functions of the ACIC and AUSTRAC.

614.    These provisions are modelled on the existing and amended provisions in subsection 8(3) (as amended by item 18 of Schedule 1) that outline the IGIS’s functions in relation to ONI and DIO, but with amendments to reflect that the ACIC and AUSTRAC have functions outside their intelligence functions, and, in the case of the ACIC, a different governance structure. The main divergence from other subsections in section 8 is specification that the IGIS would only have functions ‘to the extent that the matter relates to an intelligence function of the agency’. This caveat is intended to reflect that IGIS oversight does not extend to the parts of the agencies that are unrelated to these agencies’ intelligence functions (as defined by item 60 of Schedule 2).

615.    New paragraphs 8(3A)(d)-(g) provide that the IGIS may inquire into:

·          the ACIC and AUSTRAC’s compliance with Commonwealth, State and Territory laws;

·          the ACIC and AUSTRAC’s compliance by that agency with directions or guidelines given to that agency by the responsible Minister;

·          propriety of particular activities by the ACIC and AUSTRAC, and the

·          effectiveness and appropriateness of the procedures relating to the legality or propriety of the activities the ACIC and AUSTRAC,

provided that the IGIS’s inquiry relates to an intelligence function of the agency.

616.    New paragraph 8(3A)(h) provides that a function of the IGIS, in relation to the intelligence functions of the ACIC and AUSTRAC, is to inquire into a matter referred to the IGIS by the AHRC, provided that the matters relates to an intelligence function of the agency. These matters must also relate to an act or practice of the agency which may be inconsistent with a human right, constitute discrimination, or be unlawful under Australian anti-discrimination legislation.

617.    New paragraph 8(3A)(i) provides that a function of the IGIS in relation to ACIC is to inquire into its compliance with directions, guidelines, policies or decisions made by the board of the ACIC or the Inter-Governmental Committee established under the ACC Act. This extension reflects that under the governance structure of ACIC, the board and Inter-Governmental Committee can direct the agency in a similar manner to both the CEO of ACIC and the responsible Minister. This paragraph is necessary to ensure that there is not an arbitrary limit on the IGIS’s jurisdiction based on the origin of directions, guidelines, policies or decisions.

618.    Inquiries into any of the matters in subsection 8(3A) may be commenced in response to a request by the Attorney-General or relevant Minister (being the Minister responsible for the ACIC or AUSTRAC), by the IGIS’s own motion, or in response to a complaint made to the IGIS by an Australian citizen or permanent resident (within the meaning of the IS Act) (as outlined in new paragraphs 8(3A)(a)-(c)). This is consistent with how inquiries may be commenced in relation to agencies currently within IGIS’s jurisdiction (noting that there is a slightly different complaints jurisdiction in relation to ASIO).

619.    The complaints jurisdiction is aligned with the IGIS’s complaints jurisdiction in relation to DIO and ONI. It is noted that the IGIS retains the ability to commence an own-motion inquiry into a matter which was the subject of a complaint from a non-citizen or non-permanent resident, which ensures that there is no gap in oversight.

Subsection 8(3B)

620.    Subsection 8(3B) excludes the actions taken by an ACIC examiner performing functions or exercising powers as an examiner, such as an examination, under the ACC Act, from IGIS oversight. This is appropriate, as the IGIS has limited jurisdiction over matters that could be heard in a court or tribunal (sections 9AA and 11(3)-(4) of the IGIS Act). The conduct of ACIC examiners may be reviewed by the Ombudsman, the Law Enforcement Integrity Commissioner, and ultimately, a court of law. As such, it is not necessary for the IGIS to oversee these aspects of the ACIC’s activities.

Item 62: Subsection 8(5)

621.    This item would amend subsection 8(5) to omit “and (3)” and substitute “, (3) and (3A)”. This item is consequential to the proposed insertion of subsection 8(3A) by item 61 of Schedule 2.

Item 63: Subsection 8(5)

622.    Subsection 8(5) provides that the IGIS’s jurisdiction does not include complaints regarding promotion, termination, discipline, remuneration or any other matter relating to intelligence agencies’ employment of individuals in relation to AGO, ASD, DIO and ONI.

623.    This item would amend subsection 8(5) to include the ACIC and AUSTRAC. It would also update the reference to ONI to provide that the IGIS does not have jurisdiction to consider employment complaints from ONI staff employed under the Public Service Act. This clarification is necessary due to the expansion of IGIS’s employment jurisdiction in relation to ONI staff employed under the ONI Act as a result of items 21-23 of Schedule 1.

624.    This exclusion is consistent with the existing treatment of those agencies currently overseen by the IGIS whose staff are engaged under the Public Service Act. This exclusion is appropriate because these employees are able to avail themselves of other avenues to address employment concerns (including the Fair Work Ombudsman), and as such, it is unnecessary for the IGIS to provide an additional layer of oversight to these matters.

Item 64: Paragraph 8A(1)(b)

625.    This item would amend paragraph 8A(1)(b) by inserting “(within the meaning of this Act)” after “intelligence agency”. This amendment is intended to modernise and improve the clarity of paragraph 8A(1)(b) by clarifying that the reference to “intelligence agency” in this paragraph refers to the agencies defined in this Act, and not, for example, to foreign intelligence agencies.

Item 65: Paragraph 9AA(b)

626.    This item would omit “and 8(2)(a)(ii) and paragraph 8(1)(d)” from paragraph 9AA(b) and substitute “, 8(2)(a)(ii) and 8(3)(a)(ii) and paragraphs 8(1)(d) and (3A)(b)”. This item is consequential to the amendment to subparagraph 8(3)(a)(ii) (item 18 of Schedule 1), and the insertion of paragraph 8(3A)(e) (item 61 of Schedule 2).

627.    Paragraph 9AA(b) prohibits the IGIS from inquiring into actions taken by a Minister, except to the extent necessary for the IGIS to perform the functions referred to in subparagraphs 8(1)(a)(ii), 8(2)(a)(ii) and 8(3)(a)(ii), and paragraphs 8(1)(d) and 8(3A)(e). The specified subparagraphs each relate to circumstances where the IGIS can inquire into whether the relevant agency has complied with directions and guidelines provided by the Minister. Each of these inquiries would necessarily involve the IGIS considering the actions of the Minister.

628.    Subparagraph 8(3)(a)(ii) and paragraph 8(3A)(e) relate to IGIS inquiries into compliance with Ministerial guidelines or directions by DIO, ONI, ACIC and AUSTRAC. It is appropriate, and consistent with oversight arrangements for other intelligence agencies, that the general prohibition in paragraph 9AA(b) is extended to these agencies.

Item 66: After paragraph 9AA(b)

629.    This item would insert new paragraph (ba) after paragraph 9AA(b). The effect of this item is to limit the IGIS’s ability to inquire into the actions taken by the Board of the ACIC or the Inter-Governmental Committee established by the ACC Act, except where necessary to perform functions of the IGIS referred to in paragraph 8(3A)(i) (inserted by item 61 of Schedule 2).

630.    This prohibition is similar to existing paragraph 9AA(b), which limits the IGIS’s ability to inquire into actions taken by Ministers. This provision takes into account that the roles of the ACIC Board and the Inter-Governmental Committee are analogous to the role played by the Minister. For example, under subsections 46A(6) and 59AA(1A) ACC Act, the ACIC CEO is required to act in accordance with any policy determined or directions given by the Board in relation to certain decision.

631.    Given the similarities in these roles, it is appropriate that Board and Inter-Governmental Committee actions are excluded from IGIS oversight to the same extent as Ministerial actions. 

Item 67: Section 9A

632.    This item would amend section 9A by inserting “(1)” before “The functions”. This item is consequential to the insertion of an additional subsection into section 9A by item 68 of this Schedule.

Item 68: At the end of section 9A

633.    This item would amend section 9A by inserting new subsection (2). New subsection (2) clarifies that when conducting an inspection 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

·          the ability to examine, make copies or take extracts from any information or documents.

634.    Paragraphs 9A(2)(a) and (b) provide concessions in relation to ASIS, insofar as the IGIS or a member of staff assisting the IGIS does not have the right to enter into premises occupied in another country by ASIS unless the Director-General of ASIS and the IGIS have made arrangements relating to entry. 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.

Item 69: At the end of subsection 10(1)

635.    This item would insert two notes at the end of subsection (1) to highlight other relevant parts of the IGIS Act.

636.    Note 1 would advise that, under new section 32AH (inserted by item 73 of Schedule  2), a complaint that has been transferred to the IGIS by another integrity body is taken to be a complaint made directly to the IGIS. This provision makes clear that the protections for IGIS complaints also apply to complainants in transferred matters.

637.    Note 2 would direct the reader to the new Part IIIA of the Act (inserted by item 73 of Schedule 2). This is intended to signpost that, alongside the IGIS’s ability to receive complaints under sections 10 and 32AH of the IGIS Act, the IGIS is required to consider their overarching duty avoid duplication with other agencies (the principles of which are set out in new Part IIIA).

Item 70: After subsection 11(4)

638.    This item would amend section 11 by inserting new subsection 11(4A) after subsection 11(4). Subsection 11(4A) would allow the IGIS to decide not to consider (or consider further) a complaint where it considers that the complaint could be more effectively or conveniently dealt with by another integrity body, specifically:

·          the Ombudsman

·          the AHRC (for human rights complaints under Division 3 of Part II of the AHRC Act, or unlawful discrimination complaints under Part IIB of the AHRC Act)

·          the Information Commissioner (for complaints or investigations about acts or practices that may be an interference with the privacy of an individual under Part V of the Privacy Act)

·          the Integrity Commissioner; or

·          the Inspector-General ADF.

639.    The IGIS must also consider whether a complaint has, or could have, been made to the other integrity body.

640.    This provision reflects that multiple integrity bodies have oversight jurisdiction in relation to the ACIC and AUSTRAC, and as such, it is likely that complaints to the IGIS may be more appropriately dealt with by another integrity body. This will most obviously arise in situations where a complaint is made to the IGIS about a non-intelligence function of these agencies, or in relation to a matter which is specifically excluded from IGIS oversight under subsection 8(3B) (inserted by item 61 of Schedule 2). The provision is intended to reduce duplication of oversight by integrity bodies and ensure that complaints are directed to the most appropriate integrity body.

641.    This item would also insert a note at the end of subsection (4A) to draw readers’ attention to section 32AG (inserted by item 73 of Schedule 2), which would allow the IGIS to transfer complaints, or parts of complaints, to another integrity body.

642.    This item would also amend section 11 by inserting a new subheading ‘Inquiries into complaints about employment, contracts and related matters’ before subsection 11(5). This heading would clarify the structure of the section.

Item 71: Paragraph 15(3)(a)

643.    This item would amend paragraph 15(3)(a) by inserting “, ACIC, AUSTRAC,” after “ASD”, wherever it occurs in the paragraph.

644.    Subsection 15(3) requires IGIS to notify the Minister responsible for an agency where its inquiry relates to the head of an intelligence agency, and not to notify the agency head. This is to ensure that an IGIS inquiry is performed without interference, and with appropriate discretion. The amendment is consequential to the expansion of the IGIS’s oversight powers to the intelligence functions of ACIC and AUSTRAC, and treats these agencies in the same manner as AIC agencies.

Item 72: Paragraph 21(1B)(a)

645.    This item would insert “, ACIC, AUSTRAC” after “ASD”, wherever it occurs in paragraph 21(1B)(a). This amendment reflects the expanded remit of the IGIS in relation to the oversight of the ACIC and AUSTRAC.

646.    Under existing subsection 21(1B), where the IGIS does not give a draft report to the head of an agency, on the basis that the conclusions and recommendations of the report relate directly to the head of the agency, the IGIS must give the draft report to the responsible Minister for that agency (or the Secretary of the Department of Defence, in relation to AGO and DIO).

647.    The amendment would ensure that where the report relates to the head of the ACIC or AUSTRAC, the IGIS must provide the report to the responsible Minister for the relevant agency. The amendment is not intended to change existing law, as each of those agencies would otherwise be subject to paragraph 21(1B)(c) which provides that where the IGIS prepares reports about the head of a Commonwealth agency, it must provide the draft report to the responsible Minister.

Item 73: After Part III

Part IIIA—Relationships with other agencies and information sharing

648.    This item would insert new Part IIIA after Part III. Part IIIA would contain sections 32AB-32AH which are intended to 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.

Division 1—Avoiding duplication of oversight

649.    Division 1 of Part IIIA relates to avoiding duplication of oversight by integrity bodies. It contains section 32AB.

Section 32AB -Avoiding duplication of oversight

650.    Subsection 32AB(1) would require the IGIS to have regard to the functions of other integrity bodies and the Auditor-General to avoid duplication in oversight.

651.    This section is based on existing section 16 of the IGIS Act (which would be repealed by item 46 of Schedule1), which requires the IGIS to consider the Auditor-General and the Ombudsman’s functions before commencing an inquiry. New section 32AB is broader than former section 16 to reflect the expanded range of integrity bodies whose jurisdictions may overlap with the IGIS’s as a result of the IGIS’s new jurisdiction over the intelligence functions of the ACIC and AUSTRAC.

652.    Subsection 32AB(2) would allow the IGIS to consult integrity bodies or the Auditor-General in relation to a matter. This section stands alongside new section 32AF (inserted by item 73 of Schedule 2) which provides that the IGIS has a general function to share information with integrity bodies as part of its functions. Further to this requirement, under subsection 11(4A) (inserted by item 70 of Schedule 2) the IGIS may decide not to inquire, or not to inquire further into, a complaint or part of a complaint where the complaint has, or could have been, made to another integrity body and that integrity body could deal with the complaint more effectively than the IGIS. It is appropriate in these cases for the IGIS to be able to discuss the matter with other relevant integrity bodies to facilitate transferring a complaint (under section 32AG).

653.    Section 32AB would place a general obligation on the IGIS and is not intended to require the IGIS to undertake formal consultation with the Auditor-General and each integrity body before each discrete activity. For example, in determining its overall priorities and annual inspection plans, the IGIS ought to consider other integrity bodies and their remits. By contrast, the IGIS is not required to consider the functions of each integrity body before commencing a discrete preliminary inquiry (under section 14 of the IGIS Act). This is because, in many cases, some activity by the IGIS is required to determine whether they are authorised to, and should, inquire into an action. As such, it will often not be possible to determine whether or not a matter falls within the functions of another integrity body until after a preliminary inquiry has been undertaken, and requiring consultation ahead of every instance would be administratively burdensome.

Division 2 of Part IIIA—Sharing information with the Inspector-General

654.    Division 2 of Part IIIA would contain provisions relating to the sharing of information with the IGIS. It contains sections 32AC, 32AD and 32AE.

Subsection 32AC—Protection for persons providing information voluntarily to the Inspector-General

655.    Subsection 32AC(1) outlines that the section would provide certain protections to people who voluntarily provide, or make available, information or documents to the IGIS for the purposes of the IGIS performing its inspection function (under section 9A), complaints functions (under Division 2 of Part II) or inquiry functions (under Division 3 of Part II, or section 14 for preliminary inquiries).

656.    This section would ensure that all persons who cooperate with the IGIS are treated equally, irrespective of the technical legal basis upon which they are doing so (see the protections afforded to people who are compelled to assist the IGIS under section 18, as amended by items 61-76 of Schedule 1).

657.    Subsection 32AC(2) provides an immunity from prosecution under any Commonwealth law where a person provides or makes available information or documents to the IGIS where the IGIS performs its functions (inspections, complaints, preliminary inquiries, and inquiries). This immunity is subject to subsections 32AC(5) and (6), which would allow an individual to be prosecuted in circumstances where they have provided false or misleading information or documents, forged documents to the IGIS, or have obstructed the IGIS in performing its functions (and other circumstances discussed below).

658.    Subsection 32AC(3) provides a use immunity where an individual voluntarily provides information or documents to the IGIS, or where a person voluntarily appears before the IGIS to answer questions. Under this subsection, these documents and information are not admissible in evidence against the person in any court or in any proceedings before a person authorised to hear evidence. This immunity is subject to subsection 32AC(5), which would allow an individual to be prosecuted in circumstances where they have provided false or misleading information or documents, forged documents to the IGIS or have obstructed the IGIS in performing its functions (and other circumstances discussed below).

659.    Subsection 32AC(4) preserves legal professional privilege over documents or information, even where the information or documents are provided voluntarily.

660.    Subsection 32AC(5) outlines the exceptions to the immunity from prosecution conferred by subsection 32AC(2) and the use immunity in subsection 32AC(3). These immunities do not apply in relation to proceedings for:

·          providing false or misleading information to the IGIS (section 137.1 of the Criminal Code),

·          providing false or misleading documents to the IGIS (section 137.2 of the Criminal Code),

·          using or providing forged documents in IGIS proceedings (section 145.1 of the Criminal Code), or

·          obstructing an IGIS official in the performance of their functions (section 149.1 of the Criminal Code), or

·          giving false testimony, fabricating evidence, destroying evidence, intimidation of witnesses, corruption of witnesses, deceiving witnesses, preventing witnesses from attending court (and any other offences relating to evidence and witnesses under Division 3 of Part III of the Crimes Act)

661.    Paragraph 32AC(5)(c) also provides that the immunities in subsections 32AC(2) and (3) do not apply in relation to prosecutions for:

·          being an accessory after the fact, to any of the offences listed in section 32AC(a) and (b) (listed above) per section 6 of the Crimes Act, or

·          attempting to commit any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.1 of the Criminal Code, or

·          inciting the commission of any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.4 of the Criminal Code, or

·          conspiring with another person to commit any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.5 of the Criminal Code.

662.    However, these offences are only applicable “to the extent that the offence relates to this Act”. The use of the word ‘relate’ is intended to ensure that any documents, information or answers provided by a person to the IGIS, which provided evidence that the person committed an offence against a section of the Criminal Code or Crimes Act referenced in paragraphs 32AC(5)(a)-(c), could not be used as evidence in prosecution against the person if the offence committed was unrelated to the provision of documents or information to the IGIS.

663.    Subsection 32AC(6) states that the exemption in subsection 32AC(2) does not apply where a new offence, created after the amendments have passed, states that the exemption does not apply. This section is necessary to ensure the specific offences contained in subsection 32AC(5) can be extended should the need arise. This protection is directly analogous to section 24 of the PID Act.

664.    The item would also insert a note to subsection 32AC(6), to advise that the whole of section 32AC applies subject to section 90 of the LEIC Act (see items 81-82 of Schedule 2), which creates an offence for individuals who disclose ‘hearing materials’ (defined in that Act) that the Integrity Commissioner has specifically directed cannot be voluntarily disclosed to the IGIS. This would mean that an individual who voluntarily provides this confidential hearing material to the IGIS is not protected by section 32AC.

Section 32AD—Security of Commonwealth agency information and documents

665.    Section 32AD consolidates and expands the protection of Commonwealth documents or information with security classifications, formerly contained in section 20 (removed by item 79 of Schedule 1).

666.    The former provision provided that where the IGIS required access to documents with a protective or national security classification that were in the possession of a Commonwealth agency, the IGIS was required to make arrangements with the head of the relevant agency for the protection of those documents while they were in the IGIS’s possession.

667.    Section 32AD expands this section to apply to documents, as well as information obtained. Given the broad types of information which may be subject to classification, and provided to the IGIS in the course of its inspections or inquiries, it is appropriate that the types of materials are expanded to ensure they are appropriately protected while they are within the IGIS’s possession.

668.    Paragraph 32AD(1)(a) specifies the types of activities under which the IGIS may require access to information of documents (inspections, preliminary inquiries and inquiries).

669.    Subsection 32AD(2) requires that where the IGIS intends to remove classified documents from an agency, to copy or extract from classified documents or information, or to examine or otherwise make use of the documents or information (these actions are stipulated by new subsection 32AD(1)(c)), the IGIS must make arrangements to protect the documents or information from unauthorised disclosure. New subsection 32AD(2) notes that, in order to prevent unauthorised disclosures, the IGIS must take into account any advice provided by the head of the relevant agency.

670.    It is important to note for the avoidance of doubt, that arrangements made under subsection 32AD(2) do not override the obligations of agency heads and staff under section 9A (as amended by items 67-68 of Schedule 2) in relation to inspections (specifically, the duty to provide full and free access to any information, documents or other property of an agency) or obligations of members of agencies to provide information under a notice issued under section 18.

671.    Additionally, it is intended that the requirement to make protective arrangements does not override obligations under the PSPF . For example, the provision would not confer authority to make arrangements that are inconsistent with the requirements of the PSPF, or to withhold agreement to an arrangement that is consistent with the requirements of the PSPF.

Section 32AE—Authorisation for the purposes of the Privacy Act 1988

672.    Section 32AE contains an authorisation for the purposes of the Privacy Act. This is necessary as the AUSTRAC is subject to the Privacy Act, and as such, requires this section to enliven the exception to the prohibition on secondary use of personal information in Australian Privacy Principle 2.6.

673.    The effect of this section is that, for the purposes of the Privacy Act, a person is authorised to give or make available personal information (within the meaning of the Privacy Act) to an IGIS official, for the purpose of the official performing a function or exercising a power as an IGIS official.

674.    The section explicitly applies in relation to a service provider under section 187LA of the TIA Act. Section 187LA provides that information or documents kept by a service provider in complying with Part 5-1A of the TIA Act are ‘personal information’ within the meaning of the Privacy Act. This means that the Privacy Act and the Australian Privacy Principles apply to the data retention activities of all service providers, including operators that would otherwise be exempt from the Privacy Act. Specifically including this section allows these service providers, and their employees, to provide information to the IGIS without breaching the Privacy Act.

675.    This provision is equivalent to the authorisation provision in subsections 7A(1D) (preliminary inquiries) and 8(2D) (investigations) of the Ombudsman Act.

Division 3 of Part IIIA - Sharing information by the Inspector-General - Overview

676.    Division 3 of Part IIIA would establish arrangements for the IGIS to transfer complaints and information to other integrity bodies, as well as to receive complaints transferred to it. It contains sections 32AF, 32AG and 32AH.

Section 32AF - Information sharing with integrity bodies

677.    Section 32AF would allow the IGIS to share information or documents with other integrity bodies. This is necessary to manage concurrent jurisdiction between the IGIS and other integrity bodies that have oversight over the ACIC and AUSTRAC.

678.    It is intended that the provision would 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. For example, in relation to AUSTRAC where both the IGIS and Ombudsman could have jurisdiction over a matter, allowing the IGIS to share contextual information with the Ombudsman could assist that body to determine that the IGIS is the appropriate oversight agency. Sharing information to avoid duplication reduces administrative burdens on both overseen agencies and integrity bodies.

679.    The provision would also support cooperation and coordination across integrity bodies, by allowing the IGIS to share information about its investigative processes and methodologies, as well as trends the IGIS has have identified through its oversight.

680.    It is also intended that this provision would support the IGIS to manage concurrent jurisdiction that may arise in relation to Commonwealth agencies other than intelligence agencies, if the IGIS is directed by the Prime Minister to inquire into an intelligence or a security matter relating to one or more of those agencies under section 9 of the IGIS Act.

681.    The IGIS’s information sharing function would be subject to the following safeguards to protect against the disclosure of sensitive information. Firstly, the IGIS may only share information it has obtained by exercising its duties, functions or powers (as an IGIS official). Secondly, the IGIS may only share information that is relevant to the receiving agency’s functions. Finally, the IGIS must be satisfied, on reasonable grounds, that the receiving agency has appropriate arrangements in place to protect the shared information.

682.    New subsection 32AF(3) further provides that the Inspector-General may enter into administrative arrangements with the head of an intelligence agency for the purposes of protecting information. This provision does not create an obligation or requirement for the IGIS to do so.

683.    The IGIS, like all agencies, is bound by the PSPF, as well as the offences that govern the unauthorised sharing of classified information in the Criminal Code. Additionally, section 34 of the IGIS Act provides that the IGIS may only disclose information in the performance of legislated functions, powers or duties. Improper disclosure of information by an IGIS official is a criminal offence, punishable by 2 years imprisonment, a fine of 50 penalty units, or both. These provisions provide a substantial protection mechanism against improper disclosure.

Section 32AG - Complaints transferred to other integrity bodies

684.     New section 32AG would provide that where the IGIS decides not to investigate a complaint on the basis that it could be more effectively or conveniently dealt with by another integrity body (under new subsection 11(4A)), the IGIS may transfer all, or part, of that complaint to that integrity body.

685.    Currently, the IGIS does not have any capacity to transfer complaints to other integrity bodies. This creates additional administration for both integrity bodies and complainants where complaints must be re-made to the appropriate integrity body. The complaints transfer scheme is intended to assist complainants, by removing the need for them to re-submit their complaints to other integrity body. Complaints-transfer provisions are common within the legislation of integrity bodies (including the AHRC Act, Privacy Act, Ombudsman Act and Defence Act), and support cooperation between integrity bodies.

686.    This item would also insert a note following section 32AG, to draw readers’ attention to the corresponding ‘deeming provisions’ in the governing legislation of the integrity body to which the IGIS transfers a complaint. These deeming provisions state that a complaint that is transferred by the IGIS to another integrity body is taken to be a complaint made to that body for the purposes of its governing legislation. This note signposts where the IGIS Act interacts with other integrity bodies’ primary legislation and is intended to assist with interpreting the Act.

687.    The proposed note does not include a specific reference to the IGADF. Under section 110C of the Defence Act, the IGADF is able to do anything incidental or conducive to the performance of its functions. The functions of the IGADF include to “inquire into or investigate matters concerning the military justice system” as well as any functions conferred on the IGADF by the Defence Act, other Commonwealth laws, or regulations. Relevantly, the Inspector-General of the Australian Defence Force Regulation 2016 allows the IGADF to consider complaints in particular circumstances . These provisions, read together, clearly allow the IGADF to receive transferred complaints. As such, it was not necessary to draft a specific deeming provision in the Defence Act, and the IGADF was not included in the note. This should not be read to infer that the IGIS cannot transfer complaints to the IGADF.

Section 32AH - Complaints transferred by integrity bodies

688.    Section 32AH would provide that where an integrity body has transferred a complaint to the IGIS, that complaint is deemed to have been made to the IGIS under the IGIS Act. This will ensure that the complainant does not need to re-submit the original complaint to the IGIS, and that the IGIS has a legal basis to handle transferred complaints. It also ensures that the complainant is protected under the IGIS Act for any disclosure of information.

689.    The item would also insert a note following new section 32AH, to draw readers’ attention to the provisions in other integrity bodies’ legislation that permits the transfer of complaints to the IGIS. This note would signpost where the IGIS Act interacts with other integrity bodies’ primary legislation and is intended to assist with interpreting the Act.

690.     It is noted that there is no ‘transfer provision’ in the LEIC Act. This is due to the broad information-sharing powers available to the Integrity Commissioner under which complaints may be transferred to another integrity body. However, as these powers are not specific to transferring complaints, they have not been listed in the note to section 32AH. The absence of a reference to the LEIC Act here should not be read to not infer that the IGIS may not receive complaints transferred to it by ACLEI.

Item 74: At the end of subsection 32A(1)

691.    This item would insert new paragraphs 32A(1)(e) and (f). Section 32A(2) allows the IGIS to request intelligence agencies’ reports. Subsection 32A(1) provides that the IGIS may request access to annual or periodic reports prepared by intelligence agencies and provided to Ministers or the Secretary of the Department of Defence (depending on the specific intelligence agency).

692.    New paragraph 32A(1)(e) would extend the powers in subsection 32A(2) to cover documents which relate to ACIC and AUSTRAC. These documents would include those issued by ACIC or AUSTRAC under section 46 of the Public Governance, Performance and Accountability Act 2013 , and any other report that the IGIS believes relates to one of these agencies’ intelligence functions, provided that such a report is prepared on a periodic basis and is given to the responsible Minister.

693.    New paragraph 32A(1)(f) applies specifically to the ACIC. It would allow the IGIS to request copies of a report that relates to the ACIC’s intelligence function that is provided to the Board of the ACIC or the Inter-Governmental Committee (so long as that report was prepared by the ACIC CEO or the Chair of the Board). This provision reflects the organisational structure of ACIC, and that there may be reports that are provided to the Board or Inter-Governmental Committee rather than the Minister. As the Board and Inter-Governmental Committee serve analogous roles to that of a Minister, it is appropriate that the IGIS is able to access reports to these entities.

694.    This item is necessary to give effect to the IGIS’s expanded jurisdiction over the ACIC and AUSTRAC by ensuring it can access all information necessary to provide robust and comprehensive intelligence oversight.

Item 75: After paragraph 32A(5)(a)

695.     Subsection 32A(5) provides that where an intelligence agency has not yet provided a copy of a report to the responsible Minister or Secretary (whichever the report is directed to), they are not required to provide it to the IGIS until they have provided a copy to the responsible Minister or Secretary. This subsection applies, even where the IGIS has made a request under subsections 32A(2) and 32A(4).

696.    This item would insert a paragraph 32A(5)(aa) to include the ACIC and AUSTRAC in the subsection. This would operate in the same manner as existing paragraph 32A(5)(a) (which applies to ASIO, ASIS, ASD and ONI’s reports to Ministers). The provision would ensure that where the IGIS has requested a report from the ACIC or AUSTRAC, and that report has not yet been provided to the Minister, the agency does not need to provide a copy to the IGIS until it has been provided to the Minister.

697.    This item is necessary to give effect to the IGIS’s expanded jurisdiction over the ACIC and AUSTRAC by ensuring it can access all information necessary to provide robust and comprehensive intelligence oversight.

Item 76: At the end of section 32A

698.    This item would insert subsection 32A(6), which would deal specifically with ACIC reports to the Board or Inter-Governmental Committee. It would provide that where the IGIS requests a report from the ACIC, and that report would be provided to the Board or Inter-Governmental Committee (rather than the Minister), that the ACIC CEO is not required to provide a copy of the report to the IGIS until the report has been given to the Board of Inter-Governmental Committee (as appropriate).

699.    This provision reflects the organisational structure of ACIC, and that there may be reports that are provided to the Board or Inter-Governmental Committee rather than the Minister. As the Board and Inter-Governmental Committee serve similar roles to that of a Minister, it is appropriate that the IGIS is able to access reports that are for these entities on similar terms to Ministerial reports.

Item 77: Subsections 32B(2) and (4)

700.    This item would repeal subsections 32B(2) and 32B(4) and substitute new subsections 32B(1A) and 32B(2). Section 32B requires Ministers to provide the IGIS with a copy of any guidelines or directions given to the head of certain organisations.

701.    Subsection 32B(1A) would extend the existing provisions of section 32B to apply to the ACIC and AUSTRAC (in relation to their intelligence functions). That is, section 32AB also applies to guidelines or directions issued by the responsible Minister to the ACIC or AUSTRAC, and to guidelines and directions issued to the ACIC by the ACIC Board or Inter-Governmental Committee.

702.    New subsection 32B(2) would reproduce the provisions in existing subsection 32AB(2), but would also require the CEO of ACIC to give a copy of the direction or guideline to the IGIS as soon as practicable, where the decisions are given to ACIC by the Board of ACIC or by the Inter-Governmental Committee.

703.    This amendment is necessary to give effect to the IGIS’s expanded jurisdiction over the ACIC and AUSTRAC (including its functions in relation to directions and guidelines under section 8(3A)(e) and (i) - inserted by item 61 of Schedule 2), by ensuring it can access all information necessary to provide robust and comprehensive intelligence oversight.

704.    The repeal of 32B(4) is consequential to the insertion of new subsection 32B(2), as this subsection defined a term that is no longer used in the section.

Item 78: Section 34B

705.    This item would repeal and replace section 34B.

706.    Former section 34B provided protections for persons providing information voluntarily to the IGIS. These protections have been moved into new section 32AC (inserted by item 73 of Schedule  2). This provision has been moved and expanded as a consequence of the increased scope of the IGIS’s oversight powers, and to co-locate a number of provisions relating to the IGIS’s relationship with other agencies.

707.    New section 34B would provide that in any prosecution against an IGIS official for the disclosure of information, that IGIS official will not bear any evidential burden as to whether the disclosure of information is for the purposes of, or in connection with, that or any other IGIS official exercising a power, or performing a function or duty, as an IGIS official.

708.    Under section 13.3 of the Criminal Code, the default position is that a person seeking to raise a defence or exception to an offence will bear an evidential burden in relation to that defence. A person bearing an evidential burden is required to lead evidence that points to the reasonable possibility that a matter exists.

709.    IGIS officials are subject to strict secrecy offences under section 34 of the IGIS Act which prevents IGIS officials from disclosing ‘any information or documents’ obtained in the course of their duties, functions or powers to any person, including to a court. As such, an IGIS official is not permitted to adduce any evidence in a court hearing without breaching the secrecy offences in their primary legislation. Given the importance of ensuring the security of information provided to, or obtained by, the IGIS in the course of its duties, and the difficulty this would pose to an IGIS official seeking to rely on the defence, it is appropriate to ensure that the evidential burden is on the prosecution.

710.    This provision is intended to cover the field in terms of secrecy offences. It is intended that this provision would cover offences with physical elements such as: communicat[ing]”, “deal[ing] with” (eg section 18B of the ASIO Act) or “read[ing]” or “examin[ing]” (eg section 488 of the Migration Act) information. It is also intended to apply in situations such as section 3ZQT of the Crimes Act or section 29B of the ACC Act (which are about disclosing the existence of a notice).

Law Enforcement Integrity Commissioner Act 2006

Item 79: subsection 5(1)

711.    This item would insert a new definition of ‘IGIS official’ in subsection 5(1) of the LEIC Act. This definition would be inserted into a number of Acts and provides a consistent way to refer to both the Inspector-General, and any other person covered by subsection 32(1) of the IGIS Act.

Item 80: after section 23

712.    This item would insert new section 23A. New section 23A would ensure that when the IGIS transfers a complaint to the Integrity Commissioner under proposed section 32AG of the IGIS Act (inserted by item 73 of Schedule  2), that complaint is deemed to have been referred under subsection 23(1) of the LEIC Act. This is intended to ensure that there is a clear pathway for the IGIS to transfer a matter to the Integrity Commissioner where it is appropriate to do so and resolve any ambiguities between the transfer provisions in the IGIS Act and the referral provisions in the LEIC Act.

713.    The section also clarifies that where a complaint is transferred from IGIS to the Integrity Commissioner, the person who made the complaint is taken to be the person who referred the allegation to the Integrity Commissioner. This ensures that the Integrity Commissioner is able to exercise their powers and functions with respect to keeping that complainant informed about how the corruption issue is being dealt with.

Items 81-82: after subsection 90(3A) and at the end of section 90

714.    Item 81 would insert new subsections 90(3B), (3C) and (3D).

715.    Subsection 90(1) of the LEIC Act allows the Integrity Commissioner to issue directions limiting the use and disclosure of hearing material (within the meaning of that Act), subsection 90(6) makes it an offence to contravene such a direction (unless the use or disclosure is under subsection 90(4) or (5)).

716.    New subsection 90(3B) would provide that nothing in such a direction would prevent the disclosure of hearing material to an IGIS official, or the IGIS official using the hearing material for the exercise of the IGIS official’s powers or functions. This would create a default position which supports the ability of the IGIS to obtain all necessary information to support its oversight functions.

717.    New subsection 90(3C) would provide that the Integrity Commissioner may direct (under subsection 90(1)), that subsection 90(3B) does not apply in the circumstances where the use or disclosure of the hearing information would be reasonably likely to prejudice the performance of functions or exercise of powers of the Integrity Commissioner.

718.    New subsection 90(3D) would require the Integrity Commissioner to inform the IGIS as soon as practicable after giving a direction in accordance with subsection 90(3C).

719.    Item 82 would insert a new subsection 90(8). Subsection 90(8) is intended to clarify that where a direction has been made in accordance with subsection 90(3C), the protections that would usually be available to an IGIS official under proposed section 32AC (protection from penalty and prosecution for persons who voluntarily provide information to the Inspector-General, inserted by item 73 of Schedule  2) of the IGIS Act do not apply.

720.    Items 81 and 82 are intended to provide an appropriate balance between the IGIS’s need to access information for an inquiry, and the secrecy necessary to avoid compromising the Integrity Commissioner’s powers and functions. It is important to note that while a person would be prevented from disclosing information that is subject to a section 90(1) direction voluntarily to the IGIS, the IGIS would be able to obtain this information through its powers at section 18 of the IGIS Act.

Items 83-85: after paragraph 208(3)(a), subsection 208(7) and at the end of section 208

721.    Subsection 207(1) of the LEIC Act contains a secrecy offence that limits the circumstance in which ACLEI staff can record, communicate or divulge certain information disclosed or obtained under, or for the purposes of, the LEIC Act.

722.    Section 208 contains exceptions to that offence. Subsection 208(3) provides that the Integrity Commissioner may disclose information to the heads of specified agencies. Subsection 208(6) provides that the Integrity Commissioner may disclose information where they are satisfied that it is necessary to do so to protect a person’s life or physical safety. Subsection 208(7) limits subsections 208(3) and (6) providing that information cannot be disclosed under those subsections where the information is section 149 certified information and doing so would contravene a section 149 certificate.

723.    Item 83 would add IGIS to the list of specified agencies in subsection 208(3), ensuring that the Integrity Commissioner could provide relevant information to the IGIS.

724.    Item 84 would provide that disclosure under subsection 208(3) and (6) would be possible, regardless of whether the information is certified under section 149, when the information is disclosed to the IGIS for the purposes of the IGIS’s functions.

725.    Both items are intended to ensure that the IGIS would have access to information relevant to an inquiry despite any bar under subsection 207(1) or section 149.

726.    A disclosure authorised under subsection 208(3) would still be subject to any directions under section 90 (as amended by item 81) (i.e. the Integrity Commissioner would be able to direct that the information not be voluntarily provided to IGIS where doing so would be reasonably likely to prejudice the Integrity Commissioner’s functions).

727.    Item 85 would insert new subsection 208(8) which would require the Integrity Commissioner to notify the Attorney-General if they intend to provide section 149 certified information to the IGIS. This is intended to provide the Attorney-General with visibility where information that they have certified as being of a highly sensitive nature is being made available to the IGIS, but will not prevent the disclosure of that information. This protects the independence of the IGIS, while maintaining the security of information.

Ombudsman Act 1976

728.    Items 86-93 would make amendments to the Ombudsman Act relating to the transfer of complaints between the Ombudsman and the IGIS. These amendments are not intended to affect the jurisdiction of the Ombudsman.

Item 86: subsection 3(1)

729.    This item would insert the following definition into subsection 3(1) of the Ombudsman Act:

‘examiner’ of ACIC means an examiner within the meaning of the Australian Crime Commission Act 2002.

Item 87: after section 5A

730.    This item would insert new section 5B. New section 5B would ensure that when the IGIS transfers a complaint relating to action taken by ACIC (except action taken by an examiner), or AUSTRAC to the Ombudsman under new section 32AG of the IGIS Act (inserted by item 73 of Schedule  2) that complaint is deemed to have been made under the Ombudsman Act. This is intended to ensure that there is a clear pathway for the IGIS to transfer a complaint to the Ombudsman where it is appropriate to do so.

731.    This item would also insert a note following this section, to draw the reader’s attention to the operation of new section 6F (inserted by item 90 of Schedule 2) which allows the Ombudsman to transfer complaints to the IGIS. This is intended to signpost how complaints may be transferred between the IGIS and the Ombudsman, and their respective legislative bases.

Items 88-89: subsection 6A(1), at the end of section 6A

732.    Section 6A of the Ombudsman Act provides the Ombudsman with the power to transfer complaints relating to the ACIC to other relevant integrity bodies.

733.    Item 88 would amend subsection 6A(1) to provide that the Ombudsman’s ability to transfer complaints about the ACIC is subject to new subsection 6A(3).

734.    Item 89 would insert new subsection 6A(3) which would bar the Ombudsman from transferring a complaint or part of a complaint to the IGIS under section 6A. This is intended to ensure that any transfer of complaints relating to ACIC to the IGIS is done through new section 6F. As compared with section 6A, new section 6F would require the agreement of the IGIS before the Ombudsman could transfer a complaint. This amendment would ensure that complaints about the ACIC are not transferred to the IGIS improperly. The agreement provision in new section 6F ensures that any complaints transferred to the IGIS are within its functions.

735.    New subsection 6A(3) is not intended to limit the transfer of complaints via new section 6F.

Item 90: after section 6E

736.    This item would insert new section 6F, which allows the Ombudsman to transfer complaints to the IGIS. This section is intended to manage duplication between oversight bodies by ensuring that the most appropriate integrity body is able to consider each specific complaint.

737.    Subsection 6F(1) would provide for when section 6F applies. This subsection is intended to ensure that the Ombudsman can only exercise the power to transfer complaints (or parts of complaints) to the IGIS in the appropriate circumstances. Specifically, the Ombudsman would need to be of the opinion that the complainant could or has complained to the IGIS under the IGIS Act in relation to action taken by the:

·          ACIC (except where that action is taken by an examiner performing functions and exercising powers as an examiner, as these matters are outside the IGIS’s jurisdiction under new subsection 8A(3B), inserted by item 61 of Schedule 2), or

·          AUSTRAC

and that complaint would be more appropriately or effectively dealt with by the IGIS.

738.    New paragraph 6F(2)(a) would require the Ombudsman to consult the IGIS about the complaint or part of the complaint that relates to the action.

739.    New paragraph 6F(2)(b) would provide the Ombudsman with the discretion not to investigate, or to cease investigating, the complaint (in which case subsection 6F(3) would apply, provided that the IGIS agrees to the transfer the complaint or the part of the complaint).

740.    New subsection 6F(3) provides that where the Ombudsman has decided to not investigate or not continue investigating the complaint, the Ombudsman must, with the consent of the Inspector-General:

·          transfer the complaint (or part) to the IGIS

·          give any related information or documents in the possession or control of the Ombudsman to the IGIS, and

·          give written notice to the complainant of the transfer.

741.    Notice to the complainant is required to be given ‘as soon as reasonably practicable’, however it is possible (for example if the complainant does not provide up to date contact details) that it may never be practicable to respond.

742.    New subsection 6F(4) is intended to clarify that the requirements of section 6F do not apply to other powers to transfer complaints to the IGIS that the Ombudsman may have.

743.    New subsection 6F(5) is intended to resolve any ambiguity between the action of new paragraph 6F(3)(c) and subsection 35(2) of the Ombudsman Act, ensuring that the secrecy provision located in section 35(2) does not apply when the Ombudsman officer is transferring information as part of the transfer of a complaint to IGIS.

Item 91: at the end of subsection 35(6)

744.    Subsection 35(5) of the Ombudsman Act creates a secrecy offence that restricts officers (as defined in that Act) from divulging, communicating or furnishing certain information or documents that are the subject of a certificate made by the Attorney-General made under that subsection. Subsection 35(6) creates exceptions to that offence.

745.    This item would insert new paragraph 35(6)(d) creating a new exception to an offence under subsection 35(5). Specifically, new paragraph 35(6)(d) would provide that subsection 35(5) would not prevent an officer from giving information or a document to the IGIS in accordance with section 35AB (as inserted by item 92).

746.    This item is intended to ensure that the IGIS could access information relevant to an inquiry.

Item 92: after section 35AA

747.    This item would insert new section 35AB, which relates to the disclosure of information and documents by the Ombudsman to the IGIS.

748.    New subsection 35AB(1) would provide that the section applies either when the Ombudsman has:

·           obtained information or documents relating to a Commonwealth agency (as defined in the IGIS Act) in the course of performing functions under any Act, or

·          when the Ombudsman prepares a report or other information in relation to a Commonwealth agency performing a function under any Act,

and the Ombudsman is of the opinion that the information, document or report may be relevant to a function of the IGIS.

749.    New subsection 35AB(2) would provide that nothing in the Ombudsman Act precludes the Ombudsman disclosing information, making a statement that includes information, or giving documents to the IGIS.

750.    Section 35AB is intended to ensure that the Ombudsman can provide the IGIS with information that is relevant to an inquiry despite any provisions of the Ombudsman Act which may otherwise restrict the release of relevant information or documents. This is necessary to reduce duplication in oversight between integrity bodies, and to support the IGIS’s oversight functions by ensuring they have full access to all relevant information.

Item 93: at the end of subsections 35B(1) and 35C(1)

751.    Sections 35B and 35C relate to the disclosure of ACIC or ACLEI information (respectively) by the Ombudsman when the Attorney-General has certified that the disclosure of the information would be contrary to the public interest.

752.    This item would insert an exception to the prohibition on the Ombudsman sharing such information. That exception would be where the information is provided to the IGIS in accordance with section 35AB of the Ombudsman Act (inserted by item 92 of Schedule 2). This is intended to clarify the interaction of sections 35B and 35C with section 35AB.

Privacy Act 1988

Item 94: after section 49A

753.    This item would insert new section 49B into the Privacy Act. New section 49B would provide that when a complaint or part of a complaint is transferred to the Information Commissioner under section 32AG of the IGIS Act (inserted by item 73 of Schedule  2), the complainant is deemed to have made a complaint to the Information Commissioner under subsection 36(1) of the Privacy Act.

754.    This is intended to ensure that a complaint transferred to the Information Commissioner by the IGIS receives equivalent treatment to a complaint made directly to the Information Commissioner. For example, without this amendment the various circumstances in which the Commissioner may or must not investigate under section 41 of the Privacy Act would not apply to a transferred complaint, as each subsection refers to ‘a complaint [that] has been made under section 36’.

Items 95-97: subsection 50(1) (after paragraph (e) of the definition of alternative complaint body), after subparagraph 50(2)(a)(iv), after subparagraph 50(3)(a)(iv)

755.    These items would facilitate the Information Commissioner transferring complaints to the IGIS.

756.    Section 50 of the Privacy Act provides for the referral of complaints made to the Privacy Commissioner to other relevant bodies. Item 95 would expand the definition of ‘alternative complaint body’ to include the IGIS.

757.    Subsection 50(2) of the Privacy Act includes a number of references to an ‘alternative complaint body’ including the ability under paragraph 50(2)(c), subject to certain conditions, to transfer a complaint to an alternative complaint body.

758.    Paragraph 50(2)(a) provides the requirements for a complaint to the transferred to an ‘alternative complaint body’ under the Privacy Act. It provides that the complaint relating to the matter must have also been made, or could have been made, to one of the bodies listed at paragraph 50(2)(a). Item 96 would insert a new subparagraph 50(2)(a)(iva) to include the IGIS as a listed body. This means that the Information Commissioner may transfer all or part of a complaint to the IGIS if they consider that the complaint could be more conveniently or effectively dealt with by the IGIS.

759.    Paragraph 50(3)(a) deems a complaint that is transferred under subsection 50(2) to be a complaint that was made directly to the relevant body, as listed in the subparagraphs to paragraph 50(3)(a). Item 97 would insert new subparagraph (50)(3)(a)(iva) that would ensure that when a complaint is transferred to the IGIS under subsection 50(2) it can be treated the same way as a complaint made under the IGIS Act.

760.    Items 95-97 are intended to provide the Information Commissioner with the ability to transfer cases to the IGIS when it is appropriate to do so, and to ensure that IGIS can investigate those complaints when it receives them.

Public Interest Disclosure Act 2013

 Item 98: section 8

761.    This item would amend section 8 of the PID Act by inserting the following definitions:

 ‘ACIC’ means the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.

‘examiner’ of ACIC means an examiner within the meaning of the ACC Act.

‘intelligence function ’, in relation to ACIC or AUSTRAC has the meaning given by the IGIS Act (as inserted by item 60 of Schedule 2).

Items 99-100: section 34 (table item 1, column 2, paragraph (c)) and section 34 (table item 1, column 2, after paragraph (c))

762.    Section 34 of the PID Act contains a table which sets out who is to be considered an authorised internal recipient of a disclosure, which varies based on the agency to which the conduct to be disclosed relates. Generally, an authorised internal recipient is a person to whom a PID must be made in the first instance (other than in the case of an emergency disclosure).

763.    Item 1 of the table provides the potential authorised internal recipients of a disclosure, where the conduct with which the disclosure is concerned relates to an agency other than an intelligence agency, are the Ombudsman or the IGIS.

764.    Paragraph (c) (of column 2) provides that the Ombudsman is an authorised recipient if the discloser believes on reasonable grounds that it would be appropriate for the disclosure to be investigated by the Ombudsman. Item 99 would amend this paragraph to note that it applies subject to new paragraph (ca), inserted by item 100. This ensures that PIDs relating to intelligence functions are made to the IGIS, rather than the Ombudsman.

765.    Item 100 would insert paragraph (ca) in Column 2 of item 1. Paragraph (ca) would provide that where the discloser believes on reasonable ground that:

·          their disclosure relates to action taken by ACIC or AUSTRAC in relation to that agency’s intelligence functions, and

·          it is appropriate for the disclosure to be investigated by the IGIS,

the IGIS would be an authorised internal recipient.

766.    This is intended to mirror the arrangements for intelligence agencies found in paragraph (b) of item 2 of the same table.

Item 101: section 42 (note 2)

767.    Note 2 of section 42 currently informs the reader that the way a disclosure is allocated may be the subject of a complaint to the Ombudsman under the Ombudsman Act, or, in the case of an intelligence agency, to the IGIS under the IGIS Act.

768.    This item would amend note 2 of section 42 to clarify that a disclosure may be the subject of a complaint to the IGIS under the under the IGIS Act , where a disclosure relates to the intelligence functions of the ACIC or AUSTRAC. This amendment reflects the IGIS’s expanded jurisdiction to oversee the intelligence functions of these agencies.

Items 102 and 103: subparagraph 43(3)(a)(iii), after subsection 43(3)

769.    Section 43 outlines the responsibilities of an authorised officer who has received a PID, and how they are to allocate that PID.

770.    Section 43 provides that where a PID is made, the recipient of that PID must allocate that PID to one or more agencies for consideration. The recipient is not required to allocate the PID where the recipient is satisfied, on reasonable grounds, that there is no reasonable basis that the disclosure could be considered to be an internal disclosure (section 43(2)).

771.    Subsection 43(3) provides the matters to which an authorised officer must have regard when determining which agency to refer the disclosure to. Paragraph 43(3)(a) requires the officer to have regard to the principle that an agency should not handle a disclosure unless certain conditions, specified in the subparagraphs, apply.

772.    Existing subparagraph 43(3)(a)(iii) provides that IGIS should not handle a disclosure unless some or all of the suspected disclosable conduct relates to an intelligence agency.

773.    Item 102 would amend subparagraph 43(3)(a)(iii) to instead require that disclosures not be allocated to the IGIS unless some or all of the suspected disclosable conduct relates to an intelligence agency or the intelligence functions of the ACIC or AUSTRAC. This is intended to reflect that IGIS oversight would now extend to these bodies.

774.    Item 103 would insert new subparagraph 43(3A). New subparagraph 43(3A) would provide that the authorised officer must not allocate the handling of the disclosure to IGIS where the disclosure relates to action taken by an ACIC examiner performing functions and exercising powers as an examiner. This reflects that the IGIS does not have jurisdiction to consider the actions of ACIC examiners, as provided by new paragraph 8(3B) of the IGIS Act (inserted by item 61 of Schedule 2).

Item 104: paragraphs 44(1A)(a) and (b)

775.    Section 44 relates to the information that an authorised officer must share with the principal officer of the agency which has been allocated a PID.

776.    Subsection 44(1) requires an authorised officer to provide to the principal officer of each agency which has been allocated the disclosure:

·          the allocation itself,

·          the information that was disclosed, the suspected disclosable conduct, and

·          the discloser’s name and contact details if they are available.

777.    In addition to the agency which has been allocated the disclosure, subsection 44(1A) requires the authorised officer originally in receipt of the disclosure to provide the same information as provided in subsection 44(1) to other agencies in certain circumstances. Specifically:

·          paragraph 44(1A)(a) requires the authorised officer to inform the Ombudsman, if the disclosure is not allocated to the Ombudsman, the IGIS or an intelligence agency, and

·          paragraph 44(1A)(b) requires the authorised officer to inform the IGIS, if the disclosure is allocated to an intelligence agency.

778.    This item would amend paragraphs 44(1A)(a) and (b) so that the references to “intelligence agencies” are extended to “intelligence agency or ACIC or AUSTRAC in relation to that agency’s intelligence functions”. As result, where a disclosure relates to those agencies, the authorised officer will need to inform IGIS, and otherwise, if the issue has not been reported to the Ombudsman or the IGIS, to the Ombudsman. This is intended to reflect the extension of the IGIS’s oversight to include these agencies.

Item 105: section 46 (note)

779.    Section 46 sets out a simplified outline of Division 2 of Part 3 of the PID Act, which relates to the obligations of the principal officer of the allocated agency to investigate and report on the disclosure. A note to section 46 signposts that the way a disclosure is investigated (or refused) may be subject to a complaint to the Ombudsman under the Ombudsman Act, or in the case of an intelligence agency, to the IGIS under the IGIS Act.

780.    This item would update the note in section 46 to clarify that the way a disclosure is investigated may also be subject to a complaint to the Ombudsman under the Ombudsman Act, or, in the case of an intelligence agency or a matter relating to an intelligence function of the ACIC or AUSTRAC, to the IGIS under the IGIS Act. This is intended to reflect the extension of the IGIS’s oversight to include these agencies.

Items 106-108: At the end of paragraph 50A(1)(b), paragraph 50A(1)(b), 50A(2)(b)

781.    Section 50A requires the principal officer of an agency which has been allocated a disclosure to notify the Ombudsman or IGIS of a decision under section 48 or 49 of the PID Act to not investigate, or to not investigate further.

782.    Under existing section 50A, the principal officer must inform the Ombudsman of the decision (if their agency is not the Ombudsman, the IGIS or an intelligence agency), and must inform the IGIS of the decision if their agency is an intelligence agency.

783.    Item 106 would add “and” to the end of paragraph 50A(b), as a result of the creation of new paragraph 50A(c) by item 107.

784.    Item 107 would insert paragraph 50A(c) which would provide that the principal officer must notify the Ombudsman of the decision if the agency is not the Ombudsman, the IGIS, an intelligence agency, or if the agency is ACIC or AUSTRAC and the disclosure does not relate to the intelligence functions of that agency.

785.    Item 108 would replace paragraph 50A(2)(b) to the effect that the principal officer is required to notify IGIS of the decision if the agency is an intelligence agency, or if the agency is the ACIC or AUSTRAC and the disclosure relates to the intelligence functions of that agency.

786.    These amendments are intended to reflect the expansion of the IGIS’s oversight to include the intelligence functions of these agencies, and to ensure that PIDs are treated consistently across agencies within IGIS’s jurisdiction.

Item 109: subsection 52(4)

787.    Section 52 requires investigations to be completed within 90 days after allocation of the disclosure where reasonably practical, unless an extension is granted.

788.    Subsection 52(4) provides the IGIS with the power to provide an extension where the agency is the IGIS or an intelligence agency, either under its own power, on application of the principal officer of the agency (where the agency is not IGIS) or on application by the discloser.

789.    This item would amend subsection 52(4) to also permit the IGIS to extend the time limit for investigations allocated to ACIC or AUSTRAC where the disclosure relates to the intelligence functions of that agency. This amendment is intended to reflect the expansion of the IGIS’s oversight to include the intelligence functions of these agencies.

Item 110: section 58 (note)

790.    Section 58 provides a simplified outline of Division 1 of Part 4 of the PID Act. Division 1 of Part 4 relates to additional obligations placed on persons involved in the PID process, as well as providing additional functions to the Ombudsman and the IGIS.

791.    The note to section 58 signposts that these additional obligations may be subject to a complaint to the Ombudsman under the Ombudsman Act, or, where the obligations relate to an intelligence agency, to the IGIS under the IGIS Act.

792.    This item would amend the note to section 58 to clarify that a complaint may be made to the IGIS in circumstances where the complaint relates to the actions of an intelligence agency, or where the complaint relates to the intelligence functions of the ACIC or AUSTRAC. This amendment is consequential to the expanded oversight of the IGIS to cover the intelligence functions of these agencies.

Items 111-113: after paragraph 63(a), after paragraph 63(b) and section 63 (note)

793.    Section 63 of the PID Act creates additional functions for the Inspector-General. Each of the paragraphs to section 63 specifies a new function or functions of the IGIS under the PID Act.

794.    Item 111 would insert new paragraph 63(aa) providing the IGIS with additional functions of assisting:

·          principal officers

·          authorised officers

·          public officials, and

·          former public officials

in relation to the operation of the PID Act where it relates to the intelligence functions of the ACIC or AUSTRAC.

795.    New paragraph 63(aa) is intended to align the IGIS’s functions in relation to the ACIC or AUSTRAC with its existing functions in relation to AIC agencies provided by paragraph 63(a).

796.    Item 112 would insert new paragraph 63(ba) providing the IGIS with additional functions of conducting education and awareness programs about the PID Act, relating to the intelligence functions of the ACIC and AUSTRAC, but only to the extent that the PID Act relates to one of those agencies, public officials who belong to that agency, or public officials who belonged to that agency.

797.    New paragraph 63(ba) is intended to align the IGIS’s functions in relation to the ACIC or AUSTRAC with its existing functions in relation to AIC agencies provided by paragraph 63(b).

798.    Item 113 would replace and substitute the existing note to section 63 of the PID Act. The new note is the same in substance as the existing note, except that it refers to the IGIS’s functions in relation to the intelligence functions of the ACIC and AUSTRAC under section 8A of the IGIS Act (as amended by this Bill).

Item 114: Transitional - section 52 of the Public Interest Disclosure Act 2013

799.    This item would provide that the amendments to section 52 (relating to the time constraints for completing investigations) do not affect any time periods that were in place and extended prior to the commencement of that item.

Division 2 - Repeal of items from Surveillance Act if this Act commences first

800.    Schedule 2, Part 3, Division 2 would repeal a number of items from the SLAID Act, if this Bill were to commence before that Act. This is necessary as the SLAID Act and this Bill contain identical or very similar amendments to the same provisions.

801.    This Division would commence immediately before the SLAID Act commences, but does not does not commence at all if the SLAID Act commences before this Bill.

Item 115: Items 33 and 34 and 39 to 112 of Schedule 2

802.    This item would repeal a number of items from the SLAID Act. The items in the SLAID Act would duplicate or closely resemble amendments that would be made through Division 1 of this Bill. As such, if this Bill commences first, those other provisions should not commence.

Division 3 - Amendments commencing after Surveillance Act commences if this Act commences first

803.    Schedule 2, Part 3, Division 3 would provide additional amendments which would commence after the SLAID Act commences.

804.    The SLAID Act would expand IGIS’s jurisdiction to the Australian Federal Police (AFP) and the ACIC insofar as those agencies exercise functions or powers in relation to network activity warrants. As this Bill would provide for the IGIS to have jurisdiction over all intelligence functions performed by the ACIC and AUSTRAC, a number of the items require amendment to support the IGIS’s full jurisdiction.

805.    Items 116-153 would commence immediately after commencement of Part 2 of Schedule 2 of the SLAID Act, so long as this Bill has already commenced. The items would not commence at all if the SLAID Act commences before this Bill.

Australian Human Rights Commission Act 1986

Item 116: Subsection 11(3) (note)

806.    This item would insert “, the Australian Federal Police” after “ACIC” in the subsection 11(3) note (inserted by item 45 of Schedule 2).

807.    This clarifies the operation of the section in relation to concurrent oversight between the AHRC and the IGIS in relation to the AFP that would be created by the SLAID Act.

808.    Subsection 11(1) provides that the functions of the AHRC include such functions as are conferred on the Commission by the Age Discrimination Act 2004 , the Disability Discrimination Act 1992 , the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 or any other enactment (paragraph 11(1)(a)), to inquire into, and attempt to conciliate, complaints of unlawful discrimination (paragraph 11(1)(aa)), and to inquire into any act or practice that may be inconsistent with or contrary to any human right, and, if appropriate, attempt to effect a settlement to the matter (paragraph 11(1)(f)).

809.    Subsection 11(3) specifies that where a complaint relates to an AIC agency (ASIO, ASIS, ASD, AGO, DIO and ONI), the AHRC must not inquire into a matter and must transfer it to the IGIS.

810.    The SLAID Act creates overlapping jurisdiction between the IGIS and the AHRC in relation to the AFP. The IGIS would have jurisdiction in relation to the AFP’s compliance with human rights and anti-discrimination law as it relates to their intelligence functions under the IGIS Act (which are defined to include matters relating to network activity warrants), while the AHRC would have oversight of the AFP’s compliance with these matters in all other functions. Due to this intersection, it is not appropriate to require the AHRC to automatically transfer all matters relating to the AFP to the IGIS.

811.    The addition of the AFP to the note clarifies the interrelation between the AHRC Act and the IGIS Act, and how complaints relating to the AFP may be managed by these integrity bodies.

Item 117: Paragraph 20(4C)(a)

812.    This item would insert “, the Australian Federal Police” before “or AUSTRAC” into paragraph 20(4C)(a) (inserted by item 47 of Schedule 2).

813.    Section 20 deals with the AHRC’s performance of its functions relating to human rights. Subsections 20(4C) facilitates the transfer of a complaint from the AHRC to the IGIS.

814.    Paragraphs 20(4C)(a)-(b) would allow the AHRC to decide not to inquire into a complaint or part of a complaint about acts or practices of the ACIC (except for complaints about examiners) or AUSTRAC, on the basis that the complaint could be more effectively or conveniently dealt with by the IGIS under the IGIS Act. This item will ensure that also applies to the AFP.

815.    This amendment will assist with the management of the overlapping oversight responsibilities of the AHRC and the IGIS relating to the AFP, by allowing cases to be transferred from the AHRC to the IGIS when it is appropriate to do so.

Item 118: Subsection 46PZ(1)

816.    This item adds “, the Australian Federal Police” after “ACIC” at subsection 46PZ(1) (inserted by item 50 of Schedule 2).

817.    Subsection 46PZ(1) allows the AHRC to determine whether certain complaints transferred by the IGIS under section 32AG of the IGIS Act (inserted by item 73 of Schedule 2) should be deemed to be made as referred to in paragraph 20(1)(b) of the AHRC Act (for human rights complaints), or lodged under section 46P of the AHRC Act (for unlawful discrimination complaints).

818.    Each type of complaint is subject to a different set of procedures, and a decision by the AHRC under section 46PZ would effectively determine which set of procedures to apply. It is intended that the AHRC would base its determination on which set of procedures is most appropriate to the specifics of each transferred matter.

819.    The addition of the AFP to section 46PZ is intended to facilitate the transfer between the IGIS and the AHRC of complaints relating to the AFP, and to minimise disruption or administrative delay for complainants.

Inspector-General of Intelligence and Security Act 1986

Item 119: Subsection 3(1) (after paragraph (ea) of the definition of head )

820.    This item amends the definition of “head” (referring to agency heads) in subsection 3(1) of the IGIS Act to capture the Commissioner of Police (Commissioner of the AFP). This is in addition to the existing definitions of ‘head’, which apply to AIC agencies, AUSTRAC and the ACIC). This is necessary as the SLAID Act would extend the IGIS’s jurisdiction to include the AFP’s network activity warrant functions.

Item 120: Subsection 3(1) (definition of intelligence agency )

821.    This item would repeal and replace the definition of ‘ intelligence agency’ in subsection 3(1) to include the AFP. References to an ‘intelligence agency’ (within the IGIS Act) would then mean ASIO, ASIS, AGO, DIO, ASD, ONI, ACIC, the AFP or AUSTRAC.

822.    Although the AFP (and ACIC and AUSTRAC) are all defined as ‘intelligence agencies’, the extent of IGIS’s oversight over the AFP must be understood in the context of the definition of ‘intelligence function’ (inserted by item 121 of Schedule 2) and the functions of the IGIS in relation to the AFP - outlined in subsection 8(3A) of the IGIS Act; inserted by item 61 of Schedule 2, as amended by items 123-124 of Schedule 2.

Item 121: Subsection 3(1) (definition of intelligence function )

823.    This item amends subsection 3(1) by repealing the previous definition of ‘ intelligence function’ (inserted by item 60 of Schedule 2) and inserting a new definition for ‘ intelligence function’ to allow the IGIS to oversee the AFP and the ACIC’s use of network activity warrants, the ACIC’s broader intelligence functions and AUSTRAC’s intelligence functions.

824.    This item extends the definition of ‘ intelligence function ’ in relation to the ACIC to clarify that the ACIC’s intelligence functions include the performance of functions, or the exercise of powers, conferred on a law enforcement officer of the ACIC by the network activity warrant provisions of the Surveillance Devices Act 2004 . This is in addition to the IGIS’s existing jurisdiction over the ACIC (inserted by item 60 of Schedule 2), which includes the collection, correlation, analysis, production and dissemination of intelligence by ACIC for the purpose of performing its functions under section 7A of the Australian Crime Commission Act 2002 (except in relation to Indigenous violence or child abuse within the meaning of that Act).

825.    The definition of ‘intelligence function’ in relation to AUSTRAC would be restructured to align with the new drafting of the definition, but remains unchanged. That is, the definition would cover:

(i)         the collection, correlation, analysis, production and dissemination of intelligence by AUSTRAC for the purposes of the AUSTRAC CEO performing the CEO’s financial intelligence functions under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006; or

(ii)        a function performed by AUSTRAC, the AUSTRAC CEO or any other official of AUSTRAC referred to in paragraph 209(4)(c) of that Act that is incidental to the CEO’s financial intelligence functions;

826.    The intention is for the definition of ‘intelligence function’ in relation to AUSTRAC to cover that agency’s actions in supporting the CEO to perform only his or her functions under section 212 of the AML/CTF Act, to the extent that they involve intelligence. It is not intended for the definition to cover the agency’s actions in supporting the CEO to perform his or her regulatory functions.

827.    The reference to “functions incidental” in the definition of intelligence function in relation to AUSTRAC is not intended to include AUSTRAC’s regulatory functions, such as the supervision of regulated businesses’ compliance with the AML/CTF Act. For example, the AML/CTF Act imposes transaction and suspicious matter reporting obligations on regulated businesses. AUSTRAC engages with industry in meeting these obligations, and may take enforcement action to ensure that regulated businesses are complying with their reporting obligations. This supervision and engagement as part of AUSTRAC’s regulatory function will not generally be ‘incidental’ to its financial intelligence function, even though the transaction and suspicious matter reports form the basis, or the ‘raw material’ for, AUSTRAC’s financial intelligence function.

828.    Intelligence function in relation to the AFP means the collection, correlation, analysis, production and dissemination of intelligence obtained by the AFP from the execution of a network activity warrant; or the performance of a function, or the exercise of a power, conferred on a law enforcement officer of the AFP by the network activity warrant provisions of the SD Act.

829.    This definition is intended to enable the IGIS to oversee all aspects of the network activity warrant life cycle. For example, the IGIS will be able to oversee the initial collection of intelligence by the AFP and the ACIC through to the execution of the warrant, the correlation of intelligence, the analysis of that intelligence, the production of intelligence and the dissemination of intelligence, where all of these relate to the warrant or the execution of the warrant.

830.    This definition also covers the performance of a function, or the exercise of a power, conferred on a law enforcement officer by the network activity warrant provisions of the SD Act. This ensures that where aspects of the network activity warrant regime are not strictly connected with the execution of the warrant, the IGIS will be able to oversee their operation. For example, compliance with the SD Act where a network activity warrant application is made and subsequently issued but revoked before it is executed, compliance with the record-keeping and reporting provisions so far as they relate to network activity warrants, or ensuring delegations made under the Act are correctly made and complied with so far as they relate to network activity warrants.

Item 122: Subsection 8(3A) (heading)

831.    This item would insert the following definitions into subsection 3(1) of the IGIS Act:

‘Law enforcement officer’ when used in relation to the AFP has the same meaning as in the SD Act. This means the Commissioner of Police, the Deputy Commissioner of Police, an AFP employee, a special member; or person seconded to the AFP.  Law enforcement officer whether used in relation to the ACIC means the CEO, or a person covered by a paragraph of the definition of member of the staff of the ACC in section 4 of the ACC Act.

‘Network activity warrant’ has the same meaning as in the SD Act The SD Act provides that a network activity warrant is a warrant issued under section 27KM of that Act.

‘Network activity warrant provisions of the Surveillance Devices Act 2004’ means Division 6 of Part 2 of the SD Act or any other provisions of the SD Act so far as they relate to network activity warrants.

832.    These definitions are necessary due to the IGIS’s jurisdiction in relation to network activity warrants for the ACIC and the AFP.

Item 123: Subsection 8(3A) (heading)

833.    This item would insert “, the Australian Federal Police” after “ACIC” in the heading above subsection 8(3A). This reflects the IGIS’s jurisdiction in relation to the AFP (in addition to the ACIC and AUSTRAC).

Item 124: Subsection 8(3A)

834.    This item would insert “, the Australian Federal Police” after “ACIC” in subsection 8(3A) (inserted by item 62 of Schedule 2). This provides that subsection 8(3A) will set out the potential inquiry functions of the IGIS in relation to the intelligence functions of the AFP (as defined by the IGIS Act).

835.    Paragraphs 8(3A)(a)-(c) will now provide that the Attorney-General or relevant Minister (being the Minister responsible for the intelligence functions of the AFP) may request the IGIS to inquire into any of the matters in paragraphs 8(3A)(d)-(i). The IGIS is also able to commence an inquiry based on its own-motion or in response to a complaint made to the IGIS (by an Australian citizen or permanent resident, as defined in the IS Act) in relation to any of the matters in paragraphs 8(3A)(d)-(i).

836.    Paragraphs 8(3A)(d)-(i) provide that the functions of the IGIS in relation to the AFP are to inquire into the following matters provided that the IGIS’s inquiry relates to an intelligence function of the agency:

·          compliance by that agency of Commonwealth, State and Territory laws

·          compliance by that agency with directions or guidelines given to that agency by the responsible Minister

·          propriety of particular activities by that agency, and the

·          effectiveness and appropriateness of the procedures of the AFP relating to the legality or propriety of the activities of the agency.

837.    Paragraph 8(3A)(h) provides that a function of the IGIS in relation to the AFP is to inquire into a matter referred to the IGIS by the AHRC, provided that the matter relates to an intelligence function of the agency as defined by the IGIS Act. The matter must also relate to an act or practice of the agency which may be inconsistent with a human right, constitute discrimination, or be unlawful under Australian anti-discrimination legislation.

838.    This amendment ensures that the IGIS’s jurisdiction in relation to the AFP’s intelligence functions is analogous to its jurisdiction in relation to the intelligence functions of the ACIC and AUSTRAC.

Item 125: Subsection 8(5)

839.    This item would insert “, the Australian Federal Police” after “ACIC” in subsection 8(5).

840.    Subsection 8(5) outlines that the IGIS’s jurisdiction does not include complaints regarding promotion, termination, discipline, remuneration or any other matter relating to intelligence agencies’ employment of individuals in relation to AGO, DIO, ONI (where an individual is employed under the Public Service Act), ACIC and AUSTRAC. This item amends subsection 8(5) to ensure this exception also applies to employees of the AFP.

841.    This exclusion is consistent with the existing treatment of those agencies currently overseen by the IGIS whose staff are engaged under the Public Service Act. This exclusion is appropriate because employees of the AFP are able to avail themselves of other avenues to address employment concerns (including the Fair Work Ombudsman), and as such, it is unnecessary for the IGIS to provide an additional layer of oversight to these matters.

Item 126: Paragraph 8(5A)(a)

842.    This item would insert “, the Australian Federal Police” after “ACIC” in subsection 8(5A), inserted by item 20 of Schedule 1.

843.    Subsection 8(5A) provides that the inquiry functions of the IGIS under paragraph 8(3A) (which provides the inquiry powers relating to the ACIC, AFP and AUSTRAC) do not extend to a matter where the complainant is a contractor, and the matter directly relates to their contract, agreement or other arrangement. This is intended to make clear that, just as the IGIS would not consider employment complaints for employees of the ACIC, AFP or AUSTRAC, it would not consider employment-related complaints from contractors for these agencies.

Items 127-129: At the end of paragraph 8A(1)(b), after paragraph 8A(1)(b), subsection 8A(1)

844.    These items amend section 8A(1) to include a new paragraph 8A(1)(c), to drafting updates to reflect this change.

845.    Item 127 adds the word “and” to the end of paragraph 8A(1)(b) as a consequential amendment to the addition of paragraph 8A(1)(c) inserted by item 128 of Schedule 2.

846.    Subsection 8A(1) provides that if a disclosure of information has been, or is required to be, allocated under section 43 of the PID Act and some or all of the disclosable conduct with which the information is concerned relates (within the meaning of that Act) to an intelligence agency, then to the extent that the conduct so relates, it is taken, for the purposes of the IGIS Act, to be action that relates to the propriety of particular activities of the intelligence agency.

847.    Item 128 would insert new paragraph 8A(1)(c) to provide that disclosable conduct relating to the AFP must relate to their intelligence functions to be action that relates to the propriety of particular activities of the AFP. This aligns the IGIS’s PID jurisdiction over the AFP with the remainder of IGIS’s jurisdiction in relation to the AFP’s use of network activity warrants.

848.    Item 129 would insert the words “as described in paragraph (b)” after “so relates” in subsection 8A(1). This is necessary because the inclusion of new paragraph 8A(1)(c) could make it ambiguous as to what conduct is being referred to.

Item 130: Paragraph 8A(4)(a)

849.    This item would insert the AFP in paragraph 8A(4)(a), inserted by item 28 of Schedule 1.

850.    Section 8A provides the functions of the IGIS in relation to the PID Act. Paragraph 8A(3)(c) provides that, if a PID disclosure is allocated to the IGIS, then the person who disclosed the information is taken to have made a complaint to the IGIS in respect of the disclosable conduct. Subsection 8A(4) creates an exception to 8A(3)(c) where the complaint is in relation to an agency within the IGIS’s jurisdiction and the complainant is not an Australian citizen or resident.

851.    This item would include the AFP in the list of agencies in paragraph 8A(4)(a). The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act).

Item 131: Paragraph 15(3)(a)

852.    This item amends paragraph 15(3)(a) by inserting “the Australian Federal Police” after “ACIC”, wherever it occurs in the paragraph.

853.    Subsection 15(3) requires the IGIS to notify the Minister responsible for an agency where its inquiry relates to the head of an intelligence agency, and not to notify the agency head. This is to ensure that an IGIS inquiry is performed without interference, and with appropriate discretion. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act).

Item 132: Paragraph 21(1B)(a)

854.    This item would insert “, the Australian Federal Police” after “ACIC”, wherever it occurs in paragraph 21(1B)(a).

855.    Under existing subsection 21(1B), where the IGIS does not give a draft report to the head of an agency, on the basis that the conclusions and recommendations of the report relate directly to the head of the agency, the IGIS must give the draft report to the responsible Minister for that agency.

856.    The amendment would ensure that where the report relates to the head of the AFP, the IGIS must provide the report to the responsible Minister of the AFP. The amendment is not intended to change existing law, as each of those agencies would otherwise be subject to paragraph 21(1B)(c) which provides that where the IGIS prepares reports about the head of a Commonwealth agency, it must provide the draft report to the responsible Minister. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act).

Item 133: Paragraph 32A(1)(e)

857.    This item would insert “, the Australian Federal Police” after “ACIC” in paragraph 32A(1)(e) (inserted by item 74 of Schedule 2).

858.    Subsection 32A(1) provides that the IGIS may request access to annual or periodic reports prepared by intelligence agencies and provided to Ministers or the Secretary of the Defence Department (depending on the specific intelligence agency).

859.    This item extends the powers in subsection 32A(2) to cover documents which relate to the AFP. These documents would include those issued by the AFP under section 46 of the P ublic Governance, Performance and Accountability Ac t 2013, and any other report that the IGIS believes relates to one of the AFP’s intelligence functions (as defined in the IGIS Act), provided that such a report is prepared on a periodic basis and is given to the responsible Minister. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act).

Item 134: 32A(5)(aa)

860.    This item would insert “, the Australian Federal Police” after “ACIC” in paragraph 32A(5)(aa) (inserted by item 75 of Schedule 2).

861.    Subsection 32A(5)(aa) provides that where the head of the ACIC or AUSTRAC have not provided the responsible Minister with a copy of report outlined in section 32A(1),  the agency head need not give a copy of the report to the IGIS until the head has given the report to the responsible Minister.

862.    This item 32A(5(aa) ensures this also applies to AFP reports at paragraph 32A(1)(e). The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act) and ensures that the IGIS is able to access all information necessary to ensure appropriate oversight.

Items 135-136: Paragraph 32B(1A)(a), Subparagraph 32B(1A)(b)(i)

863.    These items insert “, the Australian Federal Police” after “ACIC” in paragraph 32B(1A)(a) and in sub-paragraph 32B(1A)(b)(i) (inserted by item 77 Schedule 2).

864.    Section 32B requires Ministers to provide the IGIS with a copy of any guidelines or directions given to the head of certain organisations.

865.    Subsection 32B(1A) provides that section 32B applies to any guidelines or directions that relate to the performance by the ACIC or AUSTRAC (in relation to their intelligence functions under the IGIS Act). These items ensure section 32AB also applies to guidelines or directions issued by the responsible Minister to the AFP.

866.    These amendments are necessary to give effect to the IGIS’s new jurisdiction over the AFP’s use of network activity warrants, and to ensure that the IGIS is able to access all information necessary to ensure appropriate oversight.

Law Enforcement Integrity Commissioner Act 2006

Item 137: Subsection 5(1) (paragraph (b) of the definition of law enforcement secrecy provision)

867.    This item amends the definition of ‘law enforcement secrecy provision’in the LEIC Act to include section 45B of the SD Act in addition to section 45. This amendment ensures that information obtained under network activity warrants (‘ protected network activity warrant information’ ) is afforded the same protections for use and disclosure under the LEIC Act as information obtained under the existing SD Act framework

Ombudsman Act 1976

Item 138: Section 5B

868.    This item would insert “, the Australian Federal Police” before “or AUSTRAC” in section 5B (inserted by item 87 of Schedule 2).

869.    Section 5B would ensure that when the IGIS transfers a complaint relating to action taken by ACIC or AUSTRAC to the Ombudsman, that complaint is deemed to have been made under the Ombudsman Act. This item includes the AFP in this provision to ensure that there is a clear pathway for the IGIS to transfer a complaint relating to the AFP to the Ombudsman where it is appropriate to do so. This section is also intended to manage duplication between oversight bodies by ensuring that the most appropriate integrity body is able to consider each specific complaint.

Item 139: paragraph 6F(1)(a)

870.    This item would insert “, the Australian Federal Police” before “or AUSTRAC” in paragraph 6F(1)(a) (inserted by item 90 of Schedule 2).

871.    Section 6F allows the Ombudsman to transfer complaints to the IGIS. This will ensure section 6F allows the Ombudsman to transfer complaints relevant to the AFP’s intelligence functions (under the IGIS Act) to the IGIS. This section is intended to manage duplication between oversight bodies by ensuring that the most appropriate integrity body is able to consider each specific complaint.

Privacy Act 1988

Item 140: Section 49B

872.    This item would insert “, the Australian Federal Police” after “ACIC” in section 49B (inserted by item 94 of Schedule 2).

873.    Section 49B allows the Information Commissioner to accept complaints transferred to them by the IGIS. This amendment will provide that when a complaint or part of a complaint in respect of action taken by the AFP is transferred to the Information Commissioner under the IGIS Act, the complainant is deemed to have made a complaint to the Information Commissioner under subsection 36(1) of the Privacy Act.

874.    This is intended to ensure that a complaint transferred to the Information Commissioner by the IGIS in respect of the AFP receives equivalent treatment to a complaint made directly to the Information Commissioner.

Public Interest Disclosure Act 2013

Item 141: Section 8 (definition of intelligence function )

875.    This item would insert “, the Australian Federal Police” after “ACIC” in the definition of intelligence function (inserted by item 98 of Schedule 2) . This provides that the meaning of intelligence function in relation to the AFP in the PID Act is the same meaning given by the IGIS Act.

Item 142: Section 34 (table item 1, column 2, subparagraph (ca)(i))

876.    This item would insert “, the Australian Federal Police” after “ACIC” in section 34 (table item 1, column 2, subparagraph (ca)(i)) (inserted by item 100 of Schedule 2).

877.    Section 34 of the PID Act contains a table which sets out who is to be considered an authorised internal recipient of a disclosure, which varies based on the agency to which the conduct to be disclosed relates. Generally, an authorised internal recipient is a person to whom a PID must be made in the first instance (other than in the case of an emergency disclosure).

878.    Item 1 of the table provides the potential authorised internal recipients of a disclosure, where the conduct with which the disclosure is concerned relates to an agency other than an intelligence agency, are the Ombudsman or the IGIS.

879.    This item would insert the AFP into subparagraph (ca)(i) in Column 2 of item 1. This provides that where the discloser believes on reasonable grounds that where their disclosure relates to action taken by the AFP in relation to its intelligence functions, and it is appropriate for the disclosure to be investigated by the IGIS, then the IGIS would be an authorised internal recipient.

Item 143: Section 42 (note 2)

880.    This item would insert “, the Australian Federal Police” after “ACIC” in the note 2 after section 42.

881.    Note 2 of section 42 currently informs the reader that the way a disclosure is allocated may be the subject of a complaint to the Ombudsman under the Ombudsman Act, or, in the case of an intelligence agency (or the ACIC or AUSTRAC in relation to their intelligence functions - as amended by item 101 of Schedule 2), to the IGIS under the IGIS Act.

882.    This item amends note 2 of section 42 to clarify that a disclosure may be the subject of complaint to the IGIS under the IGIS Act, where a disclosure relates to the intelligence functions of the AFP. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act).

Item 144: Subparagraph 43(3)(a)(iii)

883.    This item would insert “, the Australian Federal Police” after “ACIC” at subparagraph 43(3)(a)(iii).

884.    Section 43 outlines the responsibilities of an authorised officer who has received a PID, and how they are to allocate that PID.

885.    Section 43 provides that where a PID is made, the recipient of that PID must allocate that PID to one or more agencies for consideration. The recipient is not required to allocate the PID where the recipient is satisfied, on reasonable grounds, that there is no reasonable basis that the disclosure could be considered to be an internal disclosure (section 43(2)).

886.    Subsection 43(3) provides the matters to which an authorised officer must have regard when determining which agency the disclosure should be referred to. Paragraph 43(3)(a) requires the officer to have regard to the principle that an agency should not handle a disclosure unless certain conditions, specified in the subparagraphs, apply.

887.    Existing subparagraph 43(3)(a)(iii) provides that IGIS should not handle a disclosure unless some or all of the suspected disclosable conduct relates to an intelligence agency (or the ACIC or AUSTRAC in relation to their intelligence functions - as amended by item 102 of Schedule 2).

888.    This item amends subparagraph 43(3)(a)(iii) to require an authorised officer not to allocate the handling of a disclosure to the IGIS unless some or all of the suspected disclosable conduct relates to the AFP’s intelligence functions (as defined by the IGIS Act). This is intended to reflect that IGIS oversight would now extend to the AFP in relation to network activity warrants.

Item 145: Paragraphs 44(1A)(a) and (b)

889.    This item would insert “, the Australian Federal Police” after “ACIC” at paragraphs 44(1A)(a) and (b).

890.    Section 44 relates to the information that an authorised officer must share with the principal officer of the agency which has been allocated the disclosure.

891.    Subsection 44(1) requires an authorised officer to provide to the principal officer of each agency which has been allocated the disclosure:

·          the allocation itself

·          the information that was disclosed, the suspected disclosable conduct, and

·          the discloser’s name and contact details if they are available.

892.    In addition to the agency which has been allocated the disclosure, subsection 44(1A) requires the authorised officer originally in receipt of the disclosure to provide the same information as provided in subsection 44(1) to other agencies in certain circumstances. Specifically:

·          paragraph 44(1A)(a) requires the authorised officer to inform the Ombudsman where the disclosure is not allocated to the Ombudsman, the IGIS or an intelligence agency or the ACIC or AUSTRAC in relation to that agency’s intelligence functions, and

·          paragraph 44(1A)(b) requires the authorised officer to inform the IGIS where the disclosure is allocated to an intelligence agency or the ACIC or AUSTRAC in relation to that agency’s intelligence functions.

893.    This item amends paragraphs 44(1A)(a) and (b) to include the AFP in relation to their intelligence functions. As result, where a disclosure does relate to the AFP, the authorised officer will need to inform IGIS, and otherwise, if the issue has not been reported to the Ombudsman or the IGIS, to the Ombudsman. This is intended to reflect the extension of the IGIS’s oversight to include the AFP in relation to network activity warrants.

Item 146: Section 46 (note)

894.    This item would insert “, the Australian Federal Police” after “ACIC” in the section 46 note.

895.    Section 46 sets out a simplified outline of Division 2 of Part 3 of the PID Act, which relates to the obligations of the principal officer of the allocated agency to investigate and report on the disclosure. A note to section 46 signposts that the way a disclosure is investigated (or refused) may be subject to a complaint to the Ombudsman under the Ombudsman Act, or in the case of an intelligence agency (or the ACIC or AUSTRAC in relation to their intelligence functions - as amended by item 105 of Schedule 2), to the IGIS under the IGIS Act.

896.    This item would update the note in section 46 to clarify that the way a disclosure relating to the AFP is investigated may also be subject to a complaint to the Ombudsman under the Ombudsman Act, or in relation to their intelligence functions under the IGIS Act, to the IGIS under the IGIS Act. This is intended to reflect the extension of the IGIS’s oversight to include the AFP as it relates to network activity warrants.

Item 147: Paragraph 50A(1)(c)

897.    This item would insert “, the Australian Federal Police” after “ACIC” at paragraph 50A(1)(c) (inserted by item 107 of Schedule 2).

898.    Section 50A requires the principal officer of an agency which has been allocated a disclosure to notify the Ombudsman or IGIS of a decision under section 48 or 49 of the PID Act to not investigate, or to not investigate further.

899.    Under existing section 50A, the principal officer is required to inform the Ombudsman where the agency is not the Ombudsman, the IGIS or an intelligence agency, or the ACIC or AUSTRAC and the disclosure does not relate to the intelligence functions of the agency. However the principal officer must inform the IGIS when the agency is an intelligence agency, (or the ACIC or AUSTRAC) and the disclosure relates to the intelligence functions of the agency.

900.    This item includes the AFP in paragraph 50A(1)(c) to the effect that the principal officer is required to notify the Ombudsman where the agency is not the Ombudsman, the IGIS, an intelligence agency, or where the agency is the ACIC, the AFP or AUSTRAC and the disclosure does not relate to the intelligence functions of that agency.

901.    This is intended to reflect the extension of the IGIS’s oversight to include the AFP as it relates to network activity warrants.

Item 148: Subparagraph 50A(2)(b)(ii)

902.    This item would insert “, the Australian Federal Police” after “ACIC” at subparagraph 50A(2)(b)(ii) (inserted by item 108 of Schedule 2).

903.    This would require the principal officer to notify the IGIS when the agency is an intelligence agency, or where the agency is the ACIC, the AFP or AUSTRAC and the disclosure relates to the intelligence functions of that agency.

904.    This is intended to reflect the extension of the IGIS’s oversight to include the AFP as it relates to network activity warrants.

Item 149: Subsection 52(4)(b)

905.    This item would insert “, the Australian Federal Police” after “ACIC” at subsection 52(4) (inserted by item 109 of Schedule 2).

906.    Section 52 requires investigations to be completed within 90 days after allocation of the disclosure where reasonably practicable, unless an extension is granted.

907.    Subsection 52(4) provides the IGIS with the power to provide an extension where the agency is the IGIS or an intelligence agency, or the ACIC or AUSTRAC where the disclosure relates to the intelligence functions of the agency, either under its own power, on application of the principal officer of the agency (where the agency is not IGIS) or on application by the discloser.

908.    This item would amend subsection 52(4) to also permit the IGIS to extend the time limit for investigations allocated to the AFP, where the disclosure relates to the intelligence functions of the agency.

909.    This is intended to reflect the extension of the IGIS’s oversight to include the AFP as it relates to network activity warrants.

Item 150: Section 58 (note)

910.    This item would insert “, the Australian Federal Police” after “ACIC” in the section 58 note.

911.    Section 58 provides a simplified outline of Division 1 of Part 4 of the PID Act. Division 1 of Part 4 relates to additional obligations placed on persons involved in the PID process, as well as providing additional functions to the Ombudsman and the IGIS.

912.    The note to section 58 signposts that the way these additional obligations may be subject to a complaint to the Ombudsman under the Ombudsman Act, or, where the obligations relate to an intelligence agency, or the ACIC or AUSTRAC in relation to that agency’s intelligence functions, to the IGIS under the IGIS Act.

913.    This item would amend the note to section 58 to clarify that the complaint may be to the IGIS in circumstances where the complaint relates to the actions of AFP in relation to their intelligence functions. This amendment is consequential to the expanded oversight of the IGIS to cover the AFP’s intelligence functions (as defined in the IGIS Act).

Item 151: Paragraph 63(aa)

914.    This item would insert “, the Australian Federal Police” after “ACIC” at paragraph 63(aa) (inserted by item 111 of Schedule 2).

915.    Section 63 of the PID Act provides additional functions to the IGIS. Each of the paragraphs to section 63 specifies a function or functions of the IGIS under the PID Act.

916.    This item amends paragraph 63(aa) by providing the IGIS with an additional function of assisting principal officers, authorised officers, public officials, and former public officials in relation to the operation of the PID Act where it relates to the intelligence functions of the AFP.

917.    This amendment is intended to provide the IGIS with the same functions in relation to the AFP to the existing powers provided by paragraph 63(aa) in relation to the ACIC and AUSTRAC. This amendment is consequential to the expanded oversight of the IGIS to cover the AFP’s intelligence functions (as defined in the IGIS Act).

Item 152: Paragraph 63(ba)

918.    This item would insert “, the Australian Federal Police” after “ACIC” at paragraph 63(ba) (inserted by item 112 of Schedule 2).

919.    Paragraph 63(ba) provides the IGIS with additional functions of conducting educational and awareness programs concerning the PID Act, relating to the intelligence functions of the ACIC and AUSTRAC, but only to the extent that the PID Act relates to one of those agencies, public officials who belong to that agency, or public officials who belonged to that agency.

920.    This amendment is intended to provide the IGIS with the same functions in relation to the AFP as provided by paragraph 63(ba) in relation to the ACIC and AUSTRAC.

Item 153: Section 63 (note)

921.    This item would insert “, the Australian Federal Police” after “ACIC” at the note to section 63 (inserted by item 113 of Schedule 2).

922.    The note now includes reference to the IGIS’s functions under section 8A of the IGIS Act towards intelligence functions of the AFP. This amendment is consequential to the expansion of the IGIS’s functions by section 8A of the IGIS Act to include the AFP.

Division 4 - Amendments required if Surveillance Act commences first

923.     Schedule 2, Part 3, Division 4 provides amendments which would be necessary if the SLAID Act commences ahead of this Bill.

924.    The SLAID Act would expand IGIS’s jurisdiction to the Australian Federal Police (AFP) and the ACIC insofar as those agencies exercise functions or powers in relation to network activity warrants. It contains a number of amendments to support the IGIS’s expanded jurisdiction, which duplicate or closely replicate items in this Bill.

925.    As this Bill would provide for the IGIS to have jurisdiction over all intelligence functions performed by the ACIC and AUSTRAC, a number of the items in the SLAID Act, and in Schedule 1 of this Bill, require amendment to ensure the full range of IGIS’s jurisdiction is reflected in the amendments to the IGIS Act and other legislation.

926.    Items 154-202 would commence immediately after commencement of the Main Amendments (Schedule 1 of the Bill). The items would not commence at all if the SLAID Act has not commenced.

Australian Human Rights Commission Act 1986

Item 154: Subsection 11(3) (note)

927.    This item would add AUSTRAC to the note after subsection 11(3) to clarify the operation of the section with regard to the concurrent oversight from the AHRC and the IGIS in relation to AUSTRAC (and the IGIS’s expanded jurisdiction in relation to the ACIC).

928.    Subsection 11(1) relevantly provides the functions of the AHRC include such functions as are conferred on the Commission by the Age Discrimination Act 2004 , the Disability Discrimination Act 1992 , the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 or any other enactment (paragraph 11(1)(a)), to inquire into, and attempt to conciliate, complaints of unlawful discrimination (paragraph 11(1)(aa)), and to inquire into any act or practice that may be inconsistent with or contrary to any human right; and attempt to effect a settlement to the matter (paragraph 11(1)(f)).

929.    Subsection 11(3) specifies that where a complaint relates to an AIC agency (ASIO, ASIS, ASD, AGO, DIO and ONI), the AHRC must not inquire into a matter and must transfer it to the IGIS.

930.    The Bill would create concurrent jurisdiction between the IGIS and the AHRC in relation to the ACIC and AUSTRAC. The IGIS would have jurisdiction in relation to agencies’ compliance with human rights and anti-discrimination law within their intelligence functions, while the AHRC would have oversight of the agencies’ compliance with these matters in all other functions. Due to this intersection, it is not appropriate to require the AHRC to automatically transfer all matters relating to these agencies to the IGIS.

931.    The addition of AUSTRAC to the note clarifies the interrelation between the AHRC Act and the IGIS Act, and how complaints relating to the AFP may be managed by these integrity bodies.

Item 155: Subsection 20(1) (note)

932.    This item would update the section reference in the note following subsection 20(1). This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2. 

Item 156: After subparagraph 20(4C)(a)(i)

933.    This item would in insert new subparagraph 20(4C)(a)(ia) into subsection 20(4C), including “, an act or practice of AUSTRAC” in the section.

934.    Section 20 deals with the AHRC’s performance of its functions relating to human rights. Subsections 20(4C) facilitates the transfer of a complaint from the AHRC to the IGIS.

935.    Paragraphs 20(4C)(a)-(b) would allow the AHRC to decide not to inquire into a complaint or part of a complaint about acts or practices of the ACIC (except for complaints about examiners) or the AFP, on the basis that the complaint could be more effectively or conveniently dealt with by the IGIS under the IGIS Act. This item will ensure that also applies to the AUSTRAC.

936.    This amendment will assist with the management of the overlapping oversight responsibilities of the AHRC and the IGIS relating to the AUSTRAC, by allowing cases to be transferred from the AHRC to the IGIS when it is appropriate to do so.

Item 157: Subsection 46P(1) (note)

937.    This item would update the section reference in the note to subsection 46P(1).This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.   

Items 158-158: Subsection 46PZ(1)

938.    These items amend section 46PZ(1).

939.    Item 158 updates a reference to section 32AD of the IGIS Act to section 32AG of the IGIS Act.  This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.

940.    Item 159 adds “AUSTRAC” after “ACIC” at subsection 46PZ(1).

941.    Subsection 46PZ(1) allows the AHRC to determine whether certain complaints transferred by the IGIS should be deemed to be made as referred to in paragraph 20(1)(b) of the AHRC Act (for human rights complaints), or lodged under section 46P of the AHRC Act (for unlawful discrimination complaints).

942.    Both types of complaint are subject to a different set of procedures, and a decision by the AHRC under section 46PZ would effectively determine which set of procedures to apply. It is intended that the AHRC would base its determination on which set of procedures is most appropriate to the specifics of each transferred matter.

943.    The addition of AUSTRAC to section 46PZ is intended to facilitate the transfer between the IGIS and the AHRC relating to the AUSTRAC, and to minimise disruption or administrative delay for complainants.

Inspector-General of Intelligence and Security Act 1986

Item 160: Subsection 3(1) (after paragraph (ea) of the definition of head )

944.    This item amends the definition of “head” (referring to agency heads) in subsection 3(1) of the IGIS Act to capture the CEO of AUSTRAC. This is in addition to the existing definitions of ‘head’, which apply to AIC agencies, ACIC and the AFP). This is necessary as this Bill would extend the IGIS’s jurisdiction to include the AUSTRAC’s intelligence functions.

Item 161: Subsection 3(1) (definition of intelligence agency )

945.    This item would a repeal and replace the definition of ‘ intelligence agency’ in subsection 3(1) to include AUSTRAC.

946.    References to an ‘intelligence agency’ (within the IGIS Act) would then mean ASIO, ASIS, AGO, DIO, ASD, and ONI, as well as the ACIC, AFP and AUSTRAC. The ACIC, AFP and AUSTRAC are differentiated from the other agencies, as they are only overseen by IGIS insofar as they have intelligence functions (as defined by the IGIS Act - see item 162 of Schedule 2, and section 8(3A) of the IGIS Act, as amended by this Bill).

Item 162: Subsection 3(1) (definition of intelligence function )

947.    This item amends subsection 3(1) by repealing and replacing the definition for intelligence function to allow for the IGIS to oversee the ACIC and AUSTRAC’s broader intelligence functions as well as the AFP and the ACIC’s use of network activity warrants.

948.    This item extends the definition of ‘ intelligence function ’ in relation to the ACIC. The IGIS’s jurisdiction over the ACIC would include the collection, correlation, analysis, production and dissemination of intelligence by ACIC for the purpose of performing its functions under section 7A of the Australian Crime Commission Act 2002 (except in relation to Indigenous violence or child abuse within the meaning of that Act).

949.    Indigenous violence and child abuse have been excluded from IGIS oversight as the IGIS is the appropriate body to conduct oversight of these matters. Oversight of these matters would require specialist subject-matter expertise, including cultural competencies that the IGIS could not be expected to possess, or to obtain readily . These functions are overseen by the Office of the Commonwealth Ombudsman (the Ombudsman).

950.    The item would insert a definition of ‘intelligence function’ in relation to AUSTRAC. AUSTRAC’s intelligence function would be defined as:

(i)         the collection, correlation, analysis, production and dissemination of intelligence by AUSTRAC for the purposes of the AUSTRAC CEO performing the CEO’s financial intelligence functions under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006; or

(ii)        a function performed by AUSTRAC, the AUSTRAC CEO or any other official of AUSTRAC referred to in paragraph 209(4)(c) of that Act that is incidental to the CEO’s financial intelligence functions;

951.    The intention is for the definition of ‘intelligence function’ in relation to AUSTRAC to cover that agency’s actions in supporting the CEO to perform only his or her functions under section 212 of the AML/CTF Act, to the extent that they involve intelligence. It is not intended for the definition to cover the agency’s actions in supporting the CEO to perform his or her regulatory functions.

952.    The reference to “functions incidental” in the definition of intelligence function in relation to AUSTRAC is not intended to include AUSTRAC’s regulatory functions, such as the supervision of regulated businesses’ compliance with the AML/CTF Act. For example, the AML/CTF Act imposes transaction and suspicious matter reporting obligations on regulated businesses. AUSTRAC engages with industry in meeting these obligations, and may take enforcement action to ensure that regulated businesses are complying with their reporting obligations. This supervision and engagement as part of AUSTRAC’s regulatory function will not generally be ‘incidental’ to its financial intelligence function, even though the transaction and suspicious matter reports form the basis, or the ‘raw material’ for, AUSTRAC’s financial intelligence function.

953.    Intelligence function in relation to the AFP means the collection, correlation, analysis, production and dissemination of intelligence obtained by the AFP from the execution of a network activity warrant; or the performance of a function, or the exercise of a power, conferred on a law enforcement officer of the AFP by the network activity warrant provisions of the SD Act.

954.    This definition is intended to enable the IGIS to oversee all aspects of the network activity warrant life cycle. For example, the IGIS will be able to oversee the initial collection of intelligence by the AFP and the ACIC through the execution of the warrant, the correlation of intelligence, the analysis of that intelligence, the production of intelligence and the dissemination of intelligence, where all of these relate to the warrant or the execution of the warrant.

955.    This definition also covers the performance of a function, or the exercise of a power, conferred on a law enforcement officer by the network activity warrant provisions of the SD Act. This ensures that where aspects of the network activity warrant regime are not strictly connected with the execution of the warrant, the IGIS will be able to oversee their operation. For example, compliance with the SD Act where a network activity warrant application is made and subsequently issued but revoked before it is executed, compliance with the record-keeping and reporting provisions so far as they relate to network activity warrants, or ensuring delegations made under the Act are correctly made and complied with so far as they relate to network activity warrants.

Item 163: Before subsection 8(3A)

956.    This item would insert a new subheading ‘Intelligence agency inquiry functions in relation to ACIC, the Australian Federal Police and AUSTRAC’ before subsection 8(3A). This amendment would make clear that sections under this subheading relate to the IGIS’s inquiry functions as they relate to the ACIC, AFP and AUSTRAC.

957.    Section 8 is a lengthy provision and this amendment would clarify the structure of the section.

Item 164: Subsection 8(3A)

958.    This item would insert “AUSTRAC” after “ACIC” in subsection 8(3A). This provides that subsection 8(3A) will set out the potential inquiry functions of the IGIS in relation to the intelligence functions of AUSTRAC as defined by the IGIS Act.

959.    Paragraphs 8(3A)(a)-(c) will now provide that the Attorney-General or relevant Minister (being the Minister responsible for AUSTRAC’s intelligence functions) may request the IGIS to inquire into any of the matters in paragraphs 8(3A)(d)-(i). The IGIS is also able to commence an inquiry based on its own-motion or in response to a complaint made to the IGIS (by an Australian citizen or permanent resident, as defined in the IS Act) in relation to any of the matters in paragraphs 8(3A)(d)-(i).

960.    Paragraphs 8(3A)(d)-(i) provide that the functions of the IGIS in relation to the AUSTRAC are to inquire into the following matters provided that the IGIS’s inquiry relates to an intelligence function of the agency:

·          compliance by that agency of Commonwealth, State and Territory laws

·          compliance by that agency with directions or guidelines given to that agency by the responsible Minister

·          propriety of particular activities by that agency, and the

·          effectiveness and appropriateness of the procedures of the AFP relating to the legality or propriety of the activities of the agency.

961.    Paragraph 8(3A)(h) provides that a function of the IGIS in relation to the intelligence the AUSTRAC is to inquire into a matter referred to the IGIS by the AHRC, provided that the matters relates to an intelligence function of the agency as defined by the IGIS Act. These matters must also relate to an act or practice of the agency which may be inconsistent with a human right, constitute discrimination, or be unlawful under Australian anti-discrimination legislation.

962.    This amendment ensures that the IGIS’s jurisdiction in relation to AUSTRAC’s intelligence functions is analogous to its jurisdiction in relation to the ACIC and AFP’s intelligence functions.

Item 165: Paragraph 8(3A)(c)

963.    This item would repeal and replace paragraph 8(3A)(c) to provide that the IGIS’s complaints jurisdiction in relation to the ACIC, AFP and AUSTRAC is limited to complaints made by a person who is an Australian citizen or a permanent resident (within the meaning of the IS Act).

964.    This is consistent with how inquiries may be commenced in relation to agencies currently within IGIS jurisdiction (noting that there is a slightly broader complaints jurisdiction in relation to ASIO). The IGIS retains the ability to commence own-motion inquiries into matters relating to individuals who are not Australian citizens or permanent residents.

Item 166: After subsection 8(3B)

965.    This item would insert a new subheading ‘Intelligence agency inquiry functions in relation to complaints about employment, contracts and related matters’ before subsection 8(4).

966.    Section 8 is a lengthy provision and this amendment would clarify the structure of the section.

Item 167: Subsection 8(5)

967.    This item would omit “ONI” and insert “or AUSTRAC, or by a Public Service Act ONI employee”” in subsection 8(5).

968.    Subsection 8(5) outlines that the IGIS’s jurisdiction does not include complaints regarding promotion, termination, discipline, remuneration or any other matter relating to intelligence agencies’ employment of individuals in relation to AGO, DIO, ONI, ACIC and the AFP. This item amends subsection 8(5) to ensure this exception also applies to AUSTRAC employees.

969.    The item would also update the reference to ONI to provide that the IGIS does not have jurisdiction to consider employment complaints from ONI staff employed under the Public Service Act. Staff in ONI may be employed under both the Public Service Act and the ONI Act. Staff employed under the ONI Act do not have the ability to complain as the IGIS was precluded from considering such complaints (section 8(5) of the IGIS Act).

970.    These exclusions are consistent with the existing treatment of those agencies currently overseen by the IGIS whose staff are engaged under the Public Service Act. This exclusion is appropriate because AUSTRAC employees, and ONI employees employed under the Public Service Act are able to avail themselves of other avenues to address employment concerns (including the Fair Work Ombudsman), and as such, it is unnecessary for the IGIS to provide an additional layer of oversight to these matters. Separately, it also ensures fair treatment for ONI employees employed under the ONI Act.

Item 168: Paragraph 8(5A)(a)

971.    This item would insert ‘AUSTRAC’ after “ACIC” in subsection 8(5A) (inserted by item 20 of Schedule 1).

972.    Subsection 8(5A) provides that the inquiry functions of the IGIS under paragraph 8(3A) (which provides the inquiry powers relating to the ACIC, AFP and AUSTRAC) do not extend to a matter where the complainant is a contractor, and the matter directly relates to their contract, agreement or other arrangement. This is intended to make clear that, just as the IGIS would not consider employment complaints for employees of the ACIC, AFP or AUSTRAC, they would not consider employment-related complaints from contractors for these agencies.

Item 169: Paragraph 8A(4)(a)

973.    This item would insert the AFP in paragraph 8A(4)(a) (inserted by item 28 of Schedule 1).

974.    Section 8A provides the functions of the IGIS in relation to the PID Act. Paragraph 8A(3)(c) provides that, if a PID disclosure is allocated to the IGIS, then the person who disclosed the information is taken to have made a complaint to the IGIS in respect of the disclosable conduct. Subsection 8A(4) creates an exception to 8A(3)(c) where the complaint is in relation to an agency within the IGIS’s jurisdiction and the complainant is not an Australian citizen or resident.

975.    This item would include the AFP in the list of agencies in paragraph 8A(4)(a). The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include the AFP’s intelligence functions (within the meaning of the IGIS Act).

Item 170: Subsection 9AA(b)

976.     This item would omit “and 8(2)(a)(ii)” from paragraph 9AA(b) and substitute “, 8(2)(a)(ii) and 8(3)(a)(ii)”. This item is consequential to the amendment to subparagraph 8(3)(a)(ii) (item 18 of Schedule 1).

977.    Paragraph 9AA(b) prohibits the IGIS from inquiring into actions taken by a Minister, except to the extent necessary for the IGIS to perform the functions relating to circumstances where the IGIS can inquire into whether the relevant agency has complied with directions and guidelines provided by the Minister. Each of these inquiries would necessarily involve the IGIS considering the actions of the Minister.

978.    Subparagraph 8(3)(a)(ii) relates to IGIS inquiries into compliance with Ministerial guidelines or directions by DIO and ONI. It is appropriate, and consistent with oversight arrangements for other intelligence agencies, that the general prohibition in paragraph 9AA(b) is extended to these agencies.

Item 171: Subsection 9A(2)

979.    This item would amend section 9A by repealing and replacing subsection (2). New subsection (2) clarifies that when conducting an inspection of any intelligence agency (rather than just inspections in relation to the AFP or the 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

·          the ability to examine, make copies or take extracts from any information or documents.

980.    Paragraphs 9A(2)(a) and (b) provide concessions in relation to ASIS, insofar as the IGIS or a member of staff assisting the IGIS does not have the right to enter into premises occupied in another country by ASIS unless the Director-General of ASIS and the IGIS have made arrangements relating to entry. 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.

Items 172-173: Subsection 10(1) (note 1), Subsection 11(4A) (note)

981.    These item would update the section references in the notes to subsection 10(1) and 11(4A).This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.

Item 174: Paragraph 15(3)(a)

982.    This item amends paragraph 15(3)(a) by inserting “AUSTRAC” after “ACIC”, wherever it occurs in the paragraph.

983.    Subsection 15(3) requires the IGIS to notify the Minister responsible for an agency where its inquiry relates to the head of an intelligence agency, and not to notify the agency head. This is to ensure that an IGIS inquiry is performed without interference, and with appropriate discretion. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include AUSTRAC’s intelligence functions (within the meaning of the IGIS Act).

Item 175: Paragraph 21(1B)(a)

984.    This item would insert “AUSTRAC” after “ACIC”, wherever it occurs in paragraph 21(1B)(a).

985.    Under existing subsection 21(1B), where the IGIS does not give a draft report to the head of an agency, on the basis that the conclusions and recommendations of the report relate directly to the head of the agency, the IGIS must give the draft report to the responsible Minister for that agency.

986.    The amendment would ensure that where the report relates to the AUSTRAC CEO, the IGIS must provide the report to the responsible Minister for AUSTRAC. The amendment is not intended to change existing law, as each of those agencies would otherwise be subject to paragraph 21(1B)(c) which provides that where the IGIS prepares reports about the head of a Commonwealth agency, it must provide the draft report to the responsible Minister. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include AUSTRAC’s intelligence functions (within the meaning of the IGIS Act).

Item 176: Part IIIA

987.    This item would repeal and replace Part IIIA of the IGIS Act.

988.    Updated Part IIIA would contain sections 32AB-32AH which are intended to 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.

Division 1—Avoiding duplication of oversight

989.    Division 1 of Part IIIA relates to avoiding duplication of oversight by integrity bodies. It contains section 32AB.

Section 32AB -Avoiding duplication of oversight

990.    Subsection 32AB(1) would require the IGIS to have regard to the functions of other integrity bodies and the Auditor-General to avoid duplication in oversight.

991.    This section is based on existing section 16 of the IGIS Act (which would be repealed by item 46 of Schedule 1), which requires the IGIS to consider the Auditor-General and the Ombudsman’s functions before commencing an inquiry. New section 32AB is broader than former section 16 to reflect the expanded range of integrity bodies whose jurisdictions may overlap with the IGIS’s as a result of the IGIS’s new jurisdiction over the intelligence functions of the ACIC and AUSTRAC.

992.    Subsection 32AB(2) would allow the IGIS to consult integrity bodies or the Auditor-General in relation to a matter. This section stands alongside new section 32AF (inserted by item 73 or 176 of Schedule 2) which provides that the IGIS has a general function to share information with integrity bodies as part of its functions. Further to this requirement, under subsection 11(4A) (inserted by item 70 of Schedule 2) the IGIS may decide not to inquire, or not to inquire further into, a complaint or part of a complaint where the complaint has, or could have been, made to another integrity body and that integrity body could deal with the complaint more effectively than the IGIS. It is appropriate in these cases for the IGIS to be able to discuss the matter with other relevant integrity bodies to facilitate transferring a complaint (under section 32AG).

993.    Section 32AB would place a general obligation on the IGIS and is not intended to require the IGIS to undertake formal consultation with the Auditor-General and each integrity body before each discrete activity. For example, in determining its overall priorities and annual inspection plans, the IGIS ought to consider other integrity bodies and their remits. By contrast, the IGIS is not required to consider the functions of each integrity body before commencing a discrete preliminary inquiry (under section 14 of the IGIS Act). This is because, in many cases, some activity by the IGIS is required to determine whether they are authorised to, and should, inquire into an action. As such, it will often not be possible to determine whether or not a matter falls within the functions of another integrity body until after a preliminary inquiry has been undertaken, and requiring consultation ahead of every instance would be administratively burdensome.

Division 2 of Part IIIA—Sharing information with the Inspector-General

994.    Division 2 of Part IIIA would contain provisions relating to the sharing of information with the IGIS. It contains sections 32AC, 32AD and 32AE.

Subsection 32AC—Protection for persons providing information voluntarily to the Inspector-General

995.    Subsection 32AC(1) outlines that the section would provide certain protections to people who voluntarily provide, or make available, information or documents to the IGIS for the purposes of the IGIS performing its inspection function (under section 9A), complaints functions (under Division 2 of Part II) or inquiry functions (under Division 3 of Part II, or section 14 for preliminary inquiries).

996.    This section would ensure that all persons who cooperate with the IGIS are treated equally, irrespective of the technical legal basis upon which they are doing so (see the protections afforded to people who are compelled to assist the IGIS under section 18 of the IGIS Act).

997.    Subsection 32AC(2) provides an immunity from prosecution under any Commonwealth law where a person provides or makes available information or documents to the IGIS where the IGIS performs its functions (inspections, complaints, preliminary inquiries, and inquiries). This immunity is subject to subsections 32AC(5) and (6), which would allow an individual to be prosecuted in circumstances where they have provided false or misleading information or documents, forged documents to the IGIS, or have obstructed the IGIS in performing its functions (and other circumstances discussed below).

998.    Subsection 32AC(3) provides a use immunity where an individual voluntarily provides information or documents to the IGIS, or where a person voluntarily appears before the IGIS to answer questions. Under this subsection, these documents and information are not admissible in evidence against the person in any court or in any proceedings before a person authorised to hear evidence. This immunity is subject to subsection 32AC(5), which would allow an individual to be prosecuted in circumstances where they have provided false or misleading information or documents, forged documents to the IGIS or have obstructed the IGIS in performing its functions (and other circumstances discussed below).

999.    Subsection 32AC(4) preserves legal professional privilege over documents or information, even where the information or documents are provided voluntarily.

1000.                   Subsection 32AC(5) outlines the exceptions to the immunity from prosecution conferred by subsection 32AC(2) and the use immunity in subsection 32AC(3). These immunities do not apply in relation to proceedings for:

·          providing false or misleading information to the IGIS (section 137.1 of the Criminal Code),

·          providing false or misleading documents to the IGIS (section 137.2 of the Criminal Code),

·          using or providing forged documents in IGIS proceedings (section 145.1 of the Criminal Code), or

·          obstructing an IGIS official in the performance of their functions (section 149.1 of the Criminal Code), or

·          giving false testimony, fabricating evidence, destroying evidence, intimidation of witnesses, corruption of witnesses, deceiving witnesses, preventing witnesses from attending court (and any other offences relating to evidence and witnesses under Division 3 of Part III of the Crimes Act)

1001.                   Paragraph 32AC(5)(c) also provides that the immunities in subsections 32AC(2) and (3) do not apply in relation to prosecutions for:

·          being an accessory after the fact, to any of the offences listed in section 32AC(a) and (b) (listed above) per section 6 of the Crimes Act, or

·          attempting to commit any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.1 of the Criminal Code, or

·          inciting the commission of any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.4 of the Criminal Code, or

·          conspiring with another person to commit any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.5 of the Criminal Code.

1002.                   However, these offences are only applicable “to the extent that the offence relates to this Act”. The use of the word ‘relate’ is intended to ensure that any documents, information or answers provided by a person to the IGIS, which provided evidence that the person committed an offence against a section of the Criminal Code or Crimes Act referenced in paragraphs 32AC(5)(a)-(c), could not be used as evidence in prosecution against the person if the offence committed was unrelated to the provision of documents or information to the IGIS.

1003.                   Subsection 32AC(6) states that the exemption in subsection 32AC(2) does not apply where a new offence, created after the amendments have passed, states that the exemption does not apply. This section is necessary to ensure the specific offences contained in subsection 32AC(5) can be extended should the need arise. This protection is directly analogous to section 24 of the PID Act.

1004.                   The item would also insert a note to subsection 32AC(6), to advise that the whole of section 32AC applies subject to section 90 of the LEIC Act, which creates an offence for individuals who disclose ‘hearing materials’ (defined in that Act) that the Integrity Commissioner has specifically directed cannot be voluntarily disclosed to the IGIS. This would mean that an individual who voluntarily provides this confidential hearing material to the IGIS is not protected by section 32AC.

Section 32AD—Security of Commonwealth agency information and documents

1005.                   Section 32AD consolidates and expands the protection of Commonwealth documents or information with security classifications.

1006.                   The former provision provided that where the IGIS required access to documents with a protective or national security classification that were in the possession of a Commonwealth agency, the IGIS was required to make arrangements with the head of the relevant agency for the protection of those documents while they were in the IGIS’s possession.

1007.                   Section 32AD expands this section to apply to documents, as well as information obtained. Given the broad types of information which may be subject to classification, and provided to the IGIS in the course of its inspections or inquiries, it is appropriate that the types of materials are expanded to ensure they are appropriately protected while they are within the IGIS’s possession.

1008.                   Paragraph 32AD(1)(a) specifies the types of activities under which the IGIS may require access to information of documents (inspections, preliminary inquiries and inquiries).

1009.                   Subsection 32AD(2) requires that where the IGIS intends to remove classified documents from an agency, to copy or extract from classified documents or information, or to examine or otherwise make use of the documents or information (these actions are stipulated by new subsection 32AD(1)(c)), the IGIS must make arrangements to protect the documents or information from unauthorised disclosure. New subsection 32AD(2) notes that, in order to prevent unauthorised disclosures, the IGIS must take into account any advice provided by the head of the relevant agency.

1010.                   It is important to note for the avoidance of doubt, that arrangements made under subsection 32AD(2) do not override the obligations of agency heads and staff under section 9A in relation to inspections (specifically, the duty to provide full and free access to any information, documents or other property of an agency) or obligations of members of agencies to provide information under a notice issued under section 18.

1011.                   Additionally, it is intended that the requirement to make protective arrangements does not override obligations under the PSPF . For example, the provision would not confer authority to make arrangements that are inconsistent with the requirements of the PSPF, or to withhold agreement to an arrangement that is consistent with the requirements of the PSPF.

Section 32AE—Authorisation for the purposes of the Privacy Act 1988

1012.                   Section 32AE contains an authorisation for the purposes of the Privacy Act. This is necessary as the AUSTRAC is subject to the Privacy Act, and as such, requires this section to enliven the exception to the prohibition on secondary use of personal information in Australian Privacy Principle 2.6.

1013.                   The effect of this section is that, for the purposes of the Privacy Act, a person is authorised to give or make available personal information (within the meaning of the Privacy Act) to an IGIS official, for the purpose of the official performing a function or exercising a power as an IGIS official.

1014.                   The section explicitly applies in relation to a service provider under section 187LA of the TIA Act. Section 187LA provides that information or documents kept by a service provider in complying with Part 5-1A of the TIA Act are ‘personal information’ within the meaning of the Privacy Act. This means that the Privacy Act and the Australian Privacy Principles apply to the data retention activities of all service providers, including operators that would otherwise be exempt from the Privacy Act. Specifically including this section allows these service providers, and their employees, to provide information to the IGIS without breaching the Privacy Act.

1015.                   This provision is equivalent to the authorisation provision in subsections 7A(1D) (preliminary inquiries) and 8(2D) (investigations) of the Ombudsman Act.

Division 3 of Part IIIA - Sharing information by the Inspector-General - Overview

1016.                   Division 3 of Part IIIA would establish arrangements for the IGIS to transfer complaints and information to other integrity bodies, as well as to receive complaints transferred to it. It contains sections 32AF, 32AG and 32AH. These items are identical to former sections 32AC, 32AD and 32AF in the SLAID Act.

Section 32AF - Information sharing with integrity bodies

1017.                   Section 32AF would allow the IGIS to share information or documents with other integrity bodies. This is necessary to manage concurrent jurisdiction between the IGIS and other integrity bodies that have oversight over the ACIC and AUSTRAC.

1018.                   It is intended that the provision would 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. For example, in relation to AUSTRAC where both the IGIS and Ombudsman could have jurisdiction over a matter, allowing the IGIS to share contextual information with the Ombudsman could assist that body to determine that the IGIS is the appropriate oversight agency. Sharing information to avoid duplication reduces administrative burdens on both overseen agencies and integrity bodies.

1019.                   The provision would also support cooperation and coordination across integrity bodies, by allowing the IGIS to share information about its investigative processes and methodologies, as well as trends the IGIS has have identified through its oversight.

1020.                   It is also intended that this provision would support the IGIS to manage concurrent jurisdiction that may arise in relation to Commonwealth agencies other than intelligence agencies, if the IGIS is directed by the Prime Minister to inquire into an intelligence or a security matter relating to one or more of those agencies under section 9 of the IGIS Act.

1021.                   The IGIS’s information sharing function would be subject to the following safeguards to protect against the disclosure of sensitive information. Firstly, the IGIS may only share information it has obtained by exercising its duties, functions or powers (as an IGIS official). Secondly, the IGIS may only share information that is relevant to the receiving agency’s functions. Finally, the IGIS must be satisfied, on reasonable grounds, that the receiving agency has appropriate arrangements in place to protect the shared information.

1022.                   New subsection 32AF(3) further provides that the Inspector-General may enter into administrative arrangements with the head of an intelligence agency for the purposes of protecting information. This provision does not create an obligation or requirement for the IGIS to do so.

1023.                   The IGIS, like all agencies, is bound by the PSPF, as well as the offences that govern the unauthorised sharing of classified information in the Criminal Code. Additionally, section 34 of the IGIS Act provides that the IGIS may only disclose information in the performance of legislated functions, powers or duties. Improper disclosure of information by an IGIS official is a criminal offence, punishable by 2 years imprisonment, a fine of 50 penalty units, or both. These provisions provide a substantial protection mechanism against improper disclosure.

Section 32AG - Complaints transferred to other integrity bodies

1024.                    New section 32AG would provide that where the IGIS decides not to investigate a complaint on the basis that it could be more effectively or conveniently dealt with by another integrity body (under new subsection 11(4A)), the IGIS may transfer all, or part, of that complaint to that integrity body.

1025.                   Currently, the IGIS does not have any capacity to transfer complaints to other integrity bodies. This creates additional administration for both integrity bodies and complainants where complaints must be re-made to the appropriate integrity body. The complaints transfer scheme is intended to assist complainants, by removing the need for them to re-submit their complaints to other integrity body. Complaints-transfer provisions are common within the legislation of integrity bodies (including the AHRC Act, Privacy Act, Ombudsman Act and Defence Act), and support cooperation between integrity bodies.

1026.                   This item would also insert a note following section 32AG, to draw readers’ attention to the corresponding ‘deeming provisions’ in the governing legislation of the integrity body to which the IGIS transfers a complaint. These deeming provisions state that a complaint that is transferred by the IGIS to another integrity body is taken to be a complaint made to that body for the purposes of its governing legislation. This note signposts where the IGIS Act interacts with other integrity bodies’ primary legislation and is intended to assist with interpreting the Act.

1027.                   The proposed note does not include a specific reference to the IGADF. Under section 110C of the Defence Act, the IGADF is able to do anything incidental or conducive to the performance of its functions. The functions of the IGADF include to “inquire into or investigate matters concerning the military justice system” as well as any functions conferred on the IGADF by the Defence Act, other Commonwealth laws, or regulations. Relevantly, the Inspector-General of the Australian Defence Force Regulation 2016 allows the IGADF to consider complaints in particular circumstances . These provisions, read together, clearly allow the IGADF to receive transferred complaints. As such, it was not necessary to draft a specific deeming provision in the Defence Act, and the IGADF was not included in the note. This should not be read to infer that the IGIS cannot transfer complaints to the IGADF.

Section 32AH - Complaints transferred by integrity bodies

1028.                   Section 32AH would provide that where an integrity body has transferred a complaint to the IGIS, that complaint is deemed to have been made to the IGIS under the IGIS Act. This will ensure that the complainant does not need to re-submit the original complaint to the IGIS, and that the IGIS has a legal basis to handle transferred complaints. It also ensures that the complainant is protected under the IGIS Act for any disclosure of information.

1029.                   The item would also insert a note following new section 32AH, to draw readers’ attention to the provisions in other integrity bodies’ legislation that permits the transfer of complaints to the IGIS. This note would signpost where the IGIS Act interacts with other integrity bodies’ primary legislation and is intended to assist with interpreting the Act.

1030.                    It is noted that there is no ‘transfer provision’ in the LEIC Act. This is due to the broad information-sharing powers available to the Integrity Commissioner under which complaints may be transferred to another integrity body. However, as these powers are not specific to transferring complaints, they have not been listed in the note to section 32AH. The absence of a reference to the LEIC Act here should not be read to not infer that the IGIS may not receive complaints transferred to it by ACLEI.

Item 177: Paragraph 32A(1)(e)

1031.                   This item would insert “AUSTRAC” after “ACIC” in paragraph 32A(1)(e).

1032.                   Subsection 32A(1) provides that the IGIS may request access to annual or periodic reports prepared by intelligence agencies and provided to Ministers or the Secretary of the Defence Department (depending on the specific intelligence agency).

1033.                   This item extends the powers in subsection 32A(2) to cover documents which relate to AUSTRAC. These documents would include those issued by AUSTRAC section 46 of the P ublic Governance, Performance and Accountability Ac t 2013, and any other report that the IGIS believes relates to one of AUSTRAC’s intelligence functions (as defined in the IGIS Act), provided that such a report is prepared on a periodic basis and is given to the responsible Minister. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include AUSTRAC’s intelligence functions (within the meaning of the IGIS Act).

Item 178: Paragraph 32A(5)(aa)

1034.                   This item would insert “AUSTRAC” after “ACIC” in paragraph 32A(5)(aa).

1035.                   Subsection 32A(5)(aa) provides that where the head of the ACIC or AFP have not provided the responsible Minister with a copy of report outlined in section 32A(1),  the agency head need not give a copy of the report to the IGIS until the head has given the report to the responsible Minister.

1036.                   This item would amend paragraph 32A(5)(aa) to ensure this also applies to AUSTRAC’s reports at paragraph 32A(1)(e). The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include AUSTRAC’s intelligence functions (within the meaning of the IGIS Act) and ensures that the IGIS is able to access all information necessary to ensure appropriate oversight.

Items 179-180: Paragraph 32B(1A)(a), Subparagraph 32B(1A)(b)(i

1037.                   These items insert “AUSTRAC” after “ACIC” in paragraph 32B(1A)(a) and in sub-paragraph 32B(1A)(b)(i). Section 32B requires Ministers to provide the IGIS with a copy of any guidelines or directions given to the head of certain organisations.

1038.                   Subsection 32B(1A) provides that section 32B applies to any guidelines or directions that relate to the performance by the ACIC or AFP (in relation to their intelligence functions under the IGIS Act). These items ensures section 32AB also applies to guidelines or directions issued by the responsible Minister to AUSTRAC.

1039.                   These amendments are necessary to give effect to the IGIS’s new jurisdiction over AUSTRAC’s intelligence functions, and to ensure that the IGIS is able to access all information necessary to ensure appropriate oversight.

Item 181: Section 34B

1040.                   This item would repeal section 34B.

1041.                   Section 34B provided protections for persons providing information voluntarily to the IGIS. These protections have been moved into new section 32AC (inserted by item 176 of Schedule 2). This provision has been moved and expanded as a consequence of the increased scope of the IGIS’s oversight powers, and to co-locate a number of provisions relating to the IGIS’s relationship with other agencies.

Law Enforcement Integrity Commissioner Act 2006

Item 182: Paragraph 23A(a)

1042.                   This item would update the section reference in paragraph 23A(a).This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.

Item 183: Subsection 90(8)

1043.                   This item would update the section reference in subsection 90(8). This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.

Ombudsman Act 1976

Item 184: After paragraph 5B(b)

1044.                   This item would insert new paragraph (c) in section 5B, to the effect that section 5B would also apply in relation to AUSTRAC.

1045.                   Section 5B would ensure that when the IGIS transfers a complaint relating to action taken by ACIC or the AFP to the Ombudsman, that complaint is deemed to have been made under the Ombudsman Act. This item includes AUSTRAC in this provision to ensure that that there is a clear pathway for the IGIS to transfer a complaint to the Ombudsman in relation to complaints relating to the AUSTRAC where it is appropriate to do so. This section is also intended to manage duplication between oversight bodies by ensuring that the most appropriate integrity body is able to consider each specific complaint.

Item 185: Section 5B

1046.                   This item would update the section reference in section 5B. This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.

Item 186: After subparagraph 6F(1)(a)(i)

1047.                   This item would insert AUSTRAC into new subparagraph 6F(1)(a)(ia). 

1048.                   Section 6F allows the Ombudsman to transfer complaints to the IGIS. This will ensure section 6F allows the Ombudsman to transfer complaints relevant to AUSTRAC’s intelligence functions (under the IGIS Act) to the IGIS. This section is intended to manage duplication between oversight bodies by ensuring that the most appropriate integrity body is able to consider each specific complaint.

Privacy Act 1988

Item 187: Section 49B

1049.                   This item would insert “AUSTRAC” after “ACC” in section 49B.

1050.                   Section 49B allows the Information Commissioner to accept complaints transferred to them by the IGIS. This amendment will provide that when a complaint or part of a complaint in respect of action taken by AUSTRAC is transferred to the Information Commissioner under the IGIS Act, the complainant is deemed to have made a complaint to the Information Commissioner under subsection 36(1) of the Privacy Act.

1051.                   This is intended to ensure that a complaint transferred to the Information Commissioner by the IGIS in respect of AUSTRAC receives equivalent treatment to a complaint made directly to the Information Commissioner.

Item 188: Section 49B

1052.                   This item would update the section reference in section 49B. This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by item 176 of Schedule 2.

Public Interest Disclosure Act 2013

Item 189: Section 8 (definition of intelligence function)

1053.                   This item would insert “AUSTRAC” after “ACIC” in the definition of intelligence function. This provides that the meaning of intelligence function in relation to the AUSTRAC in the PID Act is the same meaning given by the IGIS Act.

Items 190-191: Section 34 (table item 1, column 2, paragraph (c)), Section 34 (table item 1, column 2, subparagraph (ca)(i))

1054.                   Section 34 of the PID Act contains a table which sets out who is to be considered an authorised internal recipient of a disclosure, which varies based on the agency to which the conduct to be disclosed relates. Generally, an authorised internal recipient is a person to whom a PID must be made in the first instance (other than in the case of an emergency disclosure).

1055.                   Item 1 of the table provides the potential authorised internal recipients of a disclosure, where the conduct with which the disclosure is concerned relates to an agency other than an intelligence agency, are the Ombudsman or the IGIS.

1056.                   Paragraph (c) (of column 2) provides that the Ombudsman is an authorised recipient if the discloser believes on reasonable grounds that it would be appropriate for the disclosure to be investigated by the Ombudsman. Item 190 would amend this paragraph to note that it applies subject to new paragraph (ca), inserted by item 191 of this Schedule.

1057.                   Item 191 would insert AUSTRAC into subparagraph (ca)(i) in Column 2 of item 1. This provides that in the circumstance where the discloser believes on reasonable grounds that where their disclosure relates to action taken by AUSTRAC in relation to that agency’s intelligence functions, and it is appropriate for the disclosure to be investigated by the IGIS then the IGIS would be an authorised internal recipient.

1058.                   Together, these items ensure that PIDs relating to AUSTRAC’s intelligence functions are made to the IGIS, rather than the Ombudsman.

Item 192: Section 42 (note 2)

1059.                   This item would insert “AUSTRAC” after “ACIC” in the note 2 after section 42.

1060.                   Note 2 of section 42 informs the reader that the way a disclosure is allocated may be the subject of a complaint to the Ombudsman under the Ombudsman Act, or, in the case of an intelligence agency or the ACIC AFP in relation to their intelligence functions, to the IGIS under the IGIS Act.

1061.                   This item amends note 2 of section 42 to clarify that a disclosure may be the subject of complaint to the IGIS under the under the IGIS Act, where a disclosure relates to the intelligence functions of AUSTRAC. The amendment is consequential to the expansion of the IGIS’s oversight jurisdiction to include AUSTRAC’s intelligence functions (within the meaning of the IGIS Act).

Item 193: Subparagraph 43(3)(a)(iii)

1062.                   This item would insert “AUSTRAC” after “ACIC” at subparagraph 43(3)(a)(iii).

1063.                   Section 43 outlines the responsibilities of an authorised officer who has received a PID, and how they are to allocate that PID.

1064.                   Section 43 provides that where a PID is made, the recipient of that PID must allocate that PID to one or more agencies for consideration. The recipient is not required to allocate the PID where the recipient is satisfied, on reasonable grounds, that there is no reasonable basis that the disclosure could be considered to be an internal disclosure (section 43(2)).

1065.                   Subsection 43(3) provides the matters to which an authorised officer must have regard when determining which agency to the disclosure should be referred to. Paragraph 43(3)(a) requires the officer to have regard to the principle that an agency should not handle a disclosure unless certain conditions, specified in the subparagraphs, apply.

1066.                   Subparagraph 43(3)(a)(iii) provides that IGIS should not handle a disclosure unless some or all of the suspected disclosable conduct relates to an intelligence agency, or the ACIC or AFP in relation to their intelligence functions.

1067.                   This item amends subparagraph 43(3)(a)(iii) to require an authorised officer not to allocate the handling of a disclosure to the IGIS unless some or all of the suspected disclosable conduct relates to AUSTRAC’s intelligence functions (as defined by the IGIS Act). This is reflects IGIS’s jurisdiction in relation to AUSTRAC.

Item 194: Paragraphs 44(1A)(a) and (b)

1068.                   This item would insert “AUSTRAC” after “ACIC” at paragraphs 44(1A)(a) and (b).

1069.                   Section 44 relates to the information that an authorised officer must share with the principal officer of the agency which has been allocated the disclosure.

1070.                   Subsection 44(1) requires an authorised officer to provide to the principal officer of each agency which has been allocated the disclosure:

·          the allocation itself

·          the information that was disclosed, the suspected disclosable conduct, and

·          the discloser’s name and contact details if they are available.

1071.                   In addition to the agency which has been allocated the disclosure, subsection 44(1A) requires the authorised officer originally in receipt of the disclosure to provide the same information as provided in subsection 44(1) to other agencies in certain circumstances. Specifically:

·          paragraph 44(1A)(a) requires the authorised officer to inform the Ombudsman where the disclosure is not allocated to the Ombudsman, the IGIS or an intelligence agency or the ACIC or AFP in relation to that agency’s intelligence functions, and

·          paragraph 44(1A)(b) requires the authorised officer to inform the IGIS where the disclosure is allocated to an intelligence agency or the ACIC or AFP in relation to that agency’s intelligence functions.

1072.                   This item amends paragraphs 44(1A)(a) and (b) to include AUSTRAC in relation to their intelligence functions. As result, where a disclosure does relate to AUSTRAC, the authorised officer will need to inform IGIS, and otherwise, if the issue has not been reported to the Ombudsman or the IGIS, to the Ombudsman. This is intended to reflect the extension of the IGIS’s oversight to include AUSTRAC’s intelligence functions.

Item 195: Section 46 (note)

1073.                   This item would insert “AUSTRAC” after “ACIC” in the section 46 note.

1074.                   Section 46 sets out a simplified outline of Division 2 of Part 3 of the PID Act, which relates to the obligations of the principal officer of the allocated agency to investigate and report on the disclosure. A note to section 46 signposts that the way a disclosure is investigated (or refused) may be subject to a complaint to the Ombudsman under the Ombudsman Act, or in the case of an intelligence agency (or the ACIC or AFP in relation to their intelligence functions), to the IGIS under the IGIS Act.

1075.                   This item would update the note in section 46 to clarify that the way a disclosure relating to AUSTRAC is investigated may also be subject to a complaint to the Ombudsman under the Ombudsman Act, or in relation to their intelligence functions under the IGIS Act, to the IGIS under the IGIS Act. This is intended to reflect the extension of the IGIS’s oversight to include AUSTRAC’s intelligence functions.

Item 196: Paragraph 50A(1)(c)

1076.                   This item would insert “AUSTRAC” before “ACIC” at paragraph 50A(1)(c).

1077.                   Section 50A requires the principal officer of an agency which has been allocated a disclosure to notify the Ombudsman or IGIS of a decision under section 48 or 49 of the PID Act to not investigate, or to not investigate further.

1078.                   Under existing section 50A, the principal officer is required to inform the Ombudsman where the agency is not the Ombudsman, the IGIS or an intelligence agency, or the ACIC or AFP and the disclosure does not relate to the intelligence functions of the agency. However the principal officer must inform the IGIS when the agency is an intelligence agency (or the ACIC or AFP) and the disclosure relates to the intelligence functions of the agency.

1079.                   This item includes AUSTRAC in paragraph 50A(1)(c) to the effect that the principal officer is required to notify the Ombudsman where the agency is not the Ombudsman, the IGIS, an intelligence agency, or where the agency is the ACIC, the AFP or AUSTRAC and the disclosure does not relate to the intelligence functions of that agency. This is intended to reflect the extension of the IGIS’s oversight to include AUSTRAC’s intelligence functions.

Item 197: Subparagraph 50A(2)(b)(ii)

1080.                   This item would insert “AUSTRAC” after “ACIC” at subparagraph 50A(2)(b)(ii).

1081.                   This would require the principal officer to notify the IGIS when the agency is an intelligence agency, or where the agency is the ACIC, the AFP or AUSTRAC and the disclosure relates to the intelligence functions of that agency. This is intended to reflect the extension of the IGIS’s oversight to include AUSTRAC’s intelligence functions.

Item 198: Paragraph 52(4)(b)

1082.                   This item would insert “AUSTRAC” after “ACIC” at subsection 52(4).

1083.                   Section 52 requires investigations to be completed within 90 days after allocation of the disclosure where reasonably practical, unless an extension is granted.

1084.                   Subsection 52(4) provides the IGIS with the power to provide an extension where the agency is the IGIS or an intelligence agency, or the ACIC or AFP where the disclosure relates to the intelligence functions of the agency, either under its own power, on application of the principal officer of the agency (where the agency is not IGIS) or on application by the discloser.

1085.                   This item would amend subsection 52(4) to also permit the IGIS to extend the time limit for investigations allocated to AUSTRAC, where the disclosure relates to the intelligence functions of the agency. This is intended to reflect the extension of the IGIS’s oversight to include AUSTRAC’s intelligence functions.

Item 199: Section 58 (note)

1086.                   This item would insert “AUSTRAC” after “ACIC” in the section 58 note.

1087.                   Section 58 provides a simplified outline of Division 1 of Part 4 of the PID Act. Division 1 of Part 4 relates to additional obligations placed on persons involved in the PID process, as well as providing additional functions to the Ombudsman and the IGIS.

1088.                   The note to section 58 signposts that the way these additional obligations may be subject to a complaint to the Ombudsman under the Ombudsman Act, or, where the obligations relate to an intelligence agency, or the ACIC or AFP in relation to that agency’s intelligence functions, to the IGIS under the IGIS Act.

1089.                   This item would amend the note to section 58 to clarify that the complaint may be to the IGIS in circumstances where the complaint relates to AUSTRAC’s actions in relation to their intelligence functions. This amendment is consequential to the expanded oversight of the IGIS to cover AUSTRAC’s intelligence functions (as defined in the IGIS Act).

Item 200: Paragraph 63(aa)

1090.                   This item would insert “AUSTRAC” after “ACIC” at paragraph 63(aa).

1091.                   Section 63 of the PID Act provides additional functions to the IGIS. Each of the paragraphs to section 63 specifies a function or functions of the IGIS under the PID Act.

1092.                   This item amends paragraph 63(aa) providing the IGIS with an additional functions of assisting principal officers, authorised officers, public officials, and former public officials in relation to the operation of the PID Act where it relates to AUSTRAC’s intelligence functions.

1093.                   This amendment is intended to provide the IGIS with the same functions in relation to AUSTRAC to the existing powers provided by paragraph 63(aa) in relation to the ACIC and AFP. This amendment is consequential to the expanded oversight of the IGIS to cover AUSTRAC’s intelligence functions (as defined in the IGIS Act).

Item 201: Paragraph 63(ba)

1094.                   This item would insert “AUSTRAC” after “ACIC” at paragraph 63(ba).

1095.                   Paragraph 63(ba) providing the IGIS with additional functions of conducting educational and awareness programs concerning the PID Act, relating to the intelligence functions of the ACIC and AFP, but only to the extent that the PID Act relates to one of those agencies, public officials who belong to that agency, or public officials who belonged to that agency.

1096.                   This amendment is intended to provide the IGIS with the same functions in relation to AUSTRAC as it would have in relation to the ACIC and AFP.

Item 202: Section 63 (paragraph (b) of the note)

1097.                   This item would insert “AUSTRAC” after “ACIC” at paragraph (b) of the note to section 63.

1098.                   The note now includes reference to the IGIS’s functions under section 8A of the IGIS Act towards intelligence functions of the ACIC, AFP and AUSTRAC.

1099.                   This amendment is consequential to the expanded oversight of the IGIS to cover AUSTRAC’s intelligence functions (as defined in the IGIS Act).

1100.                    

Schedule 3 - Application and transitional provisions

Item 1: application— main amendments of the Inspector-General of Intelligence and Security Act 1986

General application provision

1101.                   This item provides when the amendments made to the IGIS Act in Part 1 of Schedule 1, or Division 1, 3 or 4 of Part 3 of Schedule 2 apply to inquiries commenced after the Bill commences.

1102.                   Where an IGIS inquiry is in response to a complaint, the amendments would apply to any complaints made after the Bill commences, and to complaints made before the Bill commences where the IGIS has not completed any preliminary inquiries (under section 14 of the IGIS Act) or where the IGIS has not decided whether to commence an inquiry. Such complaints could relate to conduct that occurred before the commencement of the Bill.

1103.                   It is noted that complaints in relation to DIO or ONI are excluded from this application provision, as the IGIS will not be able to consider complaints in relation to these agencies until Part 1 of the Bill commences.

1104.                   The amendments in relation to PIDs and the PID Act do not apply to PIDs that have been allocated under section 43 of the PID Act before the Bill commences.

 Appointments as Inspector-General

1105.                    The amendments to section 30 of the IGIS Act (items 94-98 of Schedule 1 - relating to the grounds upon which the Governor-General may terminate the appointment of the Inspector-General) would apply to the current Inspector-General as well as any appointments to the position of Inspector-General following the commencement of Part 1 of Schedule 1.

Amendments relating to giving information etc.

1106.                    The amendments to section 18 of the IGIS Act (items 61-75 of Schedule 1 - which outline the IGIS’s information-gathering powers, as well as immunities and protections for persons providing information to the IGIS) would apply in relation to any information or document provided to the IGIS after the commencement of the Part 1 of Schedule 1.

1107.                   New section 32AF (item 73 or 176 of Schedule 2) which would allow the IGIS to share information with other integrity bodies) would apply following the commencement of Division 1 or 4 of Part 3 of Schedule 2, however would allow the IGIS to share information it has obtained before the commencement. This is to ensure that the IGIS is able to effectively cooperate with other integrity bodies from the commencement date, rather than being restricted in what information it is able to share, based on the date it obtained that information.

 Obligations on Inspector-General

1108.                   Section 17A (inserted by item 59 of Schedule 1) of the IGIS Act would apply in relation to any inspection, preliminary inquiry or inquiry (as the case requires) begun after the commencement of Part 1 of Schedule 1.

1109.                   Subsection 17(10) of the IGIS Act (to be repealed by item 58 of Schedule 1) would continue to apply to inquiries that had been commenced before the commencement of the Bill. This will make little substantive difference, as the Bill would remake former section 17(10), with the additional ability for the IGIS to notify the Australian Public Service Commissioner where a complaint relates to an agency-head.

Arrangements and agreements of Inspector-General

1110.                    Sections 32AAC and 32AAD (inserted by item 101 of Schedule 1) of the IGIS Act do not affect any secondment arrangement that the Inspector-General has entered into before those sections commence.

1111.                   New section 32AB of the IGIS Act (item 73 or 176 of Schedule 2 - which would require the IGIS to consider the functions of other integrity bodies, and permits the IGIS to consult with other integrity bodies) would apply in relation to any functions performed after the commencement of Division 1 or 4 of Part 3 of Schedule 2. This would ensure that the IGIS would be able to manage duplication in oversight activities from the time that its jurisdiction expands. This is necessary as the IGIS would be able to consider conduct that occurred before the commencement of the Bill, which may be subject to oversight by other integrity bodies.

 Protection for persons providing information

1112.                   Section 32AC of the IGIS Act (item 73 or 176 of Schedule 2 - which protects people who voluntarily provide information to the IGIS) applies in relation to any information or document provided or made available to the IGIS, whether before or after the commencement of Division 1 or 4 of Part 3 of Schedule 2. This is intended to maximise the protections for individuals who are disclosing information to the IGIS, and to support the IGIS’s oversight functions.

 Security of Commonwealth agency information and documents

1113.                   Section 32AD of the IGIS Act (item 73 or 176 of Schedule 2 - which outlines the requirements for the IGIS to protect information) applies in relation to any inspection, preliminary inquiry or inquiry begun after the commencement of Part 1 of Schedule 1.

1114.                   Section 20 (to be repealed by item 79 of Schedule 1) of the IGIS Act would continue to apply, after the commencement of Part 1 of Schedule 1, in relation to any inspection, preliminary inquiry or inquiry begun before that commencement. This would ensure that there is no gap in the obligation on the IGIS to maintain the security of information and documents.

 Authorisation for the purposes of the Privacy Act 1988

1115.                    Section 32AE of the IGIS Act (item 73 or 176 of Schedule 2 - which would allow agencies to disclose personal information [as defined under the Privacy Act] to provide information to the IGIS) would apply in relation to any personal information given or made available after the commencement of Division 1 or 4 of Part 3 of Schedule 2 (whether or not the information was obtained before or after that commencement).

 Transferring complaints

1116.                    Section 32AG of the IGIS Act (item 73 or 176 of Schedule 2 - which would allow the IGIS to transfer complaints to other integrity bodies) applies in relation to complaints made after the commencement of Division 1 or 4 of Part 3 of Schedule 2  (noting that the conduct of the complaint may have occurred at any time). This would ensure that the IGIS would be able to manage duplication in oversight activities from the time that its jurisdiction expands. This is necessary as the IGIS would be able to consider conduct that occurred before the commencement of the Bill, which may be subject to oversight by other integrity bodies.

 Obtaining reports

1117.                   The amendments to section 32A of the IGIS Act (item 74-75 or 177-178 of Schedule 2 - which relates to the IGIS’s ability to request copies of annual and periodic reports from its overseen agencies) would apply in relation to reports given on or after the commencement of Division 1 or 4 of Part 3 of Schedule 2. This would support the IGIS’s ability to access information necessary to perform its oversight functions.

 Giving directions and guidelines

1118.                   The amendments to section 32B of the IGIS Act (item 77 or 179-180 of Schedule 2 - which relates to the IGIS’s ability to request copies of guidelines or directions given to agency heads) would apply in relation to directions or guidelines that are (1) in force immediately before commencement (ie. existing guidelines) and (2) given after the commencement of Division 1 or 4 of Part 3 of Schedule 2. This would support the IGIS’s ability to access information necessary to perform its oversight functions, as the IGIS is able to consider matters which occurred prior to the commencement of its expanded jurisdiction.

Evidential burden

1119.                    New section 34B of the IGIS Act (item 78 of Schedule 2 - which would remove any evidential burden placed on an IGIS official by a secrecy offence) would apply to prosecutions for offences commenced after the commencement of Division 1 of Part 3 of Schedule 2. The new section would apply regardless of whether the offence was committed, or alleged to be committed, before or after that commencement. This protects sensitive information provided to the IGIS from disclosure.

Item 2: application—amendments to Intelligence Services Act 2001 in Part 1 of this Schedule

1120.                   This item provides that the amendments to the IS Act (and therefore the PJCIS’s oversight over AUSTRAC’s intelligence functions), with the exception of the amendments to clause 7 of Schedule 1, would commence with Part 1 of the Bill (that is, the day after Royal Assent). This would allow the PJCIS to oversee any relevant matter involving AUSTRAC’s intelligence functions which occurred after the commencement of Part 1 of Schedule 1.

1121.                   The amendments to clause 7 of Schedule 1 would apply to any report provided to Parliament by the PJCIS after the commencement of Part 1 of Schedule 1, even where the report would include information obtained before the commencement of that Part. This amendment is intended to ensure that sensitive information is not disclosed improperly to the public.

Item 3: application of amendments in Part 2 of Schedule 1

1122.                   The amendments contained in Part 2 would commence immediately after Part 1 of the Bill, which commences the day after the Bill receives Royal Assent.

1123.                   Part 2 of the Bill amends numerous Acts to permit the making, disclosing or using (however described) of information, documents or records (however described) to an IGIS official, as part of that IGIS official’s duties (amongst other amendments necessary to give effect to IGIS’s expanded jurisdiction). This item provides that provisions permitting the disclosure of information to IGIS officials would apply to any disclosure of information, documents or records that occurred after commencement, even where the information, documents or records were obtained by the discloser prior to the commencement of Part 2.

1124.                   The amendments to section 19A of the ACC Act (item 154 of Schedule 1 - which would provide that IGIS secrecy offences are not displaced by the ability of an ACIC examiner to request information from agencies), apply to requests made after this Part commences (that is, immediately after Part 1).

1125.                    The amendments to subsections 25A(4) and insertion of new subsections (4A)-(4C) of the ACC Act (items 157-158 of Schedule 1) which would allow an ACIC examiner to direct an IGIS official to leave an examination) apply in relation to examinations that are conducted after the Part commences.

1126.                   The amendments to subsections 25A(14B) and (14C) of the ACC Act (item 159 of Schedule 1 - which would provide that examination materials could be disclosed to the IGIS, and to clarify the operation of the principles of criminal liability in relation to prosecutions of the offence in subsection 25A(14)) apply in relation to use or disclosures of examination material after the amendments commence (whether the material was created or obtained before or after that commencement).

Item 4: Application of amendments in Parts 1 and 2 of Schedule 2

1127.                   The proposed amendments in Division 1 and 2 of Part 1 of Schedule 2 (contingent amendments depending on the status of the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Act 2020 ) apply in relation to the making, disclosing or using (however described) of information, documents or records (however described) after the commencement of those Divisions (regardless of whether the information, documents or records were obtained before or after that time).

1128.                   The amendments in Division 1 and 2 of Part 2 of Schedule 2 (contingent amendments depending on the status of the Australian Security Intelligence Organisation Amendment Act 2020 ), apply in relation to inquiries commenced after the amendments are in force, but this does not prevent the IGIS from considering actions that took place before the commencement date.

1129.                   Where a complaint is made to the IGIS before Divisions 1 or 2 of Part 2 of Schedule 2 commence (except complaints in relation to ONI or DIO - where the IGIS has limited complaints functions), the amendments only apply in situations where the IGIS has not completed their preliminary inquiries (under section 14 of the IGIS Act) or where the IGIS has not yet made a decision about whether to commence an inquiry.

Item 5: Application of certain amendments in Part 3 of Schedule 2

1130.                   The amendments of subsection 43(3) and sections 44, 50A and 52 of the PID Act (which would amend the PID Act to ensure that the IGIS is able to receive PIDs in relation to the ACIC and AUSTRAC) apply in relation to public interest disclosures made after the commencement of Division 1, 3 or 4 of Part 3 of Schedule 2 (including in relation to conduct that occurred before the commencement of the amendments).