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Intelligence Services Legislation Amendment Bill 2023

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2022-2023

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2023

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Hon Mark Dreyfus KC MP)

 

                                                                                                        



 

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

AAT

Administrative Appeals Tribunal

AAT Act

Administrative Appeals Tribunal Act 1975

ABF Act

Australian Border Force Act 2015

ACC Act

Australian Crime Commission Act 2002

ACIC

Australian Criminal Intelligence Commission (established as the

Australian Crime Commission in the ACC Act)

ACLEI

Australian Commission for Law Enforcement Integrity

Acts Interpretation Act

Acts Interpretation Act 1901

AFP

Australian Federal Police

AFP Act

Australian Federal Police Act 1979

AGO

Australian Geospatial-Intelligence Organisation

AHRC

Australian Human Rights Commission

AHRC Act

Australian Human Rights Commission Act 1986

AIC

Australian Intelligence Community

AML/CTF Act

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Archives Act

Archives Act 1983

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

Citizenship Act

Australian Citizenship Act 2007

Comprehensive Review

Comprehensive Review of the Legal Framework of the National Intelligence Community

Crimes Act

Crimes Act 1914

Criminal Code

Schedule 1, Criminal Code Act 1995

DIO

Defence Intelligence Organisation

Home Affairs

Department of Home Affairs

ICCPR

International Covenant on Civil and Political Rights

IGIS

Office of the Inspector-General of Intelligence and Security

IGIS Act

Inspector-General of Intelligence and Security Act 1986

IGIS Modernisation Bill

Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022, which is yet to become an Act

INSLM

Independent National Security Legislation Monitor

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 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

Migration Act

Migration Act 1958

NACC Act

National Anti-Corruption Commission Act 2022

NACC (CTP) Act

National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022

NACC Commissioner

National Anti-Corruption Commissioner

NIC

National Intelligence Community

NSLAB (No. 2) Bill

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023, which is yet to become an Act

Ombudsman

Commonwealth Ombudsman

Ombudsman Act

Ombudsman Act 1976

ONI

Office of National Intelligence

ONI Act

Office of National Intelligence Act 2018

Parliamentary Privileges Act

Parliamentary Privileges Act 1987

PGPA Act

Public Governance, Performance and Accountability Act 2013

PID

Public interest disclosure, as defined in the PID Act

PID Act

Public Interest Disclosure Act 2013

PID Amendment Act

Public Interest Disclosure Amendment (Review) Act 2022

PJCIS

Parliamentary Joint Committee on Intelligence and Security

PJCLE

Parliamentary Joint Committee on Law Enforcement

PJCLE Act

Parliamentary Joint Committee on Law Enforcement Act 2010

Privacy Act

Privacy Act 1988

PSPF

Protective Security Policy Framework

SCI Act

Security of Critical Infrastructure Act 2018

SD Act

Surveillance Devices Act 2004

Telecommunications Act

Telecommunications Act 1997

TIA Act

Telecommunications (Interception and Access) Act 1979

 



 

INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2023

General Outline

1.                   Australia confronts emerging and serious threats to its national security. To meet these threats, intelligence and security agencies must have the necessary powers and resources to protect Australian citizens and Australian interests. In matters of national security, the Parliament must strike a balance between the protection of Australia’s essential security interests and the preservation of essential rights and freedoms. The key to achieving this balance is the existence of strong and effective safeguards and oversight.

 

2.                   Public trust and confidence in our security and intelligence agencies can only be assured through rigorous and effective oversight and—to the extent possible—public accountability. The greater the potential for the powers of agencies to infringe on individual liberties, the greater the need for accountability in the exercise of that power.

 

3.                   The National Intelligence Community (NIC) comprises ten agencies: the Australian Criminal Intelligence Commission (ACIC), the Australian Geospatial-Intelligence Organisation (AGO), the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Australian Signals Directorate (ASD), the Defence Intelligence Organisation (DIO), the Office of National Intelligence (ONI), the Australian Federal Police (AFP), the Australian Transaction Reports and Analysis Centre (AUSTRAC), and the Department of Home Affairs (Home Affairs).

 

4.                   The Bill would amend the Intelligence Services Act 2001 (IS Act) and the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure holistic and robust oversight of all ten NIC agencies. The Bill would expand the jurisdictions of the IGIS and PJCIS to include four additional agencies: the ACIC, AFP, AUSTRAC and Home Affairs. It would also strengthen the relationship between the PJCIS, the IGIS and the Independent National Security Legislation Monitor (INSLM), and provide the PJCIS with a power to request the IGIS conduct an inquiry, complementing the Committee’s existing ability to request that the INSLM undertake a review. The Bill would also provide an own-motion power to the PJCIS to review certain legislation and a requirement that the IGIS and the Director-General of National Intelligence provide briefings to the Committee.

 

5.                   Schedule 1 of the Bill would:

Part 1 of Schedule 1:

·          Expand the jurisdictions of the IGIS and the PJCIS to oversee the ACIC, and the intelligence functions of AUSTRAC, AFP and Home Affairs.

·          Provide that the PJCIS may, at its own initiative, review proposed reforms to counter-terrorism and national security legislation, and all such expiring legislation.

·          Enable the PJCIS to request the IGIS conduct an inquiry into the legality and propriety of particular operational activities of the agencies within the IGIS’s jurisdiction, and if the IGIS undertakes an inquiry at the request of the PJCIS, require the IGIS to provide a report to the PJCIS or notify the reasons if a report is not provided.

·          Clarify the legislation which enables the PJCIS to request a briefing from the INSLM.

·          Clarify the IGIS’s complaints jurisdiction to provide that the Inspector-General is not required to inquire into a complaint if the Inspector-General is not satisfied that the action complained of is the kind of action that is reasonably likely to have been taken by an intelligence agency.

·          Require the Inspector-General and the Director-General of the Office of National Intelligence (ONI) to provide annual briefings to the PJCIS.

·          Require the Inspector-General to provide annual briefings to the Parliamentary Joint Committee on Law Enforcement (PJCLE).

·          Make a number of technical amendments to the IS Act to modernise and clarify the provisions to ensure the PJCIS’s enabling legislation is adapted to contemporary circumstances.

 

Part 2 of Schedule 1:

·          Make consequential amendments to ensure that information that is protected by secrecy offences under relevant legislation can be disclosed to IGIS officials performing duties or functions, or exercising powers, as IGIS officials. These amendments would allow for the transfer of complaints regarding AUSTRAC and Home Affairs between the IGIS and other integrity bodies to facilitate effective consideration of those complaints by the appropriate body.

·          Make consequential amendments to address overlapping jurisdiction between the IGIS and relevant oversight bodies .

 

Part 3 of Schedule 1:

·          Make consequential amendments commencing after the National Anti-Corruption Commission Act 2022 (NACC Act).

 

Part 4 of Schedule 1:

·          Make consequential amendments commencing after the Public Interest Disclosure Amendment (Review) Act 2022 (PID Amendment Act).

 

Part 5 of Schedule 1:

·          Make consequential amendments commencing after the PID Amendment Act and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 (NACC (CTP) Act) commence.

 

6.       Schedule 2 of the Bill would:

Part 1 of Schedule 2:

·          Make consequential amendments if the NACC (CTP) Act commences before the main amendments in Schedule 1 of the Bill.

 

Part 2 of Schedule 2:

·          Make consequential amendments if the main amendments in Schedule 1 commence before the NACC (CTP) Act.

 



 

Part 3 of Schedule 2 :

·          Make consequential amendments commencing after the NACC (CTP) Act commences if the main amendments in Schedule 1 commence first.

 

Part 4 of Schedule 2:

·          Make consequential amendments if the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (NSLAB (No. 2) Bill) commences before the main amendments in Schedule 1 of the Bill

 

Part 5 of Schedule 2:

·          Make consequential amendments if the main amendments in Schedule 1 commence before the NSLAB (No.2) Bill.

 

Part 6 of Schedule 2:

·          Make consequential amendments commencing after the NSLAB (No. 2) Bill commences if the main amendments in Schedule 1 commence first.

 

7.       Schedule 3 of the Bill would:

·          Amend the review and access of ACIC criminal intelligence assessment records under the archives law

 

8.       Schedule 4 of the Bill would:

·          Amend the Criminal Code to introduce an exemption from civil and criminal liability for defence officials and others, for certain computer related conduct connected to an effect outside Australia.

 

9.       Schedule 5 of the Bill contains application and transitional provisions.

 

FINANCIAL IMPACT

10.   The Government has committed $12.2 million over three years from 2024-25, and $4.9 million ongoing, to support the expanded jurisdiction of the IGIS, and $1.3 million over four years from 2023-24, and $0.3 million ongoing, to support the expanded jurisdiction of the PJCIS, contained in the 2023-24 Budget.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Intelligence Services Legislation Amendment Bill 2023

11.               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

12.               The Bill amends the Inspector-General of Intelligence and Security Act 1986 (IGIS Act), the Intelligence Services Act 2001 (IS Act), the Office of National Intelligence Act 2018 (ONI Act) and the Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act) to enhance existing oversight arrangements of the intelligence agencies, expand the jurisdictions of the Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to four additional National Intelligence Community (NIC) agencies and strengthen the relationship between the PJCIS, the IGIS and the Independent National Security Legislation Monitor (INSLM). The Bill makes a number of consequential amendments to other Commonwealth legislation to support the expanded jurisdictions, clarify the IGIS’s complaints jurisdiction and makes technical amendments to the IS Act to clarify and enhance the efficiency of the PJCIS.

13.               These measures are designed to ensure robust and holistic oversight of Australia’s intelligence community is achieved.

14.               The Bill amends the Criminal Code Act 1995 (Criminal Code) to introduce an exemption from civil and criminal liability for certain conduct engaged in by defence officials and others, that is connected to an effect outside of Australia.

Human rights implications

15.               The Bill’s amendments would engage the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):

·          the right to humane treatment in detention under article 10(1),

·          the right to a fair trial and a fair hearing under article 14(1),

·          the prohibition on interference with privacy under article 17, and

·          the right to freedom of expression under article 19.

Right to humane treatment in detention

16.               Some of the proposed measures in the Bill would promote the right to humane treatment in detention, which is codified under article 10(1) of the ICCPR:

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

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

18.               Schedule 1, items 21 and 26 would repeal and substitute sections 9B and 19A of the IGIS Act. These new provisions 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 questioned or apprehended under Division 2 or Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), or detained under sections 31 and 34D of the Australian Crimes Commission Act 2002 (ACC Act).

19.               Previously, sections 9B and 19A only applied to the prescribed sections of the ASIO Act, but the inclusion of the ACC Act reflects the IGIS’s expanded remit over the Australian Criminal Intelligence Commission (ACIC), which can detain persons under the ACC Act in limited circumstances.

20.               These items would promote the right to humane treatment in detention, by enabling independent oversight of places of detention.

Right to a fair trial and a fair hearing

21.               Some of the proposed measures in the Bill engage the right to a fair trial and a fair hearing in article 14(1) of the ICCPR, which provides (in part):

(1)        All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

22.               Schedule 1, items 30 and 34 would promote the right to a fair trial. New section 22A of the IS Act, inserted by item 30, sets out requirements related to the response of the IGIS to a request by the PJCIS. New paragraph 22A(2)(b) would require the IGIS to consult the head of an intelligence agency on whether the terms of a proposed response to the PJCIS would prejudice the fair trial of a person or the impartial adjudication of a matter. Item 34 would require the Inspector-General, before sharing ACIC examination material, to consult with the CEO of ACIC as to whether that sharing could reasonably be expected to prejudice the fair trial of the examinee for the examination material, if the examinee has been charged with a related offence or a charge for a related offence is imminent. These consultation requirements promote the right to a fair trial by ensuring that there are appropriate safeguards for the disclosure of information.

23.               Schedule 1, items 113 and 114 would also promote the right to a fair trial. The ACC Act allows an ACIC examiner to conduct a post-charge examination of an examinee, including asking questions about the charged offence. These items would amend section 25A of the ACC Act to provide that an IGIS official may be present during an examination for the purposes of conducting an inspection or inquiry under the IGIS Act. There are only limited circumstances under which an examiner may prevent an IGIS official from being present during an examination, and if an IGIS official were to be excluded they must be provided with an audio-visual recording of the examination. These measures will promote the right to a fair trial by ensuring that the IGIS has access to information needed to provide effective oversight of the conduct of ACIC examinations.

24.               The right to a fair trial and a fair hearing 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.

25.               Schedule 1, item 185 would expand the matters for which a chief officer of a law enforcement agency may provide an evidentiary certificate, engaging the right to a fair trial. Section 15MS of the Crimes Act 1914 contains a number of offences regarding the disclosure of information related to witness identity protection certificates. New sections 15MS(1)(e)(iv), (2)(e)(iv) and (3)(e)(iv) would provide that such a disclosure is not an offence if it is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.

26.               These provisions would enable the chief officer of a law enforcement agency to certify whether conduct was for such a purpose. This certificate would be able to be used as  prima facie  evidence of the matters that are certified in it. This engages the right to a fair hearing as an evidentiary certificate scheme creates a presumption as to the existence of the factual basis on which the certificate is issued which requires the defendant to disprove the matters certified in the evidentiary certificate if they seek to challenge them. 

27.               The legitimate objective of the measures in new sections 15MS(1)(e)(iv), (2)(e)(iv) and (3)(e)(iv) is to ensure that all of the NIC is holistically and appropriately overseen by the IGIS. These measures, and the measure in item 185, are rationally connected to this objective by ensuring persons are not penalised for disclosing information to an IGIS official and that the IGIS has access to the information it needs to oversee the activities of these agencies.

28.               The measure is proportionate to the objective of supporting robust oversight as it is limited to circumstances where information was disclosed to an IGIS official for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. Additionally, while the certificate would provide prima facie evidence of the matters certified under it in a proceeding, evidence may still be raised by the defendant to rebut the certificate.

Prohibition on interference with privacy

29.               A number 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.

30.               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.

31.               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.

32.               Schedule 1, items 91, 93, 94, 96, 97, 103, 108, 111, 115, 117, 119, 129, 131, 158, 178-180, 182, 184, 187, 188, 239 and 241 would provide for exceptions to existing offences in relation to the disclosure or unauthorised disclosure of certain types of information. The exceptions in these provisions would provide that the offences do not apply, or that it is not an offence to disclose or to engage in conduct that results in the disclosure of certain types of information, if the disclosure is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. These amendments intend to make it clear that information and records can be shared with IGIS officials for the purpose of IGIS officials performing their oversight functions. For example, an agency may provide information to an IGIS official in relation to an inquiry being conducted by the IGIS. Such disclosures may include the disclosure of personal information to an entity that it was not originally disclosed to, therefore engaging the right to privacy.

33.               Schedule 1, items 35-39, 142, 144, 162-164, 166, 275 and 281 would enable the IGIS to obtain copies of reports prepared by the ACIC, and reports prepared by the Australian Federal Police (AFP), the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Department of Home Affairs (Home Affairs) that relate to those agencies’ intelligence functions. Schedule 1, item 312 would provide that the PJCIS must be given a copy of any report provided by the IGIS to the Minister where the report relates to certain ACIC warrants or authorisations. Information contained in these reports may include personal information that an agency has acquired as part of its intelligence functions, thereby engaging the right to privacy.

34.               Schedule 1, items 243-246, 298, 300, 310, 311, 324 and 325 would require agencies within the IGIS’s jurisdiction to notify the IGIS of the issuance of certain kinds of warrant (and provide a copy of the warrant), that certain actions have been taken in relation to warrants or of the contravention of the conditions imposed on a warrant. This may include personal information and therefore engage the right to privacy.

35.               Schedule 1, items 340-342 would require the IGIS to be notified when public interest disclosures (PIDs) relating to the agencies within its jurisdiction are allocated (including a decision not to allocate a PID) or when investigation of the PID is completed. This would include providing personal information to the IGIS, engaging the right to privacy.

36.               Schedule 1, items 126, 177, 198, 218, 256, 320, 333 and 335 would allow the IGIS to share information with, receive information from, or transfer complaints to, other integrity bodies, the National Anti-Corruption Commission, and State and Territory inspecting authorities, and create safeguards for information sharing. These measures may involve the sharing or transfer of personal information to, or by, an entity that it was not originally disclosed to, engaging the right to privacy.

37.               Schedule 1, items 95, 100 and 189 contain measures that would ensure the IGIS has full and free access to information relevant to the performance of the functions or duties, or the exercise of the powers of IGIS officials. Information accessed by the IGIS might include personal information that an overseen agency has acquired as part of its intelligence functions, therefore engaging the right to privacy.

38.               Schedule 1, item 30 (which would insert new section 22A into the IGIS Act) would promote the right to privacy. This item would require the IGIS to consult with relevant agencies as to whether information contained in a report to the PJCIS would, among other things, prejudice the privacy of individuals. This requirement specifically promotes the right to privacy by ensuring that there are appropriate safeguards for the disclosure of personal information when providing a report to the PJCIS.

39.               Schedule 1 item 34 (which would insert new section 32AFA into the IGIS Act) would promote the right to privacy. This measure would require the IGIS, before sharing ACIC examination material, to consider and consult with the ACIC CEO as to whether that sharing might prejudice a person’s safety or would reasonably be expected to prejudice the fair trial of the examinee for the examination material. ACIC examination material would include personal information and these amendments promote the right to privacy by ensuring there are adequate safeguards for the disclosure of such information.

40.               Schedule 1, items 70-72 (which would amend Clause 1A of Schedule 1 of the IS Act) would promote the right to privacy by expanding the definition of ‘operationally sensitive information’ that cannot be required to be disclosed to the PJCIS. These types of information might include personal information that these agencies have acquired as part of their intelligence functions. These amendments promote the right to privacy by ensuring adequate and appropriate safeguards for the disclosure of personal information.

41.               Schedule 1, items 76 and 77 (which would amend clause 7 of Schedule 1 of the IS Act) would promote the right to privacy by limiting the kinds of information the PJCIS may include in a report to a House of Parliament, including information, such as the identity of a confidential source of information, that would include personal information. This promotes the right to privacy by ensuring adequate and appropriate safeguards for the disclosure of personal information.

42.               Schedule 1, items 106 and 121 would provide limits on the ability of ACIC examiners to request or require the IGIS to provide information. The IGIS holds information, including personal information, from agencies and complainants. These measures promote the right to privacy by ensuring there are adequate safeguards for the disclosure of such information.

Rational connection to a legitimate objective

43.               The legitimate objective of each of the measures engaging the right to privacy is to ensure all of the NIC is holistically and appropriately overseen by oversight bodies (IGIS and PJCIS), while also ensuring the efficient and effective operation of oversight across integrity bodies, including avoiding unnecessary duplication of oversight.

44.               Measures which allow the IGIS full access to information held by NIC agencies (including reports) and that require NIC agencies to provide certain information proactively, are rationally connected to this objective by ensuring that the IGIS has the information it needs to oversee the activities of these agencies, including ascertaining whether NIC agencies are handling personal information appropriately.

45.               Measures which allow persons to disclose information to IGIS officials in the performance of functions or duties, or the exercise of powers, as IGIS officials, are rationally connected to this objective by ensuring persons are not penalised for raising concerns about the activities of NIC agencies with the IGIS as the appropriate oversight body.

46.               Measures which allow the IGIS to transfer and receive complaints, and to share information, are rationally connected to this legitimate objective by enabling effective cooperation between integrity bodies. These measures will ensure 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.

47.               Measures which allow the PJCIS access to certain IGIS reports regarding agencies within its jurisdiction are rationally connected to this objective by ensuring the PJCIS has access to the information it needs to oversee these agencies.

Proportionate to the objectives of the limitation

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

49.               Measures allowing the IGIS to access or receive information held by NIC agencies are proportionate to the objective of supporting robust oversight. IGIS officials are only able to access information for the purposes of performing duties or functions or exercising powers 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.

50.               Measures supporting information sharing and complaints transfers are proportionate to the objective of ensuring efficiencies between oversight bodies by requiring consideration of certain matters before information can be shared and 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). For example, complaints may only be transferred where an integrity body has determined that a matter could be more effectively and appropriately dealt with by another integrity body. Additionally, oversight bodies are subject to offences for the improper disclosure of information (that is, disclosure of information to a body where the information is not connected to the duties, functions or powers of the body).

51.               Measures which place limits on the PJCIS’s ability to disclose, or require the disclosure of, certain types of information, which may include personal information, promote the right to privacy by ensuring adequate and appropriate safeguards around the disclosure of personal information.

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

Right to freedom of expression

53.               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.

54.               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.

55.               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.

Rational connection to a legitimate objective

56.               The legitimate objective of the legislation is to ensure that information provided to the PJCIS may only be published or included in reports in circumstances where it would not cause detrimental impacts on national security, public order, or public health. This is necessary to maintain confidence in the PJCIS’s ability to protect the sensitive information it obtains, which includes information which concerns Australia’s national security.

Proportionate to the objectives of the limitation

57.               Restricting the publication or inclusion in reports of certain information by the PJCIS supports this objective, and is proportionate, given the sensitivity of the information held by the PJCIS and the need to protect national security and public safety.

58.               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, who would otherwise be subject to secrecy offences, does not commit an offence by disclosing information to the IGIS that would otherwise constitute an offence.

59.               Schedule 1, items 222-226 would also promote the right to freedom of expression by ensuring the ability for external disclosures to be made about the ACIC is preserved, in accordance with the current approach to the ACIC under the Public Interest Disclosure Act 2013 (PID Act), although the ACIC would be considered an intelligence agency for the purposes of that Act.

60.               Schedule 1, items 70-72, 76 and 77 of the Bill would limit the right to freedom of expression. These items would limit the kinds of information that the PJCIS may publish or include in a report to a House of the Parliament.

Schedule 4 - Prohibition on interference with privacy

61.               Schedule 4, items 1-4 provide an exemption from civil or criminal liability for defence officials if they engage in conduct on the reasonable belief that it is likely to cause a computer-related act, event, circumstance or result to take place outside of Australia, and the conduct was engaged in in the proper performance of authorised activities of the Australian Defence Force (ADF). These amendments may indirectly create a risk that a person’s right to protection against arbitrary and unlawful interferences with privacy under Article 17 of the ICCPR may be violated, including by inadvertently affecting a computer or device inside Australia.

62.               These reforms are necessary to ensure that the ADF can utilise cyber capabilities for activities connected with the defence and security of Australia. Exemptions for defences officers engaging in such conduct, while in the proper performance of activities of the ADF, are necessary to ensure that those defence officers can undertake such activities in accordance with the Australian Government’s requirements, without fear of personal liability.

Rational connection to a legitimate objective

63.               The introduction of these provisions reflects the technological reality of the environment in which defence officials operate. It is not always possible for defence officials to be certain of the location of a computer or device online, particularly where an adversary takes active steps to conceal or obfuscate their location. Protecting defence officials from liability in such circumstances is necessary to ensure such persons can carry out activities connected with the defence or security of Australia, with the reasonable belief that their conduct will take effect outside Australia, and without fear of personal liability if their belief turns out to be mistaken.

Proportionate to the objectives of the limitation

64.                These exemptions from liability are proportionate as they are limited to circumstances where defence officials engage in conduct in the proper performance of authorised activities of the ADF, and where defence officials have a reasonable belief the activity will cause a computer-related act, event, circumstance or result to take place outside Australia. Defence officials would not be immune for conduct engaged in otherwise than in the proper performance of an authorised ADF activity. A defence official will not be exempt if they believe that their conduct will take effect inside Australia, or if their belief is not reasonable in the circumstances.

Conclusion

65.               The Bill is compatible with human rights as it promotes compliance with the protection of human rights through enhanced oversight of the activities of Australia’s intelligence agencies. To the extent that human rights are engaged, 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

Preliminary

Clause 1 - Short title

1.                   This clause provides for the short title of the Act to be the Intelligence Services Legislation Amendment Act 2023 .

Clause 2 - Commencement

2.                   This clause provides for the commencement of each provision in the Bill, as set out in the table. Subclause 2(2) provides that information in column 3 of the table is not part of the Bill.

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 elsewhere covered by the table, will commence the day after the Bill receives the Royal Assent. 

4.                   Item 2 of the table provides that Schedule 1, Parts 1 and 2 of the Bill (main amendments to the Inspector-General of Intelligence and Security Act 1986 (IGIS Act), Intelligence Services Act 2001 (IS Act), Office of National Intelligence Act 2018 (ONI Act), Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act) and consequential amendments commencing with the main amendments) would commence the later of the start of the day that is 6 months after the Bill receives the Royal Assent, and the commencement of Schedule 1 to the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Act 2022 (IGIS Modernisation Bill), which is yet to be passed.

5.                   However, item 2 of the table notes that Schedule 1, Parts 1 and 2 do not commence at all if Schedule 1 to the IGIS Modernisation Bill does not commence at all.

6.                   Item 3 of the table provides that Schedule 1, Part 3 of the Bill (consequential amendments commencing after the National Anti-Corruption Commission Act 2022 (NACC Act)) would commence the later of the commencement of the provisions covered by item 2 of the table, and the commencement of Parts 2 to 9 of the NACC Act.

7.                   Item 4 of the table provides that Schedule 1, Part 4 of the Bill (consequential amendments commencing after the Public Interest Disclosure Amendment (Review) Act 2022 (PID Amendment Act)) would commence the later of the commencement of the provisions covered by item 2 of the table, and immediately after the commencement of Schedules 1 to 3 of the PID Amendment Act.

8.                   However, item 4 of the table notes that Schedule 1, Part 4 does not commence at all if Schedules 1 to 3 of the PID Amendment Act do not commence at all.

9.                   Item 5 of the table provides that Schedule 1, Part 5 of the Bill (consequential amendments commencing after the PID Amendment Act and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 (NACC (CTP) Act) commence) would commence the later of the commencement of the provisions covered by item 2 of the table, and immediately after the commencement of Schedule 4, Part 4 to the PID Amendment Act.

10.               However, item 5 of the table notes that Schedule 1, Part 5 does not commence at all if Schedule 4, Part 4 to the PID Amendment Act does not commence at all.

11.               Item 6 of the table provides that Schedule 2, Part 1 of the Bill (consequential amendments if the NACC (CTP) Act commences before the main amendments in Schedule 1) would commence immediately after the commencement of the provisions covered by item 2 of the table.

12.               However, item 6 of the table notes that Schedule 2, Part 1 does not commence at all if Schedule 1 to the NACC (CTP) Act does not commence before that time.

13.               Item 7 of the table provides that Schedule 2, Part 2 of the Bill (consequential amendments if the main amendments in Schedule 1 commence before the NACC (CTP) Act) would commence immediately after the commencement of the provisions covered by item 2 of the table.

14.               However, item 7 of the table notes that Schedule 2, Part 2 does not commence at all if Schedule 1 to the NACC (CTP) Act commences before that time.

15.               Item 8 of the table provides that Schedule 2, Part 3 of the Bill (consequential amendments commencing after the NACC (CTP) Act commences if the main amendments in Schedule 1 commence first) would commence immediately after the commencement of Schedule 1 to the NACC (CTP) Act.

16.               However, item 8 of the table notes that Schedule 2, Part 3 does not commence at all if Schedule 1 to the NACC (CTP) Act commences before the commencement of the provisions covered in item 2 of the table.

17.               Item 9 of the table provides that Schedule 2, Part 4 of the Bill (consequential amendments if the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (NSLAB (No. 2) Bill), which is yet to be passed, commences before the main amendments in Schedule 1) would commence immediately after the commencement of the provisions covered by item 2 of the table.

18.               However, item 9 of the table notes that Schedule 2, Part 4 does not commence at all if the NSLAB (No. 2) Bill does not commence before that time.

19.               Item 10 of the table provides that Schedule 2, Part 5 of the Bill (consequential amendments if the main amendments in Schedule 1 commence before the NSLAB (No. 2) Bill) would commence immediately after the commencement of the provisions covered by item 2 of the table.

20.               However, item 10 of the table notes that Schedule 2, Part 5 does not commence at all if the NSLAB (No. 2) Bill commences before that time.

21.               Item 11 of the table provides that Schedule 2, Part 6 of the Bill (consequential amendments commencing after the NSLAB (No. 2) Bill if the main amendments in Schedule 1 commence before the NSLAB (No. 2) Bill) would commence immediately after the commencement of the NSLAB (No. 2) Bill.

22.               However, item 11 of the table notes that Schedule 2, Part 6 does not commence at all if the NSLAB (No. 2) Bill commences before the provisions covered by item 2 of the table.

23.               Item 12 of the table provides that Schedule 3 of the Bill (review of access to Australian Criminal Intelligence Commission (ACIC) criminal intelligence assessment records under the archives law) would commence immediately after the commencement of the NSLAB (No. 2) Bill.

24.               However, item 12 of the table notes that Schedule 3 does not commence at all if the NSLAB (No. 2) Bill does not commence.

25.               Item 13 of the table provides that Schedule 4 of the Bill commences the day after the Bill receives the Royal Assent.

26.               Item 14 of the table provides that Schedule 5 of the Bill commences at the same time as the provisions covered by item 2 of the table.

27.               The table also provides a note that the table relates only to the provisions of the Act as originally enacted. It will not be amended to deal with any later amendments of the Act. This provides clarity for the reader.

Clause 3 - Schedules

28.               This clause 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.



29.                

SCHEDULE 1: Amendments

Part 1: Main amendments

Inspector-General of Intelligence and Security Act 1986

Item 1: Subsection 3(1)

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

·          AFP means the Australian Federal Police.

·          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 .

·          Department of Home Affairs means the Department administered by the Minister administering the Australian Border Force Act 2015.

30.               These amendments are necessary to define terms related to the expansion of the Inspector-General of Intelligence and Security’s (IGIS) jurisdiction to the Australian Federal Police (AFP), Australian Transaction Reports and Analysis Centre (AUSTRAC) and Department of Home Affairs (Home Affairs). The Australian Criminal Intelligence Commission (ACIC) is already defined in the IGIS Act to mean the agency known as the ACIC established by the Australian Crime Commission Act 2002 (ACC Act).

Item 2: Subsection 3(1) (paragraph (ea) of the definition of head )

31.               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. This definition would be amended to include:

·          in relation to the AFP: the Commissioner of Police,

·          in relation to AUSTRAC: the AUSTRAC CEO, and

·          in relation to the Department of Home Affairs: the Secretary of the Department of Home Affairs.

32.               These new definitions would be in addition to the existing definitions of ‘head’, which apply to the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Australian Geospatial-Intelligence Organisation (AGO), Australian Signals Directorate (ASD), Defence Intelligence Organisation (DIO) and the Office of National Intelligence (ONI) and the ACIC, and would update the definition in relation to the AFP to bring the language used in line with the new definition of AFP.

Item 3: Subsection 3(1) (definition of intelligence agency )

33.               This item would amend subsection 3(1) by repealing the current definition of ‘intelligence agency’ and substituting it with a new definition being:

intelligence agency ’ means:

(a)    ASIO, ASIS, AGO, DIO, ASD, ONI, or ACIC; or

(b)    the following agencies that have an intelligence function:

(i)          AFP;

(ii)       AUSTRAC;

(iii)               the Department of Home Affairs.

34.               The National Intelligence Community (NIC) comprises the ACIC, AFP, AGO, ASIS, ASIO, ASD, AUSTRAC, DIO, ONI, the AFP, AUSTRAC and Department of Home Affairs. The NIC is partnering more closely to respond to a complex and dynamic national security environment. At present, the IGIS’s jurisdiction only extends to AGO, ASIS, ASIO, ASD, DIO and ONI, and the use of network activity warrants by the ACIC and the AFP.

35.               Expanding the IGIS’s jurisdiction to include the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs will ensure that the IGIS is able to provide robust and holistic oversight of the exercise of intelligence functions and powers across the NIC, regardless of which agency is performing those functions or exercising those powers.

36.               This definition groups the ACIC together with ASIO, ASIS, AGO, DIO, ASD and ONI. The ACIC has been defined as an intelligence agency for the purposes of IGIS’s oversight because its intelligence functions, include those of collecting, correlating, analysing and disseminating criminal information and intelligence (provided for in subsection 7A(a) of the ACC Act), are inseparable from its other functions.

37.               Paragraph (b) of the new definition is intended to capture the intelligence functions of the AFP, AUSTRAC and Home Affairs. This item would limit the IGIS’s jurisdiction to the intelligence functions of AUSTRAC. AUSTRAC has a number of regulatory functions which would not be appropriate for the IGIS to oversee.

38.               These three agencies are defined separately as they have both intelligence and significant non-intelligence functions (for example, the primary law enforcement role of the AFP, or the regulatory role performed by AUSTRAC), and their respective intelligence functions differ in size and scope. Tailoring the definition to each agency’s unique circumstances ensures IGIS oversight is appropriately targeted. Although paragraph (b) describes these agencies generally, it is not intended that the non-intelligence functions of these agencies would be subject to IGIS oversight. The definition of ‘intelligence function’ (item 4 of Schedule 1) and subsections 8(3A)-(3B) (items 6-11 of Schedule 1), would provide which functions of these agencies would be overseen by the IGIS.

Item 4: Subsection 3(1) (definition of intelligence function )

39.               This item would repeal and substitute the definition of ‘intelligence function’ to provide that ‘intelligence function’ has the meaning given by section 3A.

40.               This item is consequential to the insertion of new section 3A by item 6.

Item 5: Subsection 3(1) (definition of law enforcement officer )

41.               This item would amend subsection 3(1) by substituting ‘Australian Federal Police’ with ‘AFP’. This amendment is necessary to ensure consistency with the new defined term ‘AFP’.

Item 6: After section 3

42.               This item would insert new section 3A to define ‘ intelligence function ’ in relation to the AFP, AUSTRAC and Home Affairs.

Meaning of intelligence function for AFP

43.               This item would insert new subsection 3A(1) which would set out the intelligence functions for the AFP in subparagraphs 3A(1)(a) to (d).

44.               Paragraph 3A(1)(a) would provide that ‘intelligence function’ for the AFP means the collection, correlation, analysis, production and dissemination of intelligence by AFP to support the performance of its functions under the following paragraphs of the Australian Federal Police Act 1979 (AFP Act):

·          8(1)(b) - the provision of police services in relation to laws of the Commonwealth; property of the Commonwealth (including Commonwealth places) and property of authorities of the Commonwealth; and the safeguarding of Commonwealth interests

·          8(1)(baa) - the investigation of State offences that have a federal aspect

·          8(1)(bd) - to perform functions under the Proceeds of Crime Act 2002

·          8(1)(be) - to perform such protective and custodial functions as the Minister directs by notice in writing in the Gazette , being functions that relate to a person, matter or thing with respect to which the Parliament has legislative power

·          8(1)(bf) - the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign law enforcement agency, intelligence or security agency or government regulatory agency

·          8(1)(bg) - the provision of police services and police support services in relation to establishing, developing and monitoring peace, stability and security in foreign countries, and

·          8(1)(bh) - to assist or cooperate with an international organisation, or a non-governmental organisation in relation to acts, omissions, matter or things outside Australia, in relation to the provision of police services or police support services.

45.               Paragraph 3A(1)(b) would provide that ‘intelligence function’ for the AFP also means the collection, correlation, analysis, production and dissemination of intelligence by AFP to support the performance of its functions under paragraph 8(1)(c) of the AFP Act in relation to a function under any of the paragraphs of that Act mentioned in paragraph 3A(1)(a).

46.               Paragraph 3A(1)(c) would provide that ‘intelligence function’ for the AFP also means the collection, correlation, analysis, production and dissemination of intelligence obtained by the AFP from the execution of a network activity warrant under Division 6 of Part 2 or Divisions 1 or 2 of Part 6 of the Surveillance Devices Act 2004 (SD Act).

47.               Paragraph 3A(1)(d) would provide that ‘intelligence function’ for the AFP also means a function or power conferred on a law enforcement officer of the AFP by Division 6 of Part 2 or Divisions 1 or 2 of Part 6 of the SD Act.

48.               Paragraphs 3A(1)(a) and (b) comprise the IGIS’s expanded jurisdiction with regards to the intelligence functions of the AFP. The definition in paragraph 3A(1)(a) limits IGIS oversight to the collection, correlation, analysis, production and dissemination of intelligence that supports the AFP to perform key Commonwealth policing and law enforcement functions. This definition reflects that intelligence can provide an important role in informing the AFP’s criminal investigations and law enforcement operations, but that broader AFP activities not directly related to intelligence are already subject to appropriate oversight by other integrity bodies, such as the Commonwealth Ombudsman (Ombudsman). For clarity, the reference to section 8(1)(bf) of the AFP Act is intended to also capture joint operations between the AFP and other NIC agencies.

49.               The provisions in paragraphs 3A(1)(c) and (d) have been carried over from the existing definition of ‘intelligence function’ in the IGIS Act and reflect the IGIS’s current jurisdiction in relation to the AFP, being the AFP’s specific intelligence collection power under network activity warrants.

50.               This item would insert new subsection 3A(2). New subsection 3A(2) is an avoidance of doubt provision that clarifies that the intelligence functions of the AFP mentioned in new subsection 3A(1)(a) or (b) do not include the arrest, charging or detention of suspected offenders or the gathering of evidence, or any activity undertaken to directly support the gathering of evidence, as these are not intelligence functions. ‘Evidence’ is not defined in legislation relevant to the AFP, including the AFP Act, and is intended to have its ordinary meaning.

51.               This definition of ‘intelligence function’ for the AFP explicitly excludes the AFP’s functions with respect to the provision of policing services to the Australian Capital Territory, Jervis Bay Territory, and external Territories under paragraphs 8(1)(a), (aa) and (ba) of the AFP Act. This recognises that it would not be appropriate for the IGIS to oversee the  activities of police forces in relation to these Territories when it does not oversee police forces in other States or Territories that may perform an equivalent role.

52.               This definition also explicitly excludes the AFP’s functions with respect to witness protection functions under paragraphs 8(1)(bb) and (bc) of the AFP Act. These functions are administrative arrangements that are distinct from the AFP’s intelligence functions. While the AFP performs an operational role, this is tied to the administration and management of the National Witness Protection Program established under the Witness Protection Act 1994 .

Meaning of intelligence function for AUSTRAC

53.               This item would insert new subsection 3A(3) which would set out the intelligence functions for AUSTRAC.

54.               New subsection 3A(3) would provide that ‘intelligence function’ for AUSTRAC means 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 (AML/CTF Act); or

·          AUSTRAC, the AUSTRAC CEO or any other official of AUSTRAC referred to in paragraph 209(4)(c) of the AML/CTF Act performing functions incidental to that function.

55.               Section 210 of the AML/CTF Act provides that the functions of AUSTRAC are to assist the CEO in the performance of their functions under section 212. Section 212 of the AML/CTF Act states that the CEO’s functions are:

(a)           to retain, compile, analyse and disseminate AUSTRAC information (as defined in the AML/CTF Act); 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 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

(db)      to establish such task forces as the AUSTRAC CEO considers appropriate; and

(e)           to promote compliance with this Act, the regulations and the AML/CTF Rules; and

(ea)       to assist in the development of government policy or to assist academic research; 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 of the AML/CTF Act); and

(b)    making AML/CTF Rules (see section 229 of the AML/CTF Act).

56.               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 their functions under section 212 of the AML/CTF Act to the extent that they involve intelligence. AUSTRAC’s financial intelligence functions include, but are not limited to:

·          accessing and collecting information while assessing potential instances of criminal activity, including information obtained under the AML/CTF Act, information from government partners (both domestic and international) and information that is publicly available;

·          correlation of information to detect transactions and patterns of behaviour that may be indicative of criminal activity, including money laundering, terrorism financing, and organised crime;

·          analysis of information to identify specific targets (including persons, assets, criminal networks and associations), determine links between those targets and possible criminal activity or risks to national security, and derive actionable intelligence; and

·          the production of intelligence reports and dissemination to relevant law enforcement, regulatory and national security partners (both domestic and international).

57.               It is not intended for the definition to cover the agency’s actions in supporting the CEO to perform their regulatory functions. 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 functions.

Meaning of intelligence function for the Department of Home Affairs

58.               New subsection 3A(4) would provide that ‘intelligence function’ for Home Affairs has the meaning given by regulations made under the IGIS Act.

59.               Home Affairs is a department of State and as such is subject to changes to its mandate through executive action, in contrast to statutory agencies (such as the ACIC, AFP and AUSTRAC) who have a legislatively prescribed set of functions.

60.               Many of Home Affairs’ intelligence functions are not legislated and cannot be directly linked to specific legislated functions, instead being provided for in the Administrative Arrangement Order. This means that Home Affairs’ intelligence functions may change, including to add new intelligence functions, quickly and with potential frequency.

61.               For these reasons it is more appropriate for Home Affairs’ intelligence functions to be prescribed in regulations. This would allow for a more detailed definition of Home Affairs’ intelligence functions, while ensuring flexibility as regulations can be more readily updated to accurately reflect any changes in the structure of Home Affairs or its intelligence functions, such as the allocation of additional functions that may be considered intelligence functions.

62.               New subsection 3A(5) would provide that the regulations may also provide for consultation requirements in relation to changes relating to the performance of intelligence functions of the Department of Home Affairs. For example, the regulations could specify the notification requirements if Home Affairs’ intelligence functions are amended, or new functions are allocated to the Department that may be considered intelligence functions.

63.               New subsection 3A(6) would provide that, before the Governor-General makes regulations for the purposes of subsection (4) or (5), the Minister must obtain the agreement of the Minister responsible for the Department of Home Affairs to the making of the regulations.

64.               The requirement in new subsection 3A(6) would ensure that the agreement of the Minister responsible for Home Affairs is obtained before any regulations relating to the intelligence functions of Home Affairs are made or amended. It is appropriate for the Minister’s agreement to be sought to ensure the regulations accurately reflect the intelligence functions of Home Affairs.

Item 7: Subsection 8(3A) (heading)

65.               This item would amend the subheading before subsection 8(3A). This amendment would make clear that sections under this subheading relate to the IGIS’s inquiry functions in relation to AFP, AUSTRAC and Home Affairs.

66.               This amendment would clarify the structure of the section.

Item 8: Subsection 8(3A)

67.               This item would remove the ACIC and insert AUSTRAC and Home Affairs as agencies to which subsection 8(3A) applies. AFP will be substituted for Australian Federal Police to update the language used in the Act for consistency.

68.               Existing subsection 8(3A) sets out the inquiry functions of the IGIS in relation to the ACIC and AFP, providing that the IGIS may, at the request of the Attorney-General or the responsible Minister, of the Inspector-General’s own motion, or in response to a complaint made to the IGIS, inquire into the following matters to the extent that the matter relates to an intelligence function of that agency:

·          the compliance by that agency with the laws of the Commonwealth and of the States and Territories

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

·          the propriety of particular activities of that agency

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

·          any matter that relates to an act or practice of that agency that

o    is or may be inconsistent with or contrary to any human right

o    constitutes or may constitute discrimination, or

o    is or may be unlawful under the Age Discrimination Act 2004 , the Disability Discrimination Act 1992 , the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984

·          in relation to the ACIC, the compliance by the ACIC with directions or guidelines given to it or policies or other decisions made by the Board of the ACIC or the Inter-Governmental Committee established under the ACC Act.

69.               New subsection 8(3A) (as amended by this item and items 9 and 10 of Schedule 1) would set out the inquiry functions of the IGIS in relation to the intelligence functions of the AFP, AUSTRAC and Home Affairs. The inquiry functions of the IGIS in relation to the ACIC would be set out in new subsection 8(4) (item 11 of Schedule 1).

70.               This amendment is necessary to reflect the changes to the IGIS’s jurisdiction over the ACIC, AFP, AUSTRAC and Home Affairs.

Item 9: Subparagraph 8(3A)(h)(iii)

71.               This item amends punctuation to reflect that the following paragraph 8(3A)(i) is being repealed by item 10 of Schedule 1.

Item 10: Paragraph 8(3A)(i)

72.               This item repeals paragraph 8(3A)(i). Existing paragraph 8(3A)(i) sets out the inquiry functions of the IGIS in relation to the ACIC.

73.               This amendment is necessary as the inquiry functions of the IGIS in relation to the ACIC are now set out in new subsection 8(4).

Item 11: Subsection 8(3B)

74.               This item repeals existing subsection 8(3B) and substitutes:

·          a new subheading ‘Intelligence agency inquiry functions in relation to ACIC’ after new subsection 8(3A), referring to new subsections 8(4), and

·          new subsection 8(4).

75.               Existing subsection 8(3B) limits the inquiry functions of the IGIS in relation to the ACIC, providing that the functions of the IGIS do not include inquiring into any action taken by an examiner (within the meaning of the ACC Act) of the ACIC in performing functions or exercising powers as an examiner. This provision is not being remade in the new subsection inserted by this item. This is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. The Ombudsman’s existing jurisdiction over the ACIC includes examiners.

76.               The new heading is 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(4)

77.               New subsection 8(4) sets out the inquiry functions of the IGIS in relation to the ACIC.

78.               New paragraph 8(4)(a) sets out that the IGIS’s functions include, at the request of the Attorney-General or the responsible Minister, of the IGIS’s own motion, or in response to a complaint made to the IGIS, inquiring into any matter that relates to:

·          the compliance by the ACIC with laws of the Commonwealth and of the States and Territories, or

·          the compliance by the ACIC with the directions or guidelines given to the ACIC by the responsible Minister, or

·          the propriety of particular activities of the ACIC.

79.               New paragraph 8(4)(b) sets out that the IGIS’s functions include, at the request of the Attorney-General or the responsible Minister, of the IGIS’s own motion, or in response to a complaint made to the IGIS, inquiring into any matter that relates to the effectiveness and appropriateness of the procedures of the ACIC relating to the legality or propriety of its activities.

80.               New paragraph 8(4)(c) sets out that the IGIS’s functions include, at the request of the Attorney-General or the responsible Minister, of the IGIS’s own motion, or in response to a complaint made to the IGIS, inquiring into any matter that relates to an act or practice of the ACIC:

·          that is or may be inconsistent with or contrary to any human right

·          that constitutes or may constitute discrimination, or

·          that is or may be unlawful under the Age Discrimination Act 2004 , the Disability Discrimination Act 1992 , the Racial Discrimination Act 1975 or the Sex   Discrimination Act 1984 .

81.               New paragraph 8(4)(d) sets out that the IGIS’s functions include, at the request of the Attorney-General or the responsible Minister or of the IGIS’s own motion, to inquire into any matter that relates to the procedures of the ACIC relating to redress of grievances of employees of the ACIC.

82.               New paragraph 8(4)(e) sets out that the IGIS’s functions include, at the request of the Attorney-General or the responsible Minister, of the IGIS’s own motion, or in response to a complaint made to the IGIS, inquiry into the ACIC’s compliance with directions or guidelines given by, or policies or other decisions made by, the Board of the ACIC or the Inter-Governmental Committee established under the ACC Act.

83.               These amendments are necessary to reflect the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 12: Subsection 8(5)

84.               This item would amend subsection 8(5) to omit “and (3A)” and substitute “, (3A) and (4)”. This item is consequential to the repeal of subsection 8(3B) and the insertion of subsection 8(4) by the Bill.

Item 13: Subsection 8(5)

85.               Existing subsection 8(5) outlines that the IGIS’s jurisdiction does not include inquiring into complaints made by an employee of AGO, DIO, ACIC, AFP or by an ONI employee employed under the Public Service Act 1999 to the extent that it directly relates to the promotion, termination of appointment, discipline, remuneration or any other matter relating to intelligence agencies’ employment of the employee.

86.               This item would amend subsection 8(5) to ensure this exception also applies to employees of AUSTRAC and Home Affairs.

87.               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 1999 . This exclusion is appropriate because these employees are able to avail themselves of other avenues to address employment concerns (including the Merit Protection Commissioner), and as such, it is unnecessary for the IGIS to provide an additional layer of oversight to these matters.

Item 14: After subsection 8(5)

88.               This item would insert new subsection 8(5A) after subsection 8(5).

89.               New subsection 8(5A) provides that the inquiry functions of the IGIS under subsections 8(3A) and (4) (which provides the inquiry powers relating to the ACIC, AFP, AUSTRAC and Home Affairs) do not extend to a matter where the complainant is a person performing functions or services for the ACIC, AFP, AUSTRAC or Home Affairs under a contract, agreement or other arrangement 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, AUSTRAC or Home Affairs, they would not consider employment-related complaints from persons engaged by these agencies under other arrangements.

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

91.               This is consistent with existing paragraph 8(8)(b) 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 relates to the performance of functions or services under that contract, agreement or other arrangement.

Item 15: Paragraph 8(7)(a)

92.               Section 8 sets out the intelligence agency inquiry functions of the IGIS. Subsection 8(6) provides that the functions of the IGIS include inquiring into complaints made by employees of ASIO, ASIS, or ASD to the IGIS to the extent that it directly relates to the promotion, termination of appointment, discipline, remuneration or any other matter relating to intelligence agencies’ employment of the employee.

93.               Subsection 8(7) provides that the IGIS must not inquire into a matter referred to in subsection 8(6) to the extent that the employee can have the matter reviewed by a body constituted by, or including, persons other than those specified in paragraphs 8(7)(a)-(c).

94.               Existing paragraph 8(7)(a) provides that, for an ASIO employee, the IGIS must not inquire into a matter referred to in subsection 8(6) to the extent that the employee can have the matter reviewed by a body constituted by, or including, persons other than the Director-General of Security, ASIO employees or ASIO affiliates.

95.               This item would amend paragraph 8(7)(a) to remove the reference to ASIO affiliates This is intended to ensure consistency with the provisions in paragraphs 8(7)(b) and (c) in relation to ASIS and ASD. In practice, any person engaged by ASIO for the purpose of reviewing a matter of the kinds provided for in subsection 8(6) could be interpreted as falling within the definition of ASIO affiliate under the Australian Security Intelligence Organisation Act 1979 (ASIO Act). This defeats the purpose of the provision, which is to provide that if an employee has an avenue of internal review by a body that includes a person independent from the employer (in this case ASIO) the employee is expected to pursue that avenue in the first instance.

Item 16: Subsection 8(8A)

96.               Section 8 sets out the intelligence agency inquiry functions of the IGIS. Subsection 8(8) provides that the functions of the IGIS include inquiring into matters raised in a complaint by an ASIO affiliate to the extent that the matter is related to the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for ASIO or the performance of functions or services by the ASIO affiliate under the contract, agreement or other arrangement.

97.               Existing subsection 8(8A) provides that the IGIS may decide not to inquire into a matter referred to in subsection 8(8) if the IGIS is satisfied that the ASIO affiliate can have the matter reviewed by a body constituted by, or including persons other than the Director-General of Security, ASIO employees or ASIO affiliates.

98.               This item would amend subsection 8(8A) to remove ASIO affiliates from the list of persons that may constitute a body such that, if an ASIO affiliate may have a matter referred to in subsection 8(8) reviewed by that body, the IGIS may decide not to inquire into the matter. In practice, any person engaged by ASIO for the purpose of reviewing a matter of the kinds provided for in subsection 8(8) could be interpreted as falling within the definition of ASIO affiliate under the ASIO Act. This defeats the purpose of the provision, which is to provide that if an ASIO affiliate has an avenue of internal review by a body that includes a person independent from the ASIO, they are expected to pursue that avenue in the first instance.

Item 17: After section 8

99.               This item inserts new section 8AA. This new section sets out that any function the IGIS may perform under subsections 8(1), (2), (3), (3A) and (4) at the request of the Attorney-General or the responsible Minister, may also be undertaken at the request of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) under subsection 29(2A) of the IS Act (inserted by item 57 of Schedule 1). This ensures that the range of matters that the IGIS can inquire into in response to a request by the PJCIS concerning the legality and propriety of operational activities of intelligence agencies is similar to those that may be inquired into at the request of the Attorney-General or responsible Minister.

100.           While the PJCIS may request the IGIS to inquire into a matter, the IGIS has discretion in deciding whether to conduct any such inquiry and would not be required to comply with a request. Where the IGIS undertakes an inquiry at the request of the PJCIS, the inquiry would be undertaken in accordance with Divisions 3 and 4 of Part 2 of the IGIS Act. The IGIS would only be required to provide a response to the PJCIS in accordance with new section 22A (inserted by item 30 of Schedule 1), if an inquiry is completed as a result of a request. The IGIS would not otherwise be required to respond to a request, or make public its decision or any reasons in relation to the request. This will preserve the independence of the Inspector-General while ensuring that areas of concern identified by the PJCIS can be brought to the attention of the Inspector-General as appropriate.

101.           This amendment is necessary to give effect to an amendment to the IS Act enabling the PJCIS to request the IGIS inquire into a matter (item 57 of Schedule 1).

102.           A note at the end of this subsection draws attention to subsection 29(3) of the IS Act and clause 1 of Schedule 1 to that Act which provides that the Committee must not review certain matters or require the Inspector-General to disclose certain information. This would clarify that while the PJCIS may request the IGIS to inquire into certain matters, the PJCIS will still be prohibited from reviewing the matters listed in subsection 29(3) of the IS Act or requiring disclosure of certain information pursuant to clause 1 of Schedule 1 to that Act. These amendments are not intended to provide the PJCIS with direct oversight of operational activities.

Item 18: Paragraph 8A(1)(c)

103.           Section 8A outlines the public interest disclosure (PID) functions of the IGIS. The section, as it currently operates, ensures that where the IGIS receives information under the Public Interest Disclosure Act 2013 (PID Act), and some or all of the disclosable conduct relates to an intelligence agency, to the extent to which that conduct so relates to an intelligence agency, it is to be treated 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 of intelligence agencies within its jurisdiction).

104.           This item would amend paragraph 8A(1)(c) to omit “ACIC or the Australian Federal Police” and substitute “AFP, AUSTRAC or the Department of Home Affairs”.

105.           This would update the IGIS’s PID functions to align with the expansion of the IGIS’s jurisdiction to the intelligence functions of the AFP, AUSTRAC and Home Affairs. The IGIS’s PID functions with regards to the ACIC would be captured under paragraph 8A(1)(b).

Item 19: Paragraph 9AA(b)

106.           This item would omit “8(2)(a)(ii) and 8(3)(a)(ii)” and substitute “(2)(a)(ii), (3)(a)(ii) and (4)(a)(ii)”. This item is consequential to the insertion of new paragraph 8(4)(a)(ii) (item 11 of Schedule 1).

107.           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), 8(3)(a)(ii) and 8(4)(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.

Item 20: Paragraph 9AA(ba)

108.           This item would omit “paragraph 8(3A)(i)” and substitute “paragraph 8(4)(e)”. This item is consequential to the repeal of existing paragraph 8(3A)(i) by item 10 of Schedule 1 and the insertion of new paragraph 8(4)(e) by item 11 of Schedule 1.

109.           Paragraph 9AA(ba) prohibits the IGIS from inquiring into actions taken by the Board of the ACIC or the Inter-Governmental Committee established under the ACC Act except to the extent necessary for the IGIS to perform the functions referred to in paragraph 8(4)(e). For example, the IGIS would be able to inquire into whether the ACIC has complied with directions or guidelines provided by the Board of the ACIC or the Inter-Governmental Committee.

Item 21: Section 9B

110.           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 in relation to a warrant issued under Division 3 of Part III of the ASIO Act or detained under sections 31 or 34D of the ACC Act (the relevant sections of that Act which provide for detention in limited circumstances).

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

112.           The requirement for the IGIS to notify the Director-General of Security prior to entering a place where a person is being questioned or apprehended is retained under new subsection 9B(2) and an equivalent requirement to notify the CEO of the ACIC prior to entering a place where a person is being detained, as the case requires, would be inserted.

Item 22: After paragraph 11(1)(a)

113.           Subsection 11(1) sets out when the Inspector-General must inquire into action taken by an intelligence agency that is the subject of a complaint to the IGIS. This item would insert new paragraph 11(1)(aa) which would provide that the Inspector-General must be satisfied that the action to which the complaint relates is the kind of action that is reasonably likely to be taken by an intelligence agency.

114.           If the Inspector-General is not satisfied that the action is of a kind reasonably likely to have been taken by an intelligence agency there is no requirement for the Inspector-General to inquire into the action. This does not require the Inspector-General to be satisfied that the action has actually been taken by an intelligence agency, only that there is a reasonable likelihood that the intelligence agency could or would undertake that activity. This could include both actions within an intelligence agency’s functions and actions that exceed those functions. This amendment is necessary to clarify the IGIS’s complaint handling functions in circumstances where activity alleged in a complaint is considered to be implausible or otherwise not credible.

Item 23: At the end of subsection 11(1)

115.           This item would insert a note at the end of subsection 11(1) which would clarify that ‘action’ (as used in paragraph 11(1)(aa)) includes the making of a decision or recommendation, and the failure or refusal to take any action or to make a decision or recommendation. The note refers to subsection 3(2) of the IGIS Act which provides that, unless the contrary intention appears, a reference to the taking of action includes a reference to the making of a decision or recommendation and the failure or refusal to take any action or to make a decision or recommendation.

116.           This note is intended to clarify that the reference to ‘action’ in paragraph 11(1)(aa) has the meaning set out in subsection 3(2) of the IGIS Act and that the contrary intention is not enlivened.

Item 24: Paragraph 11(2)(a)

117.           This item would amend paragraph 11(2)(a) by omitting “was made;” and substituting “was made; or”.

118.           This amendment is intended to standardise language within the IGIS Act.

Item 25: Paragraph 15(3)(a)

119.           This item would amend paragraph 15(3)(a) by omitting “the Australian Federal Police” wherever it occurs in the paragraph and substituting “AFP, AUSTRAC, the Department of Home Affairs”.

120.           Subsection 15(3) requires IGIS to notify the Minister responsible for an agency where the inquiry relates to the head of an intelligence agency, instead of notifying the agency head. This is to ensure that an IGIS inquiry is performed without interference, and with appropriate discretion. This amendment is consequential to the expansion of IGIS’s oversight powers to the AFP, AUSTRAC and Home Affairs, and treats these agencies in the same manner as the ACIC and other intelligence agencies currently within the IGIS’s jurisdiction.

Item 26: Section 19A

121.           This item would repeal and replace section 19A. New section 19A allows 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 in relation to a warrant issued under Division 3 of Part III of the ASIO Act or detained under sections 31 or 34D of the ACC Act (the relevant sections of that Act which provide for detention in limited circumstances) provided that the IGIS has notified the Director-General of Security (for ASIO matters) or the CEO of the ACIC (for ACC Act matters).

122.           New section 19A is a consequence of the IGIS’s expanded jurisdiction over the ACIC which has the power to detain persons under the ACC Act in limited circumstances.

123.           The requirement for the IGIS to notify the Director-General of Security prior to entering a place where a person is being questioned or apprehended is retained under new subsection 19A(2) and an equivalent requirement to notify the CEO of the ACIC prior to entering a place where a person is being detained, as the case requires, would be inserted.

Item 27: Paragraph 21(1B)(a)

124.           This item would amend paragraph 21(1B)(a) by omitting “the Australian Federal Police” wherever it occurs in the paragraph and substituting “AFP, AUSTRAC, the Department of Home Affairs”. This amendment reflects the expanded remit of the IGIS in relation to the oversight of the AFP, AUSTRAC and Home Affairs.

125.           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. The amendment would ensure that where the report relates to the head of the AFP, AUSTRAC or Home Affairs, the IGIS must provide the report to the responsible Minister of the relevant agency. The amendment is not intended to change existing law but rather clarify it, 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 28: Subsection 22(4)

126.            Section 22 sets out reporting requirements for inquiries completed under the IGIS Act. Existing subsection 22(4) provides that the Inspector-General must give the responsible Minister a copy of the final agency copy. If subsection (3) applies (which provides for the provision of a final agency copy with certain tax information removed) the Inspector-General must give the responsible Minister a copy of the amended final agency copy.

127.            This item would amend subsection 22(4) to provide that the Inspector-General must always give a copy of the final agency copy to the Attorney-General, as well as the responsible Minister, rather than only when requested by the Attorney-General under existing subsection 22(5). This amendment reflects the Attorney-General’s role as the first law officer and the Minister responsible for the IGIS. 

Item 29: Subsections 22(5) and (6)

128.           Section 22 sets out reporting requirements for inquiries completed under the IGIS Act.

129.           Existing subsection 22(5) provides that the Inspector-General must give a copy of the final agency copy or the version of the report given to the responsible Minister under subsection 22(4) to:

·          if the inquiry was conducted as a result of a request under section 8 by the Attorney-General or section 9 by the Prime Minister—the Minister who made the request;

·          in any case—the Prime Minister or the Attorney-General, if the relevant Minister requests it.

130.           Existing subsection 22(6) provides that the Inspector-General may give the Prime Minister or the Attorney-General a copy of the final agency copy or version given to the responsible Minister under subsection 22(4) if the Inspector-General considers it appropriate to do so.

131.           This item would repeal subsections 22(5) and (6) and substitute new subsection 22(5). New subsection 22(5) would provide that the Inspector-General must give a copy of the final agency copy, or version given to the responsible Minister and the Attorney-General under subsection 22(4) to the Prime Minister if:

·          the inquiry was conducted as a result of a request under section 9;

·          the Prime Minister requests a copy; or

·          the Inspector-General considers it appropriate to do so.

132.           These amendments are consequential to the amendment to subsection 22(4) and are not intended to make any substantive changes to the circumstances under which a copy of a report is provided to the Prime Minister.

Item 30: After section 22

133.           This item inserts new section 22A. New section 22A would set out matters relating to the IGIS’s response to requests by the PJCIS made under new subsection 29(2A) of the IS Act (inserted by item 57 of Schedule 1). New subsection 29(2A) of the IS Act would provide that the PJCIS may request the IGIS to inquire into a matter under new section 8AA of the IGIS Act (inserted by item 17 of Schedule 1) if the matter relates to the legality and propriety of the operational activities of an agency, is within the functions of the IGIS mentioned in section 8AA, and does not relate to an individual complaint about the activities of an agency.

Subsection 22A(1)

134.           New subsection 22A(1) would provide that section 22A applies if, as a result of a request by the PJCIS under subsection 29(2A) of the IS Act, the IGIS completes an inquiry under the IGIS Act in respect of the operational activities of an intelligence agency or intelligence agencies.

135.           This is intended to reflect that, while the PJCIS may request the IGIS inquire into a matter, the IGIS has discretion in deciding whether to conduct any such inquiries. This will preserve the independence of the Inspector-General while ensuring that areas of concern identified by the PJCIS can be brought to the attention of the Inspector-General as appropriate.

136.           If the IGIS decides not to inquire into a matter following a request from the PJCIS, or does not complete the inquiry for any reason, the IGIS is not required to provide a response to the PJCIS under section 22A.

137.           The intention of new subsection 29(2A) of the IS Act (inserted by item 57 of Schedule 1) is to enable the PJCIS to request the IGIS inquire into the operational activities of an agency. The term ‘operational activities’ encompasses activities that the PJCIS is prevented from reviewing under subsection 29(3), including, for example:

·          reviewing particular operations that have been, are being or are proposed to be undertaken by ACIC, ASIO, ASIS, AGO, DIO or ASD, or

·          reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by AFP, AUSTRAC or Home Affairs (paragraph 29(3)(k) as amended by item 64 of Schedule 1),

provided that inquiring into those activities would be within the functions of the IGIS as set out in new section 8AA of the IGIS Act (inserted by item 17 of Schedule 1).

Subsection 22A(2)

138.           New subsection 22A(2) would provide that the Inspector-General must take reasonable steps to give a written response relating to the inquiry to the PJCIS, unless the Inspector-General is satisfied on reasonable grounds that doing so would prejudice security, the defence of Australia or Australia’s relations with other countries. The Inspector-General may be satisfied that a response would prejudice security, the defence of Australia or Australia’s relations with other countries if providing the response increases the risk of harm to Australia’s security, defence or international relations. It is not necessary for the Inspector-General to be satisfied that the harm would actually occur.

139.           The restrictions in the IS Act would apply to the PJCIS’s use of the response provided by the IGIS, including in relation to publication or disclosure to Parliament.

140.           This item would also insert a note at the end of subsection 22A(2) which would clarify that the PJCIS must not require the Inspector-General to disclose operationally sensitive information or information that will prejudice Australia’s national security or the conduct of Australia’s foreign relations and would direct the reader to clause 1 of Schedule 1 to the IS Act. This note clarifies the interaction between the IGIS Act and the IS Act.

Subsection 22A(3)

141.           A subheading after subsection 22A(2) would clarify that subsections 22A(3)-(5) relate to agreement and consultation with agency heads on the IGIS’s response.

142.           New subsection 22A(3) would impose additional restrictions on the Inspector-General providing a response to the PJCIS if certain conditions are met. These conditions are intended to reflect 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 the PJCIS due to its sensitive nature.

143.           New subsection 22A(3) would provide that, before giving the response to the PJCIS, the Inspector-General and the head/s of the intelligence agency/agencies to which the inquiry referred to in subsection 22A(1) relates, must agree that the terms of the proposed response would not prejudice:

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

·          law enforcement operations, including methodologies and investigative techniques;

·          confidential commercial information held by AUSTRAC;

·          operationally sensitive information (within the meaning of Schedule 1 of the IS Act);

144.           For a response to be able to be provided to the PJCIS, the Inspector-General and head/s of the relevant intelligence agency/agencies must be agreed that there is no risk that the terms of the response would prejudice the above listed factors if provided to the PJCIS. For example, a response would be prejudicial to security if it causes, or could reasonably be expected to cause, harm to security.

145.           This section outlines the persons that the Inspector-General must obtain agreement from on the listed matters before providing a response to the PJCIS. While the new drafting refers to ‘the head of the relevant agency’, paragraph 23(b) of the Acts Interpretation Act 1901 (Acts Interpretation Act) operates to ensure that if more than one agency is concerned, the agency head for each agency must agree.

146.           As this provision would require the terms of the proposed response to be shared with agency heads prior to it being submitted to the PJCIS, subsection 13(a) of the Parliamentary Privileges Act 1987 (Parliamentary Privileges Act) would not prevent the proposed response from being shared.

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

147.           This category of information may be excluded from a response to the PJCIS, for example, based on its sensitivity, and the potential harm as a result of its dissemination.

148.            This is consistent with government policy that information with a protective marking is not shared without agreement between agency heads, and Australia’s obligations under various international agreements to protect certain information shared with it by foreign partners.

Law enforcement operations, including methodologies and investigative techniques

149.           This information may be excluded, for example, to ensure that law enforcement operations are not compromised, or the effectiveness of operations diminished, through the disclosure of methodologies or investigative techniques.

150.            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.

Confidential commercial information held by AUSTRAC

151.           As an agency that is both an intelligence agency and an anti-money laundering and counter terrorism-financing (AML/CTF) regulator, AUSTRAC holds information collected from entities it regulates that may include confidential commercial information. This category of information may be excluded to support confidence between AUSTRAC and the entities it regulates, and ensure those entities’ commercially sensitive and confidential information, which may include business structures, corporate financial information, and AML/CTF-related risk assessments, processes and procedures are appropriately protected. While this information in part forms the ‘raw material’ that AUSTRAC uses to produce intelligence, it may not be appropriate for the IGIS to provide confidential commercial information held by AUSTRAC in response to a request from the PJCIS.

Operationally sensitive information

152.           Operationally sensitive information, within the meaning of Schedule 1 of the IS Act (as amended by the Bill), refers to information:

·          about sources of information, other operational assistance or operational methods available to ACIC, ASIO, ASIS, AGO, DIO, ASD or ONI

·          about particular operations that have been, are being, or are proposed to be undertaken by ACIC, ASIO, ASIS, AGO, DIO or ASD

·          provided by, or by an agency of, a foreign government where that government does not consent to the public disclosure of information

·          about sources of information, other operational assistance or operational methods available to AFP, AUSTRAC or Home Affairs (including AUSTRAC information) in exercising that agency’s intelligence functions, or

·          about particular operations that have been, are being, or are proposed to be undertaken by AFP, AUSTRAC or Home Affairs in exercising that agency’s intelligence functions.

153.           This category of information may be excluded, for example, to protect sensitive law enforcement or intelligence operations. Operationally sensitive information cannot be required to be disclosed to the PJCIS (in accordance with clause 1 of Schedule 1 of the IS Act).

Subsection 22A(4)

154.           New subsection 22A(4) would provide that, before giving the response to the PJCIS, the Inspector-General must consult the head of the intelligence agency or head of the intelligence agencies to which the inquiry referred to in subsection 22A(1) relates on whether the terms of the proposed response would prejudice the privacy of individuals or the fair trial of a person or the impartial adjudication of a matter. The Inspector-General may remove terms that would prejudice the above matters if the Inspector-General considers it appropriate to do so.

155.           This section outlines the persons that the Inspector-General must consult with before providing a response to the PJCIS. Unlike in new subsection 22A(3), although the Inspector-General is required to consult with the relevant agency head(s), it is not required that the agency head agree with the Inspector-General on whether the terms of the proposed response will prejudice the privacy of individuals or the fair trial of a person or the impartial adjudication of a matter. This reflects the usually more generalised nature of these matters whereas the matters addressed by new subsection 22A(3) are more likely to be within the knowledge of the relevant agency head.

156.           While the new drafting refers to ‘agency head’, paragraph 23(b) of the Acts Interpretation Act operates to ensure that if more than one agency is concerned, the head of each agency must be consulted.

157.            As the terms of the proposed response to the PJCIS would be shared with agency heads prior to it being submitted to the PJCIS, subsection 13(a) of the Parliamentary Privileges Act would not prevent the proposed response from being shared.  

Privacy of individuals

158.           It may not be appropriate for the IGIS to provide an individual’s personal information in response to a request from the PJCIS. This category of information may be excluded, for example, to protect a third party’s information from unauthorised disclosure.

Fair trial or impartial adjudication

159.           This category of information may be excluded, for example, 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 proceeding. This is particularly relevant to agencies such as the ACIC or AFP, whose intelligence functions may align with their law enforcement functions, and whose information could directly feed into judicial processes.

Subsection 22A(5)

160.           New subsection 22A(5) would provide that the Inspector-General may also consult the head of any other intelligence agency on the terms of the proposed response. This is intended to clarify the Inspector-General’s ability to consult with the head of any intelligence agency in relation to the response.

161.           As this provision would provide for the proposed response to be shared with agency heads prior to it being submitted to the PJCIS, subsection 13(a) of the Parliamentary Privileges Act would not prevent the proposed response from being shared.

Subsection 22A(6)

162.           A subheading after subsection 22A(5) would clarify that subsections 22A(6) and (7) relate to the provision of copies of the IGIS's report to various persons.

163.            New subsection 22A(6) would provide that the Inspector-General must give a copy of the response that is provided to the PJCIS to the responsible Minister. While the new drafting refers to ‘Minister’, paragraph 23(b) of the Acts Interpretation Act operates to ensure that if more than one agency is concerned, the Minister responsible for each agency must be given a copy of the response.

Subsection 22A(7)

164.           New subsection 22A(7) would provide that the Inspector-General may give a copy of the response that is provided to the PJCIS to either or both the Prime Minister and the Attorney-General if the Inspector-General considers it appropriate to do so.

Subsection 22A (8)

165.           New subsection 22A(8) would provide that if, as a result of a request by the PJCIS under subsection 29(2A) of the IS Act, the IGIS completes an inquiry under the IGIS Act in respect of the operational activities of an intelligence agency or intelligence agencies, and does not provide a response to the PJCIS, the IGIS must notify the PJCIS of the reason why the response was not provided noting the requirements in subsections 22A(2) and (3).

Item 31: Section 23 (heading)

166.           This item would omit “Advice” and substitute “Response” in the heading of section 23. This amendment is intended to make the heading consistent with the language used in section 23, which refers to the Inspector-General providing a response where an inquiry has been conducted under the IGIS Act following a complaint.

Item 32: Subsection 32AAD(1)

167.           Item 128 of the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 would insert section 32AAD into the IGIS Act. Subsection 32AAD(1) would clarify the ability of the Inspector-General to arrange for a person who is an officer, employee or other member of staff of another entity to be made available to the Inspector-General to perform services in connection with its functions or exercise of its powers. This item would amend subsection 32AAD(1) (as amended by the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022) to clarify that the services are to be performed in connection with the Inspector-General’s functions, or the exercise of the Inspector-General’s powers.

Item 33: Before section 32AF

168.           This item would insert new section 32AEA setting out the ability of the IGIS to share information with Ministers. New subsection 32AEA(1) is an avoidance of doubt provision that clarifies that the IGIS may share information or documents about the IGIS’s exercise of powers, or performance of functions or duties, with:

·          the Attorney-General, and

·          a responsible Minister for a Commonwealth agency if the information or documents relate to that agency.

169.           New subsection 32AEA(2) clarifies that the information or documents being shared may be about the exercise of powers, or the performance of functions or duties, whether that exercise or performance is ongoing or has been completed.

170.           The IGIS can currently share information with relevant Ministers. This amendment is intended to provide clarity.

Item 34: After Section 32AF

171.           This item would insert new section 32AFA regarding the disclosure of ACIC examination material.

172.           Examination material is defined by section 4B of the ACC Act and is:

·          any evidence given by a person before an examiner at an examination; or

·          a document or thing produced by a person to an examiner at an examination; or

·          any information that might enable a person who has given evidence before an examiner at an examination to be identified; or

·          the fact that a person has given or may be about to give evidence at an examination.

173.           New subsection 32AFA(1) would provide that, for the purposes of that section, the listed terms have the same meaning as in the ACC Act. A note at the end of subsection (1) would direct the reader to subsection 4B(3) of the ACC Act for the definition of the examinee for examination material.

174.           New subsection 32AFA(2) would provide that, before examination material (within the meaning of section 4B of the ACC Act) is shared by the Inspector-General (except to an IGIS official), the Inspector-General must consider, and as part of considering, consult with the CEO of the ACIC, as to whether that sharing:

·          might prejudice a person’s safety, or

·          would reasonably be expected to prejudice the fair trial of the examinee for the examination material if the examinee has been charged with a related offence or a charge for a related offence is imminent; or

·          might prejudice the effectiveness of a special ACC operation or special ACC investigation.

175.           ‘Sharing’ is intended to capture all circumstances in which information may be communicated or disclosed to persons who are not IGIS officials.

176.           The examination material may still be shared irrespective of any advice received from the CEO of ACIC or any conclusions reached by the Inspector-General as a result of their consideration of the listed matters, provided the consultation has occurred and the listed matters have been considered. This is the case even in circumstances where an examiner has made a direction under subsection 25A(9) of the ACC Act that examination material must not be used or disclosed, or only used by, or disclosed to, specified persons in specified ways or on specified conditions. Subsection 25A(9A) of the ACC Act provides that an examiner must make such a direction if failure to do so might prejudice a person’s safety or would reasonably be expected to prejudice the examinee’s fair trial, if the examinee has been charged with a related offence or such a charge is imminent. Subsection 25A(14A) of the ACC Act provides that it is an offence to use or disclose examination material where the use or disclosure contravenes a direction given under subsection (9). However, new subsection 25A(14B) of the ACC Act (inserted by item 115 of Schedule 1) would provide an exception to this offence for the use or disclosure of examination material for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. The recipient of examination material shared by the IGIS, who is not an IGIS official, would still be bound by the terms of any direction under subsection 25A(9) of the ACC Act and would not be able to use or on-disclose that examination material if the use or on-disclosure would constitute an offence under subsection 25(14A) of the ACC Act.

177.           Note 1 at the end of section 32AFA would clarify that, in addition to the information sharing provisions in sections 32AEA (inserted by item 33 of Schedule 1) and 32AF, the Inspector-General or an IGIS official may share information in the performance of functions or duties, or the exercise of powers, under the IGIS Act or another Act. This note is intended to make it clear that the requirements in new section 32AFA apply in all circumstances where the IGIS may share examination material.

178.           Note 2 at the end of section 32AFA would clarify that the recipient of examination material (except an IGIS official) commits an offence under subsection 25A(14A) of the ACC Act if the recipient uses or discloses the examination material in contravention of a direction about the examination material given under subsection 25A(9) of that Act. This note is intended to make it clear that it would still be an offence for a person (other than an IGIS official) who has received examination material from an IGIS official to on-disclose that information, even in circumstances where the IGIS official who disclosed the information has not themselves committed an offence.

179.           This amendment reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC, including examiners.

Item 35: Paragraph 32A(1)(b)

180.           Subsection 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 Defence Department (depending on the specific intelligence agency).

181.           This item amends paragraph 32A(1)(b) to cover documents which, in relation to the ACIC, are prepared on a periodic basis and given to the responsible Minister. This amendment reflects the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 36: Paragraph 32A(1)(c)

182.           This item would amend paragraph 32A(1)(c) to cover, in relation to the ACIC, a report that is given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

183.           This amendment reflects the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 37: Paragraph 32A(1)(e)

184.           This item would omit “ACIC or the Australian Federal Police” and substitute “AFP, AUSTRAC or the Department of Home Affairs”.

185.           This amendment reflects the expansion of the IGIS’s jurisdiction to AUSTRAC and Home Affairs.

Item 38: Subparagraph 32A(1)(e)(ii)

186.           This item would omit “ACIC or the Australian Federal Police of its” and substitute “AFP, AUSTRAC or the Department of Home Affairs of that agency’s”.

187.           Paragraph 32A(1)(e) covers documents issued by the specified agencies under section 46 of the PGPA Act and any other report that the IGIS believes relates to one of those agencies’ intelligence functions, provided that such a report is prepared on a periodic basis and is given to the responsible Minister.

188.           This amendment reflects the expansion of the IGIS’s jurisdiction to AUSTRAC and Home Affairs.

Item 39: Paragraph 32A(1)(f)

189.           This item would repeal and replace paragraph 32A(1)(f). Paragraph 32A(1)(f) applies specifically to the ACIC. It would allow the IGIS to request copies of a report that is provided to the Board of the ACIC or to the Inter-Governmental Committee, so long as that report was prepared by the CEO of the ACIC or the Chair of the Board and is in the possession of the ACIC. This provision reflects the organisational structure of the 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.

190.           New paragraph 32A(1)(f) does not include a requirement that the IGIS is satisfied the report relates to the performance by the ACIC of its intelligence functions. This reflects the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 40: Paragraph 32A(5)(aa)

191.           This item would amend paragraph 32A(5)(aa) and is consequential to the amendments to paragraphs 32A(1)(b) and (c).

192.           This provision would ensure that where the IGIS has requested a report from the ACIC that is specified in paragraphs 32A(1)(b) or (c), and that report has not yet been provided to the Minister, the ACIC does not need to provide a copy to the IGIS until it has been provided to the Minister. 

Item 41: After paragraph 32A(5)(aa)

193.           This item would insert new paragraph 32A(5)(ab). New paragraph 32A(5)(ab) would ensure that where the IGIS has requested a report from the AFP, AUSTRAC or Home Affairs, and that report has not yet been provided to the responsible Minister, the agency does not need to provide a copy to the IGIS until it has been provided to the Minister.

194.           This amendment is necessary to give effect to the IGIS’s expanded jurisdiction over the AFP, AUSTRAC and Home Affairs, and to ensure its oversight of these agencies is consistent with other agencies the IGIS oversees.

Item 42: Subsections 32B(1) and (1A)

195.           This item would repeal subsections 32B(1) and (1A) and substitutes a new subsection 32B(1). Section 32B requires Ministers (and in the case of the ACIC - the Board of the ACIC or the Inter-Governmental Committee) to provide the IGIS with a copy of any guidelines or directions given to the head of the specified organisations.

196.           New subsection 32B(1) would extend the existing provisions of section 32B to apply to any guidelines or directions given by the responsible Minister to the ACIC, and to any guidelines or directions that relate to the performance of the intelligence functions of the AFP, AUSTRAC and Home Affairs.

197.           This amendment is necessary to give effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs, and to ensure its oversight of these agencies is consistent with other agencies the IGIS oversees.

Item 43: Paragraph 32B(2)(b)

198.           This item would omit “subparagraph (1A)(b)(ii)” and substitute “paragraph (1)(b)”. This amendment is consequential to the repeal of subsection 32B(1A) by item 42 of Schedule 1.

Item 44: After section 32B

199.           This item would insert new section 32C. New section 32C would require the IGIS to brief the PJCIS at least once each calendar year.

200.           This requirement may be satisfied by any briefings provided by the IGIS to the PJCIS, including briefings provided in compliance with requirements under other legislation. This amendment is intended to ensure the PJCIS has the context necessary to support its oversight work. Intelligence Services Act 2001 (IS Act)

Item 45: Subsection 3(1)

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

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

·          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 .

·          CEO of ACIC ’ means the Chief Executive Officer of ACIC.

·          Department of Home Affairs ’ means the Department administered by the Minister administering the Australian Border Force Act 2015 .

202.           These amendments are necessary to define terms related to the expansion of the PJCIS’s jurisdiction to the ACIC, AUSTRAC and Home Affairs. AFP is already a defined term in the IS Act.

Item 46: Subsection 3(1) (definition of Immigration and Border Protection Department)

203.           This item would amend section 3 by repealing the definition of ‘Immigration and Border Protection Department’. This repeal is necessary as the relevant functions of the Department of Immigration and Border Protection were subsumed into Home Affairs. A new definition of Home Affairs would be inserted by item 45 of Schedule 1.

Item 47: Subsection 3(1)

204.           This item would insert a new definition of ‘intelligence function’ providing that it has the meaning given by section 3A of the IGIS Act, except in paragraph (ca) of the definition of ‘intelligence information’ in subsection 3(1).

205.           As it is intended that the PJCIS’s jurisdiction relating to the intelligence functions of the AFP, AUSTRAC and Home Affairs will mirror that of the IGIS, it is appropriate to link the definition of intelligence function in the IS Act to that contained in the IGIS Act. This definition will be inserted into the IGIS Act by item 6 of Schedule 1 and a detailed explanation of the definition is provided in relation to that item.

Item 48: Subsection 3(1) (at the end of the definition of intelligence information )

206.           This item would insert a note at the end of the definition of ‘intelligence information’ clarifying that the term intelligence functions in paragraph (ca) of the definition of ‘intelligence information’ has its ordinary meaning and does not have the meaning given by the definition of ‘intelligence function’ in subsection 3(1) (inserted by item 47 of Schedule 1).

Item 49: Subsection 23(3)

207.           Section 23 provides that the Governor-General may, in certain circumstances, retire the Director-General of ASIS from office on the ground of incapacity. This item would omit the phrase “Director-General’s consent, retire the Director-General of ASIS” and substitute “Director-General of ASIS’s consent, retire the Director-General”.

208.           This amendment is intended to clarify that it is the Director-General of ASIS that must consent to their being retired on the ground of incapacity.

Item 50: Paragraph 29(1)(a)

209.           This item would repeal and replace paragraph 29(1)(a). Existing paragraph 29(1)(a) provides that the functions of the PJCIS include reviewing the administration and expenditure of ASIO, ASIS, AGO, DIO, ASD and ONI, including the annual financial statements of those agencies. New paragraph 29(1)(a) would provide that the functions of the PJCIS include reviewing the administration and expenditure, including the annual financial statements of:

·          ACIC, ASIO, ASIS, AGO, DIO, ASD and ONI; and

·          AFP, AUSTRAC and Home Affairs, in relation to the performance of that agency’s intelligence functions.

210.           Subparagraph 29(1)(a)(i) groups the ACIC together with ASIO, ASIS, AGO, DIO, ASD and ONI. The ACIC has been included here because its intelligence functions, including the collecting, correlating, analysing and disseminating of criminal information and intelligence (provided for in subsection 7A(a) of the ACC Act), are inseparable from its other functions. This would enable the PJCIS to review all aspects of the administration and expenditure of the ACIC.

211.           Subparagraph 29(1)(a)(ii) is intended to capture only the intelligence functions of the AFP, AUSTRAC and Home Affairs. These three agencies are defined separately as they have both intelligence and significant non-intelligence functions, (for example, the primary law enforcement role of the AFP, or the regulatory role performed by AUSTRAC).

Item 51: Paragraph 29(1)(b)

212.           This item would amend paragraph 29(1)(b) to insert ‘ACIC’ to the list of agencies in relation to which the PJCIS can review any matter referred to it by the responsible Minister, the Attorney-General or by a resolution of either House of the Parliament.

213.           This amendment is necessary to reflect the PJCIS’s expanded jurisdiction in relation to the ACIC and ensure its oversight of the ACIC is consistent with other NIC agencies. 

Item 52: After paragraph 29(1)(b)

214.           This item would insert new paragraph 29(1)(ba). New paragraph 29(1)(ba) would provide that a function of the PJCIS is to review and inquire into any proposed reforms to, or expiry, lapsing or cessation of effect of, legislation relating to counter-terrorism or national security, as the PJCIS sees fit.

215.           The amendments in this item would ensure the PJCIS’s role in relation to counter-terrorism and national security legislation is explicitly recognised as part of its statutory functions. The PJCIS would not be required to review or inquire into all such proposed reforms, expiry, lapsing or cessation of effect of relevant legislation but would have discretion to decide whether to undertake a review or inquiry.

Item 53: After paragraph 29(1)(bac)

216.           This item would insert new paragraphs 29(1)(bad) and (bae) which would create functions for the PJCIS in relation to the AFP, AUSTRAC and Home Affairs.

217.           This item would limit the PJCIS’s jurisdiction to the intelligence functions of AUSTRAC. AUSTRAC has a number of regulatory functions which it would not be appropriate for the PJCIS to oversee.

218.           Paragraph 29(1)(bad) would provide that the PJCIS’s functions include to monitor and to review the performance by the AFP, AUSTRAC and Home Affairs’ of that agency’s intelligence functions, referred to the PJCIS by the responsible Minister, the Attorney-General or by a resolution of either House of the Parliament.

219.           Paragraph 29(1)(bae) would allow the PJCIS to report to both Houses of the Parliament on any matter that relates to the AFP, AUSTRAC or Home Affairs’ that is connected with the performance of that agency’s intelligence functions, referred to the PJCIS by the responsible Minister, the Attorney-General or by a resolution of either House of the Parliament.

220.           These provisions are consistent with the PJCIS’s existing function to review any matter in relation to an intelligence agency referred to it by the responsible Minister, the Attorney-General or by a resolution of either House of the Parliament.

Item 54: Paragraphs 29(1)(bb), (bc) and (bca)

221.           This item would repeal paragraphs 29(1)(bb), (bc) and (bca) which relate to reviews by the PJCIS that have been completed.

Item 55: Subsection 29(2)

222.           This item would amend subsection 29(2) to omit the list of agencies and insert ‘the following bodies’.

223.           This amendment is consequential to the amendment below.

Item 56: At the end of subsection 29(2)

224.           This item would amend subsection 29(2). Subsection 29(2) provides that the PJCIS may, by resolution, request the responsible Minister or the Attorney-General to refer a matter related to the activities of any of the listed agencies to the PJCIS (and the Minister or the Attorney-General may refer that matter to the PJCIS for review under paragraph 29(1)(b)).

225.           This item would amend subsection 29(2) by including the ACIC, AFP, AUSTRAC and Home Affairs as agencies in relation to which the PJCIS may request a matter is referred to it. In regard to the AFP, AUSTRAC or Home Affairs, the PJCIS would only be able to make such a request if the matter relates to the performance of that agency’s intelligence functions.

226.           This amendment is necessary to reflect the PJCIS’s expanded jurisdiction in relation to all of the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs.

Item 57: After subsection 29(2)

227.           This item would insert new subsections 29(2A) and (2B).

228.           New subsection 29(2A) would provide that the PJCIS may, by resolution, request the IGIS to inquire into a matter (whether or not the functions of the PJCIS include reviewing the matter) under section 8AA of the IGIS Act, if the matter:

·          relates to the legality and propriety (however described) of the operational activities of an agency,

·          is within the functions of the IGIS mentioned in section 8AA, and

·          does not relate to an individual complaint about the activities of the agency.

229.           The phrase ‘whether or not the functions of the PJCIS include reviewing the matter’ is intended to clarify that the PJCIS may request the IGIS inquire into a matter even if that matter is one the PJCIS itself would be prevented from reviewing. This reflects the intention of the provision to enable the PJCIS to request the IGIS inquire into the operational activities of an agency. The term ‘operational activities’ here therefore encompasses activities that the PJCIS is prevented from reviewing under subsection 29(3), including, for example:

·          reviewing particular operations that have been, are being or are proposed to be undertaken by ACIC, ASIO, ASIS, AGO, DIO or ASD, or

·          reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by AFP, AUSTRAC or Home Affairs (paragraph 29(3)(k) as amended by item 64 of Schedule 1)

provided that inquiring into those activities would be within the functions of the IGIS as set out in new section 8AA of the IGIS Act (inserted by item 17 of Schedule 1).

230.           The clarifying phrase ‘however described’ after legality and propriety is intended to reflect the objects of the IGIS Act (as set out in section 4 of that Act) and to capture the specific functions of the IGIS which deal with legality and propriety but do not use those specific terms. For example, matters that relate to the legality and propriety of the operational activities of an agency could include:

·          an agency’s compliance with the laws of the Commonwealth, States or Territories

·          an agency’s compliance with directions or guidelines given by the responsible Minister, or

·          an agency’s compliance with human rights (as defined under the IGIS Act).

231.           The IGIS would have discretion in dealing with a request, and would not be required to comply with a request. The IGIS would only be required to provide a response to the PJCIS in accordance with new section 22A (inserted by item 30 of Schedule 1), if an inquiry is completed as a result of a request. The IGIS would not otherwise be required to respond to a request, or make public its decision or any reasons in relation to the request. The purpose of this amendment is to strengthen the relationship between the PJCIS and IGIS, and the oversight framework for NIC agencies, while maintaining the distinct oversight roles of the PJCIS and the IGIS.

232.           A note at the end of this subsection would draw attention to subsection 29(3) and clause 1 of Schedule 1 to the IS Act which provide that the PJCIS must not review certain matters or require the Inspector-General to disclose certain information. This will clarify that while the PJCIS may request the IGIS to inquire into certain matters, the PJCIS would still be restricted from reviewing the matters set out in subsection 29(3) of the IS Act, or requiring the disclosure of certain information pursuant to clause 1 of Schedule 1 to that Act. These amendments are not intended to provide the PJCIS with direct oversight of operational activities.

233.           New subsection 29(2B) would provide that the PJCIS must provide a copy of the request to the Minister responsible for the agency to which the matter relates. While the new drafting refers to ‘Minister’, paragraph 23(b) of the Acts Interpretation Act operates to ensure that if more than one agency is concerned, the Minister responsible for each agency must be provided with a copy of the request.

Item 58: Paragraph 29(3)(a)

234.           Subsection 29(3) provides express limitations to the functions of the PJCIS. Paragraph 29(3)(a) provides that the functions of the PJCIS do not include reviewing the intelligence gathering and assessment priorities of various intelligence agencies under its oversight.

235.           This item would amend paragraph 29(3)(a) to exclude the PJCIS from reviewing the intelligence gathering and assessment priorities of the ACIC, consistent with current PJCIS oversight of ASIO, ASIS, AGO, DIO, ASD and ONI.

Item 59: Paragraph 29(3)(b)

236.           Paragraph 29(3)(b) provides that the functions of the PJCIS do not include reviewing the sources of information, other operational assistance or operational methods available to various intelligence agencies under its oversight.

237.           This item would amend paragraph 29(3)(b) to exclude the PJCIS from reviewing the sources of information, other operational assistance or operational methods available to the ACIC, consistent with current PJCIS oversight of ASIO, ASIS, AGO, DIO, ASD and ONI.

Item 60: After paragraph 29(3)(c)

238.           This item would insert new paragraph 29(3)(ca) which would provide that the functions of the PJCIS do not include reviewing special ACC operations, or special ACC investigations (within the meaning of the ACC Act) that have been, are being, or are proposed to be undertaken by the ACIC.

239.           This amendment reflects current provisions in the PJCLE Act providing that the functions of the Parliamentary Joint Committee on Law Enforcement (PJCLE) do not include reviewing particular operations or investigations that have been, are being, or are proposed to be undertaken by the ACIC and is consistent with the treatment of operations by other intelligence agencies (paragraph 29(3)(c)) and investigations by the AFP, AUSTRAC and Home Affairs (paragraph 29(3)(k) amended by item 64 of Schedule 1).

Item 61: Paragraph 29(3)(e)

240.           Paragraph 29(3)(e) provide that the functions of the PJCIS do not include reviewing an aspect of the activities of various agencies under its oversight that does not affect an Australian person.

241.           This item would amend paragraph 29(3)(e) to exclude the PJCIS from reviewing an aspect of the activities of the ACIC where that activity does not affect an Australian person. This is consistent with existing limitations on the PJCIS’s oversight of ASIO, ASIS, AGO, DIO, ASD and ONI.

Item 62: Paragraph 29(3)(g)

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

243.           This item would amend paragraph 29(3)(g) to replace a reference to the former Immigration and Border Protection Department, with Home Affairs. This is intended to reflect that the relevant functions of the former Department of Immigration and Border Protection were subsumed by Home Affairs.

244.           This item would also amend paragraph 29(3)(g) to exclude the PJCIS from conducting inquiries into individual complaints about the activities of the ACIC, AUSTRAC or Home Affairs, consistent with current PJCIS oversight of agencies within its remit.

Item 63: Paragraph 29(3)(j)

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

246.           This item would amend paragraph 29(3)(j) to exclude the PJCIS from reviewing sensitive operational information or operational methods available to the AFP, AUSTRAC (including AUSTRAC information as defined in the AML/CTF Act) and Home Affairs, consistent with current PJCIS oversight of agencies within its remit, particularly the treatment of operational information by the AFP.

Item 64: Paragraph 29(3)(k)

247.           Existing 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.

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

Item 65: Section 30 (heading)

249.           This item would repeal the existing heading for section 30 and substitute the heading ‘Committee may request briefings’.

250.           This amendment is necessary to reflect changes to the list of persons from whom the PJCIS may request a briefing that will be made by item 67 of Schedule 1.

Item 66: Section 30

251.           This item would amend section 30 by omitting “For the purpose” and substituting “Without limiting who the Committee may request briefings from, for the purpose”.

252.           This is an avoidance of doubt provision to clarify that section 30 does not limit the ability of the PJCIS to request briefings from persons not listed in this section.

Item 67: Paragraph 30(e)

253.           This item would repeal paragraph 30(e) to remove a reference to the Secretary of the Department of Immigration and Border Protection and replace it with a new paragraph 30(e) referencing the Secretary of Home Affairs. This is intended to reflect that the relevant functions of the Department of Immigration and Border Protection have been subsumed by Home Affairs.

254.           This item also inserts new paragraphs 30(f) to (i).

255.           New paragraphs 30(f) and (g) would specify that the AUSTRAC CEO (30(f)) and the CEO of the ACIC (30(g)) are persons from whom the PJCIS may request briefing. This reflects the expansion of the PJCIS’s functions to include oversight of AUSTRAC and the ACIC.

256.           New paragraph 30(h) would specify that the Independent National Security Legislation Monitor (INSLM) is a person from whom the PJCIS may request briefing. It is intended to strengthen the relationship between integrity bodies such as the PJCIS and the INSLM and ensure the PJCIS has the information necessary to perform its functions.

257.           New paragraph 30(i) would specify that an agency head of an agency (within the meaning of the Public Service Act 1999 ) is a person from whom the PJCIS may request a briefing, if the functions, or proposed functions of the agency, relate to a matter being considered by the PJCIS under section 29 of the IS Act. This is intended to ensure the PJCIS is able to access information necessary to perform its functions.

Item 68: Clause 1A of Schedule 1 (definition of agency )

258.           Clause 1A of Schedule 1 to the IS Act contains definitions for use in that Schedule. This item would amend the definition of ‘agency’ to remove reference to the Immigration and Border Protection Department and insert reference to the ACIC, AUSTRAC and Home Affairs.

259.           This amendment is necessary to reflect the expansion of the PJCIS’s oversight functions to include the ACIC, AUSTRAC and Home Affairs and to reflect that the relevant functions of the former Department of Immigration and Border Protection have been subsumed into Home Affairs. The AFP is already included in the definition of ‘agency’.

Item 69: Clause 1A of Schedule 1 (paragraph (f) of the definition of agency head )

260.           This item would repeal and replace paragraph (f) of the definition of ‘agency head’ in clause 1A of Schedule 1 and insert new paragraphs (g) and (h).

261.           New paragraph (f) would amend the definition of ‘agency head’ to replace a reference to the Secretary of the Immigration and Border Protection Department with a reference to the Secretary of Home Affairs. This is to reflect that the relevant functions of the Department of Immigration and Border Protection have been subsumed by Home Affairs.

262.           New paragraphs (g) and (h) would amend the definition of agency head to include the AUSTRAC CEO and the CEO of the ACIC. This reflects the expansion of the PJCIS’s functions to include the oversight of AUSTRAC and the ACIC.

263.           The Commissioner of the AFP is already included in the definition of ‘agency head’ at paragraph (e).

Item 70:  Clause 1A of Schedule 1 (paragraph (a) of the definition of operationally sensitive information )

264.           This item would amend paragraph (a) of the definition of ‘operationally sensitive information’ in clause 1A of Schedule 1 to include information relevant to the ACIC.

265.           Paragraph (a) refers to information about sources of information, other operational assistance or operational methods available to an agency.

266.           This amendment reflects the expansion of the PJCIS’s functions to include oversight of the ACIC.

Item 71:  Clause 1A of Schedule 1 (paragraph (b) of the definition of operationally sensitive information )

267.           This item would amend paragraph (b) of the definition of ‘operationally sensitive information’ in clause 1A of Schedule 1 to include information relevant to the ACIC.

268.           Paragraph (b) refers to information about particular operations that have been, are being, or are proposed to be undertaken by an agency.

269.           This amendment reflects the expansion of the PJCIS’s functions to include oversight of the ACIC.

Item 72: Clause 1A of Schedule 1 (at the end of the definition of operationally sensitive information )

270.           This item would insert new paragraphs (d) and (e) into 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.

271.           ‘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. 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.

272.           New paragraph (d) would provide that sources of information, other operational assistance or operational methods available to the AFP, AUSTRAC or Home Affairs, where the information is related to these agencies’ intelligence functions, are to be treated as operationally sensitive information under the IS Act. This is consistent with the protection provided to operations conducted by the intelligence agencies currently within the PJCIS’s jurisdiction, and is necessary due to the operational nature of some activities performed by these agencies.

273.           New paragraph (e) would provide that information about particular operations that have been, are being, or are proposed to be, undertaken by the AFP, AUSTRAC or Home Affairs, 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 protections provided to similar information available to the intelligence agencies currently within the PJCIS’s jurisdiction.

274.           These amendments are necessary as a result of the expanded oversight of the PJCIS to the AFP, AUSTRAC and Home Affairs. They would also remove ambiguity as to whether the PJCIS may disclose ‘operationally sensitive information’ relating to the AFP. Information relating to AFP operations is not currently protected under the IS Act, even though the PJCIS’s existing functions include oversight of the AFP’s functions relating to terrorism offences under Part 5.3 of Schedule 1 of the Criminal Code Act 1995 (Criminal Code).

275.           These agencies (AFP, AUSTRAC and Home Affairs), conduct operations, manage sources of information, provide other operational assistance and use operational methods for which the sensitivities are analogous to the intelligence agencies currently within the PJCIS’s jurisdiction. It is therefore consistent, as well as necessary, that these categories of information from these agencies are protected when dealing with the PJCIS.

Item 73: Paragraph 1B(b) of Schedule 1

276.           Clause 1B of Schedule 1 provides that certain parts and clauses of that Schedule apply to a subcommittee of the PJCIS (appointed under clause 23) as if references to the Committee included references to the subcommittee.

277.           This item would amend paragraph 1B(b) to provide that certain parts and clauses of Schedule 1 apply to a subcommittee as if references to the Chair or Deputy Chair of the Committee include references to the Chair or Deputy Chair of the subcommittee. This amendment is intended to increase clarity around the procedures of the subcommittees of the PJCIS.

Item 74: Subclause 6(5) of Schedule 1

278.           Clause 6 of Schedule 1 sets out provisions relating to the publication of evidence or contents of documents by the PJCIS. Subclause 6(4) provides that the PJCIS must not disclose or publish, or otherwise authorise the disclosure or publication of, the evidence or contents of the document, if the disclosure or publication would disclose a matter that the PJCIS is not, under clause 7, permitted to disclose in a report to a House of the Parliament. Existing subclause 6(5) provides that the PJCIS may obtain the advice of the responsible Minister or responsible Ministers concerned as to whether the disclosure or publication might disclose a matter of that kind.

279.           This item would amend subclause 6(5) to omit ‘may obtain’ and substitute ‘must obtain’. This amendment would require the PJCIS, in each instance, to obtain the advice of the responsible Minister(s) before disclosing or publishing evidence or the contents of documents. Given the highly sensitive nature of the information held by the PJCIS, it is appropriate that consultation with the responsible Minister(s) be required before information is disclosed or published.  

Item 75: Before subclause 7(1) of Schedule 1

280.           This item inserts a new subheading before subclause 7(1) of Schedule 1. This amendment would make clear that the provisions under this subheading relate to certain information that is not to be disclosed by the PJCIS in a report to a House of the Parliament.

281.           This amendment would clarify the structure of the section .

Item 76: Paragraph 7(1)(a) of Schedule 1

282.           Clause 7 of Schedule 1 to the IS Act provides that there is certain information that the PJCIS must not disclose to a House of the Parliament, such as identities of staff members or agents 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.

283.           This item would amend paragraph 7(1)(a) to provide that the PJCIS must not disclose to parliament the identity of a person who is, or has been, an agent of the ACIC. An agent of the ACIC may include, for example, a human or confidential source. This amendment reflects the expansion of the jurisdiction of the PJCIS to the ACIC.

284.           Protecting the identity of ACIC agents is critical to the ability of the ACIC to perform its functions and the amendment is consistent with existing prohibitions on disclosing information that could identify staff members or agents (as applicable) of other intelligence agencies.

Item 77: At the end of subclause 7(1) of Schedule 1

285.           This item would insert additional paragraphs 7(1)(d)-(j). These paragraphs would set out additional types of information that the PJCIS must not disclose in a report to a House of the Parliament. Specifically:

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

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

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

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

·          any information the disclosure of which could unreasonably disclose confidential commercial information (paragraph (i)),

·          any information having a national security classification or that the PJCIS believes should have a national security classification, unless the agency head of the agency that produced the information, or from which the information originated, provides written authority to disclose the information (paragraph (j)).

286.           The new categories of information in proposed paragraphs (d) to (j) are based on the definition of sensitive information in the PJCLE Act, and have been inserted in response to the expansion of the PJCIS’s oversight of the ACIC, AFP, AUSTRAC and Home Affairs. This is because, unlike the agencies within PJCIS’s existing oversight, these agencies are likely to deal with information that may not constitute national security information, yet is still appropriately sensitive to warrant limited disclosure, particularly to the public-at-large through a report to a House of the Parliament.

287.           Proposed new paragraph (j) would ensure that classified information remains subject to appropriate protections. This paragraph would provide that any information that has a national security classification, or that the PJCIS believes should have a national security classification, must not be disclosed in a report without the written authority of the agency head of the agency that produced the information, or from which the information originated. The agency head’s written authority is not required for disclosure of unclassified information unless the PJCIS believes that the information should have a national security classification.

Item 78: Subclause 17(1) of Schedule 1

288.           This item would repeal and replace subclause 17(1) of Schedule 1.

289.           Existing subclause 17(1) provides that the PJCIS may meet at such times and, subject to subclause 17(3) (regarding suitability of meeting places), at such places in Australia as the Committee decides by resolution or, subject to a resolution of the PJCIS, as the Chair decides.

290.           New subclause 17(1) would retain the effect of the provisions in existing subclause 17(1) but would also provide that the PJCIS may meet physically or using virtual meeting technology. This amendment is intended to modernise the procedures of the PJCIS.

Item 79: Subclause 17(3) of Schedule 1

291.           This item would repeal and replace subclause 17(3) of Schedule 1. Existing subclause 17(3) provides that, before deciding a place of meeting, the Chair of the PJCIS must obtain advice from each of the relevant agency heads as to the suitability of the place.

292.           New subclause 17(3) would clarify that, if classified information may be discussed at meetings, the Chair must obtain and follow the advice of the agency head of each agency that produces such information, or from which such information originates, regarding the suitability of security arrangements for such meetings (including the security arrangements for virtual meeting technology).

293.           This would clarify that advice must be sought from relevant agency heads only in relation to meetings where classified information may be discussed. It would also enable the PJCIS to obtain agreement from agency heads for standing security arrangements where meetings are regularly held at a particular place (including virtually). The Chair of the PJCIS would still be required to obtain and follow advice relating to the suitability of the security arrangements from relevant agency heads in circumstances where the meeting was being held outside any standing arrangements.

Item 80: Clause 21 of Schedule 1

294.           Existing clause 21 provides that each member of the staff of the PJCIS must be cleared for security purposes to the same level and at the same frequency as staff members of ASIS.

295.           This item would repeal and replace clause 21. New clause 21 would provide that staff of the PJCIS must be cleared for security purposes at least at a level and frequency:

·          appropriate for access to information and systems at the classification that the staff member requires, in accordance with government policy in relation to protective security; and

·          acceptable to all of the agency heads.

296.           This amendment is intended to reflect practical implications of the change in the PJCIS’s work over time, including the increase in public hearings. Much of the work of the staff of the PJCIS does not require a high level of security clearance. Obtaining high level security clearances is a lengthy process and one which may entail significant intrusions on the privacy of the person obtaining the clearance. PJCIS staff should only need to hold security clearances that are commensurate with the classification and sensitivity of the information and matters they observe.

297.           Government protective security policy is set out in the Protective Security Policy Framework (PSPF).

Item 81: Subclause 23(1) of Schedule 1

298.           Clause 23 provides for the PJCIS to appoint subcommittees to inquire into and report to the PJCIS upon such matters with which the PJCIS is concerned and as the Committee directs. This item repeals subclause 23(1) and substitutes:

·          a new subheading ‘Establishment’ before subclause 23(1)

·          new subclause 23(1)

·          a new subheading ‘Membership’ after subclause 23(1)

·          new subclauses 23(1A) and (1B)

·          a new subheading ‘Reporting’ after subclause 23(1B)

299.           The new subheadings are intended to improve the accessibility of the IS Act by providing guidance as to the different parts of clause 23.

300.           New subclause 23(1) details the establishment of subcommittees and provides that the PJCIS may appoint one or more subcommittees to inquire into and report to the PJCIS in relation to matters concerning the Committee as the Committee directs.

301.           New subclauses 23(1A) and (1B) deal with membership of subcommittees. New subclause 23(1A) provides that a subcommittee must consist of at least three members. New subclause 23(1B) provides that the Chair and Deputy Chair of the PJCIS are members of each subcommittee by virtue of the position they hold as Chair and Deputy Chair.

302.           These amendments would increase clarity around the procedures of the subcommittees of the PJCIS and are consistent with provisions for other parliamentary committees.

Item 82: Before subclause 23(3) of Schedule 1

303.           This item would insert new subheading ‘Sitting times’ before subclause 23(3). This amendment is intended to improve the accessibility of the IS Act by providing guidance as to the different parts of clause 23.

Item 83: Before subclause 25(1) of Schedule 1

304.           This item would insert new subclause 25(1AA) to provide that the PJCIS may elect a Chair and Deputy Chair for each subcommittee.

305.           This amendment would increase clarity around the procedures of the subcommittees of the PJCIS.

Item 84: At the end of clause 25 of Schedule 1

306.           This item would insert new subclauses 25(3) and (4).

307.           New subclause 25(3) would provide that at a meeting of a subcommittee, three members of that subcommittee, including at least one Government member and one non-Government member, constitute a quorum.

308.           New subclause 25(4) would provide that any member of the PJCIS may participate in the proceedings of a subcommittee however only members of that subcommittee may vote or move a motion.

309.           These amendments would increase clarity around the procedures of the subcommittees of the PJCIS and are consistent with provisions for other parliamentary committees.

Office of National Intelligence Act 2018 (ONI Act)

Item 85: After section 18

310.           This item would insert new section 18A. New section 18A would require the Director-General of ONI to brief the PJCIS at least once each calendar year.

311.           This requirement may be satisfied by any briefings provided by the Director-General of ONI to the PJCIS, including briefings provided in compliance with requirements under other legislation. The delegations provision in section 54 of the ONI Act would continue to apply, meaning the Director-General of ONI may delegate this function to a person who holds, or performs the duties of, an SES equivalent position within ONI.

312.           This amendment is intended to ensure the PJCIS has the context necessary to support its oversight work.

Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act)

Item 86: Section 10 (heading)

313.           This item amends the heading to insert ‘and the Inspector-General of Intelligence and Security’. This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 87: Subsection 10(1)

314.           Subsection 10(1) of the PJCLE Act provides that the Ombudsman must, at least once in each calendar year, provide a briefing to the PJCLE about the involvement of the ACIC and the AFP in controlled operations under Part IAB of the Crimes Act 1914 (Crimes Act) during the preceding 12 months.

315.           This item omits the ACIC from the Ombudsman’s briefing requirements under subsection 10(1) as a consequence of the carve out of ACIC’s functions from the Ombudsman’s jurisdiction.

Item 88: After subsection 10(1)

316.           This item inserts new subsection 10(1A) to provide that the IGIS must, at least once in each calendar year, provide a briefing to the PJCLE about the involvement of the ACIC in controlled operations under Part IAB of the Crimes Act during the preceding 12 months. This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 89: Subsection 10(2)

317.            Subsection 10(2) of the PJCLE Act provides that, for the purposes of receiving a briefing from the Ombudsman under subsection 10(1), the PJCLE must meet in private.

318.           This item amends subsection 10(2) of the PJCLE Act to provide that in addition to meeting in private for the purposes of receiving a briefing from the Ombudsman under subsection 10(1), the PJCLE must also meet in private for the purposes of receiving a briefing from the IGIS under new subsection 10(1A) inserted by the above item.

Part 2: Consequential amendments commencing with the main amendments

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Item 90: Section 5

319.           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 91: After paragraph 50A(2)(b)

320.           This item would insert new paragraph 50A(2)(c).

321.           Subsection 50A(1) provides that it is an offence for a person who is, or has been, an entrusted investigating official (as defined by the AML/CTF Act) and has obtained information under section 49 or section 50A to make a record of, disclose, or otherwise use, the information.

322.           Subsection 50A(2) provides circumstances where subsection 50A(1) does not apply, including (but not limited to) where the making of the record, disclosure or use is in connection with the performance of the person’s functions, duties or powers as an entrusted investigating official.

323.           New paragraph 50A(2)(c) would provide that the offence contained in subsection 50A(1) does not apply in relation to the disclosure of 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.

324.           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.

Item 92: Subsection 50A(2) (note)

325.           This item would repeal and substitute the note at the end of subsection 50A(2) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

326.           Subsection 13.3(3) of the Criminal Code 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.

327.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection (2) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the AML/CTF Act, the Criminal Code and the IGIS Act.

Item 93: After subsection 121(6)

328.           This item would insert new subsection 121(6A).

329.           Section 121 contains several offences for the disclosure of AUSTRAC information. Subsections 121(5) and (6) concern offences relating to secondary dealings with AUSTRAC information.

330.           Subsection 121(5) provides that a person commits an offence if:

·          they are not an AUSTRAC entrusted person; an official of a Commonwealth, State or Territory; or a Minister of the Commonwealth or of a State or Territory; and

·          AUSTRAC information is disclosed to them under subsection 121(2); and

·          they are not subject to any conditions under subsection 121(4); and

·          they disclose the information to another person.

331.           Subsection 121(6) provides that a person commits an offence if:

·          they are an AUSTRAC entrusted person; an official of a Commonwealth, State or Territory; or a Minister of the Commonwealth or of a State or Territory; and

·          AUSTRAC information is disclosed to them under subsection 121(2); and

·          they are subject to any conditions under subsection 121(4); and

·          they make a record of, disclose or otherwise use the information; and

·          the making of the record, disclosure or use breaches any of those conditions.

332.           New subsection 121(6A) would provide that the offences contained in subsections 121(5) and (6) do not apply in relation to the disclosure of AUSTRAC 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.

333.           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.

334.           This item would also insert a note after subsection 121(6A) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

335.           The note also refers to section 34C of the IGIS Act, 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 explains the interaction between the AML/CTF Act, the Criminal Code and the IGIS Act.

Item 94: After subsection 123(8A)

336.           This item would insert new subsection 123(8B).

337.           Subsection 123(1) provides that where a person has made a suspicious matter report to the AUSTRAC CEO as the result of a ‘suspicious matter reporting obligation’ (defined in section 41 of the AML/CTF Act), they must not tell a person other than an AUSTRAC entrusted person that they have given or are required to give such a report to the AUSTRAC CEO or disclose any information from which it could be reasonably inferred that a suspicious matter report has been or is required to be given to AUSTRAC.

338.           Subsection 123(2) provides that if a person is or has been required under subsection 49(1) of the AML/CTF Act to give information or produce a document to another person in relation to a report (given under sections 41, 43 or 45 of the AML/CTF Act), they must not disclose to any person other than an AUSTRAC entrusted person that they have been required to give information or produce a document, that the information has been provided or the document produced, or any information from which it could reasonably be inferred that information or a document has been or is required to be given, with certain exceptions. A person can disclose the existence of a section 49 notice (as well as information provided in response to the notice) to an ‘AUSTRAC entrusted person’, the person who gave the notice or any other person who has given a notice under subsection 49(1) in connection with that report.

339.           New subsection 123(8B) would provide an exception to the prohibitions in subsections 123(1) and (2) which would allow a person to disclose information relating to a ‘suspicious matter reporting obligation’ or a requirement to give information or produce a document under subsection 49(1) 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.

340.           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 performing oversight functions by ensuring it has full access to all relevant information.

341.           This item would also insert a note after subsection 123(8B) to provide clarification that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

342.           The note also refers to section 34C of the IGIS Act, 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 explains the interaction between the AML/CTF Act, the Criminal Code and the IGIS Act.

Item 95: After subsection 125(2)

343.           Section 125 provides that the AUSTRAC CEO may, in writing, authorise specified officials of a Commonwealth, State or Territory agency to access specified AUSTRAC information for the purpose of performing the agency’s functions and duties and exercising the agency’s powers.

344.           This item would insert new subsection 125(2A) providing that an IGIS official is taken, for the purposes of the AML/CTF Act, to hold an authorisation under section 125 to allow the IGIS official to have access to any AUSTRAC information.

345.           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.

Item 96: Subsection 129(2)

346.           This item would repeal and substitute subsection 129(2). Subsection 129(1) provides that it is an offence for a person to disclose AUSTRAC information if the disclosure is not permitted by Part 11 of the AML/CTF Act.

347.           Existing subsection 129(2) provides that the offence contained in subsection 129(1) does not apply if the person discloses the information for the purposes of an appropriate authority investigating the disclosure to which the offence may apply.

348.           New subsection 129(2) would reproduce the existing exception while also providing that the offence contained in subsection 129(1) does not apply in relation to the disclosure of AUSTRAC 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.

349.           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.

350.           This item would also repeal and replace the note after subsection 129(2) to provide clarification that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

351.           The note also refers to section 34C of the IGIS Act, 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 explains the interaction between the AML/CTF Act, the Criminal Code and the IGIS Act.

Item 97: Before subsection 207(2)

352.           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 98: After subsection 207(2)

353.           Subsection 207(1) provides that it is an offence for a person, who is given notice to produce information under subsection 202(2), to disclose the existence or nature of that notice, if the notice specified that information about the notice must not be disclosed.

354.           This item would insert new subsection 207(2A) which would provide that the offence contained in subsection 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.

355.           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.

356.           This item would also insert a note after subsection 207(2A) to provide clarification that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

357.           The note also refers to section 34C of the IGIS Act, 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 explains the interaction between the AML/CTF Act, the Criminal Code and the IGIS Act.

Australian Border Force Act 2015 (ABF Act)

Item 99: Subsection 4(1)

358.           This item would insert a new definition of ‘IGIS official’ in subsection 4(1) of the ABF 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 100: At the end of section 43

359.           This item would insert new paragraph 43(c) into section 43. Section 43 allows an ‘entrusted person’ to make a record of, or disclose, ‘Immigration and Border Protection information’ (as defined by the ABF Act) in circumstances set out in the paragraphs to section 43.

360.           An ‘entrusted person’ is defined as the Secretary of Home Affairs, the ABF Commissioner (including as the Comptroller-General of Customs) and Immigration and Border Protection workers.

361.           ‘Immigration and Border Protection information’ is information obtained in a person’s capacity as an ‘entrusted person’ that, if released would or could reasonably be expected to prejudice:

·          the security, defence or international relations of Australia;

·          the prevention, detection or investigation of, or the conduct of proceedings relating to, an offence or a contravention of a civil penalty provision;

·          the protection of public health, or endanger the life or safety of an individual or group of individuals;

As well as information which would, or could reasonably be expected to:

·          found an action by a person (other than the Commonwealth) for breach of a duty of confidence; or

·          cause competitive detriment to a person.

‘Immigration and Border Protection information’ also includes information of a kind prescribed in an instrument under subsection 4(7) of the ABF Act. Subsections 4(4) to (7) of the ABF Act provide further information on what may constitute ‘Immigration and Border Protection information’.

362.           New paragraph 43(c) would extend section 43 to allow an ‘entrusted person’ to disclose or make a record of ‘Immigration or Border Protection information’ for the purposes of an IGIS official exercising a power, or performing a function or duty as an IGIS official. This amendment would allow an ‘entrusted person’ within Home Affairs to disclose information to the IGIS. This reflects the expansion of the IGIS’s jurisdiction to Home Affairs’ intelligence functions.

363.           Further, the amendment would ensure that it is clear, on the face of the agency’s governing legislation, that officials (and other entrusted persons) 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.

Australian Citizenship Act 2007 (Citizenship Act)

Item 101: Section 3

364.           This item would insert a new definition of ‘IGIS official’ in section 3 of the Citizenship 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 102: Subsection 43(1A) (note 1)

365.           This item would repeal and replace note 1 at the end of subsection 43(1A).

366.           Subsection 43(1) of the Citizenship Act provides that a person commits an offence if the person’s conduct causes the disclosure of identifying information and that disclosure is not a permitted disclosure. Subsection 43(1A) provides that in the case of a permitted disclosure of identifying information made to a person who is not an entrusted person, section 43 does not apply in relation to any further disclosure of that identifying information by a person who is not an entrusted person.

367.           This item would repeal and substitute the note at the end of subsection 43(1A) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

368.           Subsection 13.3(3) of the Criminal Code 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.

369.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 43(1A) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Citizenship Act, the Criminal Code and the IGIS Act.

Item 103: After paragraph 43(2)(g)

370.           This item would insert new paragraph 43(2)(ga) into subsection 43(2).

371.           Subsection 43(1) of the Citizenship Act provides that a person commits an offence if the person’s conduct causes the disclosure of identifying information and that disclosure is not a permitted disclosure. Subsection 43(2) defines ‘permitted disclosure’, as a disclosure in a range of circumstances, including (but not limited to) a disclosure:

·          that is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory,

·          that is required by an Australian law,

·          that is for the purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates, or

·          that is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department (Home Affairs).

372.           New paragraph 43(ga) would provide that a disclosure for the purposes on an IGIS official exercising a power, or performing a function or duty, as an IGIS official is a ‘permitted disclosure’. The effect of the amendment would be to prevent a person being prosecuted under the offence in subsection 43(1) for disclosing information to the IGIS. This amendment would allow the IGIS to access the information necessary to effectively oversee the new agencies within its remit, including Home Affairs (insofar as the information relates to the agency’s intelligence functions).

373.           Further, the amendment would ensure that it is clear, on the face of the agency’s governing legislation, that their officials (and other entrusted persons) 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.

Australian Crime Commission Act 2002

Item 104: Subsection 4(1)

374.           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 105: Subsection 4(1) (definition of Ombudsman )

375.           This item would repeal the definition of ‘Ombudsman’ from the ACC Act. This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 106: After paragraph 19A(5)(d)

376.           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.

377.           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 19A(3) and (4) allow an officer who receives such a request to comply.

378.           Subsection 19A(5) provides that subsections 19A(3) and (4) are subject to a number of secrecy provisions, including (but not limited to) tax secrecy offences and the prohibition on dealing with intercepted or accessed information under the Telecommunications (Interception and Access) Act 1979 (TIA Act) (sections 63 and 133).

379.           This item would extend subsection 19A(5) by adding paragraph 19A(5)(e), which would provide that subsections 19A(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 an IGIS official (including the Inspector-General) to divulge or communicate any information acquired under various provisions that list functions or duties that relate to the Inspector-General and IGIS officials.

380.           New paragraph 19A(5)(e) is intended to make clear that subsections 19A(3) and (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 be used as a back-channel for agencies to obtain information that they would not otherwise be entitled to access.

Item 107: Paragraph 21C(2)(f)

381.           This item would repeal paragraph 21C(2)(f).

382.           Paragraph 21C(2)(f) provides that the offence provided for in subsection 21C(1) does not apply if the person makes the disclosure to the Ombudsman for the purpose of making a complaint under the Ombudsman Act 1976 (Ombudsman Act).

383.           The repeal of this paragraph is consequential to the changes expanding IGIS oversight to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. As the Ombudsman would no longer have oversight of the ACIC, it would no longer be appropriate to make a complaint about the ACIC under the Ombudsman Act and the exception to the offence provided by paragraph 21C(2)(f) is therefore not required.

Item 108: After paragraph 21C(2)(g)

384.           This item would amend subsection 21C(2) 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.

385.           Subsection 21C(1) provides 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).

386.           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 the purpose of making a complaint, or to the Integrity Commissioner in relation to notifying them of a corruption issue.

387.           This item would insert new paragraph 21C(2)(h) to subsection 21C(2), and would permit a notice to be disclosed to an IGIS official for the purpose of the IGIS official exercising their powers, or performing their functions or duties, as an IGIS official.

388.           This amendment is intended to ensure that subsection 21C(1) does not prevent the IGIS from accessing information that is relevant to an inquiry. Further, the amendment would ensure that it is clear, on the face of the agency’s 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 109: Subsection 21C(2) (note)

389.           This item would repeal and substitute the note at the end of subsection 21C(2) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

390.           Subsection 13.3(3) of the Criminal Code 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.

391.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 21C(2) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the ACC Act, the Criminal Code and the IGIS Act.

Item 110: Paragraph 21C(4)(d)

392.           This item would repeal paragraph 21C(4)(d).

393.           Paragraph 21C(4)(d) provides that the offence provided for in subsection 21C(3) does not apply if the person discloses the information to the Ombudsman for the purpose of making a complaint under the Ombudsman Act.

394.           The repeal of this paragraph is consequential to the changes expanding IGIS oversight to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. As the Ombudsman would no longer have oversight of the ACIC, it would no longer be appropriate to make a complaint about the ACIC under the Ombudsman Act and the exception to the offence provided by paragraph 21C(4)(d) is therefore not required.  

Item 111: After paragraph 21C(4)(e)

395.           This item would amend subsection 21C(4) 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.

396.           Subsection 21C(3) creates an offence for a person who has been told about a notice under section 21A on the basis of their being an excluded person under subsection 21C(2), who then tells another person about the existence of the notice.

397.           Subsection 21C(4) contains a list of circumstances in which subsection 21C(3) would not apply, and includes where a person on-discloses the existence of the 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.

398.           This item would insert new paragraph 21C(4)(f) to subsection 21C(4), and would permit a notice to be disclosed to the IGIS official for the purpose of the IGIS official performing their powers, functions or duties as an IGIS official.

399.           This amendment is intended to ensure that subsection 21C(3) does not prevent the IGIS from accessing information that is relevant to an inquiry. Further, the amendment would ensure that it is clear, on the face of the agency’s governing legislation, that individuals can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions.

Item 112: Subsection 21C(4) (note)

400.           This item would repeal and substitute the note at the end of subsection 21C(4) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

401.           Subsection 13.3(3) of the Criminal Code 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.

402.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 21C(4) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the ACC Act, the Criminal Code and the IGIS Act.

Item 113: At the end of subsection 25A(4)

403.           This item would insert new paragraph 25A(4)(c) to clarify that the IGIS may be present during examinations by ACIC examiners (subject to new subsection 25A(4A), inserted by item 114 of Schedule 1).

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

405.           Subsection 25A(3) allows the examiner to direct who may be present for an examination. Subsection 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.

406.           This item would insert new paragraph 25A(4)(c) which would provide that nothing in a direction given by an examiner under subsection 25(3) 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).

407.           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 the IGIS Act). This ensures that the IGIS is able to access the information required to perform oversight functions in relation to the ACIC.

Item 114: After subsection 25A(4)

408.           This item would insert new 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.

409.           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 official’s attendance would be reasonably likely to prejudice:

·          the life or safety of a person, or

·          the effectiveness of the examination.

410.           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.

411.           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, new paragraph 25A(4C) provides that they must confirm the direction by notice in writing as soon as practicable after the end of the examination.

412.           It is necessary to ensure an examiner can exclude an IGIS official both before and during an examination as it may be that information only comes 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.

413.           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 safety or operational reasons, and that the IGIS official will be able to review what occurred during the examination if prevented from being present.

414.           The inclusion of the phrase “without limiting subsection (1) and (3)” in subsection 25A(4A) 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 part or all of an examination does not limit an examiner’s overall ability to direct who may be present for an examination, as outlined in section 25(3). Nothing in the new provision affects how subsections 25A(3) and (4) currently operate.

Item 115: After subsection 25A(14A)

415.           This item would insert new subsection 25A(14B) which would provide that examination material 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(14A).

416.           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).

417.           New subsection 25A(14B) would provide that subsection 25A(14A) does not apply (so the use or disclosure is not an offence) when the examination material is used or disclosed for the purpose of an IGIS official exercising a power, or performing a function or 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.

418.           The amendment would also ensure that it is clear, on the face of the agency’s 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.

419.           This item would also insert a note after subsection 25A(14B) to clarify that an IGIS official does not bear an evidential burden in relation to this subsection.

420.           Subsection 13.3(3) of the Criminal Code provides that if a defendant wishes to rely on any exceptions, exemption, excuse, qualification or justification provided by the law creating an offence, the defendant bears an evidential burden in relation to that matter.

421.           The note is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 25A(14A) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 116: Paragraph 29B(2)(f)

422.           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 under section 28, containing a notation made under section 29A. A notation made under section 29A would require that the person who receives the summons not disclose any information about the summons or any matter related to it.

423.           This item would repeal paragraph 29B(2)(f) which provides that subsection (1) does not prevent the person from making a disclosure to the Ombudsman for the purpose of making a complaint under the Ombudsman Act.

424.           The repeal of this paragraph is consequential to the changes expanding IGIS oversight to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. As the Ombudsman would no longer have jurisdiction over the ACIC, it would no longer be appropriate to make a complaint about the ACIC under the Ombudsman Act and the exception provided by paragraph 29B(2)(f) is therefore not required.

Item 117: At the end of subsection 29B(2)

425.           This item would amend section 29B 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 powers, or performing their duties or functions.

426.           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 under section 28, containing a notation made under section 29A. A notation made under section 29A would require that the person who receives the summons not disclose any information about the summons or any matter related to it.

427.           Subsection 29B(2) contains a list 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.

428.           This item 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 an IGIS official exercising their powers, or performing their functions or duties as an IGIS official.

429.           This amendment is intended to ensure that subsection 29B(1) does not prevent the IGIS from accessing information that is relevant and necessary for the IGIS to perform its oversight functions.

430.           Further, the amendments would ensure that it is clear, on the face of the agency’s 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 118: Paragraph 29B(4)(d)

431.           Subsection 29B(3) provides that it is an offence for a person who has been told about a summons on the basis of their being an excluded person under subsection 29B(2), to on-disclose the existence of a summons to another person.

432.           Subsection 29B(4) contains a list of circumstances in which subsection 29B(3) does not apply. This item would repeal paragraph 29B(4)(d) which provides that subsection (3) does not prevent the person from making a disclosure to the Ombudsman for the purpose of making a complaint under the Ombudsman Act.

433.           The repeal of this paragraph is consequential to the changes expanding IGIS oversight to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. As the Ombudsman would no longer have jurisdiction over the ACIC, it would no longer be appropriate to make a complaint about the ACIC under the Ombudsman Act and the exception provided by paragraph 29B(4)(d) is therefore not required.

Item 119: At the end of subsection 29B(4)

434.           This item would amend section 29B 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, or performing their powers or functions.

435.           Subsection 29B(3) provides that it is an offence for a person who has been told about a summons on the basis of their being an excluded person under subsection 29B(2), to on-disclose the existence of a summons to another person.

436.           Subsection 29B(4) contains a list of circumstances in which subsection 29B(3) does not apply, including where a person on-discloses the existence of the summons to the Integrity Commissioner in relation to notifying it of a corruption issue.

437.           This item would insert new paragraph 29B(4)(f) to subsection 29B(4) 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 performing their powers, functions or duties as an IGIS official.

438.           This amendment is intended to ensure that subsection 29B(3) does not prevent the IGIS from accessing information that is relevant and necessary for the IGIS to perform its oversight functions.

439.           Further, the amendments would ensure that it is clear, on the face of the agency’s 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 120: Subsection 36(4)

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

441.           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).

442.           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.

443.           New subsection 36(4) would provide that the powers of the IGIS under the IGIS Act, or any other law of the Commonwealth that confers powers on the IGIS, are not limited by section 36.

444.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. It 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.

445.           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 and the Public Interest Disclosure Act 2013 (PID Act).

Item 121: Schedule 1

446.           This item inserts ‘ Inspector-General of Intelligence and Security Act 1986 , section 34’ into the list of prescribed provisions in Schedule 1.

447.           Subsection 20(1) provides that an examiner may, by notice served on a principal officer of an agency, or a current or former member, officer or employee of an agency, require that person to provide to the examiner information that was acquired by the agency in the ordinary course of performing its functions and that is relevant to a special ACC operation/investigation.

448.           Subsection 20(4) provides that, subject to a prescribed provision, but notwithstanding a secrecy provision other than a prescribed provision, a person shall not refuse or fail to comply with a notice served on the person under this section.

449.           ‘Prescribed provision’ is defined as including a provision of a law of the Commonwealth that is specified in Schedule 1.

450.           This item would amend Schedule 1 to include section 34 of the IGIS Act within the meaning of prescribed provision. This amendment is consequential to the changes to IGIS’s oversight jurisdiction to include all of the ACIC. As the IGIS would have oversight of the actions of examiners, it would not be appropriate for an examiner to be able to compel the IGIS to provide information under subsection 20(1).

Australian Human Rights Commission Act 1986 (AHRC Act)

Item 122: Subsection 3(1)

451.           This item would amend subsection 3(1) by inserting the following new definitions:

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

·          ‘Department of Home Affairs’ means the Department administered by the Minister administering the Australian Border Force Act 2015 .

Item 123: Subsection 3(1) (definition of examiner of ACIC)

452.           This item would repeal the definition of ‘examiner of ACIC’. This amendment is consequential to the expansion of IGIS’s jurisdiction to all of the ACIC.

Item 124: Subsection 11(3) (note)

453.           This item would amend the note at the end of subsection 11(3) which clarifies the operation of the section in relation to the duplication of oversight between the Australian Human Rights Commission (AHRC) and the IGIS.

454.           Subsection 11(1) relevantly provides the functions of the AHRC includes 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)).

455.           Subsection 11(3) specifies that where a complaint relates to an intelligence agency (as defined, for the purposes of this subsection, in subsection 11(4) of the AHRC Act), the AHRC must not inquire into a matter and must transfer it to the IGIS.

456.           The AHRC and the IGIS currently have overlapping jurisdictions in relation to the ACIC and AFP. The IGIS has jurisdiction in relation to agencies’ compliance with human rights and anti-discrimination law within their intelligence functions, while the AHRC has oversight of the agencies’ compliance with these matters in all other functions. The note highlights this overlap and notes that IGIS and AHRC may transfer matters between each other and share information in relation to action taken by the ACIC and AFP as appropriate for their respective oversight responsibilities.

457.           This amendment would remove reference to the ACIC from the note. This is consequential to the amendment to subsection 11(4) by item 125 of Schedule 1 to include the ACIC within the meaning of ‘intelligence agency’.

458.           The Bill would create overlapping jurisdiction between the IGIS and the AHRC in relation to AUSTRAC and Home Affairs. The amendments to the note would insert references to AUSTRAC and Home Affairs to clarify this overlap also applies to these agencies.

459.           This amendment is intended to clarify the interrelation between the AHRC Act and the IGIS Act, and how complaints relating to AUSTRAC and Home Affairs may be managed by these integrity bodies.

Item 125: Subsection 11(4)

460.           This item would amend subsection 11(4) to include the ACIC within the meaning of ‘intelligence agency’ for the purposes of subsections (3) and (3C). This is consequential to the expansion of IGIS’s jurisdiction to all of the ACIC.

Item 126: Subparagraph 20(4C)(a)(i)

461.           This item would repeal existing subparagraph 20(4C)(a)(i) and insert new subparagraphs 20(4C)(a)(i) and (ia). Section 20 deals with the AHRC’s performance of its functions relating to human rights.

462.           Existing subsection 20(4C) facilitates the transfer of complaints from the AHRC to the IGIS, allowing the AHRC to decide not to inquire into a complaint or part of a complaint about acts or practices of the ACIC (except an act or practice of an examiner of the ACIC performing functions and exercising powers as an examiner) or the AFP on the basis that the complaint could be more effectively or conveniently dealt with by the IGIS under the IGIS Act. Where the AHRC makes a decision not to inquire into a matter they must consult the IGIS and, if the IGIS agrees to receive the complaint, transfer the complaint to the IGIS as soon as is reasonably practicable.

463.           New subparagraphs 20(4C)(a)(i) and (ia) would amend the application of section 20 to remove reference to complaints made to the AHRC in relation to the ACIC, and insert reference to AUSTRAC and Home Affairs. This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the intelligence functions of AUSTRAC and Home Affairs.

Item 127: Subsection 21(3)

464.           This item would amend subsection 21(3). Section 21 sets out the AHRC’s power to obtain information and documents. Subsection (2) provides that where a person is required by a notice under subsection (1) to give information or produce a document to the AHRC and the information or document originated with, or has been received from, an intelligence agency, the person must notify that agency of the requirement. Existing subsection 21(3) provides that a reference in subsection (2) to an intelligence agency is a reference to the ASIS, ASIO, ASD, ONI, AGO or DIO.

465.           This item would amend subsection 21(3) to include the ACIC in the meaning of intelligence agency for the purposes of subsection 21(2). This is intended to ensure consistency in the treatment of the ACIC as an intelligence agency under the AHRC Act.  

Item 128: Subsection 46PZ(1)

466.           This item would amend subsection 46PZ(1). Section 46PZ provides that the AHRC may determine whether a certain complaint in respect to an act or practice of the ACIC or the AFP, transferred by the IGIS under section 32AD of the IGIS Act, 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 discriminations complaints).

467.           This item would amend 46PZ(1) to remove reference to complaints about the ACIC and insert reference to complaints in respect to an act or practice of AUSTRAC or Home Affairs that have been transferred by the IGIS to the AHRC. This is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the intelligence functions of AUSTRAC and Home Affairs.

Crimes Act 1914

Item 129: After paragraph 3ZQT(2)(c)

468.           This item would insert new paragraph 3ZQT(2)(d).

469.           Subsection 3ZQT(1) of the Crimes Act provides that it is an offence to disclose the existence or nature of a notice the person had been given under sections 3ZQN or 3ZQO (which relate to obtaining documents relating to serious terrorism offences and serious offences respectively), where the notice specifies that information about the notice must not be disclosed.

470.           Subsection 3ZQT(2) provides that there are a number of scenarios in which the offence under subsection 3ZQT(1) will not apply.

471.           New paragraph 3ZQT(2)(d) would provide that the offence under subsection 3ZQT(1) would not apply where the disclosure is made for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. This is intended to ensure that a person who provides an IGIS official with information about a notice, where that information is, or may be, relevant to the IGIS’s functions, will not be committing an offence. This is necessary to support the oversight functions of the IGIS by enabling it to access information that is relevant to its oversight functions.

Item 130: Subsection 3ZQT(2) (note)

472.           Subsection 3ZQT(1) provides that it is an offence to disclose the existence or nature of a notice the person had been given under sections 3ZQN or 3ZQO where the notice specifies that information about the notice must not be disclosed.

473.           This item would repeal and substitute the note at the end of subsection 3ZQT(2) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

474.           Subsection 13.3(3) of the Criminal Code 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.

475.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 3ZQT(2) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 131: After paragraph 3ZZHA(2)(da)

476.           This item would insert new paragraph 3ZZHA(2)(db). Subsection 3ZZHA(1) provides that it is an offence to disclose certain information relating to a delayed notification search warrant. Subsection 3ZZHA(2) provides a number of exceptions to the offence in subsection 3ZZHA(1).

477.           This item would insert a new exception, allowing disclosure to an IGIS official for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. This is intended to ensure that a person who provides an IGIS official with information about a delayed notification search warrant, where that information is, or may be, relevant to the IGIS’s functions, will not be committing an offence. The amendment would ensure that it is clear 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 access to information that is relevant to its oversight.

Item 132: Subsection 3ZZHA(2) (note)

478.           Subsection 3ZZHA(1) provides that it is an offence to disclose certain information relating to a delayed notification search warrant. Subsection 3ZZHA(2) provides a number of exceptions to the offence in subsection 3ZZHA(1).

479.           This item would repeal and substitute the note at the end of subsection 3ZZHA(2) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

480.           Subsection 13.3(3) of the Criminal Code 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.

481.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 3ZZHA(2) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 133:  Section 3ZZUJ (paragraph beginning “The Ombudsman must inspect”)

482.           Section 3ZZUJ provides a simplified outline of Part IAAC of the Crimes Act, which deals with account takeover warrants.

483.           The outline currently explains that the Ombudsman must inspect the records of the AFP and the ACIC to determine the extent of compliance with Part IAAC by the AFP, ACIC and law enforcement officers.

484.           This item would amend the paragraph beginning “The Ombudsman must inspect”, in the simplified outline, by omitting the first occurring reference to the ACIC. This reflects the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 134:  Section 3ZZUJ (paragraph (a) of the paragraph beginning “The Ombudsman must inspect”)

485.           Section 3ZZUJ provides a simplified outline of Part IAAC of the Crimes Act, which deals with account takeover warrants.

486.           This outline currently explains that the Ombudsman must inspect the records of the AFP and the ACIC to determine the extent of compliance with Part IAAC by the AFP, ACIC and law enforcement officers.

487.           This item would amend paragraph (a) of the paragraph beginning “The Ombudsman must inspect”, in the simplified outline, by omitting reference to the ACIC. This reflects the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 135:  Section 3ZZUJ (paragraph (b) of the paragraph beginning “The Ombudsman must inspect”)

488.           Section 3ZZUJ provides a simplified outline of Part IAAC of the Crimes Act, which deals with account takeover warrants.

489.           This outline currently explains that the Ombudsman must inspect the records of the AFP and the ACIC to determine the extent of compliance with Part IAAC by the AFP, ACIC and law enforcement officers.

490.           This item would amend paragraph (b) of the paragraph beginning “The Ombudsman must inspect”, in the simplified outline, to clarify that the reference to law enforcement officers means law enforcement officers of the AFP.

Item 136:  At the end of section 3ZZUJ (before the note)

491.           Section 3ZZUJ provides a simplified outline of Part IAAC of the Crimes Act, which deals with account takeover warrants.

492.           This outline currently explains that the Ombudsman must inspect the records of the AFP and the ACIC to determine the extent of compliance with Part IAAC by the AFP, ACIC and law enforcement officers.

493.           This item would insert a new paragraph at the end of section 3ZZUJ explaining that the IGIS inspects the records of the ACIC, in relation to this ACIC’s compliance with Part IAAC, under the IGIS Act. This reflects the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 137: Subsection 3ZZVH(3) (note)

494.           Subsections 3ZZVH(1) and (2) contain offences for the unauthorised disclosure of protected information. Subsection (3) provides various exceptions to those offences.

495.           This item would repeal and substitute the note at the end of subsection 3ZZVH(3) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

496.           Subsection 13.3(3) of the Criminal Code 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.

497.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 3ZZVH(3) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 138: Subsection 3ZZVH(4) (note)

498.           Subsections 3ZZVH(1) and (2) contain offences for the unauthorised disclosure of protected information. Subsection (4) provides that the offences in subsections (1) and (2) do not apply if the disclosure was made by a person to an Ombudsman official, whether in connection with a complaint made to the Ombudsman or in any other circumstances.

499.           This item would repeal and substitute the note at the end of subsection 3ZZVH(4) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

500.           Subsection 13.3(3) of the Criminal Code 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.

501.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 3ZZVH(4) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 139: Subsection 3ZZVH(5) (including the note)

502.           Subsections 3ZZVH(1) and (2) contain offences for the unauthorised disclosure of protected information. Existing subsection 3ZZVH(5) provides that the offences in subsections (1) and (2) do not apply if the disclosure was made by a person to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

503.           This item would repeal and substitute subsection 3ZZVH(5) to provide that the offences in subsection (1) and (2) do not apply if the person uses or discloses the information for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official. This is intended to clarify that the exception applies to offences in relation to both the use and disclosure of protected information and not just to disclosure of such information.

504.           This item would also repeal and substitute the note at the end of subsection 3ZZVH(5) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

505.           Subsection 13.3(3) of the Criminal Code 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.

506.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 3ZZVH(5) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 140: Subparagraph 3ZZVJ(b)(i)

507.           This item corrects an error in subparagraph 3ZZVJ(b)(i). Subparagraph 3ZZVJ(b)(i) currently provides that a record must be destroyed if it is not likely to be required in connection with an activity or purpose referred to in subsections 3ZZVH(2), (3) or (4).

508.           Subsections 3ZZVH(1) and (2) contain the offence provisions while subsections (3), (4) and (5) contain exceptions to those offences.

509.           This item corrects the subsection references in 3ZZVH(b)(i) by amending the references to be subsections 3ZZVH(3), (4) and (5) instead of subsections 3ZZVH(2), (3) or (4).

Item 141: Section 3ZZVL (heading)

510.           Section 3ZZVL provides that the AFP and the ACIC must submit annual reports to the Minister and the Ombudsman in relation to account takeover warrants.

511.           This item would amend the heading of section 3ZZVL to include reference to the IGIS. This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 142: Before subsection 3ZZVL(1)

512.           Section 3ZZVL provides that the AFP and the ACIC must submit annual reports in relation to account takeover warrants.

513.           Existing subsection 3ZZVL(1) provides that, as soon as practicable after 30 June in each year, the chief officer of the AFP or the ACIC must submit a report to the Minister and the Ombudsman.

514.           This item would insert new subsection 3ZZVL(1AA) which would recreate the requirement for the chief officer of the AFP to submit a report to the Minister and the Ombudsman but would provide that the chief officer of the ACIC must submit a report to the Minister and the IGIS. This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 143: Subsection 3ZZVL(1)

515.           This item amends subsection 3ZZVL(1) by omitting “As soon as practicable after 30 June in each year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister and the Ombudsman that sets out” and substitutes “The report must set out”. This amendment is consequential to the insertion of new subsection 3ZZVL(1AA) by item 142 of Schedule 1 which would contain the requirement to submit a report annually.

Item 144: Subsection 3ZZVM(3)

516.           Section 3ZZVM provides that the chief officer of the AFP or the ACIC must submit a report to the Minister each year addressing various matters relating to account takeover warrants.

517.           Existing subsection 3ZZVM(3) provides that a copy of the report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.

518.           This item would amend subsection 3ZZVM(3) to provide that if the report relates to the ACIC, a copy of the report must be given to the IGIS at the same time as it is given to the Minister. New subsection 3ZZVM(3) would retain the requirement for a copy of reports relating to the AFP to be given to the Ombudsman at the same time as it is given to the Minister.

519.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 145: Paragraph 3ZZVN(l)

520.           Section 3ZZVN sets out documents connected with account takeover warrants that the chief officer of the ACIC or the AFP must cause to be kept.

521.           Existing paragraph 3ZZVN(l) provides that a copy of each report given to the Minister and the Ombudsman under section 3ZZVL must be kept.

522.           This item would amend paragraph 3ZZVN(l) to insert “or the Inspector-General of Intelligence and Security, as the case requires” after “the Ombudsman”.

523.           This amendment is consequential to the amendments to section 3ZZVL (by items 142 and 143 of Schedule 1) that would require the chief officer of the ACIC to provide a report under that section to the Minister and the IGIS, rather than the Ombudsman.

Item 146: Subsection 3ZZVR(1)

524.           Section 3ZZVR provides for the Ombudsman to periodically inspect the records of the AFP and the ACIC for compliance with Part IAAC of the Crimes Act.

525.           This item would amend subsection 3ZZVR(1) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

526.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC for compliance with Part IAAC of the Crimes Act.

Item 147: Paragraphs 3ZZVR(1)(a) and (b)

527.           Section 3ZZVR provides for the Ombudsman to periodically inspect the records of the AFP and the ACIC for compliance with Part IAAC of the Crimes Act.

528.           This item would amend paragraphs 3ZZVR(1)(a) and (b) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

529.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC for compliance with Part IAAC of the Crimes Act.

Item 148: Paragraph 3ZZVR(2)(a)

530.           Section 3ZZVR provides for the Ombudsman to periodically inspect the records of the AFP and the ACIC for compliance with Part IAAC of the Crimes Act.

531.           This item would amend paragraph 3ZZVR(2)(a) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

532.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC for compliance with Part IAAC of the Crimes Act.

Item 149: Paragraphs 3ZZVR(2)(b) to (d)

533.           Section 3ZZVR provides for the Ombudsman to periodically inspect the records of the AFP and the ACIC for compliance with Part IAAC of the Crimes Act.

534.           This item would amend paragraphs 3ZZVR(2)(b) to (d) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

535.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC for compliance with Part IAAC of the Crimes Act.

Item 150: Subsection 3ZZVR(3)

536.           Section 3ZZVR provides for the Ombudsman to periodically inspect the records of the AFP and the ACIC for compliance with Part IAAC of the Crimes Act. Subsection 3ZZVR(3) provides that the chief officer of the AFP or the ACIC must ensure the Ombudsman is given any assistance reasonably required to enable the Ombudsman to perform its functions under this section.

537.           This item would amend subsection 3ZZVR(3) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

538.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC for compliance with Part IAAC of the Crimes Act.

Item 151: Subsection 3ZZVS(1)

539.           Section 3ZZVS sets out the Ombudsman’s powers to obtain relevant information from the AFP and the ACIC. Subsection 3ZZVS(1) provides that if the Ombudsman has reasonable grounds to believe a law enforcement officer of the AFP or the ACIC is able to give information relevant to an inspection, subsections (2) and (3) have effect. Subsections 3ZZVS(2) and (3) give the Ombudsman the power to require information from an officer by writing, or attend to answer questions.

540.           This item would amend subsection 3ZZVS(1) to remove references (wherever occurring) to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

Item 152: Paragraph 3ZZVS(4)(a)

541.           Section 3ZZVS sets out the Ombudsman’s powers to obtain relevant information from an officer of the AFP and the ACIC. Subsection 3ZZVS(4) provides that the Ombudsman may nominate the chief officer to attend if it does not know the officer’s identity.

542.           This item would amend subsection 3ZZVS(4)(a) to remove references (wherever occurring) to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

Item 153: Subsection 3ZZVS(4)

543.           Section 3ZZVS sets out the Ombudsman’s powers to obtain relevant information from an officer of the AFP and the ACIC. Subsection 3ZZVS(4) provides that the Ombudsman may nominate the chief officer to attend if it does not know the officer’s identity.

544.           This item would amend subsection 3ZZVS(4) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

Item 154: Subsection 3ZZVU(4)

545.           Section 3ZZVU provides that the Ombudsman is to be given information and access, as and when required under Division 7 of Part IAAC of the Crimes Act (which deals with inspections relating to account takeover warrants), despite any other laws that would otherwise prevent the giving of that information or access.

546.           Subsection 3ZZVU(4) provides that nothing in section 3ZZVH or in any other law prevents a law enforcement officer of the AFP or ACIC from giving information to an inspecting officer or giving access to a record of the AFP or ACIC (as the case requires) to an inspecting officer for the purposes of an inspection under Division 7 of Part IAAC.

547.           This item would amend subsection 3ZZVU(4) to remove reference to the ACIC. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

Item 155: Paragraph 3ZZVU(4)(b)

548.           Section 3ZZVU provides that the Ombudsman is to be given information and access, as and when required under Division 7 of Part IAAC of the Crimes Act (which deals with inspections relating to account takeover warrants), despite any other laws that would otherwise prevent the giving of that information or access.

549.           Subsection 3ZZVU(4) provides that nothing in section 3ZZVH or in any other law prevents a law enforcement officer of the AFP or ACIC from giving information to an inspecting officer or giving access to a record of the AFP or ACIC (as the case requires) to an inspecting officer for the purposes of an inspection under Division 7 of Part IAAC.

550.           This item would amend paragraph 3ZZVU(4)(b) to omit “or the ACC, as the case requires,”. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

Item 156: Subsection 3ZZVU(4)

551.           Section 3ZZVU provides that the Ombudsman is to be given information and access, as and when required under Division 7 of Part IAAC of the Crimes Act (which deals with inspections relating to account takeover warrants), despite any other laws that would otherwise prevent the giving of that information or access.

552.           Subsection 3ZZVU(4) provides that nothing in section 3ZZVH or in any other law prevents a law enforcement officer of the AFP or ACIC from giving information to an inspecting officer or giving access to a record of the AFP or ACIC (as the case requires) to an inspecting officer for the purposes of an inspection under Division 7 of Part IAAC.

553.           This item would amend subsection 3ZZVU(4) to omit “records of the Australian Federal Police or the ACC, as the case requires” and substitute “records of the Australian Federal Police”. This amendment is consequential to the carve out of oversight responsibility for the ACIC from the Ombudsman’s jurisdiction.

Item 157: Subparagraph 15HK(3)(c)(ii)

554.           This item would omit “operation; and” from subparagraph 15HK(3)(c)(ii) and substitute “operation; or”. This amendment is consequential to the insertion of an extra subparagraph in paragraph 15HK(3)(c) by item 158 of Schedule 1.

Item 158: At the end of paragraph 15HK(3)(c)

555.           This item would insert new subparagraph 15HK(3)(c)(iii).

556.           Section 15HK contains various offences for the unauthorised disclosure of information. Paragraph 15HK(3)(c) provides that the offences in subsections (1) to (1E) do not apply if the disclosed information concerns certain subject matters specified in the subparagraphs. New subparagraph 15HK(3)(c)(iii) would add an additional subject matter exception, where the disclosure is to an IGIS official and the information concerns action taken by the ACIC, AFP or Home Affairs. This is intended to reflect the expansion of the IGIS’s oversight to include these agencies.

557.           The amendment would ensure that it is clear 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 information that is relevant to its oversight of these agencies.

Item 159: Subsection 15HK(3) (note)

558.           Subsections 15HK(1) to (1E) contain various offences for the unauthorised disclosure of information. Subsection 15HK(3) provides that the offences in subsection (1) to (1E) do not apply in certain circumstances.

559.           This item would repeal and substitute the note at the end of subsection 15HK(3) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

560.           Subsection 13.3(3) of the Criminal Code 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.

561.           This amendment is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 15HK(3) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 160: Section 15HM (heading)

562.           Section 15HM sets out the obligation of the chief officer of authorising agencies (as defined by the Crimes Act) to provide 6 monthly reports to the Ombudsman and Minister in relation to controlled operations.

563.           This item would amend the heading for section 15HM to include the IGIS as a body to which reports under this section are to be submitted. This amendment is intended to improve clarity of the matters covered by section 15HM and reflects the expansion of the IGIS’s jurisdiction to the ACIC.

Item 161: Subsection 15HM(1)

564.           Section 15HM sets out the obligation of the chief officer of authorising agencies (as defined by the Crimes Act) to provide 6 monthly reports to the Ombudsman and Minister in relation to controlled operations.

565.           This item would amend subsection 15HM(1) to omit “Ombudsman” and substitute “person mentioned in subsection (1A)”. This amendment is consequential to the insertion of new subsection 15HM(1A) by item 162 of Schedule 1.

Item 162: After subsection 15HM(1)

566.           Section 15HM sets out the obligation of the chief officer of authorising agencies (as defined by the Crimes Act) to provide 6 monthly reports to the Ombudsman and Minister in relation to controlled operations.

567.           This item would insert new subsection 15HM(1A) which would provide that the ACIC must provide reports under this section to the IGIS. Other authorising agencies would continue to provide reports under this section to the Ombudsman.

568.           This amendment reflects the expansion of the IGIS’s jurisdiction to the ACIC and the consequential carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 163: Subsection 15HM(3)

569.           Section 15HM sets out the obligation of the chief officer of authorising agencies (as defined by the Crimes Act) to provide 6 monthly reports to the Ombudsman and Minister in relation to controlled operations.

570.           Subsection 15HM(3) provides that the Ombudsman may require the chief officer of an authorising agency to give additional information covering any controlled operation to which a report relates.

571.           This item would repeal and substitute subsection 15HM(3). New subsection 15HM(3) would provide that the chief officer of an authorising agency may be required to give additional information covering controlled operations to which a report relates to:

·            the IGIS if the authorising agency is the ACIC, or

·            otherwise, the Ombudsman.

572.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to the ACIC and ensures that the IGIS is able to obtain relevant information to perform its oversight functions.

Item 164: Subsection 15HM(5)

573.           Section 15HM sets out the obligation of the chief officer of authorising agencies (as defined by the Crimes Act) to provide 6 monthly reports to the Ombudsman and Minister in relation to controlled operations.

574.           This item would repeal and replace subsection 15HM(5). Existing subsection 15HM(5) provides that a copy of a report given to the Ombudsman under this section must be given to the Minister at the same time as it is given to the Ombudsman.

575.           New subsection 15HM(5) would provide that a copy of a report given to the Ombudsman or the IGIS under this section must be given to the Minister at the same time. This amendment is consequential to the expansion of the IGIS’s jurisdiction to the ACIC.

Item 165: Section 15HN (heading)

576.           Section 15HN sets out the annual obligation of the chief officer of an authorising agency (as defined by the Crimes Act) to provide reports to the Minister and the Ombudsman in relation to controlled operations.

577.           This item would amend the heading for section 15HN to include the IGIS as a person to which reports under this section are to be submitted. This amendment is intended to improve clarity of the matters covered by section 15HN and reflects the expansion of the IGIS’s jurisdiction to all of the ACIC.

Item 166: Subsection 15HN(7)

578.           Section 15HN sets out the annual obligation of the chief officer of an authorising agency (as defined by the Crimes Act) to provide reports to the Minister and the Ombudsman in relation to controlled operations.

579.           This item would repeal and replace subsection 15HN(7). Existing subsection 15HN(7) provides that a copy of a report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.

580.           New subsection 15HN(7) would provide that the ACIC must provide a copy of reports under this section to the IGIS. Other authorising agencies would continue to provide reports under this section to the Ombudsman.

581.           This amendment reflects the expansion of the IGIS’s jurisdiction to the ACIC and the consequential carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 167: Subsection 15HO(1)

582.           Section 15HO sets out the reporting obligations of the Ombudsman in relation to the Ombudsman’s work and activities under Part IAB of the Crimes Act, which deals with controlled operations.

583.           This item would repeal and replace subsection 15HO(1). Existing subsection 15HO(1) sets out the reports the Ombudsman must prepare each year. Paragraph 15HO(1)(a) provides that the Ombudsman must prepare a report of the work and activities of the Ombudsman for the preceding 12 months and give a copy of the report to the Minister and to the chief officer of the law enforcement agency to which the report relates. Separately, paragraph 15HO(1)(b) provides that the Ombudsman must prepare a report of the work and activities of the Ombudsman for the preceding 12 months, being work or activities under a corresponding State controlled operations law, and give a copy of that report to the Minister and the chief officer of the ACIC.

584.           New subsection 15HO(1) would remove the requirement for the Ombudsman to prepare a report of the work of the ACIC in the preceding 12 months. The Ombudsman is still required to prepare a report of the work and activities of the Ombudsman under Part IAB of the Crimes Act for the preceding 12 months and give a copy of this report to the Minister and the chief officer of the law enforcement agency to which the report relates.

585.           This amendment reflects the carve out of the ACIC from the Ombudsman’s jurisdiction and is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 168: Subsection 15HO(7)

586.           Section 15HO sets out the reporting obligations of the Ombudsman in relation to the Ombudsman’s work and activities under Part IAB of the Crimes Act, which deals with controlled operations.

587.           This item would repeal subsection 15HO(7). Existing subsection 15HO(7) provides that if a report relates to the work and activities of the ACIC under a corresponding State controlled operations law, the Minister must send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.

588.           This amendment reflects the carve out of the ACIC from the Ombudsman’s jurisdiction and is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 169: At the end of section 15HR

589.           Section 15HR provides that the Ombudsman may appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of Part IAB of the Crimes Act.

590.           This item would insert a note at the end of section 15HR clarifying that inspections of the ACIC, including inspections relating to controlled operations by the ACIC under Part IAB of the Crimes Act, may be undertaken by the IGIS under the IGIS Act.

591.           This amendment reflects the carve out of the ACIC from the Ombudsman’s jurisdiction and is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 170: Subsection 15HS(1)

592.           Section 15HS sets out the Ombudsman’s obligations to inspect records under Part IAB of the Crimes Act, which deals with controlled operations.

593.           Subsection 15HS(1) provides that the Ombudsman must, from time to time, and at least every 12 months, inspect the records of each authorising agency to determine the extent of compliance with Part IAB. 

594.           This item would amend subsection 15HS(1) to insert ‘except the ACC’ after ‘each authorising agency’.

595.           This amendment reflects the carve out of the ACIC from the Ombudsman’s jurisdiction and is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

596.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC to determine the extent of compliance with Part IAB of the Crimes Act.

Item 171: Subsection 15HS(1)

597.           Section 15HS sets out the Ombudsman’s obligations to inspect records under Part IAB of the Crimes Act, which deals with controlled operations.

598.           Subsection 15HS(1) provides that the Ombudsman must, from time to time, and at least every 12 months, inspect the records of each authorising agency to determine the extent of compliance with Part IAB.

599.           This item would amend subsection 15HS(1) to insert ‘of that agency’ after ‘and by law enforcement officers’. This amendment is intended to clarify that the reference to law enforcement officers refers to officers of the particular authorising agency. 

Item 172: Subsection 15HS(2)

600.           Section 15HS sets out the Ombudsman’s obligations to inspect records under Part IAB of the Crimes Act, which deals with controlled operations.

601.           This item would repeal subsection 15HS(2). Existing subsection 15HS(2) provides that the Ombudsman must, from time to time and at least once every 12 months, inspect the records of the ACIC to determine the extent of compliance with corresponding State controlled operations laws, in relation to any authorities for which a law enforcement officer of the ACIC applied or that were granted to a law enforcement officer of the ACIC (unless the corresponding State controlled operations law provides for the inspection of records of the ACIC to determine the extent of compliance with that law).

602.           This item would repeal subsection 15HS(2). This reflects the carve out of the ACIC from the Ombudsman’s jurisdiction and is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

603.           The IGIS’s powers under the IGIS Act would empower it to inspect the records of the ACIC to determine the extent of compliance with Part IAB of the Crimes Act.

Item 173: Section 15HW (heading)

604.           Section 15HW sets out what information relating to the compliance and monitoring of controlled operations may be exchanged between the Ombudsman and State or Territory inspecting authorities.

605.           This item would amend the heading for section 15HW to insert a reference to the IGIS. This is intended to reflect the amendments to section 15HW (by items 175-177 of Schedule 1) that will provide that the IGIS may also exchange information with State or Territory inspecting authorities.

Item 174: Before subsection 15HW(1)

606.           This item would insert a new subheading ‘Definitions’ before subsection 15HW(1). This amendment is intended to improve the readability of section 15HW.

Item 175: Subsection 15HW(1) (definition of State or Territory inspecting authority)

607.           Section 15HW sets out what information relating to the compliance and monitoring of controlled operations may be exchanged between the Ombudsman and State or Territory inspecting authorities. Subsection 15HW(1) defines certain terms for application in this section.

608.           This item would amend the definition of ‘State or Territory inspecting authority’. The existing definition provides that a State or Territory inspecting authority, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 14HS when the State or Territory agency is exercising powers under a corresponding State controlled operations law.

609.           This item would insert “of this Act or section 9A of the Inspector-General of Intelligence and Securities Act 1986 ” after “section 15HS”. This would provide that the definition of ‘State or Territory inspecting authority’ also includes an authority that has the function of making inspections of a similar kind to those provided for in section 9A of the IGIS Act when exercising powers under a corresponding State controlled operations law.

610.           This is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and is intended to reflect that the IGIS may use its inspection powers under section 9A of the IGIS Act to inspect the records of the ACIC to determine the extent of compliance with Part IAB of the Crimes Act.

Item 176: Before subsection 15HW(2)

611.           This item would insert new subheading ‘Exchange of information between Ombudsman and State inspecting authority’ before subsection 15HW(2).

612.           The new subheading is intended to make it clear that subsections 15HW(2)-(4) apply only to the exchange of information between the Ombudsman and State or Territory inspecting authorities. This amendment is intended to clarify the structure of the section.

Item 177: At the end of section 15HW

613.           Section 15HW sets out what information relating to the compliance and monitoring of controlled operations may be exchanged between the Ombudsman and State or Territory inspecting authorities. This item would insert:

·          a new subheading ‘Exchange of information between Inspector-General of Intelligence and Security and State inspecting authorities’, and

·          new subsections 15HW(5)-(7).

614.           The new subheading is intended to clarify that subsections 15HW(5)-(7) apply only to the exchange of information between the IGIS and State and Territories inspecting authorities.

615.           New subsection 15HW(5) would provide that the IGIS may give information to the relevant State or Territory inspecting authority if the information relates to a State or Territory agency, was obtained by an IGIS official under the IGIS Act, and relates to a controlled operation conducted by an intelligence agency (within the meaning of the IGIS Act).

616.           New subsection 15HW(6) would provide that the IGIS may only give information to an authority under subsection 15HW(5) if the IGIS is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to a State or Territory agency.

617.           New subsection 15HW(7) would provide that the IGIS may receive information from a State or Territory inspecting authority that relates to a controlled operation conducted by an intelligence agency (within the meaning of the IGIS Act), and is relevant to the performance of the IGIS’s functions under the IGIS Act.

618.           These amendments are consequential to the expansion of the IGIS’s jurisdiction and are intended to ensure that the IGIS is able to exchange information with State and Territory inspecting authorities.

Item 178: At the end of section 15JQ

619.           This item would insert new subsection 15JQ(4). Subsection 15JQ(1) provides that it is an offence for a person to disclose information that relates to an integrity testing operation.

620.           New subsection 15JQ(4) would provide that subsection 15JQ(1) does not apply if the person discloses the 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. This is intended to ensure that a person who provides an IGIS official with information about a notice, where that information is, or may be, relevant to the oversight functions of the IGIS, will not be committing an offence. This is necessary to support the oversight functions of the IGIS by enabling it to access information that is relevant to its oversight functions.

621.           Further, the amendments would ensure that it is clear, on the face of the legislation, that individuals can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions.

622.           This item would also insert a note at the end of subsection 15JQ(4) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

623.           Subsection 13.3(3) of the Criminal Code 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.

624.           This note is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 15JQ(4) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 179: At the end of section 15JR

625.           This item would insert new subsection 15JR(4). Subsection 15JR(1) provides that it is an offence for a person to disclose information that relates to an integrity testing operation and either the person intends to, or the disclosure of the information will, endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation.

626.           New subsection 15JR(4) would provide that subsection 15JR(1) does not apply if the person discloses the 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. This is intended to ensure that a person who provides an IGIS official with information about a notice, where that information is, or may be, relevant to the oversight functions of the IGIS, will not be committing an offence. This is necessary to support the oversight functions of the IGIS by enabling it to access information that is relevant to its oversight functions.

627.           Further, the amendments would ensure that it is clear, on the face of the legislation, that individuals can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing oversight functions.

628.           This item would also insert a note at the end of subsection 15JR(4) to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

629.           Subsection 13.3(3) of the Criminal Code 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.

630.           This note is intended to clarify that the evidential burden a defendant bears in relation to a matter in subsection 15JR(4) does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Crimes Act, the Criminal Code and the IGIS Act.

Item 180: At the end of paragraph 15MS(1)(e)

631.           Subsection 15MS(1) contains an offence relating to disclosing information about the identity or place of residence of an operative subject to a witness identity protection certificate.

632.           Paragraph 15MS(1)(e) lists a number of conditions which, if any apply, mean the conduct is not an offence. This item would insert new subparagraph 15MS(1)(e)(iv).

633.           New subparagraph 15MS(1)(e)(iv) 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, the conduct does not constitute an offence. This amendment is intended to clarify that the offence provision in subsection 15MS(1) does not prevent a person from providing information to the IGIS. Not meeting the conditions under paragraph 15MS(1)(e) would be an element of the offence, not an exception to the offence. This reflects the current drafting of section 15MS.

634.           This 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 181: Subparagraph 15MS(2)(e)(iii)

635.           This item would omit “section 15MR; and” and substitute “section 15MR;” in subparagraph 15MS(2)(e)(iii). This is a technical amendment consequential to the insertion of new subparagraph 15MS(2)(e)(iv) by item 182 of Schedule 1.

Item 182: At the end of paragraph 15MS(2)(e)

636.           Subsection 15MS(2) contains an offence relating to engaging in conduct that results in the disclosure of the identity or place of residence of an operative subject to a witness identity protection certificate.

637.           Paragraph 15MS(2)(e) lists a number of conditions which, if any apply, mean the conduct is not an offence. This item would insert new subparagraph 15MS(2)(e)(iv).

638.           New subparagraph 15MS(2)(e)(iv) 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, the conduct does not constitute an offence. This amendment is intended to clarify that the offence provision in subsection 15MS(2) does not prevent a person from providing information to the IGIS. Not meeting the conditions under paragraph 15MS(2)(e) would be an element of the offence, not an exception to the offence. This reflects the current drafting of section 15MS.

639.           This 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 183: Subparagraph 15MS(3)(e)(iii)

640.           This item would omit “section 15MR; and” and substitute “section 15MR;” in subparagraph 15MS(3)(e)(iii). This is a technical amendment consequential to the insertion of new subparagraph 15MS(3)(e)(iv) by item 182 of Schedule 1.

Item 184: At the end of paragraph 15MS(3)(e)

641.           Subsection 15MS(3) contains an offence relating to engaging in conduct that results in the disclosure of the identity or place of residence of an operative subject to a witness identity protection certificate.

642.           Paragraph 15MS(3)(e) lists a number of conditions which, if any apply, mean the conduct is not an offence. This item would insert new subparagraph 15MS(3)(e)(iv).

643.           New subparagraph 15MS(3)(e)(iv) 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, the conduct does not constitute an offence. This amendment is intended to clarify that the offence provision in subsection 15MS(3) does not prevent a person from providing information to the IGIS. Not meeting the conditions under paragraph 15MS(3)(e) would be an element of the offence, not an exception to the offence. This reflects the current drafting of section 15MS.

644.           This 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 185: At the end of subsection 15MT(1)

645.           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 if prima facie evidence of that fact.

646.           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 180, 182 and 184 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.

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

Migration Act 1958 (Migration Act)

Item 186: Subsection 5(1)

648.           This item would insert a new definition of ‘IGIS official’ in subsection 5(1) of the Migration 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 187: After paragraph 336E(2)(f)

649.           Subsection 336E(1) provides that a person commits an offence if the person’s conduct causes the disclosure of identifying information (as defined in the Migration Act) and the disclosure is not a permitted disclosure (as defined in subsection 336E(2)).

650.           This item would insert new paragraph 336E(2)(fa), which would provide that a disclosure is a permitted disclosure when it is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official in relation to action taken by Home Affairs.

651.           This amendment would ensure that it is clear 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 support the expansion of the IGIS’s jurisdiction to Home Affairs by enabling it to access information that is relevant to its oversight.

Item 188: After subsection 488(3)

652.           This item would insert new subsection 488(3A). Subsection 488(1) provides that certain conduct in relation to movement records constitutes an offence.

653.           Subsection 488(3A) would provide an exception to the offence under subsection 488(1) where the conduct is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.

654.           This amendment would ensure that it is clear that officials can share information and records with IGIS officials (including voluntarily) for the purpose of the IGIS performing its functions. This is necessary to support the oversight functions of the IGIS by ensuring it is able to access information that is relevant to its oversight.

655.           This item would also insert a note at the end of subsection 488(3A) to clarify that an IGIS official does not bear an evidential burden in relation to a matter in this subsection.

656.           The note refers to section 34C of the IGIS Act, 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 explains the interaction between the Migration Act, the Criminal Code and the IGIS Act.

Item 189: Subsection 503A(8)

657.           Section 503A relates to the protection of information supplied by law enforcement agencies or intelligence agencies to authorised migration officers and restricts the further disclosure of this information except in certain specified scenarios. Subsection 503A(8) provides that when another Act provides for information to be given, the relevant provisions of that Act are subject to section 503A.

658.           This item would amend subsection 503A(8) to provide that where the IGIS Act provides for information to be given, it is not subject to section 503A of the Migration Act. The effect of this provision would be to ensure that the restrictions in section 503A would not apply to a disclosure that is authorised under the IGIS Act. This is intended to ensure that the IGIS has appropriate access to information relevant to an inquiry or inspection.

Ombudsman Act 1976

Item 190: Subsection 3(1) (definition of ACC )

659.           This item would repeal the definition of ACC. This amendment is consequential to the inclusion of an updated definition of ACIC to be inserted by item 191 of Schedule 1.

Item 191: Subsection 3(1)

660.           This item would amend subsection 3(1) by inserting the following new definitions:

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

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

Item 192: Subsection 3(1) (definition of Board of the ACC )

661.           This item would repeal the definition of ‘Board of the ACC’. This amendment reflects the expansion of the IGIS’s jurisdiction to all of the ACIC and the consequential carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 193: Subsection 3(1)

662.           This item would amend subsection 3(1) by inserting a new definition:

·          Department of Home Affairs ’ means the Department administered by the Minister administering the Australian Border Force Act 2015 .

Item 194: Subsection 3(1) (definition of examiner of ACC)

663.           This item would repeal the definition of ‘examiner of ACC’. This amendment reflects the expansion of the IGIS’s jurisdiction to all of the ACIC and the consequential carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 195: Subsection 3(13A)

664.           This item would repeal subsection 3(13A). Subsection 3(13A) provides that, for the purposes of the Ombudsman Act, the ACIC is taken to be a prescribed authority.

665.           The repeal of subsection 3(13A) is necessary to carve out the ACIC from the jurisdiction of the Ombudsman and consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC. As the IGIS will now have oversight over all of the ACIC, the ACIC will be carved out from the Ombudsman’s jurisdiction to avoid unnecessary duplication of oversight responsibilities.

Item 196: Paragraph 5B(a) and (b)

666.           Section 5B provides that a complaint transferred to the Ombudsman from the IGIS is taken to have been made under the Ombudsman Act. This ensures that there is a clear pathway for the IGIS to transfer a complaint to the Ombudsman where it is appropriate to do so.

667.           This item would repeal existing paragraphs 5B(a) and (b) and insert new paragraphs 5B(a) to (c). These amendments would remove reference to the ACIC and extend the application of section 5B to complaints relating to action taken by AUSTRAC and Home Affairs.

668.           This amendment is intended to reflect the expansion of the IGIS’s jurisdiction to all of the ACIC and the consequential carving out of the ACIC from the Ombudsman’s jurisdiction. The amendment also reflects the expansion of IGIS’s jurisdiction to the intelligence functions of the AFP, AUSTRAC and Home Affairs and will ensure that IGIS and the Ombudsman are able to effectively manage their overlapping jurisdictions in relation to these agencies.

Item 197: Section 6A

669.           This item would repeal section 6A. Section 6A sets out the process for the Ombudsman to transfer complaints it receives about the ACIC to another authority established under a law of the Commonwealth, a State or a Territory (other than the IGIS) if the Ombudsman forms the opinion the complaint could have been made to that authority and the complaint could be more conveniently or effectively dealt with by that authority.

670.           As a consequence of the expansion of the IGIS’s jurisdiction to all of the ACIC, the ACIC is to be carved out from the Ombudsman’s jurisdiction. This means the Ombudsman would no longer be able to receive complaints about the ACIC and the transfer mechanism provided for in section 6A is no longer required.

Item 198: Subparagraphs 6F(1)(a)(i) and (ii)

671.           Section 6F provides that the Ombudsman may transfer complaints to the IGIS where it is appropriate to do so.

672.           This item would repeal existing subparagraphs 6F(1)(a)(i) and (ii) and insert new subparagraphs 6F(1)(a)(i) to (iii) which would provide that the Ombudsman may transfer complaints about AUSTRAC, the AFP and Home Affairs to the IGIS.

673.           This amendment is intended to reflect the expansion of the IGIS’s jurisdiction to all of the ACIC and the consequential carving out of the ACIC from the Ombudsman’s jurisdiction. The amendment also reflects the expansion of IGIS’s jurisdiction to the intelligence functions of the AFP, AUSTRAC and Home Affairs and will ensure that IGIS and the Ombudsman are able to effectively manage their overlapping jurisdictions in relation to these agencies.

Item 199: Section 8B

674.           This item would repeal section 8B. Section 8B provides that the Ombudsman may make arrangements with an authority that has power to investigate action taken by the ACIC for the purposes of such an investigation.

675.           As a consequence of the expansion of the IGIS’s jurisdiction to all of the ACIC, the ACIC is to be carved out from the Ombudsman’s jurisdiction. This means the Ombudsman would no longer have the power to investigate action taken by the ACIC and the arrangements provided for in section 8B are no longer required.

Item 200: Paragraph 9(3)(e)

676.           Section 9 sets out the Ombudsman’s powers to obtain information and documents. Subsection 9(3) provides that the Ombudsman is not entitled to require a person to furnish any information concerning a particular matter where the Attorney-General has provided a certificate certifying that the disclosure of information or documents concerning that matter would be contrary to the public interest for the reasons provided for in paragraphs 9(3)(a) to (f).

677.           This item would repeal paragraph 9(3)(e). Paragraph 9(3)(e) relates to information, documents or records that are, or were, in the possession or under the control of the ACIC or the Board of the ACIC. The repeal of this paragraph is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 201: Subparagraph 19R(3)(b)(v)

678.           Section 19R sets out how various provisions in the Ombudsman Act apply to the Postal Industry Ombudsman.

679.           This item would repeal subparagraph 19R(3)(b)(v) which relates to the application of section 6A. This amendment is consequential to the repeal of section 6A by item 197 of Schedule 1.

Item 202: Subparagraph 19R(3)(b)(viii)

680.           Section 19R sets out how various provisions in the Ombudsman Act apply to the Postal Industry Ombudsman.

681.           This item would omit “sections 8A and 8B” and substitute “section 8A” in subparagraph 19R(3)(b)(viii) which relates to the application of those sections. This amendment is consequential to the repeal of section 8B by item 199 of Schedule 1.

Item 203: Subsection 19R(4) (table items 5 and 6)

682.           Section 19R sets out how various provisions in the Ombudsman Act apply to the Postal Industry Ombudsman.

683.           This item would repeal items 5 and 6 of the table in subsection 19R(4) which relate to the application of subsection 35B(2). This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 204: Paragraph 19ZM(3)(c)

684.           Section 19ZM sets out how various provisions in the Ombudsman Act apply to the Overseas Students Ombudsman.

685.           This item would omit “6A” from the phrase “sections 6A to 7A” in paragraph 19ZM(3)(c) and substitute “6B”. This amendment is consequential to the repeal of section 6A by item 197 of Schedule 1.

Item 205: Paragraph 19ZM(3)(q)

686.           Section 19ZM sets out how various provisions in the Ombudsman Act apply to the Overseas Students Ombudsman.

687.           This item would omit “35B” from the phrase “sections 35B to 38” in paragraph 19ZM(3)(q) and substitute “35C”. This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 206: Subsection 19ZM(4) (table items 8 and 9)

688.           Section 19ZM sets out how various provisions in the Ombudsman Act apply to the Overseas Students Ombudsman.

689.           This item would repeal items 8 and 9 of the table in subsection 19ZM(4) which relate to the application of subsection 35B(2). This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 207: Paragraph 20ZK(1)(j)

690.           Section 20ZK sets out how various provisions in the Ombudsman Act apply to the Private Health Insurance Ombudsman.

691.           This item would repeal paragraph 20ZK(1)(j) which relates to the application of section 35B. This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 208: Paragraph 20ZK(2)(g)

692.           Section 20ZK sets out how various provisions in the Ombudsman Act apply to the Private Health Insurance Ombudsman.

693.           This item would omit “subsections 35B(2) and 35C(2)” from paragraph 20ZK(2)(g) and substitute “subsection 35C(2)”. This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 209: Subparagraph 20ZK(2)(g)(ii)

694.           Section 20ZK sets out how various provision in the Ombudsman Act apply to the Private Health Insurance Ombudsman.

695.           This item would omit “or 6A” from subparagraph 20ZK(2)(g)(ii). This amendment is consequential to the repeal of section 6A by item 197 of Schedule 1.

Item 210: Subsection 20ZS(1) (table item 12, column 2)

696.           Section 20ZS sets out how various provisions in the Ombudsman Act apply to the VET Student Loans Ombudsman.

697.           This item would remove reference to complaints about the ACIC from column 2 of item 12 of the table in subsection 20ZS(1).

Item 211: Subsection 35(5)

698.           Section 35 provides confidentiality requirements that officers (as defined in subsection 35(1)) must comply with. Subsection 35(5) outlines restrictions on officers’ disclosing certain information where the Attorney-General has provided to the Ombudsman a certificate relating to that information.

699.           This item would remove reference to section 9(3)(e) from subsection 35(5). This amendment is consequential to the repeal of paragraph 9(3)(e) by item 200 of Schedule 1.

Item 212: Subsection 35AA(2)

700.           Section 35AA sets out circumstances in which the Ombudsman may disclose information to the Integrity Commissioner.

701.           This item would remove reference to section 35B from subsection 35AA(2). This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 213: Subsection 35A(1)

702.           Section 35A sets out circumstances in which the Ombudsman may disclose information to any person or to the public.

703.           This item would remove reference to section 35B from subsection 35A(1). This amendment is consequential to the repeal of section 35B by item 214 of Schedule 1.

Item 214: Section 35B

704.           This item would repeal section 35B. Section 35B provides that the Ombudsman must not disclose ACC information (as defined by subsection 35B(2)) if the Minister administering section 7 of the ACC Act gives the Ombudsman a certificate certifying that disclosure of certain ACC information by one or more listed disclosure methods (as defined by subsection 35B(2)) would be contrary to the public interest for various reasons.

705.           As a consequence of the expansion of the IGIS’s jurisdiction to all of the ACIC, the ACIC is to be carved out from the Ombudsman’s jurisdiction. Section 35B would therefore no longer be required.

Item 215: Subsection 35C(2) (paragraph (b) of the definition of listed disclosure method )

706.           Section 35C provides that the Ombudsman must not disclose Australian Commission for Law Enforcement Integrity (ACLEI) information (as defined by subsection 35C(2)) if the Attorney-General gives the Ombudsman a certificate certifying that the disclosure of certain ACLEI information by one or more listed disclosure methods (as defined by subsection 35C(2)) would be contrary to the public interest for various reasons.

707.           This item would remove reference to section 6A from paragraph (b) of the definition of ‘listed disclosure method’ in subsection 35C(2). This amendment is consequential to the repeal of section 6A by item 197 of Schedule 1.

Item 216: Subsection 35C(2) (paragraph (d) of the definition of listed disclosure method )

708.           Section 35C provides that the Ombudsman must not disclose ACLEI information (as defined by subsection 35C(2)) if the Attorney-General gives the Ombudsman a certificate certifying that the disclosure of certain ACLEI information by one or more listed disclosure methods (as defined by subsection 35C(2)) would be contrary to the public interest for various reasons.

709.           This item would repeal paragraph (d) of the definition of ‘listed disclosure method’ in subsection 35C(2) which states that a listed disclosure method may mean giving the information, document or record to an authority with which the Ombudsman has made an arrangement under section 8B. This amendment is consequential to the repeal of section 8B by item 199 of Schedule 1.

Privacy Act 1988 (Privacy Act)

Item 217: Subsection 6(1)

710.           This item would amend subsection 6(1) by inserting a new definition for ‘ AUSTRAC ’, meaning the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 .

Item 218: Section 49B

711.           Section 49B provides that when a complaint or part of a complaint is transferred to the Information Commissioner under section 32AD of the IGIS Act, that the complainant is deemed to have made a complaint to the Information Commissioner under subsection 36(1) of the Privacy Act.

712.           Section 49B currently applies to complaints transferred from the IGIS relating to action taken by the ACIC or the AFP. This item would amend section 49B to also apply to complaints relating to action taken by AUSTRAC and Home Affairs (within the meaning of the IGIS Act).

713.           This amendment reflects the expansion of the IGIS’s jurisdiction to include the intelligence functions of AUSTRAC and Home Affairs and is intended to ensure that there is a clear pathway for the IGIS to transfer complaints relating to these agencies to the Information Commissioner where it is appropriate to do so.

Public Interest Disclosure Act 2013

Item 219: Section 8

714.           This item would insert the following new definitions into section 8 of the PID Act:

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

·          Department of Home Affairs ’ means the Department administered by the Minister administering the Australian Border Force Act 2015 .

715.           These amendments are necessary to define terms referred to in other amendments made to the PID Act and are consequential to the expansion of the IGIS’s jurisdiction to include the intelligence functions of AUSTRAC and Home Affairs.

Item 220: Section 8 (at the end of the definition of intelligence agency )

716.           This item would amend the definition of ‘intelligence agency’ to include the ACIC.

717.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and is intended to enable the IGIS to receive, allocate and investigate all disclosures relating to the ACIC and to ensure that the IGIS is the relevant oversight agency in relation to all disclosures relating to the ACIC.

Item 221: Section 8 (definition of intelligence function )

718.           The definition of ‘intelligence function’ in the PID Act provides that, in relation to the ACIC or the Australian Federal Police, ‘intelligence function’ has the meaning given by the IGIS Act.

719.           This item would omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs” into the definition of ‘intelligence function’.

720.           This amendment reflects the inclusion of the ACIC in the definition of ‘intelligence agency’ and is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs.

Item 222: Subsection 26(1) (table item 2, column 3, paragraph (i))

721.           Subsection 26(1) provides criteria for when a disclosure of information is a public interest disclosure. The table in subsection 26(1) sets out further requirements that must be met depending on the type of disclosure and the recipient.

722.           This item would amend item 2, column 3, paragraph (i). Existing item 2, column 3, paragraph (i) of the table provides that, for an external disclosure to any person other than a foreign public official, none of the conduct with which the disclosure is concerned can relate to an intelligence agency.

723.           This item would insert “except ACIC” after “intelligence agency” in item 2, column 3, paragraph (i). This amendment would ensure that a disclosure of information that relates to the conduct of the ACIC may still be the subject of an external disclosure, if all other relevant requirements are met.

724.           This is intended to account for the expansion of the IGIS’s jurisdiction to include all of the ACIC and subsequent changes to include the ACIC in the definition of ‘intelligence agency’ in the PID Act, while preserving the ability for external disclosures to be able to be made about the ACIC in accordance with the current approach to the ACIC under the PID Act.

Item 223: Section 34 (table item 1, column 2, subparagraph (ca)(i))

725.           Section 34 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 an internal disclosure under the PID Act must be made in the first instance.

726.           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, the Ombudsman or the IGIS.

727.           Existing item 1, column 2, paragraph (ca) provides that if the discloser believes on reasonable grounds that the disclosure relates to action taken by the ACIC or the AFP in relation to that agency’s intelligence functions, and it would be appropriate for the disclosure to be investigated by the IGIS, the IGIS would be an authorised internal recipient.

728.           This item would amend item 1, column 2, subparagraph (ca)(i) to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. The omission of the ACIC from item 1 of the table reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC and the consequential inclusion of the ACIC in the definition of intelligence agency in the PID Act. This insertion of AUSTRAC and Home Affairs to item 1, column 2, subparagraph (ca)(i) of the table is consequential to the expansion of the IGIS’s jurisdiction to the intelligence functions of those agencies.

Item 224: Paragraph 41(1)(a)

729.           Section 41 sets out the definition of ‘intelligence information’ for the purposes of the PID Act. Existing paragraph 41(1)(a) provides that ‘intelligence information’ includes information that has originated with, or has been received from, an intelligence agency.

730.           This item would amend paragraph 41(1)(a) to insert “except ACIC” after “intelligence agency”. This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC, and subsequent changes to include the ACIC in the definition of ‘intelligence agency’ in the PID Act (as amended by item 220 of Schedule 1).

731.           Excepting information that has originated with, or has been received from, the ACIC from the definition of 'intelligence information' is intended to preserve the ability for external disclosures to be able to be made about the ACIC (under subsection 26(1) of the PID Act) in accordance with the current approach to the ACIC under the PID Act.

Item 225: Subparagraph 41(1)(b)(ii)

732.           Section 41 sets out the definition of ‘intelligence information’ for the purposes of the PID Act. Paragraph 41(1)(a) provides that ‘intelligence information’ includes information that has originated with, or has been received from, an intelligence agency. Existing paragraph 41(1)(b) provides that ‘intelligence information’ includes information that is about, or that might reveal:

·          a source of information referred to in paragraph (a) (subparagraph 41(1)(b)(i))

·          the technologies or methods used, proposed to be used, or being developed for use, by an intelligence agency to collect, analyse, secure or otherwise deal with, information referred to in paragraph (a) (subparagraph 41(1)(b)(ii)), or

·          operations that have been, are being, or are proposed to be, undertaken by an intelligence agency (subparagraph 41(1)(b)(iii)).

733.           This item would amend subparagraph 41(1)(b)(ii) to insert “except ACIC” after “intelligence agency”. This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC, and subsequent changes to include the ACIC in the definition of ‘intelligence agency’ in the PID Act (as amended by item 220 of Schedule 1).

734.           Excepting information of the kind referred to in subparagraph 41(1)(b)(ii) in relation to the ACIC from the definition of ‘intelligence information’ is intended to preserve the ability for external disclosures to be able to be made about the ACIC (under subsection 26(1) of the PID Act) in accordance with the current approach to the ACIC under the PID Act.

Item 226: Subparagraph 41(1)(b)(iii)

735.           Section 41 sets out the definition of ‘intelligence information’ for the purposes of the PID Act. Paragraph 41(1)(a) provides that ‘intelligence information’ includes information that has originated with, or has been received from, an intelligence agency. Existing paragraph 41(1)(b) provides that ‘intelligence information’ includes information that is about, or that might reveal:

·          a source of information referred to in paragraph (a) (subparagraph 41(1)(b)(i))

·          the technologies or methods used, proposed to be used, or being developed for use, by an intelligence agency to collect, analyse, secure or otherwise deal with, information referred to in paragraph (a) (subparagraph 41(1)(b)(ii)), or

·          operations that have been, are being, or are proposed to be, undertaken by an intelligence agency (subparagraph 41(1)(b)(iii)).

736.           This item would amend subparagraph 41(1)(b)(iii) to insert “except ACIC” after “intelligence agency”. This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC, and subsequent changes to include the ACIC in the definition of ‘intelligence agency’ in the PID Act (as amended by item 220 of Schedule 1).

737.           Excepting information of the kind referred to in subparagraph 41(1)(b)(iii) in relation to the ACIC from the definition of ‘intelligence information’ is intended to preserve the ability for external disclosure to be able to be made about the ACIC (under subsection 26(1) of the PID Act) in accordance with the current approach to the ACIC under the PID Act.

Item 227: Subparagraph 41(1)(c)(i)

738.           Section 41 sets out the definition of ‘intelligence information’ for the purposes of the PID Act. Paragraph 41(1)(c) provides that ‘intelligence information’ includes information:

·          that has been received by a public official from an authority of a foreign government, being an authority that has functions similar to the functions of an intelligence agency (subparagraph 41(1)(c)(i)), and

·          that is about, or that might reveal, a matter communicated by that authority in confidence (subparagraph 41(1)(c)(ii)).

739.           This item would amend subparagraph 41(1)(c)(i) to insert “except ACIC” after “intelligence agency”. This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC, and subsequent changes to include the ACIC in the definition of ‘intelligence agency’ in the PID Act (as amended by item 220 of Schedule 1).

740.           Excepting information of the kind referred to in subparagraph 41(1)(c)(i) in relation to authorities that have functions similar to the functions of the ACIC is intended to preserve the current approach in the PID Act to information from such authorities.

Item 228: Section 42 (note 2)

741.           Section 42 provides a simplified outline of Division 1 of Part 3 of the PID Act which deals with allocating the handling of disclosures.

742.           Existing note 2 of section 42 explains 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 the AFP in relation to that agency’s intelligence functions) to the IGIS under the IGIS Act.

743.           This item would amend note 2 to remove reference to the ACIC (which would be included within the definition of intelligence agency) and include a reference to AUSTRAC and Home Affairs. This would clarify that the way a disclosure that relates to the intelligence functions of the AFP, AUSTRAC and Home Affairs may be the subject of a complaint to the IGIS under the IGIS Act.

744.           This amendment reflects the IGIS’s expanded jurisdiction to oversee all of the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs.

Item 229: Subparagraph 43(3)(a)(iii)

745.           Section 43 outlines the responsibilities of an authorised officer who has received a PID, and how they are to allocate that PID. Section 43 provides that where a PID is made, the authorised officer must allocate that PID to one or more agencies for consideration. The authorised officer is not required to allocate the PID where they are satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure (subsection 43(2)).

746.           Subsection 43(3) provides the matters to which an authorised officer must have regard when determining which agency to refer the disclosure. 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.

747.           Existing subparagraph 43(3)(a)(iii) provides that the IGIS should not handle a disclosure unless some or all of the suspected disclosable conduct relates to an intelligence agency, the ACIC or the AFP.

748.           This item would amend subparagraph 43(3)(a)(iii) to provide that the IGIS should not handle a disclosure unless some or all of the suspected disclosable conduct relates to an intelligence agency, AUSTRAC, Home Affairs or the AFP.

749.           This amendment is intended to reflect that the ACIC would now be included in the definition of intelligence agency and to reflect the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs.

Item 230: Subsection 43(3A)

750.           Section 43 outlines the responsibilities of an authorised officer who has received a PID, and how they are to allocate a PID. Section 43 provides that where a PID is made, the authorised officer must allocate that PID to one or more agencies for consideration.

751.           Subsection 43(3A) provides that an authorised officer must not allocate the handling of a disclosure to the IGIS that relates to action taken by an examiner of ACIC performing functions and exercising powers as an examiner. 

752.           This item would repeal subsection 43(3A). This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC, including examiners.

Item 231: Paragraphs 44(1A)(a) and (b)

753.           Section 44 sets out the notice requirements for authorised officers upon making a decision about the allocation of a disclosure.

754.           Subsection 44(1) requires an authorised officer to inform the principal officer of each agency to which the handling of a disclosure has been allocated of:

·          the allocation of the disclosure to the agency,

·          the information that was disclosed,

·          the suspected disclosable conduct (if any), and

·          the discloser’s name and contact details, if they are available.

755.           In addition to the agency which has been allocated the disclosure, subsection 44(1A) requires the authorised officer 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 allocated to an agency that is not the Ombudsman, the IGIS or an intelligence agency, or the ACIC or the 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.

756.           This item would amend paragraphs 44(1A)(a) and (b) to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. This is intended to reflect that the ACIC would now be included in the definition of intelligence agency and to reflect the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs.

Item 232: Section 46 (note)

757.           Section 46 provides 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 a refusal to investigate a disclosure) 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 the AFP in relation to that agency’s intelligence functions) the IGIS under the IGIS Act.

758.           This item would amend the note to remove reference to the ACIC (which would be included within the definition of intelligence agency) and include a reference to AUSTRAC and Home Affairs. This would clarify that the way a disclosure that relates to the intelligence functions of the AFP, AUSTRAC and Home Affairs is investigated may be the subject of a complaint to the IGIS under the IGIS Act.

759.           This amendment reflects the IGIS’s expanded jurisdiction to oversee all of the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs.

Item 233: Paragraph 50A(1)(c)

760.           Section 50A requires the principal officer of an agency which has been allocated a disclosure to notify the Ombudsman or the IGIS of a decision under sections 48 or 49 of the PID Act not to investigate a disclosure, or to not investigate a disclosure further.

761.           Existing subsection 50A(1) provides that the principal officer must inform the Ombudsman of the decision, and of the reasons for the decision if:

·          the principal officer of the agency has decided under section 48 or 49 not to investigate the disclosure, or not to investigate further (paragraph 50A(1)(a)),

·          the agency is not the Ombudsman, the IGIS or an intelligence agency (paragraph 50A(1)(b)), and

·          if the agency is the ACIC or the AFP—the disclosure does not relate to the intelligence functions of the agency (paragraph 50A(1)(c)).

762.           This item would amend paragraph 50A(1)(c) to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. This amendment is intended to reflect that the ACIC would now be included in the definition of intelligence agency and to reflect the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs.

Item 234: Subparagraph 50A(2)(b)(ii)

763.           Section 50A requires the principal officer of an agency which has been allocated a disclosure to notify the Ombudsman or the IGIS of a decision under sections 48 or 49 of the PID Act not to investigate a disclosure, or to not investigate a disclosure further.

764.           Existing subsection 50A(2) provides that the principal officer must inform the IGIS of the decision, and of the reasons for the decision if:

·          the principal officer of the agency has decided under section 48 or 49 not to investigate the disclosure, or not to investigate further (paragraph 50A(2)(a)), and

·          either:

o    the agency is an intelligence agency (subparagraph 50A(2)(b)(i)), or

o    the agency is the ACIC or the AFP and the disclosure relates to the intelligence functions of the agency (subparagraph 50A(2)(b)(ii)).

765.           This item would amend subparagraph 50A(2)(b)(ii) to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. This amendment is intended to reflect that the ACIC would now be included in the definition of intelligence agency. The amendment also reflects the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs in addition to those of the AFP.

Item 235: Paragraph 52(4)(b)

766.           Section 52 requires investigations to be completed within 90 days after allocation of the disclosure where reasonably practical, unless an extension is granted.

767.           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 agency is the ACIC or the AFP and the disclosure relates to the intelligence functions of the agency.

768.           This item would amend paragraph 52(4)(b) to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. This amendment is intended to reflect that the ACIC would now be included in the definition of intelligence agency. The amendment also reflects the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs in addition to those of the AFP.

Item 236: Section 58 (note)

769.           Section 58 provides a simplified outline of Division 1 of Part 4 of the PID Act which relates to additional obligations placed on persons involved in the PID process, as well as providing additional functions to the Ombudsman and the IGIS.

770.           The note to section 58 signposts that the way these additional obligations are complied with (or non-compliance with additional obligations) 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 that agency’s intelligence functions) to the IGIS under the IGIS Act.

771.           This item would amend the note to remove reference to the ACIC (which would be included within the definition of intelligence agency) and include a reference to AUSTRAC and Home Affairs. This would clarify that the way additional obligations are complied with in relation to the intelligence functions of the AFP, AUSTRAC and Home Affairs may be the subject of a complaint to the IGIS under the IGIS Act.

772.           This amendment reflects the IGIS’s expanded jurisdiction to oversee all of the ACIC and the intelligence functions of the AFP, AUSTRAC and Home Affairs.

Item 237: Paragraphs 63(aa) and (ba)

773.           Section 63 provides additional functions of the IGIS. Existing paragraph 63(aa) provides that the functions of the IGIS include assisting, in relation to the intelligence functions of the ACIC or the AFP, principal officers, authorised officers, public officials, and former public officials of that agency, in relation to the operation of the PID Act. Existing paragraph 63(ba) provides that the functions of the IGIS include conducting educational and awareness programs relating to the PID Act, in relation to the intelligence functions of the ACIC or the AFP, to the extent to which that Act relates to that agency, public officials who belong to that agency and former public officials who belonged to that agency.

774.           This item would amend paragraphs 63(aa) and (ba) to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. This amendment is intended to reflect that the ACIC would now be included in the definition of intelligence agency. The amendment also reflects the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs in addition to those of the AFP.

Item 238: Section 63 (paragraph (b) of the note)

775.           The note at the end of section 63 clarifies that section 8A of the IGIS Act extends the IGIS’s functions to cover disclosures of information allocated under section 43 of the PID Act if the disclosable conduct with which the information is concerned relates to:

·          an intelligence agency (paragraph (a) of the note), or

·          the ACIC or AFP in relation to the intelligence functions of the agency (paragraph (b) of the note).

776.           This item would amend paragraph (b) of the note to omit “ACIC” and substitute “AUSTRAC, the Department of Home Affairs”. This amendment is intended to reflect that the ACIC would now be included in the definition of intelligence agency. The amendment also reflects the IGIS’s expanded jurisdiction to the intelligence functions of AUSTRAC and Home Affairs in addition to those of the AFP.

Security of Critical Infrastructure Act 2018 (SCI Act)

Item 239: After subsection 46(5) (before the note)

777.           Section 45 provides that it is an offence for unauthorised use or disclosure of protected information. Section 46 provides for exceptions to the offence in section 45.

778.           This item would insert new subsection 46(6) which would provide that the offence in section 45 does not apply to an entity to the extent that the entity discloses protected information to an IGIS official for the purposes of exercising powers, or performing duties or functions, as an IGIS official.

779.           This amendment would ensure that it is clear that entities can share information and records 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 ensuring it is able to access information that is relevant to its oversight.

Item 240: Section 46 (note)

780.           This item would repeal and replace the note at the end of section 46 to clarify that a defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection in accordance with subsection 13.3(3) of the Criminal Code.

781.           Subsection 13.3(3) of the Criminal Code 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.

782.           This note is intended to clarify that the evidential burden a defendant bears in relation to a matter in section 46 does not apply where the defendant is an IGIS official. The note refers to section 34C of the IGIS Act, 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 explains the interaction between the SCI Act, the Criminal Code and the IGIS Act.

Surveillance Devices Act 2004

Item 241: After subsection 45(6A)

783.           Section 45 contains various offences for the use, recording, communication or publication of protected information (as defined in the SD Act) and a prohibition on its admission in evidence. Subsection 45(6A) provides that protected information may be communicated by an Ombudsman official to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

784.           This item would insert new subsection 45(6B) which would provide that protected information may be communicated by an IGIS official to an Ombudsman official for the purposes of the Ombudsman official exercising powers, or performing functions or duties, as an Ombudsman official.

785.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to include the intelligence functions of the AFP, AUSTRAC and Home Affairs. The IGIS and the Ombudsman have overlapping jurisdictions in relation to these agencies. It is essential that the IGIS and the Ombudsman be able to manage this overlapping jurisdiction, including by sharing information in relation to action taken by these agencies as appropriate for their respective oversight responsibilities.

Item 242: Section 49A (heading)

786.           This item would repeal and substitute the heading for section 49A. The new heading would read ‘Notification to Ombudsman or IGIS in relation to Part 5.3 warrants’. This amendment reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC and would ensure the heading for section 49A accurately reflects the section’s provisions.

Item 243: Subsection 49A(1)

787.           This item would repeal and substitute subsection 49A(1). Section 49A sets out notification requirements in relation to Part 5.3 warrants (control order and extended supervision order warrants). Existing subsection 49(1) sets out the requirement for the chief officer of a law enforcement agency to notify the Ombudsman that a Part 5.3 warrant has been issued, and provide the Ombudsman with a copy of the warrant.

788.           New subsection 49A(1) would provide that, if the law enforcement agency is the ACIC, notification of the issue of a warrant and a copy of the warrant must be provided to the IGIS. Other law enforcement agencies would continue to be required to notify (and provide a copy of the warrant to) the Ombudsman.

789.           This amendment reflects the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 244: Subsection 49A(2)

790.           Section 49A sets out notification requirements in relation to Part 5.3 warrants. Existing subsection 49A(2) provides that the chief officer of a law enforcement agency must notify the Ombudsman of any contravention of the conditions attached to a Part 5.3 warrant.

791.           This item would amend subsection 49A(2) to provide that the chief officer of a law enforcement agency must notify the Ombudsman or the IGIS (as the case requires) of any contravention of the conditions attached to a Part 5.3 warrant. This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and gives effect to the change to notification requirements that would apply to the ACIC in relation to Part 5.3 warrants.

Item 245: Section 49B

792.           This item would repeal and substitute section 49B. Existing section 49B sets out the obligation of the chief officer of a law enforcement agency to notify the Ombudsman if a computer access warrant was issued and any concealment activity was done under the warrant after a 28-day period.

793.           New section 49B would recreate the notification requirements in existing section 49B, however would specify that if the law enforcement agency is the ACIC it must notify the IGIS whereas any other law enforcement agency is required to notify the Ombudsman.

794.           This amendment reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 246: Section 49C

795.           This item would repeal and substitute section 49C. Existing section 49C sets out the obligation on the chief officer of a law enforcement agency to notify the Ombudsman if a data disruption warrant was issued and a specified act was done in relation to the warrant, or that a thing was done that caused material loss or damage to persons lawfully using a computer.

796.           New section 49C would recreate the notification requirements in existing section 49C with changes to give effect to the expansion of the IGIS’s jurisdiction to all of the ACIC.

797.           This item would add the new subheading ‘Notification of things done under warrant’ before subsection 49C(1). This would clarify the structure of section 49C.

798.           New subsections 49C(1) and (2) would provide that the chief officer of a law enforcement agency must notify the person mentioned in new subsection (5) if a data disruption warrant was issued and a specified act was done under the warrant.

799.           A new subheading ‘Notification of material loss or damage’ after subsection 49C(2) would help clarify the structure of the section.

800.           New subsections 49C(3) and (4) would provide that the chief officer of a law enforcement agency must notify the person mentioned in new subsection (5) if a data disruption warrant was issued and a thing was done that caused material loss or damage to persons lawfully using a computer.

801.           A new subheading ‘Relevant body agency must notify’ after subsection 49C(4) would help clarify the structure of the section.

802.           New subsection 49C(5) would provide that, for the purposes of the section, if the law enforcement agency is the ACIC, the person to which notification must be provided is the IGIS and in any other case it is the Ombudsman.

803.           This amendment reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 247: Subsection 55(1)

804.           Section 55 sets out the requirements and powers of the Ombudsman to inspect the records of a law enforcement agency to determine compliance with the SD Act. Subsection 55(1) provides that the Ombudsman must inspect the records of a law enforcement agency to determine the extent of compliance with the SD Act.

805.           This item would amend subsection 55(1) to clarify that the Ombudsman cannot inspect the records of the ACIC. This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 248: At the end of subsection 55(1)

806.           This item inserts a note at the end of subsection 55(1) to clarify that inspections of the ACIC relating to the extent of compliance with the SD Act are undertaken by the IGIS under the IGIS Act. This is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 249: Subsection 55(2)

807.           This item would repeal subsection 55(2). Section 55 sets out the requirements and powers of the Ombudsman to inspect the records of a law enforcement agency to determine compliance with the SD Act.

808.           Subsection 55(2) provides that the Ombudsman must inspect ACIC records to determine the extent of compliance with the surveillance device laws of any State or Territory in relation to any warrants or emergency authorisations sought, and any surveillance devices used.

809.           The repeal of subsection 55(2) is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 250: At the end of subsection 55(2A)

810.           Section 55 sets out the requirements and powers of the Ombudsman to inspect the records of a law enforcement agency to determine compliance with the SD Act. Subsection 55(2A) provides that the Ombudsman may inspect the records of a law enforcement agency to determine the extent of compliance with subsection 49A(2) if notified of a contravention (subsection 49A(2) provides that the chief officer of a law enforcement agency must notify the Ombudsman of any contravention of the conditions attached to a Part 5.3 warrant).

811.           This item would insert a note at the end of subsection 55(2A) to clarify that the subsection does not apply in relation to records of the ACIC as the ACIC does not provide notifications to the Ombudsman under section 49A (as amended by item 243 of Schedule 1).

812.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and is intended to provide clarity on the operation of subsection 55(2A).

Item 251: After paragraph 55(2B)(b)

813.           Section 55 sets out the requirements and powers of the Ombudsman to inspect the records of a law enforcement agency to determine compliance with the SD Act. Subsection 55(2B) provides that the Ombudsman may inspect a law enforcement agency’s records to determine the extent of compliance with Part 15 of the Telecommunications Act 1997 (Telecommunications Act) if the performance of a Part 15 function is in connection with a SD Act warrant.

814.           This item would insert new paragraph 55(2B)(c) which would make it a requirement that the law enforcement agency referred to in subsection 55(2B) is not the ACIC. This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction. 

Item 252: Section 58 (heading)

815.           Section 58 sets out what information may be exchanged between the Ombudsman and State or Territory inspecting authorities under the SD Act.

816.           This item would amend the heading for section 58 to insert a reference to the IGIS. This is intended to reflect the amendments to section 58 (by items 245-256 of Schedule 1) that will provide that the IGIS may also exchange information with State or Territory inspecting authorities.

Item 253: Before subsection 58(1)

817.           This item would insert a new subheading ‘Definitions’ before subsection 58(1). This amendment is intended to improve the readability of section 58.

Item 254: Subsection 58(1) (definition of State or Territory inspecting authority)

818.           Section 58 sets out what information may be exchanged between the Ombudsman and State or Territory inspecting authorities under the SD Act. Subsection 58(1) defines certain terms for application in this section.

819.           This item would amend the definition of ‘State or Territory inspecting authority’. The existing definition provides that a State or Territory inspecting authority, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 55 of the SD Act when the State or Territory agency is exercising powers under the law of that State or Territory that is of a similar nature to that Act.

820.           This item would insert “of this Act, or section 9A of the Inspector-General of Intelligence and Security Act 1986 ” after “section 55”. This would provide that the definition of ‘State or Territory inspecting authority’ also includes an authority that has the function of making inspections of a similar kind to those provided for in section 9A of the IGIS Act when exercising powers under the law of that State or Territory that is of a similar nature to section 9A of the IGIS Act.

821.           This is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and is intended to reflect that the IGIS may use its inspection powers under section 9A of the IGIS Act to inspect the records of the ACIC to determine the extent of compliance with the SD Act.

Item 255: Before subsection 58(2)

822.           This item would insert a new subheading ‘Exchange of information between Ombudsman and State inspecting authorities’ before subsection 58(2).

823.           The new subheading intends to make it clear that subsections 58(2)-(4) apply only to the exchange of information between the Ombudsman and State or Territory inspecting authorities. This amendment is intended to clarify the structure of the section.

Item 256: At the end of section 58

824.           Section 58 sets out what information may be exchanged between the Ombudsman and State or Territory inspecting authorities under the SD Act. This item would insert:

·          a new subheading ‘Exchange of information between IGIS and State inspecting authorities’, and

·          new subsections 58(5)-(7).

825.           The new subheading is intended to clarify that subsection 58(5)-(7) apply only to the exchange of information between the IGIS and State or Territory inspecting authorities.

826.           New subsection 58(5) would provide that the Inspector-General may give information to the relevant State or Territory inspecting authority if the information relates to a State or Territory agency, was obtained by an IGIS official under the IGIS Act, and relates to the use of powers under the SD Act by an intelligence agency (within the meaning of the IGIS Act).

827.           New subsection 58(6) would provide that the IGIS may only give information to an authority under subsection 58(5) if the IGIS is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to a State or Territory agency.

828.           New subsection 58(7) would provide that the IGIS may receive information from a State or Territory inspecting authority that relates to the use of powers under the SD Act by an intelligence agency (within the meaning of the IGIS Act), and is relevant to the performance of the IGIS’s functions under the IGIS Act.

829.           These amendments are consequential to the expansion of the IGIS’s jurisdiction and are intended to ensure that the IGIS is able to exchange information with State and Territory inspecting authorities where appropriate.

Telecommunications Act 1997 (Telecommunications Act)

Item 257: Subsection 317HAB(4)

830.           This item would repeal and substitute subsection 317HAB(4). Section 317HAB sets out notification requirements in relation to the giving of technical assistance requests. Existing subsection 317HAB(4) provides that if the chief officer of an interception agency gives a technical assistance request they must notify the Ombudsman that the request has been given.

831.           New subsection 317HAB(4) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance request has been given. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

832.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 258: Subsection 317JA(18)

833.           This item would repeal and substitute subsection 317JA(18). Section 317JA sets out matters relating to the variation of technical assistance requests. Existing subsection 317JA(18) provides that if the chief officer of an interception agency varies a technical assistance request they must notify the Ombudsman that the request has been given.

834.           New subsection 317JA(18) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance request has been varied. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

835.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 259: Subsection 317JB(9)

836.           This item would repeal and substitute subsection 317JB(9). Section 317JB sets out matters relating to the revocation of technical assistance requests. Existing subsection 317JB(9) provides that if the chief officer of an interception agency revokes a technical assistance request they must notify the Ombudsman that the request has been revoked.

837.           New subsection 317JB(9) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance request has been revoked. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

838.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 260: After subparagraph 317MAA(4)(b)(i)

839.           Section 317MAA sets out advice that must be given to a provider when the provider has been given a technical assistance notice. Subsection 317MAA(4) provides that if the chief officer of an interception agency gives a technical assistance notice to a designated communications provider, and the provider has a right to make a complaint about the conduct of the chief officer or the interception agency in relation to the notice to the Ombudsman or a State or Territory authority, the chief officer must notify the provider of the provider’s right to make such a complaint.

840.           This item would insert new subparagraph 317MAA(4)(b)(ia) to provide that if the provider has the right to make a complaint about the conduct of the chief officer or the interception agency in relation to the notice to the IGIS, the chief officer must notify the provider of the provider’s right to make such a complaint to the IGIS.

841.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the intelligence functions of the AFP and would ensure that providers are notified of their right to make a complaint to the IGIS, where such a right exists.

Item 261: Subsection 317MAB(2)

842.           This item would repeal and substitute subsection 317MAB(2). Section 317MAB sets out notification requirements in relation to the giving of technical assistance notices. Existing subsection 317MAB(2) provides that if the chief officer of an interception agency gives a technical assistance notice they must notify the Ombudsman that the notice has been given.

843.           New subsection 317MAB(2) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance notice has been given. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

844.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 262: Subsection 317MA(1F)

845.           This item would repeal and substitute subsection 317MA(1F). Section 317MA sets out matters relating to the duration of technical assistance notices. Existing subsection 317MA(1F) provides that if the chief officer of an interception agency extends the period for which a technical assistance notice is in force they must notify the Ombudsman of the extension.

846.           New subsection 317MA(1F) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance notice has been extended. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

847.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 263: Subsection 317Q(13)

848.           This item would repeal and substitute subsection 317Q(13). Section 317Q sets out matters in relation to the variation of technical assistance notices. Existing subsection 317Q(13) provides that if the chief officer of an interception agency varies a technical assistance notice they must notify the Ombudsman of the variation.

849.           New subsection 317Q(13) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance notice is varied. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

850.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 264: Subsection 317R(6)

851.           This item would repeal and substitute subsection 317R(6). Section 317R sets out matters in relation to the revocation of technical assistance notices. Existing subsection 317R(6) provides that if the chief officer of an interception agency revokes a technical assistance notice they must notify the Ombudsman of the revocation.

852.           New subsection 317R(6) would provide that where the interception agency is the ACIC the chief officer must notify the IGIS when a technical assistance notice is revoked. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

853.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 265: Subsection 317TAB(2)

854.           This item would amend subsection 317TAB(2). Section 317TAB sets out notification requirements in relation to the giving of technical capability notices. Subsection 317TAB(2) provides that if the Attorney-General gives a technical capability notice that relates to an interception agency the Attorney-General must notify the Ombudsman that the notice has been given.

855.           This item would amend subsection 317TAB(2) to provide that new subsection 317TAB(2A) applies if the conditions in subsection 317TAB(2) are met. This amendment is consequential to the insertion of new subsection 317TAB(2A) by the Bill.

Item 266: Subparagraph 317TAB(2)(b)(ii)

856.           This item would amend the punctuation in subparagraph 317TAB(2)(b)(ii). This is a technical amendment consequential to the amendment to subsection 317TAB(2) in item 268 of Schedule 1.

Item 267: Subsection 317TAB(2)

857.           This item would omit “the Attorney-General must, within 7 days after the notice is given, notify the Commonwealth Ombudsman that the notice has been given” from subsection 317TAB(2).

858.           This amendment is consequential to the insertion of new subsection 317TAB(2A) by item 268 of Schedule 1.

Item 268: After subsection 317TAB(2)

859.           This item would insert new subsection 317TAB(2A). Section 317TAB sets out notification requirements in relation to the giving of technical capability notices. Subsection 317TAB(2) (as amended by this Bill) would provide that if the Attorney-General gives a technical capability notice that relates to an interception agency new subsection 317TAB(2A) applies.

860.           New subsection 317TAB(2A) would provide that if the interception agency is the ACIC the Attorney-General must notify the IGIS that the notice has been given. Otherwise, the Attorney-General must notify the Ombudsman.

861.           These amendments are consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and give effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 269: Subsection 317TAB(3)

862.           This item would omit “(2)” and substitute “(2A)” in subsection 317TAB(3). This is a technical amendment consequential to the amendments to subsection 317TAB(2) and the insertion of new subsection 317TAB(2A) by the Bill.

Item 270: Subsection 317TA(1E)

863.           This item would amend subsection 317TA(1E). Section 317TA sets out matters relating to the duration of technical capability notices. Existing subsection 317TA(1E) provides that if the Attorney-General extends the period for which a technical capability notice that relates to an interception agency is in force the Attorney-General must notify the Ombudsman of the extension.

864.           This item would amend subsection 317TA(1E) to provide that new subsection 317TA(1EA) applies if the conditions in subsection 317TA(1E) are met. This amendment is consequential to the insertion of new subsection 317TA(1EA) by item 273 of Schedule 1.

Item 271: Subparagraph 317TA(1E)(b)(ii)

865.           This item would amend the punctuation in subparagraph 317TA(1E)(b)(ii). This is a technical amendment consequential to the amendments to subsection 317TA(1E) by the Bill.

Item 272: Subsection 317TA(1E)

866.           This item would omit “the Attorney-General must, within 7 days after extending the period, notify the Commonwealth Ombudsman of the extension.” from subsection 317TA(1E).

867.           This amendment is consequential to the insertion of new subsection 317TA(1EA) by item 273 of Schedule 1.

Item 273: After subsection 317TA(1E)

868.           This item would insert new subsection 317TA(1EA). Section 317TA sets out matters relating to the duration of technical capability notices. Subsection 317TA(1E) (as amended by this Bill) would provide that if the Attorney-General extends the period for which a technical capability notice that relates to an interception agency is in force new subsection 317TA(1EA) would apply.

869.           New subsection 317TA(1EA) would provide that if the interception agency to which the technical capability notice relates is the ACIC, the Attorney-General must notify the IGIS of the extension. Otherwise, the Attorney-General must notify the Ombudsman.

870.           These amendments are consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and give effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 274: Subsection 317TA(1F)

871.           This item would omit “(1E)”and substitute “(1EA)” in subsection 317TA(1F). This is a technical amendment consequential to the amendments to subsection 317TA(1A) and the insertion of new subsection 317TA(1EA) by the Bill.

Item 275: Paragraph 317WA(6)(e)

872.           Section 317WA sets out matters relating to a designated communications provider being able to request an assessment of whether a proposed technical capability notice should be given. Subsection 317WA(6) sets out the things assessors must do as soon as practicable after being appointed under this section, including (but not limited to) carrying out an assessment and preparing a report of the assessment.

873.           Existing paragraph 317WA(6)(e) provides that, if the things specified in the proposed technical capability notice relate to an interception agency, the assessors must give a copy of the report to the Ombudsman.

874.           This item would amend paragraph 317WA(6)(e) to provide that, if the interception agency is the ACIC a copy of the report must be given to the IGIS. Otherwise, a copy of the report must be given to the Ombudsman.

875.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 276: Subsection 317X(7)

876.           This item would amend subsection 317X(7). Section 317X sets out matters in relation to the variation of technical capability notices. Existing subsection 317X(7) provides that if the Attorney-General varies a technical capability notice that relates to an interception agency the Attorney-General must notify the Ombudsman that the notice has been varied.

877.           This item would amend subsection 317X(7) to provide that new subsection 317X(7A) applies if the conditions in subsection 317X(7) are met. This amendment is consequential to the insertion of new subsection 317X(7A).

Item 277: Subparagraph 317X(7)(b)(ii)

878.           This item would amend the punctuation in subparagraph 317X(7)(b)(ii). This is a technical amendment consequential to the amendment to subsection 317X(7) by the Bill.

Item 278: Subsection 317X(7)

879.           This item would omit “the Attorney-General must, within 7 days after varying the notice, notify the Commonwealth Ombudsman that the notice has been varied.” from subsection 317X(7).

880.           This amendment is consequential to the insertion of new subsection 317X(7A) by item 279 of Schedule 1.

Item 279: After subsection 317X(7)

881.           This item would insert new subsection 317X(7A). Section 317X sets out matters in relation to the variation of technical capability notices. Subsection 317X(7) (as amended by this Bill) would provide that if the Attorney-General varies a technical capability notice that relates to an interception agency subsection 317X(7A) will apply.

882.           New subsection 317X(7A) would provide that if the interception agency is the ACIC the Attorney-General must notify the IGIS that the notice has been varied. Otherwise, the Attorney-General must notify the Ombudsman.

883.           These amendments are consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and give effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 280: Subsection 317X(8)

884.           This item would omit “(7)” and substitute “(7A)” in subsection 317X(8). This is a technical amendment consequential to the amendments to subsection 317X(7) and the insertion of new subsection 317X(7A) by the Bill.

Item 281: Paragraph 317YA(6)(e)

885.           Section 317YA sets out matters relating to a designated communications provider being able to request an assessment of whether a proposed variation of a technical capability notice should be made. Subsection 317YA(6) sets out the things assessors must do as soon as practicable after being appointed under this section, including (but not limited to) carrying out an assessment and preparing a report of the assessment.

886.           Existing paragraph 317YA(6)(e) provides that, if the things specified in the technical capability notice proposed to be varied relate to an interception agency, the assessors must give a copy of the report to the Ombudsman.

887.           This item would amend paragraph 317YA(6)(e) to provide that, if the interception agency is the ACIC a copy of the report must be given to the IGIS. Otherwise, a copy of the report must be given to the Ombudsman.

888.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 282: Subsection 317Z(4)

889.           This item would amend subsection 317Z(4). Section 317Z sets out matters in relation to the revocation of technical capability notices. Existing subsection 317Z(4) provides that if the Attorney-General revokes a technical capability notice that relates to an interception agency the Attorney-General must notify the Ombudsman that the notice has been revoked.

890.           This item would amend subsection 317Z(4) to provide that new subsection 317(4A) applies if the conditions in subsection 317Z(4) are met. This amendment is consequential to the insertion of new subsection 317Z(4A).

Item 283: Subparagraph 317Z(4)(b)(ii)

891.           This item would amend the punctuation in subparagraph 317Z(4)(b)(ii). This is a technical amendment consequential to the amendments to subsection 317Z(4) by the Bill.

Item 284: Subsection 317Z(4)

892.           This item would omit “the Attorney-General must, within 7 days after revoking the notice, notify the Commonwealth Ombudsman that the notice has been revoked.” from subsection 317Z(4).

893.           This amendment is consequential to the insertion of new subsection 317Z(4A) by item 285 of Schedule 1.

Item 285: After subsection 317Z(4)

894.           This item would insert new subsection 317Z(4A). Section 317Z sets out matters in relation to the revocation of technical capability notices. Subsection 317Z(4) (as amended by this Bill) would provide that if the Attorney-General revokes a technical capability notice that relates to an interception agency subsection 317Z(4A) will apply.

895.           New subsection 317Z(4A) would provide that if the interception agency is the ACIC the Attorney-General must notify the IGIS that the notice has been revoked. Otherwise, the Attorney-General must notify the Ombudsman.

896.           These amendments are consequential to the carve out the ACIC from the Ombudsman’s jurisdiction and give effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 286: Subsection 317Z(5)

897.           This item would omit “(4)” and substitute “(4A)” in subsection 317Z(5). This is a technical amendment consequential to the amendments to subsection 317Z(4) and the insertion of new subsection 317Z(4A) by the Bill.

Item 287: After subsection 317ZF(5)

898.           Section 317ZF provides that the unauthorised disclosure of information relating to technical assistance notices, technical capability notices, or technical assistance requests, or information that was obtained in accordance with such a request or notice, is an offence under the Telecommunications Act. Subsections 317ZF(3) to (17) provide for various authorised disclosures.

899.           This item would insert new subsections 317ZF(5AA) and (5AB).

900.           New subsection 317ZF(5AA) would provide that, if a technical assistance notice is given by the chief officer of an interception agency of a State or Territory, an IGIS official may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

901.           New subsection 317ZF(5AB) would provide that, if a technical assistance request is given by the chief officer of an interception agency of a State or Territory, an IGIS official may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

902.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 288: Subsection 317ZKA(2)

903.           This item would repeal and substitute subsection 317ZKA(2). Section 317ZKA sets out notification obligations in relation to declarations made under specified provisions of section 317ZK (regarding terms and conditions for technical assistance notices and technical capability notices). Existing subsection 317ZKA(2) provides that if the chief officer of an interception agency makes a declaration under the specified provisions of section 317ZK they must notify the Ombudsman of the making of the declaration.

904.           New subsection 317ZKA(2) would provide that if the interception agency is the ACIC, the chief officer must notify the IGIS when a declaration is made. Otherwise, the chief officer of an interception agency must notify the Ombudsman.

905.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 289: Subsection 317ZKA(4)

906.           This item would amend subsection 317ZKA(4). Section 317ZKA sets out notification obligations in relation to declarations made under specified provisions of section 317ZK (regarding terms and conditions for technical assistance notices and technical capability notices). Existing subsection 317ZKA(4) provides that if the Attorney-General makes such a declaration in relation to a technical capability notice that relates to an interception agency the Attorney-General must notify the Ombudsman of the making of the declaration.

907.           This item would amend subsection 317ZKA(4) to provide that new subsection 317ZKA(4A) applies if the conditions in subsection 317ZKA(4) are met. This amendment is consequential to the insertion of new subsection 317ZKA(4A) by item 292 of Schedule 1.

Item 290: Subparagraph 317ZKA(4)(b)(ii)

908.           This item would amend the punctuation in subparagraph 317ZKA(4)(b)(ii). This is a technical amendment consequential to the amendments to subsection 217ZKA(4) by the Bill.

Item 291: Subsection 317ZKA(4)

909.           This item would omit “the Attorney-General must, within 7 days after making the declaration, notify the Commonwealth Ombudsman of the making of the declaration.” from subsection 317ZKA(4).

910.           This amendment is consequential to the insertion of new subsection 317ZKA(4A) by item 292 of Schedule 1.

Item 292: After subsection 317ZKA(4)

911.           This item would insert new subsection 317ZKA(4A). Section 317ZKA sets out notification obligations in relation to declarations made under specified provisions of section 317ZK (regarding terms and conditions for technical assistance notices and technical capability notices). Subsection 317ZKA(4) (as amended by this Bill) would provide that if the Attorney-General makes such a declaration in relation to a technical capability notice that relates to an interception agency subsection 317ZKA(4A) will apply.

912.           New subsection 317ZKA(4A) would provide that if the interception agency is the ACIC the Attorney-General must notify the IGIS of the making of the declaration. Otherwise, the Attorney-General must notify the Ombudsman.

913.           These amendments are consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and give effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 293: Subsection 317ZKA(5)

914.           This item would omit “(4)” and substitute “(4A)” in subsection 317ZKA(5). This is a technical amendment consequential to the amendments to subsection 317ZKA(4) and the insertion of new subsection 317ZKA(4A) by the Bill.

Item 294: Subsection 317ZRB(1)

915.           This item would amend subsection 317ZRB(1). Section 317ZRB sets out matters in relation to the inspection of records. Subsection 317ZRB(1) provides that the Ombudsman may inspect the records of an interception agency to determine the extent of compliance with Part 15 of the Telecommunications Act.

916.           This item would amend subsection 317ZRB(1) to provide that the subsection does not apply to the ACIC. This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 295: Subsection 317ZRB(2)

917.           This item would amend subsection 317ZRB(2). Section 317ZRB sets out matters in relation to the inspection of records. Subsection 317ZRB(2) provides that the chief officer of an interception agency must ensure that officers of the agency give an Ombudsman official any assistance they reasonably require to exercise the power to inspect records conferred by subsection 317ZRB(1).

918.           This item would amend subsection 317ZRB(2) to provide that the subsection applies to an interception agency to which subsection (1) applies. This is a technical amendment consequential to the amendment to subsection 317ZRB(1) to exclude the ACIC from the application of this section.

Item 296: Subsection 317ZRB(2)

919.           This item would omit “conferred by subsection (1)” and substitute “conferred by that subsection” in subsection 317ZRB(2). This is a technical amendment consequential to the amendment by item 295 of Schedule 1.

Telecommunications (Interception and Access) Act 1979

Item 297: Section 59B (heading)

920.           This item would amend the heading for section 59B. The amended heading would read “Notification to Ombudsman or Inspector-General of Intelligence and Security in relation to Part 5.3 warrants”. This amendment reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC and would ensure the heading for section 59B accurately reflects the section’s provisions.

Item 298: Paragraphs 59B(1)(a) and (b)

921.           This item would repeal and substitute paragraphs 59B(1)(a) and (b). Section 59B sets out notification requirements in relation to Part 5.3 warrants (control order or extended supervision order warrants). Existing subsection 59B(1) provides that within 6 months after a Part 5.3 warrant being issued in response to an application by a Commonwealth agency, the chief officer of the agency must notify the Ombudsman that the warrant has been issued (59B(1)(a)) and give a copy of the warrant to the Ombudsman (59B(1)(b)).

922.           New paragraphs 59B(1)(a) and (b) would provide that if the agency is the ACIC, the chief officer must notify the IGIS that the warrant has been issued and give a copy of the warrant to the IGIS. Otherwise, the chief officer of an agency must notify the Ombudsman that the warrant has been issued and give a copy of the warrant to the Ombudsman.

923.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 299: Subsection 59B(2)

924.           Section 59B sets out notification requirements in relation to Part 5.3 warrants (control order or extended supervision order warrants). Subsection 59B(2) provides that the chief officer of a Commonwealth agency must notify the Ombudsman of any contraventions of the conditions, restrictions or provisions of the warrant.

925.           This item would amend subsection 59B(2) to omit “an officer of a Commonwealth agency” and substitute “an officer of the agency”. This is a technical amendment consequential to the carve out of the ACIC from the jurisdiction of the Ombudsman.

Item 300: Subsection 59B(2)

926.           Section 59B sets out notification requirements in relation to Part 5.3 warrants (control order or extended supervision order warrants). Subsection 59B(2) provides that the chief officer of a Commonwealth agency must notify the Ombudsman of any contraventions of the conditions, restrictions or provisions of the warrant.

927.           This item would amend subsection 59B(2) to provide that the chief officer of a Commonwealth agency must notify the Ombudsman or the IGIS (as the case requires) of any contraventions.

928.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and gives effect to the expansion of the IGIS’s jurisdiction to include all of the ACIC.

Item 301: Before subsection 83(1)

929.           Section 83 sets out the inspection requirements and powers for the Ombudsman in respect of each Commonwealth agency regarding records relating to interception.

930.           This item would insert new subsection 83(1AA) which would provide that section 83 applies to each Commonwealth agency except the ACIC.

931.           This item would also insert a note to clarify that inspections of the ACIC relating to the extent of compliance with the TIA Act are undertaken by the IGIS under the IGIS Act. This is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 302: At the end of subsection 84(1)

932.           Section 84 sets out the reporting requirements for the Ombudsman in respect to each Commonwealth agency about the results of the Ombudsman’s inspections under section 83.

933.           This item would insert a note at the end of subsection 84(1) clarifying that the Ombudsman does not report to the Minister in relation to the ACIC as the Ombudsman does not inspect the records of the ACIC under section 83.

934.           This amendment is consequential to the amendments to section 83 by the Bill and is intended to provide clarity about the Ombudsman’s jurisdiction.

Item 303: Before subsection 92A(1)

935.           Section 92A sets out what information may be exchanged between the Ombudsman and State inspecting authorities under the TIA Act. This item would insert a new subheading ‘Definitions’ before subsection 92A(1). This amendment is intended to improve the readability of section 92A.

Item 304: Subsection 92A(1) (at the end of the definition of State inspecting authority )

936.           Section 92A sets out what information may be exchanged between the Ombudsman and State inspecting authorities under the TIA Act. Subsection 92A(1) defines certain terms for application in this section.

937.           This item would amend the definition of ‘State inspecting authority’. The existing definition provides that a State inspecting authority, in relation to a State agency, means the authority that, under the law of the State concerned, has the function of making inspections of the kind referred to in paragraph 35(1)(h) of the TIA Act.

938.           This item would insert “of this Act, or section 9A of the Inspector-General of Intelligence and Securities Act 1986 , when the State agency is exercising powers under the law of that State that is of a similar nature to this Act” at the end of the definition. This would provide that the definition of ‘State inspecting authority’ also includes an authority that has the function of making inspections of a similar kind to those provided for in section 9A of the IGIS Act when exercising powers under the law of that State that are of a similar nature to section 9A of the IGIS Act.

939.           This is consequential to the expansion of the IGIS’s jurisdiction to include all of the ACIC and is intended to reflect that the IGIS may use its inspection powers under section 9A of the IGIS Act to inspect the records of the ACIC to determine the extent of compliance with the TIA Act.

Item 305: Before subsection 92A(2)

940.           Section 92A sets out what information may be exchanged between the Ombudsman and State inspecting authorities under the TIA Act. This item would insert a new subheading ‘Exchange of information between Ombudsman and State inspecting authorities’ before subsection 92A(2). This amendment is intended to improve the readability of section 92A.

Item 306: At the end of section 92A

941.           Section 92A sets out what information may be exchanged between the Ombudsman and State inspecting authorities under the TIA Act. This item would insert:

·          a new subheading ‘Exchange of information between IGIS and State inspecting authorities’, and

·          new subsections 92A(5)-(7).

942.           The new subheading is intended to clarify that subsections 92A(5)-(7) apply only to the exchange of information between the IGIS and State inspecting authorities.

943.           New subsection 92A(5) would provide that the Inspector-General may give information to the relevant State inspecting authority if the information relates to a State agency, was obtained by an IGIS official under the IGIS Act, and relates to the use of powers under the TIA Act by an intelligence agency (within the meaning of the IGIS Act).

944.           New subsection 92A(6) would provide that the IGIS may only give information to an authority under subsection 92A(5) if the IGIS is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to a State agency.

945.           New subsection 92A(7) would provide that the IGIS may receive information from a State inspecting authority that relates to the use of powers under the TIA Act by an intelligence agency (within the meaning of the IGIS Act), and is relevant to the performance of the IGIS’s functions under the IGIS Act.

946.           These amendments are consequential to the expansion of the IGIS’s jurisdiction and are intended to ensure that the IGIS is able to exchange information with State inspecting authorities where appropriate.

Item 307: Section 107G (paragraph beginning “The Ombudsman has functions”)

947.           Section 107G provides a simplified outline of Part 3-1A of the TIA Act, which deals with preserving stored communications.

948.           This outline currently explains that the Ombudsman has functions in relation to preservation notices given by issuing agencies (other than ASIO) and the IGIS has functions in relation to preservation notices given by ASIO.

949.           This item would amend the paragraph beginning “The Ombudsman has functions”, in the simplified outline, to provide that the Ombudsman has functions in relation to preservation notices given by issuing agencies (other than the ACIC and ASIO) and the IGIS has functions in relation to preservation notices given by the ACIC and ASIO.

950.           This reflects the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 308: Subparagraph 151(3)(b)(ii)

951.           Section 151 sets out the obligations of a chief officer of a criminal law-enforcement agency to keep records of certain matters for a specified period. Relevantly, subsection 151(3) provides that the period for which a chief officer must cause a particular item to be kept in the agency’s records under subsection 151(1) is the period starting when the item came into existence and ending of the earlier of:

·          when three years have elapsed since the item came into existence, or

·          when the Ombudsman gives a report to the Minister under section 186J of the TIA Act that is about records that include the item.

952.           This item would amend subparagraph 151(3)(b)(ii), so that agencies are required to retain records under subsection 151(3)(b) until the earlier of:

·          when three years have elapsed since the item came into existence, or

·          if the Ombudsman is required to give a report to the Minister under section 186J that is about records that include the item - when the Ombudsman gives the report.

953.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. As the Ombudsman would no longer have any jurisdiction over the ACIC, there would be no circumstances under which a report by the Ombudsman under section 186J of the TIA Act would relate to the ACIC. Therefore, the ACIC would be required to retain records until three years have elapsed since the item came into existence.

Item 309: Subsection 185D(5) (heading)

954.           Section 185D sets out notification requirements in relation to authorisations intended to identify media sources. Subsection 185D(5) details notification requirements if a journalist information warrant is issued to an enforcement agency.

955.           This item would repeal the existing heading ‘Enforcement agencies’ and insert a new heading ‘Enforcement agencies—general’. This is intended to clarify that the information in the subsections following the heading apply generally to all enforcement agencies (as defined by section 176A of the TIA Act).

956.           This amendment is intended to clarify the structure of section 185D.

Item 310: Before paragraph 185D(5)(a)

957.           Section 185D sets out notification requirements in relation to authorisations intended to identify media sources. Subsection 185D(5) details notification requirements if a journalist information warrant is issued to an enforcement agency. Paragraph 185D(5)(a) provides that, if the enforcement agency was the AFP, the Commissioner of Police must give copies of the warrant to the Minister and the Ombudsman, and the Minister must cause the PJCIS to be notified of the issuing of the warrant. Paragraph 185D(5)(b) provides that in all other cases, the chief officer of the agency must give a copy of the warrant to the Ombudsman.

958.           This item would insert new paragraph 185D(5)(aa) which would provide that, if the enforcement agency is the ACIC, the chief officer of the ACIC must give copies of the warrant to the Minister and the IGIS, and the Minister must cause the PJCIS to be notified of the issuing of the warrant.

959.           This amendment reflects the expansion of the jurisdictions of the IGIS and the PJCIS to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

Item 311: Subsection 185D(6)

960.           Section 185D sets out notification requirements in relation to authorisations intended to identify media sources. Existing subsection 185D(6) provides that, if an authorisation under Division 4 of Part 4-1 of the TIA Act (which relates to authorisations for enforcement agencies to access telecommunications data) is made under the authority of a warrant, the chief officer of the agency must give a copy of the authorisation to the Ombudsman.

961.           This item would repeal and substitute subsection 185(6). New subsection 185(6) would provide that, if the agency is the ACIC a copy of the authorisation must be provided to the IGIS. Otherwise, the chief officer of an enforcement agency must provide a copy of the authorisation to the Ombudsman.

962.           This amendment reflects the expansion of the IGIS’s jurisdiction to include all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction.

963.           This item would also insert a new heading at the end of subsection 185D(6) ‘Enforcement agencies - reports relating to Australian Federal Police’. This is intended to clarify that subsection 185D(7) and (8) apply only to reports relating to the AFP.

Item 312: At the end of section 185D

964.           Section 185D sets out notification requirements in relation to authorisations intended to identify media sources. This item would insert:

·          a new heading ‘Enforcement agencies - reports relating to ACC’ at the end of section 185D, and

·          new subsections 185D(9) and (10).

965.           The new heading is intended to clarify that subsections 185D(9) and (10) apply only to reports relating to the ACIC.

966.           New subsection 185D(9) would provide that, if the IGIS gives the Minister a report under sections 22 or 25A of the IGIS Act and the report relate (wholly or partly) to one or both of a journalist information warrant issued to the ACIC or one or more authorisations, referred to in subsection (6) of section 185D, that were made by one or more authorised officers of the ACIC, the Minister must cause a copy of the report to be given to the PJCIS.

967.           New subsection 185D(10) would provide that the PJCIS may request a briefing from the Inspector-General on a journalist information warrant or an authorisation or authorisations to which a report referred to in paragraph 185D(9)(b) relates.

968.           These amendments reflect the expansion of the jurisdictions of the IGIS and the PJCIS to include all of the ACIC and are intended to ensure the IGIS and PJCIS have access to information that is necessary for the purposes of performing their oversight functions.

Item 313: Subparagraph 186A(3)(b)(ii)

969.           Section 186A sets out the obligations of a chief officer of an enforcement agency to keep records of certain matters for a specified period. Relevantly, subsection 186A(3) provides that the period for which a chief officer must cause a particular item to be kept in the agency’s records under subsection 186A(1) is the period starting when the item came into existence and ending of the earlier of:

·          when three years have elapsed since the item came into existence, or

·          when the Ombudsman gives a report to the Minister under section 186J of the TIA Act that is about records that include the item.

970.           This item would amend subparagraph 186A(3)(b)(ii), so that agencies are required to retain records under subsection 186A(3)(b) until the earlier of:

·          when three years have elapsed since the item came into existence, or

·          if the Ombudsman is required to give a report to the Minister under section 186J that is about records that include the item - when the Ombudsman gives the report.

971.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to all of the ACIC and the subsequent carve out of the ACIC from the Ombudsman’s jurisdiction. As the Ombudsman would no longer have any jurisdiction over the ACIC, there would be no circumstances under which a report by the Ombudsman under section 186J of the TIA Act would relate to the ACIC. Therefore, the ACIC would be required to retain records until when three years have elapsed since the item came into existence.

Item 314: Subsection 186B(1)

972.           Section 186B sets out the inspection requirements and powers for the Ombudsman regarding stored communications and telecommunications data. Subsection 186B(1) provides that the Ombudsman must inspect the records of an enforcement agency to determine the extent of compliance with the stored communications and telecommunications data provisions of the TIA Act.

973.           This item would amend subsection 186B(1) to provide that the Ombudsman must inspect the records of an enforcement agency except the ACIC or any agency, or part of an agency performing any functions, prescribed by regulations made under the Ombudsman Act for the purposes of subsection 186B(1B) of the TIA Act (inserted by item 317 of Schedule 1). This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and to the insertion of new subsection 186B(1B).

Item 315: Paragraph 186B(1)(b)

974.           Section 186B sets out the inspection requirements and powers for the Ombudsman regarding stored communications and telecommunications data. Subsection 186B(1) provides that the Ombudsman must inspect the records of an enforcement agency to determine the extent of compliance with the stored communications and telecommunications data provisions of the TIA Act.

975.           This item would amend paragraph 186B(1)(b) to provide that the Ombudsman must inspect the records of a criminal law-enforcement agency except the ACIC or any agency, or part of an agency performing any functions, prescribed by regulations made under the Ombudsman Act for the purposes of subsection 186B(1B) of the TIA Act (inserted by item 317 of Schedule 1), to determine the extent of compliance with Chapter 3 (which deals with stored communications) of the TIA Act.

976.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and to the insertion of new subsection 186B(1B).

Item 316: Paragraph 186B(1A)(b)

977.           Section 186B sets out the inspection requirements and powers for the Ombudsman regarding stored communications and telecommunications data. Subsection 186B(1A) provides that the Ombudsman may inspect records of an enforcement agency to determine compliance with Part 15 of the Telecommunications Act if the agency has records relating to the performance of a Part 15 function or power, in connection with a stored communications warrant or authorisation.

978.           This item would amend paragraph 186B(1A)(b) to provide that under this subsection the Ombudsman may inspect records of an enforcement agency except the ACIC or any agency, or part of an agency performing any functions, prescribed by regulations made under the Ombudsman Act for the purposes of subsection 186B(1B) of the TIA Act (inserted by item 317 of Schedule 1).

979.           This amendment is consequential to the carve out of the ACIC from the Ombudsman’s jurisdiction and to the insertion of new subsection 186B(1B).

Item 317: After subsection 186B(1A)

980.           Section 186B sets out the inspection requirements and powers for the Ombudsman regarding stored communications and telecommunications data. Subsection 186B(1A) provides that the Ombudsman may inspect records of an enforcement agency to determine compliance with Part 15 of the Telecommunications Act if the agency has records relating to the performance of a Part 15 function or power, in connection with a stored communications warrant or authorisation.

981.           This item would insert new subsection 186B(1B) which would provide that regulations made under the Ombudsman Act may prescribe certain agencies, or functions of certain agencies, for the purposes of this subsection.

982.           This amendment is consequential to the expansion of the IGIS’s jurisdiction to include the intelligence functions of Home Affairs. To minimise overlap without creating gaps in oversight, it may be necessary to carve out elements of Home Affairs’ functions from the Ombudsman’s jurisdiction. As Home Affairs’ intelligence functions will be defined in regulations under the IGIS Act, it is appropriate to also include the equivalent carve out in regulations under the Ombudsman Act so that both can be updated in the event that there are any changes to Home Affairs’ intelligence functions. 

Item 318: Section 186F (heading)

983.           Section 186F sets out what information may be exchanged between the Ombudsman and State or Territory inspecting authorities under the TIA Act.

984.           This item would amend the heading for section 186F to insert a reference to the IGIS. This is intended to reflect the amendments to section 186F (by item 320 of Schedule 1) that will provide that the IGIS may also exchange certain information with State or Territory inspecting authorities.

Item 319: Before subsection 186F(1)

985.           Section 186F sets out what information may be exchanged between the Ombudsman and State or Territory inspecting authorities under the TIA Act. This item would insert new subheading ‘Exchange of information between Ombudsman and State inspecting authorities’ before subsection 186F(1).

986.           The new subheading intends to clarify that subsections 186F(1)-(3) apply only to the exchange of information between the Ombudsman and State or Territory inspecting authorities. This amendment is intended to clarify the structure of the section.

Item 320: At the end of section 186F

987.           Section 186F sets out what information may be exchanged between the Ombudsman and State or Territory inspecting authorities under the TIA Act. This item would insert:

·          a new subheading ‘Exchange of information between Inspector-General of Intelligence and Security and State inspecting authorities’, and

·          new subsections 186F(4)-(7).

988.           The new subheading is intended to clarify that subsections 186F(4)-(7) apply only to the exchange of information between the IGIS and State or Territory inspecting authorities.

989.           New subsection 186F(4) would provide that the Inspector-General may give, to a State or Territory inspecting authority, information that an IGIS official has obtained under the IGIS Act relating to that State or Territory inspecting authority about the performance of functions of an intelligence agency (within the meaning of the IGIS Act) and its officers relating to:

·          Chapter 3 or 4 of the TIA Act, or

·          Part 15 of the Telecommunications Act in relation to the performance of a function, or the exercise of a power, conferred by that Part of that Act in connection with a stored communications warrant or an authorisation under Division 3, 4 or 4A of Part 4-1 of the TIA Act.