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Part 3—Director-General of National Intelligence and staff of ONI

Part 3 Director-General of National Intelligence and staff of ONI

Division 1 Functions and powers of the Director-General

15   Director-General of National Intelligence

             (1)  There is to be a Director-General of National Intelligence.

Note:          In this Act, Director-General means the Director-General of National Intelligence: see section 4.

             (2)  The Director-General has a leadership role in the national intelligence community and may, as part of that role, provide advice relating to the appointment or engagement of persons in senior leadership roles within the national intelligence community.

             (3)  To avoid doubt, subsection (2) does not require that the Director-General’s advice be sought in relation to any appointment or engagement of a person in a senior leadership role within the national intelligence community.

16   Functions of the Director-General

             (1)  The functions of the Director-General are:

                     (a)  subject to any direction by the Prime Minister under section 12, to ensure the proper, efficient and effective performance of ONI’s functions; and

                     (b)  to manage ONI; and

                     (c)  to endeavour to respond to requests under section 22 for reports or assessments; and

                     (d)  if the Director-General considers that an assessment made by ONI should be a national assessment but the National Assessments Board does not, or vice versa, to decide whether the assessment is a national assessment; and

                     (e)  any other functions conferred on the Director-General by this Act or any other law of the Commonwealth.

             (2)  The Director-General must inform the Prime Minister:

                     (a)  if the Director-General decides that an assessment is not to be a national assessment under paragraph (1)(d); and

                     (b)  of the matter or matters on which there is a difference of opinion in relation to the assessment.

             (3)  The Director-General has power to do all things necessary or convenient to be done for or in connection with the performance of the Director-General’s functions.

             (4)  The Director-General must perform the Director-General’s functions and powers in ways that do not inappropriately impact on, or encroach on the functions, powers and responsibilities of:

                     (a)  an intelligence agency; or

                     (b)  an agency with an intelligence role or function; or

                     (c)  a Department in relation to an intelligence agency or agency with an intelligence role or function in the same portfolio as the Department; or

                     (d)  a person who holds any office or appointment under a law of the Commonwealth, being an office or appointment that relates to an agency within the national intelligence community or the national intelligence community more generally.

             (5)  In particular, the Director-General’s functions and powers do not include the following:

                     (a)  directing an intelligence agency or an agency with an intelligence role or function to:

                              (i)  carry out operational activities; or

                             (ii)  allocate resources, or use particular methods, when carrying out such operational activities;

                     (b)  conducting inquiries into individual complaints about the activities of:

                              (i)  an intelligence agency; or

                             (ii)  an agency with an intelligence role or function;

                     (c)  directing the content of, or conclusions reached in, any intelligence communicated, or any advice given or assessments or reports prepared, by:

                              (i)  an intelligence agency; or

                             (ii)  an agency with an intelligence role or function;

                     (d)  inquiring into the legality, propriety or integrity of activities undertaken by:

                              (i)  an intelligence agency; or

                             (ii)  an agency with an intelligence role or function.

             (6)  To avoid doubt, the reference to directing in paragraphs (5)(a) and (c) is not limited to directions given by the Director-General under section 20.

17   Prime Minister to be kept informed on matters relating to the national intelligence community

                   The Director-General must keep the Prime Minister informed on matters relating to the national intelligence community.

18   Leader of Opposition to be kept informed on significant intelligence matters

                   The Director-General must consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping the Leader of the Opposition informed on matters relating to intelligence that the Director-General considers significant.

19   Special responsibilities of the Director-General

                   The Director-General must take all reasonable steps to ensure that:

                     (a)  ONI is kept free from any influences or considerations not relevant to its functions; and

                     (b)  nothing is done that might lend colour to any suggestion that ONI is concerned to further or protect the interests of any particular section of the community, or with any matters other than the performance of its functions.

20   Director-General may give directions

             (1)  If the Director-General considers it necessary to enable ONI to perform its function under paragraph 7(1)(a) (to lead the national intelligence community), the Director-General may give written directions to:

                     (a)  for the national intelligence community as a whole—the head of each agency within the community; or

                     (b)  for a class of agencies within the national intelligence community—the head of each agency within the class; or

                     (c)  the head of a particular intelligence agency or agency with an intelligence role or function.

Note:          The Director-General and ONI must perform functions in ways that do not inappropriately impact on, or encroach on, the functions and responsibilities of intelligence agencies, see sections 10 and 16. In particular, for matters on which directions may not be given: see subsections 10(2) and 16(5).

             (2)  Before giving a direction, the Director-General must consult with:

                     (a)  the head of any agency mentioned in subsection (1) that would be affected by the proposed direction; and

                     (b)  if AGO would be affected by the proposed direction—the head of AGO and the Secretary of the Defence Department; and

                     (c)  if DIO would be affected by the proposed direction—the head of DIO and the Secretary of the Defence Department.

             (3)  A direction given under this section in relation to an agency mentioned in subsection (1) has no effect to the extent that:

                     (a)  the direction is inconsistent with a direction given to the agency or head of the agency by the Minister responsible for the agency; or

                     (b)  the direction is inconsistent with a statutory rule made by the Minister responsible for the agency and applicable to the agency; or

                     (c)  compliance with the direction would be inconsistent with a guideline given to the agency or head of the agency by the Minister responsible for the agency; or

                     (d)  compliance with the direction would be directly inconsistent with obligations imposed on the agency or head of the agency by any other law of the Commonwealth.

             (4)  Failure to comply with a direction given under this section cannot result in any sanction or penalty being imposed on:

                     (a)  an intelligence agency; or

                     (b)  an agency with an intelligence role or function; or

                     (c)  the head of an intelligence agency or an agency with an intelligence role or function.

Note:          See also subsection 9(2).

             (5)  A direction given under this section is not a legislative instrument.

21   Director-General may issue guidelines

             (1)  To assist ONI’s performance of its functions or the Director-General’s performance of the Director-General’s functions, the Director-General may, by written notice to the heads of the agencies within the national intelligence community, issue guidelines to be followed in relation to matters relevant to, or affecting:

                     (a)  the national intelligence community as a whole; or

                     (b)  a class of agencies within the national intelligence community.

Note:          The Director-General and ONI must perform functions in ways that do not inappropriately impact on, or encroach on, the functions and responsibilities of intelligence agencies: see sections 10 and 16. In particular, for matters on which guidelines may not be issued: see subsections 10(2) and 16(5).

             (2)  Before issuing guidelines, the Director-General must consult with:

                     (a)  the heads of agencies within the national intelligence community that would be affected by the proposed guidelines; and

                     (b)  if AGO would be affected by the proposed guidelines—the head of AGO and the Secretary of the Defence Department; and

                     (c)  if DIO would be affected by the proposed guidelines—the head of DIO and the Secretary of the Defence Department.

             (3)  Failure to comply with guidelines issued under this section cannot result in any sanction or penalty being imposed on:

                     (a)  an intelligence agency; or

                     (b)  an agency with an intelligence role or function; or

                     (c)  the head of an intelligence agency or an agency with an intelligence role or function.

Note:          See also subsection 9(2).

             (4)  Guidelines issued under this section are not a legislative instrument.

22   Requests for reports or assessments

                   For the purpose of obtaining assistance in forming policies or plans by the Commonwealth Government, a Minister or prescribed Commonwealth officer may request that ONI prepare a report or make an assessment in accordance with paragraph 7(1)(c) or (d).

23   Consultation with National Assessments Board

             (1)  The Director-General must consult the National Assessments Board in relation to each national assessment made by ONI, and if practicable, before providing the assessment.

             (2)  If there is a significant difference of opinion between the Director-General and the National Assessments Board in relation to a national assessment, the Director-General and the Board must endeavour to reach agreement.

             (3)  If the Director-General and the National Assessments Board are unable to reach agreement, the Director-General must give a statement to each person to whom the national assessment is provided that sets out the matter on which there is a difference of opinion.

Division 2 Appointment of the Director-General

24   Appointment

             (1)  The Director-General is to be appointed by the Governor-General by written instrument, on a full-time basis.

Note:          The Director-General may be reappointed: see section 33AA of the Acts Interpretation Act 1901 .

             (2)  Before a recommendation is made to the Governor-General for the appointment of a person as the Director-General, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.

25   Term of appointment

                   The Director-General holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

26   Acting appointments

             (1)  The Prime Minister may, by written instrument, appoint a person to act as the Director-General:

                     (a)  during a vacancy in the office of Director-General (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Director-General:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments: see sections 33AB and 33A of the Acts Interpretation Act 1901 .

             (2)  Before the appointment of a person under subsection (1) to act as the Director-General, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives, unless it is impracticable to do so.

Division 3 Terms and conditions of appointment

27   Remuneration and allowances

             (1)  The Director-General is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director-General is to be paid the remuneration that is prescribed by the general rules.

             (2)  The Director-General is to be paid the allowances that are prescribed by the general rules.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

28   Leave of absence

             (1)  The Director-General has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Prime Minister may grant the Director-General leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Prime Minister determines.

29   Outside employment

                   The Director-General must not engage in paid work outside the duties of the Director-General’s office without the Prime Minister’s approval.

30   Resignation

             (1)  The Director-General may resign the Director-General’s appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

31   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Director-General:

                     (a)  for misbehaviour; or

                     (b)  if the Director-General is unable to perform the duties of the Director-General’s office because of physical or mental incapacity.

             (2)  The Governor-General may terminate the appointment of the Director-General if:

                     (a)  the Director-General:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with the Director-General’s creditors; or

                            (iv)  makes an assignment of the Director-General’s remuneration for the benefit of the Director-General’s creditors; or

                     (b)  the Director-General is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Director-General engages, except with the Prime Minister’s approval, in paid work outside the duties of the Director-General’s office (see section 29); or

                     (d)  the Director-General fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.

32   Other terms and conditions

                   The Director-General holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

Division 4 Staff of ONI

33   Staff

             (1)  The staff of ONI are to be:

                     (a)  persons engaged under the Public Service Act 1999 ; and

                     (b)  such other persons, if any, as the Director-General considers necessary for the performance of ONI’s functions.

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the Director-General and the APS employees assisting the Director-General together constitute a Statutory Agency; and

                     (b)  the Director-General is the Head of that Statutory Agency.

Staff of ONI who are not APS employees

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

34   Consultants

                   The Director-General may, on behalf of the Commonwealth, engage consultants to assist in the performance of ONI’s functions.

35   Secondment of ONI employees

Secondment

             (1)  The Director-General may, in writing, arrange for a member of ONI’s staff to be seconded for a specified period to a body or organisation whether within or outside Australia.

Termination of secondment

             (2)  The Director-General may at any time, by notice given to the body or organisation to which the member of ONI’s staff is seconded under subsection (1), terminate the secondment.

36   Secondment of persons to ONI

             (1)  The Director-General may, by written agreement with a body or organisation (whether inside or outside Australia), arrange for a person who is an officer, employee or other member of staff of the body or organisation to be made available to ONI to perform services in connection with the performance of its functions or the exercise of its powers.

             (2)  The terms and conditions (including remuneration and allowances) applicable to a person performing services under an agreement are those specified in the agreement.