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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
AMENDMENT BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of
the Special Minister of State for the Public Service and Integrity,
the Honourable Gary Gray AO MP)
INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
AMENDMENT BILL 2011
Outline
The Inspector-General of Intelligence and Security Amendment Bill ('the
Bill') contains amendments to the Inspector-General of Intelligence and
Security Act 1986 ('the Act') intended to update and modernise the
operation of the Act.
The amendments will:
. recognise expressly the role of the Inspector-General of
Intelligence and Security (IGIS) in assisting the Government to
provide the Parliament and the public with assurances that the use
of special powers and capabilities by the Australian Intelligence
Community (AIC) is subject to scrutiny;
. provide the IGIS with the capacity to undertake own-motion
preliminary inquiries;
. extend the capacity of the IGIS to undertake own-motion full
inquiries;
. provide the IGIS with the capacity to delegate the powers of the
Office of the IGIS, subject to Ministerial approval;
. provide the IGIS with the capacity to release material to
Royal Commissions, at the discretion of the Government, to assist
Royal Commissions, while ensuring the effective operation of
limitations on any unauthorised release of sensitive or classified
material by current or former IGIS officers to a court, coronial
inquiry or Royal Commission; and
. update and modernise a number of provisions of the Act, while not
changing substantively the role, powers or functions of the IGIS.
The amendments are primarily targeted at updating and modernising the
operation of the Act, including addressing issues which have arisen or
become evident since the legislation was originally enacted.
The Bill will ensure the IGIS is able to undertake the work of the Office
of the IGIS more effectively and efficiently.
The Bill will also strengthen the accountability and oversight framework
governing the activities of the agencies that make up the AIC, and will
provide greater assurance regarding the legality and propriety of their
activities.
Financial Impact Statement
The proposed amendments have no financial impact.
Notes on Clauses
List of abbreviations used
ASIS Australian Secret Intelligence Service
DIGO Defence Imagery and Geospatial Organisation
DSD Defence Signals Directorate
IGIS Inspector-General of Intelligence and Security
Clause 1: Short title
This clause is a formal clause which provides the citation of the Bill.
Clause 2: Commencement
The table in this clause sets out when provisions in the Bill will
commence. The table provides that sections 1 to 3 (and anything else not
covered in the table) will commence on the day on which the Act receives
the Royal Assent. Schedules 1 and 2 will commence the day after which the
Act receives the Royal Assent.
Clause 3: Schedule(s)
This clause provides that each Act that is specified in a Schedule is
amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1 - Amendment of the Inspector-General of Intelligence and
Security Act 1986
Clause 1: At the end of section 4
This clause provides that the object of the Act includes assisting the
Government in assuring the Parliament and the public that intelligence and
security matters relating to Commonwealth agencies are open to scrutiny, in
particular the activities of intelligence agencies.
Clause 2: Paragraph 8(2)(c)
This clause provides the IGIS with the capacity to undertake own-motion
full inquiries into the effectiveness and appropriateness of the procedures
of ASIS, DIGO or DSD relating to the legality or propriety of the agency's
activities.
Clause 3: Subsections 8(5), (6) and (7)
This clause simplifies the operation of subsections 8(5), (6) and (7),
which relate to the scope of the IGIS's authority to inquire into
employment matters concerning intelligence agency employees, and clarifies
the inquiry functions of the IGIS covered by these provisions, while not
altering the substantive role, powers or functions of the IGIS in relation
to the intelligence agencies.
Clause 4: Section 14
This clause takes account of the introduction of a proposed new subsection
14(2), which is covered by Clause 5.
Clause 5: At the end of section 14
This clause provides the IGIS with the capacity to undertake own-motion
preliminary inquiries of the head of an intelligence agency to determine
whether the IGIS is authorised to proceed with a full inquiry into an
action of the agency or, if the IGIS is so authorised, whether the IGIS
should proceed with such an inquiry. This provides the IGIS with an option
of a more limited preliminary inquiry into a matter prior to any decision
to proceed, or not, with a full inquiry.
Clause 6: After subsection 22(4)
This clause provides that if a copy, or a version of a copy, of an IGIS
report relating to an inquiry into a Commonwealth agency is provided to the
responsible Minister, the IGIS must give the Prime Minister a copy or
version where the Prime Minister requests it. The clause also provides
that the IGIS may give the Prime Minister a copy or version where the IGIS
considers it appropriate to do so.
Clause 7: Subsection 32(1)
This clause provides for the employment by the IGIS of a person to whom
some IGIS functions and powers can be delegated, subject to Ministerial
approval, which is covered by Clauses 8 and 9.
Clause 8: At the end of section 32
This clause addresses the employment by the IGIS of a person to whom some
IGIS functions and powers can be delegated, subject to Ministerial
approval.
Proposed subsection 32(3) provides for the employment by the IGIS of a
person to assist the IGIS perform functions and exercise powers under
Division 3 or 4 of Part II of the Act in relation to a particular inquiry,
and specifies that the purpose of this clause is to cover the employment of
a person for delegation in accordance with proposed new section ^32AA,
which is covered by Clause 9.
Proposed subsection 32(4) requires that the responsible Minister must first
be satisfied that the employment of a person to assist the IGIS in relation
to a particular inquiry is necessary and that the person to be employed has
appropriate expertise for the inquiry.
Proposed subsection 32(5) requires that the IGIS must determine in writing
the terms and conditions of employment.
Proposed subsection 32(6) requires that unless the responsible Minister
otherwise agrees in relation to a particular inquiry the person to be
employed must be appropriately cleared for security purposes (to at least
the same level, and at the same frequency, as staff members of ASIS).
Clause 9: At the end of Part III
This clause addresses the delegation by the IGIS of some IGIS functions and
powers.
Proposed subsection ^32AA(1) provides that the IGIS may delegate all of his
or her functions or powers as set out under Division 3 or 4 of Part II of
the Act to a person referred to in proposed new subsection 23(3) for the
purposes of a particular inquiry. The delegation must be in writing (an
instrument of delegation).
Proposed subsection ^32AA(2) requires that a person to whom the IGIS
delegates any of his or her functions and powers must, in exercising those
functions and powers, comply with any written directions of the IGIS.
Proposed subsection ^32AA(3) requires that a delegate must, if asked,
produce for inspection the instrument of delegation (or a copy of it) to
any person affected by the delegate's use of his or her functions and
powers.
Clause 10: Paragraphs 34(1)(a), (1AA)(a) and (1AB)(a)
This clause clarifies that the secrecy provisions of the Act are intended
to prevent any unauthorised disclosure by a current or former IGIS officer
of sensitive or classified material, including to a court or tribunal.
Clause 11: Subsection 34(5)
Consistent with Clause 10 above, this clause clarifies that no person must
be required by a court to provide documents or information where the
secrecy provisions of the Act prohibit the person from making such
disclosure.
Clause 12: Paragraph 34(5)(a)
This clause rectifies a drafting oversight that arose when a new
requirement was introduced by the Freedom of Information (Removal of
Conclusive Certificates and Other Measures) Act 2009 for the IGIS to give
evidence in Information Commissioner reviews in certain circumstances,
requiring a consequential amendment to be made to paragraph 34(5)(a).
Clause 13: Before paragraph 34(5)(c)
This clause rectifies an unintended inconsistency in subsection 34(5)
regarding the treatment of 'documents' as opposed to 'information' that
arose when the subsection was repealed and substituted by Schedule 4 to the
Freedom of Information (Removal of Conclusive Certificates and Other
Measures) Act 2009, and then amended by Schedule 6 to the Freedom of
Information Amendment (Reform) Act 2010.
Currently, paragraphs 34(5)(c), (ca), (d) and (e) deal with circumstances
in which a person can be required to divulge or communicate information,
but there are no equivalent provisions relating to documents. Proposed
paragraphs 34(5)(ba), (bb), (bc) and (bd) correct this drafting oversight.
Clause 14: Subsection 34A(1)
This clause takes account of the proposed new definition of a Commission,
which is covered by Clause 15.
Clause 15: Subsection 34A(7) (definition of Commission)
This clause repeals the prevailing definition of Commission as meaning the
1994 Commission of inquiry into matters relating to the ASIS by the
Honourable Gordon Jacob Samuels AC QC and Michael Henry Codd AC ('the
Samuels-Codd Royal Commission'), and substitutes with a new definition of
Commission as meaning a Royal Commission (within the meaning of the Royal
Commissions Act 1902) prescribed for the purposes of proposed subsection
34A(7).
The prevailing definition was made by amendment to the Act to enable the
IGIS to cooperate with the Samuels-Codd Royal Commission only. The
proposed new definition is intended to enable the IGIS to release material
to any Royal Commission where it is expressly prescribed in regulations as
authorised to seek evidence from, or cooperate with, the IGIS, in order to
assist the work of prescribed Royal Commissions.
Schedule 2 - Consequential amendment
Clause 1: Section 5 (paragraph (b) of the definition of IGIS official)
This clause makes a consequential amendment to the Anti-Money and Counter-
Terrorism Financing Act 2006 to update the definition of 'IGIS official' in
that Act in accordance with the amendments proposed in this Bill.