House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

GENERAL OUTLINE

1. The Bill would amend the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure that the IGIS's enabling legislation is adapted to contemporary circumstances and supports appropriate information sharing. This includes amendments to clarify and modernise drafting expressions, remove redundant provisions, and enhance the Inspector-General's oversight functions and powers. The amendments would also implement recommendations 172 and 174 of the Comprehensive Review of the Legal Framework of the National Intelligence Community to prevent the head or deputy head of an agency within the IGIS's jurisdiction from being appointed as the Inspector-General immediately after serving in that position, and to allow the IGIS to consider employment related grievances for staff employed under the Office of National Intelligence Act 2018.

2. Part 1 of Schedule 1 of the Bill provides the main amendments to the IGIS Act to improve and streamline IGIS reporting and information sharing procedures, and to clarify and modernise drafting expressions and remove redundant provisions.

3. Part 2 of Schedule 1 of the Bill contains consequential amendments to other Commonwealth legislation specifically to the:

•

Australian Human Rights Commission Act 1986

•

Australian Security Intelligence Organisation Act 1979

•

Crimes Act 1914

•

Criminal Code Act 1995

•

Income Tax Assessment Act 1997

•

Intelligence Services Act 2001

•

Law Enforcement Integrity Commissioner Act 2006

•

Office of National Intelligence Act 2018

•

Ombudsman Act 1976

•

Privacy Act 1988

•

Public Interest Disclosure Act 2013

•

Surveillance Devices Act 2004

•

Taxation Administration Act 1953

•

Telecommunications Act 1997

•

Telecommunications (Interception and Access) Act 1979

4. The amendments to these Acts ensure that information that is protected by secrecy offences under respective legislation can be disclosed to IGIS officials performing duties or functions, or exercising powers, as IGIS officials. This supports the Inspector-General's oversight functions by ensuring IGIS officials have full access to information, and that persons are able to voluntarily disclose information to IGIS officials without breaching secrecy obligations.

5. Schedule 2 of the Bill contains contingent amendments resulting from the National Anti-Corruption Commission Bill 2022 which is yet to be passed.

6. Schedule 3 of the Bill contains application and transitional provisions.

FINANCIAL IMPACT

7. The Bill has nil financial impacts.

Statement of Compatibility with Human Rights

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

Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022

1. 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

2. The Bill amends the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure that the legislation governing the Inspector-General of Intelligence and Security (IGIS) is adapted to reflect contemporary circumstances. This includes technical amendments to clarify and modernise drafting expressions and remove redundant provisions. It also provides amendments to enhance the IGIS's oversight functions and powers . The Bill makes a number of consequential amendments to other Commonwealth legislation along with contingent amendments given the National Anti-Corruption Commission Bill 2022 is yet to be passed.

3. These measures are designed to enhance the IGIS's oversight of the agencies within its existing jurisdiction.

Human rights implications

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

•

the prohibition on interference with privacy under article 17

•

the right to minimum guarantees in criminal proceedings under article 14(3), and

•

the right to freedom of expression under article 19.

Prohibition on Interference with Privacy

5. Some of the Bill's measures engage the prohibition on interference with 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.

6. 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.

7. 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.

8. Schedule 1, items 20, 26, 27, 37 and 131 of the Bill would enable the IGIS, or a member of staff assisting the IGIS, to have full and free access to any information, documents or other property of an overseen intelligence agency, and to examine, make copies of or take extracts from any information or documents when undertaking an inspection under the IGIS Act. Information accessed by IGIS might include personal information that an overseen intelligence agency has acquired as part of its intelligence functions.

9. Schedule 1, item 131 (which would insert section 32AE into the IGIS Act) would provide an authorisation for the purposes of the Privacy Act 1988 (Privacy Act), which would permit agencies (specifically the Australian Federal Police) to share personal information with the IGIS, engaging the right to privacy.

10. Schedule 1, item 131 (which would insert section 32AF into the IGIS Act) would allow the IGIS to share information with other integrity bodies, and creates safeguards for information sharing. This may involve the transfer of personal information to an entity that it was not originally disclosed to, engaging the right to privacy.

11. Schedule 1, item 131 (section 32AG of the IGIS Act) sets out measures that would allow the IGIS (and other integrity bodies) to transfer complaints to other integrity bodies. These measures may involve the transfer of personal information to, or by, an entity that it was not originally disclosed to, engaging the right to privacy.

12. Schedule 1, item 131 (section 32AH of the IGIS Act) and 162 (Australian Human Rights Commission Act 1986 (AHRC Act)), create measures that would deem complaints that have been transferred to an integrity body to have been received by that body. These measures may involve the transfer of personal information to, or by, an entity that it was not originally disclosed to, engaging the right to privacy.

13. Schedule 1, item 112 promotes the right to privacy. This item will require that after conducting an inquiry into a complaint in respect of action taken by an intelligence agency, the IGIS must take reasonable steps to give a written response to the complainant. It then requires that this written response must not be given without agreement from the head of the relevant agency and that the terms of the proposed response to the complainant will not, 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 responding to complainants.

Rational connection to a legitimate objective

14. A legitimate objective of the Bill is to enhance IGIS's oversight of the agencies within its existing jurisdiction.

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

16. Measures which allow the IGIS to transfer and receive complaints, and to share information, are rationally connected to the legitimate objective of enabling effective cooperation between integrity bodies by ensuring that where complaints could be more appropriately dealt with by another body, there are clear and efficient 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.

Proportionate to the objectives of the limitation

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

18. Measures allowing access to information held by intelligence agencies are proportionate to the objective of supporting robust oversight. IGIS officials are only able to access information for the purpose of exercising a power, or performing a function or duty, 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.

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

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

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

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

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

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

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

23. Schedule 1, items 87 and 88 would expand existing exceptions to the use immunities where a person is compelled to provide information or documents to the IGIS under section 18 of the IGIS Act. These amendments engage the right under Article 14(3)(g) of the ICCPR which protects a person from being compelled to testify against himself or to confess guilt.

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

25. However, subsection 18(6) confers a use immunity on persons who provide information or documents under the notices issued in subsections 18(1) and 18(3), which prevents any information and documents provided under those circumstances from being admitted in evidence in proceedings against the person, except in certain limited circumstances.

26. Currently, this use immunity is subject to narrow exceptions outlined by paragraphs 18(6)(c)-(d) which includes prosecutions for an offence against:

•

section 18 of the IGIS Act (relating to failures to comply with requirements under the section)

•

section 137.1 of the Criminal Code Act 1995 (offence of providing false or misleading information) that relates to section 18 of the IGIS Act

•

section 6 of the Crimes Act 1914 (offence of accessory after the fact) and sections 11.1, 11.4 and 11.5 of the Criminal Code Act 1995 (offences of attempt, incitement and conspiracy) where the offence relates to an offence against section 18 of the IGIS Act.

27. Schedule 1, item 87 would amend paragraph 18(6)(ca) to include sections "137.2 (false or misleading documents), 145.1 (using forged document) or 149.1 (obstruction of Commonwealth public officials)". Item 88 of Schedule 1 would also insert a new paragraph to allow a person to be prosecuted for an offence under Division 3 of Part III of the Crimes Act 1914 (which relates to evidence and witnesses).

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

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

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

Right to freedom of expression

31. 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.

32. 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.

33. 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.

34. Schedule 1, items 137-152 of the Bill would limit the right to freedom of expression. These items amend section 34 of the IGIS Act to provide that all IGIS officials (including employees, contractors, consultants and secondees) are bound by the secrecy provision in the IGIS Act.

35. Schedule 1, item 152 would further provide that the IGIS Act secrecy offence (section 34 of the IGIS Act) can only be overridden by legislation which specifically provides that it overrides the IGIS Act. These amendments limit IGIS officials' right to freedom of expression by criminalising the disclosure of information obtained by an IGIS official in the course of their duties, functions or powers as an IGIS official.

Rational connection to a legitimate objective

36. The legitimate objective of the legislation is to ensure that information provided to the IGIS may only be disclosed in narrow, tightly controlled circumstances. This is necessary to maintain confidence in the IGIS's ability to protect the sensitive information it obtains from Australian intelligence agencies, which includes information which concerns Australia's national security.

Proportionate to the objectives of the limitation

37. Criminalising the disclosure of information other than as part of the IGIS's duties, functions or powers supports this objective, and is proportionate, given the sensitivity of the information held by the IGIS and the need to protect national security and public safety.

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

Conclusion

39. The Bill is compatible with human rights because it promotes compliance with the protection of human rights through enhanced oversight of intelligence agencies' activities. To the extent that human rights are limited, these limitations are proportionate and rationally connected to achieving the legitimate objectives of overseeing intelligence activities, and ensure adequate safeguards are in place to protect against improper interference with individuals' human rights.

Notes on Clauses

Preliminary

Clause 1 - Short title

1. This clause would provide for the short title of the Act to be the Inspector-General of Intelligence and Security and Other Legislation (Modernisation) Act 2022 (the Bill).

Clause 2 - Commencement

2. This clause would provide 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 covered elsewhere in the table would commence the day after the Bill receives the Royal Assent.

4. Item 2 of the table provides that Schedule 1 (main amendments to the IGIS Act and consequential amendments) would commence the day after this Bill receives the Royal Assent.

5. Item 3 of the table provides that Schedule 2, Part 1 (amendments to the LEIC Act that are contingent on the passage of the National Anti-Corruption Commission Bill 2022 (NACC Bill) would commence the later of either immediately after the commencement of the amendments contained in Schedule 1 or the commencement of Parts 2 to 9 of the National Anti-Corruption Commission Act 2022 (NACC Act).

6. However, item 3 of the table notes that Schedule 2, Part 1 does not commence at all if Parts 2 to 9 of the NACC Act do not commence at all.

7. Item 4 of the table provides that Schedule 2, Part 2 would commence immediately after the commencement of the provisions covered by table item 2 (Schedule 1).

8. However, item 4 of the table notes that Schedule 2, Part 2 do not commence at all if Parts 2 to 9 of the NACC Act commence before Schedule 1 commences.

9. Item 5 of the table provides that Schedule 3 (application and transitional provisions) would commence the day after the Bill receives the Royal Assent.

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

Clause 3 - Schedules

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

SCHEDULE 1: Amendments

Part 1: Main amendments

Inspector-General of Intelligence and Security Act 1986 (IGIS Act)

Item 1: Section 2

12. This item would amend section 2 of the IGIS Act by omitting the term 'shall come into operation' and substituting with 'commences'. This amendment would modernise language within the IGIS Act.

Item 2: Subsection 3(1)

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

•

'APS Code of Conduct' - this amendment is necessary due to the insertion of new section 17A by item 74 of Schedule 1 of the Bill, relating to the notification obligations when there is evidence of breach of duty or misconduct.

•

'contracted service provider' - this amendment is necessary due to the amendments to the staffing arrangements available to the Inspector-General under section 32AAB as inserted by item 128 of Schedule 1 of the Bill.

•

'IGIS contract' - this amendment is necessary to define a term used in the definition of 'contracted service provider' and 'subcontractor'.

•

'IGIS official' - this amendment would clarify the meaning of 'IGIS official' as there is no definition of 'IGIS official' in existing subsection 3(1) of the IGIS Act.

•

'ONI Act employee' - this amendment is necessary, due to the amendments in this Bill to the IGIS's ability to consider matters relating to ONI staff depending on whether that staff member is an 'ONI Act employee' or 'Public Service Act ONI employee'.

•

'paid work' - this amendment is necessary due to the amendments to section 30 by item 124 of Schedule 1 of this Bill, relating to the circumstances in which the Inspector-General's appointment may be terminated.

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

14. This item would amend subsection 3(1) of the IGIS Act by repealing the definition of 'permanent resident'. Subsequent uses of the term 'permanent resident' in the IGIS Act would be by reference to the definitions in the ASIO Act, IS Act or ONI Act (as appropriate). This would align the meaning of the term 'permanent resident' for the purposes of IGIS oversight with the meaning of that term in the legislation governing the particular intelligence agency that is subject to oversight.

15. Additionally, while the existing IGIS Act definition of 'permanent resident' is not explicitly limited to natural persons, both the ASIO Act, IS Act and ONI Act clearly set out that permanent residents are both natural persons as well as some categories of bodies corporate. Using these definitions would clarify the IGIS's ability to receive complaints from both natural persons and bodies corporate. This is appropriate as intelligence agencies can perform functions in relation to bodies corporate, as well as individuals (for example, the use of industry assistance powers under the Telecommunications Act).

16. Further, the amendment is necessary as the definition of 'permanent resident' in the IGIS Act refers to the term 'illegal entrant' under the Migration Act 1958 (Migration Act), which is no longer defined in that Act. The definitions of 'permanent resident' in the ASIO Act, IS Act and ONI Act reflect this. Linking the definition of 'permanent resident' in the IGIS Act with the definition of that term in the ASIO Act, IS Act and ONI Act would ensure that the IGIS Act is updated automatically if the latter three Acts are amended from time-to-time to reflect any changes to the terminology used in the Migration Act.

Item 4: Subsection 3(1)

17. This item would amend subsection 3(1) of the IGIS Act by inserting a new definition for a 'Public Service Act ONI employee'.

18. The definitions for 'Public Service Act ONI employee' and 'ONI Act employee' (as inserted by item 2 of Schedule 1 of the Bill) are necessary due to the amendments in this Bill to the IGIS's ability to consider matters relating to ONI staff depending on whether that staff member is an 'ONI Act employee' or 'Public Service Act ONI employee'.

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

19. This item would amend subsection 3(1) of the IGIS Act by amending the definition of 'responsible Minister' by inserting ', or the part of the Act that establishes the agency or continues the agency in existence' after 'that Act'.

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

Item 6: Subsection 3(1)

21. This item would amend subsection 3(1) of the IGIS Act to insert a definition of 'subcontractor' in relation to an IGIS contract (inserted by item 2 of Schedule 1 of the Bill). The definition captures persons who are responsible for providing services to the Inspector-General whether the person is a party to a contract with a contracted service provided for the IGIS (under the definition inserted by item 2 of Schedule 1 of the Bill) as well as subcontracts for an IGIS contract. This amendment is necessary due to the amendments to the staffing arrangements available to the Inspector-General under item 128 of Schedule 1.

Item 7: Subsections 6(1) and (2)

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

Item 8: Before subsection 6(3)

23. This item would insert the heading 'Consultation requirement' before subsection 6(3). This would clarify the structure of the section.

Item 9: After subsection 6(3)

24. Section 6 of the IGIS Act provides for the appointment of the Inspector-General. The IGIS Act does not contain any criteria about who may be appointed as the Inspector-General. The IGIS Act only sets out consultation requirements, specifically that the Prime Minister must consult with the Leader of the Opposition (in the House of Representatives) prior to making a recommendation to the Governor-General about an appointment to this position. This item would insert a new heading and subsection (3A) into section 6 of the IGIS Act to provide that the head or deputy head of an agency within the IGIS's jurisdiction is not to be appointed as the Inspector-General immediately following their service in an intelligence agency.

25. It is important to clarify that an individual having some experience within intelligence agencies does not necessarily create bias within that person, such that would prevent them from providing robust oversight. Further, some period of service within an intelligence agency does not necessarily preclude a person from being appointed as the Inspector-General in the future. However, this amendment reflects the importance of ensuring the Inspector-General is, and is seen to be, independent from the agencies they oversee to maintaining public confidence in the office. This perception, and the perception of the integrity of the office, would be damaged if a person who was seen to be too closely connected with an intelligence agency were to move directly from being overseen to being the overseer. This amendment implements recommendation 172 of the Comprehensive Review of the Legal Framework of the National Intelligence Community.

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

Item 10: Subparagraph 6AA(a)(ii)

27. This item would repeal and replace subparagraph 6AA(a)(ii), which relates to the staff assisting the Inspector-General within the Office of the IGIS, to include a reference to the staff in subsection 32(1) of the IGIS Act. This amendment is necessary to reflect the amendments to section 32 by the Bill.

Item 11: Before subsection 8(1)

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

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

Item 12: Subparagraph 8(1)(a)(v)

30. This item would amend paragraph 8(1)(a)(v) by omitting 'being an act or practice referred to the Inspector-General by the Australian Human Rights Commission'. This amendment clarifies that the IGIS is able to inquire into any matter that relates to an act or practice of ASIO 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, without a referral from the AHRC.

31. The IGIS would still only be able to inquire into such an act or practice where it is in response to a complaint, as well as at the request of the Attorney-General, the responsible Minister or by the IGIS's own motion.

Item 13: Paragraph 8(1)(c)

32. This item would amend subparagraph 8(1)(c) by omitting 'in a case where' and substituting '(within the meaning of the Australian Security Intelligence Organisation Act 1979) if'. This amendment is consequential to the removal of the definition of permanent resident from the IGIS Act by item 3 of Schedule 1 of the Bill.

33. Subsection 8(1) outlines the IGIS's functions in relation to ASIO. As such the ASIO Act definition of 'permanent resident' is used. The ASIO Act definition makes clear that both natural persons and some categories of bodies corporate are 'permanent residents', and will be able to complain to the IGIS.

Item 14: Subparagraph 8(1)(c)(i)

34. This item would substitute the reference to 'the Australian Security Intelligence Organisation Act 1979' with 'that Act' to streamline the provision. As this Bill would amend paragraph 8(1)(c) to refer to the ASIO Act, it is clear that subparagraph 8(1)(c)(i) is referring that same Act.

Item 15: Paragraph 8(1)(d)

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

Item 16: Before subsection 8(2)

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

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

Item 17: Paragraph 8(2)(a)

38. This item would amend paragraph 8(2)(a) by inserting '(within the meaning of the Intelligence Services Act 2001)'. This amendment is consequential to the removal of the definition of permanent resident from the IGIS Act by item 3 of Schedule 1.

39. The functions of ASIS, AGO and ASD are set out in the IS Act. As such, it is consistent that IGIS's oversight functions align with the IS Act definition of an Australian citizen and permanent resident. Further, the IS Act definition makes clear that both natural persons and some categories of bodies corporate are 'permanent residents', and will be able to make a complaint to the IGIS.

Item 18: Subparagraph 8(2)(a)(iv)

40. This item would amend subparagraph 8(2)(a)(iv) by omitting ', being an act or practice referred to the Inspector-General by the Australian Human Rights Commission'. This amendment clarifies that the IGIS is able to inquire into any matter that relates to an act or practice of ASIS, AGO or ASD 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, without a referral from the AHRC.

41. The IGIS would still only be able to inquire into such an act or practice where it is in response to a complaint made by an Australian citizen or permanent resident, as well as at the request of the Attorney-General, the responsible Minister or by the IGIS's own motion.

Item 19: Before subsection 8(3)

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

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

Item 20: Paragraphs 8(3)(a) and 8(3)(b)

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

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

46. New paragraphs 8(3)(a) and 8(3)(b) are similar to the existing paragraphs in the IGIS Act, but would allow the IGIS to inquire into certain matters in response to a complaint made by an Australian citizen or permanent resident (as defined in new subsection 8(3AA) inserted by item 21 of Schedule 1 of the Bill). Enabling the IGIS to consider complaints would provide greater consistency with IGIS's functions across the agencies IGIS oversees, as well as reflecting the potential impact that analytical agencies such as DIO and ONI can have on Australian citizens or permanent residents.

Paragraph 8(3)(a)

47. Existing paragraph 8(3)(a) allows the IGIS to, at the request of the Attorney-General or relevant Minister (Ministerial request) or by the IGIS's own motion, commence an inquiry into:

•

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

•

in the case of ONI-the compliance by ONI with directions given to ONI by the responsible Minister

•

the propriety of particular activities of that agency, or

•

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

48. New paragraph 8(3)(a) would allow the IGIS to consider, by Ministerial request, by the IGIS's own motion, or in response to a complaint made by an Australian citizen or permanent resident (as defined in new subsection 8(3AA) inserted by the Bill), DIO or ONI's:

•

compliance with the laws of the Commonwealth and of the States and Territories

•

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

•

the propriety of particular activities of DIO or ONI.

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

Paragraph 8(3)(aa)

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

Paragraph 8(3)(b)

51. New paragraph 8(3)(b) outlines where the IGIS may inquire into any matter that relates to an act or practice of DIO or ONI 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.

52. It would allow the IGIS to conduct an inquiry in response to a complaint made by an Australian citizen or permanent resident (as defined in new subsection 8(3AA)), as well as at the request of the Attorney-General, the responsible Minister or by the IGIS's own motion. This is consistent with the approach taken with ASIS, AGO and ASD in subparagraph 8(2)(a)(iv).

53. New paragraph 8(3)(b) differs from existing subparagraph 8(3)(b) as it omits the requirement for the matter to be referred by the AHRC.

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

Paragraph 8(3)(ba)

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

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

Item 21: After subsection 8(3)

57. This item would define 'permanent resident', for the purposes of IGIS's functions relating to DIO and ONI under subsection 8(3), to mean:

•

if the agency is DIO - the Intelligence Services Act 2001, and

•

if the agency is ONI - the Office of National Intelligence Act 2018.

58. This would align the meaning of the term 'permanent resident' for the purposes of IGIS oversight with the meaning of that term in the legislation that is most relevant to the agency's activities.

59. This item would also insert a new subheading 'Intelligence agency inquiry functions in relation to ACIC or the Australian Federal Police' before subsection 8(3A). This amendment would make clear that sections under this subheading relate to the IGIS's inquiry functions as they relate to ACIC and AFP.

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

Item 22: Paragraph 8(3A)(h)

61. This item would amend paragraph 8(3A)(h) by omitting 'referred to the Inspector-General by the Australian Human Rights Commission'. This amendment clarifies that the IGIS is able to inquire into any matter that relates to an act or practice of AFP or 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, without a referral from the AHRC.

62. The IGIS would still only be able to inquire into such an act or practice where it is in response to a complaint , as well as at the request of the Attorney-General, the responsible Minister or by the IGIS's own motion.

Item 23: Subsection 8(4)

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

64. Existing subsection 8(4) limits the oversight functions of the IGIS over ASIS, AGO and ASD under paragraph 8(2)(a) by requiring that either an Australian citizen or permanent resident be affected by the law, or that a law of the Commonwealth, State or Territory may have been violated. This reflects the policy position adopted in the original IGIS Act that the IGIS's jurisdiction should be limited to reviewing, and providing assurance to Ministers about, the legality and propriety of actions undertaken in Australia, or affecting Australian citizens; rather than performing a broader check on all aspects of these agencies' operations within the scope of paragraph 8(2)(a).

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

66. Despite this amendment, the IGIS would only be able to consider complaints about these matters where they were made by Australian citizens or permanent residents (as provided by section 8(2)(a) of the IGIS Act). However, the IGIS would still be able to commence own-motion inquiries (or inquiries in response to a request from the Attorney-General or responsible Minister) into matters without an Australian nexus, thus ensuring that there is not a gap in oversight.

Item 24: Before subsection 8(5)

67. This item would insert a new subheading 'Intelligence agency inquiry functions in relation to complaints about employment, contracts and related matters' before subsection 8(5). This amendment would clarify the structure of the section.

Item 25: Subsection 8(5)

68. This item would omit 'or ONI' and insert 'or by a Public Service Act ONI employee' in subsection 8(5).

69. Subsection 8(5) outlines that the IGIS's jurisdiction does not include complaints regarding promotion, termination of appointment, discipline, remuneration or any other matter relating to intelligence agencies' employment of individuals in relation to AGO, DIO, ONI, ACIC and AFP.

70. The item updates the reference to ONI to provide that the IGIS does not have jurisdiction to consider employment complaints from ONI staff employed under the Public Service Act. Staff in ONI may be employed under either the Public Service Act or the ONI Act. Staff employed under the ONI Act do not have the ability to complain about employment matters as the IGIS was precluded from considering such complaints (section 8(5) of the IGIS Act).

71. These exclusions are consistent with the existing treatment of those agencies currently overseen by the IGIS whose employees are engaged under the Public Service Act. This exclusion is appropriate because ONI employees employed under the Public Service Act are able to avail themselves of other avenues to address employment concerns (including the Fair Work Ombudsman), and as such, it is unnecessary for the IGIS to provide oversight to these matters.

Item 26: Subsection 8(6)

72. This item, in addition to the item 27 below, would amend subsection 8(6) to provide that the functions of the IGIS includes considering complaints made by ONI Act employees regarding promotion, termination of appointment, discipline, remuneration or any other matters relating to the individual's employment within ONI.

73. Currently the IGIS's employment complaints jurisdiction under subsection 8(6) relates to ASIO, ASIS and ASD employees. Employees within these agencies are employed under Acts other than the Public Service Act, and as such are not able to access the avenues for addressing employment grievances under that Act.

74. Staff in ONI may be employed under either the Public Service Act or the ONI Act. Staff employed under the ONI Act do not have the ability to complain as the IGIS was precluded from considering such complaints (section 8(5) IGIS Act, as amended by this Bill). These amendments ensure fair treatment for this category of ONI employees.

75. This amendment implements recommendation 174 of the Comprehensive Review of the Legal Framework of the National Intelligence Community.

Item 27: Paragraphs 8(6)(a) and (b)

76. As outlined above, this item in addition to item 26 above, would amend subsection 8(6) to provide that the functions of the IGIS includes considering complaints made by ONI Act employees regarding promotion, termination of appointment, discipline, remuneration or any other matters relating to an individual's employment within ONI.

Item 28: After paragraph 8(7)(b)

77. Subsection 8(7) provides that the IGIS must not inquire into an employment-related complaint (under subsection 8(6)) to the extent that the complainant is able to have the complaint considered by a body constituted by, or including, persons other than the relevant head of the intelligence agency or employees from that agency.

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

Item 29: Subsection 8(7) (note)

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

Item 30: At the end of subsection 8(8A)

80. This item would insert a note after subsection 8(8A). Subsection 8(8A) provides that the IGIS may decide not to inquire into an ASIO affiliate's contractual complaint where the complaint could be considered by a body that is constituted by, or includes, persons other than the Director-General of Security, ASIO employees or ASIO affiliates. The note would draw attention to subsection 11(6) which also relates to the IGIS's discretion not to inquire into an ASIO affiliate's complaint where the IGIS considers that ASIO's redress procedures are adequate and those procedures have not been exhausted by the complainant. This note is intended to clarify the operation of these provisions within the IGIS Act.

Item 31: Before subsection 8(9)

81. This item would insert the subheading 'Functions conferred by other Acts' before subsection 8(9). This amendment would clarify the structure of the section.

Item 32: Subsection 8A(2)

82. This item would repeal subsection 8A(2). Section 8A outlines the IGIS's PID functions under the PID Act. The section, as it currently operates, ensures that where the IGIS receives information under the PID scheme, and some of the disclosed conduct occurred in an intelligence agency, the PID is to be treated in the same manner as a complaint made to the IGIS about the propriety of particular activities of the intelligence agency (under section 8 of the IGIS Act, the IGIS may inquire into complaints in relation to the propriety of activities for all intelligence agencies).

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

Item 33: Subsection 8A(4)

84. This item would update subsection 8A(4) to reflect the creation of a complaints jurisdiction in relation to ONI and DIO under subsection 8(3) (as amended by item 20 of Schedule 1 of the Bill).

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

•

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

•

the conduct related to DIO or ONI.

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

•

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

•

the person who makes the disclosure is not a natural person who is an Australian citizen or permanent resident, within the meaning of:

o

for ASIS, ASD, AGO or DIO - paragraph (a) of the definition of permanent resident in section 3(1) of the IS Act, or

o

for ONI - paragraph (a) of the definition of permanent resident in section 4(1) of the ONI Act.

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

88. Firstly, PIDs relating to DIO and ONI are no longer automatically excluded from being considered complaints made to the IGIS. This reflects the amendments to subsection 8(3) (item 20 of Schedule 1 of the Bill) which would allow the IGIS to inquire into complaints (from Australian citizens and permanent residents) regarding propriety in relation to DIO and ONI.

89. Secondly, amended subsection 8A(4) would extend to all the agencies subject to IGIS oversight (excluding ASIO, ACIC and AFP). ASIO, ACIC and AFP are not included in this subsection as the IGIS's complaint function in relation to those agencies is not limited to Australian citizens or permanent residents.

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

Item 34: Paragraph 9AA(a)

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

92. The repeal of paragraph 9AA(a) is intended to reflect the reality that the contemporary movement of Australians abroad, and the large number of Australian laws with extraterritorial application, means that the activities of agencies that are undertaken wholly outside Australia are far more likely to have an impact on Australian persons (including members of the agencies themselves) and be subject to Australian laws than was the case at the commencement and over the first 10 years of operation of the IGIS Act.

93. It is appropriate that these activities are subject to IGIS oversight, and that the IGIS should be able to oversee these matters as a matter of course, rather than having to seek permission. In practice, even where agency operational activity occurs outside Australia, the planning or control of the operation may take place within Australia. In such cases, the Inspector-General would not require approval of the Attorney-General or Prime Minister to inquire into the matter under the IGIS Act. The retention of paragraph 9AA(a) could lead to arbitrary results where the planning or control of an operation is undertaken wholly outside Australia. In such cases, the requirement to obtain Ministerial approval would be enlivened solely by reason of the geographical location of an agency's activities, rather than the nature or substance of those activities.

Item 35: Paragraph 9AA(b)

94. This item would omit 'and 8(2)(a)(ii) and paragraphs 8(1)(d) and (3A)(b)' from paragraph 9AA(b) and substitute ', 8(2)(a)(ii) and 8(3)(a)(ii) and paragraphs 8(1)(d) and (3A)(e)'.

95. Paragraph 9AA(b) prohibits the IGIS from inquiring into actions taken by a Minister, except to the extent necessary for the IGIS to perform the functions relating to circumstances where the IGIS can inquire into whether the relevant agency has complied with directions and guidelines provided by the Minister. Each of these inquiries would necessarily involve the IGIS considering the actions of the Minister.

96. Subparagraph 8(3)(a)(ii) relates to IGIS inquiries into compliance with Ministerial guidelines or directions by DIO and ONI. It is appropriate, and consistent with oversight arrangements for other intelligence agencies, that the general prohibition in paragraph 9AA(b) is extended to these agencies.

97. The substitution of paragraph (3A)(b) with paragraph (3A)(e) corrects a typographical error as paragraph (3A)(e) is the provision that relates to IGIS inquiries into compliance with Ministerial guidelines or directions by ACIC and AFP.

Item 36: Paragraph 9AA(ba)

98. This item would omit '8(3A)(f)' and substitute '8(3A)(i)'.

99. Paragraph 9AA(ba) prohibits the IGIS from inquiring into action taken by the Board of ACIC or the Inter-Governmental Committee established under the ACC Act except to the extent necessary to perform the functions of the Inspector-General.

100. This substitution corrects a typographical error as paragraph 8(3A)(i) is the provision that relates to IGIS inquiries into compliance by ACIC with directions, guidelines, policies or other decisions made by the Board of ACIC or the Inter-Governmental Committee.

Item 37: Subsection 9A(2)

101. This item would amend section 9A by repealing and replacing subsection (2). New subsection (2) clarifies that when conducting an inspection of any intelligence agency (rather than just inspections in relation to AFP or ACIC), the IGIS, or a member of staff assisting the IGIS, are entitled to:

•

enter and remain on any premises at all reasonable times

•

all reasonable facilities and assistance that the head of the agency is capable of providing

•

full and free access at all reasonable times to any information, documents or other property of the agency, and

•

the ability to examine, make copies or take extracts from any information or documents.

102. Paragraphs 9A(2)(a) and (b) provide exceptions in relation to ASIS, insofar as the IGIS or a member of staff assisting the IGIS does not have the right to enter into premises occupied in another country by ASIS unless the Director-General of ASIS and the IGIS have made arrangements relating to entry. This is intended to reflect that ASIS, as Australia's foreign intelligence service, is predominantly located overseas, and as such, particular practical considerations are required for the IGIS to visit a site.

Item 38: Subsection 10(1) (note 1)

103. This item would update the section reference in the note to subsection 10(1). This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by the Bill.

Item 39: Subsection 10(2)

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

Item 40: Before subsection 11(1)

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

Item 41: Subsection 11(1)

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

Item 42: Subsection 11(1)

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

Item 43: Subsections 11(2) and (3)

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

Item 44: Subsection 11(3)

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

Item 45: Subsection 11(4)

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

Item 46: Subsection 11(4A) (note)

111. This item would update the section reference in the note to subsection 11(4A). This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by this Bill.

Item 47: Subsection 11(5)

112. This item would amend subsection 11(5) by omitting the word 'shall' and substituting the word 'must'. This amendment is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect.

Item 48: Paragraph 11(5)(a)

113. This item would add ONI Act employees to the list in paragraph 11(5)(a). This is consequential to the IGIS's new employment complaints jurisdiction created by items 20-21 of Schedule 1 of the Bill. The section provides that the IGIS may not inquire into an employment complaint where they are satisfied that the complainant has not exhausted existing grievance mechanisms within their agency, and the IGIS is satisfied those mechanisms are adequate and effective. It also provides that the IGIS may not inquire into an employment complaint where the matter of the complaint is 'not of sufficient seriousness or sensitivity to justify an inquiry'.

Item 49: Section 12

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

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

Item 50: Subsection 13(2)

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

Item 51: Before section 14

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

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

Item 52: Before subsection 14(1)

119. This item would insert the heading 'Making preliminary inquiries into a complaint' before subsection 14(1). This would clarify the structure of the section.

Item 53: Subsection 14(1)

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

Item 54: Subsection 14(1)

121. This item would substitute 'make inquiries' with 'make preliminary inquiries' to clearly differentiate between the preliminary inquiries which may be conducted pursuant to section 14 of the IGIS Act, and inquiries that may be conducted under other provisions of the IGIS Act.

Item 55: At the end of subsection 14(1)

122. This item would insert a note after subsection 14(1). Subsection 14(1) provides that where a complaint is made in respect of action taken by an intelligence agency, the IGIS may make inquiries of the head of the agency in relation to the action for the purpose of determining whether the IGIS is authorised to inquire into the action, or the IGIS is authorised, whether the IGIS should inquire into the action. The note would draw attention to section 11 which relates to the IGIS's discretion not to inquire into an action.

Item 56: After subsection 14(1)

123. This item would insert the heading 'Making own motion preliminary inquiries' before subsection 14(2). This would clarify the structure of the section.

Item 57: Subsection 14(2)

124. This item would substitute 'make inquiries' with 'make preliminary inquiries' to clearly differentiate between the preliminary inquiries which may be conducted pursuant to section 14 of the IGIS Act, and inquiries that may be conducted under other provisions of the IGIS Act.

Item 58: At the end of section 14

125. Subsection 14(2) provides that the IGIS may make an own motion preliminary inquiry of the head of an intelligence agency to determine whether the IGIS is authorised to inquire into an action of the agency, or if the IGIS is authorised, whether the IGIS should inquire into the action. This item would insert new subsection 14(3) to clarify that where the IGIS makes preliminary inquiries of an intelligence agency under subsection 14(2), the IGIS has the discretion not to inquire or further inquire into the action.

Item 59: Before section 15

126. This item would create new Subdivision A (Obligations before commencing an inquiry). This subdivision is intended to clarify the structure of the Division, and is not intended to have a substantive effect.

Item 60: Subsection 15(1)

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

Item 61: Section 16

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

129. Section 16 is no longer necessary, as new section 32AB (inserted by the Bill) would recreate and extend this requirement so that the IGIS must also have regard to the functions of other integrity bodies. This provision has been moved and expanded to reflect the full scope of the IGIS's oversight powers, and to co-locate provisions relating to the IGIS's relationships with other integrity bodies.

Item 62: Before section 17

130. This item would create new Subdivision B (Conduct of Inquiries). This subdivision is intended to clarify the structure of the Division, and is not intended to have a substantive effect.

Item 63: Before subsection 17(1)

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

Item 64: Subsection 17(1)

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

Item 65: Subsection 17(4)

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

Item 66: Subsection 17(4)

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

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

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

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

Item 67: Subsection 17(5)

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

Item 68: Subsection 17(5)

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

Item 69: Subsection 17(6)

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

Item 70: Before subsection 17(7)

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

Item 71: Subsection 17(7) and (8)

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

Item 72: Subsection 17(9)

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

Item 73: Subsection 17(10)

144. This item would repeal subsection 17(10). Subsection 17(10) requires the IGIS to bring evidence of any breaches of duty or misconduct by a member of a Commonwealth intelligence agency to the relevant agency head (or to the responsible Minister, where the head of the agency is the perpetrator of misconduct). This amendment is consequential to the insertion of new section 17A by item 74 below, which would recreate and extend this requirement.

Item 74: After section 17

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

146. This section is based on former section 17(10) of the IGIS Act (repealed by item 73 above), however requires the IGIS be 'satisfied on reasonable grounds' as to the breach of duty or misconduct (as opposed to 'forms the opinion' under former subsection 17(10)). This would link the Inspector-General's determination to notify an oversight body to a reasonableness threshold, rather than the subjective opinion of that officer.

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

Item 75: Before section 18

148. This item would create new Subdivision C (General powers in relation to inquiries). This subdivision is intended to clarify the structure of the Division, and is not intended to have a substantive effect.

Item 76: Before subsection 18(1)

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

Item 77: Subsection 18(1)

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

Item 78: At the end of subsection 18(1)

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

Item 79: Subsection 18(2)

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

Item 80: Paragraph 18(2)(c)

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

Item 81: Before subsection 18(3)

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

Item 82: Subsection 18(3)

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

Item 83: At the end of subsection 18(3)

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

Item 84: At the end of subsection 18(4)

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

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

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

Item 85: Before subsection 18(6)

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

Item 86: Paragraph 18(6)(b)

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

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

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

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

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

Item 87: Paragraph 18(6)(ca)

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

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

•

contravene the provisions of any other Act, or

•

would be contrary to the public interest; or

•

might tend to incriminate the person, or

•

make the person liable to a penalty; or

•

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

•

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

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

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

•

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

•

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

•

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

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

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

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

Item 88: After paragraph 18(6)(ca)

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

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

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

•

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

•

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

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

Item 89: After subsection 18(6)

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

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

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

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

Item 90: Paragraph 18(7)(c)

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

Item 91: Before subsection 18(9)

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

Item 92: Section 19

183. This item would omit the phrase 'The Inspector-General may' from section 19 and substitute '(1) The Inspector-General may (subject to subsection (2))'. This amendment is a consequence of the insertion of new subsection (2) into section 19 by item 93 below, and is intended to address any perceived contradiction between the two subsections.

Item 93: At the end of section 19

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

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

Item 94: Section 20

186. This item would repeal section 20. The requirements that were imposed by section 20 have been recreated and expanded in proposed section 32AD (inserted by this Bill) to co-locate a number of provisions relating to the IGIS's relationships with other agencies.

Item 95: Before section 21

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

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

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

Item 96: Before subsection 21(1)

190. This item would insert the heading 'Draft reports to be prepared and generally given to agency head' before subsection 21(1). This would clarify the structure of the section.

Item 97: Subsection 21(1)

191. This item would amend subsection 21(1) by clarifying that the obligations to prepare a draft report and give a copy to the head of the agency do not apply to preliminary inquiries completed under section 14 of the IGIS Act.

Item 98: At the end of subsection 21(1)

192. This item would add a note at the end of subsection 21(1) to clarify that IGIS does not have to wait until the inquiry is completed to start preparing the report, or to share copies of the report.

Item 99: After subsection 21(1AA)

193. This item would insert the heading 'Draft reports on matters directly relating to agency head' before subsection 21(1A). This would clarify the structure of the section.

Item 100: Before subsection 21(1C)

194. This item would insert the heading 'Relationship with section 17 (conduct of inquiries) before subsection 21(1C). This would clarify the structure of the section.

Item 101: At the end of subsection 21(1C)

195. This item would add 'conduct of inquiries' after the reference to section 17, to signpost that section 17 of the IGIS Act relates to the conduct of inquiries.

Item 102: After subsection 21(1C)

196. This item would insert the heading 'Including relevant comments in final report' before subsection 21(2). This would clarify the structure of the section.

Item 103: Subsection 21(2)

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

Item 104: Subsection 21(2)

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

Item 105: Before subsection 22(1)

199. This item would insert the heading 'Reports to be prepared and given to agency head or other responsible person' before subsection 22(1). This would clarify the structure of the section.

Item 106: Subsection 22(1)

200. This item would amend subsection 22(1) by clarifying that the obligations to prepare a draft report and give a copy to the head of the agency do not apply to preliminary inquiries completed under section 14 of the IGIS Act.

Item 107: At the end of subsection 22(1)

201. This item would add a note at the end of subsection 21(1) to clarify that IGIS does not have to wait until the inquiry is completed to start preparing the report, or to share copies of the report.

202. This item would also add a note to subsection 22(1) to clarify that if the IGIS's report (prepared under the IGIS Act) relates to an authorisation intended to identify a media source or retained data, a copy of the report may be given to the PJCIS under subsections 185D(3) or 185E(1) of the TIA Act.

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

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

Item 108: After subsection 22(1A)

205. This item would insert the heading 'Report to include reasons and compensation recommendation' before subsection 22(1A). This would clarify the structure of the section.

Item 109: Subsection 22(2)

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

Item 110: After subsection 22(2)

207. This item would insert the heading 'Tax information not to be disclosed' before subsection 22(3). This would clarify the structure of the section.

Item 111: After subsection 22(3)

208. This item would insert the heading 'Copies for Ministers' before subsection 22(4). This would clarify the structure of the section.

Item 112: Subsections 23(1) and (2)

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

210. Existing subsection 23(1) requires the IGIS to provide a complainant with a written response after the conclusion of an inquiry (other than a preliminary inquiry under section 14) that flows from the complaint. Existing subsection 23(2) requires that, before the response can be given under subsection 23(1), the IGIS and the head of the relevant agency must agree that the response would not prejudice security, the defence of Australia or Australia's relations with other countries.

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

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

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

•

security, the defence of Australia or Australia's relations with other countries

•

law enforcement operations, including methodologies and investigative techniques

•

the privacy of individuals

•

confidential commercial information, or

•

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

214. This subsection clarifies 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 complainant, even though that information does not prejudice security, the defence of Australia or international relations.

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

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

Law enforcement operations, including methodologies and investigative techniques

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

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

Privacy of individuals

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

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

Confidential commercial information

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

Fair trial or impartial adjudication

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

Item 113: Subsection 24(1)

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

Item 114: Subsection 24(1)

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

Item 115: Subsection 24(2)

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

Item 116: Subsection 25(1)

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

Item 117: Section 25A

226. This item would omit 'may report on the inspection to' and substitute with 'may report on the inspection (which may include the Inspector-General's conclusions and recommendations) for'. This amendment is intended to clarify that reports on inspection may also include conclusions and recommendations.

Item 118: At the end of Part II

227. This item would insert new section 25B to clarify that the IGIS may prepare a report on preliminary inquiries undertaken under section 14 of the IGIS Act for the responsible Minister or the head of the relevant agency. These reports may also include conclusions and recommendations.

228. This item also inserts a note, to signpost that reports made under new section 25B may only contain tax information, financial transaction reports information or AUSTRAC information where permitted under the relevant information disclosure provision of the respective Acts.

Item 119: Subsection 27(1)

229. This item would omit the word 'shall' and substitute 'is to' wherever occurring in subsection 27(1). These amendments are intended to modernise and standardise language within the IGIS Act, and are not intended to have a substantive effect.

Item 120: Subsection 27(2)

230. This item would omit the word 'shall' and substitute 'is to' in subsection 27(2). These amendments are intended to modernise and standardise language within the IGIS Act, and are not intended to have a substantive effect.

Item 121: Subsection 30(1)

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

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

Item 122: Paragraph 30(2)(b)

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

234. This section is inconsistent with new subsection 30(2A) (inserted by item 124 of Schedule 1 of the Bill), which is discussed below.

Item 123: Subsection 30(2)

235. This item would omit the word 'shall' and substitute 'must' in subsection 30(2). This is intended to modernise and standardise language within the IGIS Act, and is not intended to have a substantive effect, as the current language of subsection 30(2) does not confer a discretion on the Governor-General.

Item 124: After subsection 30(2)

236. This item would insert a new subsection 30(2A), which is based on existing subsection 30(2)(b) (removed by item 122 of Schedule 1 of the Bill). Existing subsection 30(2)(b) provides that the Governor-General 'shall' terminate the appointment of the Inspector-General if the Inspector-General holds the office on a full time basis and engages in other paid employment without the Attorney-General's consent, or is absent from duty without leave for 14 consecutive days or for 28 days in a 12 month period (unless they are on leave).

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

Item 125: Subsection 30(3)

238. This item would omit 'and (2)' from subsection 30(3) and substitute ', (2) and (2A)'. This amendment is consequential to the insertion of new subsection 30(2A) by the item above.

Item 126: At the end of subsection 32(1)

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

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

241. These current provisions do not reflect the range of modern employment agreements. The changes will modernise the provisions and clarify the ability of the Inspector-General to engage people with specific skill sets to support the functions of the IGIS generally (without being tied to a particular inquiry, as currently required). This might include employing a consultant with highly specialised technical skills to support the IGIS's capacity to understand the impacts of specific types of technology on the operations of intelligence agencies, or seconding an officer from another Commonwealth agency with particular expertise in certain legislation to support in the development of general oversight protocols.

Item 127: Subsection 32(3)

242. This item would omit 'section 32AA' from subsection 32(3) and substitute 'subsection 32AA(1)'. This amendment is consequential to the renumbering of section 32AA by the insertion of new subsection 32AA(1A) by the Bill.

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

Item 128: After section 32

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

New section 32AAA - Consultants

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

New section 32AAB - Contracted Service Providers

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

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

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

248. Secondment arrangements are commonly used to allow employees to develop breadth of experience or specialist skills in another body or organisation while remaining employed by the IGIS.

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

249. Section 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 IGIS to perform services in connection with the IGIS's functions or exercise of its powers. The terms of such arrangements will be determined by written agreement between the Inspector-General and the originating entity of the secondee (section 32AAD(2)).

Item 129: After subsection 32AA(1)

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

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

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

253. This amendment is intended to reflect the modern realities and the breadth of work of the office of the IGIS. Without the ability for the Inspector-General to delegate functions, in some circumstances, it would be difficult to fulfil their statutory functions in a timely manner.

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

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

Item 130: Subsection 32AA(2)

256. This item would amend subsection 32AA(2) by inserting 'under subsection (1) or (1A)' after 'a delegation'. This amendment is consequential to the insertion of new subsection 32AA(1A) by the item above, and is intended to clarify that a person employed under section 32(3) who is performing delegated functions must comply with any written instructions issued by the Inspector-General.

Item 131: Part IIIA

257. This item would repeal and replace Part IIIA of the IGIS Act.

258. Updated Part IIIA would contain sections 32AB-32AH which are intended to provide mechanisms to:

•

manage the duplication of oversight between the IGIS and other integrity bodies, and

•

facilitate information-sharing and complaints transfer between the IGIS and other integrity bodies.

Division 1-Avoiding duplication of oversight

259. Division 1 of Part IIIA relates to avoiding duplication of oversight by integrity bodies. It contains section 32AB.

Section 32AB -Avoiding duplication of oversight

260. Subsection 32AB(1) would require the IGIS to have regard to the functions of other integrity bodies and the Auditor-General to avoid duplication in oversight.

261. This section is based on existing section 16 of the IGIS Act (which would be repealed by this Bill), which requires the IGIS to consider the Auditor-General and the Ombudsman's functions before commencing an inquiry. New section 32AB is broader than former section 16 to reflect the range of integrity bodies whose jurisdictions may overlap with the IGIS's jurisdiction.

262. Subsection 32AB(2) would allow the IGIS to consult integrity bodies or the Auditor-General in relation to a particular matter if the Inspector-General considers it appropriate to do so for the purpose of avoiding more than one inquiry being conducted into the matter. This section stands alongside new section 32AF (inserted by this Bill) which provides that the IGIS has a general function to share information with integrity bodies as part of its functions. Further to this requirement, under subsection 11(4A) (inserted by this Bill) the IGIS may decide not to inquire, or not to inquire further into, a complaint or part of a complaint where the complaint has, or could have been, made to another integrity body and that integrity body could deal with the complaint more effectively than the IGIS. It is appropriate in these cases for the IGIS to be able to discuss the matter with other relevant integrity bodies to facilitate transferring a complaint (under section 32AG).

263. Section 32AB would place a general obligation on the IGIS and is not intended to require the IGIS to undertake formal consultation with the Auditor-General and each integrity body before each discrete activity. For example, in determining its overall priorities and annual inspection plans, the IGIS ought to consider other integrity bodies and their remits. By contrast, the IGIS is not required to consider the functions of each integrity body before commencing a discrete preliminary inquiry (under section 14 of the IGIS Act). This is because, in many cases, some activity by the IGIS is required to determine whether they are authorised to, and should, inquire into an action. As such, it will often not be possible to determine whether or not a matter falls within the functions of another integrity body until after a preliminary inquiry has been undertaken, and requiring consultation ahead of every instance would be administratively burdensome.

Division 2 of Part IIIA-Sharing information with the Inspector-General

264. Division 2 of Part IIIA would contain provisions relating to the sharing of information with the IGIS. It contains sections 32AC, 32AD and 32AE.

Subsection 32AC-Protection for persons providing information voluntarily to the Inspector-General

265. Subsection 32AC(1) outlines that the section would provide certain protections to people who voluntarily provide, or make available, information or documents to the IGIS for the purposes of the IGIS performing its inspection function (under section 9A), complaints functions (under Division 2 of Part II) or inquiry functions (under Division 3 of Part II, or section 14 for preliminary inquiries).

266. This section is based on existing section 34B of the IGIS Act (which would be repealed by this Bill) which provides protections for persons providing information voluntarily to the Inspector-General. New section 32AC provided further protections than former section 34B to ensure that all persons who cooperate with the IGIS are treated equally, irrespective of the technical legal basis upon which they are doing so (see the protections afforded to people who are compelled to assist the IGIS under section 18 of the IGIS Act).

267. Subsection 32AC(2) provides an immunity from prosecution under any Commonwealth law where a person provides or makes available information or documents to the IGIS where the IGIS performs its functions (inspections, complaints, preliminary inquiries, and inquiries). This immunity is subject to subsections 32AC(5) and (6), which would allow an individual to be prosecuted in circumstances where they have provided false or misleading information or documents, forged documents to the IGIS, or have obstructed the IGIS in performing its functions (and other circumstances discussed below).

268. Subsection 32AC(3) provides a use immunity where an individual voluntarily provides information or documents to the IGIS, or where a person voluntarily appears before the IGIS to answer questions. Under this subsection, these documents and information are not admissible in evidence against the person in any court or in any proceedings before a person authorised to hear evidence. This immunity is subject to subsection 32AC(5), which would allow an individual to be prosecuted in circumstances where they have provided false or misleading information or documents, forged documents to the IGIS or have obstructed the IGIS in performing its functions (and other circumstances discussed below).

269. Subsection 32AC(4) preserves legal professional privilege over documents or information, even where the information or documents are provided voluntarily.

270. Subsection 32AC(5) outlines the exceptions to the immunity from prosecution conferred by subsection 32AC(2) and the use immunity in subsection 32AC(3). These immunities do not apply in relation to proceedings for:

•

providing false or misleading information to the IGIS (section 137.1 of the Criminal Code)

•

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

•

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

•

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

•

giving false testimony, fabricating evidence, destroying evidence, intimidation of witnesses, corruption of witnesses, deceiving witnesses, preventing witnesses from attending court (and any other offences relating to evidence and witnesses under Division 3 of Part III of the Crimes Act).

271. Paragraph 32AC(5)(c) also provides that the immunities in subsections 32AC(2) and (3) do not apply in relation to prosecutions for:

•

being an accessory after the fact, to any of the offences listed in section 32AC(a) and (b) (listed above) per section 6 of the Crimes Act

•

attempting to commit any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.1 of the Criminal Code

•

inciting the commission of any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.4 of the Criminal Code, or

•

conspiring with another person to commit any of the offences listed in section 32AC(a) and (b) (listed above) per section 11.5 of the Criminal Code.

272. However, these offences are only applicable 'to the extent that the offence relates to this Act'. The use of the word 'relates' is intended to ensure that any documents, information or answers provided by a person to the IGIS, which provided evidence that the person committed an offence against a section of the Criminal Code or Crimes Act referenced in paragraphs 32AC(5)(a)-(c), could not be used as evidence in prosecution against the person if the offence committed was unrelated to the provision of documents or information to the IGIS.

273. Subsection 32AC(6) states that the exemption in subsection 32AC(2) does not apply where a new offence created after the amendments have passed also states that the exemption does not apply. This section is necessary to ensure the specific offences contained in subsection 32AC(5) can be extended should the need arise. This protection is directly analogous to section 24 of the PID Act.

274. The item would also insert a note to subsection 32AC(6), to advise that the whole of section 32AC applies subject to section 90 of the LEIC Act, which creates an offence for individuals who disclose 'hearing materials' (defined in that Act) that the Integrity Commissioner has specifically directed cannot be voluntarily disclosed to the IGIS. This would mean that an individual who voluntarily provides this confidential hearing material to the IGIS is not protected by section 32AC.

Section 32AD-Security of Commonwealth agency information and documents

275. Section 32AD consolidates and expands the protection of Commonwealth documents or information with security classifications.

276. The former provision (existing section 20) provided that where the IGIS required access to documents with a protective or national security classification that were in the possession of a Commonwealth agency, the IGIS was required to make arrangements with the head of the relevant agency for the protection of those documents while they were in the IGIS's possession.

277. Section 32AD expands this section to apply to documents, as well as information, obtained. Given the broad types of information which may be subject to classification, and provided to the IGIS in the course of its inspections or inquiries, it is appropriate that the types of materials are expanded to ensure they are appropriately protected while they are within the IGIS's possession.

278. Paragraph 32AD(1)(a) specifies the types of activities under which the IGIS may require access to information of documents (inspections, preliminary inquiries and inquiries).

279. Subsection 32AD(2) requires that where the IGIS intends to remove classified documents from an agency, to copy or extract from classified documents or information, or to examine or otherwise make use of the documents or information (these actions are stipulated by new subsection 32AD(1)(c)), the IGIS must make arrangements to protect the documents or information from unauthorised disclosure. New subsection 32AD(2) notes that, in order to prevent unauthorised disclosures, the IGIS must take into account any advice provided by the head of the relevant agency.

280. It is important to note for the avoidance of doubt, that arrangements made under subsection 32AD(2) do not override the obligations of agency heads and staff under section 9A in relation to inspections (specifically, the duty to provide full and free access to any information, documents or other property of an agency) or obligations of members of agencies to provide information under a notice issued under section 18.

281. Additionally, it is intended that the requirement to make protective arrangements does not override obligations under the PSPF. For example, the provision would not confer authority to make arrangements that are inconsistent with the requirements of the PSPF, or to withhold agreement to an arrangement that is consistent with the requirements of the PSPF.

Section 32AE-Authorisation for the purposes of the Privacy Act 1988

282. Section 32AE contains an authorisation for the purposes of the Privacy Act. This is necessary as the AFP is subject to the Privacy Act, and as such, requires this section to enliven the exception to the prohibition on secondary use of personal information in Australian Privacy Principle 6.2.

283. The effect of this section is that, for the purposes of the Privacy Act, a person is authorised to give or make available personal information (within the meaning of the Privacy Act) to an IGIS official, for the purpose of the official performing a function or duty, or exercising a power, as an IGIS official.

284. The section explicitly applies in relation to a service provider under section 187LA of the TIA Act. Section 187LA provides that information or documents kept by a service provider in complying with Part 5-1A of the TIA Act are 'personal information' within the meaning of the Privacy Act. This means that the Privacy Act and the Australian Privacy Principles apply to the data retention activities of all service providers, including operators that would otherwise be exempt from the Privacy Act. Specifically including this section allows these service providers, and their employees, to provide information to the IGIS without breaching the Privacy Act.

285. This provision is equivalent to the authorisation provision in subsections 7A(1D) (preliminary inquiries) and 8(2D) (investigations) of the Ombudsman Act.

Division 3 of Part IIIA - Sharing information by the Inspector-General - Overview

286. Division 3 of Part IIIA would establish arrangements for the IGIS to transfer complaints and information to other integrity bodies, as well as to receive complaints transferred to it. It contains sections 32AF, 32AG and 32AH.

Section 32AF - Information sharing with integrity bodies

287. Section 32AF would allow the IGIS to share information or documents with other integrity bodies. The former provision (existing section 32AC of the IGIS Act which would be repealed by this Bill) allows the IGIS to share information or documents with other integrity bodies that are obtained by the IGIS in the course of exercising powers, or performing functions or duties, in relation to ACIC or AFP. Section 32AF expands this section to apply to information obtained generally by an IGIS official in the course of exercising powers, or performing functions or duties, as an IGIS official.

288. It is intended that the provision would reduce the potential for duplication of individual oversight activities by integrity bodies through the sharing of information and cooperation. For example, if the IGIS were to share information with another integrity body it may enable that integrity body to satisfy itself that there are no further issues arising in respect of its specific statutory functions that would require it to undertake separate oversight activity in relation to that matter. Sharing information to avoid duplication reduces administrative burdens on both overseen agencies and integrity bodies.

289. The provision would also support cooperation and coordination across integrity bodies, by allowing the IGIS to share information about its investigative processes and methodologies, as well as trends the IGIS has identified through its oversight.

290. It is also intended that this provision would support the IGIS to manage concurrent jurisdiction that may arise in relation to Commonwealth agencies other than intelligence agencies, if the IGIS is directed by the Prime Minister to inquire into an intelligence or a security matter relating to one or more of those agencies under section 9 of the IGIS Act.

291. The IGIS's information sharing function would be subject to the following safeguards to protect against the disclosure of sensitive information. Firstly, the IGIS may only share information it has obtained by exercising its duties, functions or powers (as an IGIS official). Secondly, the IGIS may only share information that is relevant to the receiving agency's functions. Finally, the IGIS must be satisfied, on reasonable grounds, that the receiving agency has appropriate arrangements in place to protect the shared information.

292. New subsection 32AF(3) further provides that the Inspector-General may enter into administrative arrangements with the head of an intelligence agency for the purposes of protecting information. This provision does not create an obligation or requirement for the IGIS to do so.

293. The IGIS, like all non-corporate Commonwealth entities, is bound by the PSPF, as well as the offences that govern the unauthorised sharing of classified information in the Criminal Code. Additionally, section 34 of the IGIS Act provides that the IGIS may only disclose information in the performance of legislated functions, powers or duties. Improper disclosure of information by an IGIS official is a criminal offence, punishable by 2 years imprisonment, a fine of 50 penalty units, or both. These provisions provide a substantial protection mechanism against improper disclosure.

Section 32AG - Complaints transferred to other integrity bodies

294. New section 32AG replicates existing section 32AD and would provide that where the IGIS decides not to investigate a complaint on the basis that it could be more effectively or conveniently dealt with by another integrity body (under new subsection 11(4A)), the IGIS may continue to transfer all, or part, of that complaint to that integrity body.

295. This item would also replicate the existing note following section 32AD, to draw readers' attention to the corresponding 'deeming provisions' in the governing legislation of the integrity body to which the IGIS transfers a complaint. These deeming provisions state that a complaint that is transferred by the IGIS to another integrity body is taken to be a complaint made to that body for the purposes of its governing legislation. This note signposts where the IGIS Act interacts with other integrity bodies' primary legislation and is intended to assist with interpreting the Act.

296. The note does not include a specific reference to the IGADF. Under section 110C of the Defence Act, the IGADF is able to do anything incidental or conducive to the performance of its functions. The functions of the IGADF include to 'inquire into or investigate matters concerning the military justice system' as well as any functions conferred on the IGADF by the Defence Act, other Commonwealth laws, or regulations. Relevantly, the Inspector-General of the Australian Defence Force Regulation 2016 allows the IGADF to consider complaints in particular circumstances. These provisions, read together, clearly allow the IGADF to receive transferred complaints. As such, it was not necessary to draft a specific deeming provision in the Defence Act, and the IGADF was not included in the note. This should not be read to infer that the IGIS cannot transfer complaints to the IGADF.

Section 32AH - Complaints transferred by integrity bodies

297. New section 32AH replicates existing section 32AE and would provide that where an integrity body has transferred a complaint to the IGIS, that complaint is deemed to have been made to the IGIS under the IGIS Act. This ensures that the complainant does not need to re-submit the original complaint to the IGIS, and that the IGIS has a legal basis to handle transferred complaints. It also ensures that the complainant is protected under the IGIS Act for any disclosure of information.

298. The item would also replicate the existing note following existing section 32AE, to draw readers' attention to the provisions in other integrity bodies' legislation that permits the transfer of complaints to the IGIS. This note would signpost where the IGIS Act interacts with other integrity bodies' primary legislation and is intended to assist with interpreting the Act.

299. It is noted that there is no specific 'transfer provision' in the LEIC Act or the Defence Act. The Integrity Commissioner has broad information-sharing powers available under which complaints may be transferred to another integrity body. Under section 110C of the Defence Act, the IGADF is able to do anything incidental or conducive to the performance of its functions. However, as these powers are not specific to transferring complaints, they have not been listed in the note to section 32AH. The absence of a reference to the LEIC Act and the Defence Act here should not be read to infer that the IGIS is unable to receive complaints transferred to it by ACLEI or the IGADF.

Item 132: Subsection 32A(1)

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

Item 133: Subsection 32A(5)

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

Item 134: Subsection 32B(1)

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

303. This item would amend subsection 32B(1) by inserting ', DIO' after 'AGO'. The amendment is intended to clarify that section 32B would also apply to any guidelines or directions given by the responsible Minister to the head of DIO. This is consequential to the IGIS's expanded functions in relation to DIO (inserted by item 20 of Schedule 1 of the Bill), which allow the IGIS to consider DIO's compliance with Ministerial directions.

Item 135: Subsection 33(2)

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

Item 136: Before subsection 34(1)

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

Item 137: Subsection 34(1)

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

307. This amendment streamlines the section, by referring to the defined term of an 'IGIS official' (inserted by item 2 of Schedule 1 of the Bill), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 126 of Schedule 1 of the Bill). Using this terminology ensures that the secrecy offences within the IGIS Act apply equally to all IGIS officials, however employed. This ensures that all information provided to any IGIS official is protected from improper disclosure, which is imperative as IGIS officials have access to highly sensitive information by virtue of their positions.

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

Item 138: Paragraphs 34(1)(a) and (b)

309. This item would amend paragraphs (1)(a) and (b) of section 34(1) to clarify that the secrecy provision applies equally to both information and documents. As both information and documents obtained by IGIS officials may be highly sensitive, it would be arbitrary for secrecy offences not to apply to the recording, divulging communication or use of documents.

Item 139: Before subsection 34(1AA)

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

Item 140: Subsection 34(1AA)

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

312. This amendment streamlines the section, by referring to the defined term of an 'IGIS official' (inserted by item 2 of Schedule 1 of the Bill), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 126 of Schedule 1 of the Bill). Using this terminology ensures that the secrecy offences within the IGIS Act apply equally to all IGIS staff members, however employed. This ensures that all information provided to any IGIS official is protected from improper disclosure, which is imperative as IGIS officials have access to highly sensitive information by virtue of their positions.

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

Item 141: Paragraphs 34(1AA)(a) and (b)

314. This item would amend paragraphs (1)(a) and (b) of section 34(1AA) to clarify that the secrecy provision applies equally to both information and documents. As both information and documents obtained by IGIS officials may be highly sensitive, it would be arbitrary for secrecy offences not to apply to the recording, divulging communication or use of documents.

Item 142: before subsection 34(1AB)

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

Item 143: Subsection 34(1AB)

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

317. This amendment streamlines the section, by referring to the defined term of an 'IGIS official' (inserted by item 2 of Schedule 1), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by item 126 of Schedule 1). Using this terminology ensures that the secrecy offences within the IGIS Act apply equally to all IGIS staff members, however employed. This ensures that all information provided to any IGIS official is protected from improper disclosure, which is imperative as IGIS officials have access to highly sensitive information by virtue of their positions.

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

Item 144: Paragraphs 34(1AB)(a) and (b)

319. This item would amend paragraphs (1)(a) and (b) of section 34(1AB) to clarify that the secrecy provision applies equally to both information and documents. As both information and documents obtained by IGIS officials may be highly sensitive, it would be arbitrary for secrecy offences not to apply to the recording, divulging communication or use of documents.

Item 145: Before subsection 34(1A)

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

Item 146: Paragraph 34(1A)(a)

321. Subsection 34(1A) provides a narrow exception to the general secrecy offences contained in subsections 34(1)-(1AB). This exception applies where the Inspector-General authorised an IGIS official to disclose information other than in accordance with their functions, duties or powers because the Inspector-General believed on reasonable grounds that the disclosure is necessary to protect the well-being or safety of another person.

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

Item 147: Before subsection 34(2)

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

Item 148: Subsection 34(4)

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

Item 149: Before subsection 34(5)

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

Item 150: Subsection 34(5)

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

Item 151: Subsection 34(5)

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

Item 152: After subsection 34(5)

328. This item would insert a new subheading 'Section generally to apply despite other laws', new subsections (5A) and (5B) and a new note.

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

330. New subsection (5A) provides that section 34 of the IGIS Act applies despite any Commonwealth law unless the Commonwealth law manifests a clear intention to apply despite section 34 of the IGIS Act. This provision is intended to ensure that the secrecy offence in the IGIS Act prevails over all other disclosure provisions and overrides any immunities for disclosing information or documents. This would ensure that information provided to the IGIS is protected to the greatest extent possible and preserves a position where information can only be shared by IGIS officials in narrow, statutorily prescribed circumstances.

331. The note inserted to follow new subsection (5A) clarifies that a Commonwealth law must refer explicitly to an IGIS official in order to manifest a clear intention to apply despite section 34 of the IGIS Act.

332. New subsection (5B) provides that section 34 of the IGIS Act applies despite any provision of a state or territory law.

Item 153: Before subsection 34(6)

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

Item 154: Subsection 34A(4)

334. This item would substitute the reference to 'a staff member or a former staff member' in subsection 34A(4) with a reference to 'an IGIS official or former IGIS official'.

335. This amendment uses the defined term of an 'IGIS official' (inserted by the Bill), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by the Bill).

Item 155: Subsection 34A(5)

336. This item would substitute the reference to 'a staff member or a former staff member' in subsection 34A(5) with a reference to 'an IGIS official or former IGIS official'.

337. This amendment uses the defined term of an 'IGIS official' (inserted by the Bill), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by the Bill).

Item 156: Paragraph 34A(5)(a)

338. This item would substitute the reference to 'a staff member' in paragraph 34A(5)(a) with a reference to 'an IGIS official'.

339. This amendment uses the defined term of an 'IGIS official' (inserted by the Bill), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by the Bill).

Item 157: Subsection 34A(6)

340. This item would substitute the reference to 'a staff member or a former staff member' in subsection 34A(6) with a reference to 'an IGIS official or former IGIS official'.

341. This amendment uses the defined term of an 'IGIS official' (inserted by the Bill), which in turn refers to the persons covered by section 32(1) of the IGIS Act (as amended by the Bill).

Item 158: Subsection 34A(7) (definition of staff member )

342. This item would remove the existing definition of 'staff member' contained in section 34A, as it is no longer required.

Item 159: Section 34B

343. This item would repeal section 34B.

344. Section 34B provided protections for persons providing information voluntarily to the IGIS. These protections have been moved into new section 32AC (inserted by the Bill). This provision has been moved to co-locate a number of provisions relating to the IGIS's relationship with other agencies.

Item 160: Before subsection 35(2)

345. This item would insert the heading 'Contents of annual report' before subsection 35(2). This would clarify the structure of the section.

Item 161: Subsection 35(2)

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

Item 162: Paragraph 35(2AA)(b)

347. This item would omit the reference to 'section 32AA' and substitute a reference to 'subsection 32AA(1)'. This amendment is consequential to the renumbering of section 32AA by the insertion of new subsection 32AA(1A) (inserted by this Bill).

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

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

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

Item 163: After subsection 35(2C)

351. This item would clarify that a report referred to in subsection 35(2) may also include the Inspector-General's comments on any other activity of the Inspector-General during the period to which the report relates.

352. This item would also insert the heading 'Report to be given to the Leader of the Opposition' before subsection 35(3). This would clarify the structure of the section.

Item 164: Before subsection 35(4)

353. This item would insert the heading 'Tabling of annual report' before subsection 35(4). This would clarify the structure of the section.

Item 165: Subsection 35(4)

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

Part 2: Consequential amendments

Australian Human Rights Commission Act 1986

Item 166: Subsection 20(1) (note)

355. This item would update the section reference in the note following subsection 20(1). This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by the Bill.

Item 167: Subsection 46P(1) (note)

356. This item would update the section reference in the note to subsection 46P(1). This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by the Bill.

Item 168: Subsection 46PZ(1)

357. This item updates a reference to section 32AD of the IGIS Act to section 32AG of the IGIS Act. This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by the Bill.

Australian Security Intelligence Organisation Act 1979

Item 169: Section 4 (paragraph (b) of the definition of IGIS official)

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

Items 170-173: Subsections 18(2B), 18A(2A), 18B(2A), and paragraph 35P(3)(f)

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

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

361. The definition of IGIS official in the ASIO Act includes the Inspector-General, so the provisions will continue to operate in regard to the exercise of powers by the Inspector-General. The proposed notes at the end of new subsections 18(2), 18A(2A) and 18B(2B) remain identical to the current notes. Their inclusion in the items is an artefact of drafting and should not be considered a substantive change.

Item 174: Paragraph 35P(3)(g)

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

Item 175: Subsection 35P(3) (note)

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

Crimes Act 1914

Item 176: Subsection 3(1)

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

Item 177: After paragraph 15LC(4)(d)

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

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

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

Criminal Code Act 1995

Item 178: Subparagraph 122.5(3)(a)(i) of the Criminal Code

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

Income Tax Assessment Act 1997

Item 179: Subsection 995-1(1)

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

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

Intelligence Services Act 2001

Item 180: Subsection 3(1) (paragraph (b) of the definition of IGIS official )

371. This item would update the definition of 'IGIS official' in the IS Act to refer to 'a person covered by section 32(1)' of the IGIS Act, rather than 'a member of the staff referred to in section 32(1)'. This amendment is minor and reflects the expanded nature of section 32(1) of the IGIS Act as amended by the Bill.

Items 181-189: Subsection 39(3), 39A(3), 40(3) and 40B(3), 40C(2A), 40D(2A), 40E(2A), 40F(2A), 40G(2A), 40H(2A), 40L(2A) and 40M(2A)

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

•

communication of certain information

•

unauthorised dealing with records, and

•

unauthorised recording or information or matters, relating to ASIS, AGO, ASD and DIO.

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

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

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

Item 190: Section 41

376. This item renumbers the section, as a result of the insertion of a new subsection 41(2) by this Bill (see below).

Item 191: At the end of section 41

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

Item 192: Subsection 41B(3) (at the end of the definition of information offence provision )

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

Office of National Intelligence Act 2018 (ONI Act)

Item 193: Subsection 4(1) (paragraph (b) of the definition of Inspector-General of Intelligence and Security official or IGIS official )

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

Ombudsman Act 1976

Item 194: Section 5B

380. This item would update the section reference in section 5B. This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by the Bill.

Privacy Act 1988

Item 195: Section 49B

381. This item would update the section reference in section 49B. This is consequential to Part IIIA of the IGIS Act being repealed and replaced (with new numbering) by the Bill.

Public Interest Disclosure Act 2013

Item 196: Section 34 (table item 1, column 2, paragraph (c))

382. Section 34 of the PID Act contains a table which sets out who is to be considered an authorised internal recipient of an internal disclosure, which varies based on the agency to which the conduct to be disclosed relates. An internal disclosure must be made to an authorised internal recipient, or a supervisor of the discloser.

383. Item 1 of the table provides that, in certain circumstances, an authorised officer of the Ombudsman or the IGIS can be an authorised internal recipient of an internal disclosure where the conduct with which the disclosure is concerned relates to an agency other than an intelligence agency, the Ombudsman or the IGIS.

384. Paragraph (c) (of column 2) provides that an authorised officer of the Ombudsman is an authorised recipient if the discloser believes on reasonable grounds that it would be appropriate for the disclosure to be investigated by the Ombudsman. This item would amend this paragraph to note that it applies subject to paragraph (ca) in Column 2 of item 1.

385. Paragraph (ca) provides that where the discloser believes on reasonable ground that:

•

their disclosure relates to action taken by ACIC or AFP in relation to that agency's intelligence functions, and

•

it would be appropriate for the disclosure to be investigated by the IGIS,

an authorised officer of the IGIS would be an authorised internal recipient.

386. This is intended to mirror the arrangements for intelligence agencies found in paragraph (b) of item 2 of the same table.

Item 197: Paragraph 69(3)(b)

387. This item would update the reference to IGIS staff members in the PID Act to refer to 'a person covered by section 32(1)' of the IGIS Act, rather than 'a member of the staff referred to in section 32(1)'. This amendment is minor and reflects the expanded nature of section 32(1) of the IGIS Act (as amended by the Bill).

Item 198: Subsection 77(3)

388. This item would update the reference to IGIS staff members in the PID Act to refer to 'a person covered by section 32(1)' of the IGIS Act, rather than 'a member of the staff mentioned in section 32'. This amendment is minor and reflects the expanded nature of section 32(1) of the IGIS Act.

Surveillance Devices Act 2004

Item 199: At the end of subsection 45(5)

389. Subsections 45(1) and (2) of the SD Act contain offences for the use, recording, communication or publishing of protected information, except as permitted by sections 45, 45A and 65B. This item would insert new paragraph 45(5)(l) that would provide that use, recording and communication of protected information is authorised if it is necessary to do so for the purposes of an IGIS official exercising powers, or performing functions or duties, as an IGIS official.

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

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

Taxation Administration Act 1953

Item 200: Section 355-185 in Schedule 1

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

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

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

395. New subsection 355-185(1) would largely recreate existing subsection 355-185(1), however it would contain a number of amendments consequential to other amendments made by the Bill:

•

New paragraph 355-185(1)(a) would require the entity to be an officer of an Australian government agency, rather than an authorised ASIO officer. This is intended to reflect IGIS's oversight of other agencies within jurisdiction, such as ACIC and AFP, who have access to protected tax information.

•

New paragraph 355-185(1)(b) would use simplified language to describe an IGIS official, utilising the new definition of 'IGIS official' inserted by the amendment to the ITA Act.

•

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

•

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

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

•

New paragraph 355-185(2)(a) would use simplified language to describe an IGIS official, utilising the new definition of 'IGIS official' inserted by the amendment to the ITA Act.

•

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

•

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

•

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

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

Telecommunications Act 1997

Item 201: Section 7

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

Item 202: Subsection 315H(1)

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

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

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

Item 203: After paragraph 315H(1)(b)

402. This item would make a technical change to the wording of subsection 315H(1) consequential to the insertion of paragraph of 315H(1)(c) by the Bill (see above).

Item 204: Section 317B (definition of IGIS official)

403. This item would repeal the definition of 'IGIS official' in section 317B. This is consequential to the insertion of a definition of IGIS official applicable to the whole Telecommunications Act by the Bill.

Telecommunications (Interception and Access) Act 1979

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

Items 205-208: Subsection 63AB(3) to (6)

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

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

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

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

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

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

•

general computer access intercept information, or

•

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

o

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

o

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

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

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

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

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

415. This item would also insert a note after subsection 63AB(5) to refer 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 is to explain the interaction between the TIA Act and the IGIS Act.

Item 209: Section 64 (heading)

416. This item would amend the heading to section 64 so that it no longer referred to the IGIS. This is consequential to the removal of the IGIS from section 64 by the Bill (see below).

Item 210: Subsection 64(1)

417. This item would amend subsection 64(1) to remove the reference to the functions of the IGIS. Dealings in connection with the functions of the IGIS will instead be dealt with in new subsection 64A inserted by the Bill.

Item 211: Subsection 64(2)

418. This item would repeal and replace subsection 64(2) to remove references to the functions of the IGIS. Dealings in connection with the functions of the IGIS will instead be dealt with in new subsection 64A inserted by the Bill. New subsection 64(2) is intended to be effectively identical to existing subsection 64(2) except for the removal of references to the functions of the IGIS. The textual changes to 64(2) are intended to reflect modern drafting practices, and are not intended to change the operation of the provision (apart from the removal of IGIS functions).

Item 212: After section 64

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

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

•

information obtained by an ASIO employee or a person assisting ASIO

•

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

•

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

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

•

a Commonwealth agency, or

•

an eligible authority of a State.

422. 'A Commonwealth agency' is then defined as the:

•

AFP

•

ACLEI, or

•

ACIC.

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

424. As the IGIS has jurisdiction in relation to ACIC and AFP, (and already oversees ASIO), it is not appropriate that the IGIS's ability to access information is contingent on notification to the head of an overseen agency.

425. This item would insert new section 64A which would allow the Inspector-General to deal with information without this restriction.

426. New subsection 64A(1) would allow a person to (in connection with an IGIS official exercising a power, or performing a function or duty, as an IGIS official) communicate to another person, or make use of, or record:

•

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

•

interception warrant information.

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

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

Item 213: Subsection 73(1)

429. This item would amend section 73(1) to insert a reference to section 64A.

430. Section 73(1) provides that where information is provided to a person under particular provisions the recipient may also disclose that information in furtherance of only those purposes. This item would add section 64A to this list. This amendment is consequential to the insertion of section 64A by the Bill.

431. This amendment would allow IGIS officials to on-disclose information that was provided to them under section 64A, so long as that on-disclosure is associated with the IGIS's functions. This is necessary to enable the IGIS to manage its concurrent jurisdiction with other integrity bodies.

Item 214: After section 139

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

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

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

435. This item would insert new section 139AA into Division 2 of Part 3-4 of the TIA Act which would allow a person to (in connection with an IGIS official exercising a power, or performing a function or duty, as an IGIS official) communicate to another person, make use of, or make a record of:

•

lawfully accessed information

•

information obtained by accessing a stored communication (whether or not that information is lawfully accessed information)

•

preservation notice information, or

•

stored communications warrant information.

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

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

Item 215: Section 142

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

439. Section 142 provides that where information is provided to a person under particular provisions the recipient may also disclose that information in furtherance of only those purposes. This item would add section 139AA to this list. This amendment is consequential to the insertion of section 139AA by the Bill.

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

Item 216: Paragraph 181A(3)(c)

441. Subsections 181A(1) and 181A(2) provide criminal penalties for the disclosure of information or a document that relates to the authorisation or revocation of the authorisation as outlined in Division 3 of Part 4-1 of the TIA Act.

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

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

Item 217: Paragraph 181A(6)(c)

444. Subsections 181A(4) and 181A(5) introduce criminal penalties for the use of information or a document that relates to the authorisation or revocation of the authorisation as outlined in Division 3 of Part 4-1 of the TIA Act.

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

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

Item 218: After paragraph 181B(3)(b)

447. Subsections 181B(1) and 181B(2) provide criminal penalties for the disclosure of information or a document that relates to the authorisation or revocation of the authorisation as outlined in Division 4 of Part 4-1 of the TIA Act.

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

Item 219: After paragraph 181B(6)(b)

449. Subsections 181B(4) and 181B(5) provide criminal penalties for the use of information or a document that relates to the authorisation or revocation the authorisation as outlined in Division 4 of Part 4-1 of the TIA Act.

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

Item 220: Paragraph 182(2)(b)

451. Subsection 182(1) provides criminal penalties if a person receives information or a document as allowed under Division 4 or 4A of Part 4-1 of the TIA Act, and then discloses or uses the information or document.

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

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

Item 221: Paragraph 182(3)(b)

454. Subsection 182(1) provides criminal penalties if a person receives information or a document as allowed under Division 4 or 4A of Part 4-1 of the TIA Act, and then discloses or uses the information or document.

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

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

Item 222: Paragraphs 182B(c) and (d)

457. Division 4C of Part 4-1 of the TIA Act provides that a disclosure must not be authorised where it relates to a journalist, unless a journalist information warrant has been authorised.

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

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

SCHEDULE 2 - CONTINGENT AMENDMENTS

Part 1 - Amendments that commence after the National Anti-Corruption Commission Act

Inspector-General of Intelligence and Security Act 1986

Item 1: Subsection 32AC(6) (note)

460. New subsection 32AC as inserted by the Bill would provide certain protections to people who voluntarily provide, or make available, information or documents to the IGIS for the purposes of the IGIS performing its inspection function, complaints functions, or inquiry functions.

461. Subsection 32AC(2) provides an immunity from prosecution under any Commonwealth law where a person provides or makes available information or documents to the IGIS where the IGIS performs its functions (inspections, complaints, preliminary inquiries, and inquiries). This immunity is subject to subsection 32AC(6),

462. Subsection 32AC(6) states that the exemption in subsection 32AC(2) does not apply where a new offence, created after the amendments have passed, states that the exemption does not apply. This section is necessary to ensure the specific offences contained in subsection 32AC(5) can be extended should the need arise.

463. The item would substitute the note at subsection 32AC(6) (as inserted by the Bill), to advise that the whole of section 32AC applies subject to sections 100 to 102 of the National Anti-Corruption Commission Act, which provides for the Commission to direct how investigation material is used or disclosed, including in relation to use by and disclosure to IGIS officials, and creates an offence for individuals who disclose 'investigation material' (defined in that Act) in contravention of a direction. This would mean that an individual who voluntarily provides this confidential investigation material to the IGIS in contravention of a direction is not protected by section 32AC.

Item 2: Section 32AG (note)

464. New subsection 32AG as inserted by the Bill would provide that where the IGIS decides not to investigate a complaint on the basis that it could be more effectively or conveniently dealt with by another integrity body (under new subsection 11(4A)), the IGIS may transfer all, or part, of that complaint to that integrity body.

465. This item would repeal the part of the note following section 32AG (as inserted by the Bill) which draws readers' attention to the corresponding 'deeming provision' in the LEIC Act which states that a complaint that is transferred by the IGIS to the Integrity Commissioner is taken to be a complaint made to the Integrity Commissioner for the purposes of the LEIC Act. This part of the note will be obsolete after the commencement of the National Anti-Corruption Commission Act.

National Anti-Corruption Commission Act 2022

Item 3: Subsection 101(3)

466. This item would substitute the reference to 'section 34B' in subsection 101(3) with a reference to 'section 32AC'. This amendment is consequential to the renumbering of section 34B of the IGIS Act by the insertion of new section 32AC to the IGIS Act by the Bill.

Part 2-Amendments contingent on the National Anti-Corruption Commission Act that might not commence

Law Enforcement Integrity Commissioner Act 2006

Item 4: Paragraph 23A(a)

467. This item would substitute the reference to 'section 32AD' in paragraph 23A(a) with a reference to 'section 32AG'. This amendment is consequential to the renumbering of section 32AD of the IGIS Act by the insertion of new section 32AG to the IGIS Act by the Bill.

Item 5: At the end of section 90

468. This item would insert a new subsection 90(8) into the LEIC Act. Subsection 90(8) is intended to clarify that where a direction has been made in accordance with subsection 90(3C), the protections that would usually be available to an IGIS official under new section 32AC (protection from penalty and prosecution for persons who voluntarily provide information to the Inspector-General, inserted by the Bill) of the IGIS Act do not apply.

SCHEDULE 3 - APPLICATION AND TRANSITIONAL PROVISIONS

Item 1: application - main amendments of the Inspector-General of Intelligence and Security Act 1986

General application provision

469. This item provides when the amendments made to the IGIS Act in Part 1 of Schedule 1 apply to inquiries commenced after the Bill commences.

470. Where an IGIS inquiry is in response to a complaint, the amendments would apply to any complaints made after the Bill commences, and to complaints made before the Bill commences where the IGIS has not completed any preliminary inquiries (under section 14 of the IGIS Act) or where the IGIS has not decided whether to commence an inquiry. Such complaints could relate to conduct that occurred before the commencement of the Bill.

471. It is noted that complaints in relation to DIO or ONI are excluded from this application provision, as the IGIS will not be able to consider complaints in relation to these agencies until Part 1 of Schedule 1 of the Bill commences.

472. The amendments in relation to PIDs and the PID Act do not apply to PIDs that have been allocated under section 43 of the PID Act before the Bill commences.

Appointments as Inspector-General

473. The amendments to section 30 of the IGIS Act (relating to the grounds upon which the Governor-General may terminate the appointment of the Inspector-General) would apply to the current Inspector-General as well as any appointments to the position of Inspector-General following the commencement of Part 1 of Schedule 1.

Amendments relating to giving information etc.

474. The amendments to section 18 of the IGIS Act (which outline the IGIS's information-gathering powers, as well as immunities and protections for persons providing information to the IGIS) would apply in relation to any information or document provided to the IGIS after the commencement of the Schedule 1.

Obligations on Inspector-General

475. Section 17A (inserted by the Bill - relating to the notification obligations when there is evidence of a breach of duty or misconduct) of the IGIS Act would apply in relation to any inspection, preliminary inquiry or inquiry (as the case requires) begun after the commencement of Schedule 1.

476. Subsection 17(10) of the IGIS Act (to be repealed by the Bill, existing notification obligations when there is evidence of a breach of duty or misconduct) would continue to apply to inquiries that had been commenced before the commencement of the Bill. This will make little substantive difference, as the Bill would remake former section 17(10), with the additional ability for the IGIS to notify the Australian Public Service Commissioner where a complaint relates to an agency-head.

Arrangements and agreements of Inspector-General

477. Sections 32AAC and 32AAD (inserted by the Bill - relating to secondment of employees and persons to IGIS) of the IGIS Act do not affect any secondment arrangement that the Inspector-General has entered into before those sections commence.

478. New section 32AB of the IGIS Act (inserted by the Bill - which would require the IGIS to consider the functions of other integrity bodies, and permits the IGIS to consult with other integrity bodies) would apply in relation to any functions performed after the commencement of Schedule 1.

Protections for persons providing information

479. Section 32AC of the IGIS Act (inserted by the Bill - which protects people who voluntarily provide information to the IGIS) applies in relation to any information or document provided or made available to the IGIS, whether before or after the commencement of Schedule 1. This is intended to maximise the protections for individuals who are disclosing information to the IGIS, and to support the IGIS's oversight functions.

Security of Commonwealth agency information and documents

480. Section 32AD of the IGIS Act (inserted by the Bill - which outlines the requirements for the IGIS to protect information) applies in relation to any inspection, preliminary inquiry or inquiry begun after the commencement of Schedule 1.

481. Section 20 (to be repealed by this Bill - relating to the existing requirements for the IGIS to protect information) of the IGIS Act would continue to apply, after the commencement of Part 1 of Schedule 1, in relation to any inspection, preliminary inquiry or inquiry begun before that commencement. This would ensure that there is no gap in the obligation on the IGIS to maintain the security of information and documents.

Authorisation for the purposes of the Privacy Act 1988

482. Section 32AE of the IGIS Act (inserted by the Bill - which would allow agencies to disclose personal information (as defined under the Privacy Act) to provide information to the IGIS) would apply in relation to any personal information given or made available after the commencement of Schedule 1 (whether or not the information was obtained before or after that commencement).

Giving directions and guidelines

483. The amendments to section 32B of the IGIS Act (which relate to the IGIS's ability to request copies of guidelines or directions given to agency heads) would apply in relation to directions or guidelines that are (1) in force immediately before commencement (ie. existing guidelines) and (2) given after the commencement of Schedule 1. This would support the IGIS's ability to access information necessary to perform its oversight functions.

Secrecy

484. Section 34 of the IGIS Act would continue to apply, after the commencement of Schedule 1 to this Act, in relation to any person who has acted as the Inspector-General or as a member of the staff of the Inspector-General before that commencement.

Reporting on preliminary inquiries

485. Section 25B of the IGIS Act (inserted by the Bill - relating to reports on preliminary inquiries) would apply in relation to any preliminary inquiries before or after the commencement of Schedule 1.

Item 2: application of amendments in Part 2 of Schedule 1

486. The amendments contained in Part 2 would commence the day after the Bill receives Royal Assent.

487. Part 2 of the Bill amends numerous Acts to permit the making, disclosing or using (however described) of information, documents or records (however described) to an IGIS official, as part of that IGIS official's duties. This item provides that provisions permitting the disclosure of information to IGIS officials would apply to any disclosure of information, documents or records that occurred after commencement, even where the information, documents or records were obtained by the discloser prior to the commencement of Part 2.