1Short title
This Act may be cited as the Inspector‑General of Intelligence and Security Act 1986.
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This Act may be cited as the Inspector‑General of Intelligence and Security Act 1986.
This Act commences on the day fixed under subsection 2(1) of the Australian Security Intelligence Organization Amendment Act 1986.
In this Act, unless the contrary intention appears:
ACIC means the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.
adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
AFP means the Australian Federal Police.
AGO means that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation, and any part of the Defence Force that performs functions on behalf of that part of the Department.
APS Code of Conduct means the rules in section 13 of the Public Service Act 1999.
ASD means the Australian Signals Directorate.
ASIO means the Australian Security Intelligence Organisation continued in existence by the Australian Security Intelligence Organisation Act 1979.
ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
ASIS means the Australian Secret Intelligence Service.
AUSTRAC means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.
AUSTRAC CEO has the same meaning as in the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.
Australia, when used in a geographical sense, includes the external Territories.
CEO of ACIC means the Chief Executive Officer of ACIC.
Commonwealth agency means the following:
a Department of State, or an Agency within the meaning of the Public Service Act 1999;
the Australian Defence Force;
an intelligence agency;
a body, whether incorporated or not, established for public purposes by or under a law of the Commonwealth;
the holder of an office established for public purposes by or under a law of the Commonwealth;
a body, whether incorporated or not, declared to be a Commonwealth agency by a legislative instrument made under subsection (4).
contracted service provider, for an IGIS contract, means:
a person who is a party to the IGIS contract and who is responsible for the provision of services to the Inspector‑General under the IGIS contract; or
a subcontractor for the IGIS contract.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
Department of Home Affairs means the Department administered by the Minister administering the Australian Border Force Act 2015.
DIO means that part of the Defence Department known as the Defence Intelligence Organisation.
disclosable conduct has the same meaning as in the Public Interest Disclosure Act 2013.
discrimination has the same meaning as in the Australian Human Rights Commission Act 1986.
employee, in relation to a Commonwealth agency, means a person who is employed, whether in a permanent or temporary capacity, in the agency.
head means:
in relation to ASIO—the Director‑General of Security; or
in relation to ASIS—the Director‑General of ASIS; or
in relation to ASD—the Director‑General of ASD; or
in relation to AGO—the Director of AGO; or
in relation to DIO—the Director of DIO; or
in relation to ACIC—the CEO of ACIC; or
in relation to AFP—the Commissioner of Police; or
in relation to AUSTRAC—the AUSTRAC CEO; or
in relation to the Department of Home Affairs—the Secretary of the Department of Home Affairs; or
in relation to ONI—the Director‑General of National Intelligence; or
in relation to any other Commonwealth agency:
in the case of a Department of State—the Secretary of the Department; or
otherwise—the person holding, or performing the duties of, the principal office in respect of the agency.
human rights has the same meaning as in the Australian Human Rights Commission Act 1986.
IGIS contract means a contract, to which the Inspector‑General is a party, under which services are to be, or were to be, provided to the Inspector‑General.
IGIS official (short for Inspector‑General of Intelligence and Security official) means:
the Inspector‑General; or
any other person covered by subsection 32(1).
Information Commissioner: see section 3A of the Australian Information Commissioner Act 2010.
Inspector‑General means the Inspector‑General of Intelligence and Security.
Inspector‑General ADF means the Inspector‑General of the Australian Defence Force referred to in section 110B of the Defence Act 1903.
integrity body:
means any of the following:
the Ombudsman;
the Australian Human Rights Commission;
the Information Commissioner;
the National Anti‑Corruption Commissioner;
the Inspector of the National Anti‑Corruption Commission;
the Inspector‑General ADF; and
for a complaint—has the meaning given by paragraph 11(4A)(a).
intelligence agency means:
ASIO, ASIS, AGO, DIO, ASD, ONI or ACIC; or
the following agencies that have an intelligence function:
AFP;
AUSTRAC;
the Department of Home Affairs.
intelligence function has the meaning given by section 3A.
Judge means:
a Judge of a court created by the Parliament or of a court of a State or of the Northern Territory (other than a Judge or acting Judge of the Local Court of New South Wales or of the Local Court of the Northern Territory); or
a person who has the same designation and status as a Judge of a court created by the Parliament.
law enforcement officer, when used in relation to AFP or ACIC, has the same meaning as in the Surveillance Devices Act 2004.
member, in relation to a Commonwealth agency, means:
an employee of the agency; or
a person who is authorised to perform any of the functions of the agency on behalf of the agency.
network activity warrant has the same meaning as in the Surveillance Devices Act 2004.
network activity warrant provisions of the Surveillance Devices Act 2004 means:
Division 6 of Part 2 of that Act; or
the remaining provisions of that Act so far as they relate to network activity warrants.
Ombudsman means the Commonwealth Ombudsman.
ONI means the Office of National Intelligence.
ONI Act employee means a member of the staff of ONI employed under subsection 33(3) of the Office of National Intelligence Act 2018.
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
positive duty in relation to sex discrimination means section 47C of the Sex Discrimination Act 1984.
Public Service Act ONI employee means a member of the staff of ONI engaged under the Public Service Act 1999.
qualified security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
responsible Minister, in relation to a Commonwealth agency, means:
in the case of an agency established or continued in existence by an Act—the Minister administering that Act, or the part of the Act that establishes the agency or continues the agency in existence; or
in any other case—the Minister having general responsibility for the activities of the agency.
security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
subcontractor, for an IGIS contract, means a person:
who is a party to a contract (the subcontract):
with a contracted service provider for the IGIS contract (within the meaning of paragraph (a) of the definition of contracted service provider); or
with a subcontractor for the IGIS contract (under a previous application of this definition); and
who is responsible under the subcontract for the provision of services to the Inspector‑General, or to a contracted service provider for the IGIS contract, for the purposes (whether direct or indirect) of the IGIS contract.
In this Act, unless the contrary intention appears, a reference to the taking of action includes a reference to:
the making of a decision or recommendation; and
the failure or refusal to take any action or to make a decision or recommendation.
For the purposes of this Act, action that is taken by a member of a Commonwealth agency is deemed to be taken by the agency if the member takes the action in his or her capacity as a member of the agency, whether or not:
the action is taken for or in connection with, or is incidental to, the performance of the functions of the agency; or
the taking of the action is within the duties of the member.
The Attorney‑General may, by legislative instrument, declare a body to be a Commonwealth agency for the purposes of paragraph (f) of the definition of that expression in subsection (1).
Meaning of intelligence function for AFP
Intelligence function for AFP means:
the collection, correlation, analysis, production and dissemination of intelligence by AFP to support the performance of its functions under paragraphs 8(1)(b), (baa), (bd), (be), (bf), (bg) and (bh) of the Australian Federal Police Act 1979; or
the collection, correlation, analysis, production and dissemination of intelligence by AFP to support the performance of its functions under paragraph 8(1)(c) of the Australian Federal Police Act 1979 in relation to a function under any of the paragraphs of that Act mentioned in paragraph (a) of this subsection; or
the collection, correlation, analysis, production and dissemination of intelligence obtained by AFP from the execution of a network activity warrant under Division 6 of Part 2 or Divisions 1 or 2 of Part 6 of the Surveillance Devices Act 2004; or
a function or power conferred on a law enforcement officer of AFP by a Division referred to in paragraph (c).
To avoid doubt, the functions mentioned in paragraphs (1)(a) and (b) of this section do not include:
the arrest, charging or detention of suspected offenders; or
the gathering of evidence, or any activity undertaken to directly support the gathering of evidence.
Meaning of intelligence function for AUSTRAC
Intelligence function for AUSTRAC means the collection, correlation, analysis, production and dissemination of intelligence by AUSTRAC for the purposes of:
the AUSTRAC CEO performing the CEO’s financial intelligence functions under the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006; or
AUSTRAC, the AUSTRAC CEO or any other official of AUSTRAC referred to in paragraph 209(4)(c) of that Act performing functions incidental to that function.
Meaning of intelligence function for the Department of Home Affairs
Intelligence function for the Department of Home Affairs has the meaning given by the regulations.
Before the Governor‑General makes regulations for the purposes of subsection (4), the Minister must:
consult the Inspector‑General; and
be satisfied that the Inspector‑General has had the opportunity to be briefed by the Department of Home Affairs in relation to the proposed regulations; and
obtain the agreement of the responsible Minister for the Department of Home Affairs to the making of the regulations.
The regulations may prescribe additional consultation or notification requirements in relation to changes to the intelligence functions of the Department of Home Affairs.
If the Governor‑General makes regulations for the purposes of subsection (4) or (6):
the Minister must inform the Parliamentary Joint Committee on Intelligence and Security of the regulations; and
the Parliamentary Joint Committee on Intelligence and Security may request a briefing on the regulations from one or more of the following:
the Department of Home Affairs;
the Inspector‑General.
The objects of this Act are:
to assist Ministers in the oversight and review of:
the compliance with the law by, and the propriety of particular activities of, Australian intelligence agencies; and
the effectiveness and appropriateness of the procedures of those agencies relating to the legality or propriety of their activities; and
certain other aspects of the activities and procedures of certain of those agencies; and
to assist Ministers in ensuring that the activities of those agencies are consistent with human rights; and
to assist Ministers in investigating intelligence or security matters relating to Commonwealth agencies, including agencies other than intelligence agencies; and
to allow for review of certain directions given to ASIO by the responsible Minister for ASIO; and
to assist the Government in assuring the Parliament and the public that intelligence and security matters relating to Commonwealth agencies are open to scrutiny, in particular the activities and procedures of intelligence agencies.
This Act applies both within and outside Australia and extends to every external Territory.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
There is to be an Inspector‑General of Intelligence and Security.
The Inspector‑General is to be appointed by the Governor‑General.
Consultation requirement
Before a recommendation is made to the Governor‑General for the appointment of a person as Inspector‑General, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.
Limitation on appointment of Inspector‑General
A person must not be appointed as Inspector‑General if the person is, or the person’s most recent position was, the head or a deputy head (however described) of an intelligence agency.
Arrangements with States and Territories
The Governor‑General may, for the purpose of appointing to the office of Inspector‑General a person who is the holder of a judicial office of a State or of the Northern Territory, enter into such arrangement with the Governor of that State or the Administrator of that Territory, as the case may be, as is necessary to secure that person’s services.
An arrangement under subsection (4) may provide for the Commonwealth to reimburse a State or the Northern Territory with respect to the services of the person to whom the arrangement relates.
For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
the following group of persons is a listed entity:
the Inspector‑General;
a person covered by subsection 32(1) of this Act; and
the listed entity is to be known as the Office of the Inspector‑General of Intelligence and Security; and
the Inspector‑General is the accountable authority of the Office of the Inspector‑General of Intelligence and Security; and
the persons referred to in paragraph (a) are officials of the Office of the Inspector‑General of Intelligence and Security; and
the purposes of the Office of the Inspector‑General of Intelligence and Security include the functions of the Inspector‑General referred to in sections 8, 9 and 9A.
The Attorney‑General may appoint a person to act as the Inspector‑General:
during a vacancy in the office of Inspector‑General; or
during any period, or during all periods, when the Inspector‑General is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
Before the Attorney‑General appoints a person to act as the Inspector‑General, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives about the appointment.
A person’s tenure as the holder of a judicial office and the person’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of the judicial office are not affected by:
the appointment of the person as the Inspector‑General or to act as the Inspector‑General; or
service by the person as the Inspector‑General or while acting as Inspector‑General;
and, for all purposes, the person’s service as Inspector‑General must be taken to be service as the holder of that judicial office.
In this section, judicial office means:
an office of judge of a court created by the Parliament; or
an office the holder of which has, by virtue of holding that office, the same status as a judge of a court created by the Parliament.
Intelligence agency inquiry functions in relation to ASIO
Subject to this section, the functions of the Inspector‑General in relation to ASIO are:
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion or in response to a complaint made to the Inspector‑General, to inquire into any matter that relates to:
the compliance by ASIO with the laws of the Commonwealth and of the States and Territories; or
the compliance by ASIO with directions or guidelines given to ASIO by the responsible Minister; or
the propriety of particular activities of ASIO; or
the effectiveness and appropriateness of the procedures of ASIO relating to the legality or propriety of the activities of ASIO; or
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; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into the procedures of ASIO relating to redress of grievances of ASIO employees and ASIO affiliates; and
at the request of the Attorney‑General or the responsible Minister, to inquire into the action (if any) that should be taken to protect the rights of a person who is an Australian citizen or a permanent resident (within the meaning of the Australian Security Intelligence Organisation Act 1979) if:
ASIO has furnished a report to a Commonwealth agency (within the meaning of that Act) that may result in the taking of action that is adverse to the interests of the person; and
the report could not be reviewed by the Intelligence and Security jurisdictional area of the Administrative Review Tribunal;
and, in particular, to inquire into whether the person should be informed of the report and given an opportunity to make submissions in relation to the report; and
if the responsible Minister has given a direction to ASIO on the question whether:
the collection of intelligence concerning a particular individual is, or is not, justified by reason of its relevance to security; or
the communication of intelligence concerning a particular individual would be for a purpose relevant to security;
to inquire into whether that collection is justified on that ground or whether that communication would be for that purpose, as the case may be; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter that may relate to compliance by ASIO with the positive duty in relation to sex discrimination.
Intelligence agency inquiry functions in relation to ASIS, AGO or ASD
Subject to this section, the functions of the Inspector‑General in relation to ASIS, AGO or ASD are:
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion or in response to a complaint made to the Inspector‑General by a person who is an Australian citizen or a permanent resident (within the meaning of the Intelligence Services Act 2001), to inquire into any matter that relates to:
the compliance by that agency with the laws of the Commonwealth and of the States and Territories; or
the compliance by that agency with directions or guidelines given to that agency by the responsible Minister; or
the propriety of particular activities of that agency; or
an act or practice of that agency 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; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into the procedures of that agency relating to redress of grievances of employees of that agency; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into the effectiveness and appropriateness of the procedures of that agency relating to the legality or propriety of the activities of that agency; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter that may relate to compliance by ASIS, AGO or ASD with the positive duty in relation to sex discrimination.
Intelligence agency inquiry functions in relation to DIO or ONI
Subject to this section, the functions of the Inspector‑General in relation to DIO or ONI are:
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion, or in response to a complaint made to the Inspector‑General by a person who is an Australian citizen or a permanent resident, to inquire into any matter that relates to:
the compliance by that agency with the laws of the Commonwealth and of the States and Territories; or
the compliance by that agency with directions or guidelines given to that agency by the responsible Minister; or
the propriety of particular activities of that agency; and
at the request of the Attorney‑General or the responsible Minister, or of the Inspector‑General’s own motion, 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; and
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion, or in response to a complaint made to the Inspector‑General by a person who is an Australian citizen or a permanent resident, to inquire into any matter that relates to an act or practice of that agency:
that is or may be inconsistent with or contrary to any human right; or
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; and
at the request of the Attorney‑General or the responsible Minister, or of the Inspector‑General’s own motion, to inquire into any matter that relates to the procedures of that agency relating to redress of grievances of employees of that agency; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter in relation to the statutory independence of ONI; and
at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter that may relate to compliance by DIO or ONI with the positive duty in relation to sex discrimination.
In subsection (3), permanent resident has the same meaning as in:
if the agency is DIO—the Intelligence Services Act 2001; and
if the agency is ONI—the Office of National Intelligence Act 2018.
Intelligence agency inquiry functions in relation to AFP, AUSTRAC or the Department of Home Affairs
Subject to this section, the functions of the Inspector‑General in relation to AFP, AUSTRAC or the Department of Home Affairs are:
at the request of the Attorney‑General or the responsible Minister; or
of the Inspector‑General’s own motion; or
in response to a complaint made to the Inspector‑General;
to inquire into any of the following matters, to the extent that the matter relates to an intelligence function of that agency:
the compliance by that agency with the laws of the Commonwealth and of the States and Territories;
the compliance by that agency with directions or guidelines given to that agency by the responsible Minister;
the propriety of particular activities of that agency;
the effectiveness and appropriateness of the procedures of that agency relating to the legality or propriety of the activities of that agency;
any matter that relates to an act or practice of that agency:
that is or may be inconsistent with or contrary to any human right; or
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.
Intelligence agency inquiry functions in relation to ACIC
Subject to this section, the functions of the Inspector‑General in relation to ACIC are:
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion, or in response to a complaint made to the Inspector‑General, to inquire into any matter that relates to:
the compliance by that agency with the laws of the Commonwealth and of the States and Territories; or
the compliance by that agency with directions or guidelines given to that agency by the responsible Minister; or
the propriety of particular activities of that agency; and
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion, or in response to a complaint made to the Inspector‑General, 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; and
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion, or in response to a complaint made to the Inspector‑General, to inquire into any matter that relates to an act or practice of that agency:
that is or may be inconsistent with or contrary to any human right; or
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; and
at the request of the Attorney‑General or the responsible Minister, or of the Inspector‑General’s own motion, to inquire into any matter that relates to the procedures of that agency relating to redress of grievances of employees of that agency; and
at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion, or in response to a complaint made to the Inspector‑General, to inquire into the compliance by that agency with:
directions or guidelines given to that agency; or
policies or other decisions made;
by the Board of ACIC or the Inter‑Governmental Committee established under the Australian Crime Commission Act 2002; and
at the request of the Attorney‑General or the responsible Minister, or of the Inspector‑General’s own motion, to inquire into any matter that may relate to compliance by that agency with the positive duty in relation to sex discrimination.
Intelligence agency inquiry functions in relation to complaints about employment, contracts and related matters
The functions of the Inspector‑General under subsections (1), (2), (3), (3A) and (4) do not include inquiring into a matter to which a complaint to the Inspector‑General made by an employee of AGO, DIO, ACIC, AFP, AUSTRAC, the Department of Home Affairs or by a Public Service Act ONI employee relates to the extent that the matter is directly related to:
the promotion, termination of appointment, discipline or remuneration of the employee by the agency; or
another matter relating to the agency’s employment of the employee.
The functions of the Inspector‑General under subsections (3A) and (4) do not include inquiring into a matter to which a complaint to the Inspector‑General relates, to the extent that:
the complaint is made by a person performing functions or services for ACIC, AFP, AUSTRAC or the Department of Home Affairs in accordance with a contract, agreement or other arrangement; and
the matter is directly related to:
the contract, agreement or other arrangement; or
the performance of functions or services by the person under the contract, agreement or other arrangement, except in relation to the legality or propriety of the performance of the functions or services.
The functions of the Inspector‑General include inquiring into a matter to which a complaint to the Inspector‑General made by an ASIO employee, an ASIS employee, an ONI Act employee or an ASD employee relates to the extent that the matter is directly related to:
the promotion, termination of appointment, discipline or remuneration of the employee by ASIO, ASIS, ONI or ASD; or
another matter relating to the employment of the employee by ASIO, ASIS, ONI or ASD.
However, the Inspector‑General must not inquire into a matter referred to in subsection (6) to the extent that the employee can have the matter reviewed by a body constituted by, or including, persons other than:
for an ASIO employee—the Director‑General of Security or ASIO employees; and
for an ASIS employee—the Director‑General of ASIS or ASIS employees; and
for an ONI Act employee:
the Director‑General of National Intelligence; or
ONI Act employees; or
Public Service Act ONI employees; and
for an ASD employee—the Director‑General of ASD or ASD employees.
See also subsection 11(5) for when the Inspector‑General may decide not to inquire into a matter referred to in subsection (6) of this section.
The functions of the Inspector‑General include inquiring into a matter to which a complaint to the Inspector‑General made by an ASIO affiliate relates to the extent that the matter is related to:
the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for ASIO; or
the performance of functions or services by the ASIO affiliate under the contract, agreement or other arrangement.
However, the Inspector‑General may decide not to inquire into a matter referred to in subsection (8) if the Inspector‑General is satisfied that the ASIO affiliate can have the matter reviewed by a body constituted by, or including, persons other than the Director‑General of Security or ASIO employees.
See also subsection 11(6) for when the Inspector‑General may decide not to inquire into a matter referred to in subsection (8) of this section.
Functions conferred by other Acts
The Inspector‑General may perform functions conferred on the Inspector‑General by another Act.
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