Inspector-General of Intelligence and Security Amendment Act 2011

Inspector‑General of Intelligence and Security Amendment Act 2011

No. 118, 2011

An Act to amend the Inspector‑General of Intelligence and Security Act 1986, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendment of the Inspector‑General of Intelligence and Security Act 1986

Schedule 2—Consequential amendment

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006

Inspector-General of Intelligence and Security Amendment Act 2011

No. 118, 2011

An Act to amend the Inspector‑General of Intelligence and Security Act 1986, and for related purposes

[Assented to 14 October 2011]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Inspector‑General of Intelligence and Security Amendment Act 2011.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:  This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Inspector‑General of Intelligence and Security Act 1986

1  At the end of section 4

Add:

 ; and (d) 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.

2  Paragraph 8(2)(c)

After “responsible Minister”, insert “or of the Inspector‑General’s own motion”.

3  Subsections 8(5), (6) and (7)

Repeal the subsections, substitute:

 (5) The functions of the Inspector‑General under subsections (1), (2) and (3) do not include inquiring into a matter to which a complaint to the Inspector‑General made by an employee of DIGO, DSD, DIO or ONA relates to the extent that the matter is directly related to:

 (a) the promotion, termination of appointment, discipline or remuneration of the employee by the agency; or

 (b) another matter relating to the agency’s employment of the employee.

 (6) The functions of the Inspector‑General include inquiring into a matter to which a complaint to the Inspector‑General made by an ASIO employee or an ASIS employee relates to the extent that the matter is directly related to:

 (a) the promotion, termination of appointment, discipline or remuneration of the employee by ASIO or ASIS; or

 (b) another matter relating to the employment of the employee by ASIO or ASIS.

 (7) 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:

 (a) for an ASIO employee—the Director‑General of Security or ASIO employees; and

 (b) for an ASIS employee—the Director‑General of ASIS or ASIS employees.

Note: See also subsection 11(5).

4  Section 14

Before “Where”, insert “(1)”.

5  At the end of section 14

Add:

 (2) Of his or her own motion, the Inspector‑General may make inquiries of the head of an intelligence agency:

 (a) to determine whether the Inspector‑General is authorised to inquire into an action of the agency; or

 (b) to determine whether the Inspector‑General should inquire into the action if the Inspector‑General is authorised to inquire into it.

6  After subsection 22(4)

Insert:

 (4A) If, under subsection (4), the Inspector‑General gives to a responsible Minister a copy of:

 (a) a final agency copy; or

 (b) a version of a final agency copy;

the Inspector‑General:

 (c) must give to the Prime Minister a copy of the final agency copy, or version, that he or she gave to the responsible Minister, if the Prime Minister requests it; and

 (d) may give to the Prime Minister a copy of the final agency copy, or version, that he or she gave to the responsible Minister, if the Inspector‑General considers it appropriate to do so.

7  Subsection 32(1)

Repeal the subsection, substitute:

 (1) The staff necessary to assist the Inspector‑General are:

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

 (b) any persons employed under subsection (3).

8  At the end of section 32

Add:

 (3) The Inspector‑General may, by written agreement, employ a person to assist the Inspector‑General to perform functions and exercise powers under Division 3 or 4 of Part II for the purposes of a particular inquiry specified in the agreement, as delegated under section 32AA.

 (4) However, the Inspector‑General may only employ a person in relation to a particular inquiry if the responsible Minister is satisfied that:

 (a) it is necessary to employ a person in relation to the particular inquiry; and

 (b) the person has the expertise appropriate to the inquiry.

 (5) The Inspector‑General must determine in writing the terms and conditions of employment of the persons mentioned in paragraph (1)(b).

 (6) Unless the responsible Minister otherwise agrees in relation to a particular inquiry, the person proposed to be employed in relation to the inquiry must be cleared for security purposes to at least the same level, and at the same frequency, as staff members of ASIS.

9  At the end of Part III

Add:

32AA  Delegation

 (1) The Inspector‑General may, by writing signed by the Inspector‑General, delegate all or any of his or her functions or powers under Division 3 or 4 of Part II to a person referred to in subsection 32(3) for the purposes of the particular inquiry concerned.

Note 1: For further provisions relating to delegations, see sections 34AB and 34A of the Acts Interpretation Act 1901.

Note 2: For variation and revocation of an instrument of delegation, see subsection 33(3) of the Acts Interpretation Act 1901.

 (2) In exercising functions or powers under a delegation, the delegate must comply with any written directions of the Inspector‑General.

 (3) On request by a person affected by a delegate’s performance of a function, or exercise of a power, the delegate must produce the instrument of delegation (or a copy of it) for the person to inspect.

10  Paragraphs 34(1)(a), (1AA)(a) and (1AB)(a)

After “to any person”, insert “or to a court”.

11  Subsection 34(5)

Omit all the words from and including “A person” to and including “as a member of the staff of the Inspector‑General”, substitute “If a person is prohibited by this section from disclosing information, the person”.

12  Paragraph 34(5)(a)

Before “section 60A”, insert “Division 9 of Part VII or”.

13  Before paragraph 34(5)(c)

Insert:

 (ba) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under this Act—for the purposes of this Act; and

 (bb) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under Division 9 of Part VII of the Freedom of Information Act 1982—for the purposes of that Division; and

 (bc) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under section 60A of the Freedom of Information Act 1982—for the purposes of that section; and

 (bd) if the person has custody of, or access to, the document because the person is performing functions or duties or exercising powers under section 50A of the Archives Act 1983—for the purposes of that section; and

14  Subsection 34A(1)

Omit “the Commissions”, substitute “a Commission”.

15  Subsection 34A(7) (definition of Commission)

Repeal the definition, substitute:

Commission means a Royal Commission (within the meaning of the Royal Commissions Act 1902) prescribed for the purposes of this definition and includes:

 (a) a person appointed to assist the person or persons constituting the Commission; and

 (b) a person or employee under the control of the person or persons constituting the Commission;

performing any function in relation to the inquiry concerned.

16  After subsection 35(2A)

Insert:

 (2AA) The Inspector‑General must include in a report prepared under subsection (1) the Inspector‑General’s comments on:

 (a) the employment of any person under subsection 32(3) during the year to which the report relates (whether or not the employment commenced during that year); and

 (b) any delegation under section 32AA in force during the year to which the report relates.

Schedule 2—Consequential amendment

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006

1  Section 5 (paragraph (b) of the definition of IGIS official)

Repeal the paragraph, substitute:

 (b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.

[Minister’s second reading speech made in—

House of Representatives on 23 March 2011

Senate on 23 June 2011]