Inspector‑General of Intelligence and Security Regulations 2026

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

in compliance with section 15J of the Legislation Act 2003

Purpose and operation of the Instrument

Section 36 of the Inspector-General of Intelligence and Security Act 1986 (the Act) provides that the Governor-General may make regulations prescribing matters that are required or permitted by the Act to be prescribed by regulations, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Schedule 1 of  the Strengthening Oversight of the National Intelligence Community Act 2025 (SONIC Act), which commences on 4 June 2026, brings additional agencies in the National Intelligence Community within the oversight remit of the Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS), being the Australian Criminal Intelligence Commission and the intelligence functions of the Australian Transaction Reports and Analysis Centre (AUSTRAC), the Australian Federal Police (AFP) and the Department of Home Affairs (Home Affairs).

Schedule 1 of the SONIC Act inserts new section 3A into the Act, which defines the intelligence functions of AUSTRAC and the AFP and provides at subsection 3A(4) that intelligence function for Home Affairs has the meaning given by the regulations. New subsections 3A(5) and 3A(7) provide for certain consultation and notification requirements before and after the making of regulations relating to the meaning of intelligence function for Home Affairs, and new subsection 3A(6) provides that the regulations may prescribe additional consultation or notification requirements in relation to changes to the intelligence functions of Home Affairs.

The purpose of the Regulations is to:

• prescribe the meaning of intelligence function for Home Affairs for the purposes of subsection 3A(4) of the Act, and
• require the Minister for Home Affairs to ensure that relevant ministers, departments and statutory office-holders will be made aware of any changes that may necessitate updates to the meaning given by the Regulations to intelligence function for Home Affairs.

Section 5 of the Regulations provides that intelligence function for Home Affairs means the collection, correlation, analysis, production and dissemination of intelligence by Home Affairs to support the performance of its functions relating to immigration, border security, cyber security or national security.

Section 6 of the Regulations requires the Minister for Home Affairs, if satisfied there is a change to the functions or activities of Home Affairs that may be relevant to determining what meaning should be given to intelligence function for Home Affairs, to ensure that the IGIS, the Commonwealth Ombudsman, and the minister and department responsible for the Act and the Ombudsman Act 1976 are notified. This will ensure that any necessary updates to the Regulations can be identified expeditiously, to ensure oversight arrangements effectively reflect the intelligence functions being undertaken by Home Affairs.

Consultation

Targeted consultation was undertaken with the following agencies to inform the development and drafting of the Regulations:

• Home Affairs, in relation to the entire instrument
• the Office of the IGIS, in relation to the entire instrument
• the Office of the Commonwealth Ombudsman, in relation to the meaning of intelligence function for Home Affairs.

Schedule 1 of the SONIC Act inserts new subsection 3A(5) of the Act, which provides that before the Governor‑General makes regulations for the purposes of subsection 3A(4) of the Act, the Minister must:

1.       consult the IGIS
2.       be satisfied that the IGIS has had the opportunity to be briefed by Home Affairs in relation to the proposed regulations, and
3.       obtain the agreement of the Minister for Home Affairs to the making of the regulations.

The IGIS has been briefed by Home Affairs in relation to the Regulations. The Minister has consulted the IGIS on the Regulations, and the IGIS has raised no concerns. The Minister for Home Affairs agrees to the making of the Regulations.

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 Regulations 2026

The Inspector-General of Intelligence and Security Regulations 2026 (the Regulations) are 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 Disallowable Legislative Instrument

Section 36 of the Inspector-General of Intelligence and Security Act 1986 (the Act) provides that the Governor-General may make regulations prescribing matters that are required or permitted by the Act to be prescribed by regulations, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Schedule 1 of  the Strengthening Oversight of the National Intelligence Community Act 2025 (SONIC Act), which commences on 4 June 2026, brings additional agencies in the National Intelligence Community within the oversight remit of the Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS), being the Australian Criminal Intelligence Commission and the intelligence functions of the Australian Transaction Reports and Analysis Centre (AUSTRAC), the Australian Federal Police (AFP) and the Department of Home Affairs (Home Affairs).

Schedule 1 of the SONIC Act inserts new section 3A into the Act, which defines the intelligence functions of AUSTRAC and the AFP and provides at subsection 3A(4) that intelligence function for Home Affairs has the meaning given by the regulations. New subsections 3A(5) and 3A(7) provide for certain consultation and notification requirements before and after the making of regulations relating to the meaning of intelligence function for Home Affairs, and new subsection 3A(6) provides that the regulations may prescribe additional consultation or notification requirements in relation to changes to the intelligence functions of Home Affairs.

The purpose of the Regulations is to:

• prescribe the meaning of intelligence function for Home Affairs for the purposes of subsection 3A(4) of the Act, and
• require the Minister for Home Affairs to ensure that relevant ministers, departments and statutory office-holders will be made aware of any changes that may necessitate updates to the meaning given by the Regulations to intelligence function for Home Affairs.

Section 5 of the Regulations provides that intelligence function for Home Affairs means the collection, correlation, analysis, production and dissemination of intelligence by Home Affairs to support the performance of its functions relating to immigration, border security, cyber security or national security.

Section 6 of the Regulations requires the Minister for Home Affairs, if satisfied there is a change to the functions or activities of Home Affairs that may be relevant to determining what meaning should be given to intelligence function for Home Affairs, to ensure that the IGIS, the Commonwealth Ombudsman, and the minister and department responsible for the Act and the Ombudsman Act 1976 are notified. This will ensure that any necessary updates to the Regulations can be identified expeditiously, to ensure oversight arrangements effectively reflect the intelligence functions being undertaken by Home Affairs.

Human rights implications

The Regulations engage the following right:

• the prohibition on interference with privacy – Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

The right to privacy in article 17 of the ICCPR 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.

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.

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.

Schedule 1 of the SONIC Act brings the intelligence functions of Home Affairs within the oversight of the IGIS. The IGIS will be able to inspect, investigate and inquire into activities of Home Affairs, to the extent the matter relates to its intelligence functions. Section 5 of the Regulations, which prescribes the meaning of intelligence function for Home Affairs, engages the prohibition on interference with privacy indirectly by influencing the nature of matters the IGIS may oversight.

The IGIS will be entitled to full and free access to any information, documents or other property of Home Affairs, for the purpose of conducting oversight activities in relation to the intelligence functions of Home Affairs. Information accessed or received by the IGIS, or another IGIS official, might include personal information that Home Affairs has acquired or produced in the performance of its intelligence functions.

To the extent section 5 may limit the right to privacy, that limitation is necessary to achieve the legitimate objective of facilitating robust oversight of the intelligence functions of Home Affairs, including in respect to compliance with human rights, by ensuring that the IGIS can access or receive all relevant information. The limitation is proportionate to this objective, because IGIS officials are only able to access or receive information for the purposes of performing duties or functions or exercising powers as an IGIS official. This limits the information they are able to access to that which is necessary to the performance of the IGIS’s oversight functions. Furthermore, the potential limitation on the right to privacy is reasonable because the Act contains a range of provisions that safeguard against inappropriate disclosure of personal information obtained by an IGIS official. For example, improper disclosure by a current or former IGIS official is a criminal offence under section 34 of the Act.

Conclusion

The Regulations are compatible with human rights. To the extent the Regulations may limit human rights, those limitations are reasonable and proportionate.

Attachment A

NOTES ON SECTIONS

Section 1 – Name

This section provides that the title of the instrument is the Inspector-General of Intelligence and Security Regulations 2026 (the Regulations).

Section 2 – Commencement

This section provides for the Regulations to commence on the day after the Regulations are registered, or 4 June 2026, whichever is later.

Section 3 – Authority

This section provides that the Regulations are made under the Inspector‑General of Intelligence and Security Act 1986.

Section 4 – Definitions

This section provides that, for the purposes of the Regulations, Act means the Inspector‑General of Intelligence and Security Act 1986.

This section also notes the Regulations use a number of expressions that are defined in the Act, including the expressions Department of Home Affairs and responsible Minister.

Section 5 – Meaning of intelligence function for the Department of Home Affairs

Subsection 3A(4) of the Act provides that intelligence function for Home Affairs has the meaning given by the regulations.

Section 5 provides that, for the purposes of subsection 3A(4) of the Act, intelligence function for Home Affairs means the collection, correlation, analysis, production and dissemination of intelligence by Home Affairs to support the performance of its functions relating to immigration, border security, cyber security or national security.

The purpose of section 5 is to prescribe the meaning of intelligence function for Home Affairs for the purposes of the Act. The meaning given to intelligence function for Home Affairs by section 5 reflects that the matters dealt with by Home Affairs that are supported by intelligence activities are immigration, border security, cyber security and national security.

The definition is intended to capture actions that Home Affairs undertakes in supporting its immigration, border security, cyber security or national security functions, to the extent they involve the collection, correlation, analysis, production or dissemination of intelligence.

The functions of Home Affairs relating to immigration, border security, cyber security or national security include the following:

• effective coordination and delivery of immigration and citizenship policy and programs underpinned by robust integrity and assurance
• facilitation of trade and travel through effective customs, maritime and enforcement activities across the border and the protection of Australia’s territorial and border integrity from serious threats
• national coordination, regulation and policy that safeguard Australia’s domestic interests from cyber threats
• delivery of national coordination, regulation and policy that safeguard Australia’s domestic interests from national security threats.

The reference to immigration, border security, cyber security and national security reflects the focus of Home Affairs intelligence activities. It is not intended to be an exhaustive list of all the matters dealt with by Home Affairs under the Administrative Arrangements Order that are the subject of IGIS oversight. For example, Home Affairs is also responsible for dealing with transport security and critical infrastructure security. Though section 5 does not refer to these matters specifically, if Home Affairs were to conduct intelligence activities of Home Affairs in respect to transport security or critical infrastructure security, it could nevertheless be captured by the meaning given to intelligence function by section 5 and thus subject to IGIS oversight.

Section 5 ensures that the IGIS and PJCIS will have oversight of actions of Home Affairs in respect to all aspects of the intelligence lifecycle. The reference to the ‘collection, correlation, analysis, production and dissemination of intelligence’ is intended to represent the activities involved in the intelligence lifecycle. Section 5 mirrors the use of this terminology in the Act to define intelligence function for the Australian Federal Police and the Australian Transaction Reports and Analysis Centre, and in the Office of the National Intelligence Act 2018 to define agency with an intelligence role or function. Consistent with the Act and other Commonwealth legislation, intelligence is left undefined and takes its ordinary meaning.

Activities of Home Affairs that are not related to intelligence are not intended to be captured by the meaning of intelligence function. These broader activities of Home Affairs are already subject to appropriate oversight by other integrity bodies, such as the Ombudsman.

The meaning given to intelligence function by section 5 does not capture the collection, correlation, analysis, production or dissemination of information by Home Affairs for law enforcement, regulatory decision-making or other routine departmental practices. For example, it is not intended to capture functions such as payroll or financial management, which are common to all Australian Public Service agencies. It is also not intended to capture the following activities of Home Affairs:

• the use of covert powers under the Telecommunications (Interception and Access) Act 1979 to support the investigation or prosecution of criminal activity
• the collection of information under the Customs Act 1901 for a law enforcement purpose, such as where an Australian Border Force officer takes extracts from documents concerning the importation or exportation of prohibited goods
• the assessment of applications for a customs broker license
• the regulation of critical infrastructure under the Security of Critical Infrastructure Act 2018
• the provision of risk advice to industry about transport security incidents and emerging issues.

Section 6 – Notification of changes to functions etc. of the Department of Home Affairs

This section provides additional notification requirements in relation to changes to the intelligence functions of Home Affairs.

Schedule 1 of the SONIC Act inserts new section 3A into the Act. Under new subsection 3A(5) of the Act, the Minister is required to consult the IGIS and the Minister for the Department of Home Affairs (the Minister for Home Affairs) before regulations are made for the purposes of prescribing the meaning of intelligence function for Home Affairs. New subsection 3A(6) of the Act provides that regulations may prescribe additional consultation or notification requirements in relation to changes to the intelligence functions of Home Affairs.

Subsection 6(1) provides that subsection 6(2) applies if:

1.       there is a change to the functions performed by, or activities undertaken by, Home Affairs, and
2.       having regard to the objects of the Act, the Minister for Home Affairs is satisfied that the change to those functions or activities may be relevant to determining what meaning should be given to intelligence function for Home Affairs by regulations made for the purposes of subsection 3A(4) of the Act.

For example, changes to the functions performed by or activities undertaken by Home Affairs could occur due to an amendment to the Administrative Arrangements Order or as the result of  the establishment or disbandment of functions within Home Affairs. Where such a change occurs, and the Minister for Home Affairs considers it may be relevant to determining what meaning should be given by the Regulations to intelligence function for Home Affairs, subsection 6(2) will apply.

Subsection 6(2) provides that, for the purposes of subsection 3A(6) of the Act, the Minister for Home Affairs must ensure that each of the persons mentioned in paragraphs 6(2)(a)-(d) is notified of the change to the functions performed by, or activities undertaken by, Home Affairs. The following persons are mentioned in paragraphs 6(2)(a)-(d):

1.       the Inspector‑General
2.       the Ombudsman
3.       the Minister administering the Act, and the Secretary of the Department administered by that Minister
4.       the Minister administering the Ombudsman Act 1976, and the Secretary of the Department administered by that Minister.

Section 6 ensures that the IGIS, and the minister and department responsible for the IGIS Act, will be made aware of any changes to the functions or activities of Home Affairs that the Minister for Home Affairs considers relevant to determining what meaning should be given to intelligence function for Home Affairs for the purposes of the Act. This will ensure that any necessary updates to the Regulations can be identified expeditiously, to ensure oversight arrangements effectively reflect the intelligence functions being undertaken by Home Affairs.

It also ensures that the Commonwealth Ombudsman, and the minister and department responsible for the Ombudsman Act, will be notified in the same circumstances. The meaning of intelligence function for Home Affairs that is prescribed by the Regulations is relevant to the Ombudsman. Section 6F of the Ombudsman Act, as amended by Schedule 1 of the SONIC Act, will require the Ombudsman to consult the IGIS in relation to a complaint about action taken by Home Affairs if the Ombudsman considers it could be more appropriately or effectively dealt with by the IGIS, and the Ombudsman may transfer complaints to the IGIS where it is appropriate to do so.