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Inspector-General of Intelligence and Security Act 1986

Authoritative Version
  • - C2012C00756
  • In force - Superseded Version
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Act No. 101 of 1986 as amended, taking into account amendments up to Statute Law Revision Act 2012
An Act to provide for the appointment of an Inspector-General of Intelligence and Security, and for related purposes
Administered by: Prime Minister and Cabinet
Registered 29 Oct 2012
Start Date 22 Sep 2012
End Date 14 Jan 2014

Inspector‑General of Intelligence and Security Act 1986

Act No. 101 of 1986 as amended

This compilation was prepared on 29 October 2012
taking into account amendments up to Act No. 136 of 2012

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Parliamentary Counsel, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation....................................................................................... 1

4............ Objects of Act..................................................................................... 4

5............ Application of Act............................................................................... 5

5A......... Application of the Criminal Code....................................................... 5

Part II—Inspector‑General                                                                                              6

Division 1—Establishment and functions of Inspector‑General            6

6............ Inspector‑General of Intelligence and Security.................................... 6

6A......... Acting Inspector‑General.................................................................... 6

7............ Appointment of Judge as Inspector‑General not to affect tenure etc... 7

8............ Intelligence agency inquiry functions of Inspector‑General................ 7

9............ Additional inquiry functions of Inspector‑General............................ 11

9AA...... Limits on the Inspector‑General’s functions..................................... 12

9A......... Inspection functions of Inspector‑General........................................ 12

9B......... Power to enter places of detention..................................................... 12

Division 2—Complaints                                                                                             13

10.......... Form of complaints........................................................................... 13

11.......... Inquiry into complaint....................................................................... 13

12.......... Procedure where complaint not pursued........................................... 14

13.......... Special arrangements for persons in custody.................................... 14

14.......... Preliminary inquiries......................................................................... 15

Division 3—Inquiries                                                                                                  17

15.......... Inspector‑General to inform certain persons before commencing an inquiry            17

16.......... Inspector‑General to consult with Auditor‑General and Ombudsman 17

17.......... Conduct of inquiries.......................................................................... 18

18.......... Power to obtain information and documents..................................... 19

19.......... Entry to premises occupied by a Commonwealth agency.................. 21

19A....... Power to enter places of detention..................................................... 22

20.......... Security of Commonwealth agency documents................................. 22

Division 4—Reports                                                                                                    23

21.......... Draft reports relating to inquiries...................................................... 23

22.......... Reports relating to inquiries given to Commonwealth agency head etc. 24

23.......... Advice to complainant....................................................................... 25

24.......... Action as a result of reports.............................................................. 26

24A....... Action as a result of reports given to Minister or Secretary.............. 26

25.......... Reports concerning collection or communication of intelligence....... 27

25A....... Reports relating to other inspections [see Note 2]............................. 27

Part III—Administrative Provisions                                                                         28

26.......... Terms and conditions of appointment............................................... 28

27.......... Remuneration and allowances........................................................... 28

28.......... Leave of absence............................................................................... 28

29.......... Resignation....................................................................................... 29

30.......... Termination of appointment.............................................................. 29

31.......... Disclosure of interests....................................................................... 30

32.......... Staff.................................................................................................. 30

32AA.... Delegation......................................................................................... 31

Part IV—Miscellaneous                                                                                                    32

32A....... Inspector‑General may obtain reports............................................... 32

32B....... Minister to give directions and guidelines to Inspector‑General........ 33

33.......... Protection from civil actions.............................................................. 33

34.......... Secrecy.............................................................................................. 33

34A....... Information and documents may be given to Royal Commissioners. 36

35.......... Annual report.................................................................................... 38

36.......... Regulations....................................................................................... 39

Notes                                                                                                                                             41


An Act to provide for the appointment of an Inspector‑General of Intelligence and Security, and for related purposes

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Inspector‑General of Intelligence and Security Act 1986.

2  Commencement [see Note 1]

                   This Act shall come into operation on the day fixed under subsection 2(1) of the Australian Security Intelligence Organization Amendment Act 1986.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.

ASIO means the Australian Security Intelligence Organisation continued in existence by the Australian Security Intelligence Organisation Act 1979.

ASIS means the Australian Secret Intelligence Service.

Australia, when used in a geographical sense, includes the external Territories.

Commonwealth agency means the following:

                     (a)  a Department of State, or an Agency within the meaning of the Public Service Act 1999;

                     (b)  the Australian Defence Force;

                     (c)  an intelligence agency;

                     (d)  a body, whether incorporated or not, established for public purposes by or under a law of the Commonwealth;

                     (e)  the holder of an office established for public purposes by or under a law of the Commonwealth;

                      (f)  a body, whether incorporated or not, declared to be a Commonwealth agency by a legislative instrument made under subsection (4).

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.

DIGO means that part of the Defence Department known as the Defence Imagery and Geospatial Organisation, and any part of the Defence Force that performs functions on behalf of that part of the Department.

discrimination has the same meaning as in the Australian Human Rights Commission Act 1986.

DIO means that part of the Defence Department known as the Defence Intelligence Organisation.

DSD means that part of the Defence Department known as the Defence Signals Directorate, and includes any part of the Defence Force that performs functions on behalf of that part of that Department.

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:

                     (a)  in relation to ASIO—the Director‑General of Security; or

                     (b)  in relation to ASIS—the Director‑General of ASIS; or

                     (c)  in relation to DIGO—the Director of DIGO; or

                     (d)  in relation to DIO—the Director of DIO; or

                     (e)  in relation to DSD—the Director of DSD; or

                      (f)  in relation to ONA—the Director‑General of ONA; or

                     (g)  in relation to any other Commonwealth agency:

                              (i)  in the case of a Department of State—the Secretary of the Department; or

                             (ii)  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.

Inspector‑General means the Inspector‑General of Intelligence and Security.

intelligence agency means ASIO, ASIS, DIGO, DIO, DSD or ONA.

Judge means:

                     (a)  a Judge of a court created by the Parliament or of a court of a State or of the Northern Territory; or

                     (b)  a person who has the same designation and status as a Judge of a court created by the Parliament.

member, in relation to a Commonwealth agency, means:

                     (a)  an employee of the agency; or

                     (b)  a person who is authorised to perform any of the functions of the agency on behalf of the agency.

Ombudsman means the Commonwealth Ombudsman.

ONA means the Office of National Assessments established by the Office of National Assessments Act 1977.

permanent resident means a person, other than an Australian citizen:

                     (a)  whose normal place of residence is situated in Australia;

                     (b)  whose presence in Australia is not subject to any limitation as to time imposed by law; and

                     (c)  who is not an illegal entrant within the meaning of the Migration Act 1958.

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:

                     (a)  in the case of an agency established or continued in existence by an Act—the Minister administering that Act; or

                     (b)  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.

             (2)  In this Act, unless the contrary intention appears, a reference to the taking of action includes a reference to:

                     (a)  the making of a decision or recommendation; and

                     (b)  the failure or refusal to take any action or to make a decision or recommendation.

             (3)  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:

                     (a)  the action is taken for or in connection with, or is incidental to, the performance of the functions of the agency; or

                     (b)  the taking of the action is within the duties of the member.

             (4)  The Minister 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).

4  Objects of Act

                   The objects of this Act are:

                     (a)  to assist Ministers in the oversight and review of:

                              (i)  the compliance with the law by, and the propriety of particular activities of, Australian intelligence agencies; and

                             (ii)  the effectiveness and appropriateness of the procedures of those agencies relating to the legality or propriety of their activities; and

                            (iii)  certain other aspects of the activities and procedures of certain of those agencies; and

                     (b)  to assist Ministers in ensuring that the activities of those agencies are consistent with human rights; and

                   (ba)  to assist Ministers in investigating intelligence or security matters relating to Commonwealth agencies, including agencies other than intelligence agencies; and

                     (c)  to allow for review of certain directions given to ASIO by the Attorney‑General; 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.

5  Application of Act

                   This Act applies both within and outside Australia and extends to every external Territory.

5A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part IIInspector‑General

Division 1Establishment and functions of Inspector‑General

6  Inspector‑General of Intelligence and Security

             (1)  There shall be an Inspector‑General of Intelligence and Security.

             (2)  The Inspector‑General shall be appointed by the Governor‑General.

             (3)  Before a recommendation is made to the Governor‑General for the appointment of a person as Inspector‑General, the Prime Minister shall consult with the Leader of the Opposition in the House of Representatives.

             (4)  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.

             (5)  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.

6A  Acting Inspector‑General

             (1)  The Prime Minister may appoint a person to act as the Inspector‑General:

                     (a)  during a vacancy in the office of Inspector‑General; or

                     (b)  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.

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

             (2)  Before appointing 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.

7  Appointment of Judge as Inspector‑General not to affect
tenure etc.

             (1)  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:

                     (a)  the appointment of the person as the Inspector‑General or to act as the Inspector‑General; or

                     (b)  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.

             (2)  In this section, judicial office means:

                     (a)  an office of judge of a court created by the Parliament; or

                     (b)  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.

8  Intelligence agency inquiry functions of Inspector‑General

             (1)  Subject to this section, the functions of the Inspector‑General in relation to ASIO are:

                     (a)  at the request of 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:

                              (i)  the compliance by ASIO with the laws of the Commonwealth and of the States and Territories; or

                             (ii)  the compliance by ASIO with directions or guidelines given to ASIO by the responsible Minister; or

                            (iii)  the propriety of particular activities of ASIO; or

                            (iv)  the effectiveness and appropriateness of the procedures of ASIO relating to the legality or propriety of the activities of ASIO; or

                             (v)  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, being an act or practice referred to the Inspector‑General by the Australian Human Rights Commission; and

                     (b)  at the request of the responsible Minister or of the Inspector‑General’s own motion, to inquire into the procedures of ASIO relating to redress of grievances of employees of ASIO; and

                     (c)  at the request of 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 in a case where:

                              (i)  ASIO has furnished a report to a Commonwealth agency (within the meaning of Part IV of the Australian Security Intelligence Organisation Act 1979) that may result in the taking of action that is adverse to the interests of the person; and

                             (ii)  the report could not be reviewed by the Security Appeals Division of the Administrative Appeals 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

                     (d)  where the responsible Minister has given a direction to ASIO on the question whether:

                              (i)  the collection of intelligence concerning a particular individual is, or is not, justified by reason of its relevance to security; or

                             (ii)  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.

             (2)  Subject to this section, the functions of the Inspector‑General in relation to ASIS, DIGO or DSD are:

                     (a)  at the request of 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:

                              (i)  the compliance by that agency with the laws of the Commonwealth and of the States and Territories; or

                             (ii)  the compliance by that agency with directions or guidelines given to that agency by the responsible Minister; or

                            (iii)  the propriety of particular activities of that agency; or

                            (iv)  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, being an act or practice referred to the Inspector‑General by the Australian Human Rights Commission; and

                     (b)  at the request of 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

                     (c)  at the request of 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.

             (3)  Subject to this section, the functions of the Inspector‑General in relation to DIO or ONA are:

                     (a)  at the request of the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter that relates to:

                              (i)  the compliance by that agency with the laws of the Commonwealth and of the States and Territories; or

                             (ii)  the propriety of particular activities of that agency; or

                            (iii)  the effectiveness and appropriateness of the procedures of that agency relating to the legality or propriety of the activities of that agency; and

                     (b)  at the request of the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter that relates to:

                              (i)  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, being an act or practice referred to the Inspector‑General by the Australian Human Rights Commission; or

                             (ii)  the procedures of that agency relating to redress of grievances of employees of that agency; and

                     (c)  at the request of the responsible Minister or of the Inspector‑General’s own motion, to inquire into any matter in relation to the statutory independence of ONA.

             (4)  The Inspector‑General shall not, of his or her own motion or in response to a complaint made to the Inspector‑General, perform any of the functions set out in paragraph (2)(a) in relation to action taken by ASIS, DIGO or DSD except to the extent that Australian citizens or permanent residents are affected or a law of the Commonwealth, a State or a Territory may be violated.

             (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).

             (9)  The Inspector‑General may perform functions conferred on the Inspector‑General by another Act.

9  Additional inquiry functions of Inspector‑General

Intelligence agencies

             (1)  The Prime Minister may request the Inspector‑General to inquire into a matter relating to an intelligence agency.

             (2)  The Inspector‑General must comply with a request under subsection (1) if inquiring into the matter is within the functions of the Inspector‑General referred to in section 8 (whether those functions may be performed following a request by a Minister or otherwise).

Commonwealth agencies

             (3)  The Prime Minister may request the Inspector‑General to inquire into an intelligence or security matter relating to a Commonwealth agency.

             (4)  The Inspector‑General must comply with a request under subsection (3).

9AA  Limits on the Inspector‑General’s functions

                   The Inspector‑General must not, in the performance of his or her functions under section 8 or 9:

                     (a)  inquire into a matter relating to a Commonwealth agency that occurred outside Australia, or before the commencement of this Act, without the approval of:

                              (i)  if the inquiry started as the result of a request under section 9—the Prime Minister; or

                             (ii)  otherwise—the responsible Minister; or

                     (b)  inquire into action taken by a Minister except to the extent necessary to perform the functions of the Inspector‑General referred to in subparagraphs 8(1)(a)(ii) and 8(2)(a)(ii) and paragraph 8(1)(d); or

                     (c)  inquire into a matter, other than a matter that is referred to the Inspector‑General under subsection 65(1A) of the Australian Security Intelligence Organisation Act 1979, that is, or could be, the subject of a review by the Security Appeals Division of the Administrative Appeals Tribunal.

9A  Inspection functions of Inspector‑General

                   The functions of the Inspector‑General in relation to an intelligence agency include conducting, at such times as the Inspector‑General determines in consultation with the head of the agency, such other inspections of the agency as the Inspector‑General considers appropriate for the purpose of giving effect to the objects of this Act.

9B  Power to enter places of detention

                   The Inspector‑General may, after notifying the Director‑General of Security, at any reasonable time, enter any place where a person is being detained under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 for the purposes of an inspection under section 9A.


 

Division 2Complaints

10  Form of complaints

             (1)  Subject to subsection (2), a complaint may be made to the Inspector‑General orally or in writing.

             (2)  Where a complaint is made orally to the Inspector‑General, the Inspector‑General shall:

                     (a)  put the complaint in writing; or

                     (b)  require the complainant to put the complaint in writing and, if such a requirement is made and the complainant does not put the complaint in writing, the Inspector‑General may refuse to inquire into the complaint, or to inquire into the complaint further, until the complainant puts the complaint in writing.

11  Inquiry into complaint

             (1)  Where:

                     (a)  a complaint is made to the Inspector‑General in respect of action taken by an intelligence agency; and

                     (b)  inquiring into the action in response to a complaint is within the functions of the Inspector‑General referred to in section 8;

the Inspector‑General shall, subject to this section, inquire into the action.

             (2)  Where a complaint is made to the Inspector‑General in respect of action taken by an intelligence agency, the Inspector‑General may decide not to inquire into the action or, if the Inspector‑General has commenced to inquire into the action, decide not to inquire into the action further if the Inspector‑General is satisfied that:

                     (a)  the complainant became aware of the action more than 12 months before the complaint was made;

                     (b)  the complaint is frivolous or vexatious or was not made in good faith; or

                     (c)  having regard to all the circumstances of the case, an inquiry, or further inquiry, into the action is not warranted.

             (3)  Where a complainant has exercised or exercises a right to cause the action to which a complaint relates to be reviewed by a court or a tribunal, the Inspector‑General shall not inquire into, or continue to inquire into, the action unless the Inspector‑General is of the opinion that there are special reasons for doing so.

             (4)  Where the Inspector‑General is of the opinion that a complainant has or had a right to cause action to which a complaint relates to be reviewed by a court or a tribunal but has not exercised that right, the Inspector‑General may decide not to inquire into the action or not to inquire into the action further if, in the opinion of the Inspector‑General, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right.

             (5)  The Inspector‑General shall not inquire into the matters to which a complaint of the kind referred to in subsection 8(6) relates in respect of action taken by an intelligence agency if the Inspector‑General is satisfied that:

                     (a)  the procedures of that agency relating to redress of grievances of employees of that agency are adequate and effective;

                     (b)  the complainant has not pursued those procedures as far as practicable; or

                     (c)  the matters to which the complaint relates are not of sufficient seriousness or sensitivity to justify an inquiry into those matters.

12  Procedure where complaint not pursued

                   Where the Inspector‑General decides not to inquire into, or not to inquire further into, a matter to which a complaint made to the Inspector‑General relates in respect of action taken by an intelligence agency, the Inspector‑General shall, by notice in writing, inform the complainant, the responsible Minister and the head of the agency accordingly.

13  Special arrangements for persons in custody

             (1)  A person who is detained in custody is entitled:

                     (a)  upon making a request to the person in whose custody he or she is detained or to any other person performing duties in connection with that detention:

                              (i)  to be provided with facilities for preparing a complaint in writing to the Inspector‑General under this Act, for furnishing in writing to the Inspector‑General after the complaint has been made any other relevant information and for enclosing the complaint or other information (if any) in a sealed envelope; and

                             (ii)  to have sent to the Inspector‑General, without undue delay, a sealed envelope addressed to the Inspector‑General; and

                     (b)  to have delivered to him or her, without undue delay, any sealed envelope addressed to him or her and sent by the Inspector‑General that comes into the possession or under the control of the person in whose custody he or she is detained or of any other person performing duties in connection with that detention.

             (2)  A sealed envelope referred to in subsection (1) shall not be opened by a person other than the addressee or a person acting on behalf of the addressee.

             (3)  For the purposes of subsections (1) and (2), the Inspector‑General may make arrangements with the appropriate authority of a State or Territory for the identification and delivery of sealed envelopes sent by the Inspector‑General to persons detained in custody in that State or Territory.

14  Preliminary inquiries

             (1)  Where a complaint is made to the Inspector‑General in respect of action taken by an intelligence agency, the Inspector‑General may, for the purpose of:

                     (a)  determining whether the Inspector‑General is authorised to inquire into the action; or

                     (b)  if the Inspector‑General is authorised to inquire into the action: determining whether the Inspector‑General should inquire into the action;

make inquiries of the head of the agency in relation to the action.

             (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.


 

Division 3Inquiries

15  Inspector‑General to inform certain persons before commencing an inquiry

             (1)  The Inspector‑General shall, before commencing an inquiry into a matter relating to a Commonwealth agency, inform the responsible Minister and, subject to subsections (2) and (3), the head of the agency that the Inspector‑General proposes to conduct the inquiry.

             (2)  The Inspector‑General is not required by subsection (1) to advise the head of a Commonwealth agency that the Inspector‑General proposes to conduct an inquiry into a matter that relates directly to the head of the agency.

             (3)  However, if the Inspector‑General does not advise the head of a Commonwealth agency that the Inspector‑General proposes to conduct an inquiry into a matter that relates directly to the head of the agency, the Inspector‑General must instead advise:

                     (a)  if the matter relates to the head of ASIO, ASIS or ONA—the responsible Minister in relation to ASIO, ASIS or ONA, as the case requires; or

                     (b)  if the matter relates to the head of DIGO, DIO or DSD—the Secretary of the Defence Department; or

                     (c)  otherwise—the responsible Minister for the agency.

             (4)  To avoid doubt, this section is subject to section 17.

16  Inspector‑General to consult with Auditor‑General and Ombudsman

                   The Inspector‑General shall, before commencing an inquiry into a matter relating to a Commonwealth agency, have regard to the functions of the Auditor‑General and the Ombudsman in relation to that agency and may consult with the Auditor‑General or the Ombudsman in relation to that matter with a view to avoiding inquiries being conducted into that matter by the Inspector‑General and either or both of the Auditor‑General and the Ombudsman.

17  Conduct of inquiries

             (1)  An inquiry by the Inspector‑General shall be conducted in private and, subject to this Division, in such manner as the Inspector‑General thinks fit.

             (2)  The Inspector‑General may, for the purposes of this Act, obtain information from such persons, and make such inquiries, as the Inspector‑General thinks fit.

             (3)  Subject to subsections (4) and (5), it is not necessary for a complainant or any other person to be afforded an opportunity to appear before the Inspector‑General or before any other person in connection with an inquiry by the Inspector‑General under this Act.

             (4)  The Inspector‑General shall not make a report in relation to an inquiry conducted under this Act in which the Inspector‑General sets out opinions that are, either expressly or impliedly, critical of a Commonwealth agency unless the Inspector‑General has, before completing the inquiry, given the head of the agency a reasonable opportunity to appear before the Inspector‑General and to make, either orally or in writing, submissions in relation to the matters that are the subject of the inquiry.

             (5)  Where the Inspector‑General proposes to set out in a report in relation to an inquiry conducted under this Act opinions that are, either expressly or impliedly, critical of a person, the Inspector‑General shall, unless doing so would, in the opinion of the Inspector‑General, prejudice security, the defence of Australia or Australia’s relations with other countries, give the person a reasonable opportunity to appear before the Inspector‑General and to make, either orally or in writing, submissions in relation to the matters that are the subject of the inquiry.

             (6)  Where the Inspector‑General gives, under subsection (4) or (5), the head of a Commonwealth agency or another person an opportunity to appear before the Inspector‑General, the person may, with the approval of the Inspector‑General, be represented by another person.

             (7)  The Inspector‑General may, at any time before completing an inquiry under this Act into a matter relating to a Commonwealth agency, discuss any matter that is relevant to the inquiry with the responsible Minister.

             (8)  The Inspector‑General may, at any time before completing an inquiry under this Act into a matter relating to a Commonwealth agency, if it is appropriate to do so, consult with the Prime Minister on any matter that is relevant to the inquiry.

             (9)  The Inspector‑General shall not make a report in relation to an inquiry conducted under this Act in which the Inspector‑General sets out opinions that are, either expressly or impliedly, critical of a Commonwealth agency unless the Inspector‑General has given the responsible Minister a reasonable opportunity to discuss the proposed report with the Inspector‑General.

           (10)  Where the Inspector‑General forms the opinion that there is evidence that a person who is a member of a Commonwealth agency has been guilty of a breach of duty or of misconduct and that the evidence is of sufficient weight to justify the Inspector‑General doing so, the Inspector‑General shall bring the evidence to the notice of:

                     (a)  in a case where the person is the head of that agency—the responsible Minister; or

                     (b)  in any other case—the head of that agency.

18  Power to obtain information and documents

             (1)  Where the Inspector‑General has reason to believe that a person is capable of giving information or producing documents relevant to a matter that is being inquired into by the Inspector‑General under this Act, the Inspector‑General may, by notice in writing given to the person, require the person, at such reasonable place and within such reasonable period as are specified in the notice:

                     (a)  to give to the Inspector‑General, by writing signed by that person or, in the case of a body corporate, on behalf of the body corporate, any such information; or

                     (b)  to produce to the Inspector‑General any such documents.

             (2)  Where documents are produced to the Inspector‑General in accordance with a requirement under subsection (1), the Inspector‑General:

                     (a)  may take possession of, and may make copies of or take extracts from, the documents;

                     (b)  may retain possession of the documents for such period as is necessary for the purposes of the inquiry to which the documents relate; and

                     (c)  during that period shall permit a person who would be entitled to inspect any one or more of the documents if they were not in the possession of the Inspector‑General to inspect at all reasonable times such of the documents as the person would be so entitled to inspect.

             (3)  Where the Inspector‑General has reason to believe that a person is able to give information relevant to a matter that is being inquired into by the Inspector‑General under this Act, the Inspector‑General may, by notice in writing given to the person, require the person to attend before the Inspector‑General, at such reasonable time and place as are specified in the notice, to answer questions relevant to the matter under inquiry.

             (4)  The Inspector‑General may administer an oath or affirmation to a person required to attend before the Inspector‑General under subsection (3) and may examine the person on oath or affirmation.

             (5)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.

             (6)  A person is not excused from giving any information, producing a document or answering a question when required to do so under this section on the ground that the giving of the information, the production of the document or the answer to the question:

                     (a)  would contravene the provisions of any other Act, would be contrary to the public interest or might tend to incriminate the person or make the person liable to a penalty; or

                     (b)  would disclose legal advice given to a Minister or a Commonwealth agency;

but the information, the production of the document or the answer to the question is not admissible in evidence against the person in any court or in any proceedings before a person authorised to hear evidence except in a prosecution for:

                     (c)  an offence against this section; or

                    (ca)  an offence against section 137.1 of the Criminal Code that relates to this section; or

                     (d)  an offence against:

                              (i)  section 6 of the Crimes Act 1914; or

                             (ii)  section 11.1, 11.4 or 11.5 of the Criminal Code;

                            being an offence that relates to an offence against this section.

             (7)  A person who:

                     (a)  fails to be sworn or to make an affirmation or to give information or produce a document when required to do so under this section; or

                     (b)  after being given a notice under subsection (3), fails to comply with the notice or to answer a question that the Inspector‑General requires the person to answer;

is guilty of an offence punishable on conviction:

                     (c)  in the case of a natural person—by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both; or

                     (d)  in the case of a body corporate—by a fine not exceeding $5,000.

          (7A)  Subsection (7) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

          (7B)  Subsection (7) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

             (9)  A person is not liable to any penalty under the provisions of any law of the Commonwealth or of a Territory by reason only of the person having given information, produced a document or answered a question when required to do so under this section.

19  Entry to premises occupied by a Commonwealth agency

                   The Inspector‑General may, after notifying the head of a Commonwealth agency, at any reasonable time, enter any place occupied by the agency for the purposes of an inquiry under this Act.

19A  Power to enter places of detention

                   The Inspector‑General may, after notifying the Director‑General of Security, at any reasonable time, enter any place where a person is being detained under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 for the purposes of an inquiry under this Act.

20  Security of Commonwealth agency documents

                   Where:

                     (a)  the Inspector‑General requires access to documents in the possession of a Commonwealth agency for the purposes of an inquiry by the Inspector‑General under this Act; and

                     (b)  those documents have a national security or other protective security classification;

the Inspector‑General shall, if he or she intends to remove those documents from the possession of the agency, make arrangements with the head of the agency for the protection of those documents while they remain in the Inspector‑General’s possession and for the return of those documents.


 

Division 4Reports

21  Draft reports relating to inquiries

             (1)  If the Inspector‑General completes an inquiry under this Act into a matter relating to a Commonwealth agency, the Inspector‑General must:

                     (a)  prepare a draft report setting out the Inspector‑General’s conclusions and recommendations as a result of the inquiry; and

                     (b)  subject to subsections (1A) and (1B), give a copy (the draft agency copy) of the draft report to the head of the agency.

       (1AA)  The Inspector‑General may remove from a draft agency copy any matters that do not relate to the Commonwealth agency concerned.

          (1A)  The Inspector‑General is not required by subsection (1) to give to the head of a Commonwealth agency a draft agency copy setting out conclusions and recommendations in respect of a matter that relates directly to the head of the agency.

          (1B)  However, if the Inspector‑General does not give to the head of a Commonwealth agency a draft agency copy setting out conclusions and recommendations in respect of a matter that relates directly to the head of the agency, the Inspector‑General must give the draft agency copy to:

                     (a)  if the matter relates to the head of ASIO, ASIS or ONA—the responsible Minister in relation to ASIO, ASIS or ONA, as the case requires; or

                     (b)  if the matter relates to the head of DIGO, DIO or DSD—the Secretary of the Defence Department; or

                     (c)  otherwise—the responsible Minister for the agency.

          (1C)  To avoid doubt, subsections (1), (1A) and (1B) are subject to section 17.

             (2)  Where:

                     (a)  the Inspector‑General gives a draft agency copy to the head of a Commonwealth agency, a responsible Minister or the Secretary of the Defence Department; and

                     (b)  the head of the agency, the responsible Minister or the Secretary makes comments on the draft report within a reasonable time after being given the draft agency copy;

the Inspector‑General shall include in his or her final report in relation to the inquiry such of those comments as are relevant to the final report.

22  Reports relating to inquiries given to Commonwealth agency head etc.

             (1)  If the Inspector‑General completes an inquiry under this Act into a matter relating to a Commonwealth agency, the Inspector‑General must:

                     (a)  prepare a report setting out the Inspector‑General’s conclusions and recommendations as a result of the inquiry; and

                     (b)  give a copy (the final agency copy) of the report:

                              (i)  if a draft agency copy was given to the head of the Commonwealth agency under subsection 21(1)—to the head of the Commonwealth agency; or

                             (ii)  otherwise—to the person to whom a draft agency copy was given under subsection 21(1B).

          (1A)  The Inspector‑General may remove from a final agency copy any matters that do not relate to the Commonwealth agency concerned.

             (2)  The Inspector‑General shall include in such a report:

                     (a)  the Inspector‑General’s reasons for the conclusions and recommendations set out in the report; and

                     (b)  if the Inspector‑General considers that a person has been adversely affected by action taken by a Commonwealth agency and that the person should receive compensation for that action—a recommendation that the person receive compensation.

             (3)  If the report, or a final agency copy of the report, includes information that was acquired by the Commissioner of Taxation under the provisions of a taxation law (within the meaning of the Income Tax Assessment Act 1997), the Inspector‑General must prepare another version of the report, or the final agency copy, that does not disclose the tax information.

Note:          Section 355‑185 in Schedule 1 to the Taxation Administration Act 1953 permits the Inspector‑General to disclose the information to the Director‑General of Security in the report under subsection (1).

             (4)  The Inspector‑General must give the responsible Minister a copy of:

                     (a)  the final agency copy; or

                     (b)  if subsection (3) applies—the version of the final agency copy mentioned in that subsection.

          (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.

             (5)  In addition, if the inquiry was conducted as a result of a request made by the Prime Minister under section 9, the Inspector‑General must give the Prime Minister a copy of:

                     (a)  the report mentioned in subsection (1) of this section; or

                     (b)  if subsection (3) of this section applies—the version of the report mentioned in that subsection.

23  Advice to complainant

             (1)  Where the Inspector‑General has conducted an inquiry under this Act following a complaint in respect of action taken by an intelligence agency, the Inspector‑General shall give to the complainant a written response relating to the inquiry.

             (2)  The Inspector‑General shall not give such a response to the complainant until the head of the relevant agency and the Inspector‑General have agreed that the giving to the complainant of a response in the terms proposed will not prejudice security, the defence of Australia or Australia’s relations with other countries.

             (3)  The Inspector‑General must give a copy of the response to the responsible Minister.

24  Action as a result of reports

             (1)  Where the Inspector‑General has conducted an inquiry under this Act into a matter relating to a Commonwealth agency and has, under section 22, given a final agency copy of the report in relation to the inquiry to the head of the agency, the head of the agency shall, if he or she takes or proposes to take any action as a result of the conclusions and recommendations set out in the report, give to the Inspector‑General details of the action taken or proposed to be taken.

             (2)  Where, in the opinion of the Inspector‑General, the head of a Commonwealth agency does not, as a result of the conclusions and recommendations set out in a report, take, within a reasonable period, action that is adequate and appropriate in the circumstances, the Inspector‑General may discuss the matter with the responsible Minister and prepare a report relating to that matter and, where the Inspector‑General prepares such a report, he or she shall give a copy of the report to the Prime Minister.

24A  Action as a result of reports given to Minister or Secretary

             (1)  This section applies if the Inspector‑General:

                     (a)  has conducted an inquiry under this Act into a matter relating to a Commonwealth agency; and

                     (b)  has given a final agency copy in relation to the inquiry to the responsible Minister in relation to the agency, or to the Secretary of the Defence Department, under subparagraph 22(1)(b)(ii).

             (2)  If the responsible Minister or the Secretary takes or proposes to take any action as a result of the conclusions and recommendations set out in the report, he or she must give to the Inspector‑General details of the action taken or proposed to be taken.

             (3)  If, in the opinion of the Inspector‑General, the responsible Minister or the Secretary does not take, within a reasonable period, action that is adequate and appropriate in the circumstances:

                     (a)  the Inspector‑General may prepare a report relating to that matter; and

                     (b)  if the Inspector‑General prepares such a report, he or she must give a copy of the report to the Prime Minister.

25  Reports concerning collection or communication of intelligence

                   Where:

                     (a)  the Inspector‑General has, in accordance with paragraph 8(1)(d), inquired into a question to which a direction given to ASIO by the responsible Minister relates; and

                     (b)  the Inspector‑General concludes that the direction given by the Minister to ASIO was not justified;

the Inspector‑General shall, in addition to giving a copy of the report in relation to the inquiry to the responsible Minister, give a copy of the report to the Prime Minister.

25A  Reports relating to other inspections [see Note 2]

                   If the Inspector‑General completes an inspection of an intelligence agency under section 9A, the Inspector‑General may report on the inspection to the responsible Minister or the head of the relevant agency.

Note:          The Inspector‑General may only disclose tax information, financial transaction reports information or AUSTRAC information as permitted under section 3EC of the Taxation Administration Act 1953 or section 128 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.


 

Part IIIAdministrative Provisions

  

26  Terms and conditions of appointment

             (1)  The Inspector‑General holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment but, subject to subsection (2), is eligible for re‑appointment.

             (2)  A person is not eligible to be appointed to the office of Inspector‑General more than twice.

             (3)  A person holding office as Inspector‑General, other than a person who is a Judge, holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General.

             (4)  The Inspector‑General may be appointed on a full‑time or part‑time basis.

27  Remuneration and allowances

             (1)  Subject to this section, the Inspector‑General shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration is in operation, the Inspector‑General shall be paid such remuneration as is prescribed.

             (2)  The Inspector‑General shall be paid such allowances as are prescribed.

             (3)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

             (4)  If a person who is a Judge is appointed as Inspector‑General, the person is not, while receiving salary or annual allowance as a Judge, entitled to remuneration under this Act.

28  Leave of absence

             (1)  A person appointed as Inspector‑General has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Prime Minister may grant to a person appointed as Inspector‑General leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

29  Resignation

                   A person appointed as Inspector‑General may resign that office by writing signed by the Inspector‑General and delivered to the Governor‑General.

30  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Inspector‑General by reason of misbehaviour or physical or mental incapacity.

             (2)  If the Inspector‑General:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;

                     (b)  being a person holding office on a full‑time basis:

                              (i)  engages, except with the approval of the Prime Minister, in paid employment outside the duties of his or her office; or

                             (ii)  is absent from duty, except on leave, for 14 consecutive days or for 28 days in any period of 12 months; or

                     (c)  fails, without reasonable excuse, to comply with section 31;

the Governor‑General shall terminate the appointment of the Inspector‑General.

             (3)  A reference in subsections (1) and (2) to a person holding office as Inspector‑General does not include a reference to a person who is a Judge.

             (4)  If a person appointed as Inspector‑General is a Judge and that person ceases to be a Judge, the Governor‑General may terminate the appointment of that person.

31  Disclosure of interests

                   The Inspector‑General shall give written notice to the Prime Minister of all interests, pecuniary or otherwise, that the Inspector‑General has or acquires and that could conflict with the proper performance of the Inspector‑General’s functions.

32  Staff

             (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).

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Inspector‑General and the APS employees assisting the Inspector‑General together constitute a Statutory Agency; and

                     (b)  the Inspector‑General is the Head of that Statutory Agency.

             (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.

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.


 

Part IVMiscellaneous

  

32A  Inspector‑General may obtain reports

             (1)  This section applies to the following documents which are issued on or after the day on which the Prime Minister and Cabinet Legislation Amendment Act 1991 commences:

                     (a)  in the case of ASIO—a report referred to in subsection 94(1) of the Australian Security Intelligence Organisation Act 1979 without deletions;

                     (b)  in the case of ASIS—a report prepared on a periodic basis and given to the responsible Minister;

                     (c)  in the case of ONA—a report referred to in section 19 of the Office of National Assessments Act 1977;

                     (d)  in the case of DIGO, DIO and DSD—a report prepared on a periodic basis and given to the Secretary of the Defence Department.

             (2)  The Inspector‑General may, in writing, request the head of an intelligence agency to give him or her a single copy of a document to which this section applies.

             (3)  The Inspector‑General must sign the request.

             (4)  As soon as practicable after the head of the agency receives the request, he or she must, subject to subsection (5), give to the Inspector‑General a single copy of the document specified in the request.

             (5)  Where:

                     (a)  in the case of ASIO, ASIS and ONA, the head of the agency has not provided the Minister with a copy of a report; or

                     (b)  in the case of DIGO, DIO and DSD, the head of the agency has not provided the Secretary of the Defence Department with a copy of a report;

the head need not give a copy of the report to the Inspector‑General until the head has given the report to the Minister or Secretary, as the case may be.

32B  Minister to give directions and guidelines to Inspector‑General

             (1)  This section applies to any guidelines or directions given by the responsible Minister to the head of ASIS, DIGO or DSD.

             (2)  As soon as practicable after giving to the head of that agency a direction or guideline issued on or after the commencing day, the Minister must give to the Inspector‑General a single copy of the direction or guideline.

             (3)  As soon as practicable after the commencing day, the Minister must give to the Inspector‑General a single copy of each direction or guideline that was issued before that day and is still in operation.

             (4)  In this section:

commencing day means the day on which the Prime Minister and Cabinet Legislation Amendment Act 1991 commences.

33  Protection from civil actions

             (1)  Neither the Inspector‑General nor a person acting on behalf of the Inspector‑General is liable to an action or other proceeding for damages for or in relation to any act done or omitted to be done in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred on the Inspector‑General.

             (2)  Where:

                     (a)  a complaint has been made to the Inspector‑General; or

                     (b)  a document has been produced, or information or evidence has been given, to the Inspector‑General;

a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint was made, the document was produced or the information or evidence was given.

34  Secrecy

             (1)  Subject to subsection (1A), 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 not, either directly or indirectly, except in the performance of his or her functions or duties or in the exercise of his or her powers under this Act:

                     (a)  make a record of, or divulge or communicate to any person or to a court, any information acquired under this Act by reason of the person holding, or acting in, that office; or

                     (b)  make use of any such information.

Penalty:  $5,000 or imprisonment for 2 years, or both.

       (1AA)  Subject to subsection (1A), 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 must not, either directly or indirectly, except in the performance of his or her functions or duties or in the exercise of his or her powers under Division 9 of Part VII or section 60A of the Freedom of Information Act 1982:

                     (a)  make a record of, or divulge or communicate to any person or to a court, any information acquired under that Division or section by reason of the person holding, or acting in, that office; or

                     (b)  make use of any such information.

Penalty:  $5,000 or imprisonment for 2 years, or both.

       (1AB)  Subject to subsection (1A), 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 must not, either directly or indirectly, except in the performance of his or her functions or duties or in the exercise of his or her powers under section 50A of the Archives Act 1983:

                     (a)  make a record of, or divulge or communicate to any person or to a court, any information acquired under that section by reason of the person holding, or acting in, that office; or

                     (b)  make use of any such information.

Penalty:  $5,000 or imprisonment for 2 years, or both.

          (1A)  Subsections (1), (1AA) and (1AB) do not apply if the Inspector‑General:

                     (a)  believed on reasonable grounds that the making of the record, or the divulging, communicating or use of the information (the conduct) by the person mentioned in the subsection is necessary for the purpose of preserving the well‑being or safety of another person; and

                     (b)  authorised the person mentioned in the subsection to engage in the conduct for that purpose.

             (2)  An offence against subsection (1), (1AA) or (1AB) is an indictable offence.

             (3)  Notwithstanding that an offence against subsection (1), (1AA) or (1AB) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is appropriate to do so and the defendant and the prosecutor consent.

             (4)  Where, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence against subsection (1), (1AA) or (1AB), the penalty that the court may impose is a fine not exceeding $2,000 or imprisonment for a period not exceeding one year, or both.

             (5)  If a person is prohibited by this section from disclosing information, the person must not be required to:

                     (a)  produce in a court any document of which the person has custody, or to which the person has access, because the person is performing functions or duties or exercising powers under this Act, Division 9 of Part VII or section 60A of the Freedom of Information Act 1982 or section 50A of the Archives Act 1983; or

                     (b)  divulge or communicate to a court any information obtained by the person because the person is performing those functions or duties or exercising those powers;

except where it is necessary to do so:

                   (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

                     (c)  if the information is obtained by the person because the person is performing functions or duties or exercising powers under this Act—for the purposes of this Act; and

                    (ca)  if the information is obtained by the person 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

                     (d)  if the information is obtained by the person 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

                     (e)  if the information is obtained by the person 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.

             (6)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

34A  Information and documents may be given to Royal Commissioners

             (1)  The purpose of this section is to further the inquiries to be conducted by a Commission.

             (2)  This section applies in spite of anything in this or any other Act.

             (3)  The Inspector‑General, or a former Inspector‑General, may give a Commission:

                     (a)  information acquired in his or her capacity as Inspector‑General; or

                     (b)  documents of which he or she has custody, or to which he or she has access, in that capacity.

             (4)  The Inspector‑General may, in writing, authorise a staff member or former staff member to give information or documents to a Commission.

             (5)  An authorised staff member or former staff member may give a Commission, in accordance with the authorisation:

                     (a)  information acquired in his or her capacity as a staff member; or

                     (b)  documents of which he or she has custody, or to which he or she has access, in that capacity.

             (6)  The Inspector‑General, a former Inspector‑General, a staff member or a former staff member may give information or documents to his or her legal adviser for any purpose related to the person’s involvement, or possible involvement, in the inquiry conducted by, or any other activities of, a Commission.

             (7)  In this section:

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.

Inspector‑General includes an acting Inspector‑General.

staff member means a member of the staff of the Inspector‑General.

35  Annual report

             (1)  The Inspector‑General shall, as soon as practicable after each 30 June, prepare and furnish to the Prime Minister a report of the operations of the Inspector‑General during the year that ended on that 30 June.

             (2)  The Inspector‑General shall include in a report prepared under subsection (1) the Inspector‑General’s comments on any inquiry conducted by the Inspector‑General in accordance with paragraph 8(1)(d) or 8(3)(c) during the year to which the report relates.

          (2A)  The Inspector‑General must include in a report prepared under subsection (1) the Inspector‑General’s comments on any inspection conducted under section 9A during the year to which the report relates.

       (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.

          (2B)  The Inspector‑General must include in a report prepared under subsection (1) the Inspector‑General’s comments on the extent of compliance by ASIS and DSD, during the year to which the report relates, with rules made under section 15 of the Intelligence Services Act 2001.

Note:          The rules referred to in subsection (2B) regulate the communication and retention of intelligence information.

             (3)  The Prime Minister shall give a copy of a report furnished under subsection (1) to the Leader of the Opposition in the House of Representatives, but it is the duty of the Leader of the Opposition to treat as secret any part of the report that is not tabled in a House of the Parliament.

             (4)  Subject to subsection (5), the Prime Minister shall cause a copy of a report furnished under subsection (1) to be laid before each House of the Parliament as soon as practicable after the report is received by the Prime Minister.

             (5)  For the purposes of subsection (4), the Prime Minister may make such deletions from a report furnished under subsection (1) as the Prime Minister considers necessary in order to avoid prejudice to security, the defence of Australia, Australia’s relations with other countries, law enforcement operations or the privacy of individuals.

36  Regulations

                   The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Notes to the Inspector-General of Intelligence and Security Act 1986

Note 1

The Inspector-General of Intelligence and Security Act 1986 as shown in this compilation comprises Act No. 101, 1986 amended as indicated in the Tables below.

For application, saving or transitional provisions made by the Freedom of Information Amendment (Reform) Act 2010, see Act No. 51, 2010.

All relevant information pertaining to application, saving or transitional provisions prior to 24 November 2000 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Inspector‑General of Intelligence and Security Act 1986

101, 1986

17 Oct 1986

1 Feb 1987 (see s. 2 and Gazette 1987, No. S13)

 

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987

18 Dec 1987

S. 3: 1 Feb 1987 (a)

S. 5(1)

Migration Legislation Amendment (Consequential Amendments) Act 1989

159, 1989

18 Dec 1989

S. 4: 19 Dec 1989 (b)

Defence Legislation Amendment Act 1990

75, 1990

22 Oct 1990

S. 5: Royal Assent (c)

Industrial Relations Legislation Amendment Act 1991

122, 1991

27 June 1991

Ss. 4(1), 10(b) and 15–20: 1 Dec 1988
Ss. 28(b)–(e), 30 and 31: 10 Dec 1991 (see Gazette 1991, No. S332)
Remainder: Royal Assent

S. 31(2)

Prime Minister and Cabinet Legislation Amendment Act 1991

199, 1991

18 Dec 1991

18 Dec 1991

Inspector‑General of Intelligence and Security Amendment Act 1994

50, 1994

7 Apr 1994

7 Apr 1994

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 4 (item 95): Royal Assent (d)

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 546–549): 5 Dec 1999 (see Gazette 1999, No. S584) (e)

Australian Security Intelligence Organisation Legislation Amendment Act 1999

161, 1999

10 Dec 1999

Schedule 3 (items 1, 31–37): (f)
Schedule 5: Royal Assent (f)

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7,
9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Act 2001

49, 2001

21 June 2001

19 July 2001

S. 4 [see Table A]

Intelligence Services (Consequential Provisions) Act 2001

153, 2001

1 Oct 2001

29 Oct 2001 (see s. 2)

S. 4 [see Table A]

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001

159, 2001

1 Oct 2001

29 Oct 2001

Sch. 1 (item 97) [see Table A]

Age Discrimination (Consequential Provisions) Act 2004

40, 2004

21 Apr 2004

Schedule 1 (items 9–11): 23 June 2004 (see s. 2)

Intelligence Services Legislation Amendment Act 2005

128, 2005

4 Nov 2005

Schedules 1–8: 2 Dec 2005
Remainder: Royal Assent

Anti‑Money Laundering and Counter‑Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006

170, 2006

12 Dec 2006

Schedule 1 (items 149, 150): 13 Dec 2006 (see s. 2(1))

Anti‑Money Laundering and Counter‑Terrorism Financing Amendment Act 2007

52, 2007

12 Apr 2007

Schedule 1 (items 62, 69): 13 Apr 2007

Sch. 1 (item 69) [see Table A]

Disability Discrimination and Other Human Rights Legislation Amendment Act 2009

70, 2009

8 July 2009

Schedule 2 (items 93–100) and Schedule 3 (items 40–42): 5 Aug 2009

Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009

99, 2009

6 Oct 2009

Schedule 4: 7 Oct 2009

Freedom of Information Amendment (Reform) Act 2010

51, 2010

31 May 2010

Schedule 6 (items 49–52) and Schedule 7: (g)

Sch. 7 [see Note 1]

National Security Legislation Amendment Act 2010

127, 2010

24 Nov 2010

Schedule 9: 25 Nov 2010

Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010

145, 2010

16 Dec 2010

Schedule 2 (items 53–54): 17 Dec 2010

Statute Law Revision Act 2011

5, 2011

22 Mar 2011

Schedule 6 (items 56–62) and Schedule 7 (item 76): 19 Apr 2011

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Schedule 2 (items 719–722) and Schedule 3 (items 10, 11): 27 Dec 2011

Sch. 3 (items 10, 11) [see Table A]

Inspector‑General of Intelligence and Security Amendment Act 2011

118, 2011

14 Oct 2011

Schedule 1: 15 Oct 2011

Statute Law Revision Act 2012

136, 2012

22 Sept 2012

Schedule 1 (item 80): Royal Assent


(a)     The Inspector‑General of Intelligence and Security Act 1986 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2(20) of which provides as follows:

               (20)   The amendments of the Inspector‑General of Intelligence and Security Act 1986 made by this Act shall be deemed to have come into operation on the commencement of the first‑mentioned Act.

(b)     The Inspector‑General of Intelligence and Security Act 1986 was amended by section 4 only of the Migration Legislation Amendment (Consequential Amendments) Act 1989, subsection 2(2) of which provides as follows:

                 (2)   Section 4 commences on the commencement of section 4 of the Migration Legislation Amendment Act 1989.

(c)     The Inspector‑General of Intelligence and Security Act 1986 was amended by section 5 only of the Defence Legislation Amendment Act 1990, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(d)     The Inspector‑General of Intelligence and Security Act 1986 was amended by Schedule 4 (item 95) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows:

                 (1)   Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

(e)     The Inspector‑General of Intelligence and Security Act 1986 was amended by Schedule 1 (items 546–549) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(f)      The Inspector‑General of Intelligence and Security Act 1986 was amended by Schedule 3 (items 1 and 31–37) and Schedule 5 only of the Australian Security Intelligence Organisation Legislation Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   This Act (other than Schedule 3) commences on the day on which it receives the Royal Assent.

                 (2)   Subject to subsections (3) to (6), Schedule 3 commences immediately after the commencement of the other Schedules to this Act.

(g)     Subsection 2(1) (item 7) of the Freedom of Information Amendment (Reform) Act 2010 provides as follows:

                 (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.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

7.  Schedules 4 to 7

Immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010.

However, if section 3 of the Australian Information Commissioner Act 2010 does not commence, the provision(s) do not commence at all.

1 November 2010


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part I

 

S. 3 .....................................

am. No. 141, 1987; No. 159, 1989; No. 75, 1990; No. 161, 1999; No. 128, 2005; No. 70, 2009; No. 127, 2010; No. 5, 2011

S. 4......................................

am. No. 127, 2010; No. 118, 2011

S. 5A ..................................

ad. No. 49, 2001

Part II

 

Division 1

 

S. 6A ..................................

ad. No. 199, 1991

 

am. No. 46, 2011

Note to s. 6A(1)..................

ad. No. 46, 2011

S. 7 .....................................

am. No. 199, 1991

Heading to s. 8 .................

rs. No. 161, 1999

 

am. No. 127, 2010

S. 8 .....................................

am. No. 141, 1987; No. 75, 1990; No. 161, 1999; No. 40, 2004; No. 128, 2005; No. 70, 2009; No. 127, 2010; No. 118, 2011

Heading to s. 9 .................

rs. No. 161, 1999; No. 127, 2010

S. 9......................................

rs. No. 127, 2010

S. 9AA.................................

ad. No. 127, 2010

S. 9A ..................................

ad. No. 161, 1999

 

am. No. 127, 2010

S. 9B ..................................

ad. No. 128, 2005

Division 2

 

Ss. 11, 12............................

am. No. 127, 2010

S. 14....................................

am. No. 127, 2010; No. 118, 2011

Division 3

 

Heading to s. 15 ...............

am. No. 128, 2005

S. 15 ...................................

am. No. 128, 2005; No. 127, 2010; No. 5, 2011

Heading to s. 16 ...............

am. No. 128, 2005

S. 16 ...................................

am. No. 128, 2005; No. 127, 2010

S. 17 ...................................

am. No. 153, 2001; No. 127, 2010

S. 18 ...................................

am. No. 146, 1999; No. 137, 2000; No. 49, 2001; No. 127, 2010

Heading to s. 19................

am. No. 127, 2010

S. 19 ...................................

am. No. 153, 2001; No. 128, 2005; No. 127, 2010

S. 19A ................................

ad. No. 128, 2005

Heading to s. 20................

am. No. 127, 2010

S. 20....................................

am. No. 127, 2010

Division 4

 

S. 21 ...................................

am. No. 128, 2005; No. 127, 2010; No. 5, 2011

Heading to s. 22 ...............

am. No. 128, 2005; No. 127, 2010

S. 22 ...................................

am. No. 161, 1999; No. 128, 2005; No. 170, 2006; No. 52, 2007; Nos. 127 and 145, 2010; No. 118, 2011

Note to s. 22(3)..................

am. No. 145, 2010; No. 136, 2012

S. 23 ...................................

am. No. 161, 1999; No. 127, 2010

S. 24....................................

am. No. 127, 2010

S. 24A ................................

ad. No. 128, 2005

 

am. No. 127, 2010; No. 5, 2011

S. 25A ................................

ad. No. 161, 1999

 

am. No. 127, 2010

Note to s. 25A....................

am. No. 170, 2006

Part III

 

S. 26 ...................................

am. Nos. 153 and 159, 2001

S. 27 ...................................

am. No. 43, 1996

S. 28 ...................................

rs. No. 122, 1991

 

am. No. 146, 1999

S. 30 ...................................

am. No. 122, 1991

S. 32 ...................................

am. No. 146, 1999; No. 118, 2011

S. 32AA ..............................

ad. No. 118, 2011

Part IV

 

S. 32A ................................

ad. No. 199, 1991

 

am. No. 161, 1999; No. 128, 2005; No. 127, 2010; No. 5, 2011

S. 32B ................................

ad. No. 199, 1991

 

am. No. 128, 2005; No. 127, 2010

S. 34 ...................................

am. No. 161, 1999; No. 99, 2009; No. 51, 2010; No. 118, 2011

S. 34A ................................

ad. No. 50, 1994

 

am. No. 118, 2011

S. 35 ...................................

am. No. 161, 1999; No. 153, 2001; No. 128, 2005; No. 127, 2010; No. 118, 2011


Note 2

Section 25A (note)—Schedule 2 (item 55) of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 (No. 145, 2010) provides as follows:

Schedule 2

55  Section 25A (note)

Omit “Section 3EC of”, substitute “Subdivision 355‑C in Schedule 1 to”.

The proposed amendment was misdescribed and is not incorporated in this compilation.


Table A

Application, saving or transitional provisions

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre‑commencement offences

(1)       Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)       Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre‑commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first‑mentioned provision is amended by this Schedule;

the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Act 2001 (No. 49, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Intelligence Services (Consequential Provisions) Act 2001 (No. 153, 2001)

4  Regulations

                   The Governor‑General may make regulations providing for matters of a transitional nature (including any saving or application provision) arising out of the enactment of the Intelligence Services Act 2001, or the amendments made by this Act.

 

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001
(No. 159, 2001)

Schedule 1

97  Application of amendments

The amendments made by this Schedule do not apply to an appointment if the term of the appointment began before the commencement of this item.

 

Anti‑Money Laundering and Counter‑Terrorism Financing Amendment Act 2007 (No. 52, 2007)

Schedule 1

69  Application of amendment—section 22 of the Inspector‑General of Intelligence and Security Act 1986

The amendment of section 22 of the Inspector‑General of Intelligence and Security Act 1986 made by this Schedule applies in relation to a report prepared under subsection 22(1) of that Act after the commencement of this item.

 

Acts Interpretation Amendment Act 2011 (No. 46, 2011)

Schedule 3

10  Saving—appointments

The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.

11  Transitional regulations

The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.