A Bill for an Act to amend the law relating to intelligence and security, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Act 2020.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Expanding the functions of the IGIS and PJCIS
Inspector‑General of Intelligence and Security Act 1986
1 Subsection 3(1)
Insert:
ACC means the Australian Crime Commission established by section 7 of the Australian Crime Commission Act 2002.
Note: Subsection 7(1A) of the Australian Crime Commission Act 2002 provides that the ACC may be known by one or more names or acronyms specified in regulations made under that Act. In 2019, the ACC was also known as the Australian Criminal Intelligence Commission or ACIC.
agency with an intelligence role or function has the same meaning as in the Office of National Intelligence Act 2018.
Committee on Intelligence and Security means the Parliamentary Joint Committee on Intelligence and Security established under the Intelligence Services Act 2001.
2 Subsection 3(1) (after paragraph (f) of the definition of head)
Insert:
(fa) in relation to the ACC—the Chief Executive Officer of the ACC; or
3 After subsection 8(3)
Insert:
(3A) Subject to this section, the functions of the Inspector‑General in relation to the ACC and an agency with an intelligence role or function are:
(a) at the request of the Attorney‑General or the responsible Minister, of the Inspector‑General’s own motion or in response to a complaint made to the Inspector‑General by a person who is an Australian citizen or a permanent resident, to inquire into any matter that relates to:
(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 Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into the procedures of that agency relating to redress of grievances of employees of that agency; and
(c) at the request of the Attorney‑General or the responsible Minister or of the Inspector‑General’s own motion, to inquire into the effectiveness and appropriateness of the procedures of that agency relating to the legality or propriety of the activities of that agency.
Note: An agency with an intelligence role or function has the same meaning as in the Office of National Intelligence Act 2018: see subsection (3)(1) of this Act.
(3B) The Inspector‑General’s functions under subsection (3A) do not extend to inquiring into anything done by an agency with an intelligence role or function to the extent that thing does not relate to its intelligence role or function.
4 Subsection 8(5)
Omit “and (3)”, substitute “, (3) and (3A)”.
5 Subsection 8(5)
Omit “AGO, DIO or ONI”, substitute “ACC, AGO, DIO, ONI or an agency with an intelligence role or function”.
6 Section 9 (heading)
Repeal the heading, substitute:
9 Inquiry requests by the Prime Minister
7 After section 9
Insert:
9AAA Inquiry requests by the Committee on Intelligence and Security
(1) The Committee on Intelligence and Security may request the Inspector‑General to inquire into a matter relating to:
(a) an intelligence agency; or
(b) the ACC; or
(c) an agency with an intelligence role or function.
(2) The Inspector‑General may 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).
(3) If the Inspector‑General decides not to comply with the request, the Inspector‑General must give written notice to the Committee of the decision and the reasons for the decision.
8 Section 9AA
Omit “8 or 9”, substitute “8, 9 or 9AAA”.
9 After subparagraph 9AA(a)(i)
Insert:
(ia) if the inquiry started as the result of a request under section 9AAA by the Committee on Intelligence and Security—the Committee; or
10 Paragraph 9AA(b)
Omit “and 8(2)(a)(ii)”, substitute “, (2)(a)(ii) and (3A)(a)(ii)”.
11 After paragraph 22(5)(a)
Insert:
(aa) if the inquiry was conducted as a result of a request under section 9AAA by the Committee on Intelligence and Security—the Committee;
12 At the end of subsection 32A(1)
Add:
(e) in the case of ACC and an agency with an intelligence role or function—a report prepared on a periodic basis and given to the responsible Minister.
13 Paragraph 32A(5)(a)
Omit “ASIO, ASIS, ASD and ONI”, substitute “ACC, ASIO, ASIS, ASD, ONI and an agency with an intelligence role or function”.
14 Section 32B (at the end of the heading)
Add “—general”.
15 After section 32B
Insert:
32C Minister to give directions and guidelines to Inspector‑General—ACC and an agency with an intelligence role or function
(1) This section applies to any guidelines or directions given by the responsible Minister to the head of ACC or an agency with an intelligence role or function.
(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 Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Act 2020 commences.
Intelligence Services Act 2001
16 Section 3
Insert:
agency with an intelligence role or function has the same meaning as in the Office of National Intelligence Act 2018.
national intelligence community has the same meaning as in the Office of National Intelligence Act 2018.
17 Paragraph 29(1)(a)
Repeal the paragraph, substitute:
(a) to review the administration and expenditure of an agency within the national intelligence community, including the annual financial statements of such an agency;
18 Paragraph 29(1)(b)
Omit “ASIO, ASIS, AGO, DIO, ASD or ONI”, substitute “an agency within the national intelligence community”.
19 After paragraph 29(1)(b)
Insert:
(baaa) to review proposed or existing laws relating to counter‑terrorism or national security; and
(baab) to review laws relating to counter‑terrorism or national security that are to be repealed, expire, lapse or cease to have effect; and
20 At the end of subsection 29(1)
Add:
; and (d) such other functions as are conferred on the Committee by this Act or any other law of the Commonwealth.
21 After subsection 29(2)
Insert:
(2A) Without limiting paragraphs (a), (baaa) and (baab), the Committee may resolve to review any matter relating to the administration and expenditure of an agency within the national intelligence community, or any proposed or existing laws relating to counter‑terrorism and national security law.
(2B) The Committee’s functions under paragraphs (1)(a) and (b) do not extend to reviewing anything done by an agency with an intelligence role or function to the extent that thing does not relate to its intelligence role or function.
22 After subsection 29(3)
Insert:
(3A) However, the Committee may in performing its functions under subsection (1) consider a matter mentioned in subsection (3) to the extent necessary for the Committee to perform those functions.
23 Clause 1A of Schedule 1 (definition of agency)
Repeal the definition, substitute:
agency means an agency within the national intelligence community.
24 Clause 1A of Schedule 1 (definition of agency head)
Repeal the definition, substitute:
agency head, in relation to an agency, means the following persons:
(a) in relation to the ASD—the Director‑General of ASD;
(b) in relation to the ASIO—the Director‑General of Security;
(c) in relation to the ASIS—the Director‑General of the ASIS;
(d) in relation to AUSTRAC—the Chief Executive Officer of AUSTRAC;
(e) in relation to the agency known as the Australian Criminal Intelligence Commission—the Chief Executive Officer of that agency;
(f) in relation to the AFP—the Commissioner of Police;
(g) in relation to the AGO—the Director of the AGO;
(h) in relation to the DIO—the Director of the DIO;
(i) in relation to ONI—the Director‑General of National Intelligence;
(j) in relation to a Department of the Commonwealth or part of such a Department—the Secretary of the Department.
25 Clause 1A of Schedule 1 (paragraph (a) of the definition of operationally sensitive information)
Omit “ASIO, ASIS, AGO, DIO, ASD or ONI”, substitute “an agency”.
26 Clause 1A of Schedule 1 (paragraph (b) of the definition of operationally sensitive information)
Omit “ASIO, ASIS, AGO, DIO or ASD”, substitute “an agency (other than ONI)”.
Schedule 2—Independent National Security Legislation Monitor
Part 1—Amendments
Independent National Security Legislation Monitor Act 2010
1 After subsection 6(1A)
Insert:
(1AA) If a matter relating to counter‑terrorism or national security is referred to the Independent National Security Legislation Monitor by the Committee on Intelligence and Security under section 7A, the Monitor may report on the reference (see section 30A).
2 After subsection 30(5)
Insert:
Committee on Intelligence and Security
(5A) The referring Minister may give a copy of a report under subsection (1), (2), (3) or (4) to the Committee on Intelligence and Security.
3 After section 30
Insert:
30A Deciding whether to report on a reference by the Committee on Intelligence and Security
(1) This section applies if a reference by the Committee on Intelligence and Security is made to the Independent National Security Legislation Monitor under section 7A.
(2) Within 2 months after the day the Independent National Security Legislation Monitor receives the reference, the Monitor must:
(a) decide whether to report on the reference; and
(b) give written notice to the Committee of his or her decision.
(3) If the Independent National Security Legislation Monitor decides not to report on the reference, the written notice to the Committee must contain the Monitor’s reasons for not reporting on the reference.
30B Report on a reference by the Committee on Intelligence and Security
(1) If the Independent National Security Legislation Monitor decides under section 30A to report on a reference made to the Monitor by the Committee on Intelligence and Security under section 7A, the Monitor must report on the reference to the Committee.
(2) The Independent National Security Legislation Monitor may, before giving his or her report on a reference, give an interim report to the Committee on the Monitor’s work on the reference.
(3) The Committee may, before the Independent National Security Legislation Monitor gives his or her report on a reference, request the Monitor to give an interim report to the Committee on the Monitor’s work on the reference.
Declassified reports
(4) If the Independent National Security Legislation Monitor considers that a report to the Committee under subsection (1), (2) or (3) contains information of the kind referred to in subsection 29(3), the Monitor must also prepare and give to the Committee, at the same time as the report, a version of the report which does not contain that information (a declassified report).
(5) In determining whether a report contains information of the kind referred to in subsection 29(3), the Independent National Security Legislation Monitor may consult the responsible Minister or responsible Ministers concerned.
Copy of reports to responsible Minister
(6) As soon as reasonably practicable after a report is given to the Committee under subsection (1), (2), (3) or (4), the Independent National Security Legislation Monitor must give a copy of the report to the responsible Minister or responsible Ministers concerned.
Presenting copies of reports to the Parliament
(7) The Committee must cause a copy of:
(a) a report given to the Committee under subsection (1), (2) or (3); or
(b) if a report contains information of the kind referred to in subsection 29(3)—the corresponding declassified report;
to be presented to each House of the Parliament within 15 sitting days of that House after the day on which the Committee receives the report.
Intelligence Services Act 2001
4 At the end of section 30
Add:
; (f) the Independent National Security Legislation Monitor.
Part 2—Application provision
5 Application provision
The amendments made by this Schedule to the Independent National Security Legislation Monitor Act 2010 apply in relation to a reference under that Act that is made on or after this item’s commencement.
Schedule 3—Regular briefings to the PJCIS by the IGIS and ONI
Part 1—Amendments
Inspector‑General of Intelligence and Security Act 1986
1 Subsection 3(1)
Insert:
quarter means a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April.
2 After section 34
Insert:
34AA Regular briefings to the Committee on Intelligence and Security relating to national intelligence community
(1) At least once in each quarter of each calendar year the Inspector‑General must provide a briefing to the Committee on Intelligence and Security about inquires that the Inspector‑General is to commence, has commenced or has recently completed.
(2) For the purposes of receiving a briefing from the Inspector‑General, the Committee must meet in private.
Office of National Intelligence Act 2018
3 Subsection 4(1)
Insert:
Committee on Intelligence and Security means the Parliamentary Joint Committee on Intelligence and Security established under the Intelligence Services Act 2001.
4 After section 18
Insert:
18A Regular briefings to the Committee on Intelligence and Security
(1) At least twice in each calendar year the Director‑General must provide a briefing to the Committee on Intelligence and Security.
(2) For the purposes of receiving a briefing from the Director‑General, the Committee must meet in private.
Part 2—Application provisions
5 Application provisions
(1) Section 34AA of the Inspector‑General of Intelligence and Security Act 1986, as inserted by this Schedule, applies in relation to a quarter that begins on or after this item’s commencement.
(2) Section 18A of the Office of National Intelligence Act 2018, as inserted by this Schedule, applies in relation to a calendar year beginning 1 January 2020.