Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 38 (8 March 2023)

• Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022
• Abrogation of privilege against self-incrimination19
• Broad delegation of administrative powers or functions22

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Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022

Purpose	This bill seeks to amend the Inspector-General of Intelligence and Security Act 1986 to ensure that the Inspector-General of Intelligence and Security's enabling legislation is adapted to contemporary circumstances and supports appropriate information sharing.
Portfolio	Attorney-General
Introduced	House of Representatives on 30 November 2022
Bill status	Before the House of Representatives

Abrogation of privilege against self-incrimination^[19]

2.1 Subsection 18(1) of the Inspector-General of Intelligence and Security Act 1986 (the Act) empowers the Inspector-General to require a person to give them information or documents relevant to a matter that is being inquired into by the Inspector-General under the Act. Subsection 18(6) provides for a limited use immunity, providing that the giving of information, production of a document or the answer to a question is not admissible in evidence against a person except in a prosecution for:

• an offence against section 18;

• an offence against section 137.1 of the Criminal Code that relates to section 18;

• an offence against section 6 of the Crimes Act 1914; or

• an offence against sections 11.1, 11.4 or 11.5 of the Criminal Code.

2.2 Item 87 of Schedule 1 to the bill introduces paragraph 18(6)(ca) to add that an offence against sections 137.2 (false or misleading information and documents), 145.1 (using forged document) or 149.1 (obstruction of Commonwealth public officials) of the Criminal Code would also constitute exceptions under subsection 18(6). Item 88 of Schedule 1 introduces paragraph 18(6)(cb) to provide for an offence against Division 3 of Part III of the Crimes Act 1914 (offences relating to evidence and witnesses) that relates to section 18 as an additional exception to the use immunity already provided under subsection 18(6).

2.3 These amendments expand the offences a person could be prosecuted for after being compelled to provide information under subsection 18(1).

2.4 In Scrutiny Digest 1 of 2023 the committee requested the Attorney-General's more detailed advice regarding:

• whether the bill could be amended to provide derivate use immunity; or

• at a minimum, provide that the Inspector-General must consider whether less coercive avenues are available to obtain the information prior to compelling a person to give information in circumstances which would abrogate the privilege against self-incrimination.^[20]

Attorney-General's response^[21]

2.5 The Attorney-General advised that the ability for the Inspector-General of Intelligence and Security (IGIS) to use and disclose information derived from information obtained in abrogation of the privilege against self-incrimination is necessary to review the activities of intelligence agencies for legality, propriety and consistency with human rights, in circumstances where those activities might not otherwise have an avenue for review. The Attorney-General noted this is particularly important in respect of covert powers, with the benefit of effective oversight outweighing the impacts on the privilege against self-incrimination.

2.6 The Attorney-General advised that given these reasons, he does not consider it necessary to provide derivative use immunity or to require the IGIS to consider whether less coercive avenues are available to obtain the information prior to compelling a person to provide information.

Committee comment

2.7 The committee thanks the Attorney-General for this response.

2.8 The committee notes the Attorney-General's advice that given the function of the IGIS to provide oversight over intelligence agencies, it is not considered appropriate to provide for derivate use immunities or necessary to consider less coercive avenues to obtaining information prior to compelling a person to provide information.

2.9 The committee reiterates its position that abrogating the privilege against self-incrimination undermines an important common law principle. There may be circumstances in which the privilege against self-incrimination can be overridden, such as where the public benefit in doing so significantly outweighs the loss of personal liberty. Nevertheless, derivate use immunity, which operates to prevent information obtained indirectly from being used in criminal proceedings against an individual, is an important safeguard in protecting individual rights and therefore the consequences of not providing it must be considered carefully in this balance.

2.10 The committee does not consider that the Attorney-General's response has adequately explained why it is appropriate not to provide derivative use immunity in this case, noting that such a justification should include consideration of the significant loss of personal liberty not providing derivative use immunity may imply for affected persons.

2.11 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of abrogating the privilege against self-incrimination in circumstances where derivate use immunity is not provided.

Broad delegation of administrative powers or functions^[22]

2.12 Item 129 of Schedule 1 to the bill seeks to insert proposed subsection 32AA(1A) into the Act to allow the Inspector-General to delegate any or all of their functions or powers under any other provision of the Act (other than subsection 32(3)), or any other Act, to a member of staff assisting the Inspector-General engaged under the Public Service Act 1999 who the Inspector-General believes has appropriate expertise relating to the function or power delegated.

2.13 In Scrutiny Digest 1 of 2023 the committee requested the Attorney-General's advice regarding whether subsection 32AA(1A) of the bill could be amended to limit the class of persons to whom powers or functions may be delegated or to set out with more specificity the powers or functions that may be delegated.^[23]

Attorney-General's response^[24]

2.14 The Attorney-General advised that the bill clearly articulates the scope of the functions that can be delegated, limits the delegation to those persons who have appropriate expertise, and states that delegated functions would be exercised in accordance with written directions. The Attorney-General noted that there is a strong practical need for these powers and functions to be delegated.

Committee comment

2.15 The committee thanks the Attorney-General for this response.

2.16 The committee notes the Attorney-General's advice that the delegation powers set out in the bill are necessary and appropriately limited. However, while the committee acknowledges it is sometimes appropriate to delegate powers to a wide range of staff to allow for administrative efficiency, the committee remains concerned about the breadth of the powers or functions that can be delegated and to whom they can be delegated.

2.17 It is unclear to the committee from the Attorney-General's response why such a broad scope to delegate powers is necessary or, if the broad scope is necessary, why it is appropriate to delegate these powers or functions to such a broad class of people. While the committee acknowledges that flexibility is often needed in relation to delegations powers, it considers that it would still be possible to provide this flexibility with appropriate limits being placed on the exercise of the power. While the Attorney-General has advised that the bill limits the delegation to those persons who have appropriate expertise, it is unclear what the Inspector-General must consider before they believe someone has appropriate expertise.

2.18 The committee considers it preferable to limit on the face of the bill the class of persons to whom powers or functions can be delegated. Given the importance of the powers that may be delegated, the committee considers that it would have been appropriate to, at a minimum, provide some guidance as to how the Inspector-General may determine someone has appropriate expertise in relation to a delegated function or power.

2.19 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing a broad power to delegate all or any of the Inspector-General’s functions or powers under any provision of the Inspector-General of Intelligence and Security Act 1986, other than subsection 32(3), to any staff member whom the Inspector-General believes has the appropriate expertise.

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[19] Schedule 1, part 1, items 87 and 88, proposed paragraphs 18(6)(ca) and 18(6)(cb). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

[20] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 16–18.

[21] The Attorney-General responded to the committee's comments in a letter dated 23 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[22] Schedule 1, item 129, proposed subsection 32AA(1A). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[23] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 18–19.

[24] The Attorney-General responded to the committee's comments in a letter dated 23 February 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.