Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

SCHEDULE 6 - PROTECTION FOR PERSONS PROVIDING INFORMATION VOLUNTARILY TO THE INSPECTOR-GENERAL

General outline

1833. This schedule inserts new section 34B in the Inspector-General of Intelligence and Security Act 1986 (IGIS Act). This section confers an immunity from liability to penalty on people who voluntarily provide or make available information or documents to the IGIS, for the purpose of the IGIS performing oversight functions under the IGIS Act.

1834. The new section ensures that the offences in new section 122.1 of the Criminal Code (inserted by Schedule 2 to the Bill) do not expose a person to criminal liability and make them wholly reliant on a defence, merely because they communicated security classified information to the IGIS, for the purpose of IGIS performing functions or duties or exercising powers under the IGIS Act.

Item 1

1835. This item inserts new section 34B in the Inspector-General of Intelligence and Security Act 1986. This section confers immunity from liability to penalty on people who voluntarily provide or make available information or documents to the IGIS, for the purpose of the IGIS performing oversight functions under the IGIS Act. The new section is intended to ensure that people who provide information or documents to the IGIS on a voluntary basis have equivalent legal protections to those available under the Public Interest Disclosure Act 2013 for people who make, investigate or assist in the investigation of public interest disclosures including PIDs that are made to, or are investigated by, the IGIS.

1836. The new section is inserted to address issues identified during the PJCIS inquiry into the Bill relating to the potential effect of section 122.1 of the Criminal Code (inserted by Schedule 2 to the Bill) on persons who voluntarily disclose security classified information to the IGIS. New section 34B of the IGIS Act is directed at ensuring that the secrecy offences in Schedule 2 do not create a disincentive for people coming forward to the IGIS with information about suspected or perceived wrongdoing by an intelligence agency, as a result of their being wholly reliant on a defence. It will ensure that people who voluntarily provide information to the IGIS will have equal legal protection to those who do so under compulsion in an inquiry and are covered by the immunity in existing subsection 18(9).

1837. The new immunity provision of the IGIS Act will complement new section 123.4 of the Criminal Code, which will be inserted by Amendment 151. New section 123.4 of the Criminal Code will have the effect that nothing in new Part 5.6 of the Criminal Code (including the offences in Division 122) is to be taken to limit or affect the immunities in the IGIS Act, which will include new section 34B of the latter Act.

1838. New subsection 34B(1) outlines the circumstances in which the immunity from liability to penalty will apply. Namely, it applies if a person voluntarily provides or makes available information or documents to the IGIS, for the purpose of the IGIS performing any of the oversight functions under the IGIS Act that are specified in paragraphs 34B(1)(a)-(d). These cover all of the oversight functions under the IGIS Act, namely:

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the making of complaints to the IGIS

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the conduct by the IGIS of preliminary inquiries into complaints to determine whether to conduct an inquiry into those matters

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the conduct by the IGIS of inquiries, and

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the conduct by the IGIS of inspections of intelligence agencies.

1839. The use of the word voluntarily in this provision is intended to denote the provision of information or documents other than under compulsion as a result of the exercise by the IGIS of coercive information-gathering powers in an inquiry under section 18 of the IGIS Act. It is intended to cover the provision of information or documents on an unsolicited basis, such as the making of a complaint by a person, or a pro-active disclosure by a member of an intelligence agency in the course of an inspection or inquiry. It is also intended to cover the provision of information or documents to the IGIS in an inquiry in response to a simple request rather than a formal notice to produce under section 18 of the IGIS Act.

1840. The word provides is intended to cover those circumstances in which a person gives (in the sense of providing or delivering) documents or information to the IGIS. For example, hand-delivering or emailing documents.

1841. The phrase makes available is intended to cover those circumstances in which a person or an agency gives the IGIS access to its records (physical and electronic) in order for the IGIS to conduct a search of those holdings and extract relevant documents or information. In particular, this is intended to cover the actions of members of intelligence agencies who give IGIS officials access to their analytical and other electronic record-keeping systems for the purpose of the IGIS performing oversight functions in relation to that agency.

1842. The provision applies to persons who provide or make available information or documents to the IGIS, for the purpose of the IGIS performing the specified oversight functions in subsection 34B(1). There will be a question of fact, in individual cases, as to whether a person provided or made available the relevant information or documents for that purpose. If there is evidence suggesting that a person acted in bad faith or with a malicious intent in giving or making available the information or documents to the IGIS, this will be material to the availability or otherwise of the immunity.

1843. Subsection 34B(2) confers the immunity from liability to penalty, in relation to the conduct covered by subsection 34B(1). It provides that a person is not liable to a penalty under any other law of the Commonwealth for providing or making available the information or documents. This is subject to the exception at subsection 34B(3) (below).

1844. The immunity is intended to cover all forms of criminal, civil and administrative penalty. Importantly, the immunity only applies to a person's conduct in providing or making available the information or documents to the IGIS. If a person engaged in unlawful conduct to obtain that information or those documents, the immunity in the IGIS Act would not extend to that conduct. Similarly, if the person provided the information or documents to a person in addition to the IGIS, the immunity in the IGIS Act would not extend to that conduct. In both instances, the person would be exposed to liability to criminal, civil or administrative penalties in relation to that conduct, and would be separately reliant on defences or exceptions that may be available. This is consistent with the scope of immunities from liability currently conferred by the PID Act.

1845. Subsection 34B(3) provides two main exceptions from the immunity from liability in subsection 34B(2), which are analogous to those currently in the PID Act.

1846. The first exception is in paragraph 34B(3)(a). It provides that the immunity from penalty is not available in relation to proceedings for an offence under certain provisions of the Criminal Code and Crimes Act that relate to the provision of false or misleading information and use of fraudulent documents, the obstruction of Commonwealth officials, offences relating to evidence and witnesses, and preparatory and ancillary offences to the above. This is intended to ensure that people who voluntarily provide information to the IGIS with the intention of obstructing or frustrating the conduct of an oversight activity (for example, by deliberately giving false or misleading information or forged documents to the IGIS) are not entitled to shelter behind an immunity in relation to that conduct.

1847. The second exception is in paragraph 34B(3)(b). It replicates similar provisions in sections 24 and 75 of the PID Act. Its effect is to provide an explicit statement of the legislative intention that the immunity from liability in subsection 34B(2) is intended to have effect over all other provisions of Commonwealth laws (such as secrecy offences) that were enacted before the commencement of the new section, and all provisions enacted after the commencement of the section unless those future provisions are expressed to have effect despite new section 34B.

1848. For the avoidance of doubt, paragraph 34B(3)(b) does not purport to oust or fetter the Parliament's power to legislate in respect of these provisions in later enactments. Rather, it is intended to make clear that the protection given in subsection 34B(2) should not be affected unless there is a clear expression of legislative intention to do so. This intention would be taken into account by a court in determining whether new section 34B of the IGIS Act and a provision of a later Commonwealth law were capable of operating together, or were actually inconsistent.