Inspector-General of Intelligence and Security Act 1986

• Australian intelligence agencies (ASIO, ASIS, AGO, DIO, ASD, ONI, and AFP and ACIC for their intelligence functions): All are subject to IGIS oversight and must cooperate with inquiries.
• Agency heads and employees: Must cooperate with the IGIS, appear before inquiries, produce documents, and respond to IGIS reports.
• Persons who have dealt with intelligence agencies including those who have received adverse security assessments, persons who complain about agency conduct, and persons who allege they have been subject to unlawful surveillance or other agency actions.
• Non-citizens: Section 8 distinguishes between the rights of Australian citizens and permanent residents (who have broader complaint rights) and non-citizens (who have narrower rights): as Emmett J noted in Leghaei v Director General of Security [2005] FCA 1576, non-citizens' rights under the IGIS Act are effectively limited to the matters in section 8(1)(a) (legality and propriety of ASIO's activities).
• Responsible Ministers and the Attorney-General: The IGIS reports to them and assists them in oversight. Ministers may also request the IGIS to conduct inquiries.
• Parliament: Annual and other reports of the IGIS go to Parliament through the relevant Ministers.

Cooperation obligations: Agency heads and employees must cooperate with IGIS inquiries. Section 18 allows the IGIS to compel persons by notice to provide information, produce documents, or attend and answer questions under oath. Failure to comply without reasonable excuse is an offence (section 18(7)): the penalty is imprisonment for 6 months or a fine, or both.

Natural justice: Before making a report critical of a Commonwealth agency, the IGIS must give the agency head a reasonable opportunity to appear and make submissions (section 17(4)). Before criticising an individual, the IGIS must give the person the same opportunity unless doing so would prejudice security, defence, or Australia's international relations (section 17(5)).

Secrecy: IGIS officials must not disclose information acquired in the performance of their functions, except as required or authorised by the Act (section 34). Breach carries up to 2 years' imprisonment or 50 penalty units.

Reporting of misconduct evidence: Under section 17A, if during any inquiry or inspection the IGIS finds evidence of sufficient weight indicating a member of a Commonwealth agency has committed a breach of duty or misconduct, the IGIS must bring that evidence to the attention of the agency head (or, for the agency head, the responsible Minister) and, for APS employees, the APS Commissioner.

The IGIS has substantial investigative powers:

• Inquiry discretion: The IGIS may conduct inquiries on their own motion, at Ministerial request, or in response to complaints. The IGIS may decide not to inquire into a complaint and must notify the complainant of that decision (section 12).

• Information and document compulsion (section 18): The IGIS may compel production of information and documents, attendance for examination under oath, and production of any materials relevant to an inquiry.

• Entry to premises (section 19): The IGIS may enter premises occupied by a Commonwealth agency. The IGIS must not obstruct or impede the agency but may inspect documents, records, and procedures.

• Entry to questioning warrant places (sections 9B and 19A): The IGIS has power to enter places where ASIO is executing questioning warrants and to observe the exercise of those powers.

• Refusal to inquire: The IGIS may decide not to inquire into a complaint if the complaint is trivial, frivolous, or vexatious, if adequate internal grievance procedures have not been used, if the matter lacks sufficient seriousness or sensitivity, or if the complaint is out of time.

• Self-incrimination and legal professional privilege: A person required to give information under section 18 cannot refuse on self-incrimination grounds, but the incriminating answer is not admissible in evidence in criminal proceedings. Legal professional privilege is preserved.

Failure to comply with information notices (section 18(7)): Without reasonable excuse, failing to provide information, produce documents, appear before the IGIS, take an oath or make an affirmation, or answer questions when required to do so, is an offence. The penalty is imprisonment for 6 months or a fine, or both.

Secrecy offences (section 34): Unauthorised disclosure of information by IGIS officials is an indictable offence carrying imprisonment for 2 years or 50 penalty units, or both. In summary proceedings with consent, the maximum is 12 months imprisonment or 20 penalty units. No person can be required to produce documents or divulge information to a court, subject to specified exceptions.

Civil protection: Section 33 protects the IGIS, former IGIS officials, and persons who have cooperated with inquiries from civil liability for acts done in good faith in connection with IGIS functions.

Complaints: Any person may make a complaint to the IGIS about the activities of an intelligence agency (section 10). Complaints about ASIO may be made by any person; complaints about ASIS, AGO and ASD may only be made by Australian citizens and permanent residents. Complaints in writing are preferred but the IGIS may initiate an inquiry without a complaint.

Complaint handling: The IGIS decides whether to inquire. Factors against inquiring include: trivial, frivolous or vexatious complaints; the complaint not raised with the agency first where grievance procedures exist; lack of sufficient seriousness or sensitivity (section 11). Persons in custody have a right to communicate with the IGIS under section 13.

Preliminary inquiries: The IGIS may conduct preliminary inquiries (section 14) before deciding whether to commence a full inquiry.

Conduct of inquiries: Inquiries are conducted in private (section 17(1)). The IGIS determines the manner of inquiry. Complainants are not necessarily given a hearing. Natural justice applies before critical findings are made against agencies or individuals (sections 17(4) and (5)). The IGIS may discuss matters with Ministers during inquiries (section 17(7)-(9)).

Reporting: Draft reports go to agency heads and in some cases to Ministers (section 21). Final reports go to the responsible Minister and, where appropriate, to the Prime Minister (section 22). The Inspector-General may also obtain reports from agencies under section 32A.

Annual and other reports: The IGIS prepares annual reports and may prepare special reports that are tabled in Parliament.

• ASIO Act 1979 (Cth): The IGIS Act must be read with the ASIO Act (noted by Emmett J in Leghaei at [60]). The IGIS's functions in relation to ASIO (section 8(1)) include reviewing compliance with the ASIO Act, reviewing grievance procedures, and inquiring into certain aspects of adverse security assessments and ministerial directions.
• Intelligence Services Act 2001 (Cth): Governs ASIS, ASD, AGO, and DIO. The IGIS oversight functions for those agencies under section 8(2) and (3) of the IGIS Act complement the Intelligence Services Act framework.
• National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) and related Acts: Expanded the IGIS's oversight mandate to additional agencies.
• Freedom of Information Act 1982 (Cth): The IGIS has review functions under Division 9 of Part VII and section 60A of the FOI Act, subject to the secrecy regime in section 34(1AA).
• Archives Act 1983 (Cth): The IGIS has functions under section 50A of the Archives Act.
• Public Interest Disclosure Act 2013 (Cth): The IGIS functions include public interest disclosure functions (section 8A). IGIS officials are subject to their secrecy obligations alongside the PID Act framework (section 34(1)).
• Privacy Act 1988 (Cth): Complaints may be transferred between the IGIS and the Information Commissioner or the Privacy Commissioner.
• Ombudsman Act 1976 and Australian Human Rights Commission Act 1986: The IGIS and these integrity bodies may transfer complaints to each other (sections 32AG and 32AH).

Non-citizens have significantly narrower IGIS rights. As Emmett J confirmed in Leghaei [2005] FCA 1576 at [78], non-citizens cannot use the IGIS complaint mechanism to obtain review of adverse security assessments in the same way as Australian citizens (who could, at the time, also access the Security Appeals Tribunal). Non-citizens' recourse is effectively limited to the section 8(1)(a) grounds (legality and propriety of agency activities). Section 8(1)(c) (about protection of persons facing adverse assessments that cannot be reviewed by a tribunal) expressly applies only to Australian citizens and permanent residents.

Inquiries are conducted in private; adversarial rights are limited. Section 17(1) requires inquiries to be conducted in private. Section 17(3) provides that it is not necessary for complainants to be given a hearing. The IGIS is an inquisitorial rather than adversarial oversight model. Complainants may never learn the substance of what the IGIS found.

Secrecy means reports may not be public. Reports of IGIS inquiries are made to Ministers and agency heads. They are not automatically tabled in Parliament and their contents are often secret. The public accountability function depends on the IGIS's annual reports and any special reports that Ministers choose to table.

Ministerial directions and guidelines apply to the IGIS. Under section 32B, the Minister may give directions and guidelines to the IGIS. This represents executive supervision of the oversight function. The IGIS cannot act in a way inconsistent with such directions.

Information compulsion in intelligence context. Section 18's information compulsion powers are unusual in the intelligence context because they override normal secrecy obligations applicable to agency personnel. An intelligence officer directed to appear before the IGIS cannot refuse to answer questions merely because the information is classified.

Scenario 1: Complaint about ASIO surveillance. An Australian citizen believes ASIO has unlawfully conducted surveillance on them. They make a written complaint to the IGIS under section 10 and section 11 citing section 8(1)(a)(i) (compliance with the law). The IGIS assesses whether to inquire (section 11), decides to do so, and conducts an inquiry in private. Agency officers may be required to appear and produce documents. If the IGIS finds ASIO did breach the law, it reports to the Attorney-General (section 22). The citizen may receive only brief notification of the outcome under section 23, and may not learn the details.

Scenario 2: Adverse security assessment review. A non-citizen receives an adverse security assessment from ASIO that affects their visa. They complain to the IGIS under section 11 citing section 8(1)(a). As Emmett J confirmed in Leghaei, their recourse is limited to the legality and propriety grounds, not to the broader rights available to Australian citizens and permanent residents.

Scenario 3: Own-motion inquiry. Without any complaint, the IGIS determines on their own motion to inquire into the procedures of ASD relating to the collection of metadata. The inquiry proceeds under section 8(2)(c) (effectiveness and appropriateness of procedures). The IGIS serves notices on ASD officers requiring production of documents. The IGIS then reports findings to the responsible Minister, who must respond and take action within a specified period under section 24.