ANNEX 15: THE LAW OF THE FIVE EYES
Oversight
27.
Oversight of the interception process is provided in Australia by three mechanisms.
Firstly, the Parliamentary Joint Committee on Intelligence and Security oversees the
administration and expenditure of the Australian intelligence community, including
ASIO. It is made up of members of both houses of Parliament nominated by the
governing party, in consultation with all the parties in Parliament, although with a
majority made up of the party currently in government. It reports to Parliament once a
year, and will also review any amendments to include new agencies in the list of those
which may authorise the disclosure of metadata.51
28.
Secondly, the Inspector General of Intelligence and Security [IGIS] is established by
the Inspector General of Intelligence and Security Act 1986 [IGIS Act]. It is a largely
investigatory role, appointed for five years. He carries out broad-ranging investigations
into the actions of the agencies at his own initiative or pursuant to a complaint or a
request from the public or from ministers, including the Prime Minister.52 He must seek
the approval of the Prime Minister or a responsible Minister before investigating actions
that took place outside of Australia.53
29.
The IGIS is appointed by the Governor-General on the advice of the Prime Minister.
The office is accountable to the Prime Minister but does not take directions from him.
IGIS provides an annual report to the Prime Minister, who may redact that report before
laying it before Parliament, although an unredacted version must be made available to
the leader of the opposition.
30.
As part of his role, IGIS also conducts regular inspections and investigations. Amongst
those inspections are regular reviews of the documents that ASIO has relied on as
providing the basis for its interception warrants.
31.
Thirdly, the Commonwealth Ombudsman investigates the use of interception powers
by law enforcement agencies, including through regular inspections of their records.54
The office does not have jurisdiction over the intelligence agencies.55 The Ombudsman
must also inspect the records of enforcement agencies to determine their compliance
with the new metadata regime.56
Canada
32.
Canadian law provides a separate authorisation mechanism for the police and the
security services to collect data.
Criminal law enforcement
33.
Part VI of the Criminal Code, added pursuant to the Protection of Privacy Act 1974,
provides for the grant of judicial warrants to intercept private communications. Private
51
TIS 1979 ss110A(11) and 176A(11).
IGIS Act s8.
IGIS Act s9AA.
Ombudsman Act 1976 s5.
Ombudsman Regulations 1977 sch. 1.
TIA 1979 s186B.
52
53
54
55
56
354