INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY ACT 1986 - SECT 18 Power to obtain information and documents

INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY ACT 1986 - SECT 18

Requiring information or documents

  (1)   If the Inspector - General has reason to believe that a person is capable of giving information or producing documents relevant to a matter that is being inquired into by the Inspector - General under this Act, the Inspector - General may, by notice in writing given to the person, require the person, at such reasonable place and within such reasonable period as are specified in the notice:

  (a)   to give to the Inspector - General, by writing signed by that person or, in the case of a body corporate, on behalf of the body corporate, any such information; or

  (b)   to produce to the Inspector - General any such documents.

Note:   Failure to comply with a notice is an offence: see subsection   (7).

  (2)   If documents are produced to the Inspector - General in accordance with a requirement under subsection   (1), the Inspector - General:

  (a)   may take possession of, and may make copies of or take extracts from, the documents;

  (b)   may retain possession of the documents for such period as is necessary for the purposes of the inquiry to which the documents relate; and

  (c)   during that period must permit a person who would be entitled to inspect any one or more of the documents if they were not in the possession of the Inspector - General to inspect at all reasonable times such of the documents as the person would be so entitled to inspect.

Requiring attendance

  (3)   If the Inspector - General has reason to believe that a person is able to give information relevant to a matter that is being inquired into by the Inspector - General under this Act, the Inspector - General may, by notice in writing given to the person, require the person to attend before the Inspector - General, at such reasonable time and place as are specified in the notice, to answer questions relevant to the matter under inquiry.

Note:   Failure to comply with a notice is an offence: see subsection   (7).

  (4)   The Inspector - General may administer an oath or affirmation to a person required to attend before the Inspector - General under subsection   (3) and may examine the person on oath or affirmation.

Note 1:   Failure to take an oath or make an affirmation is an offence: see subsection   (7).

Note 2:   This means that a hearing is a judicial proceeding for the purposes of Part   III of the Crimes Act 1914 , which creates various offences in relation to judicial proceedings.

  (5)   The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.

Self - incrimination and legal professional privilege

  (6)   A person is not excused from giving any information, producing a document or answering a question when required to do so under this section on the ground that the giving of the information, the production of the document or the answer to the question:

  (a)   would contravene the provisions of any other Act, would be contrary to the public interest or might tend to incriminate the person or make the person liable to a penalty; or

  (b)   would disclose legal advice given to a Minister or a Commonwealth agency, or would disclose any other information that is, or may be, the subject of a claim of legal professional privilege by the Commonwealth or a Commonwealth agency;

but the information, the production of the document or the answer to the question is not admissible in evidence against the person in any court or in any proceedings before a person authorised to hear evidence except in a prosecution for:

  (c)   an offence against this section; or

  (ca)   an offence against section   137.1, 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 that relates to this section; or

  (cb)   an offence against Division   3 of Part   III of the Crimes Act 1914 (offences relating to evidence and witnesses) that relates to this section; or

  (d)   an offence against:

  (i)   section   6 of the Crimes Act 1914 ; or

  (ii)   section   11.1, 11.4 or 11.5 of the Criminal Code ;

    being an offence that relates to an offence against this section.

  (6A)   The fact that a person is not excused under subsection   (6) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.

Note:   Legal professional privilege is also not waived in relation to information or documents provided voluntarily (see section   32AC).

Offence for failing to comply

  (7)   A person who:

  (a)   fails to be sworn or to make an affirmation or to give information or produce a document when required to do so under this section; or

  (b)   after being given a notice under subsection   (3), fails to comply with the notice or to answer a question that the Inspector - General requires the person to answer;

commits an offence punishable on conviction:

  (c)   in the case of an individual--by imprisonment for a period not exceeding 6 months or a fine not exceeding 10 penalty units, or both; or

  (d)   in the case of a body corporate--by a fine not exceeding 50 penalty units.

  (7A)   Subsection   (7) is an offence of strict liability.

Note:   For strict liability, see section   6.1 of the Criminal Code .

  (7B)   Subsection   (7) does not apply if the person has a reasonable excuse.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (7B) (see subsection   13.3(3) of the Criminal Code ).

Immunity from other penalties

  (9)   A person is not liable to any penalty under the provisions of any law of the Commonwealth or of a Territory by reason only of the person having given information, produced a document or answered a question when required to do so under this section.