ASD contract means a contract, to which ASD is a party, under which services are to be, or were to be, provided to ASD.
ASIO means the Australian Security Intelligence Organisation.
ASISmeans the Australian Secret Intelligence Service.
AUSTRAC means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
AUSTRAC CEO has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
AUSTRAC information has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
Australia, when used in a geographical sense, includes the external Territories.
coronial inquiry means a coronial inquiry, coronial investigation or coronial inquest under a law of the Commonwealth, or of a State or Territory.
court includes a tribunal, authority or person that has power to require the production of documents or the answering of questions.
cybercrime means activities that involve committing a serious crime by, or facilitated by, the use of electromagnetic energy, whether guided or unguided or both.
Defence Minister means the Minister administering section 1 of the Defence Act 1903.
Department of Home Affairsmeans the Department administered by the Minister administering the Australian Border Force Act 2015.
DIO means that part of the Defence Department known as the Defence Intelligence Organisation.
Director-General of National Intelligence means the Director-General of National Intelligence holding office under the Office of National Intelligence Act 2018.
(a)that is obtained by ASIS in the course of obtaining intelligence under subsection 6(1) (other than intelligence obtained solely in the course of obtaining intelligence under paragraph 6(1)(da)), by AGO in the course of obtaining intelligence under paragraph 6B(1)(a), (b) or (c) or by ASD in the course of obtaining intelligence under paragraph 7(1)(a); and
(b)that is not intelligence of a kind referred to in those provisions.
Note: The term intelligence functions in paragraph (ca) has its ordinary meaning, and does not have the meaning given by the definition of intelligence function in subsection 3(1).
paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).
paramilitary activities means activities involving the use of an armed unit (or other armed group) that is not part of a country’s official defence or law enforcement forces.
(a)a natural person who is a permanent resident within the meaning of the Australian Security Intelligence Organisation Act 1979; or
(b)a body corporate incorporated under a law in force in a State or Territory, other than a body corporate whose activities one or more of the following controls, or is in a position to control, whether directly or indirectly:
record means a document, or any other object by which words, images, sounds or signals are recorded or stored or from which information can be obtained, and includes part of a record.
Note: For the definition of document, see section 2B of the Acts Interpretation Act 1901.
retained data activity means an activity relating to information, or documents, that a service provider has been required to keep under Part 5-1A of the Telecommunications (Interception and Access) Act 1979.
serious crime means conduct that, if engaged in within, or in connection with, Australia, would constitute an offence against the law of the Commonwealth, a State or a Territory punishable by imprisonment for a period exceeding 12 months.
service provider has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
staff member, subject to subsection 41AC(3), means:
(a)in relation to ASIO—a member of the staff of ASIO (whether an employee of ASIO, a consultant or contractor to ASIO, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIO); and
(b)in relation to an agency—a member of the staff of the agency (whether an employee of the agency, a consultant or contractor to the agency, or a person who is made available by another Commonwealth or State authority or other person to perform services for the agency); and
(c)in relation to DIO—a member of the staff of that part of the Defence Department known as the Defence Intelligence Organisation, whether:
(i)an employee, a consultant or contractor that works in that part of the Defence Department; or
(e)a reference to the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 is a reference only to the most senior such Minister; and
(f)a reference to the Minister responsible for administering the Australian Border Force Act 2015 is a reference only to the most senior such Minister.
Note: A reference to a Minister mentioned in this section may include a reference to a person acting as that Minister (see subsection 19(4) of the Acts Interpretation Act 1901).
(a)to obtain, in accordance with the Government’s requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and
(b)to communicate, in accordance with the Government’s requirements, such intelligence; and
(ba)to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and
(c)to conduct counter-intelligence activities; and
(d)to liaise with intelligence or security services, or other authorities, of other countries; and
(da)to cooperate with and assist bodies referred to in section 13A in accordance with that section; and
(db)to undertake activities in accordance with section 13B; and
(e)to undertake the following other activities relating to the capabilities, intentions or activities of people or organisations outside Australia:
(i)such activities of a general or specific nature as the responsible Minister directs;
(ii)activities included in such a class or classes of activity or activities as the responsible Minister directs.
(1A)Without limiting subparagraph (1)(e)(i), a direction given under that subparagraph may specify the purpose or purposes for which an activity or activities are to be undertaken.
(1B)Without limiting subparagraph (1)(e)(ii), a direction given under that subparagraph may specify the purpose or purposes for which a class or classes of activity or activities are to be undertaken.
(2)The responsible Minister may give a direction under subparagraph (1)(e)(i) or (ii) only if the Minister:
(a)has consulted other Ministers who have related responsibilities; and
(b)is satisfied that there are satisfactory arrangements in place to ensure that, in carrying out the direction, nothing will be done beyond what is necessary having regard to the purposes for which the direction is given; and
(c)is satisfied that there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in carrying out the direction will be reasonable having regard to the purposes for which the direction is given.
(3)A direction under subparagraph (1)(e)(i) or (ii) must be in writing.
Note: If the Minister gives a direction under subparagraph (1)(e)(i) or (ii), the Minister must give a copy of the direction to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given to the head of ASIS (see section 32B of the Inspector-General of Intelligence and SecurityAct 1986).
(3A)A direction under subparagraph (1)(e)(i) or (ii) is not a legislative instrument.
(4)In performing its functions, ASIS must not plan for, or undertake, activities that involve:
Note 1: This subsection does not prevent ASIS from being involved with the planning or undertaking of activities covered by paragraphs (a) to (c) by other organisations provided that staff members or agents of ASIS do not undertake those activities.
Note 2: For other limits on the agency’s functions and activities see sections 11 and 12.
(a)the provision of weapons, or training in the use of weapons or in self-defence techniques, in accordance with Schedule 2; or
(b)the use of weapons or self-defence techniques in accordance with Schedule 2.
(5A)Subsection (4) does not prevent:
(a)the provision of weapons, or training in the use of force (including in the use of weapons) against a person, in accordance with Schedule 3, for the purposes of activities undertaken by ASIS outside Australia; or
(b)the use of force against a person (including the use of weapons), in accordance with Schedule 3, in the course of activities undertaken by ASIS outside Australia; or
(c)the threat of the use of force against a person (including the threat of the use of weapons), in accordance with Schedule 3, in the course of activities undertaken by ASIS outside Australia.
(5B)Nothing in subsection (5) or (5A) permits conduct by a person (the actor) that:
(a)would constitute torture; or
(b)would subject a person to cruel, inhuman or degrading treatment; or
(c)would involve the commission of a sexual offence against any person; or
(d)is likely to cause the death of, or grievous bodily harm to, a person, unless the actor believes on reasonable grounds that the conduct is necessary to protect life or to prevent serious injury to another person (including the actor).
(5C)Nothing in subsection (5) or Schedule 2 limits the operation of subsection (5A) or Schedule 3.
(5D)Nothing in subsection (5A) or Schedule 3 limits the operation of subsection (5) or Schedule 2.
If the responsible Minister gives a direction under subparagraph 6(1)(e)(i) or (ii), the Minister must as soon as practicable advise the Committee of the nature of the activity or activities to be undertaken in accordance with the direction.
(a)to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence about the capabilities, intentions or activities of people or organisations outside Australia from the electromagnetic spectrum or other sources, for the purposes of meeting the requirements of the Government for such intelligence; and
(b)to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence from the electromagnetic spectrum or other sources for the purposes of meeting the operational, targeting, training and exercise requirements of the Defence Force; and
(c)to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence from the electromagnetic spectrum or other sources for the purposes of supporting Commonwealth authorities and State authorities in carrying out national security functions; and
(d)to communicate, in accordance with the Government’s requirements, intelligence referred to in paragraph (a), (b) or (c); and
(e)to provide the following to persons and bodies mentioned in subsection (2):
(i)imagery and other geospatial, hydrographic, meteorological and oceanographic products, not being intelligence obtained under paragraph (a), (b) or (c) of this subsection;
(ii)assistance in relation to the production and use of imagery and other geospatial, hydrographic, meteorological and oceanographic products;
(iii)assistance in relation to the production and use of imagery technologies and other geospatial, hydrographic, meteorological and oceanographic technologies; and
(ea)to provide to any persons or bodies (including Commonwealth authorities and State authorities) assistance in relation to the performance by the persons or bodies of emergency response functions, safety functions, scientific research functions, economic development functions, cultural functions and environmental protection functions, if:
(i)the provision of the assistance is incidental to the performance by AGO of its other functions; or
(ii)the assistance is capable of being conveniently provided by the use of resources that are not immediately required in performing AGO’s other functions; or
(iii)the assistance is capable of being conveniently provided in the course of performing AGO’s other functions; and
(f)to cooperate with and assist bodies referred to in section 13A in accordance with that section; and
(g)to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and
(h)the functions mentioned in subsection 223(2) of the Navigation Act 2012 (to the extent they are not covered by another paragraph of this subsection).
Note 1: For limits on the agency’s functions and activities see sections 11 and 12.
Note 2: Subsection 223(2) of the Navigation Act 2012 deals with the functions of the Australian Hydrographic Office, which is part of AGO (see subsection (3) of this section).
(2)Paragraph (1)(e) applies to providing imagery and other products, or assistance in relation to imagery and other products or technologies, to the following:
(d)any other person or body (including a State authority of a State) if:
(i)the imagery and other products or technologies are for use in, or incidental to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or are for use outside Australia; or
(ii)the imagery and other products or assistance are provided by way of postal, telegraphic, telephonic or other like services.
(4)AGO may, on behalf of the Commonwealth, charge a fee in relation to anything done in performing AGO’s functions under paragraph (1)(e), (ea) or (h).
(5)A fee must not be such as to amount to taxation.
(a)to obtain intelligence about the capabilities, intentions or activities of people or organisations outside Australia in the form of electromagnetic energy, whether guided or unguided or both, or in the form of electrical, magnetic or acoustic energy, for the purposes of meeting the requirements of the Government, and in particular the requirements of the Defence Force, for such intelligence; and
(b)to communicate, in accordance with the Government’s requirements, such intelligence; and
(c)to prevent and disrupt, by electronic or similar means, cybercrime undertaken by people or organisations outside Australia; and
(ca)to provide material, advice and other assistance to any person or body mentioned in subsection (2) on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; and
(d)to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and
(da)to protect specialised technologies acquired in connection with the performance of any of the preceding functions; and
(e)to provide assistance to Commonwealth authorities and State authorities in relation to:
(i)cryptography, and communication and computer technologies; and
(ii)other specialised technologies acquired in connection with the performance of its other functions; and
(iii)the performance by those authorities of search and rescue functions; and
(f)to cooperate with and assist bodies referred to in section 13A in accordance with that section.
Note: For limits on the agency’s functions and activities see sections 11 and 12.
(2)For the purposes of paragraph (1)(ca), material, advice and other assistance may be provided to the following:
(i)the material, advice and other assistance are provided for the purpose of protecting or facilitating trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or outside Australia; or
(ii)the material, advice and other assistance are provided by way of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(iii)the information was obtained or generated in the operation of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
(a)require the agency to obtain an authorisation under section 9, 9A, 9B or 9D (as the case requires) before:
(i)undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person; or
(iaa)undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on one or more members of a class of Australian persons; or
(ia)undertaking, in the course of providing assistance to the Defence Force in support of military operations under paragraph 6(1)(ba), 6B(1)(g) or 7(1)(d), an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on one or more members of a class of Australian persons; or
(ib)undertaking, in the course of providing assistance to the Defence Force in support of military operations under paragraph 6(1)(ba), an activity, or a series of activities, that will, or is likely to, have a direct effect on one or more members ofa class of Australian persons; or
(ii)undertaking, in accordance with a direction under subparagraph 6(1)(e)(i) or (ii), an activity, or a series of activities, that will, or is likely to, have a direct effect on an Australian person; or
(iii)undertaking, in accordance with paragraph 7(1)(c), an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of preventing or disrupting cybercrime undertaken by, or enabled by, an Australian person; and
(b)specify the circumstances in which the agency must, before undertaking other activities or classes of activities, obtain an authorisation under section 9, 9A or 9B (as the case requires).
(1A)For the purposes of subparagraphs (1)(a)(i), (iaa) and (ia), an agency undertakes an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person, or one or more members of a class of Australian persons, only if:
(b)the agency expressly or impliedly requests an authority referred to in paragraph 13(1)(c) to undertake a prescribed activity to obtain that intelligence.
(1B)Prescribed activity means a covert and intrusive activity, or a series of covert and intrusive activities and, to avoid doubt, includes an activity, or a series of activities, that ASIO could not undertake in at least one State or Territory without it being authorised by warrant under:
(a)Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979; or
(b)Part 2-2 of the Telecommunications (Interception and Access) Act 1979.
(4)Directions under paragraph (2)(b) must not relate to a specific staff member.
(5)A direction given under this section is not a legislative instrument.
Note: The Inspector-General of Intelligence and Security has oversight powers in relation to Ministerial directions and authorisations given under this Act. See in particular section 32B of the Inspector-General of Intelligence and SecurityAct 1986 (which requires the Minister to give a copy of a direction under this section to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given).
(1)Before a Minister gives an authorisation, the Minister must be satisfied that:
(a)any activities which may be done in reliance on the authorisation will be necessary for the proper performance of a function of the agency concerned; and
(b)there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the authorisation beyond what is necessary for the proper performance of a function of the agency; and
(c)there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in reliance on the authorisation will be reasonable, having regard to the purposes for which they are carried out; and
(d)for an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the Defence Minister has requested the authorisation in writing.
(1A)Before a Minister gives an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (ia), (ib) or (ii) (the relevant subparagraph), the Minister must also be satisfied that the Australian person, or the class of Australian persons, mentioned in the relevant subparagraph is, or is likely to be, involved in one or more of the following activities:
(a)activities that present a significant risk to the safety of any person (including the Australian person or a member of the class of Australian persons mentioned in the relevant subparagraph);
(e)activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations1958);
(f)activities related to a contravention, or an alleged contravention, of a UN sanction enforcement law by any person (including the Australian person or a member of the class of Australian persons mentioned in the relevant subparagraph);
(g)committing a serious crime by moving money, goods or people;
(h)committing a serious crime by using or transferring intellectual property;
(i)committing a serious crime by transmitting data or signals by means of guided and/or unguided electromagnetic energy.
Note 2: Certain authorisations referred to in this subsection cannot take effect unless the Minister has obtained the agreement of the Attorney-General (see subsection (1AAC)).
(1AAA)Before a Minister gives an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(iaa), the Minister must also be satisfied that the class of Australian persons mentioned in that subparagraph is, or is likely to be, involved with a listed terrorist organisation or a state sponsor of terrorism.
Note: An authorisation referred to in this subsection cannot take effect unless the Minister has obtained the agreement of the Attorney-General (see subsection (1AAD)).
(1AAC)An authorisation referred to in subsection (1A) for an activity, or a series of activities, in relation to an Australian person, or a class of Australian persons, who is, or is likely to be, involved in activities referred to in paragraph (1A)(c) (whether or not the person, or the class of persons, is, or likely to be, involved in activities covered by another paragraph of subsection (1A)) cannot take effect unless and until the Minister has obtained the agreement (orally or in writing, but subject to subsection (1AA)) of the Attorney-General. The agreement may be sought before or after the authorisation is given.
(1AAD)An authorisation referred to in subsection (1AAA) for an activity, or a series of activities, in relation to a class of Australian persons cannot take effect unless and until the Minister has obtained the agreement (orally or in writing, but subject to subsection (1AA)) of the Attorney-General. The agreement may be sought before or after the authorisation is given.
(1AA)Without limiting subsection (1AAC) or (1AAD), the Attorney-General may, in writing:
(a)specify classes of Australian persons who are, or are likely to be:
(i)involved in an activity or activities that are, or are likely to be, a threat to security; or
(b)give his or her agreement in relation to any Australian person in that specified class.
(1AB)An agreement given in accordance with subsection (1AA) may:
(a)relate to an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib) or (ii); and
(b)specify the period during which the agreement has effect.
(1AC)If an agreement relating to a specified class of Australian persons specifies a period in accordance with paragraph (1AB)(b), the agreement of the Attorney-General is, for authorisations to be given after the period ends, taken not to have been obtained in relation to a person in that class.
Note: The agreement of the Attorney-General would need to be obtained again in relation to such a person.
(2)The Minister may give an authorisation in relation to:
(a)an activity, or class of activities, specified in the authorisation; or
(b)acts of a staff member or agent, or a class of staff members or agents, specified (whether by name or otherwise) in the authorisation; or
(c)activities done for a particular purpose connected with the agency’s functions.
(3)An authorisation is subject to any conditions specified in it.
(4)An authorisation must specify how long it will have effect. The period of effect specified in an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib), (ii) or (iii) must not exceed 6 months.
(5)If a Minister gives an authorisation under this section in relation to an agency, the relevant agency head must ensure that copies of the following are kept by the agency and are available for inspection on request by the Inspector-General of Intelligence and Security:
(a)the authorisation;
(b)any record or copy of an agreement given under subsection (1AAC) or (1AAD) (including any agreement given in accordance with subsection (1AA));
(c)if the authorisation is for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the request from the Defence Minister referred to in paragraph (1)(d) of this section.
(6)A request under paragraph (1)(d), an agreement under subsection (1AAC) or (1AAD) (if in writing), a request under subsection (5) (if in writing), and an authorisation under this section, are not legislative instruments.
9AAuthorisations in an emergency—Ministerial authorisations#
(1)This section applies if:
(a)an emergency situation arises in which an agency head considers it necessary or desirable to undertake an activity or a series of activities (except an activity or a series of activities of a kind mentioned in subparagraph 8(1)(a)(iaa), (ia) or (ib)); and
(b)a direction under subsection 8(1) requires the agency to obtain an authorisation under section 9, 9A or 9B before undertaking that activity or series of activities.
(2)A Minister specified in subsection (3) may orally give an authorisation under this section for the activity or series of activities if (subject to section 9C) the conditions in subsections 9(1) and (1A) are met.
(3)The Ministers who may orally give an authorisation are:
(a)ensure that a written record of an authorisation given under this section is made as soon as practicable (but no later than 48 hours) after the authorisation is given; and
(b)give the Inspector-General of Intelligence and Security a copy of the record within 3 days after the authorisation is given.
9BAuthorisations in an emergency—Ministers unavailable#
(1)This section applies if:
(a)an agency head considers it necessary or desirable to undertake an activity or a series of activities; and
(b)an authorisation is sought under section 9A; and
(c)the agency head is satisfied that none of the Ministers specified in subsection 9A(3) are readily available or contactable.
(2)The agency head may give an authorisation under this section for the activity or series of activities if the agency head is satisfied that:
(a)the facts of the case would justify the relevant responsible Minister giving an authorisation under section 9 because (subject to section 9C) the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and
(4A)An agency head who gives an authorisation under this section for an activity or series of activities must notify the relevant responsible Minister of the authorisation within 8 hours after giving the authorisation.
(b)a summary of the facts of the case that the agency head was satisfied justified giving the authorisation;
(c)an explanation of the Minister’s obligation under subsection (7).
(6)The documents must be given to the responsible Minister and the Inspector-General of Intelligence and Security as soon as practicable, but no later than the following time:
(a)for documents given to the responsible Minister—48 hours after giving the authorisation;
(b)for documents given to the Inspector-General of Intelligence and Security—3 days after giving the authorisation.
(8A)Within 30 days after the Inspector-General of Intelligence and Security is given the documents, the Inspector-General must:
(a)consider whether the agency head complied with the requirements of this section in giving the authorisation; and
(b)provide the responsible Minister with a report on the Inspector-General’s views of the extent of the agency head’s compliance with the requirements of this section in giving the authorisation; and
(c)provide to the Committee a copy of the conclusions in the report.
(3)Before an authorisation is given under section 9A or 9B, the agency head must, unless the agency head is satisfied that the Director-General of Security is not readily available or contactable, obtain the agreement of the Director-General to the authorisation:
(a)being given; and
(b)taking effect without the agreement of the Attorney-General having been obtained.
(4)The relevant agency head must notify the following that an authorisation was given under section 9A or 9B (as the case requires) in accordance with this section:
(a)the Attorney-General;
(b)the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister);
The notification must state whether the agreement of the Director-General of Security was obtained.
(5)The notification must be given:
(a)for a notification given to the Attorney-General or the ASIO Minister—before the end of 8 hours after the authorisation is given under section 9A or 9B; and
(b)for a notification given to the Inspector-General of Intelligence and Security—as soon as practicable, but no later than 3 days after the authorisation is given under section 9A or 9B.
(6)Within 30 days after the Inspector-General of Intelligence and Security is given the notification, the Inspector-General must:
(a)consider whether the agency head complied with the requirements of this section in giving the authorisation under section 9A or 9B; and
(b)provide the responsible Minister with a report on the Inspector-General’s views of the extent of the agency head’s compliance with the requirements of this section in giving the authorisation under that section; and
(c)provide to the Committee a copy of the conclusions in the report.
9DAuthorisations in an emergency—imminent risk to safety of an Australian person#
(1)This section applies if an agency head is satisfied that:
(a)there is, or is likely to be, an imminent risk to the safety of an Australian person who is outside Australia; and
(b)it is necessary or desirable to undertake an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on the person; and
(c)it is not reasonably practicable to obtain the person’s consent to the agency producing that intelligence; and
(d)having regard to the nature and gravity of the risk, it is reasonable to believe that the person would consent to the agency producing that intelligence if the person were able to do so.
(2)The agency head may, orally or in writing, give an authorisation under this section for the activity, or series of activities, if the agency head is satisfied that:
(a)the facts of the case would justify the responsible Minister giving an authorisation under section 9 because the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and
(4)As soon as practicable after giving the authorisation (but no later than 8 hours after the authorisation is given) the agency head must, orally or in writing, notify the responsible Minister of the authorisation.
(5)As soon as practicable after giving the authorisation (but no later than 48 hours after the authorisation is given) the agency head must:
(a)if the authorisation is given orally—ensure that the authorisation is recorded in writing; and
(b)ensure that a summary of the facts of the case that the agency head was satisfied justified giving the authorisation is recorded in writing; and
(ii)a summary of the facts of the case that the agency head was satisfied justified giving the authorisation; and
(iii)an explanation of the Minister’s obligation under subsection (6); and
(d)give to the Inspector-General of Intelligence and Security the documents referred to in subparagraphs (c)(i) and (ii); and
(e)if the Australian person is, or is likely to be, involved in an activity or activities that are, or are likely to be, a threat to security—give to the Attorney-General and the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister) the documents referred to in subparagraphs (c)(i) and (ii).
(6)The responsible Minister must, as soon as practicable after being given documents under paragraph (5)(c), consider whether to cancel the authorisation under subsection (10).
(7)If the Attorney-General is required to be given documents under paragraph (5)(e), the responsible Minister must have regard to any advice given by the Attorney-General when making a decision under subsection (6).
(8)Within 30 days after the Inspector-General of Intelligence and Security is given documents under paragraph (5)(d), the Inspector-General must:
(a)consider whether the agency head has complied with the requirements of this section; and
(b)provide the responsible Minister with a report on the Inspector-General’s views of the extent of the compliance by the agency head with the requirements of this section; and
(c)provide to the Committee a copy of the conclusions in the report.
(9)The authorisation ceases to have effect at the earliest of the following times:
(a)the end of 6 months, starting on the day the authorisation is given;
(b)if the authorisation specifies a time when the authorisation ceases to have effect—that time;
(c)if the responsible Minister cancels the authorisation under subsection (10)—the time of cancellation;
(d)if the agency head cancels the authorisation under subsection (12)—the time of cancellation;
(e)if an authorisation for the activity, or series of activities, is given under section 9, 9A or 9B—the time the authorisation under section 9, 9A or 9B is given.
(11)If the responsible Minister cancels the authorisation under subsection (10), the Minister must, as soon as practicable, give written notice of the cancellation to:
Note: The agency head may cancel the authorisation in other circumstances (see subsection 33(3) of the Acts Interpretation Act 1901).
(13)If the agency head cancels the authorisation under subsection (12), the agency head must, as soon as practicable, give written notice of the cancellation to:
(14)An agency head may, in writing, delegate to a staff member (other than a consultant or contractor) all or any of the powers, functions or duties of the agency head under this section.
Note: See sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 on delegations.
(15)In exercising a power, performing a function or discharging a duty under a delegation under subsection (14), the delegate must comply with any written directions of the agency head.
(16)To avoid doubt, this section does not limit subsection 33(3) of the Acts Interpretation Act 1901 to the extent that it applies to an authorisation given under this section.
(1)The Minister may, at any time before the day on which an authorisation given under section 9 would cease to have effect, renew it for the length of time specified in the renewal. However, the authorisation must not be renewed unless the Minister is satisfied that it is necessary, for the purpose for which the authorisation was given, for the authorisation to continue to have effect.
(1A)The renewal (or any subsequent renewal) of an authorisation given under section 9 for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib), (ii) or (iii), must be for a period not exceeding 6 months.
(2)The Minister may vary or cancel an authorisation given under section 9 at any time.
(2A)If, before an authorisation is cancelled under subsection (2) or otherwise ceases to have effect, the relevant agency head is satisfied that the grounds on which the authorisation was given under section 9 have ceased to exist:
(a)the agency head must inform the Minister accordingly, and must take the steps necessary to ensure that activities under the authorisation are discontinued; and
(b)as soon as practicable after being so informed, the Minister must consider cancelling the authorisation under subsection (2).
(2B)Without limiting subsection (2A), if an authorisation is given under section 9 for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib), the grounds on which the authorisation was given cease to exist if:
(a)the Defence Force is no longer engaged in any military operations to which the request for the authorisation relates; or
(b)the Defence Minister withdraws the request for the authorisation.
Note: For the request for the authorisation, see paragraph 9(1)(d).
(2C)For the purposes of subsection (2A), if an authorisation is given in reliance on an agreement that specifies a period in accordance with paragraph 9(1AB)(b), the grounds on which the authorisation was given are taken not to have ceased to exist merely because the period specified in the agreement ends.
(4)To avoid doubt, this section does not limit subsection 33(3) of the Acts Interpretation Act 1901 to the extent that it applies to an authorisation given under section 9A or 9B.
10AAAdditional requirements for class authorisations#
(1)This section applies if an authorisation is given to an agency under section 9 for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(iaa), (ia) or (ib) in relation to one or more members of a class of Australian persons.
(2)The agency head must ensure that a list is kept that:
(a)identifies each Australian person in relation to whom the agency intends to undertake activities, or a series of activities, under the authorisation; and
(b)gives an explanation of the reasons why the agency believes the person is a member of the class; and
(c)includes any other information that the agency head considers appropriate.
Note: For variation of the list, see subsection 33(3) of the Acts Interpretation Act 1901.
(3)If:
(a)the Attorney-General’s agreement under subsection (1AAC) or (1AAD) was obtained in relation to the class of Australian persons mentioned in subsection (1); and
(d)written notice that the Australian person was included on the list.
(4)The agency head must ensure that the list is available for inspection on request by the Inspector-General of Intelligence and Security.
(5)The list and a notice under paragraph (3)(d) are not legislative instruments.
10AAgency heads must report on authorised activities#
(1)An agency head must give to the responsible Minister in relation to the agency a written report in respect of each activity, or series of activities, carried out by the agency in reliance on an authorisation under section 9, 9A, 9B or 9D.
(2)The report must (subject to subsections (3) and (4)) be provided to the Minister within 3 months of the day on which the relevant authorisation ceased to have effect.
(3)If the report is in respect of an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(iaa), (ia) or (ib), then:
(a)the report must be provided to the Minister as soon as practicable, but no later than 3 months, after each of the following days:
(i)the day on which the relevant authorisation ceased to have effect;
(ii)the day on which the relevant authorisation was renewed; and
(b)the report must be accompanied with a statement identifying every Australian person who was included on the list referred to in section 10AA during the period the authorisation was in effect.
(4)If the report is in respect of an activity, or series of activities, carried out by the agency in reliance on an authorisation under section 9A, 9B or 9D, the report must be provided to the Minister as soon as practicable, but no later than 1 month, after the day on which the authorisation ceased to have effect.
(1)The functions of the agencies are to be performed only in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia.
(b)any other responsibility for the enforcement of the law.
However, this does not prevent the agencies from:
(c)obtaining intelligence under paragraph 6(1)(a), 6B(1)(a), (b), or (c) or 7(1)(a) and communicating any such intelligence that is relevant to serious crime to the appropriate law enforcement authorities; or
(d)in the case of ASIS—performing the function set out in paragraph 6(1)(da) or providing assistance as mentioned in subsection 6(7); or
(e)in the case of AGO—performing the functions set out in paragraphs 6B(1)(e), (ea), (f) and (h); or
(f)in the case of ASD—performing the functions set out in paragraphs 7(1)(c), (e) and (f).
(2AA)An agency may communicate incidentally obtained intelligence to appropriate Commonwealth or State authorities or to authorities of other countries approved under paragraph 13(1)(c) if the intelligence relates to the involvement, or likely involvement, by a person in one or more of the following activities:
(a)activities that present a significant risk to the safety of that person or any other person;
(d)activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);
(2A)The agencies’ functions do not include undertaking any activity for the purpose of furthering the interests of an Australian political party or other Australian political organisation.
(3)Subsection (1) does not apply to the functions described in paragraphs 6(1)(da), 6B(1)(b) to (h) and 7(1)(c), (ca), (d), (e) and (f).
(a)his or her agency is kept free from any influences or considerations not relevant to the undertaking of activities as mentioned in paragraph 12(a) or (b); and
(b)nothing is done that might lend colour to any suggestion that his or her agency is concerned to further or protect the interests of any particular section of the community, or with undertaking any activities other than those mentioned in paragraph 12(a) or (b).
(3A)Despite paragraph (1)(c), subject to any arrangements made or directions given by the responsible Minister, AGO may, for the purposes of performing its functions under paragraph 6B(1)(e), (ea) or (h), cooperate with authorities of other countries if they are capable of assisting AGO in the performance of its functions.
(3B)The Director of AGO must, as soon as practicable after each year ending on 30 June, give to the responsible Minister and the Inspector-General of Intelligence and Security a report about any significant cooperation under subsection (3A) by AGO with authorities of other countries referred to in that subsection.
(4)Despite paragraph (1)(c), subject to any arrangements made or directions given by the responsible Minister, ASD may, for the purposes of performing its function under paragraph 7(1)(ca), cooperate with authorities of other countries if they are capable of assisting ASD in the performance of its functions.
(5)The Director-General of ASD must, as soon as practicable after each year ending on 30 June, give to the responsible Minister and the Inspector-General of Intelligence and Security a report about any significant cooperation under subsection (4) by ASD with authorities of other countries referred to in that subsection.
(a)subject to any arrangements made or directions given by the responsible Minister; and
(b)on request by the head (however described) of the body referred to in subsection (1).
Note: The Inspector-General of Intelligence and Security has oversight powers in relation to Ministerial directions and authorisations given under this Act. See in particular section 32B of the Inspector-General of Intelligence and SecurityAct 1986 (which requires the Minister to give a copy of a direction under this section to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given).
(3)Without limiting subsection (1), in cooperating with and assisting a body in accordance with this section, an agency may make the services of staff members, and other resources, of the agency available to the body.
(1)Subject to section 13D, ASIS may undertake an activity, or a series of activities, if:
(a)the activity or series of activities will be undertaken for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person or a class of Australian persons; and
(c)the activity or series of activities will be undertaken to support ASIO in the performance of its functions; and
(ii)a person who is authorised under section 13C for the purposes of this subparagraph;
has, in writing, notified ASIS that ASIO requires the production of intelligence on the Australian person or class of Australian persons.
(2)The undertaking of an activity or series of activities under subsection (1) is subject to any conditions specified in the notice under paragraph (1)(d).
reasonably believes that it is not practicable in the circumstances for ASIO to notify ASIS in accordance with paragraph (1)(d) before undertaking the activity.
(4)If ASIS undertakes an activity in accordance with subsection (3), ASIS must, as soon as practicable, notify ASIO and the Inspector-General of Intelligence and Security, in writing, of the activity.
(5)ASIS may undertake an activity or series of activities under subsection (1) without an authorisation under section 9 for the activity or series of activities.
(6)An activity, or a series of activities, does not cease to be undertaken:
(a)in accordance with this section; or
(b)for the specific purpose of supporting ASIO in the performance of its functions;
only because, in undertaking the activity or series of activities, ASIS also incidentally produces intelligence that relates to the involvement, or likely involvement, of an Australian person in one or more of the activities set out in subsection 9(1A).
(7)The Director-General of ASIS may authorise, in writing, a staff member of ASIS, or a class of such staff members, for the purposes of paragraph (3)(a).
(1)The Director-General of Security may authorise, in writing, a senior position-holder, or a class of senior position-holders, for the purposes of subparagraph 13B(1)(d)(ii).
If ASIO could not undertake a particular act in at least one State or Territory without it being authorised by warrant under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2-2 of the Telecommunications (Interception and Access) Act 1979, this Division does not allow ASIS to undertake the act.
13EDirector-General of ASIS to be satisfied of certain matters#
The Director-General of ASIS must be satisfied that:
(a)there are satisfactory arrangements in place to ensure that activities will be undertaken in accordance with section 13B only for the specific purpose of supporting ASIO in the performance of its functions; and
(b)there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in accordance with section 13B will be reasonable, having regard to the purposes for which they are carried out.
13FOther matters relating to activities undertaken in relation to ASIO#
(1)If, in undertaking an activity or series of activities in accordance with section 13B, ASIS produces intelligence, ASIS must not communicate the intelligence outside ASIS (other than in accordance with subsection (2)) unless ASIO has been consulted.
(2)If, in undertaking an activity or series of activities in accordance with section 13B, ASIS produces intelligence, ASIS must cause the intelligence to be communicated to ASIO as soon as practicable after the production.
(3)If a notice is given to ASIS under paragraph 13B(1)(d), the Director-General of ASIS must ensure that a copy of the notice is kept by ASIS and is available for inspection on request by the Inspector-General of Intelligence and Security.
(4)As soon as practicable after each year ending on 30 June, the Director-General of ASIS must give to the responsible Minister in relation to ASIS a written report in respect of activities undertaken by ASIS in accordance with section 13B during the year.
13GGuidelines relating to activities undertaken in relation to ASIO#
(1)The responsible Minister in relation to ASIO and the responsible Minister in relation to ASIS may jointly make written guidelines relating to the undertaking of activities in accordance with section 13B.
(1A)Before making guidelines under subsection (1), the responsible Ministers must consult with the Attorney-General.
(2)Guidelines made under subsection (1) are not a legislative instrument.
(1)A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.
(2)A personis not subject to any civil or criminal liability for any act (whether done inside or outside Australia) if:
(a)the act is preparatory to, in support of, or otherwise directly connected with, overseas activities of the agency concerned; and
(i)taken together with an act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but
(ii)in the absence of that other act, event, circumstance or result, would not amount to an offence; and
(c)the act is done in the proper performance of a function of the agency.
(2A)Subsection (2) is not intended to permit any act in relation to premises, persons, computers, things, or telecommunications services in Australia, being:
(a)an act that ASIO could not do without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2-2 of the Telecommunications (Interception and Access) Act 1979; or
(b)an act to obtain information that ASIO could not obtain other than in accordance with Division 3 of Part 4-1 of the Telecommunications (Interception and Access) Act 1979.
(2AA)Subsections (1) and (2) have effect despite anything in a law of the Commonwealth or of a State or Territory, whether passed or made before or after the commencement of this subsection, unless the law expressly provides otherwise.
(2AB)Subsection (2AA) does not affect the operation of subsection (2A).
(2B)The Inspector-General of Intelligence and Security may give a certificate in writing certifying any fact relevant to the question of whether an act was done in the proper performance of a function of an agency.
(2C)In any proceedings, a certificate given under subsection (2B) is prima facie evidence of the facts certified.
(1A)The agencies must not communicate intelligence information concerning Australian persons, except in accordance with the rules.
(2)In making the rules, the Minister must have regard to the need to ensure that the privacy of Australian persons is preserved as far as is consistent with the proper performance by the agencies of their functions.
(c)in any case—the Inspector-General of Intelligence and Security and the Attorney-General.
(4)For the purpose of consultations under paragraph (3)(c), the Minister must provide a copy of the rules the Minister is proposing to make to the Inspector-General of Intelligence and Security and to the Attorney-General.
(5)The Ministermust ensure that the rules are published on the relevant agency’s website as soon as practicable after the rules are made, except to the extent that the rules contain:
(2)The Director-General of ASIS is to be appointed by the Governor-General.
(3)Before a recommendation is made to the Governor-General for the appointment of a person as Director-General of ASIS, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.
(4)The person who, immediately before the commencement of this Act, held office as the Director-General of ASIS continues, subject to this Act, to hold the office for the remainder of the term for which he or she was appointed.
(2)The Director-General of ASIS, under the Minister, is responsible for managing ASIS and must advise the Minister in matters relating to ASIS.
19Briefing the Leader of the Opposition about ASIS#
The Director-General of ASIS must consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him or her informed on matters relating to ASIS.
(ii)applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii)compounds with his or her creditors; or
(iv)makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b)the Director-General is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c)the Director-General engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or
(d)the Director-General fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
(3)The Governor-General may, with the Director-General of ASIS’s consent, retire the Director-General from office on the ground of incapacity if the Director-General is:
(a)an eligible employee for the purposes of the Superannuation Act 1976; or
(b)a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c)an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.
(1)The Minister may appoint a person to act as the Director-General of ASIS if there is a vacancy in the office of the Director-General.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2)The Minister may appoint a person to act as the Director-General of ASIS during any period, or during all periods, when the Director-General is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
The Director-General of ASIS must not engage in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the Director-General’s duties.
(1)Subject to subsection 41AB(8), the Director-General of ASIS may delegate to a staff member (other than a consultant or contractor) all or any of the powers of the Director-General that relate to the management of the staff of ASIS or the financial management of ASIS.
Note: See sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 on delegations.
(1)The organisation known as the Australian Signals Directorate is continued in existence in accordance with this Act.
Note: The Australian Signals Directorate provides assistance to the Defence Force in support of military operations and cooperates with the Defence Force on intelligence matters: see paragraph 7(1)(d).
(2)For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(2)The Director-General of ASD is to be appointed by the Governor-General by written instrument.
Note: The Director-General of ASD may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
(3)Before a recommendation is made to the Governor-General for the appointment of a person as Director-General of ASD, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.
(1)ASD, and the staff referred to in subsection 38A(1), are under the control of the Director-General of ASD.
(2)The Director-General of ASD, under the Minister, is responsible for managing ASD and must advise the Minister in matters relating to ASD.
27DBriefing the Leader of the Opposition about ASD#
The Director-General of ASD must consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him or her informed on matters relating to ASD.
(1)The Director-General of ASD is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director-General is to be paid the remuneration that is prescribed by the regulations.
(2)The Director-General of ASD is to be paid the allowances that are prescribed by the regulations.
(3)This section has effect subject to the Remuneration Tribunal Act 1973.
(1)The Director-General of ASD may resign his or her appointment by giving the Governor-General a written resignation.
(2)The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.
(ii)applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii)compounds with his or her creditors; or
(iv)makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b)the Director-General is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c)the Director-General engages in paid work that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the Director-General’s duties (see section 27L); or
(d)the Director-General lacks, or has lost, an essential qualification for performing the duties of his or her office.
Note: The appointment of the Director-General of ASD may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
(3)The Governor-General may, with the Director-General of ASD’s consent, retire the Director-General from office on the ground of incapacity if the Director-General is:
(a)an eligible employee for the purposes of the Superannuation Act 1976; or
(b)a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c)an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.
(a)a person is appointed to act as the Director-General of ASD under subsection (1); and
(b)the person is under the command of the Chief of the Defence Force under the Defence Act 1903;
then, the person must perform the duties of the office of the Director-General consistently with this Act during the period of the appointment, even though the person is under the command of the Chief of the Defence Force.
(1)A Director-General of ASD has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2)The Minister may grant the Director-General of ASD leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
The Director-General of ASD must not engage in paid work that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the Director-General’s duties.
The Director-General of ASD holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1)The Director-General of ASD may, in writing, delegate all or any of his or her functions or powers under Part 5A to a staff member who holds, or is acting in, a position that is an Executive Level 1 position, or an equivalent or higher position, in ASD.
(2)In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Director-General of ASD.
(1)A Committee to be known as the Parliamentary Joint Committee on Intelligence and Security is to be established after the commencement of the first session of each Parliament.
(2)The Committee is to consist of 13 members and must include at least:
(a)2 Senators who are Government members; and
(b)2 members of the House of Representatives who are Government members; and
(c)2 Senators who are non-Government members; and
(d)2 members of the House of Representatives who are non-Government members.
(3)A majority of the Committee’s members must be Government members.
Note: For more detailed provisions on the appointment of members see Part 3 of Schedule 1.
(a)to review the administration and expenditure of the following agencies or bodies, including the annual financial statements of those agencies or bodies:
(ii)a resolution of either House of the Parliament; and
(ba)to review any proposed reforms to, or expiry, lapsing or cessation of effect of, legislation relating to counter-terrorism or national security referred to the Committee by:
(iii)a resolution of either House of the Parliament; and
(baaa)without limiting any other paragraph in this subsection, to review any proposed reforms to, or expiry, lapsing or cessation of effect of, legislation relating to counter-terrorism or national security, as the Committee sees fit; and
(baa)to monitor and to review the performance by the AFP of its functions under Part 5.3 of the Criminal Code; and
(bab)to report to both Houses of the Parliament, with such comments as it thinks fit, upon any matter appertaining to the AFP or connected with the performance of its functions under Part 5.3 of the Criminal Code to which, in the opinion of the Committee, the attention of the Parliament should be directed; and
(bac)to inquire into any question in connection with its functions under paragraph (baa) or (bab) that is referred to it by either House of the Parliament, and to report to that House upon that question; and
(iii)a resolution of either House of the Parliament; and
(bbaaa)to commence a review, within the period of 12 months after the Independent National Security Legislation Monitor completes a review under subsection 6(1C) of the Independent National Security Legislation Monitor Act 2010, into the operation, effectiveness and implications of Division 105A of the Criminal Code (which provides for post-sentence orders in relation to terrorism) and any other provision of the Criminal Code Act 1995 as it relates to that Division; and
(bba)to monitor and review:
(i)the performance by the AFP of its functions under Division 3A of Part IAA of the Crimes Act 1914; and
(ii)the basis of the Minister’s declarations of prescribed security zones under section 3UJ of that Act; and
(bcaa)if the Committee resolves to do so—to commence, as soon as practicable after the fourth anniversary of the day the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 receives the Royal Assent, a review of the operation, effectiveness and implications of the amendments made by Schedules 1, 2 and 3 to that Act; and
(bd)subject to subsection (5), to review any matter that:
(i)relates to the retained data activities of ASIO; and
(ii)is included, under paragraph 94(2A)(c), (d), (e), (f), (g), (h), (i) or (j) of the Australian Security Intelligence Organisation Act 1979, in a report referred to in subsection 94(1) of that Act; and
(be)subject to subsection (5), to review any matter that:
(i)relates to the retained data activities of the AFP in relation to offences against Part 5.3 or 5.3A of the Criminal Code; and
(ii)is set out, under paragraph 186(1)(e), (f), (g), (h), (i), (j) or (k) of the Telecommunications (Interception and Access) Act 1979, in a report under subsection 186(1) of that Act; and
(bf)to commence, by the earlier of the following:
(i)the fifth anniversary of the day on which Schedule 1 to the Telecommunications (Interception and Access) Act 1979 commences;
(ii)the third anniversary of the day on which the first designated international agreement (within the meaning of that Schedule) enters into force for Australia;
a review of the operation, effectiveness and implications of that Schedule; and
(ca)to commence, by the third anniversary of the day the Australian Citizenship Amendment (Citizenship Cessation) Act 2020commenced, a review of the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations) and any other provision of that Act as far as it relates to that Subdivision; and
(cb)if the Committee resolves to do so—to commence a review, after the Independent National Security Legislation Monitor completes the review under subsection 6(1F) of the Independent National Security Legislation Monitor Act 2010, into the operation, effectiveness and implications of:
(i)Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (which deals with citizenship cessation); and
(ii)any other provision of that Act as far as it relates to that Subdivision; and
(cc)to review, by the end of the period of 3 years beginning on the day the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 commenced, the operation, effectiveness and implications of that Act; and
(cd)to monitor and review the exercise of powers under the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 by the Minister administering that Act; and
(ce)if the Committee resolves to do so—to commence, by the second anniversary of the commencement of the Australian Security Intelligence Organisation Amendment Act (No. 2) 2026, a review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979; and
(cf)to commence, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, a review of the operation, effectiveness and implications of the amendments made by Schedule 1 to that Act; and
(cfa)to commence, as soon as practicable after the second anniversary of the day that Part 1 of Schedule 1 to the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 commenced, a review of the operation, effectiveness and implications of the amendments made by that Part, including the following:
(i)the operation and interpretation of the expressions “spiritual leader” and “another leader” in the offences in section 80.2DA of the Criminal Code;
(ii)whether those offences have operated effectively, proportionately and consistently with their intended purpose;
(iii)any impact of those offences on freedom of expression, freedom of religion or freedom of association;
(iv)whether any amendments are required to ensure those offences operate appropriately to address antisemitism, hate and extremism while remaining consistent with Australia’s international obligations;
(v)a consideration of all relevant data from each agency (within the meaning of clause 1A of Schedule 1 to this Act); and
(cfb)to commence, as soon as practicable after the second anniversary of the day that Part 4 of Schedule 1 to the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 commenced, a review of the operation, effectiveness and implications of the amendments made by that Part, including the following:
(i)whether the amendments made by that Part are necessary and proportionate to address antisemitism, hate and extremism;
(ii)any impact of those amendments on freedom of expression, freedom of religion or freedom of association;
(iii)the practical operation of those amendments, including action taken by law enforcement and prosecuting agencies;
(iv)whether any amendments are required to ensure the provisions inserted or amended by that Part operate effectively while remaining consistent with Australia’s international obligations; and
(cg)to review the privacy rules made under section 15 of this Act; and
(ch)to review the privacy rules made under section 41C of this Act; and
(ci)to review the privacy rules made under section 53 of the Office of National Intelligence Act 2018; and
(c)to report the Committee’s comments and recommendations to each House of the Parliament, to the responsible Minister and to the Attorney-General.
(2)The Committee may, by resolution, request the responsible Minister or the Attorney-General to refer a matter in relation to the activities of any of the following to the Committee, and the Minister or the Attorney-General may, under paragraph (1)(b) or (bad), refer that matter to the Committee for review:
(2A)The Committee may, by resolution, request the Inspector-General of Intelligence and Security to inquire into a matter (whether or not the functions of the Committee include reviewing the matter) under section 8AA of the Inspector-General of Intelligence and SecurityAct 1986 if the matter:
(a)relates to the legality and propriety (however described) of the operational activities of an agency or other body; and
(b)is within the functions of the Inspector-General mentioned in that section; and
(c)does not relate to an individual complaint about the activities of the agency or body.
Note: The Committee must not review certain matters or require the Inspector-General to disclose certain information (see subsection (3) of this section and clause 1 of Schedule 1 to this Act).
(2B)The Committee must provide a copy of the request to the Minister responsible for the agency or body to which the matter relates.
(2C)If the Inspector-General of Intelligence and Security decides not to inquire into the matter, the Inspector-General must notify the Committee of its decision.
(aa)reviewing anything done by ONI in its leadership of the national intelligence community, to the extent that it involves prioritising national intelligence priorities and requirements, and allocating resources accordingly, in relation to:
(i)an intelligence agency (as defined by subsection 4(1) of the Office of National Intelligence Act 2018); or
(ii)an agency with an intelligence role or function (as defined by subsection 4(1) of that Act); or
(ab)reviewing anything done by ONI in its leadership of the national intelligence community, to the extent that it relates to:
(i)an intelligence agency (as defined by subsection 4(1) of the Office of National Intelligence Act 2018) and a matter that would otherwise be covered by any of the following paragraphs of this subsection; or
(ii)an agency with an intelligence role or function (as defined by subsection 4(1) of that Act) and a matter that would otherwise be covered by any of the following paragraphs of this subsection if those paragraphs applied to the agency; or
(a)reviewing the intelligence gathering and assessment priorities of ACIC, ASIO, ASIS, AGO, DIO, ASD or ONI; or
(b)reviewing the sources of information, other operational assistance or operational methods available to ACIC, ASIO, ASIS, AGO, DIO, ASD or ONI; or
(c)reviewing particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, AGO, DIO or ASD; or
(ca)reviewing special ACC operations (within the meaning of the Australian Crime Commission Act 2002) or special ACC investigations (within the meaning of that Act) that have been, are being or are proposed to be undertaken by ACIC; or
(d)reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or
(h)reviewing the content of, or conclusions reached in, assessments or reports made by DIO or ONI, or reviewing sources of information on which such assessments or reports are based; or
(i)reviewing anything done by ONI in carrying out the evaluation functions mentioned in section 9 of the Office of National Intelligence Act 2018; or
(k)reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by AFP, AUSTRAC or the Department of Home Affairs.
(4)Subject to subsection (5), paragraphs (3)(c) and (k) do not apply to things done in the performance of the Committee’s functions under paragraphs (1)(bd) and (be).
(5)The Committee’s functions under paragraphs (1)(bd) and (be):
(a)are to be performed for the sole purpose of assessing, and making recommendations on, the overall operation and effectiveness of Part 5-1A of the Telecommunications (Interception and Access) Act 1979; and
(b)do not permit reviewing the retained data activities of service providers; and
(c)may not be performed for any purpose other than that set out in paragraph (a).
Note: The performance of the Committee’s functions under paragraphs (1)(bd) and (be) are also subject to the requirements of Schedule 1.
Without limiting who the Committee may request briefings from, for the purpose of performing its functions, the Committee may request the following people to brief the Committee:
(h)the Independent National Security Legislation Monitor;
(i)an Agency Head (within the meaning of the Public Service Act 1999) of an Agency (within the meaning of that Act) if the functions, or proposed functions, of the Agency relate to a matter being considered by the Committee under section 29.
As soon as practicable after each year ending on 30 June, the Committee must give to the Parliament a report on the activities of the Committee during the year.
(1)The Director-General of ASIS may, on behalf of the Commonwealth, employ by written agreement such employees of ASIS as the Director-General thinks necessary for the purposes of this Act.
(2)The Director-General of ASIS, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of the engagement, and employment, of employees of ASIS.
(3)The Director-General of ASIS may determine the terms and conditions on which employees are to be employed. Before making a determination the Director-General must consult with the employees who are to be subject to the terms and conditions of the determination.
(1)The Director-General of ASIS may, on behalf of the Commonwealth, engage as consultants persons having suitable qualifications and experience.
(2)The engagement of a consultant must be by written agreement.
(3)The terms and conditions of engagement are those determined by the Director-General of ASIS from time to time.
35Applicability of principles of Public Service Act 1999#
Although employees of ASIS are not employed under the Public Service Act 1999, the Director-General of ASIS must adopt the principles of that Act in relation to employees of ASIS to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASIS.
A person who, immediately before the commencement of this Act, was employed in ASIS under a written agreement continues to be employed on the terms and conditions specified in that agreement, unless he or she agrees to accept other terms and conditions.
(1)Section 26 of the Public Service Act 1999 applies in relation to an employee of ASIS as if the employee were an APS employee and ASIS were an APS Agency.
(2)An employee of ASIS who moves to an APS Agency under that section is entitled to have his or her employment, as an employee of ASIS, treated as if it were:
(a)employment as an APS employee; and
(b)at a corresponding classification, as agreed between the Director-General of ASIS and the Public Service Commissioner.
(a)establish procedures relating to the consideration of grievances of employees and former employees of ASIS; and
(b)determine the classes of ASIS actions that are to be subject to the grievance procedures.
(2)In establishing the procedures and determining the classes of action, the Director-General of ASIS must:
(a)adopt the principles of the Public Service Act 1999 to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASIS; and
ASIS action means action taken after the commencement of this Act by the Director-General of ASIS or an employee of ASIS that relates to an ASIS employee’s employment.
(1)The Director-General of ASD may, on behalf of the Commonwealth, employ by written agreement such employees of ASD as the Director-General thinks necessary for the purposes of this Act.
(2)The Director-General of ASD, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of the engagement, and employment, of employees of ASD.
(3)The Director-General of ASD may determine the terms and conditions on which employees are to be employed. Before making a determination the Director-General must consult with the employees who are to be subject to the terms and conditions of the determination.
(1)The Director-General of ASD may, on behalf of the Commonwealth, engage as consultants persons having suitable qualifications and experience to assist in the performance of ASD’s functions.
(2)The engagement of a consultant must be by written agreement.
(3)The terms and conditions of engagement are those that the Director-General of ASD determines in writing.
(1)The Director-General of ASD may, in writing, arrange for an employee of ASD to be seconded for a specified period to a body or organisation whether within or outside Australia.
(2)The Director-General may at any time, by notice given to the body or organisation to which an employee of ASD is seconded under subsection (1), terminate the secondment.
(1)The Director-General of ASD may, by written agreement with a body or organisation (whether within or outside Australia), arrange for a person who is an officer, employee or other member of staff of the body or organisation to be made available to ASD to perform services in connection with the performance of its functions or the exercise of its powers.
(2)The terms and conditions (including remuneration and allowances) applicable to a person performing services under an agreement are those specified in the agreement.
38FApplicability of principles of the Public Service Act 1999#
Although employees of ASD are not employed under the Public Service Act 1999, the Director-General of ASD must adopt the principles of that Act in relation to employees of ASD to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASD.
(1)Section 26 of the Public Service Act 1999 applies in relation to an employee of ASD as if the employee were an APS employee and ASD were an APS Agency.
(2)An employee of ASD who moves to an APS Agency under that section is entitled to have his or her employment, as an employee of ASD, treated as if it were:
(a)employment as an APS employee; and
(b)at a corresponding classification, as agreed between the Director-General of ASD and the Public Service Commissioner.
(a)establish procedures relating to the consideration of grievances of employees and former employees of ASD; and
(b)determine the classes of ASD actions that are to be subject to the grievance procedures.
(2)In establishing the procedures and determining the classes of action, the Director-General of ASD must:
(a)adopt the principles of the Public Service Act 1999 to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASD; and
ASD action means action taken after the commencement of this section by the Director-General of ASD or an employee of ASD that relates to the employment of an employee of ASD.
39Communication of certain information—ASIS, AGO, DIO and ASD#
(1)A person commits an offence if:
(a)the person communicates any information or matter that was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and
(b)the information or matter has come to the knowledge or into the possession of the person by reason of the person:
(2)Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
(3)Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
(b)the record was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and
(c)the record was obtained by the person by reason of the person:
(2)Subsection (1) does not apply to a record that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
(2A)Subsection (1) does not apply if the person deals with the record for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.
(3)Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:
(a)is not satisfied that the defendant is guilty of the prosecuted offence; but
(b)is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40D(1) (the alternative offence).
(4)The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
40DUnauthorised recording of information or matter—ASIS, AGO, DIO and ASD#
(1)A person commits an offence if:
(a)the person makes a record of any information or matter; and
(b)the information or matter was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and
(c)the information or matter has come to the knowledge or into the possession of the person by reason of the person:
(2)Subsection (1) does not apply to information or matter that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
(2A)Subsection (1) does not apply if the person makes the record for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.
(3)Subsection (4) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:
(a)is not satisfied that the defendant is guilty of the prosecuted offence; but
(b)is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40C(1) (the alternative offence).
(4)The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
(i)the person identifies a person as being, or having been, an agent or staff member of ASIS; and
(ii)the identification is not of the Director-General of ASIS or such other persons as the Director-General of ASIS determines; or
(b)if:
(i)the person makes public any information from which the identity of such a person could reasonably be inferred, or any information that could reasonably lead to the identity of such a person being established; and
(ii)the Minister or Director-General of ASIS has not consented in writing to the information being made public; and
(iii)the information has not been made public by means of broadcasting or reporting proceedings of the Parliament (other than proceedings of the Committee) as authorised by the Parliament.
(2)Paragraph (1)(a) does not apply if the person identifies the person to an IGIS official, for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
41AACover employment for ASIS and ASD staff members#
(2)Subsection (1) applies despite any other law of the Commonwealth, a State or a Territory (whether passed or made before, on or after the commencement of this section), including such other law that is expressed to apply despite any other law.
41ABCover employment—determining a specified Commonwealth authority#
(1)Subject to subsection (5), the agency head of ASIS or ASD may, in writing, determine one or more specified Commonwealth authorities, within the meaning of paragraphs (a), (b), (c) and (d) of the definition of Commonwealth authority in subsection 3(1), that may be identified as theemployer or place of work of staff members or former staff members of that agency.
Note: For variation and revocation of an instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
(2)Without limiting subsection (1), a determination under that subsection may do either or both of the following:
(a)determine a specified Commonwealth authority in relation to a specified class of staff members or former staff members of the agency;
(b)specify limitations or restrictions in relation to the identification of a specified Commonwealth authority as theemployer or place of work of staff members or former staff members of the agency.
(3)To avoid doubt, and without limiting subsection (1) or (2), if a determination under subsection (1) determines a specified Commonwealth authority in relation to a class of staff members or former staff members of the agency holding, occupying or performing the duties of a specified office or position, the class includes such an office or position that comes into existence after the determination is made.
(4)Subsection (3) does not, by implication, affect the interpretation of any other provision of this Act.
(6)To avoid doubt, the Chief of the Defence Force (within the meaning of the Defence Act 1903) is the head of the Defence Force for the purposes of subsection (5).
(8)The agency head of ASIS or ASD may, in writing, delegate the agency head’s powers or duties under this section to a staff member of that agencywho holds or is acting in a position in the agency that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 3.
(9)In exercising powers or discharging duties under a delegation under subsection (8), the delegate must comply with any written direction given by the agency head to the delegate.
41ACProtection from criminal liability—third parties#
(1)If a person does something that, apart from this section, would be an offence against a law of the Commonwealth, a State or a Territory, the person is not criminally responsible for the offence if:
(b)the thing is done in the course of the person exercising or performing the person’s powers, functions or duties as such a staff member; and
(c)the thing is done to facilitate a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, (the ASIS or ASD person) to identify a Commonwealth authority as the ASIS or ASD person’s employer or place of work in relation to a period for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1); and
(d)doing the thing would not be an offence if the Commonwealth authority referred to in paragraph (c) were the ASIS or ASD person’s employer or place of work for the period mentioned in that paragraph.
(2)If a person does something that, apart from this section, would be an offence against a law of the Commonwealth, a State or a Territory, the person is not criminally responsible for the offence if:
(a)the thing is done in the performance of the functions attaching to the person’s professional capacity; and
(b)the thing is done to facilitate a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, (the ASIS or ASD person) to identify a Commonwealth authority as the ASIS or ASD person’s employer or place of work in relation to a period for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1); and
(c)doing the thing would not be an offence if the Commonwealth authority referred to in paragraph (b) were the ASIS or ASD person’s employer or place of work for the period mentioned in that paragraph.
Note: If a person referred to in paragraphs (1)(a) and (b) is a staff member of ASIO or an agency (within the meaning of subsection 3(1)), the definition of staff member in subsection (3) of this section applies for the purposes of those paragraphs rather than the definition of staff member in subsection 3(1).
(3)A prosecution under this Division may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General’s direction.
(4)However:
(a)a person charged with an offence against this Division may be arrested, or a warrant for his or her arrest may be issued and executed; and
(b)such a person may be remanded in custody or on bail;
even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.
(5)Nothing in subsection (3) or (4) prevents the discharging of the accused if proceedings are not continued within a reasonable time.
(b)the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGIS official.
(2)In a prosecution for an offence against an information offence provision, the defendant does not bear an evidential burden in relation to the matter in subsection (1), despite subsection 13.3(3) of the Criminal Code.
(b)the information has been acquired or prepared by ASD in a circumstance mentioned in subsection (2); and
(c)the information is not excepted under subsection (3).
(2)This Division only applies to information that ASD has acquired or prepared in one of the following circumstances:
(a)the information has been voluntarily provided to ASD, in the performance of its functions, by, or on behalf of, an entity (the impacted entity) that:
(i)is, was or could reasonably be expected to be directly or indirectly impacted by the cyber security incident; or
(ii)would be or would reasonably be expected to be impacted by the cyber security incident that may potentially occur;
(b)the information has been acquired or prepared by ASD, in the performance of its functions, with the consent of the impacted entity;
(ii)disclosed to ASD under subsection 38(1), 39(2) or 40(2) of that Act.
(3)This Division does not apply to information if:
(a)the information has been provided to the Commonwealth about the cyber security incident to comply with:
(i)a requirement in Part 3 of the Cyber SecurityAct 2024; or
(ii)a requirement in Part 2B of the Security of Critical Infrastructure Act 2018; or
(iii)a requirement under the Telecommunications Act 1997; or
(iv)a requirement under a prescribed law; or
(b)the information has already been lawfully made available to the public; or
(c)the information is about an entity and has been de-identified so that it is no longer about an identifiable entity or an entity that is reasonably identifiable.
(ii)involving unauthorised impairment of electronic communication to or from a computer, within the meaning of that phrase in that Act, but as if that phrase did not exclude the mere interception of any such communication; or
(b)the discovery of unintended or unexpected vulnerabilities in a computer, computer data or a computer program that, if exploited, would result in a cyber security incident within the meaning of paragraph (a).
(a)the performance of any of ASD’s functions under this Act including, for example:
(i)assisting, in the performance of ASD’s functions, the impacted entity (referred to in paragraph 41BA(2)(a) or (b)) to respond to, mitigate or resolve the cyber security incident or the cyber security incident that may potentially occur; or
(ii)providing technical advice and assistance, in the performance of ASD’s functions, to entities on the prevention of cyber security incidents or cyber security incidents that may potentially occur;
(d)the performance of the functions of a State body relating to responding to, mitigating or resolving a cyber security incident (within the meaning of the Cyber SecurityAct 2024);
(e)the performance of the functions of the National Cyber Security Coordinator under Part 4 of the Cyber SecurityAct 2024 in relation to a cyber security incident (within the meaning of that Act);
(f)the performance of the functions of ASIS, AGO, the Australian Security Intelligence Organisation, the Defence Intelligence Organisation or the Office of National Intelligence;
(g)the performance of the functions of the Inspector-General of Intelligence and Security;
(h)the performance of the functions of the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002;
Note: Information must not be communicated to a State body under this Division unless a Minister of the State or Territory has consented to this Division applying to the State body: see subsection 41BD(4).
(2)However, the Director-General of ASD, or a staff member of ASD, must not communicate the information for the purposes of investigating or enforcing, or assisting the investigation or enforcement, of any contravention of a Commonwealth, State or Territory law that:
(a)is a contravention by the impacted entity that:
(ii)originally voluntarily provided the information to ASD as referred to in paragraph 41BA(2)(a); or
(ii)consented to the information being acquired or prepared by ASD as referred to in paragraph 41BA(2)(b); or
(iii)originally voluntarily provided the information to the National Cyber Security Coordinator under subsection 35(2), or as referred to in subsection 39(1), of the Cyber SecurityAct 2024; and
(b)is not a contravention by the impacted entity of:
(i)this Division; or
(ii)a law that imposes a penalty or sanction for a criminal offence.
Note: See also section 41BF in relation to admissibility of the information in proceedings.
(3)Subsection (1) does not authorise the Director-General of ASD, or a staff member of ASD, to communicate the information to the extent that it is prohibited or restricted by or under this Act.
41BCLimitations on secondary use and communication of limited cyber security information#
Note: This section does not apply to information held by the Commonwealth body, State body or entity, to the extent that it has been otherwise acquired.
(c)the performance of the functions of a State body relating to responding to, mitigating or resolving a cyber security incident (within the meaning of the Cyber SecurityAct 2024);
(d)the performance of the functions of the National Cyber Security Coordinator under Part 4 of the Cyber SecurityAct 2024 in relation to a cyber security incident (within the meaning of that Act);
(e)the performance of the functions of ASD, ASIS, AGO, the Australian Security Intelligence Organisation, the Defence Intelligence Organisation or the Office of National Intelligence;
(f)the performance of the functions of the Inspector-General of Intelligence and Security;
(g)the performance of the functions of the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002;
Note: Information must not be communicated to a State body under this Division unless a Minister of the State or Territory has consented to this Division applying to the State body: see subsection 41BD(4).
(3)However, the Commonwealth body, State body or entity must not use or communicate the information for the purposes of investigating or enforcing, or assisting the investigation or enforcement of, any contravention of a Commonwealth, State or Territory law that:
(a)is a contravention by the impacted entity that:
(i)originally voluntarily provided the information to ASD as referred to in paragraph 41BA(2)(a); or
(ii)consented to the information being acquired or prepared by ASD as referred to in paragraph 41BA(2)(b); or
(iii)originally voluntarily provided the information to the National Cyber Security Coordinator under subsection 35(2), or as referred to in subsection 39(1), of the Cyber SecurityAct 2024; and
(b)is not a contravention by the impacted entity of:
(i)this Division; or
(ii)a law that imposes a penalty or sanction for a criminal offence.
Note: See also section 41BF in relation to admissibility of the information in proceedings.
(4)Subsection (2) does not authorise the Commonwealth body, State body or entity to use or communicate the information to the extent that it is prohibited or restricted by or under this Act.
(iii)originally voluntarily provided the limited cyber security information to the National Cyber Security Coordinator under subsection 35(2), or as referred to in subsection 39(1), of the Cyber SecurityAct 2024; or
(b)use or communication of information for the purposes of carrying out a State’s constitutional functions, powers or duties.
(b)the entity is not a Commonwealth officer (within the meaning of Part 5.6 of the Criminal Code); and
(c)any of the following applies:
(i)the information is sensitive information (within the meaning of the Privacy Act 1988) about an individual and the individual has not consented to the use or communication of the information;
(ii)the information is confidential or commercially sensitive;
(iii)the use or communication of the information would, or could reasonably be expected to cause, damage to the security, defence or international relations of the Commonwealth.
Note 1: See the Criminal Code for offences for Commonwealth officers.
Note 2: This section does not make the Crown (other than an authority of the Crown) liable to a civil penalty, see section 41BD.
Note 3: For the application of provisions of the Regulatory Powers (Standard Provisions) Act 2014 to this Division, see Part 6 of the Cyber SecurityAct 2024.
(1)Section 41BC binds the Crown in right of each of its capacities.
(2)Subsection (1) does not make the Crown liable to be prosecuted for an offence.
Note: The Crown (other than a Crown authority) is not liable to a pecuniary penalty for the breach of a civil penalty provision or to be given an infringement notice: see subsections 79(8) and 82(7) of the Cyber SecurityAct 2024.
(3)The protection in subsection (2) does not apply to an authority of the Crown.
(4)Despite any other provision of this Division, information that may be communicated to a State body under this Division must not be communicated to the State body under this Division unless:
(a)a Minister of the State or Territory has informed the responsible Minister for ASD, in writing, that the State or Territory gives consent to the provisions of this Division applying to the State body; and
(b)a Minister of the State or Territory has not informed the responsible Minister for ASD, in writing, that the State or Territory withdraws that consent.
(5)For the purposes of paragraph (4)(a), a Minister of a State or Territory may give consent in relation to all State bodies, a class of State bodies, or particular State bodies, of that State or Territory.
(1)The fact that an entity provided information to ASD, as referred to in paragraph 41BA(2)(a), does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information in any proceedings:
(a)under any Commonwealth, State or Territory law (including the common law); or
(b)before a tribunal of the Commonwealth, a State or a Territory.
(2)Despite subsection (1), this section does not apply to the following:
(b)proceedings in a federal court exercising original jurisdiction in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
Note: For federal court, see section 2B of the Acts Interpretation Act 1901.
(3)This section does not limit or affect any right, privilege or immunity that the impacted entity has, apart from this section, as a defendant in any proceedings.
41BFAdmissibility of limited cyber security information voluntarily given by impacted entity#
(i)has been voluntarily provided to ASD by, or on behalf of, an entity (the impacted entity), as referred to in paragraph 41BA(2)(a); or
(ii)has been acquired or prepared by ASD with the consent of an entity (the impacted entity), as referred to in paragraph 41BA(2)(b); and
(b)has been prepared by, as referred to in paragraph 41BA(2)(b), acquired by, as referred to in paragraph 41BA(2)(a) or (b), or acquired, under subsection 41BB(1) or section 41BC, by a Commonwealth body or a State body; and
Note 1: This section does not apply to information held by the Commonwealth body or State body to the extent that it has been otherwise prepared or acquired.
(a)criminal proceedings for an offence against a Commonwealth, State or Territory law, other than:
(i)proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deal with false or misleading information or documents) that relates to this Act; or
(ii)proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act;
(b)civil proceedings for a contravention of a civil penalty provision of a Commonwealth, State or Territory law, other than a civil penalty provision of this Division;
(c)proceedings for a breach of any other Commonwealth, State or Territory law (including the common law);
(d)proceedings before a tribunal of the Commonwealth, a State or a Territory.
(3)Despite subsection (2), subsection (2) does not apply to the following proceedings:
(b)proceedings in a federal court exercising original jurisdiction in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
Note: For federal court, see section 2B of the Acts Interpretation Act 1901.
(4)This section does not limit or affect any right, privilege or immunity that the impacted entity has, apart from this section, as a defendant in any proceedings.
41BGDirector-General of ASD and staff members of ASD not compellable as witnesses in relation to limited cyber security information#
(a)is not obliged to comply with a subpoena or similar direction of a federal court or a court of a State or Territory to attend and answer questions relating to limited cyber security information; and
(b)is not compellable to give an expert opinion in any civil or criminal proceedings in a federal court or a court of a State or Territory in relation to limited cyber security information.
(3)A provision of this Division (including a civil penalty provision) that is purportedly contravened by an entity that is not a legal person is instead contravened by each accountable person for the entity who:
(a)did the relevant act or made the relevant omission; or
(b)aided, abetted, counselled or procured the relevant act or omission; or
(c)was in any way knowingly concerned in, or party to, the relevant act or omission.
(4)For the purposes of this section, a person is an accountable person for an entity at a particular time if:
(a)in the case of a partnership in which one or more of the partners is an individual—the individual is a partner in the partnership at that time; or
(b)in the case of a partnership in which one or more of the partners is a body corporate—the person is a director of the body corporate at that time; or
(c)in the case of a trust in which the trustee, or one or more of the trustees, is an individual—the individual is a trustee of the trust at that time; or
(d)in the case of a trust in which the trustee, or one or more of the trustees, is a body corporate—the person is a director of the body corporate at that time; or
(e)in the case of an unincorporated association—the person is a member of the governing body of the unincorporated association at that time.
41BIContravening a civil penalty provision of this Division#
(1)This section applies if a provision of this Division provides that an entity contravening another provision of this Division (the conduct provision) is liable to a civil penalty.
(2)For the purposes of this Division, and the Regulatory Powers (Standard Provisions) Act 2014 to the extent that it relates to this Division, a reference to a contravention of a civil penalty provision includes a reference to a contravention of the conduct provision.
Note: For the application of provisions of the Regulatory Powers (Standard Provisions) Act 2014 to this Division, see Part 6 of the Cyber SecurityAct 2024.
(2)DIO must not communicate intelligence information concerning Australian persons, except in accordance with the rules.
(3)In making the rules, the Minister must have regard to the need to ensure that the privacy of Australian persons is preserved as far as is consistent with the proper performance by DIO of its functions.
(4)Before making the rules, the Minister must consult with:
(5)For the purpose of consultations under paragraphs (4)(a) and (b), the Minister must provide a copy of the rules the Minister is proposing to make to the Attorney-General and to the Inspector-General of Intelligence and Security.
(6)The Ministermust ensure that the rules are published on DIO’s website as soon as practicable after the rules are made, except to the extent that the rules contain:
(1)As soon as practicable after each year ending on 30 June, the Director-General of ASIS must give to the Minister a report on the activities of ASIS during the year.
(2)The report must include information about any cooperation by ASIS with an authority of another country in planning or undertaking activities covered by paragraphs 6(4)(a) to (c). The report must set out the number of occasions on which such cooperation occurred and the broad nature of each cooperation.
(3)The report must include information about:
(a)the number of occasions on which force, or the threat of force, against a person by a staff member or agent of ASIS occurred in the course of activities undertaken by ASIS outside Australia during the year; and
As soon as practicable after each year ending on 30 June, the Director-General of ASD must give to the Minister a report of the activities of ASD during the year.
(e)about particular operations that have been, are being or are proposed to be undertaken by AFP, AUSTRAC or the Department of Home Affairs in exercising that agency’s intelligence functions.
responsible Minister, in relation to the review of a matter, means the Minister responsible for the agency concerned in relation to that matter.
staff member, in relation to an agency, means a member of the staff of the agency (whether an employee of the agency, a member or special member of the agency (within the meaning of the Australian Federal Police Act 1979), a consultant or contractor to the agency, or a person who is made available by another Commonwealth or State authority or other person to perform services for the agency).
1BApplication of provisions of Schedule to subcommittees#
Parts 1 and 2 and clauses 20, 21 and 22 of this Schedule apply to a subcommittee appointed under clause 23 as if:
(a)references to the Committee included references to the subcommittee; and
(b)references to the Chair or Deputy Chair of the Committee included references to the Chair or Deputy Chair of the subcommittee.
(1)The Chair or another member authorised by the Committee may give a person written notice requiring the person to appear before the Committee to give evidence or to produce documents to the Committee.
(2)The notice must specify the day on which, and the time and place at which, the person is required to appear or to produce documents. The day must not be less than 5 days after the day on which the notice is given to the person.
(3)The notice must also specify the nature of the evidence or documents to be provided to the Committee, and in the case of documents, the form in which they are to be provided.
(4)A requirement under this clause must not be made of:
(5)A requirement under this clause may only be made of a person if the Committee has reasonable grounds for believing that the person is capable of giving evidence or producing documents relevant to a matter that the Committee is reviewing or that has been referred to the Committee.
3Provision of information to Committee by agencies#
(2)The notice must specify the day on which, and the time and place at which, the agency head is required to appear or to produce documents. The day must not be less than 5 days after the day on which the notice is given to the agency head.
(3)The notice must also specify the nature of the evidence or documents to be provided to the Committee, and in the case of documents, the form in which they are to be provided.
(4)A requirement under this clause may only be made of the agency head if the Committee has reasonable grounds for believing that the agency head is capable of giving evidence or producing documents relevant to a matter that has been referred to the Committee.
(a)a person is about to give or is giving evidence to the Committee or is about to produce a document to the Committee (whether or not required to do so under clause 2 or 3); and
(i)the person (not being an agency head) should not give evidence before the Committee; or
(ii)the person should not give evidence before the Committee relating to a particular matter; or
(iii)in a case where a person has commenced to give evidence before the Committee:
(A)the person should not continue to give evidence before the Committee; or
(B)the person should not give, or continue to give, evidence relating to a particular matter before the Committee; or
(iv)the person should not produce documents to the Committee; or
(v)the person should not produce documents of a particular kind to the Committee;
the Minister may give to the presiding member of the Committee a certificate in relation to the matter stating the Minister’s opinion.
(2)The Minister’s certificate must also specify:
(a)in a case to which subparagraph (1)(b)(ii) or (v) applies—the matter in relation to which the Minister is satisfied that the person should not give, or continue to give, evidence, or specifying the kind of documents that the Minister is satisfied the person should not produce, as the case requires; and
(b)in a case to which sub-subparagraph (1)(b)(iii)(B) applies—the matter in relation to which the Minister is satisfied that the person should not give, or continue to give, evidence.
(3)The Minister must give a copy of a certificate under subclause (1) to the President of the Senate, to the Speaker of the House of Representatives and to the person required to give evidence or produce documents.
(4)A decision of the Minister under subclause (1) must not be questioned in any court or tribunal.
(5)Where the Minister gives a certificate under subclause (1) in relation to a person:
(a)if the certificate states that the person should not give, or continue to give, evidence before the Committee—the Committee must not receive, or continue to receive, as the case may be, evidence from the person; or
(b)if the certificate states that the person should not give, or continue to give, evidence before the Committee relating to a particular matter—the Committee must not receive, or continue to receive, as the case may be, evidence from the person relating to that matter; or
(c)if the certificate states that the person should not produce documents, or documents of a particular kind, to the Committee—the Committee must not receive documents, or documents of that kind, as the case may be, from the person.
(b)the contents of any document produced to the Committee.
(2)If the evidence is taken, or the document is produced, in a review conducted in private, the Committee must not disclose or publish, or authorise the disclosure or publication of the evidence or the contents of the document without the written authority of:
(b)in any other case—the person who gave the evidence or produced the document.
(3)Subclause (2) does not apply:
(a)if the evidence, or the contents of the document, have already been lawfully disclosed or published; or
(b)in relation to a matter of which the Committee has become aware otherwise than because of the giving of any evidence before, or the production of any document to, the Committee.
(4)The Committee must not disclose or publish, or authorise the disclosure or publication of, the evidence, or the contents of the document, if the disclosure or publication would disclose a matter that the Committee is not, under clause 7, permitted to disclose in a report to a House of the Parliament.
(5)The Committee must obtain the advice of the responsible Minister or responsible Ministers concerned if the Committee considers that it is reasonably likely that the disclosure or publication might disclose a matter of that kind.
(6)This clause has effect despite section 2 of the Parliamentary Papers Act 1908.
(7)If the evidence, or the contents of the document, are disclosed or published under this clause, section 4 of the Parliamentary Papers Act 1908 applies to the disclosure or publication as if it were a publication under an authority given under section 2 of that Act.
(ii)the performance by an agency of its functions; or
(d)any information the disclosure of which could reveal, or enable a person to ascertain, the existence or identity of a confidential source of information to any agency; or
(e)any information the disclosure of which could endanger a person’s life or physical safety; or
(f)any information the disclosure of which could prejudice the protection of public safety; or
(g)any information the disclosure of which could prejudice the fair trial of a person or the impartial adjudication of a matter; or
(h)any information the disclosure of which could prejudice the proper enforcement of the law or the operations of law enforcement authorities; or
(i)any information the disclosure of which could unreasonably disclose confidential commercial information; or
(ii)that the Committee believes should have a national security classification;
unless the agency head of the agency that produced the information, or from which the information originated, provides written authority to disclose the information.
(2)An agency head may determine that paragraphs (1)(a) and (b) do not apply to the identification of specified staff members or agents of his or her agency, and the determination has effect accordingly.
(3)The Committee must obtain the advice of the responsible Minister or responsible Ministers concerned as to whether the disclosure of any part of the report would or might disclose a matter referred to in subclause (1).
(4)The Committee must not present a report of the Committee to a House of the Parliament if a responsible Minister concerned has advised that the report or a part of the report would or might disclose such a matter.
the Committee as constituted at a later time, whether during the same or another Parliament, may consider the evidence or document as if the evidence or document had been taken by or produced to it.
(2)Clause 9 applies to each member of the later Committee as if the evidence or document had been taken or produced to that Committee.
9Offences relating to publishing or disclosing evidence or documents#
(1)A person (including a member) commits an offence if:
(a)the person discloses or publishes any evidence taken by, or the contents of any document produced to, the Committee in a review conducted in private; and
(b)the disclosure or publication is not authorised in writing by:
(ii)in any other case—the person who gave the evidence or produced the document; and
(c)the disclosure or publication is of evidence, or is of the contents of a document, that has not already been lawfully disclosed or published.
(2)Subclause (1) does not apply to the disclosure or publication by a person of a matter of which the person has become aware otherwise than because of the giving of any evidence before, or the production of any document to, the Committee.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(3)Subclause (1) has effect despite section 2 of the Parliamentary Papers Act 1908.
(4)In this clause:
Committee includes the Parliamentary Joint Committee on the Australian Security Intelligence Organisation.
Note: The Parliamentary Joint Committee on the Australian Security Intelligence Organisation (established under the Australian Security Intelligence Organisation Act 1979) ceased to exist when the Parliamentary Joint Committee on ASIO, ASIS and DSD was established. However, the records of the earlier Committee were transferred to the Parliamentary Joint Committee on ASIO, ASIS and DSD.
10Offences relating to giving evidence or producing documents#
(1)A person who has been given a notice requiring the person to appear before the Committee commits an offence if the person:
(a)fails to attend as required by the notice; or
(b)having not been excused or released by the Committee, fails to attend and report from day to day; or
(c)refuses or fails to be sworn or to make an affirmation; or
(d)refuses or fails to answer a question, not being a question about a matter in respect of which a certificate has been issued under clause 4, that the Committee requires the person to answer.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(2)Subclause (1) applies to a staff member who is nominated by an agency head under subclause 3(5) to appear before the Committee to give evidence.
(3)Paragraph (1)(d) does not apply if the answer to the question would tend to incriminate the person.
(4)A person who has been given a notice requiring the person to produce a document, not being a document in respect of which a certificate has been issued under clause 4, to the Committee commits an offence if the person refuses or fails to produce the document.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(5)Subclause (4) does not apply if the producing of the document would tend to incriminate the person.
(1)A person who causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:
(a)not attend as a witness before the Committee; or
(b)give false evidence or a falsified document to the Committee; or
(c)withhold true evidence or a document from the Committee;
commits an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2)A person who otherwise improperly influences another person with the intention that the other person or a third person will:
(a)not attend as a witness before the Committee; or
(b)give false evidence or a falsified document to the Committee; or
(c)withhold true evidence or a document from the Committee;
commits an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3)A person who causes or threatens to cause any detriment to another person because that other person or a third person appeared before the Committee or produced a document to the Committee commits an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(1)A person who is or has been a member, or a member of the staff, of the Committee commits an offence if the person, directly or indirectly:
(a)makes a record of, or discloses or communicates to a person, any information acquired because of holding the office or employment; or
(b)produces to a person a document provided to the Committee for the purposes of enabling the Committee to perform its functions;
and the action of the person is not carried out for the purposes of enabling the Committee to perform its functions.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2)A person who is or has been a member, or a member of the staff, of the Committee must not be required to:
(a)produce in a court a document of which he or she has custody, or to which he or she has access, because of his or her position as a member, or a member of the staff, of the Committee; or
(b)disclose or to communicate to a court any information obtained by him or her because of such a position.
(1)The members who are members of the House of Representatives must be appointed by resolution of the House on the nomination of the Prime Minister.
(2)Before nominating the members, the Prime Minister must consult with the Leader of each recognised political party that is represented in the House and does not form part of the Government.
(3)The members who are Senators must be appointed by resolution of the Senate on the nomination of the Leader of the Government in the Senate.
(4)Before nominating the members, the Leader of the Government in the Senate must consult with the Leader of each recognised political party that is represented in the Senate and does not form part of the Government.
(5)In nominating the members, the Prime Minister and the Leader of the Government in the Senate must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament.
(6)A person is not eligible for appointment as a member if the person is:
(a)when the House of Representatives expires by the passing of time or is dissolved; or
(b)if the person becomes the holder of an office specified in any of the paragraphs of subclause 14(6); or
(c)if the person ceases to be a member of the House of the Parliament by which the person was appointed; or
(d)if the person resigns the office.
(3)A member who is a Senator may resign his or her office by giving a signed notice of resignation to the President of the Senate.
(4)A member who is a member of the House of Representatives may resign his or her office by giving a signed notice of resignation to the Speaker of the House of Representatives.
(5)Either House of the Parliament may appoint one of its members to fill a vacancy among the members of the Committee appointed by that House.
(b)subject to a resolution of the Committee, as the Chair decides.
(2)The Committee may meet and transact business even though the Parliament has been prorogued.
(3)If classified information may be discussed at meetings, the Chair must obtain and follow the advice of the agency head of each agency that produces such information, or from which such information originates, regarding the suitability of the security arrangements for such meetings (including the security arrangements for virtual meeting technology).
(4)The Chair must preside at all meetings of the Committee at which he or she is present.
(5)If:
(a)the Chair is not present at a meeting of the Committee; and
(b)either:
(i)the meeting is one at which a question is to be decided by voting, or could reasonably be expected to be so decided; or
(ii)throughout a continuous period of more than one month immediately preceding the day of the meeting, the Chair was absent from duty or from Australia, or was for any reason unable to perform the duties of his or her office as Chair;
the members present are to appoint a Government member to preside.
(5A)If:
(a)the Chair is not present at a meeting of the Committee; and
(b)the members are not required by subclause (5) to appoint a Government member to preside;
then:
(c)if the Deputy Chair is present at the meeting—the Deputy Chair is to preside; or
(d)if the Deputy Chair is not present at the meeting—the members present are to appoint a member to preside.
(5B)A member who presides at a meeting of the Committee under subclause (5) or (5A) may exercise, in relation to the meeting and any matter arising out of the meeting, any of the powers of the Chair.
(6)The Committee must keep minutes of its proceedings.
(3)The Committee may give directions as to the persons who may be present at a meeting conducted in private. In giving such directions, the Committee must have regard to the requirements of security and any other matters the Committee thinks fit.
21Staff of the Committee must be cleared for security purposes#
Each member of the staff of the Committee must be cleared for security purposes at least at a level and frequency:
(a)appropriate for access to information and systems at the classification that the staff member requires, in accordance with government policy in relation to protective security; and
(1)The Committee must make arrangements acceptable to all of the agency heads for the security of any information held and any records made by the Committee.
(2)The Committee must ensure that any document with a national security classification provided to the Committee is returned or destroyed as soon as possible after the members have examined it in accordance with an arrangement acceptable to the agency that produced the document.
(1)The Committee may appoint one or more subcommittees to inquire into and report to the Committee in relation to matters concerning the Committee as the Committee directs.
(1AA)The Committee may elect a Chair and Deputy Chair for each subcommittee.
(1)A subcommittee may determine matters relating to the operation of the subcommittee, except as mentioned in subsection (2).
(2)If the Chair of the Committee gives a direction to a subcommittee in relation to the operation of the subcommittee, the subcommittee must operate in accordance with the direction.
(3)At a meeting of a subcommittee, 3 members of that subcommittee, including at least one Government member and one non-Government member, constitute a quorum.
(4)Any member of the Committee may participate in the proceedings of a subcommittee. However, only members of that subcommittee may vote or move a motion.
(iii)to protect a person who is cooperating with ASIS in accordance with section 13; or
(iiia)to protect another person, or class of persons, specified in the Minister’s approval under subclause (3); or
(iv)to provide training to staff members or agents of ASIS; and
(c)in accordance with a Ministerial approval given under subclause (3).
(1A)The provision to a person of a weapon, or training in the use of a weapon or in self-defence techniques, is not prevented by subsection 6(4) if:
(a)the person:
(i)is an officer of an authority with which ASIS is cooperating in accordance with paragraph 13(1)(c); or
(ii)is an officer (however described) of a Commonwealth authority, or a State authority, and is authorised in that capacity to carry and use weapons; and
(b)it is provided in accordance with a Ministerial approval under subclause (3A) in relation to the person; and
(c)it is provided for the purpose of enabling the person:
(iii)to protect a person who is cooperating with ASIS in accordance with section 13; or
(iv)to protect another person, or class of persons, specified in the Minister’s approval under subclause (3A).
(2)The use of a weapon or self-defence techniques is not prevented by subsection 6(4) if:
(a)the weapon or techniques are used:
(i)for a purpose covered by paragraph (1)(b); or
(ii)in training in accordance with subclause (1) or (1A); and
(b)in a case covered by any of subparagraphs (1)(b)(i) to (iiia)—the weapon or techniques are used outside Australia; and
(c)guidelines have been issued by the Director-General of ASIS under subclause (6); and
(d)the weapon or techniques are used in compliance with those guidelines.
(2A)The use of a weapon or self-defence techniques is not prevented by subsection 6(4) if:
(a)the weapon or techniques are used in the proper performance of a function of ASIS; and
(b)the weapon or techniques are used in a controlled environment; and
(c)guidelines have been issued by the Director-General of ASIS under subclause (6); and
(d)the weapon or techniques are used in compliance with those guidelines.
Example: The following may constitute the use of a weapon or technique in a controlled environment:
(a) the use of a firearm at a rifle range;
(b) the use of a martial art at a martial arts club.
(3)The Minister may, by written notice given to the Director-General of ASIS, approve the provision of a weapon, or training in the use of a weapon or in self-defence techniques, to:
(3A)The Minister may, by written notice given to the Director-General of ASIS, approve the provision of a weapon, or training in the use of a weapon or in self-defence techniques, to a specified person for the purposes of paragraph (1A)(b).
(4)An approval under subclause (3) or (3A) for the provision of a weapon or training must specify:
(a)the purpose for which the weapon or training is provided; and
(b)any conditions that must be complied with in relation to the provision of the weapon or training; and
(c)if the approval is for the provision of a weapon or training in the use of a weapon—the kind or class of weapon involved.
(4A)An approval under subclause (3) for the provision of a weapon or training may specify a person, or class of persons, that may be protected under subparagraph (1)(b)(iiia).
(4B)An approval under subclause (3A) for the provision of a weapon or training may specify a person, or class of persons, that may be protected under subparagraph (1A)(c)(iv).
(5)As soon as practicable after giving the Director-General of ASIS an approval under subclause (3) or (3A), the Minister must give the Inspector-General of Intelligence and Security a copy of the approval.
(6)The Director-General of ASIS must issue guidelines for the purposes of this Schedule on matters related to the use of weapons and self-defence techniques.
(7)As soon as practicable after making or changing the guidelines, the Director-General of ASIS must give the Inspector-General of Intelligence and Security a copy of the guidelines.
(7A)The Inspector-General of Intelligence and Security must brief the Committee on the content and effect of the guidelines if:
A person is not required under, or by reason of, a law of a State or Territory:
(a)to obtain or have a licence or permission for doing any act or thing in accordance with clause 1; or
(b)to register any weapon provided in accordance with clause 1.
3Reports to Inspector-General of Intelligence and Security#
(1)The Director-General of ASIS must give a report to the Inspector-General of Intelligence and Security if a weapon or self-defence technique is used by a staff member or agent of ASIS against a person for a purpose mentioned in any of subparagraphs 1(1)(b)(i) to (iiia).
(2)The report must:
(a)be given in writing as soon as practicable after the weapon or self-defence technique is used; and
(b)explain the circumstances in which the use of the weapon or self-defence technique occurred.
(1)The provision of a weapon, or training in the use of force (including in the use of a weapon), for the purposes of activities undertaken by ASIS outside Australia is not prevented by subsection 6(4) if it is provided:
(b)for the purpose of preventing, mitigating or removing:
(i)a significant risk to a person’s safety; or
(ii)a significant threat to security (within the meaning of paragraphs (a) and (aa) of the definition of security in section 4 of the Australian Security Intelligence Organisation Act 1979); or
(c)in accordance with a Ministerial approval given under paragraph (3)(a).
(2)The use of force (including the use of a weapon) against a person, or the threat of the use of force (including the use of a weapon) against a person, in the course of activities undertaken by ASIS outside Australia is not prevented by subsection 6(4) if:
(b)the conduct is for the purpose of preventing, mitigating or removing:
(i)a significant risk to a person’s safety; or
(ii)a significant threat to security (within the meaning of paragraphs (a) and (aa) of the definition of security in section 4 of the Australian Security Intelligence Organisation Act 1979); or
(iv)any other Minister who has responsibility for a matter that is likely to be significantly affected by an act that is to be approved; and
(b)the approving Minister is satisfied that:
(i)there are satisfactory arrangements in place to ensure that, in acting under the approval, nothing will be done beyond what is necessary having regard to the purposes for which the approval is given; and
(ii)there are satisfactory arrangements in place to ensure that the nature and consequences of acts done under the approval will be reasonable having regard to the purposes for which the approval is given.
(5)An approval under paragraph (3)(a) or (b) must be given by notice in writing to the Director-General of ASIS.
(6)The approval must specify:
(a)any conditions that must be complied with in relation to the conduct approved; and
(b)if the approval is for the provision of a weapon or training in the use of a weapon—the kind or class of weapon involved.
(7)The approval is not a legislative instrument.
(8)As soon as practicable after giving the Director-General of ASIS an approval under paragraph (3)(a) or (b), the Minister must give a copy of the approval to:
(b)if the approval is given under paragraph (3)(b)—the Prime Minister and each other Minister who was consulted about the approval under paragraph (4)(a).
(9)As soon as practicable after each year ending on 30 June, the Minister must:
(a)consider whether the approvals in force under paragraphs (3)(a) and (b) at the end of the year are appropriate; and
(b)in relation to any approval that is no longer appropriate:
(i)amend the approval so that it is appropriate; or
(ii)revoke the approval.
(10)In considering whether an approval in force under paragraph (3)(b) at the end of a year is appropriate, the Minister must take into account whether the Minister is still satisfied of the matters mentioned in paragraph (4)(b).
(11)As soon as practicable after subclause (9) has been complied with:
(a)the Director-General of ASIS must give the Inspector-General of Intelligence and Security a report in writing outlining the action taken under subclause (9); and
(b)if any part of the report relates to an approval under paragraph (3)(b)—the Minister must give a copy of that part of the report to the Prime Minister and each other Minister who was consulted about the approval under paragraph (4)(a).
(1)The Director-General of ASIS must issue guidelines for the purposes of this Schedule on matters related to:
(a)the use of force (including the use of weapons) against a person in the course of activities undertaken by ASIS outside Australia; and
(b)threats of the use of force (including the use of weapons) against a person in the course of activities undertaken by ASIS outside Australia.
(2)As soon as practicable after making or changing the guidelines, the Director-General of ASIS must give the Inspector-General of Intelligence and Security a copy of the guidelines.
(3)The Inspector-General of Intelligence and Security must brief the Committee on the content and effect of the guidelines if:
A person is not required under, or by reason of, a law of a State or Territory:
(a)to obtain or have a licence or permission for doing any act or thing in accordance with clause 1; or
(b)to register any weapon provided in accordance with clause 1.
4Reports to Inspector-General of Intelligence and Security#
(1)The Director-General of ASIS must give a report to the Inspector-General of Intelligence and Security if force, or the threat of force, is used by a staff member or agent of ASIS against a person for a purpose mentioned in paragraph 1(2)(b) in the course of activities undertaken by ASIS outside Australia.
(2)The report must:
(a)be given in writing as soon as practicable after the force or threat of force is used; and
(b)explain the circumstances in which the force or threat of force occurred.
(3)In this clause:
(a)the use of force includes but is not limited to the use of a weapon; and
(b)the threat of the use of force includes but is not limited to a threat that involves a weapon.