An Act relating to the Australian intelligence services, and for
related purposes
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Intelligence
Services Act 2001.
2
Commencement [see Note 1]
This Act commences 28 days after the day
on which it receives the Royal Assent.
3
Definitions
In this Act, unless the contrary
intention appears:
agency means ASIS, DIGO or DSD.
agency head means:
(a) in relation to ASIS—the Director‑General;
and
(aa) in relation to DIGO—the Director
of DIGO; and
(b) in relation to DSD—the Director of
DSD.
ASIO means the Australian Security
Intelligence Organisation.
ASIS means the Australian Secret Intelligence
Service.
Australia, when used in a geographical sense,
includes the external Territories.
Australian person means a person who
is:
(a) an Australian citizen; or
(b) a permanent resident.
Chair means the Chair of the Committee.
Committee means the Parliamentary Joint
Committee on Intelligence and Security.
Commonwealth authority
includes:
(a) an Agency within the meaning of
the Public Service Act 1999; and
(b) a Department within the meaning of
the Parliamentary Service Act 1999; and
(c) the Defence Force; and
(d) a body (whether incorporated or
not) established, or continued in existence, for a public purpose by or
under a law of the Commonwealth; and
(e) a body corporate in which the
Commonwealth or a body referred to in paragraph (d) has a controlling
interest.
court includes a tribunal, authority or
person that has power to require the production of documents or the answering
of questions.
Defence Department means the Department of
State that deals with defence and that is administered by the Defence Minister.
Defence Minister means the Minister
administering section 1 of the Defence Act 1903.
DIGO means that part of the Defence
Department known as the Defence Imagery and Geospatial Organisation.
DIO means that part of the Defence Department
known as the Defence Intelligence Organisation.
Director‑General means the Director‑General
of ASIS.
Director‑General of Security means the
Director‑General of Security holding office under the Australian Security
Intelligence Organisation Act 1979.
DSD means that part of the Defence Department
known as the Defence Signals Directorate.
emergency response function includes, but is
not limited to, a function in relation to:
(a) search and rescue; or
(b) emergency rescue; or
(c) response to natural disasters.
Foreign Affairs Minister means the Minister
administering the Diplomatic Privileges and Immunities Act 1967.
foreign power has the same meaning as in the Australian
Security Intelligence Organisation Act 1979.
incidentally obtained intelligence means
intelligence:
(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 DIGO in the course of obtaining intelligence under paragraph
6B(a), (b) or (c) or by DSD in the course of obtaining intelligence under
paragraph 7(a); and
(b) that is not intelligence of a kind
referred to in those provisions.
Inspector‑General of Intelligence and Security means
the Inspector‑General of Intelligence and Security appointed under the Inspector‑General
of Intelligence and Security Act 1986.
intelligence information means the following:
(a) information obtained by ASIS under
subsection 6(1) (other than information obtained solely under paragraph
6(1)(da));
(b) information obtained by DIGO under
paragraph 6B(a), (b) or (c);
(c) information obtained by DSD under
paragraph 7(a);
(d) incidentally obtained
intelligence.
member means a member of the Committee, and
includes the Chair.
ONA means the Office of National Assessments
established by the Office of National Assessments Act 1977.
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.
permanent resident means:
(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:
(i) a foreign power;
(ii) a natural person who
is neither an Australian citizen nor a person covered by paragraph (a);
(iii) a group of natural
persons, none of whom is an Australian citizen or a person covered by paragraph (a).
police functions
means:
(a) the
arrest, charging or detention of suspected offenders; or
(b) any other activity undertaken for
the purposes of prosecuting, or for determining whether to prosecute, an
offence.
responsible Minister means:
(a) in relation to ASIO—the Minister
responsible for ASIO; and
(b) in relation to an agency—the
Minister responsible for the agency; and
(ba) in relation to DIO—the Minister
responsible for DIO; and
(c) in relation to ONA—the Minister
responsible for ONA.
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.
staff member 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).
State authority includes:
(a) a Department of State of a State
or Territory or a Department of the Public Service of a State or Territory; and
(b) a body (whether incorporated or
not) established, or continued in existence, for a public purpose by or under a
law of a State or Territory; and
(c) a body corporate in which a State,
Territory or a body referred to in paragraph (b) has a controlling
interest.
4
Extension to external Territories
This Act extends to every external
Territory.
5
Application of Criminal Code
(1) Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) Section 15.4 of the Criminal Code
(extended geographical jurisdiction—category D) applies to all offences against
this Act.
Part 2—Functions of the agencies
6
Functions of ASIS
(1) The functions of ASIS are:
(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
(c) to conduct counter‑intelligence
activities; and
(d) to liaise with intelligence or
security services, or other authorities, of other countries; and
(da) to co‑operate with and assist
bodies referred to in section 13A in accordance with that section; and
(e) to undertake such other activities
as the responsible Minister directs relating to the capabilities, intentions or
activities of people or organisations outside Australia.
(2) The responsible Minister may direct ASIS
to undertake activities referred to in paragraph (1)(e) 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 paragraph (1)(e)
must be in writing.
Note: If the Minister gives a direction under paragraph (1)(e),
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 Security Act 1986).
(4) In
performing its functions, ASIS must not plan for, or undertake, activities that
involve:
(a) paramilitary activities; or
(b) violence against the person; or
(c) the use of weapons;
by staff members or agents of ASIS.
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.
Note 3: For paramilitary activities see
section 3.
(5) Subsection (4) does not prevent:
(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.
(6) ASIS must not provide weapons, or
training in the use of weapons or in self‑defence techniques, other than in
accordance with Schedule 2.
(7) In performing its functions, ASIS is not
prevented from providing assistance to Commonwealth authorities, including to
the Defence Force in support of military operations, and to State authorities.
6A
Committee to be advised of other activities
If the responsible Minister gives a
direction under paragraph 6(1)(e), the Minister must as soon as practicable
advise the Committee of the nature of the activity or activities to be
undertaken.
Note: For Committee see section 3.
6B
Functions of DIGO
The functions of DIGO are:
(a) to obtain geospatial 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 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 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 to Commonwealth
authorities, State authorities and bodies approved in writing by the Minister,
the following:
(i) imagery and other
geospatial products, not being intelligence obtained under paragraph (a),
(b) or (c);
(ii) assistance in relation
to the production and use of such imagery or products;
(iii) assistance in relation
to the performance by those authorities or bodies of emergency response
functions; and
(f) to co‑operate with and assist
bodies referred to in section 13A in accordance with that section.
7
Functions of DSD
The functions of DSD are:
(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 provide material, advice and
other assistance to Commonwealth and State authorities 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
(e) to provide assistance to
Commonwealth 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 co‑operate 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.
8
Ministerial directions
(1) The responsible Minister in relation to
ASIS, the responsible Minister in relation to DIGO and the responsible Minister
in relation to DSD, must issue a written direction under this subsection to the
relevant agency head. The direction must:
(a) require the agency to obtain an
authorisation under section 9 from the Minister 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
(ii) undertaking, in
accordance with a direction under paragraph 6(1)(e), an activity, or a series
of activities, that will, or is likely to, have a direct effect on 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 from the Minister.
(2) The
responsible Minister may give written directions to be observed:
(a) in
the performance by the relevant agency of its functions; or
(b) in the case of ASIS—in the
exercise of the powers of the Director‑General under section 33 or 34.
(3) Each agency head must ensure that the
agency complies with any direction given by the responsible Minister under this
section.
(4) Directions under paragraph (2)(b)
must not relate to a specific staff member.
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 Security Act 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).
9 Ministerial
authorisation
(1) Before a Minister gives an authorisation
under this section, 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.
(1A) Before a Minister gives an authorisation
under this section for an activity, or a series of activities, of a kind
mentioned in subparagraph 8(1)(a)(i) or (ii), the Minister must also:
(a) be satisfied that the Australian
person mentioned in that subparagraph is, or is likely to be, involved in one
or more of the following activities:
(i) activities that
present a significant risk to a person’s safety;
(ii) acting for, or on
behalf of, a foreign power;
(iii) activities that are,
or are likely to be, a threat to security;
(iv) 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);
(v) committing a serious crime
by moving money, goods or people;
(vi) committing a serious
crime by using or transferring intellectual property;
(vii) committing a serious
crime by transmitting data or signals by means of guided and/or unguided
electromagnetic energy; and
(b) 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 (whether or not covered by another subparagraph of paragraph (a)
in addition to subparagraph (a)(iii))—obtain the agreement of the Minister
responsible for administering the Australian Security Intelligence
Organisation Act 1979.
(1B) In subsection (1A):
security has the same meaning as in
the Australian Security Intelligence Organisation Act 1979.
Note: For serious crime see section 3.
(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 be in writing and
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) or (ii), 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 a copy of the authorisation is kept by the agency and is available
for inspection on request by the Inspector‑General of Intelligence and
Security.
9A
Authorisations in an emergency
Despite subsections 8(1) to (4) and any
direction given under subsection 8(1), 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; and
(b) a direction under subsection 8(1)
requires the agency to obtain an authorisation under section 9 before
undertaking that activity or series of activities; and
(c) the Minister referred to in the
direction is not readily available or contactable;
the Prime Minister, the Defence Minister, the Foreign
Affairs Minister or the Attorney‑General may, subject to the requirements of
section 9, issue an authorisation under that section in respect of that
activity or series of activities.
10
Period during which authorisation has effect etc.
(1) The Minister may, at any time before the
day on which an authorisation 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 for an activity, or a series of activities, of a kind
mentioned in subparagraph 8(1)(a)(i) or (ii), must be for a period not
exceeding 6 months.
(2) The Minister may vary or cancel an
authorisation 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 issued
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).
(3) A renewal, variation or cancellation of
an authorisation must be in writing.
10A
Agency 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.
(2) The report must be provided to the
Minister within 3 months of the day on which the relevant authorisation ceased
to have effect.
11
Limits on agencies’ functions
(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.
(2) The
agencies’ functions do not include:
(a) the
carrying out of police functions; or
(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(a), (b), or (c) or 7(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 DIGO—performing the
functions set out in paragraphs 6B(e) and (f); or
(f) in the case of DSD—performing the
functions set out in paragraphs 7(e) and (f).
Note: For police functions and serious
crime see section 3.
(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 a person’s safety;
(b) acting for, or on behalf of, a
foreign power;
(c) activities that are a threat to
security;
(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);
(e) committing a serious crime.
(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(b), (c), (d), (e) and (f), and
7(c), (d), (e) and (f).
12
Limits on agencies’ activities
An agency must not undertake any
activity unless the activity is:
(a) necessary for the proper
performance of its functions; or
(b) authorised or required by or under
another Act.
12A
Special responsibilities of Directors and Director‑General
The
Director of DIGO, the Director of DSD and the Director‑General must take all
reasonable steps to ensure that:
(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).
13 Co‑operation
with other authorities in connection with performance of agency’s own functions
(1) Subject to any arrangements made or
directions given by the responsible Minister, an agency may cooperate with:
(a) Commonwealth authorities; and
(b) State authorities; and
(c) authorities of other countries
approved by the Minister as being capable of assisting the agency in the
performance of its functions;
so far as is necessary for the agency to perform its
functions, or so far as facilitates the performance by the agency of its
functions.
Note: For Commonwealth authority and State
authority see section 3.
(1A) However, an approval under paragraph (1)(c)
does not enable ASIS to cooperate with an authority of another country in
planning or undertaking activities covered by paragraphs 6(4)(a) to (c) unless,
before giving the approval, the Minister consults with the Prime Minister and
the Attorney‑General.
(2) An approval under paragraph (1)(c)
must be in writing.
(3) Each agency head must ensure that a copy
of any approval given by the relevant responsible Minister is kept by the
agency and is available on request by the Inspector‑General of Intelligence and
Security.
13A Co‑operation
with intelligence agencies etc. in connection with performance of their
functions
(1) An agency may co‑operate with and assist
the following bodies in the performance of their functions:
(a) another agency;
(b) ASIO;
(c) a Commonwealth authority, or a
State authority, that is prescribed by the regulations for the purposes of this
paragraph.
(2) However, the agency may only do so:
(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 Security Act 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
co‑operating 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.
14
Liability for certain acts
(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 person is not subject to any
civil or criminal liability for any act done inside Australia if:
(a) the act is preparatory to, in
support of, or otherwise directly connected with, overseas activities of the
agency concerned; and
(b) the
act:
(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.
(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.
(3) In this section:
act includes omission.
staff member includes the Director of DIGO,
the Director of DSD and the Director‑General.
15
Rules to protect privacy of Australians
(1) The responsible Minister in relation to
ASIS, the responsible Minister in relation to DIGO and the responsible Minister
in relation to DSD, must make written rules regulating the communication and
retention by the relevant agency of intelligence information concerning
Australian persons.
(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.
Note: For Australian person see
section 3.
(3) Before making the rules, the Minister
must consult with:
(a) in the case of ASIS—the Director‑General;
and
(ab) in the case of DIGO—the Director of
DIGO; and
(b) in the case of DSD—the Director of
DSD; and
(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 agencies must not communicate
intelligence information concerning Australian persons, except in accordance
with the rules.
Note: For intelligence information see
section 3.
(6) The Inspector‑General of Intelligence and
Security must brief the Committee on the content and effect of the rules if:
(a) the Committee requests the
Inspector‑General of Intelligence and Security to do so; or
(b) the rules change.
Note: For Committee see section 3.
Part 3—Establishment of ASIS and role of Director‑General
Division 1—Establishment and control of ASIS
16
Establishment of ASIS on a statutory basis
The organisation known as the Australian
Secret Intelligence Service is continued in existence in accordance with this
Act.
17
Appointment of Director‑General
(1) There is to be a Director‑General of
ASIS.
(2) The Director‑General 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, 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.
18
Control of ASIS
(1) ASIS is under the control of the Director‑General.
(2) The Director‑General, under the Minister,
is responsible for managing ASIS and must advise the Minister in matters
relating to ASIS.
19
Briefing the Leader of the Opposition about ASIS
The Director‑General 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.
Division 2—Administrative provisions relating to the Director‑General
20
Period of appointment
(1) The Director‑General holds office for the
period specified in the instrument of appointment, but is eligible for re‑appointment.
(2) The period must not be longer than 5
years.
21
Remuneration etc.
(1) The remuneration and other conditions of
appointment of the Director‑General are as determined in writing by the
responsible Minister.
(2) For each determination, the responsible
Minister must seek the advice of the Remuneration Tribunal and take that advice
into account.
(3) Each determination must be published in
the Gazette within 14 days after the determination is made.
22
Resignation
The Director‑General may resign by
giving a signed notice of resignation to the Governor‑General.
23
Termination of appointment
(1) The Governor‑General may terminate the
appointment of the Director‑General for misbehaviour or physical or mental
incapacity.
(2) The Governor‑General must terminate the
appointment of the Director‑General if:
(a) the Director‑General:
(i) becomes bankrupt; or
(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 26 (disclosure of
interests).
(3) The Governor‑General may, with the
Director‑General’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.
24
Acting Director‑General
(1) The Minister may appoint a person to act
as the Director‑General if there is a vacancy in the office of the Director‑General.
(2) The Minister may appoint a person to act
as the Director‑General 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.
(3) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion of the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the
occasion to act had not arisen or had ceased.
Note: See section 33A of the Acts
Interpretation Act 1901 on acting appointments.
25
Outside employment
The Director‑General 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.
26
Disclosure of interests by Director‑General
The Director‑General must give written
notice to the Minister of all interests, pecuniary or otherwise, that the
Director‑General has or acquires and that could conflict with the proper
performance of the Director‑General’s functions.
27
Delegation
(1) The Director‑General 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.
(2) The delegation must be in writing.
Part 4—Committee on Intelligence and Security
28
Committee on Intelligence and Security
(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 11
members, 5 of whom must be Senators and 6 of whom must be members of the House
of Representatives.
(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.
29
Functions of the Committee
(1) The functions of the Committee are:
(a) to review the administration and
expenditure of ASIO, ASIS, DIGO, DIO, DSD and ONA, including the annual
financial statements of ASIO, ASIS, DIGO, DIO, DSD and ONA; and
(b) to review any matter in relation
to ASIO, ASIS, DIGO, DIO, DSD or ONA referred to the Committee by:
(i) the responsible
Minister; or
(ii) a resolution of either
House of the Parliament; and
(ba) to review, as soon as possible
after the third anniversary of the day on which the Security Legislation
Amendment (Terrorism) Act 2002 receives the Royal Assent, the operation,
effectiveness and implications of amendments made by that Act and the following
Acts:
(i) the Border Security
Legislation Amendment Act 2002;
(ii) the Criminal Code
Amendment (Suppression of Terrorist Bombings) Act 2002;
(iii) the Suppression of
the Financing of Terrorism Act 2002; and
(bb) to review, by 22 January 2016, the operation, effectiveness and implications of Division 3 of Part III of
the Australian Security Intelligence Organisation Act 1979; and
(c) to report the Committee’s comments
and recommendations to each House of the Parliament and to the responsible
Minister.
(2) The Committee may, by resolution, request
the responsible Minister to refer a matter in relation to the activities of
ASIO, ASIS, DIGO, DIO, DSD or ONA (as the case may be) to the Committee, and
the Minister may, under paragraph (1)(b), refer that matter to the
Committee for review.
(3) The functions of the Committee do not
include:
(a) reviewing the intelligence
gathering and assessment priorities of ASIO, ASIS, DIGO, DIO, DSD or ONA; or
(b) reviewing the sources of
information, other operational assistance or operational methods available to
ASIO, ASIS, DIGO, DIO, DSD or ONA; or
(c) reviewing particular operations
that have been, are being or are proposed to be undertaken by ASIO, ASIS, DIGO,
DIO or DSD; 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
(e) reviewing an aspect of the
activities of ASIO, ASIS, DIGO, DIO, DSD or ONA that does not affect an
Australian person; or
(f) reviewing the rules made under
section 15 of this Act; or
(g) conducting
inquiries into individual complaints about the activities of ASIO, ASIS, DIGO,
DIO, DSD or ONA; or
(h) reviewing the content of, or
conclusions reached in, assessments or reports made by DIO or ONA, or reviewing
sources of information on which such assessments or reports are based; or
(i) reviewing the coordination and
evaluation activities undertaken by ONA.
Note: For Australian person see
section 3.
30
Agency heads and Inspector‑General of Intelligence and Security to brief the
Committee
For the purpose of performing its
functions, the Committee may request the following people to brief the
Committee:
(a) the Director‑General of Security;
(b) the Director‑General of ASIS;
(baa) the Director of DIGO;
(bab) the Director of DIO;
(ba) the Director of DSD;
(bb) the Director‑General of ONA;
(c) the Inspector‑General of
Intelligence and Security.
Note: The Committee cannot require anyone briefing
the Committee to disclose operationally sensitive information (see clause 1
of Schedule 1).
31
Annual report
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.
32 Schedule 1
Schedule 1 contains further
provisions about the Committee.
Part 5—Staff of ASIS
33
Employment of staff
(1) The Director‑General 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, 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 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.
34
Engagement of consultants
(1) The Director‑General 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 from time to time.
35
Applicability of principles of Public Service Act 1999
Although employees of ASIS are not
employed under the Public Service Act 1999, the Director‑General 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.
36
Special provisions relating to existing staff
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.
37
Staff grievances
(1) The Director‑General must:
(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 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
(b) consult with the employees of
ASIS.
(3) The procedures must include the following
matters:
(a) initial consideration of
grievances by the Director‑General or a person authorised in writing by the
Director‑General;
(b) establishment of Grievance Review
Panels chaired by independent Chairs to make determinations reviewing initial
considerations of grievances.
(4) The Director‑General must implement a
determination of a Grievance Review Panel to the extent that it is within his
or her power to do so.
(5) In this section:
action includes a refusal or failure to act.
ASIS action means action taken after the
commencement of this Act by the Director‑General or an employee of ASIS that
relates to an ASIS employee’s employment.
38
Application of Crimes Act
The Director‑General and staff members
of ASIS are Commonwealth officers for the purposes of the Crimes Act 1914.
Part 6—Miscellaneous
39
Communication of certain information—ASIS
(1) A person is guilty of an offence if:
(a) the person communicates any
information or matter that was prepared by or on behalf of ASIS in connection
with its functions or relates to the performance by ASIS of its functions; and
(b) the information or matter has come
to the knowledge or into the possession of the person by reason of:
(i) his or her being, or
having been, a staff member or agent of ASIS; or
(ii) his or her having
entered into any contract, agreement or arrangement with ASIS; or
(iii) his or her having been
an employee or agent of a person who has entered into a contract, agreement or
arrangement with ASIS; and
(c) the communication was not made:
(i) to the Director‑General
or a staff member by the person in the course of the person’s duties as a staff
member; or
(ii) to the Director‑General
or a staff member by the person in accordance with a contract, agreement or
arrangement; or
(iii) by the person in the
course of the person’s duties as a staff member or agent, within the limits of
authority conferred on the person by the Director‑General; or
(iv) with the approval of
the Director‑General or of a staff member having the authority of the Director‑General
to give such an approval.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(2) A prosecution for an offence against subsection (1)
may be instituted only by the Attorney‑General or with the Attorney‑General’s
consent.
39A
Communication of certain information—DIGO
(1) A person commits an offence if:
(a) the person communicates any
information or matter that was prepared by or on behalf of DIGO in connection
with its functions or relates to the performance by DIGO of its functions; and
(b) the information or matter has come
to the knowledge or into the possession of the person by reason of:
(i) his or her being, or having
been, a staff member of DIGO; or
(ii) his or her having
entered into any contract, agreement or arrangement with DIGO; or
(iii) his or her having been
an employee or agent of a person who has entered into a contract, agreement or
arrangement with DIGO; and
(c) the communication was not made:
(i) to the Director of
DIGO or a staff member by the person in the course of the person’s duties as a
staff member; or
(ii) to the Director of
DIGO or a staff member by the person in accordance with a contract, agreement
or arrangement; or
(iii) by the person in the
course of the person’s duties as a staff member, within the limits of authority
conferred on the person by the Director of DIGO; or
(iv) with the approval of
the Director of DIGO or of a staff member having the authority of the Director
of DIGO to give such an approval.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(2) A prosecution for an offence against subsection (1)
may be instituted only by the Attorney‑General or with the Attorney‑General’s
consent.
40
Communication of certain information—DSD
(1) A person is guilty of an offence if:
(a) the person communicates any
information or matter that was prepared by or on behalf of DSD in connection
with its functions or relates to the performance by DSD of its functions; and
(b) the information or matter has come
to the knowledge or into the possession of the person by reason of:
(i) his or her being, or
having been, a staff member of DSD; or
(ii) his or her having
entered into any contract, agreement or arrangement with DSD; or
(iii) his or her having been
an employee or agent of a person who has entered into a contract, agreement or
arrangement with DSD; and
(c) the communication was not made:
(i) to the Director of DSD
or a staff member by the person in the course of the person’s duties as a staff
member; or
(ii) to the Director of DSD
or a staff member by the person in accordance with a contract, agreement or
arrangement; or
(iii) by the person in the
course of the person’s duties as a staff member, within the limits of authority
conferred on the person by the Director of DSD; or
(iv) with the approval of
the Director of DSD or of a staff member having the authority of the Director
of DSD to give such an approval.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(2) A prosecution for an offence against subsection (1)
may be instituted only by the Attorney‑General or with the Attorney‑General’s
consent.
41
Publication of identity of staff
(1) A person is
guilty of an offence:
(a) if:
(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 or such other persons as the Director‑General
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 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.
Penalty: Imprisonment for 1 year or 60 penalty units, or
both.
Note: For staff member see section 3.
(2) A prosecution for an offence against subsection (1)
may be instituted only by the Attorney‑General or with the Attorney‑General’s
consent.
42
Annual report
(1) As soon as practicable after each year
ending on 30 June, the Director‑General 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.
43
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted to be
prescribed by this Act; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Schedule 1—Committee on
Intelligence and Security
Note: See section 32.
Part 1A—Preliminary
1A
Definitions
In this Schedule, unless the contrary
intention appears:
agency means ASIO, ASIS, DIGO, DIO, DSD or
ONA.
agency head means:
(a) the Director‑General of Security;
or
(b) the Director‑General of ASIS; or
(ba) the Director of DIGO; or
(bb) the Director of DIO; or
(c) the Director of DSD; or
(d) the Director‑General of ONA.
operationally sensitive information means
information:
(a) about sources of information,
other operational assistance or operational methods available to ASIO, ASIS,
DIGO, DIO, DSD or ONA; or
(b) about particular operations that
have been, are being or are proposed to be undertaken by ASIO, ASIS, DIGO, DIO
or DSD; or
(c) provided by, or by an agency of, a
foreign government where that government does not consent to the public
disclosure of the information.
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 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).
1B
Application 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 of the
Committee included references to a member of the subcommittee authorised by the
subcommittee for the purpose of the provision concerned.
Part 1—Procedure
1
Committee must not require certain information to be disclosed
The Committee must not require a person
or body to disclose to the Committee operationally sensitive information or
information that would or might prejudice Australia’s national security or the
conduct of Australia’s foreign relations.
2 Power
to obtain information and documents
(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:
(a) an agency head; or
(b) a staff member or agent of an
agency; or
(c) the Inspector‑General of
Intelligence and Security; or
(d) a member of the staff of the
Inspector‑General of Intelligence and Security.
(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.
(7) The Commonwealth must pay a person who
has been given a notice requiring the person to appear before the Committee
such allowances for the person’s travelling and other expenses as are
prescribed.
3
Provision of information to Committee by agencies
(1) The Chair or another member authorised by
the Committee may give a written notice to an agency head requiring him or her
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 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.
(5) The evidence is to be given by:
(a) if the agency head nominates a
staff member to give the evidence—the staff member or both the staff member and
the agency head; or
(b) in any other case—the agency head.
4
Certificates by Minister
(1) If:
(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
(b) a Minister responsible for an
agency is of the opinion that, to prevent the disclosure of operationally
sensitive information:
(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.
5
Evidence
(1) The Committee may take evidence on oath
or affirmation.
(2) The member presiding may administer an
oath or affirmation to a witness appearing before the Committee.
(3) The oath or affirmation is an oath or
affirmation that the evidence the person will give will be true.
(4) To avoid doubt, the Committee is not to
be taken to be an Australian court for the purposes of the Evidence Act 1995.
6
Publication of evidence or contents of documents
(1) Subject to this clause, the Committee may
disclose or publish, or authorise the disclosure or publication of:
(a) any evidence taken by the
Committee; or
(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:
(a) if the person who gave the
evidence or produced the document is a staff member of an agency—the agency
head; or
(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 may obtain the advice of
the responsible Minister or responsible Ministers concerned as to whether 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.
7
Restrictions on disclosure to Parliament
(1) The Committee must not disclose in a
report to a House of the Parliament:
(a) the identity of a person who is or
has been a staff member of ASIO or ASIS or an agent of ASIO, ASIS, DIGO or DSD;
or
(b) any information from which the
identity of such a person could reasonably be inferred; or
(c) operationally
sensitive information or information that would or might prejudice:
(i) Australia’s national security or the conduct of Australia’s foreign relations; or
(ii) the performance by an
agency of its functions.
(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.
8
Continuance of evidence
(1) If:
(a) any evidence or document about a
matter has been taken by or produced to the Committee as constituted at a time;
and
(b) either of the following happens
before the Committee reports on the matter:
(i) the Committee as so
constituted ceases to exist;
(ii) the constitution of
the Committee changes;
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.
Part 2—Offences
9
Offences relating to publishing or disclosing evidence or documents
(1) A person (including a member) is guilty
of 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:
(i) if the person who gave
the evidence or produced the document is a staff member of an agency—the agency
head; or
(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.
10
Offences relating to giving evidence or producing documents
(1) A person who has been given a notice
requiring the person to appear before the Committee is guilty of 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 is
guilty of 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.
(6) A person is guilty of an offence if the
person:
(a) gives evidence to the Committee;
and
(b) does so knowing that the evidence
is false or misleading in a material particular.
Penalty: Imprisonment for 2 years or 120 penalty units, or
both.
11
Protection of witnesses
(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;
is guilty of 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;
is guilty of 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 is guilty
of an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or
both.
12
Secrecy
(1) A person who is or has been a member, or
a member of the staff, of the Committee is guilty of 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.
(3) In this clause:
produce includes permit access to.
13
Prosecution of offences
A prosecution for an offence against
this Part can be instituted only by the Attorney‑General or with the Attorney‑General’s
consent.
Part 3—Administration
14
Appointment of members
(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) a Minister; or
(b) the President of the Senate; or
(c) the Speaker of the House of
Representatives.
15
Term of office
(1) A member holds office during the pleasure
of the House of the Parliament by which the member was appointed.
(2) A member
ceases to hold office as a member:
(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.
16
Chair
(1) There must be a Chair of the Committee
who must be a Government member elected by the members from time to time.
(2) The Chair holds office during the
pleasure of the Committee.
(3) A person holding office as Chair ceases
to hold the office if:
(a) the person ceases to be a member;
or
(b) the person resigns the office.
(4) A person holding office as Chair may
resign the office by giving a signed notice of resignation to a meeting of the
Committee.
16A
Deputy Chair
(1) There must be a Deputy Chair of the
Committee who must be a member elected by the members from time to time.
(2) The Deputy Chair holds office during the
pleasure of the Committee.
(3) A person holding office as Deputy Chair
ceases to hold the office if:
(a) the person ceases to be a member;
or
(b) the person resigns the office.
(4) A person holding office as Deputy Chair
may resign the office by giving a signed notice of resignation to a meeting of
the Committee.
17
Meetings
(1) The Committee may meet at such times and,
subject to subclause (3), at such places in Australia as the Committee
decides by resolution or, 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) Before the Committee or the Chair decides
a place of meeting, the Chair must obtain advice from each of the agency heads
as to the suitability of the place.
(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.
18
Quorum
(1) At a meeting of the Committee, a quorum
is constituted if:
(a) at least 6 members are present;
and
(b) subject to subclause (2), a
majority of the members present are Government members.
(2) There may be an equal number of
Government members and non‑Government members if the presiding member is a
Government member.
19
Voting at meetings
(1) A question arising at a meeting is to be
decided by a majority of the votes of the members present and voting.
(2) The member presiding at the meeting has a
deliberative vote.
(3) The member presiding at the meeting has a
casting vote if votes are equal.
20
Proceedings
(1) The proceedings of the Committee are to
be conducted in the manner determined by the Committee.
(2) The Committee must not conduct a review
in public without the approval of:
(a) the Minister responsible for ASIO;
and
(b) the Minister responsible for ASIS;
and
(c) the Minister responsible for DIGO,
DIO and DSD; and
(d) the Minister responsible for ONA.
(3) At a review conducted in private, the
Committee may give directions as to the persons who may be present. In giving
such directions, the Committee must have regard to the requirements of security
and any other matters the Committee thinks fit.
21
Staff of the Committee must be cleared for security purposes
Each member of the staff of the
Committee must be cleared for security purposes to the same level and at the
same frequency as staff members of ASIS.
22
Protection of information and documents
(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
documents having a national security classification provided to the Committee
are returned as soon as possible after the members have examined them.
Part 4—Subcommittees
23
Subcommittees
(1) The Committee may appoint one or more
subcommittees of at least 3 of its members to inquire into and report to the
Committee upon such matters with which the Committee is concerned as the
Committee directs.
(2) A subcommittee must report in writing to
the Committee as soon as practicable on each matter referred to that
subcommittee by the Committee.
(3) A subcommittee may sit at any time,
including at a time when the Committee is sitting.
24
Term of office
(1) A member of a subcommittee holds office
during the pleasure of the Committee.
(2) A member of a subcommittee ceases to hold
office if:
(a) the person ceases to be a member
of the Committee; or
(b) the person resigns the office.
(3) A member of a subcommittee may resign his
or her office by giving a signed notice of resignation to the Chair of the
Committee.
25
Operation of subcommittees
(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.
Schedule 2—Limits on provision of weapons, training etc.
1
Provision of weapons, training etc.
(1) The provision of a weapon, or training in
the use of a weapon or in self‑defence techniques, is not prevented by
subsection 6(4) if it is provided:
(a) to a person who is a staff member
or agent of ASIS; and
(b) for the purpose of enabling the
person:
(i) to protect himself or
herself; or
(ii) to protect a staff
member or agent of ASIS; or
(iii) to protect a person
who is co‑operating with ASIS in accordance with section 13; or
(iv) to provide training to
staff members or agents of ASIS; and
(c) in accordance with a Ministerial
approval given under subclause (3).
(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); and
(b) in a case covered by any of subparagraphs (1)(b)(i)
to (iii)—the weapon or techniques are used outside Australia; and
(c) guidelines have been issued by the
Director‑General under subclause (6); and
(d) the weapon or techniques are used
in compliance with those guidelines.
(3) The
Minister may, by written notice given to the Director‑General, approve the
provision of a weapon, or training in the use of a weapon or in self‑defence
techniques, to:
(a) a specified staff member or agent
of ASIS; or
(b) the holder of a specified position
in ASIS.
(4) An approval 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.
(5) As soon as practicable after giving the
Director‑General an approval, the Minister must give the Inspector‑General of
Intelligence and Security a copy of the approval.
(6) The Director‑General 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 the
guidelines, the Director‑General must give the Inspector‑General of
Intelligence and Security a copy of the guidelines.
2
Application of certain State and Territory laws
A staff member or agent of ASIS 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.
3
Reports to Inspector‑General of Intelligence and Security
If:
(a) a
staff member or agent of ASIS uses a weapon for a purpose mentioned in any of
subparagraphs 1(1)(b)(i) to (iii); and
(b) during that use the weapon is
discharged;
the Director‑General must, as soon as practicable, give to
the Inspector‑General of Intelligence and Security a written report of the
discharge which explains the circumstances in which the discharge occurred.