Australian Security Intelligence Organisation Act 1979

An Act relating to the Australian Security Intelligence Organisation

This Act may be cited as the Australian Security Intelligence Organisation Act 1979.

This Act shall come into operation on a date to be fixed by Proclamation.

The Australian Security Intelligence Organisation Act 1956 and the Australian Security Intelligence Organisation Act 1976 are repealed.

4 Definitions

In this Act, unless the contrary intention appears:

activities prejudicial to security includes any activities concerning which Australia has responsibilities to a foreign country as referred to in paragraph (b) of the definition of security in this section.

acts of foreign interference means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:

(a) are clandestine or deceptive and:

(i) are carried on for intelligence purposes;

(ii) are carried on for the purpose of affecting political or governmental processes; or

(iii) are otherwise detrimental to the interests of Australia; or

(b) involve a threat to any person.

AGO has the meaning given by the Intelligence Services Act 2001.

ASD has the meaning given by the Intelligence Services Act 2001.

ASIO affiliate means a person performing functions or services for the Organisation in accordance with a contract, agreement or other arrangement, and includes a person engaged under section 85 and a person performing services under an agreement under section 87, but does not include the Director‑General or an ASIO employee.

ASIO employee means a person employed under section 84 or 90.

ASIS has the meaning given by the Intelligence Services Act 2001.

attacks on Australia’s defence system means activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Defence Force of its functions or with the carrying out of other activities by or for the Commonwealth for the purposes of the defence or safety of the Commonwealth.

Australia, when used in a geographical sense, includes the external Territories.

Australian travel document has the same meaning as in the Australian Passports Act 2005.

authority of a State:

(a) in Part IV—has the meaning given by subsection 35(1); and

(b) otherwise—includes:

(i) a Department of State of a State, or a Department of the Public Service of a State; and

(ii) a body, whether incorporated or not, established for public purposes by or under a law of a State; and

(iii) a body corporate in which a State or a body referred to in subparagraph (ii) has a controlling interest.

authority of the Commonwealth includes:

(a) a Department of State or an Agency within the meaning of the Public Service Act 1999;

(aa) a Department within the meaning of the Parliamentary Service Act 1999;

(b) the Defence Force;

(c) a body, whether incorporated or not, established for public purposes by or under a law of the Commonwealth or of a Territory;

(d) the holder of an office established for public purposes by or under a law of the Commonwealth or of a Territory;

(e) a prescribed body established in relation to public purposes that are of concern to the Commonwealth and any State or States; and

(f) a body corporate in which the Commonwealth or a body referred to in paragraph (c) has a controlling interest.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

certified copy means:

(a) in relation to a warrant—a copy of the warrant that has been certified in writing by the Director‑General or a Deputy Director‑General to be a true copy of the warrant; or

(b) in relation to an authorisation under section 27G—a copy of the authorisation that has been certified in writing by the Director‑General or a Deputy Director‑General to be a true copy of the authorisation; or

(c) in relation to an instrument varying or revoking a warrant or an authorisation under section 27G—a copy of the instrument that has been certified in writing by the Director‑General or a Deputy Director‑General to be a true copy of the instrument.

Committee on Intelligence and Security means the Parliamentary Joint Committee on Intelligence and Security established under the Intelligence Services Act 2001.

data storage device means a thing (for example, a disk or file server) containing (whether temporarily or permanently), or designed to contain (whether temporarily or permanently), data for use by a computer.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

Defence Minister means the Minister administering section 1 of the Defence Act 1903.

Deputy Director‑General means a person who holds, or is acting in, a position known as Deputy Director‑General of Security.

Director‑General means the Director‑General of Security holding office under this Act.

engage in conduct has the same meaning as in the Criminal Code.

Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia.

foreign power means:

(a) a foreign government;

(b) an entity that is directed or controlled by a foreign government or governments; or

frisk search means:

(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

IGIS official (short for Inspector‑General of Intelligence and Security official) means:

(a) the Inspector‑General of Intelligence and Security; or

(b) a member of the staff referred to in subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.

intelligence or security agency means any of the following:

(a) the Australian Secret Intelligence Service;

(b) the Office of National Assessments;

(d) that part of the Defence Department known as the Defence Intelligence Organisation;

(e) that part of the Defence Department known as the Australian Signals Directorate.

Judge means a Judge of a court created by the Parliament.

law enforcement agency means an authority of the Commonwealth, or an authority of a State, that has functions relating to law enforcement.

ordinary search means a search of a person or of articles on his or her person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

(b) an examination of those items.

Organisation means the Australian Security Intelligence Organisation.

participant in a special intelligence operation means a person who is authorised under Division 4 of Part III to engage in special intelligence conduct for the purposes of the special intelligence operation.

permanent resident means a person:

(a) in the case of a natural person:

(i) who is not an Australian citizen;

(ii) whose normal place of residence is situated in Australia;

(iii) whose presence in Australia is not subject to any limitation as to time imposed by law; and

(iv) who is not an unlawful non‑citizen within the meaning of the Migration Act 1958; or

(b) in the case of a body corporate:

(i) which is incorporated under a law in force in a State or Territory; and

(ii) the activities of which are not controlled (whether directly or indirectly) by a foreign power.

politically motivated violence means:

(a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or

(b) acts that:

(i) involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and

(ii) are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or

(ba) acts that are terrorism offences; or

(c) acts that are offences punishable under Division 119 of the Criminal Code, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or

(d) acts that:

(i) are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or

(ii) threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director‑General.

promotion of communal violence means activities that are directed to promoting violence between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.

retained data has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

security means:

(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i) espionage;

(ii) sabotage;

(iii) politically motivated violence;

(iv) promotion of communal violence;

(v) attacks on Australia’s defence system; or

(vi) acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(aa) the protection of Australia’s territorial and border integrity from serious threats; and

(b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).

seizable item means anything that could present a danger to a person or that could be used to assist a person to escape from lawful custody.

senior position‑holder means an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is:

(a) equivalent to or higher than a position occupied by an SES employee; or

(b) known as Coordinator.

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.

special intelligence conduct means conduct for or in relation to which a person would, but for section 35K, be subject to civil or criminal liability under a law of the Commonwealth, a State or a Territory.

special intelligence function means a function of the Organisation under paragraph 17(1)(a), (b), (e) or (f).

special intelligence operation is an operation:

(a) in relation to which a special intelligence operation authority has been granted; and

(b) that is carried out for a purpose relevant to the performance of one or more special intelligence functions; and

special intelligence operation authority means an authority to conduct a special intelligence operation granted under section 35C.

staff member of a body (however described) includes:

(a) the head (however described) of the body, or another person who holds an office or appointment in relation to the body; and

(b) a person who is otherwise a member of the staff of the body (whether an employee of the body, a consultant or contractor to the body, or a person who is made available by an authority of the Commonwealth, an authority of a State, or other person, to perform services for the body).

State includes the Australian Capital Territory and the Northern Territory.

strip search means a search of a person or of articles on his or her person that may include:

(a) requiring the person to remove all of his or her garments; and

(b) an examination of the person’s body (but not of the person’s body cavities) and of those garments.

Territory does not include the Australian Capital Territory or the Northern Territory.

terrorism offence means:

(a) an offence against Subdivision A of Division 72 of the Criminal Code; or

(b) an offence against Part 5.3 of the Criminal Code.

Note: A person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorist act (as defined in that Part) occurs.

violence includes the kidnapping or detention of a person.

4A Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

5 Extension of Act to external Territories

This Act extends to every external Territory.

5A Copies of certain notices to be given to Inspector‑General

Where the Minister gives a notice in writing to the Director‑General for the purposes of subparagraph (d)(ii) of the definition of politically motivated violence in section 4, the Minister shall give a copy of the notice to the Inspector‑General of Intelligence and Security.

Part II—The Organisation and the Director‑General

6 Continuance of Organisation

The Australian Security Intelligence Organisation, being the Organisation that was continued in existence by the Acts repealed by this Act, is continued in existence.

7 Director‑General

(1) There shall be a Director‑General of Security, who shall be appointed by the Governor‑General and shall hold office, subject to this Act, on such terms and conditions as the Governor‑General determines.

(2) Before a recommendation is made to the Governor‑General for the appointment of a person as Director‑General, the Prime Minister shall consult with the Leader of the Opposition in the House of Representatives.

8 Control of Organisation

(1) The Organisation shall be under the control of the Director‑General.

(2) Subject to subsections (4) and (5), in the performance of the Director‑General’s functions under this Act, the Director‑General is subject to the directions of the Minister.

(3) If the Director‑General requests that a direction of the Minister be put in writing, the Minister shall comply with the request.

(4) The Minister is not empowered to override the opinion of the Director‑General concerning the nature of the advice that should be given by the Organisation.

(5) The Minister is not empowered to override the opinion of the Director‑General:

(a) on the question whether the collection of intelligence by the Organisation concerning a particular individual would, or would not, be justified by reason of its relevance to security; or

(b) on the question whether a communication of intelligence concerning a particular individual would be for a purpose relevant to security;

except by a direction contained in an instrument in writing that sets out the Minister’s reasons for overriding the opinion of the Director‑General.

(6) The Minister shall, as soon as practicable after giving a direction in writing to the Director‑General, cause a copy of the direction to be given to the Inspector‑General of Intelligence and Security and, if the direction relates to a question referred to in subsection (5), to the Prime Minister.

(7) Where intelligence is collected or communicated pursuant to a direction referred to in subsection (5), the Director‑General shall cause a record in writing to be kept of the intelligence so collected or communicated.

8A Guidelines

(1) The Minister may, from time to time, by written notice given to the Director‑General, give to the Director‑General guidelines to be observed:

(a) in the performance by the Organisation of its functions or the exercise of its powers; or

(b) in the exercise by the Director‑General of his or her powers under sections 84, 85, 86 and 87.

(2) The Minister shall, as soon as practicable after the commencement of this section, by notice in writing given to the Director‑General, give to the Director‑General guidelines to be observed in relation to the performance of that part of the Organisation’s functions that relates to politically motivated violence, and may, from time to time, vary or replace guidelines so given.

(3) Subject to subsection (4), the Minister shall cause a copy of any guidelines given under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the guidelines were given.

(4) Where the laying of a copy of guidelines before the Parliament in accordance with subsection (3) would result in the disclosure of information that would, in the opinion of the Minister, be contrary to the public interest by reason that it would prejudice security, the defence of the Commonwealth, the conduct of the Commonwealth’s international affairs or the privacy of individuals, the Minister may cause a copy of the guidelines to be laid before each House of the Parliament with such deletions as the Minister thinks necessary to avoid that result or decline to cause a copy to be laid before each House of the Parliament.

(5) The Minister shall, in accordance with arrangements made between the Minister and the Leader of the Opposition in the House of Representatives, make available to the Leader of the Opposition a copy of any guidelines given under subsection (1) or (2), but it is the duty of the Leader of the Opposition to treat as secret any part of those guidelines that has not been laid before a House of the Parliament.

(6) The Minister shall, as soon as practicable after guidelines under subsection (1) or (2) are given to the Director‑General, give a copy of the guidelines to the Inspector‑General of Intelligence and Security and, unless the Minister considers it inappropriate to do so, to the Committee on Intelligence and Security.

9 Term of office of Director‑General

(1) Subject to sections 12 and 13, the Director‑General holds office for such period, not exceeding 7 years, as is specified in his or her instrument of appointment, but is eligible for re‑appointment.

10 Remuneration and allowances of Director‑General

(1) The Director‑General shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.

(2) The Director‑General shall be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973 and to section 15.

11 Leave of absence

(1) The Director‑General has such recreation leave entitlements as are determined by the Remuneration Tribunal.

(2) The Minister may grant the Director‑General leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

12 Resignation

The Director‑General may resign from office by writing signed by the Director‑General and delivered to the Governor‑General.

13 Termination of appointment

(1) The Governor‑General may terminate the appointment of the Director‑General by reason of physical or mental incapacity, misbehaviour or failure to comply with a provision of this Act.

(2) If the Director‑General:

(a) is absent from duty, except with leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

the Governor‑General shall terminate his or her appointment.

14 Acting Director‑General

(1) The Minister may appoint a person to act as Director‑General:

(a) during a vacancy in the office of Director‑General; or

(b) 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 functions of his or her office;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

(2) Before a recommendation is made to the Minister for the appointment of a person, under subsection (1), to act as Director‑General, the Prime Minister shall consult with the Leader of the Opposition in the House of Representatives, unless it is impracticable to do so.

(3) An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

(4) The Minister may:

(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person acting as Director‑General; and

(b) at any time terminate such an appointment.

(5) Where a person is acting as Director‑General in accordance with paragraph (1)(b) and the office of Director‑General becomes vacant while that person is so acting, that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

(6) The appointment of a person to act as Director‑General ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.

(7) While a person is acting as Director‑General, he or she has, and may exercise, all the powers and shall perform all the functions of the Director‑General.

15 Appointment of a Judge as Director‑General

(1) The appointment of a Judge as Director‑General, or service of a Judge as Director‑General, does not affect the tenure of his or her office as a Judge or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge and, for all purposes, his or her service as Director‑General shall be taken to be service as the holder of his or her office as a Judge.

(2) Subject to subsection (3), if the Director‑General is a Judge, he or she shall be paid salary at such rate (if any), and an annual allowance at such rate (if any), as are fixed from time to time by the Parliament.

(3) If the Director‑General is a Judge, he or she is not, while he or she receives salary or annual allowance as a Judge, entitled to salary or annual allowance, as the case may be, under this Act, except to the extent (if any) that the salary or annual allowance that would be payable to him or her under this Act apart from this subsection exceeds the salary or annual allowance payable to him or her as a Judge.

16 Delegation

(1) The Director‑General may, by signed writing, delegate to a person any of the Director‑General’s powers, functions or duties under or for the purposes of this Act that relate to:

(a) the management of ASIO employees or ASIO affiliates; or

(b) the financial management of the Organisation.

Note: For further provisions relating to delegations, see sections 34AB and 34A of the Acts Interpretation Act 1901.

(2) In exercising powers, performing functions or discharging duties under a delegation, the delegate must comply with any written direction given by the Director‑General to the delegate.

Part III—Functions and powers of Organisation

Division 1—General

17 Functions of Organisation

(1) The functions of the Organisation are:

(a) to obtain, correlate and evaluate intelligence relevant to security;

(b) for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;

(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.

(ca) to furnish security assessments to a State or an authority of a State in accordance with paragraph 40(1)(b);

(d) to advise Ministers, authorities of the Commonwealth and such other persons as the Minister, by notice in writing given to the Director‑General, determines on matters relating to protective security; and

(e) to obtain within Australia foreign intelligence pursuant to section 27A or 27B of this Act or section 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979, and to communicate any such intelligence in accordance with this Act or the Telecommunications (Interception and Access) Act 1979; and

(f) to co‑operate with and assist bodies referred to in section 19A in accordance with that section.

(2) It is not a function of the Organisation to carry out or enforce measures for security within an authority of the Commonwealth.

17AA Fees for advice and other services

(1) The Director‑General may determine in writing that fees are payable by persons for the giving of advice or the provision of services by the Organisation to the persons at their request.

(2) Unless the Director‑General determines otherwise, the Organisation may refuse to give the advice, or provide the service, to a person until the fee is paid in whole or part. If the whole or part of the fee is not paid before the advice is given or the service is provided, the amount concerned is a debt due to the Commonwealth and may be recovered by the Commonwealth in a court of competent jurisdiction.

(3) The amount of the fee must not exceed the reasonable costs to the Organisation of giving the advice or providing the service.

(4) The Director‑General may, on application in writing by a person who is or will be required to pay a fee, if the Director‑General considers it appropriate in the circumstances:

(a) not require the person to pay any of the fee; or

(b) require the person to pay only a specified part of the fee.

17A Act not concerned with lawful dissent etc.

This Act shall not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security, and the functions of the Organisation shall be construed accordingly.

18 Communication of intelligence etc.

Who may communicate intelligence

(1) The communication of intelligence on behalf of the Organisation shall be made only by the Director‑General or by a person acting within the limits of authority conferred on the person by the Director‑General.

Offence for unauthorised communication of information or matter

(2) A person commits an offence if:

(a) the person makes a communication of any information or matter; 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, an ASIO employee; or

(ii) his or her being, or having been, an ASIO affiliate; or

(iii) his or her having entered into a contract, agreement or arrangement with ASIO (otherwise than as an ASIO affiliate); and

(i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or

(ii) relates to the performance by the Organisation of its functions; and

(d) the communication was not made to the Director‑General, an ASIO employee or an ASIO affiliate:

(i) by an ASIO employee, in the course of the ASIO employee’s duties; or

(ii) by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation; or

(iii) by a person who has entered into a contract, agreement or arrangement with ASIO (otherwise than as an ASIO affiliate), in accordance with the contract, agreement or arrangement; and

(e) the communication was not made by a person acting within the limits of authority conferred on the person by the Director‑General; and

(f) the communication was not made with the approval of the Director‑General or of a person having the authority of the Director‑General to give such an approval.

Penalty: Imprisonment for 10 years.

Exception—information or matter lawfully available

(2A) Subsection (2) 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 (2A) (see subsection 13.3(3) of the Criminal Code).

Exception—communication to the Inspector‑General of Intelligence and Security

(2B) Subsection (2) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector‑General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector‑General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).

Communicating information to appropriate authorities of the Commonwealth or a State

(3) A person referred to in subsection (1) may communicate information to a person referred to in subsection (4) if:

(a) the information has come into the possession of the Organisation in the course of performing the Organisation’s functions under section 17; and

(b) either:

(i) the information relates, or appears to relate, to the commission, or intended commission, of a serious crime; or

(ii) the Director‑General, or a person authorised for the purpose by the Director‑General, is satisfied that the national interest requires the communication; and

(c) the information relates, or appears to relate, to the performance of the functions, responsibilities or duties of the person referred to in subsection (4).

Note: There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979, on communicating telecommunications information.

(4) The persons to whom information may be communicated under subsection (3) are the following:

(a) a Minister;

(b) a staff member of an authority of the Commonwealth;

Communicating information to ASIS, ASD and AGO

(4A) A person referred to in subsection (1) may communicate information to a staff member of ASIS, ASD or AGO if:

(a) the information has come into the possession of the Organisation in the course of performing the Organisation’s functions under section 17; and

(b) the information relates, or appears to relate, to the performance of ASIS, ASD or AGO’s functions (as the case requires).

Communicating information in relation to emergency declarations

(4B) A person referred to in subsection (1) may communicate information, in accordance with Part VIA of the Privacy Act 1988, if:

(a) the information has come into the possession of the Organisation in the course of performing its functions under section 17; and

(b) an emergency declaration (within the meaning of section 80G of that Act) is in force.

18A Unauthorised dealing with records

Offence for unauthorised dealing with records

(1) A person commits an offence if:

(a) the person is, or has been, an entrusted person; and

(b) the person has obtained a record in the person’s capacity as an entrusted person; and

(i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or

(ii) relates to the performance by the Organisation of its functions; and

(d) the person engages in any of the following conduct (the relevant conduct):

(i) copying the record;

(ii) transcribing the record;

(iii) retaining the record;

(iv) removing the record;

(v) dealing with the record in any other manner; and

(e) the relevant conduct was not engaged in by the person:

(i) as an ASIO employee in the course of the person’s duties as an ASIO employee; or

(ii) as an ASIO affiliate in accordance with the contract, agreement or other arrangement under which the person is performing functions or services for the Organisation; or

(iii) in accordance with a contract, agreement or arrangement the person has entered into with ASIO (other than as an ASIO affiliate); or

(iv) acting within the limits of authority conferred on the person by the Director‑General; or

(v) with the approval of the Director‑General, or of a person having the authority of the Director‑General to give such an approval.

Penalty: Imprisonment for 3 years.

Exception—record lawfully available

(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).

Exception—Inspector‑General of Intelligence and Security

(2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector‑General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector‑General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

Alternative verdict

(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 18B(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.

Definitions

(5) In this section:

entrusted person means:

(a) an ASIO employee; or

(b) an ASIO affiliate; or

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.

signals includes electromagnetic emissions.

18B Unauthorised recording of information or matter

(1) A person commits an offence if:

(a) the person is, or has been, an entrusted person; and

(b) information or matter has come to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and

(i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or

(ii) relates to the performance by the Organisation of its functions; and

(d) the person makes a record of the information or matter; and

(e) the record is not made by the person:

(i) as an ASIO employee in the course of the person’s duties as an ASIO employee; or

(ii) as an ASIO affiliate in accordance with the contract, agreement or other arrangement under which the person is performing functions or services for the Organisation; or

(iii) in accordance with a contract, agreement or arrangement the person has entered into with ASIO (other than as an ASIO affiliate); or

(iv) acting within the limits of authority conferred on the person by the Director‑General; or

(v) with the approval of the Director‑General, or of a person having the authority of the Director‑General to give such an approval.

Penalty: Imprisonment for 3 years.

Exception—information or matter lawfully available

(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).

Exception—Inspector‑General of Intelligence and Security

(2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector‑General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector‑General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

Alternative verdict

(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 18A(1) (the alternative offence).

Definitions

(5) In this section:

entrusted person has the same meaning as in section 18A.

record has the same meaning as in section 18A.

18C Offences against section 18, 18A or 18B—general rules

Extended geographical jurisdiction

(1) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against section 18, 18A or 18B.

(2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.

Institution of prosecution

(3) A prosecution under section 18, 18A or 18B 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 section 18, 18A or 18B 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.

18D Offences against section 18, 18A or 18B—IGIS officials

(1) A person does not commit an offence against subsection 18(2), 18A(1) or 18B(1) if:

(a) the person is an IGIS official; and

(b) the relevant conduct is engaged in by the person for the purposes of exercising powers, or performing functions or duties, as an IGIS official.

(2) In a prosecution for an offence against subsection 18(2), 18A(1) or 18B(1), the defendant does not bear an evidential burden in relation to the matter in subsection (1) of this section, despite subsection 13.3(3) of the Criminal Code.

19 Co‑operation with other authorities in connection with performance of Organisation’s functions

(1) So far as necessary for, or conducive to, the performance of the Organisation’s functions, the Organisation may, subject to any arrangements made or directions given by the Minister, co‑operate with:

(a) authorities of the Commonwealth; and

(b) Departments, Police Forces and authorities of the States; and

(c) authorities of other countries approved by the Minister as being capable of assisting the Organisation in the performance of its functions; and

(d) any other person or body whether within or outside Australia.

(2) A person referred to in subsection 18(1) may, where the Organisation is co‑operating with an authority of another country in accordance with paragraph (1)(c), communicate to an officer of that authority information that has come into the possession of the Organisation in the course of performing its functions under section 17, being information that is relevant to the security of that other country and that could not, apart from this subsection, be communicated to that officer.

Note: There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979, on communicating telecommunications information.

19A Co‑operation with intelligence and law enforcement agencies etc. in connection with performance of their functions

(1) The Organisation may co‑operate with and assist the following bodies in the performance of their functions:

(a) ASIS;

(b) ASD;

(d) a law enforcement agency;

(e) an authority of the Commonwealth, or an authority of a State, that is prescribed by the regulations for the purposes of this paragraph.

(2) However, the Organisation may only do so:

(a) subject to any arrangements made or directions given by the Minister; and

(b) on request by the head (however described) of the body referred to in subsection (1).

(3) Without limiting subsection (1), in co‑operating with and assisting a body in accordance with this section, the Organisation may make the services of ASIO employees and ASIO affiliates, and other resources of the Organisation, available to the body.

Communicating information

(4) A person referred to in subsection 18(1) may communicate information to a staff member of a body referred to in paragraph (1)(d) or (e) if:

(a) the information has come into the possession of the Organisation in the course of performing the Organisation’s functions under section 17; and

(b) the information is communicated for the purposes of co‑operating with or assisting the body under this section.

Note 1: For communication of information to ASIS, ASD and AGO, see subsection 18(4A).

Note 2: There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979, on communicating telecommunications information.

20 Special responsibility of Director‑General in relation to functions of Organisation

The Director‑General shall take all reasonable steps to ensure that:

(a) the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions; and

(b) the Organisation is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

21 Leader of Opposition to be kept informed on security matters

The Director‑General shall 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 security.

Division 2—Special powers

Subdivision A—Preliminary

22 Interpretation

In this Division, unless the contrary intention appears:

carrier means:

(a) a carrier within the meaning of the Telecommunications Act 1997; or

(b) a carriage service provider within the meaning of that Act.

communicate includes cause to be communicated.

communication in transit means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).

computer means all or part of:

(a) one or more computers; or

(b) one or more computer systems; or

(d) any combination of the above.

data includes information, a computer program or part of a computer program.

device includes instrument, apparatus and equipment.

enhancement equipment, in relation to a surveillance device, means equipment capable of enhancing a signal, image or other information obtained by the use of the surveillance device.

examination includes any act or process for the purpose of producing sounds, images or information from a record, and examine has a corresponding meaning.

identified person warrant means a warrant issued under section 27C.

install includes attach and apply.

listening device means any device capable of being used, whether alone or in conjunction with any other device, to overhear, record, monitor or listen to sounds, signals or a conversation, or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome that impairment and permit that person to hear only sounds ordinarily audible to the human ear.

maintain, in relation to a surveillance device, includes adjust, improve, relocate, repair, service and replace the device.

object means:

(a) a vehicle, aircraft, vessel or other means of transportation; or

(b) clothing or any other thing worn; or

optical surveillance device means any device capable of being used, whether alone or in conjunction with any other device, to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.

prejudicial activities of a person means activities prejudicial to security that the person is engaged in, or is reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in.

premises includes any land, place, vehicle, vessel or aircraft.

record when used as a noun, means:

(a) a document (including any written or printed material); or

(b) an object (including a sound recording, magnetic tape or disc, microform, photograph or film) by which words, images, sounds or signals are recorded or stored or from which information can be obtained.

signals includes electromagnetic emissions.

surveillance device means:

(a) a listening device, an optical surveillance device or a tracking device; or

(b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a) or (c); or

surveillance device warrant means a warrant issued under section 26.

telecommunications facility means a facility within the meaning of section 7 of the Telecommunications Act 1997.

track an object or person means be aware of the movement of the object or person from place to place.

tracking device means a device or substance that, when installed in or on an object, enables a person to track the object or a person using or wearing the object.

use of a surveillance device includes use of the device:

(a) to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person, or the activities of a person; or

(b) to track an object or person.

23 Requesting information or documents from operators of aircraft or vessels

(1) For the purposes of carrying out the Organisation’s functions, the Director‑General or an authorised person may:

(a) ask an operator of an aircraft or vessel questions relating to the aircraft or vessel, or its cargo, crew, passengers, stores or voyage; or

(b) request an operator of an aircraft or vessel to produce documents relating to the aircraft or vessel, or its cargo, crew, passengers, stores or voyage, that are in the possession or under the control of the operator.

(2) A person who is asked a question or requested to produce a document under subsection (1) must answer the question or produce the document as soon as practicable.

Offence

(3) A person commits an offence if:

(a) the person is an operator of an aircraft or vessel; and

(b) the person is asked a question or requested to produce a document under subsection (1); and

Penalty: 60 penalty units.

(4) Subsection (3) is an offence of strict liability.

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

(5) It is a defence to a prosecution for an offence against subsection (3) if the person charged had a reasonable excuse for:

(a) failing to answer the question; or

(b) failing to produce the document.

(6) The Director‑General, or a person appointed under subsection (6A), may authorise, in writing, a person, or a class of persons, for the purposes of this section.

(6A) The Director‑General may, in writing, appoint a senior position‑holder, or a class of senior position‑holders, for the purposes of subsection (6).

(7) In this section:

authorised person means a person who is authorised under subsection (6) for the purposes of this section.

operator has the meaning given by section 4 of the Customs Act 1901.

24 Exercise of authority under warrant etc.

Who may exercise authority under warrant etc.

(1) The authority conferred by a relevant warrant or relevant device recovery provision may be exercised on behalf of the Organisation only by:

(a) the Director‑General; or

(b) a person approved under subsection (2); or

Approval of persons authorised to exercise authority under warrant etc.

(2) The Director‑General or a person appointed under subsection (3) may, in writing, approve a person, or a class of persons, as people authorised to exercise, on behalf of the Organisation, the authority conferred by relevant warrants or relevant device recovery provisions.

(3) The Director‑General may, in writing, appoint a senior position‑holder, or a class of senior position‑holders, for the purposes of subsection (2).

Definitions

(4) In this section:

relevant device recovery provision means subsection 26B(5) or (6), 27A(3A) or (3B) or 27F(5).

relevant warrant means a warrant issued under this Division or under Division 3.

Subdivision B—Search warrants

25 Search warrants

Issue of search warrant

(1) If the Director‑General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (2), the Minister may issue a warrant in accordance with this section.

Test for issue of warrant

(2) The Minister is only to issue the warrant if he or she is satisfied that there are reasonable grounds for believing that access by the Organisation to records or other things on particular premises (the subject premises) will substantially assist the collection of intelligence in accordance with this Act in respect of a matter (the security matter) that is important in relation to security.

Authorisation in warrant

(3) The warrant must be signed by the Minister and must authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the subject premises, which must also be specified in the warrant.

Things that may be specified in warrant

(4) The things that may be specified are any of the following that the Minister considers appropriate in the circumstances:

(a) entering the subject premises;

(aa) entering any premises for the purposes of gaining entry to or exiting the subject premises;

(b) searching the subject premises for the purpose of finding records or other things relevant to the security matter and, for that purpose, opening any safe, box, drawer, parcel, envelope or other container in which there is reasonable cause to believe that any such records or other things may be found;

(c) inspecting or otherwise examining any records or other things so found, and making copies or transcripts of any such record or other thing that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act;

(d) removing and retaining any record or other thing so found, for the purposes of:

(i) inspecting or examining it; and

(ii) in the case of a record—making copies or transcripts of it, in accordance with the warrant;

(e) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;

(f) any other thing reasonably incidental to any of the above.

Personal searches may be specified

(4A) The Minister may also specify any of the following things if he or she considers it appropriate in the circumstances:

(a) conducting an ordinary search or a frisk search of a person if:

(i) the person is at or near the subject premises when the warrant is executed; and

(ii) there is reasonable cause to believe that the person has on his or her person records or other things relevant to the security matter;

(b) inspecting or otherwise examining any records or other things so found, and making copies or transcripts of any such record or other thing that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act;

(i) inspecting or examining it; and

(ii) in the case of a record—making copies or transcripts of it, in accordance with the warrant.

Certain personal searches not authorised

(4B) Subsection (4A) does not authorise a strip search or a search of a person’s body cavities.

Time period for retaining records and other things

(4C) A record or other thing retained as mentioned in paragraph (4)(d) or (4A)(c) may be retained:

(a) if returning the record or thing would be prejudicial to security—only until returning the record or thing would no longer be prejudicial to security; and

(b) otherwise—for only such time as is reasonable.

Other things that may be specified

(5) The Minister may also specify any of the following things if he or she considers it appropriate in the circumstances:

(a) where there is reasonable cause to believe that data relevant to the security matter may be accessible by using a computer or other electronic equipment, or a data storage device, brought to or found on the subject premises—using the computer, equipment or device for the purpose of obtaining access to any such data and, if necessary to achieve that purpose, adding, copying, deleting or altering other data in the computer, equipment or device;

(b) using the computer, equipment or device to do any of the following:

(i) inspecting and examining any data to which access has been obtained;

(ii) converting any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act, into documentary form and removing any such document;

(iii) copying any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act, to any data storage device and removing the device;

(d) any other thing reasonably incidental to any of the above.

Certain acts not authorised

(6) Subsection (5) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

(a) materially interfere with, interrupt or obstruct the lawful use by other persons of a computer or other electronic equipment, or a data storage device, found on the subject premises unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified under subsection (5); or

(b) cause any other material loss or damage to other persons lawfully using the computer, equipment or device.

Warrant must provide for certain matters

(7) The warrant must:

(a) authorise the use of any force against persons and things that is necessary and reasonable to do the things specified in the warrant; and

(b) state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

Statement about warrant coming into force

(8) The warrant may state that it comes into force on a specified day (after the day of issue) or when a specified event happens. The day must not begin nor the event happen more than 28 days after the end of the day on which the warrant is issued.

When warrant comes into force

(9) If the warrant includes such a statement, it comes into force at the beginning of the specified day or when the specified event happens. Otherwise, it comes into force when it is issued.

Duration of warrant

(10) The warrant must specify the period during which it is to be in force. The period must not be more than 90 days, although the Minister may revoke the warrant before the period has expired.

Issue of further warrants not prevented

(11) Subsection (10) does not prevent the issue of any further warrant.

25AA Conduct of ordinary or frisk search under search warrant

An ordinary search or frisk search of a person that is authorised under paragraph 25(4A)(a) must, if practicable, be conducted by a person of the same sex as the person being searched.

Subdivision C—Computer access warrants

25A Computer access warrant

Issue of computer access warrant

(1) If the Director‑General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (2), the Minister may issue a warrant in accordance with this section.

Test for issue of warrant

(2) The Minister is only to issue the warrant if he or she is satisfied that there are reasonable grounds for believing that access by the Organisation to data held in a computer (the target computer) will substantially assist the collection of intelligence in accordance with this Act in respect of a matter (the security matter) that is important in relation to security.

Note: See section 22 for the definition of computer.

(3) The target computer may be any one or more of the following:

(a) a particular computer;

(b) a computer on particular premises;

Authorisation in warrant

(3A) The warrant must:

(a) be signed by the Minister; and

(b) authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the target computer; and

(d) if the target computer is or includes a computer on particular premises—specify the premises; and

(e) if the target computer is or includes a computer associated with, used by or likely to be used by, a person—specify the person (whether by name or otherwise).

Things that may be authorised in warrant

(4) The things that may be specified are any of the following that the Minister considers appropriate in the circumstances:

(aa) entering specified premises for the purposes of doing the things mentioned in this subsection;

(aaa) entering any premises for the purposes of gaining entry to or exiting the specified premises;

(a) using:

(i) the target computer; or

(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or

(iii) any other electronic equipment; or

(iv) a data storage device;

for the purpose of obtaining access to data (the relevant data) that is relevant to the security matter and is held in the target computer at any time while the warrant is in force and, if necessary to achieve that purpose, adding, copying, deleting or altering other data in the target computer;

(ab) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so—using any other computer or a communication in transit to access the relevant data and, if necessary to achieve that purpose, adding, copying, deleting or altering other data in the computer or the communication in transit;

(b) copying any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act;

(d) any other thing reasonably incidental to any of the above.

Note: As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10‑7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).

Certain acts not authorised

(5) Subsection (4) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:

(a) materially interfere with, interrupt or obstruct a communication in transit or the lawful use by other persons of a computer unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or

(b) cause any other material loss or damage to other persons lawfully using a computer.

Warrant must provide for certain matters

(5A) The warrant must:

(a) authorise the use of any force against persons and things that is necessary and reasonable to do the things specified in the warrant; and

(b) if the warrant authorises entering premises—state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

Duration of warrant

(6) The warrant must specify the period during which it is to remain in force. The period must not be more than 6 months, although the Minister may revoke the warrant before the period has expired.

Issue of further warrants not prevented

(7) Subsection (6) does not prevent the issue of any further warrant.

Subdivision D—Use of surveillance devices

26 Issue of surveillance device warrants

Issue of surveillance device warrant

(1) If the Director‑General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (3), the Minister may issue a warrant in accordance with this section.

(2) The warrant may be issued:

(a) in relation to one or more of the following:

(i) a particular person;

(ii) particular premises;

(iii) an object or class of object; and

(b) in respect of more than one kind of surveillance device; and

Test for issue of warrant

(3) The Minister is only to issue the warrant if he or she is satisfied that:

(a) if the warrant is requested in relation to a particular person:

(i) the person is engaged in or is reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(ii) the use by the Organisation of a surveillance device in relation to that person will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security; and

(b) if the warrant is requested in relation to particular premises:

(i) those premises are used, likely to be used or frequented by a person engaged in or reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(ii) the use on behalf of the Organisation of a surveillance device in or on those premises will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security; and

(i) that object, or an object of that class, is used or worn, or likely to be used or worn by a person engaged in or reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(ii) the use by the Organisation of a surveillance device in or on that object, or an object of that class, will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security.

(4) To avoid doubt, the identity of the person referred to in paragraph (3)(a) or subparagraph (3)(b)(i) or (c)(i) need not be known.

Warrant may be subject to restrictions or conditions

(5) The warrant is subject to any restrictions or conditions specified in it.

26A Requirements for surveillance device warrants

(1) A surveillance device warrant must:

(a) be signed by the Minister; and

(b) specify:

(i) the kind of surveillance device, or kinds of surveillance devices, authorised to be used; and

(ii) the date the warrant is issued; and

(iii) if the warrant is issued in relation to a particular person—the name of the person (if known) or the fact that the person’s identity is unknown; and

(iv) if the warrant is issued in relation to particular premises—the premises; and

(v) if the warrant is issued in relation to an object or class of object—the object or class of object; and

(c) authorise the use of any force against persons and things that is necessary and reasonable to do the things authorised by the warrant; and

(d) state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

(2) If a surveillance device warrant is issued in relation to particular premises that are vehicles, the warrant need only specify the class of vehicle in relation to which the use of the surveillance device is authorised.

(3) The surveillance device warrant must specify the period during which it is to remain in force. The period must not be more than 6 months, although the Minister may revoke the warrant before the period has expired.

(4) Subsection (3) does not prevent the issue of any further warrant.

26B What a surveillance device warrant authorises

Authorisation in warrant—particular person

(1) If a surveillance device warrant is issued in relation to a particular person, the warrant authorises the following:

(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant to:

(i) listen to, record, observe or monitor the words, sounds or signals communicated to or by the person, or the activities of the person; or

(ii) track the person;

(b) the installation, use and maintenance of a surveillance device of the kind specified in the warrant:

(i) in or on premises where the person is reasonably believed to be or likely to be; or

(ii) in or on any other premises specified in the warrant from which the activities of that person, or the words, sounds or signals communicated by or to that person, can be listened to, recorded, observed or monitored;

(c) entering the premises referred to in paragraph (b) for any of the purposes referred to in paragraph (a) or (b) or in subsection (4) or (5);

(d) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on any object used or worn, or likely to be used or worn, by the person;

(e) the entry into or onto, or the alteration of, the object referred to in paragraph (d);

(f) entering any premises in which the object referred to in paragraph (d) is or is likely to be found, for any of the purposes referred to in that paragraph or in subsection (4) or (5);

(g) entering any other premises, for the purposes of gaining entry to or exiting premises referred in to paragraph (b) or (f);

(h) any other thing reasonably incidental to any of the above.

Authorisation in warrant—particular premises

(2) If a surveillance device warrant is issued in relation to particular premises (the subject premises), the warrant authorises the following:

(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant:

(i) in or on the subject premises; or

(ii) in or on any other premises specified in the warrant from which the activities of a person, or the words, sounds or signals communicated by or to a person, can be listened to, recorded, observed or monitored while the person is in or on the subject premises;

(b) entering the subject premises, or any other premises specified in the warrant, for any of the purposes referred to in paragraph (a) or subsection (4) or (5);

(c) entering any other premises, for the purposes of gaining entry to or exiting the subject premises or any other premises specified in the warrant;

(d) any other thing reasonably incidental to any of the above.

Authorisation in warrant—object or class of object

(3) If a surveillance device warrant is issued in relation to an object, or class of object, the warrant authorises the following:

(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object, or an object of the specified class;

(b) the entry into or onto, or alteration of, the specified object, or an object of the specified class;

(c) entering any premises where the object, or an object of the class, is reasonably believed to be or is likely to be for any of the purposes referred to in paragraph (a) or (b) or subsection (4) or (5);

(d) entering any other premises, for the purposes of gaining entry to or exiting premises referred to in paragraph (c);

(e) any other thing reasonably incidental to any of the above.

Authorisation in warrant—general

(4) A surveillance device warrant also authorises the following:

(a) the installation, use and maintenance of enhancement equipment in relation to the surveillance device;

(b) the temporary removal of an object from premises for the installation or maintenance of the surveillance device or enhancement equipment and the return of the object to the premises;

(c) the replacement of an object with an equivalent object for the purposes of the installation or maintenance of the surveillance device or enhancement equipment;

(d) the breaking open of any thing for the installation or maintenance of the surveillance device or enhancement equipment;

(e) the connection of the surveillance device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment;

(f) the connection of the surveillance device or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the device or equipment;

(g) the doing of any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;

(h) any other thing reasonably incidental to any of the above.

Recovery of surveillance devices

(5) If a surveillance device is installed or used under a surveillance device warrant, the Organisation is authorised to do any of the following:

(a) recover the surveillance device or any enhancement equipment in relation to the device;

(b) enter any premises where the surveillance device is reasonably believed to be, for the purpose of recovering the device or the equipment;

(d) enter into or onto, or alter, an object for the purpose of recovering the device or the equipment;

(e) replace an object with an equivalent object for the purposes of recovering the device or the equipment;

(f) break open any thing for the purpose of recovering the device or the equipment;

(g) if the device or equipment is installed in or on an object—temporarily remove the object from any place where it is situated for the purpose of recovering the device or the equipment and returning the object to that place;

(h) use a nominal amount of electricity from any source to power the device or equipment;

(i) any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;

(j) use any force against persons and things that is necessary and reasonable to do any of the above;

(k) any other thing reasonably incidental to any of the above;

at the following time:

(l) at any time while the warrant is in force or within 28 days after it ceases to be in force;

(m) if the surveillance device is not recovered at a time mentioned in paragraph (l)—at the earliest time, after the 28 days mentioned in that paragraph, at which it is reasonably practicable to do the things concerned.

(6) If, for the purposes of subsection (5):

(a) the surveillance device is not recovered while the warrant is in force; and

(b) the surveillance device is a tracking device;

the Organisation is also authorised to use the surveillance device or any enhancement equipment in relation to the device solely for the purposes of the location and recovery of the device or equipment.

26C Use etc. of listening device without warrant

Either of the following (the first person):

(a) an ASIO employee acting in the course of the ASIO employee’s duties;

(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain a listening device without warrant for any purpose involving listening to or recording words, sounds or signals being communicated by or to another person (the second person) if:

(d) the second person intends, or should reasonably expect, those words, sounds or signals to be communicated to the first person, or to a class or group of persons in which the first person is included; or

(e) the first person does so with the implied or express consent of a person who is permitted under paragraph (c) or (d) to listen to or record the words, sounds or signals.

Note: This section does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

26D Use etc. of optical surveillance device without warrant

Either of the following:

(a) an ASIO employee acting in the course of the ASIO employee’s duties;

(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain an optical surveillance device without warrant if the installation, use or maintenance of the device does not involve:

(d) interference with any vehicle or thing without permission of the person having lawful possession or control of the vehicle or thing.

Note: This section does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

26E Use etc. of tracking device without warrant

(1) Either of the following:

(a) an ASIO employee acting in the course of the ASIO employee’s duties;

(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain a tracking device without warrant for the purposes of tracking a person if the person consents to the installation, use or maintenance.

Note: This subsection does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

(2) Either of the following:

(a) an ASIO employee acting in the course of the ASIO employee’s duties;

(b) an ASIO affiliate, acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain a tracking device without warrant for the purposes of tracking an object if the person using the object consents to the installation, use or maintenance.

Note: This subsection does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

26F Director‑General may determine that certain provisions do not apply to specified ASIO affiliates

(1) The Director‑General may, by signed writing, determine that section 26C or 26D or subsection 26E(1) or (2) does not apply to:

(a) a specified ASIO affiliate; or

(b) a specified class of ASIO affiliates.

(2) A determination under subsection (1) has effect accordingly.

(3) A determination under subsection (1) is not a legislative instrument.

(4) The Director‑General may, by signed writing, delegate the Director‑General’s power under this section to:

(a) a Deputy Director‑General; or

(b) any other ASIO employee or ASIO affiliate who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 2.

(5) In exercising powers under a delegation, the delegate must comply with any written direction given by the Director‑General to the delegate.

Subdivision E—Inspection of postal and other articles

27 Inspection of postal articles

(1) It is unlawful:

(a) for a person, being the Director‑General, an ASIO employee or an ASIO affiliate acting in his or her capacity as such, to seek from the Australian Postal Corporation or from an employee or agent of that Corporation; or

(b) for that Corporation or an employee or agent of that Corporation to provide to such a person;

access to a postal article that is in the course of the post or information concerning the contents or cover of any postal article except in pursuance of, or for the purposes of, a warrant under this Division, and it is the duty of the Director‑General to take all reasonable steps to ensure that this subsection is not contravened.

(2) Where, upon receipt by the Minister of a request by the Director‑General for the issue of a warrant under this section in relation to a person, the Minister is satisfied that:

(a) that person is engaged in or is reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(b) access by the Organisation to postal articles posted by or on behalf of, addressed to or intended to be received by, that person, while the articles are in the course of the post, will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security;

the Minister may, by warrant under his or her hand, authorize the Organisation to do such of the following acts and things as the Minister considers appropriate in the circumstances, namely, with respect to postal articles in the course of the post that were posted by or on behalf of, or are addressed to, that person or are reasonably suspected by a person authorized to exercise the authority of the Organisation under the warrant to be intended to be received by that person, to inspect, and make copies of, or of the covers of, the articles, and to open the articles and inspect and make copies of the contents of any such article.

(3) Where, upon receipt by the Minister of a request by the Director‑General for the issue of a warrant under this section in relation to an address, the Minister is satisfied that:

(a) some or all of the postal articles that are being, or are likely to be, sent by post to that address are or will be intended to be received by a person (whether of known identity or not) engaged in, or reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(b) access by the Organisation to postal articles posted to that address and intended to be received by the person referred to in paragraph (a) will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security;

the Minister may, by warrant under his or her hand, authorize the Organisation to do such of the following acts and things as the Minister considers appropriate in the circumstances, namely, with respect to postal articles in the course of the post that are addressed to that address and appear on their face to be, or are reasonably suspected by a person authorized to exercise the authority of the Organisation under the warrant to be, intended to be received by the person referred to in paragraph (a), to inspect, and make copies of, or of the covers of, the articles and to open the articles and inspect and make copies of the contents of any such article.

(4) A warrant under this section shall specify the period for which it is to remain in force, being a period not exceeding 6 months, but may be revoked by the Minister at any time before the expiration of the period so specified.

(5) Subsection (4) shall not be construed as preventing the issue of any further warrant.

(6) Where the Director‑General is informed under section 32 of the issue of a warrant under this section, the Director‑General must:

(a) cause the Australian Postal Corporation to be informed of the issue of the warrant without delay; and

(b) where, under section 32, the Director‑General receives the warrant—cause a certified copy of the warrant to be given to the Australian Postal Corporation as soon as practicable.

(6A) Where:

(a) the Director‑General has been informed under section 32 of the issue of a warrant under this section; and

(b) the Director‑General is informed under that section that the warrant has been revoked;

the Director‑General must:

(d) where, under section 32, the Director‑General receives the instrument of revocation—cause a certified copy of the instrument of revocation to be given to the Australian Postal Corporation as soon as practicable.

(7) The Australian Postal Corporation shall give to a person acting in pursuance of a warrant under this section all reasonable assistance.

(8) Nothing in Part VIIA of the Crimes Act 1914 or the Australian Postal Corporation Act 1989 shall be taken to prohibit the doing of anything in pursuance of, or for the purposes of, a warrant under this section.

(9) Nothing in subsection (1) applies in relation to a postal article addressed to, or appearing to be intended to be received by or on behalf of, the Organisation.

(10) In this section:

address means any premises or place (including a post office box or bag service) to which postal articles may be addressed.

agent, in relation to the Australian Postal Corporation, includes any person performing services for that Corporation otherwise than under a contract of service and an employee of such a person.

27AA Inspection of delivery service articles

Unlawful access to delivery service articles

(1) It is unlawful for:

(a) the Director‑General, an ASIO employee or an ASIO affiliate, for the purposes of the Organisation, to seek from a delivery service provider or from an employee or agent of a delivery service provider; or

(b) a delivery service provider or an employee or agent of a delivery service provider to give the Director‑General, an ASIO employee or an ASIO affiliate, for the purposes of the Organisation;

access to:

(d) information concerning the contents or cover of any such article;

except in accordance with, or for the purposes of, a warrant under this Division. It is the duty of the Director‑General to take all reasonable steps to ensure that this subsection is not contravened.

Note: Delivery service provider, agent and article are defined in subsection (12).

Issue of delivery services warrant

(2) If the Director‑General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (3) or (6), the Minister may issue a warrant in accordance with this section.

Test 1 for issue of warrant

(3) The Minister may issue a warrant if he or she is satisfied that:

(a) a person (the subject) is engaged in or is reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(b) access by the Organisation to articles sent by or on behalf of, addressed to or intended to be received by, the subject while the articles are being delivered by a delivery service provider, will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security.

Authorisation in warrant

(4) The warrant must be signed by the Minister and must authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to articles that:

(a) are being delivered by the delivery service provider; and

(b) in respect of which any of the following are satisfied:

(i) the articles have been sent by or on behalf of the subject, who must be specified in the warrant, or addressed to the subject; or

(ii) the articles are reasonably suspected, by a person authorised to exercise the authority of the Organisation under the warrant, of having been so sent or addressed; or

(iii) the articles are intended to be received by the subject, who must be specified in the warrant, or are reasonably suspected, by a person authorised to exercise the authority of the Organisation under the warrant, of being intended to be received by the subject.

Things that may be specified for a warrant issued under subsection (3)

(5) The things that may be specified are any of the following that the Minister considers appropriate in the circumstances:

(a) inspecting or making copies of the articles or the covers of the articles;

(b) opening the articles;

(d) any other thing reasonably incidental to any of the above.

Test 2 for issue of warrant

(6) The Minister may issue a warrant if he or she is satisfied that:

(a) some or all of the articles that are being, or are likely to be, sent by a delivery service provider to an address (the subject address) are, or will be intended to be, received by a person (the subject) (whether of known identity or not) engaged in, or reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(b) access by the Organisation to articles sent to, or intended to be received by, the subject while the articles are being delivered by a delivery service provider will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security.

Authorisation in warrant

(7) The warrant must be signed by the Minister and must authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to articles that:

(a) are being delivered by the delivery service provider; and

(b) are addressed to the subject address, which must be specified in the warrant; and

(c) appear on their face to be, or are reasonably suspected by a person authorised to exercise the authority of the Organisation under the warrant to be, intended to be received by the subject.

Things that may be specified for warrant issued under subsection (6)

(8) The things that may be specified are any of the following that the Minister considers appropriate in the circumstances:

(a) inspecting or making copies of any of the articles or the covers of the articles;

(b) opening any of the articles;

(d) any other thing reasonably incidental to any of the above.

Duration of warrant

(9) A warrant issued under this section must specify the period during which it is to remain in force. The period must not be more than 6 months, although the Minister may revoke the warrant before the period has expired.

Issue of further warrants not prevented

(10) Subsection (9) does not prevent the issue of any further warrant.

Definitions

(11) To avoid doubt, the expression deliver an article includes any thing done by the deliverer, for the purpose of delivering the article, from the time when the article is given to the deliverer by the sender until it is given by the deliverer to the recipient.

(12) In this section:

agent, in relation to a delivery service provider, includes:

(a) any person performing services for the delivery service provider otherwise than under a contract of service; and

(b) an employee of the person mentioned in paragraph (a).

article means any object reasonably capable of being sent through the post.

delivery service provider means a person whose business is or includes delivering articles.

Subdivision F—Foreign intelligence

27A Warrants for the performance of functions under paragraph 17(1)(e)

(1) Where:

(a) the Director‑General gives a notice in writing to the Minister (the issuing Minister) requesting the issuing Minister to issue a warrant under this section in relation to premises, a person, a computer or an object identified in the notice authorising the Organisation to do acts or things referred to in whichever of subsections 25(4) or (5), 25A(4), 26B(1), (2), (3) or (4), 27(2) or (3) or 27AA(5) or (8) is or are specified in the notice for the purpose of obtaining foreign intelligence relating to a matter specified in the notice; and

(b) the issuing Minister is satisfied, on the basis of advice received from the Defence Minister or the Foreign Affairs Minister, that the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being;

the issuing Minister may, by warrant under his or her hand, authorise the Organisation, subject to any conditions or restrictions that are specified in the warrant, to do such of those acts or things in relation to those premises, that person, that computer or those objects as the issuing Minister considers appropriate in the circumstances and are specified in the warrant for the purpose of obtaining that intelligence.

(2) The warrant must:

(a) authorise the use of any force against persons and things that is necessary and reasonable to do the things mentioned in subsection (1); and

(b) if the warrant authorises entering premises—state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

(3) A warrant under this section shall specify the period for which it is to remain in force, being a period not exceeding:

(a) in a case where the warrant authorises the doing of acts or things referred to in subsection 25(4) or (5)—90 days;

(b) in a case where the warrant authorises the doing of acts or things referred to in subsection 25A(4), 26B(1), (2), (3) or (4), 27(2) or (3) or 27AA(5) or (8)—6 months;

but may be revoked by the issuing Minister at any time before the end of the period so specified.

(3A) If a surveillance device is installed or used in accordance with a warrant under this section authorising the doing of acts referred to in subsection 26B(1) (2), (3) or (4), the Organisation is authorised to do any of the following: