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Australian Security Intelligence Organisation Act 1979

Authoritative Version
  • - C2016C00314
  • In force - Superseded Version
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Act No. 113 of 1979 as amended, taking into account amendments up to Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015
An Act relating to the Australian Security Intelligence Organisation
Administered by: Attorney-General's
Registered 18 Apr 2016
Start Date 05 Mar 2016
End Date 29 Nov 2016

Australian Security Intelligence Organisation Act 1979

No. 113, 1979

Compilation No. 52

Compilation date:                              5 March 2016

Includes amendments up to:            Act No. 126, 2015

Registered:                                         18 April 2016

 

About this compilation

This compilation

This is a compilation of the Australian Security Intelligence Organisation Act 1979 that shows the text of the law as amended and in force on 5 March 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Repeal................................................................................................. 1

4............ Definitions.......................................................................................... 1

4A......... Application of the Criminal Code....................................................... 9

5............ Extension of Act to external Territories............................................... 9

5A......... Copies of certain notices to be given to Inspector‑General.................. 9

Part II—The Organisation and the Director‑General                                   11

6............ Continuance of Organisation............................................................. 11

7............ Director‑General............................................................................... 11

8............ Control of Organisation.................................................................... 11

8A......... Guidelines......................................................................................... 12

9............ Term of office of Director‑General................................................... 13

10.......... Remuneration and allowances of Director‑General........................... 14

11.......... Leave of absence............................................................................... 14

12.......... Resignation....................................................................................... 14

13.......... Termination of appointment.............................................................. 14

14.......... Acting Director‑General.................................................................... 15

15.......... Appointment of a Judge as Director‑General.................................... 16

16.......... Delegation......................................................................................... 16

Part III—Functions and powers of Organisation                                            18

Division 1—General                                                                                                    18

17.......... Functions of Organisation................................................................. 18

17AA.... Fees for advice and other services..................................................... 19

17A....... Act not concerned with lawful dissent etc......................................... 19

18.......... Communication of intelligence etc..................................................... 19

18A....... Unauthorised dealing with records.................................................... 23

18B....... Unauthorised recording of information or matter.............................. 25

18C....... Offences against section 18, 18A or 18B—general rules.................. 27

18D....... Offences against section 18, 18A or 18B—IGIS officials................ 28

19.......... Co‑operation with other authorities in connection with performance of Organisation’s functions           28

19A....... Co‑operation with intelligence and law enforcement agencies etc. in connection with performance of their functions.......................................................................................................... 29

20.......... Special responsibility of Director‑General in relation to functions of Organisation  30

21.......... Leader of Opposition to be kept informed on security matters.......... 30

Division 2—Special powers                                                                                     31

Subdivision A—Preliminary                                                                                 31

22.......... Interpretation..................................................................................... 31

23.......... Requesting information or documents from operators of aircraft or vessels             33

24.......... Exercise of authority under warrant etc............................................. 35

Subdivision B—Search warrants                                                                         36

25.......... Search warrants................................................................................. 36

25AA.... Conduct of ordinary or frisk search under search warrant................ 40

Subdivision C—Computer access warrants                                                       40

25A....... Computer access warrant.................................................................. 40

Subdivision D—Use of surveillance devices                                                      43

26.......... Issue of surveillance device warrants................................................ 43

26A....... Requirements for surveillance device warrants................................. 45

26B....... What a surveillance device warrant authorises.................................. 46

26C....... Use etc. of listening device without warrant...................................... 50

26D....... Use etc. of optical surveillance device without warrant..................... 50

26E........ Use etc. of tracking device without warrant...................................... 51

26F........ Director‑General may determine that certain provisions do not apply to specified ASIO affiliates          52

Subdivision E—Inspection of postal and other articles                                  52

27.......... Inspection of postal articles............................................................... 52

27AA.... Inspection of delivery service articles................................................ 55

Subdivision F—Foreign intelligence                                                                   59

27A....... Warrants for the performance of functions under paragraph 17(1)(e) 59

27B....... Performance of other functions under paragraph 17(1)(e)................ 63

Subdivision G—Identified person warrants                                                      64

27C....... Issue of identified person warrants................................................... 64

27D....... Authority under identified person warrant—search of premises and persons          65

27E........ Authority under identified person warrant—computer access........... 68

27F........ Authority under identified person warrant—surveillance devices..... 70

27G....... Authority under identified person warrant—inspection of postal articles 72

27H....... Authority under identified person warrant—inspection of delivery articles              73

27J........ Authority under identified person warrants—general rules............... 75

Subdivision H—General provisions relating to warrants                             77

28.......... Request for warrant to specify grounds............................................ 77

29.......... Issue of certain warrants by Director‑General in emergency............. 77

29A....... Variation of warrants issued under this Division.............................. 78

30.......... Discontinuance of action before expiration of warrant...................... 79

31.......... Certain records obtained under a warrant to be destroyed................. 79

31A....... Notification requirements in relation to the use of force under warrant 80

32.......... Certain action in relation to requests and warrants............................ 80

33.......... Relationship with other laws............................................................. 81

34.......... Director‑General to report to Minister............................................... 82

34AA.... Evidentiary certificates...................................................................... 82

Division 3—Special powers relating to terrorism offences                    85

Subdivision A—Preliminary                                                                                 85

34A....... Definitions........................................................................................ 85

34AB.... Issuing authorities............................................................................. 86

34B....... Prescribed authorities........................................................................ 86

34C....... Written statement of procedures........................................................ 87

Subdivision B—Questioning warrants                                                                88

34D....... Request for questioning warrant....................................................... 88

34E........ Issue of questioning warrant............................................................. 90

Subdivision C—Questioning and detention warrants                                     92

34F........ Request for questioning and detention warrant................................. 92

34G....... Issue of questioning and detention warrant....................................... 94

34H....... Person taken into custody under warrant to be immediately brought before prescribed authority            98

Subdivision D—Certain obligations and protections relating to a warrant issued under Subdivision B or C       98

34J........ Prescribed authority must explain warrant........................................ 98

34K....... Directions by prescribed authority etc............................................. 100

34L........ Giving information and producing things etc.................................. 104

34M...... Interpreter provided at request of prescribed authority.................... 106

34N....... Interpreter provided at request of person being questioned............. 107

34P........ Inspector‑General of Intelligence and Security may be present at questioning or taking into custody      107

34Q....... Suspension of questioning etc. in response to concern of Inspector‑General of Intelligence and Security               108

34R....... End of questioning under warrant................................................... 109

34S........ Person not to be detained for more than 168 hours continuously.... 112

Subdivision E—Other provisions                                                                       112

34T........ Humane treatment of person specified in warrant........................... 112

34U....... Entering premises to take person into custody................................ 112

34V....... Use of force in taking person into custody and detaining person.... 113

34W...... Surrender of travel documents by person in relation to whom warrant is sought     114

34X....... Person in relation to whom warrant is sought must not leave Australia without permission    115

34Y....... Surrender of travel documents by person specified in warrant........ 116

34Z........ Person specified in warrant must not leave Australia without permission                117

34ZA..... Video recording of procedures........................................................ 118

34ZB..... Power to conduct an ordinary search or a strip search.................... 118

34ZC..... Rules for conduct of strip search..................................................... 119

34ZD..... Power to remove, retain and copy materials etc............................... 121

34ZE..... Special rules for young people........................................................ 122

34ZF..... Offences of contravening safeguards.............................................. 125

34ZG..... Complaints and information about contravention of procedural statement                127

34ZH..... Providing reports to the Minister.................................................... 128

34ZI...... Providing information to the Inspector‑General.............................. 128

34ZJ...... Reporting by Inspector‑General on multiple warrants..................... 128

34ZK..... Discontinuing action before warrants expire................................... 129

34ZL..... Certain records obtained under warrant to be destroyed.................. 129

34ZM.... Status of issuing authorities and prescribed authorities................... 130

34ZN..... Certain functions and powers not affected...................................... 130

34ZO..... Limit on contact of lawyer of choice............................................... 130

34ZP..... Questioning person in absence of lawyer of person’s choice.......... 131

34ZQ..... Involvement of lawyers................................................................... 132

34ZR..... Conduct of parents etc..................................................................... 133

34ZS..... Secrecy relating to warrants and questioning.................................. 135

34ZT..... Lawyers’ access to information for proceedings relating to warrant 141

34ZU..... Rules of Court about proceedings connected with warrants............ 141

34ZV..... Law relating to legal professional privilege not affected.................. 141

34ZW.... Jurisdiction of State and Territory courts excluded......................... 141

34ZX..... Financial assistance......................................................................... 142

34ZY..... Instruments are not legislative instruments...................................... 143

34ZZ..... Cessation of effect of Division........................................................ 143

Division 4—Special intelligence operations                                                  144

35A....... Relationship to other laws and matters............................................ 144

35B....... Applications for authorities to conduct special intelligence operations 144

35C....... Granting of special intelligence operation authorities...................... 145

35D....... Contents of special intelligence operation authorities...................... 146

35E........ Commencement and duration of special intelligence operation authorities                147

35F........ Variation of special intelligence operation authorities...................... 147

35G....... Cancellation of special intelligence operation authorities................. 149

35H....... Effect of special intelligence operation authorities........................... 149

35J........ Defect in a special intelligence operation authority.......................... 150

35K....... Immunity from liability for special intelligence conduct during special intelligence operations                150

35L........ Requirements for warrants etc. not affected.................................... 151

35M...... Effect of being unaware of variation or cancellation of special intelligence operation authority                151

35N....... Protection from criminal responsibility for certain ancillary conduct 152

35P........ Unauthorised disclosure of information.......................................... 153

35PA..... Notifications by Director‑General................................................... 154

35Q....... Reports by the Director‑General..................................................... 155

35R....... Evidence relating to granting of special intelligence operation authority 155

Part IV—Security assessments                                                                                   157

Division 1—Preliminary                                                                                          157

35.......... Interpretation................................................................................... 157

36.......... Part not to apply to certain assessments.......................................... 160

Division 2—Furnishing of security assessments                                         162

37.......... Security assessments....................................................................... 162

38.......... Person to be notified of assessment................................................ 163

38A....... Notification where assessment relates to Telecommunications Act. 164

39.......... Effect of preliminary advice by Organisation.................................. 165

40.......... Assessments for State purposes...................................................... 165

Division 4—Review of security assessments                                                167

54.......... Applications to Tribunal.................................................................. 167

61.......... Effect of findings............................................................................ 167

64.......... Restriction on further assessments after review.............................. 167

65.......... Reference of certain matters to Tribunal by Minister....................... 168

81.......... Secrecy............................................................................................ 169

Part V—ASIO employees etc.                                                                                     170

84.......... Employees of the Organisation....................................................... 170

85.......... Consultants and contractors............................................................ 170

86.......... Secondment of ASIO employees.................................................... 171

87.......... Secondment of persons to the Organisation.................................... 171

88.......... Applicability of principles of the Public Service Act 1999............... 171

89.......... Voluntary moves to APS................................................................ 172

90.......... Regulations relating to employment of persons............................... 172

91.......... Application of Crimes Act.............................................................. 172

92.......... Publication of identity of ASIO employee or ASIO affiliate........... 173

Part VI—Miscellaneous                                                                                                  175

93.......... Offences.......................................................................................... 175

94.......... Annual report.................................................................................. 175

95.......... Regulations..................................................................................... 178

Endnotes                                                                                                                                  179

Endnote 1—About the endnotes                                                                          179

Endnote 2—Abbreviation key                                                                              181

Endnote 3—Legislation history                                                                           182

Endnote 4—Amendment history                                                                         192


An Act relating to the Australian Security Intelligence Organisation

Part IPreliminary

  

1  Short title

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

2  Commencement

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

3  Repeal

                   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

                     (c)  a foreign political organisation.

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;

                     (c)  that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation;

                     (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

                     (c)  that may involve an ASIO employee or an ASIO affiliate in special intelligence conduct.

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 IIThe 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 IIIFunctions and powers of Organisation

Division 1General

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

                     (c)  the information or matter:

                              (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;

                     (c)  a staff member of an authority of a State.

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

                     (c)  the record:

                              (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

                     (c)  a person who has entered into a contract, agreement or arrangement with ASIO (otherwise than as an ASIO affiliate).

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

                     (c)  the information or matter:

                              (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).

             (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 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;

                     (c)  AGO;

                     (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 2Special powers

Subdivision APreliminary

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

                     (c)  one or more computer networks; 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

                     (c)  any other thing.

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

                     (c)  a device of a kind prescribed by regulation for the purposes of this paragraph.

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

                     (c)  the person fails to answer the question or produce the document.

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

                     (c)  a person included in a class of persons approved under subsection (2).

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 BSearch 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;

                     (c)  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.

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;

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

                     (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 CComputer 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;

                     (c)  a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).

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

                     (c)  if the target computer is or includes a particular computer—specify the 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;

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

                     (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 DUse 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

                     (c)  in respect of more than one surveillance device of any particular kind.

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

                     (c)  if the warrant is requested in relation to an object or class of object:

                              (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;

                     (c)  enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (b);

                     (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:

                     (c)  the first person is the communicator of the words, sounds or signals; or

                     (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:

                     (c)  entering premises without permission from the owner or occupier of the premises; or

                     (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 EInspection 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:

                     (c)  cause the Australian Postal Corporation to be informed of the revocation without delay; and

                     (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:

                     (c)  an article that is being delivered by the delivery service provider; or

                     (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;

                     (c)  inspecting and making copies of the contents of 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;

                     (c)  inspecting and making copies of the contents of 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 FForeign 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:

                     (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;

                     (c)  enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (b);

                     (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.

          (3B)  If, for the purposes of subsection (3A):

                     (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.

             (4)  Subsection (3) 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 authorising the doing of acts or things referred to in subsection 27(2) or (3), 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 authorising the doing of acts or things referred to in subsection 27(2) or (3); and

                     (b)  the Director‑General is informed under section 32 that the warrant has been revoked;

the Director‑General must:

                     (c)  cause the Australian Postal Corporation to be informed of the revocation without delay; and

                     (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 pursuant to a warrant under this section authorising the doing of acts or things referred to in subsection 27(2) or (3) 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 pursuant to, or for the purposes of, a warrant under this section.

             (9)  The Director‑General shall not request the issue of a warrant under this section for the purpose of collecting information concerning an Australian citizen or a permanent resident.

           (10)  The reference in subsection (1) to conditions or restrictions includes a reference to conditions or restrictions designed to minimise the obtaining by the Organisation, pursuant to a warrant issued under that subsection, of information that is not publicly available concerning Australian citizens or permanent residents, or to minimise the retention of information of that kind.

27B  Performance of other functions under paragraph 17(1)(e)

                   If:

                     (a)  the Director‑General gives a notice in writing to the Minister (the authorising Minister) requesting the authorising Minister to authorise the Organisation to obtain foreign intelligence in relation to a matter specified in the notice; and

                     (b)  the authorising 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 authorising Minister may, by writing signed by the authorising Minister, authorise the Organisation to obtain the intelligence in relation to the matter.

Subdivision GIdentified person warrants

27C  Issue of identified person warrants

Issue of 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 an identified person warrant in relation to a particular person.

Test for issue of warrant

             (2)  The Minister is only to issue an identified person warrant in relation to the person if he or she is satisfied that:

                     (a)  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

                     (b)  the issuing of the warrant in relation to the person will, or is likely to, substantially assist the collection of intelligence relevant to security.

Requirements for warrant

             (3)  The identified person warrant must:

                     (a)  be signed by the Minister; and

                     (b)  identify the person:

                              (i)  if the name of the person is known—by specifying the person’s name; or

                             (ii)  otherwise—by including other details sufficient to identify the person; and

                     (c)  give conditional approval for the Organisation to do one or more of the following:

                              (i)  access records or other things in or on premises;

                             (ii)  access data held in computers;

                            (iii)  use one or more kinds of surveillance devices;

                            (iv)  access postal articles that are in the course of the post;

                             (v)  access articles that are being delivered by a delivery service provider.

Note:          Conditional approval does not, of itself, authorise the Organisation to do things under an identified person warrant. Things can only be done under the warrant if the Organisation is subsequently authorised to do those things: see sections 27D to 27H.

Duration of warrant

             (4)  An identified person 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

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

Warrant may be subject to restrictions or conditions

             (6)  An identified person warrant is subject to any restrictions or conditions specified in it.

27D  Authority under identified person warrant—search of premises and persons

             (1)  This section applies if an identified person warrant in relation to a person (the identified person) gives conditional approval for the Organisation to access records or other things in or on premises.

Things that may be authorised under warrant

             (2)  Subject to subsection (3), the Minister or the Director‑General may, on request, authorise the Organisation to do one or more of the following things under the identified person warrant in relation to one or more specified premises (the subject premises):

                     (a)  enter the subject premises;

                     (b)  enter any premises for the purposes of gaining entry to or exiting the subject premises;

                     (c)  search the subject premises for the purpose of finding records or other things relevant to the prejudicial activities of the identified person;

                     (d)  open any safe, box, drawer, parcel, envelope or other container in or on the premises in which there is reasonable cause to believe that records or other things relevant to the prejudicial activities of the identified person may be found;

                     (e)  conduct an ordinary search or a frisk search of the identified person or any other person if:

                              (i)  the person is at or near the subject premises when the authority given by this subsection is exercised; and

                             (ii)  there is reasonable cause to believe that the person has, on his or her person, records or other things that are relevant to the prejudicial activities of the identified person;

                      (f)  inspect or otherwise examine any records or other things so found, and make 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;

                     (g)  remove and retain any record or other thing so found, for the purposes of:

                              (i)  inspecting or examining it; and

                             (ii)  making copies or transcripts of it;

                     (h)  if there is reasonable cause to believe that data relevant to the prejudicial activities of the identified person may be accessible by using a computer or other electronic equipment, or a data storage device, brought to or found on the subject premises—use the computer, equipment or device for the purpose of obtaining access to any such data and, if necessary to achieve that purpose, add, copy, delete or alter other data in the computer, equipment or device;

                      (i)  if paragraph (h) applies—use the computer, equipment or device to do any of the following:

                              (i)  inspect and examine any data to which access has been obtained;

                             (ii)  convert 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)  copy 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 remove the device;

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

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

Test for authorisation

             (3)  The Minister or the Director‑General is only to give an authorisation under subsection (2) if the Minister or the Director‑General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant in relation to the subject premises will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.

Additional rules applying to authorisations

             (4)  An ordinary search or frisk search of a person that is authorised under paragraph (2)(e) must, if practicable, be conducted by a person of the same sex as the person being searched.

             (5)  A record or other thing retained as mentioned in paragraph (2)(g) 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.

Certain acts not authorised

             (6)  Paragraph (2)(e) does not authorise a strip search or a search of a person’s body cavities.

             (7)  Paragraphs (2)(h) to (k) do 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 the things authorised under one or more of those paragraphs; or

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

27E  Authority under identified person warrant—computer access

             (1)  This section applies if an identified person warrant in relation to a person (the identified person) gives conditional approval for the Organisation to access data held in computers.

Things that may be authorised under warrant

             (2)  Subject to subsection (4), the Minister or the Director‑General may, on request, authorise the Organisation to do one or more of the following things under the identified person warrant in relation to a computer (the target computer):

                     (a)  enter specified premises for the purposes of doing the things authorised under this subsection;

                     (b)  enter any premises for the purposes of gaining entry to or exiting the specified premises;

                     (c)  use:

                              (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 prejudicial activities of the identified person and is held in the target computer at any time while the authorisation is in force and, if necessary to achieve that purpose, add, copy, delete or alter other data in the target computer;

                     (d)  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—use any other computer or a communication in transit for the purpose referred to in paragraph (c) and, if necessary to achieve that purpose, add, copy, delete or alter other data in the computer or the communication in transit;

                     (e)  copy 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;

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

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

Target computer

             (3)  For the purposes of subsection (2), the target computer may be any one or more of the following:

                     (a)  a particular computer;

                     (b)  a computer on particular premises;

                     (c)  a computer associated with, used by or likely to be used by a person (whose identity may or may not be known).

Test for authorisation

             (4)  The Minister or the Director‑General is only to give an authorisation under subsection (2) if the Minister or the Director‑General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant in relation to the target computer will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.

Certain acts not authorised

             (5)  Subsection (2) 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 authorised under subsection (2); or

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

27F  Authority under identified person warrant—surveillance devices

             (1)  This section applies if an identified person warrant in relation to a person (the identified person) gives conditional approval for the Organisation to use one or more kinds of surveillance devices.

Things that may be authorised under warrant

             (2)  Subject to subsection (3), the Minister or the Director‑General may, on request, authorise the Organisation to do one or more of the following things under the identified person warrant:

                     (a)  install, use and maintain surveillance devices of the kind specified in the conditional approval to:

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

                             (ii)  track the identified person;

                     (b)  install, use and maintain surveillance devices of the kind specified in the conditional approval:

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

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

                     (c)  enter the premises referred to in paragraph (b) for any of the purposes referred to in paragraph (a) or (b) or in subsection 26B(4), (5) or (6) (as those subsections apply because of this section);

                     (d)  install, use and maintain surveillance devices of the kind specified in the conditional approval in or on any object used or worn, or likely to be used or worn, by the identified person;

                     (e)  enter into or onto, or alter, an object referred to in paragraph (d);

                      (f)  enter any premises in which an 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 26B(4), (5) or (6) (as those subsections apply because of this section);

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

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

Test for authorisation

             (3)  The Minister or the Director‑General is only to give an authorisation under subsection (2) if the Minister or the Director‑General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.

             (4)  If an authorisation is given under subsection (2) in relation to a surveillance device, the identified person warrant under which the authorisation is given also authorises the Organisation to do the things mentioned in subsection 26B(4) in relation to the device.

             (5)  If the Organisation installs or uses a surveillance device under the identified person warrant, the Organisation is authorised to do the things mentioned in subsections 26B(5) and (6) in relation to the device.

             (6)  For the purposes of subsections (4) and (5) of this section, section 26B applies as if references in that section to a surveillance device warrant were references to an identified person warrant.

27G  Authority under identified person warrant—inspection of postal articles

             (1)  This section applies if an identified person warrant in relation to a person (the identified person) gives conditional approval for the Organisation to access postal articles while the articles are in the course of the post.

Things that may be authorised under warrant

             (2)  Subject to subsection (4), the Minister or the Director‑General may, on request, authorise the Organisation to do one or more of the things mentioned in subsection (3) under the identified person warrant in relation to any of the following:

                     (a)  articles posted by or on behalf of the identified person;

                     (b)  articles addressed to the identified person;

                     (c)  articles reasonably suspected by a person authorised to exercise the authority of the Organisation under the warrant to be intended to be received by the identified person.

             (3)  The things are as follows:

                     (a)  inspect and make copies of the articles, or the covers of the articles;

                     (b)  open the articles;

                     (c)  inspect and make copies of the contents of the articles;

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

Test for authorisation

             (4)  The Minister or the Director‑General is only to give an authorisation under subsection (2) if the Minister or the Director‑General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.

Rules relating to the Australian Postal Corporation

             (5)  If an authorisation is given under this section, the Director‑General must, as soon as practicable:

                     (a)  inform the Australian Postal Corporation of that fact; and

                     (b)  give a certified copy of the authorisation to the Australian Postal Corporation.

             (6)  If either of the following is revoked:

                     (a)  an authorisation under this section;

                     (b)  the identified person warrant under which the authorisation is given;

the Director‑General must:

                     (c)  inform the Australian Postal Corporation of that fact; and

                     (d)  give a certified copy of the instrument of revocation to the Australian Postal Corporation.

             (7)  The Australian Postal Corporation must provide all reasonable assistance to a person acting in accordance with an authorisation under this section.

Relationship with other laws

             (8)  Nothing in Part VIIA of the Crimes Act 1914 or the Australian Postal Corporation Act 1989 prohibits the doing of anything under or for the purposes of an authorisation under this section.

27H  Authority under identified person warrant—inspection of delivery articles

             (1)  This section applies if an identified person warrant in relation to a person (the identified person) gives conditional approval for the Organisation to access articles while the articles are being delivered by a delivery service provider.

Things that may be authorised under warrant

             (2)  Subject to subsection (4), the Minister or the Director‑General may, on request, authorise the Organisation to do one or more of the things mentioned in subsection (3) in relation to any of the following:

                     (a)  articles posted by or on behalf of the identified person;

                     (b)  articles addressed to the identified person;

                     (c)  articles reasonably suspected by a person authorised to exercise the authority of the Organisation under the warrant to be intended to be received by the identified person.

             (3)  The things are as follows:

                     (a)  inspect and make copies of the articles, or the covers of the articles;

                     (b)  open the articles;

                     (c)  inspect and make copies of the contents of the articles;

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

Test for authorisation

             (4)  The Minister or the Director‑General is only to give an authorisation under subsection (2) if the Minister or the Director‑General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.

Definitions

             (5)  In this section:

article has the same meaning as in section 27AA.

delivery service provider has the same meaning as in section 27AA.

27J  Authority under identified person warrants—general rules

Requests for authorisations

             (1)  A request for an authorisation under this Subdivision may be made:

                     (a)  if the request is to the Minister—by the Director‑General; or

                     (b)  if the request is to the Director‑General—by an ASIO employee or an ASIO affiliate.

             (2)  The request must specify the facts and other grounds on which the person making the request considers it necessary that the authorisation should be given.

Requirements for authorisations

             (3)  An authorisation under this Subdivision:

                     (a)  must be in writing; and

                     (b)  must identify the identified person warrant under which the authorisation is given; and

                     (c)  must specify:

                              (i)  for an authorisation under section 27D (search of premises or persons)—the subject premises; and

                             (ii)  for an authorisation under section 27E (computer access)—the target computer; and

                            (iii)  the thing or things that are authorised to be done; and

                            (iv)  the restrictions or conditions (if any) to which the authorisation is subject; and

                             (v)  the period during which the authorisation is in force; and

                     (d)  must authorise the use of any force against persons and things that is necessary and reasonable to do the things covered by the authorisation; and

                     (e)  if the authorisation authorises entering premises—must 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.

             (4)  A restriction or condition specified in an authorisation must not be inconsistent with any restrictions or conditions specified in the identified person warrant under which the authorisation is given.

             (5)  For the purposes of subparagraph (3)(c)(v), the period:

                     (a)  in the case of an authorisation under section 27D (search of premises and persons)—must not be more than 90 days; and

                     (b)  in any case—must not end after the end of the period for which the identified person warrant under which the authorisation is given is in force.

When authorisations cease to be in force

             (6)  An authorisation under this Subdivision ceases to be in force at the earliest of the following times:

                     (a)  the time the identified person warrant under which the authorisation is given ceases to be in force;

                     (b)  the time it is revoked by the Minister or the Director‑General;

                     (c)  the time specified in the authorisation.

Other matters

             (7)  To avoid doubt, for the purposes of this Act, the authority conferred by an identified person warrant includes the authority conferred by an authorisation under this Subdivision under the warrant.

             (8)  To avoid doubt, nothing in this Subdivision prevents 2 or more authorisations under this Subdivision from being given under the same identified persons warrant at any time while the warrant is in force.

             (9)  An authorisation under this Subdivision is not a legislative instrument.

Subdivision HGeneral provisions relating to warrants

28  Request for warrant to specify grounds

                   A request by the Director‑General for the issue of a warrant under this Division shall specify the facts and other grounds on which the Director‑General considers it necessary that the warrant should be issued and (where appropriate) the grounds on which the Director‑General suspects a person of being engaged in, or of being likely to engage in, activities prejudicial to security.

29  Issue of certain warrants by Director‑General in emergency

             (1)  Where:

                     (a)  the Director‑General has forwarded or made a request to the Minister for the issue of a warrant under section 25, 25A, 26,  27 or 27AA;

                     (b)  the Minister has not, to the knowledge of the Director‑General, issued, or refused to issue, a warrant as a result of the request and has not, within the preceding period of 3 months, refused to issue a substantially similar warrant;

                     (c)  the Director‑General has not, within the preceding period of 3 months, issued a substantially similar warrant; and

                     (d)  the Director‑General is satisfied:

                              (i)  that the facts of the case would justify the issue of a warrant by the Minister; and

                             (ii)  that, if the action to be authorized by the warrant does not commence before a warrant can be issued and made available by the Minister, security will be, or is likely to be, seriously prejudiced;

the Director‑General may issue a warrant signed by the Director‑General of the kind that could be issued by the Minister in pursuance of the request.

             (2)  A warrant under this section shall specify the period for which it is to remain in force, being a period that does not exceed 48 hours, but may be revoked by the Minister at any time before the expiration of the period so specified.

             (3)  Where the Director‑General issues a warrant under this section, the Director‑General shall forthwith furnish to the Minister:

                     (a)  a copy of the warrant; and

                     (b)  a statement of the grounds on which the Director‑General is satisfied as to the matter referred to in subparagraph (1)(d)(ii).

             (4)  The Director‑General must, within 3 working days after issuing a warrant under this section, give a copy of the warrant to the Inspector‑General of Intelligence and Security.

29A  Variation of warrants issued under this Division

             (1)  The Minister may, on request by the Director‑General, vary a warrant issued under this Division (other than under section 29).

             (2)  The variation must be in writing.

             (3)  If the variation extends, or further extends, the period during which the warrant is in force, the total period during which the warrant is in force must not exceed:

                     (a)  for a warrant issued under section 25—90 days; or

                     (b)  for a warrant issued under section 25A, 26, 27, 27AA or 27C—6 months.

             (4)  The request by the Director‑General must specify:

                     (a)  the facts and other grounds on which the Director‑General considers it necessary that the warrant should be varied; and

                     (b)  where appropriate—the grounds on which the Director‑General suspects a person of being engaged in or reasonably suspected by the Director‑General of being engaged in, or of being likely to engage in, activities prejudicial to security.

             (5)  A warrant may be varied more than once under this section.

30  Discontinuance of action before expiration of warrant

             (1)  Subject to subsection (3), if the Director‑General is satisfied that the grounds on which a warrant under this Division was issued have ceased to exist, the Director‑General must, as soon as practicable:

                     (a)  inform the Minister of that fact; and

                     (b)  take such steps as are necessary to ensure that action under the warrant is discontinued.

             (2)  For the purposes of paragraph (1)(b), action under a warrant:

                     (a)  includes action under an authorisation given under an identified person warrant; but

                     (b)  does not include the recovery of a surveillance device or any enhancement equipment in relation to the device.

             (3)  If:

                     (a)  a surveillance device warrant was issued in relation to more than one of the matters mentioned in paragraph 26(2)(a); and

                     (b)  the grounds on which the warrant was issued continue to exist for at least one of those matters;

subsection (1) applies only in relation to the matters for which the grounds have ceased to exist.

31  Certain records obtained under a warrant to be destroyed

                   Where:

                     (a)  by virtue of a warrant under this Division, a record or copy has been made;

                     (b)  the record or copy is in the possession or custody, or under the control, of the Organisation; and

                     (c)  the Director‑General is satisfied that the record or copy is not required for the purposes of the performance of functions or exercise of powers under this Act;

the Director‑General shall cause the record or copy to be destroyed.

31A  Notification requirements in relation to the use of force under warrant

             (1)  This section applies if a warrant issued under this Division authorises the use of force against persons to do the things authorised by the warrant.

             (2)  The Director‑General must cause the Minister and the Inspector‑General of Intelligence and Security to be notified if such force is used against a person in the execution of the warrant.

             (3)  The notification must be given:

                     (a)  in writing; and

                     (b)  as soon as practicable after such force is used.

32  Certain action in relation to requests and warrants

             (1)  Where the Director‑General makes a request, otherwise than in writing, for the issue of a warrant under this Division, the Director‑General shall forthwith forward to the Minister a request in writing for the issue of a warrant.

             (2)  Where the Minister issues or revokes a warrant under this Division, the Minister shall:

                     (a)  cause the Director‑General to be informed forthwith of the issue of the warrant or of the revocation, as the case may be; and

                     (b)  cause the warrant or the instrument of revocation, as the case may be, to be forwarded as soon as practicable to the Director‑General.

             (3)  The Minister shall record on each request in writing for the issue of a warrant under this Division received by the Minister from the Director‑General the Minister’s decision with respect to the request and shall cause the request to be returned to the Director‑General.

             (4)  The Director‑General shall cause to be retained in the records of the Organisation all warrants issued by the Director‑General under this Division and all warrants and instruments of revocation received by the Director‑General from, and all requests and other documents returned to the Director‑General by, the Minister under this Division.

33  Relationship with other laws

Computer access—relationship with the Telecommunications (Interception and Access) Act 1979

             (1)  Nothing in section 25A, 27A or 27E, or in a warrant or authorisation under those sections, authorises, for the purposes of the Telecommunications (Interception and Access) Act 1979, the interception of a communication passing over a telecommunications system operated by a carrier or a carriage service provider.

Listening devices—relationship with the Telecommunications (Interception and Access) Act 1979

             (2)  Nothing in section 26B, 27A or 27F, or in a warrant or authorisation under those sections, applies to or in relation to the use of a listening device for a purpose that would, for the purposes of the Telecommunications (Interception and Access) Act 1979, constitute the interception of a communication passing over a telecommunications system operated by a carrier or a carriage service provider.

Surveillance devices—interaction with other laws

             (3)  Despite any other law of the Commonwealth, a State or a Territory (including the common law), a person acting on behalf of the Organisation does not act unlawfully by installing, using or maintaining a surveillance device if the person does so:

                     (a)  in accordance with a warrant issued under section 26, 27A or 27C; or

                     (b)  in accordance with subsection 26B(5) or (6), section 26C, 26D, or 26E, or subsection 27A(3A) or (3B) or 27F(5).

34  Director‑General to report to Minister

             (1)  The Director‑General shall furnish to the Minister in respect of each warrant issued under this Division a report in writing on the extent to which the action taken under the warrant has assisted the Organisation in carrying out its functions.

             (2)  If:

                     (a)  the warrant was issued under section 25, 25A, 27A, 27C or 29; and

                     (b)  a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant;

the report must also include details of anything done that materially interfered with, interrupted or obstructed the lawful use by other persons of a computer or other electronic equipment, or a data storage device.

34AA  Evidentiary certificates

             (1)  Subject to subsection (2), the Director‑General or a Deputy Director‑General may issue a written certificate setting out such facts as he or she considers relevant with respect to acts or things done by, on behalf of, or in relation to, the Organisation:

                     (a)  in connection with a relevant warrant; or

                     (b)  in accordance with a relevant authorising provision.

             (2)  A certificate may be issued with respect to acts or things done in connection with:

                    (aa)  a warrant issued under section 25, but only if the warrant authorises the doing of acts or things referred to in paragraph 25(5)(a), (b), (c) or (d), and only with respect to those acts or things; or

                     (a)  a warrant issued under section 27A or 29, but only if the warrant authorises the doing of acts or things referred to in subsection 25(5) or section 25A or 26B, and only with respect to those acts or things; or

                     (b)  a warrant issued under section 27C, but only if acts or things are authorised under paragraphs 27D(2)(h) to (k) or section 27E or 27F under the warrant, and only with respect to those acts or things.

             (3)  Without limiting subsection (1), the certificate may set out one or more of the following:

                     (a)  if premises were entered under the relevant warrant or relevant authorising provision:

                              (i)  details of the premises; or

                             (ii)  the time of day or night the premises were entered;

                     (b)  if data was accessed under the relevant warrant or relevant authorising provision—details of the computer, telecommunications facility, electronic equipment, data storage device or communication in transit used for the purpose of obtaining such access;

                     (c)  if the warrant is a surveillance device warrant—the matters required to be specified under section 26A for the warrant;

                     (d)  if one or more surveillance devices were installed, used or maintained under the relevant warrant or relevant authorising provision:

                              (i)  details of the installation, use or maintenance of the surveillance device or devices; or

                             (ii)  details of the installation, use or maintenance of any enhancement equipment in relation to the surveillance device; or

                            (iii)  details of the processes and procedures employed to use the surveillance device or devices, or any enhancement equipment; or

                            (iv)  details of acts or things done for the purposes of recovering the surveillance device or devices, or any enhancement equipment;

                     (e)  details of things done under the relevant warrant or relevant authorising provision that were reasonably necessary to conceal the fact that things were done under the relevant warrant or relevant authorising provision;

                      (f)  details of persons who exercised the authority given by the relevant warrant or relevant authorising provision;

                     (g)  details of things done under the relevant warrant or relevant authorising provision that were reasonably incidental to any of the acts or things done by, on behalf of, or in relation to, the Organisation in connection with the relevant warrant or relevant authorising provision.

             (4)  In a proceeding, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.

             (5)  In this section:

proceeding means:

                     (a)  a proceeding or proposed proceeding in a federal court, or in a court of a State or Territory; or

                     (b)  a proceeding or proposed proceeding (including a hearing or examination, or proposed hearing or examination) by or before:

                              (i)  a tribunal in Australia; or

                             (ii)  any other body, authority or person in Australia having power to hear or examine evidence.

relevant authorising provision means subsection 26B(5) or (6), section 26C, 26D or 26E or subsection 27A(3A) or (3B) or 27F(5).

relevant warrant means a warrant issued under section 25, 25A, 26, 27A, 27C or 29.

Division 3Special powers relating to terrorism offences

Subdivision APreliminary

34A  Definitions

                   In this Division:

complaints agency means an Ombudsman, agency or body:

                     (a)  that is appointed or established by a law of a State or Territory; and

                     (b)  that is permitted or required to investigate complaints about the police force or police service of the State or Territory;

other than an agency or body prescribed by the regulations for the purposes of this definition.

issuing authority means:

                     (a)  a person appointed under section 34AB; or

                     (b)  a member of a class of persons declared by regulations made for the purposes of that section to be issuing authorities.

lawyer means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.

police officer means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

prescribed authority means a person appointed under section 34B.

record has the same meaning as in Division 2.

superior court means:

                     (a)  the High Court; or

                     (b)  the Federal Court of Australia; or

                     (c)  the Family Court of Australia or of a State; or

                     (d)  the Supreme Court of a State or Territory; or

                     (e)  the District Court (or equivalent) of a State or Territory.

34AB  Issuing authorities

             (1)  The Minister may, by writing, appoint as an issuing authority a person who is a Judge.

             (2)  The Minister must not appoint a person unless:

                     (a)  the person has, by writing, consented to being appointed; and

                     (b)  the consent is in force.

             (3)  The regulations may declare that persons in a specified class are issuing authorities.

             (4)  The regulations may specify a class of persons partly by reference to the facts that the persons have consented to being issuing authorities and their consents are in force.

34B  Prescribed authorities

             (1)  The Minister may, by writing, appoint as a prescribed authority a person who has served as a judge in one or more superior courts for a period of 5 years and no longer holds a commission as a judge of a superior court.

             (2)  If the Minister is of the view that there is an insufficient number of people to act as a prescribed authority under subsection (1), the Minister may, by writing, appoint as a prescribed authority a person who is currently serving as a judge in a State or Territory Supreme Court or District Court (or an equivalent) and has done so for a period of at least 5 years.

             (3)  If the Minister is of the view that there are insufficient persons available under subsections (1) and (2), the Minister may, by writing, appoint as a prescribed authority a person who holds an appointment to the Administrative Appeals Tribunal as President or Deputy President and who is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.

             (4)  The Minister must not appoint a person under subsection (1), (2) or (3) unless:

                     (a)  the person has by writing consented to being appointed; and

                     (b)  the consent is in force.

34C  Written statement of procedures

             (1)  The Director‑General may prepare a written statement of procedures to be followed in the exercise of authority under warrants issued under this Division.

Consultation

             (2)  The Director‑General must consult the following persons about the preparation of the statement:

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

                     (b)  the Commissioner of Police appointed under the Australian Federal Police Act 1979.

Approval by Minister

             (3)  The Director‑General must give the statement to the Minister for approval.

             (4)  The Minister must approve or refuse to approve the statement.

Approved statement is a legislative instrument

             (5)  A statement prepared by the Director‑General and approved by the Minister is a legislative instrument made by the Minister on the day on which the statement is approved, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the statement.

Note:          Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the statement: see regulations made for the purposes of paragraph 54(2)(b) of that Act.

Briefing of Parliamentary Joint Committee on Intelligence and Security

             (6)  The Director‑General must brief the Parliamentary Joint Committee on Intelligence and Security on the statement after it is approved by the Minister. The briefing may be done orally or in writing.

Subdivision BQuestioning warrants

34D  Request for questioning warrant

Seeking of Minister’s consent to request for warrant

             (1)  The Director‑General may seek the Minister’s consent to request the issue of a warrant under section 34E in relation to a person.

             (2)  To avoid doubt, this section operates in relation to a request for the issue of a warrant under section 34E in relation to a person, even if a request for the issue of a warrant under this Division has previously been made in relation to the person.

             (3)  In seeking the Minister’s consent, the Director‑General must give the Minister a draft request that includes:

                     (a)  a draft of the warrant to be requested; and

                     (b)  a statement of the facts and other grounds on which the Director‑General considers it necessary that the warrant should be issued; and

                     (c)  a statement of the particulars and outcomes of all previous requests for the issue of a warrant under this Division relating to the person; and

                     (d)  if one or more warrants were issued under this Division as a result of the previous requests—a statement of:

                              (i)  the period for which the person has been questioned under each of those warrants before the draft request is given to the Minister; and

                             (ii)  if any of those warrants authorised the detention of the person—the period for which the person has been detained in connection with each such warrant before the draft request is given to the Minister.

Minister’s consent to making of request

             (4)  The Minister may, by writing, consent to the making of the request, but only if the Minister is satisfied:

                     (a)  that there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and

                     (b)  that, having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued; and

                     (c)  that there is in force under section 34C a written statement of procedures to be followed in the exercise of authority under warrants issued under this Division.

The Minister may make his or her consent subject to changes being made to the draft request.

             (5)  In consenting to the making of a request, the Minister must ensure that the warrant to be requested is to:

                     (a)  permit the person to contact a single lawyer of the person’s choice at any time the person is appearing before a prescribed authority for questioning under the warrant; and

                     (b)  permit the person to contact a single lawyer of the person’s choice (subject to section 34ZO) at any time that is a time the person is in detention in connection with the warrant and a time after:

                              (i)  the person has informed the prescribed authority concerned, in the presence of a person exercising authority under the warrant, of the identity of the lawyer whom the person proposes to contact; and

                             (ii)  a person exercising authority under the warrant has had an opportunity to request the prescribed authority to direct under section 34ZO that the person be prevented from contacting the lawyer.

Note:       Section 34K allows for detention in connection with a warrant issued under section 34E.

Form of request

             (6)  If the Minister has consented under subsection (4), the Director‑General may request the warrant by giving an issuing authority:

                     (a)  a request that is the same as the draft request except for the changes (if any) required by the Minister; and

                     (b)  a copy of the Minister’s consent.

34E  Issue of questioning warrant

Issue of warrant

             (1)  An issuing authority may issue a warrant under this section relating to a person, but only if:

                     (a)  the Director‑General has requested it in accordance with subsection 34D(6); and

                     (b)  the issuing authority is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.

What the warrant authorises

             (2)  The warrant must, in the same terms as the draft warrant given to the issuing authority as part of the request, require a specified person to appear before a prescribed authority for questioning under the warrant immediately after the person is notified of the issue of the warrant, or at a time specified in the warrant.

Contacting a lawyer

             (3)  The warrant must specify that the person is:

                     (a)  permitted to contact a single lawyer of the person’s choice at any time the person is appearing before a prescribed authority for questioning under the warrant; and

                     (b)  permitted to contact a single lawyer of the person’s choice (subject to section 34ZO) at any time that is a time the person is in detention in connection with the warrant and a time after:

                              (i)  the person has informed the prescribed authority concerned, in the presence of a person exercising authority under the warrant, of the identity of the lawyer whom the person proposes to contact; and

                             (ii)  a person exercising authority under the warrant has had an opportunity to request the prescribed authority to direct under section 34ZO that the person be prevented from contacting the lawyer.

Note:       Section 34K allows for detention in connection with a warrant issued under this section.

Warrant must authorise certain actions by the Organisation

             (4)  Also, the warrant must, in the same terms as the draft warrant given to the issuing authority as part of the request:

                     (a)  authorise the Organisation, subject to any restrictions or conditions, to question the person before a prescribed authority by requesting the person to do either or both of the following:

                              (i)  give information that is or may be relevant to intelligence that is important in relation to a terrorism offence;

                             (ii)  produce records or things that are or may be relevant to intelligence that is important in relation to a terrorism offence; and

                     (b)  authorise the Organisation, subject to any restrictions or conditions, to make copies and/or transcripts of a record produced by the person before a prescribed authority in response to a request in accordance with the warrant.

Warrant to be signed and to specify the period it is in force

             (5)  Also, the warrant must:

                     (a)  be signed by the issuing authority who issues it; and

                     (b)  specify the period during which the warrant is to be in force, which must not be more than 28 days.

Subdivision CQuestioning and detention warrants

34F  Request for questioning and detention warrant

Seeking of Minister’s consent to request for warrant

             (1)  The Director‑General may seek the Minister’s consent to request the issue of a warrant under section 34G in relation to a person.

             (2)  To avoid doubt, this section operates in relation to a request for the issue of a warrant under section 34G in relation to a person, even if a request for the issue of a warrant under this Division has previously been made in relation to the person.

             (3)  In seeking the Minister’s consent, the Director‑General must give the Minister a draft request that includes:

                     (a)  a draft of the warrant to be requested; and

                     (b)  a statement of the facts and other grounds on which the Director‑General considers it necessary that the warrant should be issued; and

                     (c)  a statement of the particulars and outcomes of all previous requests for the issue of a warrant under this Division relating to the person; and

                     (d)  if one or more warrants were issued under this Division as a result of the previous requests—a statement of:

                              (i)  the period for which the person has been questioned under each of those warrants before the draft request is given to the Minister; and

                             (ii)  if any of those warrants authorised the detention of the person—the period for which the person has been detained in connection with each such warrant before the draft request is given to the Minister.

Minister’s consent to making of request

             (4)  The Minister may, by writing, consent to the making of the request, but only if the Minister is satisfied:

                     (a)  that there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and

                     (b)  that relying on other methods of collecting that intelligence would be ineffective; and

                     (c)  that there is in force under section 34C a written statement of procedures to be followed in the exercise of authority under warrants issued under this Division; and

                     (d)  that there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained, the person:

                              (i)  may alert a person involved in a terrorism offence that the offence is being investigated; or

                             (ii)  may not appear before the prescribed authority; or

                            (iii)  may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce.

The Minister may make his or her consent subject to changes being made to the draft request.

             (5)  In consenting to the making of a request, the Minister must ensure that the warrant to be requested is to permit the person to contact a single lawyer of the person’s choice (subject to section 34ZO) at any time that:

                     (a)  is a time while the person is in detention in connection with the warrant; and

                     (b)  is after:

                              (i)  the person has been brought before a prescribed authority for questioning; and

                             (ii)  the person has informed the prescribed authority, in the presence of a person exercising authority under the warrant, of the identity of the lawyer whom the person proposes to contact; and

                            (iii)  a person exercising authority under the warrant has had an opportunity to request the prescribed authority to direct under section 34ZO that the person be prevented from contacting the lawyer.

             (6)  If, before the Director‑General seeks the Minister’s consent to the request (the proposed request), the person has been detained under this Division in connection with one or more warrants (the earlier warrants) issued under this Division:

                     (a)  the Minister must take account of those facts in deciding whether to consent; and

                     (b)  the Minister may consent only if the Minister is satisfied that the issue of the warrant to be requested is justified by information that is additional to or materially different from that known to the Director‑General at the time the Director‑General sought the Minister’s consent to request the issue of the last of the earlier warrants issued before the seeking of the Minister’s consent to the proposed request.

This subsection has effect in addition to subsection (4).

Form of request

             (7)  If the Minister has consented under subsection (4), the Director‑General may request the warrant by giving an issuing authority:

                     (a)  a request that is the same as the draft request except for the changes (if any) required by the Minister; and

                     (b)  a copy of the Minister’s consent.

34G  Issue of questioning and detention warrant

Issue of warrant

             (1)  An issuing authority may issue a warrant under this section relating to a person, but only if:

                     (a)  the Director‑General has requested it in accordance with subsection 34F(7); and

                     (b)  the issuing authority is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.

Previous detention

             (2)  If the person has already been detained under this Division in connection with one or more warrants (the earlier warrants) issued under this Division:

                     (a)  the issuing authority must take account of those facts in deciding whether to issue the warrant requested; and

                     (b)  the issuing authority may issue the warrant requested only if the authority is satisfied that:

                              (i)  the issue of that warrant is justified by information additional to or materially different from that known to the Director‑General at the time the Director‑General sought the Minister’s consent to request the issue of the last of the earlier warrants issued before the seeking of the Minister’s consent to the request for the issue of the warrant requested; and

                             (ii)  the person is not being detained under this Division in connection with one of the earlier warrants.

This subsection has effect in addition to subsection (1).

What the warrant authorises

             (3)  The warrant must, in the same terms as the draft warrant given to the issuing authority as part of the request, do the following:

                     (a)  authorise a specified person to be:

                              (i)  taken into custody immediately by a police officer; and

                             (ii)  brought before a prescribed authority immediately for questioning under the warrant; and

                            (iii)  detained under arrangements made by a police officer for the period described in subsection (4);

                     (b)  permit the person to contact identified persons at specified times when the person is in custody or detention authorised by the warrant.

             (4)  The period starts when the person is first brought before a prescribed authority under the warrant and ends at the first time one of the following events happens:

                     (a)  someone exercising authority under the warrant informs the prescribed authority before whom the person is appearing for questioning that the Organisation does not have any further request described in paragraph (7)(a) to make of the person;

                     (b)  section 34R prohibits anyone exercising authority under the warrant from questioning the person under the warrant;

                     (c)  the passage of 168 hours starting when the person was first brought before a prescribed authority under the warrant.

Contacting persons

             (5)  The warrant may identify someone whom the person is permitted to contact by reference to the fact that he or she is a lawyer of the person’s choice or has a particular legal or familial relationship with the person. This does not limit the ways in which the warrant may identify persons whom the person is permitted to contact.

Note 1:       The warrant may identify persons by reference to a class. See subsection 33(3AB) of the Acts Interpretation Act 1901.

Note 2:       Section 34K permits the person to contact the Inspector‑General of Intelligence and Security, the Ombudsman and a person referred to in paragraph 40SB(3)(b) of the Australian Federal Police Act 1979 while the person is in custody or detention, so the warrant must identify them.

Note 3:       A warrant issued under this section must permit the person to contact a single lawyer of the person’s choice, so the warrant must identify such a lawyer.

             (6)  The warrant may specify times when the person is permitted to contact someone identified as a lawyer of the person’s choice by reference to the fact that the times are:

                     (a)  while the person is in detention in connection with the warrant; and

                     (b)  after:

                              (i)  the person has been brought before a prescribed authority for questioning; and

                             (ii)  the person has informed the prescribed authority, in the presence of a person exercising authority under the warrant, of the identity of the lawyer whom the person proposes to contact; and

                            (iii)  a person exercising authority under the warrant has had an opportunity to request the prescribed authority to direct under section 34ZO that the person be prevented from contacting the lawyer.

Warrant must authorise certain actions by the Organisation

             (7)  Also, the warrant must, in the same terms as the draft warrant given to the issuing authority as part of the request:

                     (a)  authorise the Organisation, subject to any restrictions or conditions, to question the person before a prescribed authority by requesting the person to do either or both of the following:

                              (i)  give information that is or may be relevant to intelligence that is important in relation to a terrorism offence;

                             (ii)  produce records or things that are or may be relevant to intelligence that is important in relation to a terrorism offence; and

                     (b)  authorise the Organisation, subject to any restrictions or conditions, to make copies and/or transcripts of a record produced by the person before a prescribed authority in response to a request in accordance with the warrant.

Warrant to be signed and to specify the period it is in force

             (8)  Also, the warrant must:

                     (a)  be signed by the issuing authority who issues it; and

                     (b)  specify the period during which the warrant is to be in force, which must not be more than 28 days.

34H  Person taken into custody under warrant to be immediately brought before prescribed authority

                   If the person is taken into custody by a police officer exercising authority under the warrant, the officer must make arrangements for the person to be immediately brought before a prescribed authority for questioning.

Subdivision DCertain obligations and protections relating to a warrant issued under Subdivision B or C

Note:       Subdivision E sets out other obligations and protections relating to a warrant issued under Subdivision B or C (as well as dealing with other matters).

34J  Prescribed authority must explain warrant

             (1)  When a person first appears before a prescribed authority for questioning under a warrant issued under this Division, the prescribed authority must inform the person of the following:

                     (a)  whether the warrant authorises detention of the person by a police officer and, if it does, the period for which the warrant authorises detention of the person;

                     (b)  what the warrant authorises the Organisation to do;

                     (c)  the effect of section 34L (including the fact that the section creates offences);

                     (d)  the period for which the warrant is in force;

                     (e)  the person’s right to make a complaint orally or in writing:

                              (i)  to the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986 in relation to the Organisation; or

                             (ii)  to the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police;

                            (iii)  to a complaints agency in relation to the police force or police service of the State or Territory concerned;

                    (ea)  the person’s right to give information orally or in writing, under Division 2 of Part V of the Australian Federal Police Act 1979, to a person referred to in subsection 40SA(1) of that Act in relation to the Australian Federal Police;

                      (f)  the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant;

                     (g)  whether there is any limit on the person contacting others and, if the warrant permits the person to contact identified persons at specified times when the person is in custody or detention authorised by the warrant, who the identified persons are and what the specified times are.

             (2)  To avoid doubt, subsection (1) does not apply to a prescribed authority if the person has previously appeared before another prescribed authority for questioning under the warrant.

             (3)  The prescribed authority before whom the person appears for questioning must inform the person of the role of the prescribed authority. In particular, the prescribed authority must inform the person that the role of the prescribed authority includes:

                     (a)  supervising the questioning of the person; and

                     (b)  giving appropriate directions under section 34K in relation to the person.

             (4)  The prescribed authority before whom the person appears for questioning must inform the person of the reason for the presence of each other person who is present at any time during the questioning. However:

                     (a)  the prescribed authority must not name any person except with the consent of the person to be named; and

                     (b)  the obligation to inform the person being questioned about a particular person’s reason for presence need only be complied with once (even if that particular person subsequently returns to the questioning).

             (5)  At least once in every 24‑hour period during which questioning of the person under the warrant occurs, the prescribed authority before whom the person appears for questioning must inform the person of the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant.

Note:          For example, the person may be able to apply to the Federal Court of Australia under subsection 39B(1) of the Judiciary Act 1903, or the High Court of Australia under paragraph 75(v) of the Constitution, for a remedy in relation to the warrant or the treatment of the person in connection with the warrant.

34K  Directions by prescribed authority etc.

Directions relating to detention or further appearance

             (1)  At any time when a person is before a prescribed authority for questioning under a warrant issued under this Division, the authority may give any of the following directions:

                     (a)  a direction to detain the person;

                     (b)  a direction for the further detention of the person;

                     (c)  a direction about any arrangements for the person’s detention;

                     (d)  a direction permitting the person to contact an identified person (including someone identified by reference to the fact that he or she has a particular legal or familial relationship with the person) or any person and to disclose information other than specified information while in contact;

                     (e)  a direction to defer questioning of the person under the warrant;

                      (f)  a direction for the person’s further appearance before the prescribed authority for questioning under the warrant;

                     (g)  a direction that the person be released from detention.

             (2)  The prescribed authority is only to give a direction that:

                     (a)  is consistent with the warrant; or

                     (b)  has been approved in writing by the Minister.

However, the prescribed authority may give a direction that is not covered by paragraph (a) or (b) if he or she has been informed under section 34Q of a concern of the Inspector‑General of Intelligence and Security and is satisfied that giving the direction is necessary to address the concern satisfactorily.

             (3)  To avoid doubt, the mere fact that the warrant is issued under section 34E does not prevent a direction under subsection (1) of this section from being consistent with the warrant for the purposes of subsection (2) of this section.

Note:          A warrant issued under section 34E requires a person to appear before a prescribed authority for questioning under the warrant (rather than authorising the person to be taken into custody, brought before a prescribed authority and detained).

             (4)  The prescribed authority is only to give a direction described in paragraph (1)(a) or (b) if he or she is satisfied that there are reasonable grounds for believing that, if the person is not detained, the person:

                     (a)  may alert a person involved in a terrorism offence that the offence is being investigated; or

                     (b)  may not continue to appear, or may not appear again, before a prescribed authority; or

                     (c)  may destroy, damage or alter a record or thing the person has been requested, or may be requested, in accordance with the warrant, to produce.

             (5)  A direction under subsection (1) must not result in:

                     (a)  a person being detained after the first time when either of the following events happens:

                              (i)  someone exercising authority under the warrant informs the prescribed authority before whom the person is appearing for questioning that the Organisation does not have any further request described in paragraph 34E(4)(a) or 34G(7)(a) to make of the person;

                             (ii)  section 34R prohibits anyone exercising authority under the warrant from questioning the person under the warrant; or

                     (b)  a person’s detention being arranged by a person who is not a police officer.

Note:          Section 34S also provides that this Division does not authorise a person to be detained for a continuous period of more than 168 hours.

Giving effect to directions

             (6)  Directions given by a prescribed authority have effect, and may be implemented or enforced, according to their terms.

             (7)  A police officer may take a person into custody and bring him or her before a prescribed authority for questioning under a warrant issued under this Division if the person fails to appear before a prescribed authority as required by the warrant or a direction given by a prescribed authority under this section.

Direction has no effect on further warrant

             (8)  This section does not prevent any of the following occurring in relation to a person who has been released after having been detained under this Division in connection with a warrant issued under this Division:

                     (a)  an issuing authority issuing a further warrant under this Division;

                     (b)  the person being detained under this Division in connection with the further warrant.

Complaints while appearing before a prescribed authority for questioning

             (9)  If:

                     (a)  a person is appearing before a prescribed authority for questioning under a warrant issued under this Division; and

                     (b)  the person informs the prescribed authority that the person wants:

                              (i)  to make an oral or written complaint of the kind referred to in paragraph 34J(1)(e); or

                             (ii)  to give oral or written information of the kind referred to in paragraph 34J(1)(ea); and

                     (c)  the person requests facilities to make the complaint or give the information; and

                     (d)  the prescribed authority gives a direction under subsection (1) deferring questioning of the person under the warrant;

then anyone exercising authority under the warrant must give the person facilities for making the complaint or giving the information.

Communications while in custody or detention

           (10)  A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.

           (11)  However:

                     (a)  the person may contact anyone whom the warrant under which he or she is detained, or a direction described in paragraph (1)(d), permits the person to contact; and

                     (b)  subsection (10) does not affect the operation of sections 10 and 13 of the Inspector‑General of Intelligence and Security Act 1986 in relation to contact between the person and the Inspector‑General of Intelligence and Security; and

                     (c)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector‑General of Intelligence and Security to make a complaint orally under section 10 of the Inspector‑General of Intelligence and Security Act 1986 if the person requests them; and

                     (d)  subsection (10) does not affect the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the person and the Ombudsman in respect of a complaint, or proposed complaint, about the Australian Federal Police; and

                     (e)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Ombudsman to make a complaint orally under section 7 of the Ombudsman Act 1976 if the person requests them; and

                      (f)  subsection (10) does not affect the operation of section 40SB of the Australian Federal Police Act 1979 in relation to contact between the person and a person referred to in paragraph 40SB(3)(b) of that Act; and

                     (g)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Commissioner of the Australian Federal Police to give information orally under section 40SA of the Australian Federal Police Act 1979 if the person requests them; and

                     (h)  subsection (10) does not affect the person’s right to make a complaint to a complaints agency in relation to the police force or police service of the State or Territory concerned; and

                      (i)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting a complaints agency to make an oral or written complaint of the kind mentioned in paragraph (h) if the person requests them.

Note:          The sections mentioned in paragraphs (11)(b), (d) and (f) give the person an entitlement to facilities for making a written complaint or for giving written information.

34L  Giving information and producing things etc.

             (1)  A person must appear before a prescribed authority for questioning, in accordance with a warrant issued under this Division or a direction given under section 34K.

Penalty:  Imprisonment for 5 years.

             (2)  A person who is before a prescribed authority for questioning under a warrant issued under this Division must not fail to give any information requested in accordance with the warrant.

Penalty:  Imprisonment for 5 years.

             (3)  Subsection (2) does not apply if the person does not have the information.

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

             (4)  A person commits an offence if:

                     (a)  the person is before a prescribed authority for questioning under a warrant issued under this Division; and

                     (b)  the person makes a statement that is, to the person’s knowledge, false or misleading; and

                     (c)  the statement is made in purported compliance with a request for information made in accordance with the warrant.

Penalty:  Imprisonment for 5 years.

             (5)  Subsection (4) does not apply if the statement is not false or misleading in a material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

             (6)  A person who is before a prescribed authority for questioning under a warrant issued under this Division must not fail to produce any record or thing that the person is requested in accordance with the warrant to produce.

Penalty:  Imprisonment for 5 years.

             (7)  Subsection (6) does not apply if the person does not have possession or control of the record or thing.

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

             (8)  For the purposes of subsections (2) and (6), the person may not fail:

                     (a)  to give information; or

                     (b)  to produce a record or thing;

in accordance with a request made of the person in accordance with the warrant, on the ground that the information, or production of the record or thing, might tend to incriminate the person or make the person liable to a penalty.

             (9)  However, the following are not admissible in evidence against the person in criminal proceedings other than proceedings for an offence against this section:

                     (a)  anything said by the person, while before a prescribed authority for questioning under a warrant, in response to a request made in accordance with the warrant for the person to give information;

                     (b)  the production of a record or thing by the person, while before a prescribed authority for questioning under a warrant, in response to a request made in accordance with the warrant for the person to produce a record or thing.

           (10)  A person commits an offence if:

                     (a)  the person has, in accordance with a warrant issued under this Division, been requested to produce a record or thing; and

                     (b)  the person engages in conduct; and

                     (c)  as a result of the conduct, the record or thing is unable to be produced, or to be produced in wholly legible or usable form.

Penalty:  Imprisonment for 5 years.

34M  Interpreter provided at request of prescribed authority

             (1)  This section applies if the prescribed authority before whom a person first appears for questioning under a warrant issued under this Division believes on reasonable grounds that the person is unable, because of inadequate knowledge of the English language or a physical disability, to communicate with reasonable fluency in that language.

             (2)  A person exercising authority under the warrant must arrange for the presence of an interpreter.

             (3)  The prescribed authority must defer informing under section 34J the person to be questioned under the warrant until the interpreter is present.

             (4)  A person exercising authority under the warrant must defer the questioning under the warrant until the interpreter is present.

34N  Interpreter provided at request of person being questioned

             (1)  This section applies if a person appearing before a prescribed authority under a warrant issued under this Division requests the presence of an interpreter.

             (2)  A person exercising authority under the warrant must arrange for the presence of an interpreter, unless the prescribed authority believes on reasonable grounds that the person who made the request has an adequate knowledge of the English language, or is physically able, to communicate with reasonable fluency in that language.

             (3)  If questioning under the warrant has not commenced and the prescribed authority determines that an interpreter is to be present:

                     (a)  the prescribed authority must defer informing under section 34J the person to be questioned under the warrant until the interpreter is present; and

                     (b)  a person exercising authority under the warrant must defer the questioning until the interpreter is present.

             (4)  If questioning under the warrant commences before the person being questioned requests the presence of an interpreter and the prescribed authority determines that an interpreter is to be present:

                     (a)  a person exercising authority under the warrant must defer any further questioning until the interpreter is present; and

                     (b)  when the interpreter is present, the prescribed authority must again inform the person of anything of which he or she was previously informed under section 34J.

34P  Inspector‑General of Intelligence and Security may be present at questioning or taking into custody

                   To avoid doubt, for the purposes of performing functions under the Inspector‑General of Intelligence and Security Act 1986, the Inspector‑General of Intelligence and Security, or an APS employee assisting the Inspector‑General, may be present at the questioning or taking into custody of a person under this Division.

34Q  Suspension of questioning etc. in response to concern of Inspector‑General of Intelligence and Security

             (1)  This section applies if the Inspector‑General of Intelligence and Security is concerned about impropriety or illegality in connection with the exercise or purported exercise of powers under this Division in relation to a person specified in a warrant issued under this Division.

Note:          For example, the Inspector‑General may be concerned because he or she has been present at a questioning under section 34P.

             (2)  When the person is appearing before a prescribed authority for questioning under the warrant, the Inspector‑General may inform the prescribed authority of the Inspector‑General’s concern. If the Inspector‑General does so, he or she must also inform the Director‑General of the concern as soon as practicable afterwards.

             (3)  The prescribed authority must consider the Inspector‑General’s concern.

             (4)  The prescribed authority may give a direction suspending:

                     (a)  questioning of the person under the warrant; or

                     (b)  the exercise of another power under this Division that is specified in the direction;

until the prescribed authority is satisfied that the Inspector‑General’s concern has been satisfactorily addressed.

Note:          The prescribed authority may give directions under section 34K instead or as well. These could:

(a)    deal with the Inspector‑General’s concern in a way satisfactory to the prescribed authority; or

(b)    deal with treatment of the person while questioning is deferred; or

(c)    provide for release of the person from detention if the prescribed authority is satisfied that the Inspector‑General’s concern cannot be satisfactorily addressed within the remainder of the period for which the person may be detained under the warrant.

34R  End of questioning under warrant

             (1)  Anyone exercising authority under a warrant issued under this Division must not question a person under the warrant if the person has been questioned under the warrant for a total of 8 hours, unless the prescribed authority before whom the person was being questioned just before the end of that 8 hours permits the questioning to continue for the purposes of this subsection.

             (2)  Anyone exercising authority under a warrant issued under this Division must not question a person under the warrant if the person has been questioned under the warrant for a total of 16 hours, unless the prescribed authority before whom the person was being questioned just before the end of that 16 hours permits the questioning to continue for the purposes of this subsection.

             (3)  Anyone exercising authority under the warrant may request the prescribed authority to permit the questioning to continue for the purposes of subsection (1) or (2). The request may be made in the absence of:

                     (a)  the person being questioned; and

                     (b)  a legal adviser to that person; and

                     (c)  a parent of that person; and

                     (d)  a guardian of that person; and

                     (e)  another person who meets the requirements of subsection 34ZE(7) in relation to that person; and

                      (f)  anyone the person being questioned is permitted by a direction under section 34K to contact.

             (4)  The prescribed authority may permit the questioning to continue for the purposes of subsection (1) or (2), but only if he or she is satisfied that:

                     (a)  there are reasonable grounds for believing that permitting the continuation will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and

                     (b)  persons exercising authority under the warrant conducted the questioning of the person properly and without delay in the period mentioned in that subsection.

             (5)  The prescribed authority may revoke the permission. Revocation of the permission does not affect the legality of anything done in relation to the person under the warrant before the revocation.

             (6)  Anyone exercising authority under a warrant issued under this Division must not question a person under the warrant if the person has been questioned under the warrant for a total of 24 hours.

Release from detention when further questioning is prohibited

             (7)  If the warrant is issued under section 34G, the prescribed authority must, at whichever one of the following times is relevant, direct under paragraph 34K(1)(g) that the person be released immediately from detention:

                     (a)  at the end of the period mentioned in subsection (1) or (2), if the prescribed authority does not permit, for the purposes of that subsection, the continuation of questioning;

                     (b)  immediately after revoking the permission, if the permission was given but later revoked;

                     (c)  at the end of the period described in subsection (6).

Subsection 34K(2) does not prevent the prescribed authority from giving a direction in accordance with this subsection.

Extra time for questioning with interpreter present

             (8)  Subsections (9), (10), (11) and (12) apply if, because of section 34M or 34N, an interpreter is present at any time while a person is questioned under a warrant issued under this Division.

             (9)  Anyone exercising authority under the warrant must not question the person under the warrant if the person has been questioned under the warrant for a total of 24, 32 or 40 hours, unless the prescribed authority before whom the person was being questioned just before the duration of that questioning reached that total permits the questioning to continue beyond that total for the purposes of this subsection.

           (10)  Subsections (3), (4) and (5) and paragraph (7)(b) apply in relation to permitting, for the purposes of subsection (9), the questioning to continue beyond a total mentioned in subsection (9) in the same way as they apply in relation to permitting the questioning to continue for the purposes of subsection (1) or (2).

           (11)  Subsection (6) and paragraph (7)(c) apply as if that subsection referred to a total of 48 hours (instead of 24 hours).

           (12)  Paragraph (7)(a) applies as if it referred to the time at which the duration of questioning reached the total mentioned in subsection (1), (2) or (9) beyond which the questioning is not permitted to continue.

Time that is not questioning time

           (13)  For the purposes of working out the time that a person has been questioned under a warrant, disregard the following times:

                     (a)  the time taken by a prescribed authority to inform the person of the matters referred to in section 34J;

                     (b)  any time during which a prescribed authority has deferred questioning of the person under the warrant to allow:

                              (i)  the change of a thing in equipment being used to record the questioning of the person; or

                             (ii)  the person to make a complaint of the kind referred to in paragraph 34J(1)(e); or

                           (iia)  the person to give information of the kind referred to in paragraph 34J(1)(ea); or

                            (iii)  the person to contact a lawyer or another person as provided by this Division; or

                            (iv)  the person to receive medical attention; or

                             (v)  the person to engage in religious practices as required by the person’s religion; or

                            (vi)  the person to rest or recuperate;

                     (c)  any time during which a prescribed authority has suspended questioning of the person under the warrant as mentioned in subsection 34Q(4);

                     (d)  any other time determined by a prescribed authority before whom the person appears for questioning.

34S  Person not to be detained for more than 168 hours continuously

                   This Division does not authorise a person to be detained for a continuous period of more than 168 hours.

Subdivision EOther provisions

34T  Humane treatment of person specified in warrant

             (1)  This section applies to a person specified in a warrant issued under this Division while anything is being done in relation to the person under the warrant or a direction given under section 34K.

             (2)  The person must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the warrant or implementing or enforcing the direction.

34U  Entering premises to take person into custody

             (1)  If:

                     (a)  either a warrant issued under section 34G, or subsection 34K(7), authorises a person to be taken into custody; and

                     (b)  a police officer believes on reasonable grounds that the person is on any premises;

the officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.

             (2)  However, if subsection 34K(7) authorises a person to be taken into custody, a police officer must not enter a dwelling house under subsection (1) of this section at any time during the period:

                     (a)  commencing at 9 pm on a day; and

                     (b)  ending at 6 am on the following day;

unless the officer believes on reasonable grounds that it would not be practicable to take the person into custody under subsection 34K(7), either at the dwelling house or elsewhere, at another time.

             (3)  In this section:

dwelling house includes an aircraft, vehicle or vessel, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

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

34V  Use of force in taking person into custody and detaining person

             (1)  A police officer may use such force as is necessary and reasonable in:

                     (a)  taking a person into custody under:

                              (i)  a warrant issued under section 34G; or

                             (ii)  subsection 34K(7); or

                     (b)  preventing the escape of a person from such custody; or

                     (c)  bringing a person before a prescribed authority for questioning under a warrant issued under this Division; or

                     (d)  detaining a person in connection with a warrant issued under this Division.

             (2)  However, a police officer must not, in the course of an act described in subsection (1) in relation to a person, use more force, or subject the person to greater indignity, than is necessary and reasonable to do the act.

             (3)  Without limiting the operation of subsection (2), a police officer must not, in the course of an act described in subsection (1) in relation to a person, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer).

34W  Surrender of travel documents by person in relation to whom warrant is sought

             (1)  If the Director‑General has sought the Minister’s consent to request the issue of a warrant under this Division in relation to a person, then, as soon as practicable after that person is notified of that action and of the effect of this subsection, the person must deliver to an enforcement officer:

                     (a)  all Australian travel documents that:

                              (i)  have been issued to the person; and

                             (ii)  are in the person’s possession or control; and

                     (b)  all passports or other travel documents that:

                              (i)  have been issued to the person by or on behalf of the government of a foreign country; and

                             (ii)  are in the person’s possession or control.

Penalty:  Imprisonment for 5 years.

             (2)  The Director‑General must cause any document delivered under subsection (1) to be returned to the person to whom it was issued, as soon as practicable after the first of the following events:

                     (a)  the Minister refuses to consent to request the issue of a warrant under this Division in relation to the person;

                     (b)  an issuing authority refuses to issue a warrant under this Division in relation to the person;

                     (c)  if a warrant under this Division is issued in relation to the person—the end of the period specified in the warrant as the period during which the warrant is to be in force;

but the Director‑General may cause the document to be returned to that person earlier.

             (3)  Subsection (2) does not require:

                     (a)  the return of a document during the period specified in another warrant, issued in relation to the person under this Division, as the period during which the other warrant is to be in force; or

                     (b)  the return of a document that has been cancelled.

             (4)  If a warrant under this Division is issued in relation to the person, a person approved under subsection 24(1) in relation to the warrant may, after a document of the first‑mentioned person is delivered under subsection (1) and before it is returned under subsection (2):

                     (a)  inspect or examine the document; and

                     (b)  make copies or transcripts of it.

             (5)  In this section:

enforcement officer means any of the following:

                     (a)  a member of the Australian Federal Police;

                     (b)  an officer of the police force of a State or Territory;

                     (c)  an officer of Customs (within the meaning of the Customs Act 1901).

34X  Person in relation to whom warrant is sought must not leave Australia without permission

             (1)  A person commits an offence if:

                     (a)  the person has been notified:

                              (i)  that the Director‑General has sought the Minister’s consent to request the issue of a warrant under this Division in relation to the person; and

                             (ii)  of the effect of this subsection in connection with that action; and

                     (b)  the person leaves Australia; and

                     (c)  the leaving occurs after the person has been notified that the Director‑General has sought the Minister’s consent and of the effect of this subsection in connection with that action, and before the first of the following events:

                              (i)  if the Minister refuses to consent to request the issue of a warrant under this Division in relation to the person—that refusal;

                             (ii)  if an issuing authority refuses to issue a warrant under this Division in relation to the person—that refusal;

                            (iii)  if a warrant under this Division is issued in relation to the person—the end of the period specified in the warrant as the period during which the warrant is to be in force; and

                     (d)  the person does not have written permission from the Director‑General to leave Australia at the time the person leaves Australia.

Penalty:  Imprisonment for 5 years.

             (2)  The Director‑General may give written permission for a person to leave Australia at a specified time. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The Director‑General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

34Y  Surrender of travel documents by person specified in warrant

             (1)  As soon as practicable after the person specified in a warrant issued under this Division is notified of the issue of the warrant and of the effect of this subsection, the person must deliver to someone exercising authority under the warrant:

                     (a)  all Australian travel documents that:

                              (i)  have been issued to the person; and

                             (ii)  are in the person’s possession or control; and

                     (b)  all passports or other travel documents that:

                              (i)  have been issued to the person by or on behalf of the government of a foreign country; and

                             (ii)  are in the person’s possession or control.

Penalty:  Imprisonment for 5 years.

             (2)  The Director‑General must cause any document delivered under subsection (1) to be returned to the person to whom it was issued, as soon as practicable after the end of the period specified in the warrant as the period during which the warrant is to be in force, but may cause the document to be returned to that person earlier.

             (3)  Subsection (2) does not require:

                     (a)  the return of a document during the period specified in another warrant, issued in relation to the person under this Division, as the period during which the other warrant is to be in force; or

                     (b)  the return of a document that has been cancelled.

             (4)  After a document is delivered under subsection (1) and before it is returned under subsection (2), a person approved under subsection 24(1) in relation to the warrant mentioned in subsection (1) of this section may:

                     (a)  inspect or examine the document; and

                     (b)  make copies or transcripts of it.

34Z  Person specified in warrant must not leave Australia without permission

             (1)  A person commits an offence if:

                     (a)  the person has been notified of:

                              (i)  the issue of a warrant under this Division that specifies the person; and

                             (ii)  the effect of this subsection in connection with the warrant; and

                     (b)  the person leaves Australia; and

                     (c)  the leaving occurs:

                              (i)  after the person has been notified of the issue of the warrant and of the effect of this subsection in connection with the warrant; and

                             (ii)  before the end of the period specified in the warrant as the period during which the warrant is to be in force; and

                     (d)  the person does not have written permission from the Director‑General to leave Australia at the time the person leaves Australia.

Penalty:  Imprisonment for 5 years.

             (2)  The Director‑General may give written permission for a person to leave Australia at a specified time. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The Director‑General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

34ZA  Video recording of procedures

             (1)  The Director‑General must ensure that video recordings are made of the following:

                     (a)  a person’s appearance before a prescribed authority for questioning under a warrant issued under this Division;

                     (b)  any other matter or thing that the prescribed authority directs is to be video recorded.

             (2)  The Director‑General must ensure that, if practicable, video recordings are made of any complaint by a person specified in a warrant issued under this Division when he or she is not appearing before a prescribed authority for questioning under the warrant.

34ZB  Power to conduct an ordinary search or a strip search

             (1)  If a person has been detained under this Division, a police officer may:

                     (a)  conduct an ordinary search of the person; or

                     (b)  subject to this section, conduct a strip search of the person.

             (2)  An ordinary search of the person under this section must, if practicable, be conducted by a police officer of the same sex as the person being searched.

             (3)  A strip search may be conducted if:

                     (a)  a police officer suspects on reasonable grounds that the person has a seizable item on his or her person; and

                     (b)  the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item; and

                     (c)  a prescribed authority has approved the conduct of the search.

             (4)  The prescribed authority’s approval may be obtained by telephone, fax or other electronic means.

             (5)  A strip search may also be conducted if the person consents in writing.

             (6)  A medical practitioner may be present when a strip search is conducted, and he or she may assist in the search.

             (7)  If a prescribed authority gives or refuses to give an approval for the purposes of paragraph (3)(c), the prescribed authority must make a record of the decision and of the reasons for the decision.

             (8)  Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (1).

             (9)  Any item:

                     (a)  of a kind mentioned in paragraph (3)(a); or

                     (b)  that is relevant to collection of intelligence that is important in relation to a terrorism offence;

that is found during a search under this section may be seized.

34ZC  Rules for conduct of strip search

             (1)  A strip search under section 34ZB:

                     (a)  must be conducted in a private area; and

                     (b)  must be conducted by a police officer who is of the same sex as the person being searched; and

                     (c)  subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and

                     (d)  must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and

                     (e)  must not be conducted on a person who is under 16; and

                      (f)  if, in a prescribed authority’s opinion, the person being searched is at least 16 but under 18, or is incapable of managing his or her affairs:

                              (i)  may only be conducted if a prescribed authority orders that it be conducted; and

                             (ii)  must be conducted in the presence of a parent or guardian of the person or, if that is not acceptable to the person, in the presence of someone else who can represent the person’s interests and who, as far as is practicable in the circumstances, is acceptable to the person; and

                     (g)  must not involve a search of a person’s body cavities; and

                     (h)  must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has a seizable item on his or her person; and

                      (i)  must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to determine whether the person has a seizable item on his or her person.

             (2)  For the purposes of subparagraph (1)(f)(ii), none of the following can represent the person’s interests:

                     (a)  a police officer;

                     (b)  the Director‑General;

                     (c)  an ASIO employee or an ASIO affiliate;

                     (d)  a person approved under subsection 24(1).

             (3)  A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.

             (4)  Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.

             (5)  If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.

34ZD  Power to remove, retain and copy materials etc.

             (1)  In addition to the things that the Organisation is authorised to do that are specified in a warrant issued under this Division, the Organisation is also authorised:

                     (a)  to remove and retain any record or other thing produced before a prescribed authority in response to a request in accordance with the warrant, 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; and

                     (b)  subject to section 34ZC, to examine any items or things removed from a person during a search of the person under this Division; and

                     (c)  to retain, and make copies of, any item seized under paragraph 34ZB(9)(b); and

                     (d)  to do any other thing reasonably incidental to:

                              (i)  paragraph (a), (b) or (c); or

                             (ii)  any of the things that the Organisation is authorised to do that are specified in the warrant.

             (2)  A police officer may retain for such time as is reasonable any seizable item seized by the officer under paragraph 34ZB(9)(a).

             (3)  A record or other thing, or an item, retained as mentioned in paragraph (1)(a) or (c) may be retained:

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

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

34ZE  Special rules for young people

Rules for persons under 16

             (1)  A warrant issued under this Division has no effect if the person specified in it is under 16.

             (2)  If a person appears before a prescribed authority for questioning as a result of the issue of a warrant under this Division and the prescribed authority is satisfied on reasonable grounds that the person is under 16, the prescribed authority must, as soon as practicable:

                     (a)  give a direction that the person is not to be questioned; and

                     (b)  if the person is in detention—give a direction under paragraph 34K(1)(g) that the person be released from detention.

             (3)  Subsection 34K(2) does not prevent the prescribed authority from giving a direction in accordance with paragraph (2)(b) of this section.

Rules for persons who are at least 16 but under 18

             (4)  If the Director‑General seeks the Minister’s consent to request the issue of a warrant under this Division in relation to a person and the Minister is satisfied on reasonable grounds that the person is at least 16 but under 18, the Minister may consent only if he or she is satisfied on reasonable grounds that:

                     (a)  it is likely that the person will commit, is committing or has committed a terrorism offence; and

                     (b)  the draft warrant to be included in the request will meet the requirements in subsection (6).

             (5)  An issuing authority may issue a warrant under this Division relating to a person whom the authority is satisfied on reasonable grounds is at least 16 but under 18 only if the draft warrant included in the request for the warrant meets the requirements in subsection (6).

Note:          Section 34E or 34G requires that a warrant issued under that section be in the same form as the draft warrant included in the request.

             (6)  If subsection (4) or (5) applies, the draft warrant must:

                     (a)  if the warrant authorises the person to be taken into custody and detained—permit the person to contact, at any time when the person is in custody or detention authorised by the warrant:

                              (i)  a parent or guardian of the person; and

                             (ii)  if it is not acceptable to the person to be questioned in the presence of one of his or her parents or guardians—another person who meets the requirements in subsection (7); and

                     (b)  authorise the Organisation to question the person before a prescribed authority:

                              (i)  only in the presence of a parent or guardian of the person or, if that is not acceptable to the person, of another person who meets the requirements in subsection (7); and

                             (ii)  only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.

Note:          The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34K(1)(f) for the person’s further appearance before the prescribed authority for questioning.

             (7)  The other person must:

                     (a)  be able to represent the person’s interests; and

                     (b)  as far as practicable in the circumstances, be acceptable to the person and to the prescribed authority; and

                     (c)  not be one of the following:

                              (i)  a police officer;

                             (ii)  the Director‑General;

                            (iii)  an ASIO employee or an ASIO affiliate;

                            (iv)  a person approved under subsection 24(1).

             (8)  If a person appears before a prescribed authority for questioning under a warrant issued under this Division and the prescribed authority is satisfied on reasonable grounds that the person is at least 16 but under 18, the prescribed authority must, as soon as practicable:

                     (a)  inform the person that the person:

                              (i)  may request that one of the person’s parents or guardians or one other person who meets the requirements in subsection (7) be present during the questioning; and

                             (ii)  may contact the person’s parents or guardians and another person who meets the requirements in subsection (7), at any time when the person is in custody or detention in connection with the warrant; and

                            (iii)  may contact a single lawyer of the person’s choice when the person is in detention in connection with the warrant; and

                     (b)  if the person requests that one of the person’s parents or guardians be present during the questioning—direct everyone proposing to question the person under the warrant not to do so in the absence of the parent or guardian; and

                     (c)  if the person does not request that one of the person’s parents or guardians be present during the questioning—direct everyone proposing to question the person under the warrant not to do so in the absence of another person (other than the prescribed authority) who meets the requirements in subsection (7); and

                     (d)  direct under paragraph 34K(1)(d) that the person may contact someone described in subparagraph (a)(ii) of this subsection at any time described in that subparagraph; and

                     (e)  direct everyone proposing to question the person under the warrant that questioning is to occur only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.

Note:          The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34K(1)(f) for the person’s further appearance before the prescribed authority for questioning.

             (9)  Subsection 34K(2) does not prevent the prescribed authority from giving a direction in accordance with paragraph (8)(d) of this section.

           (10)  To avoid doubt, paragraphs (6)(b) and (8)(e) do not affect the operation of section 34R.

34ZF  Offences of contravening safeguards

             (1)  A person commits an offence if:

                     (a)  the person has been approved under section 24 to exercise authority conferred by a warrant issued under this Division; and

                     (b)  the person exercises, or purports to exercise, the authority; and

                     (c)  the exercise or purported exercise contravenes a condition or restriction in the warrant on the authority; and

                     (d)  the person knows of the contravention.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person is a police officer; and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes section 34H; and

                     (d)  the person knows of the contravention.

Penalty:  Imprisonment for 2 years.

             (3)  A person commits an offence if:

                     (a)  the person is identified (whether by name, reference to a class that includes the person or some other means) in a direction given by a prescribed authority under paragraph 34K(1)(c), (d), (e), (f) or (g) or subsection 34Q(4), 34ZE(2) or (8) or 34ZR(3) as a person who is to implement the direction; and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the direction; and

                     (d)  the person knows of the contravention.

Penalty:  Imprisonment for 2 years.

             (4)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct contravenes subsection 34K(9), paragraph 34K(11)(c), (e), (g) or (i), subsection 34M(4), paragraph 34N(3)(b) or (4)(a) or subsection 34T(2); and

                     (c)  the person knows of the contravention.

Penalty:  Imprisonment for 2 years.

             (5)  A person commits an offence if:

                     (a)  the person has been approved under section 24 to exercise authority conferred by a warrant issued under this Division; and

                     (b)  the person exercises, or purports to exercise, the authority by questioning another person; and

                     (c)  the questioning contravenes section 34R; and

                     (d)  the person knows of the contravention.

Penalty:  Imprisonment for 2 years.

             (6)  A person (the searcher) commits an offence if:

                     (a)  the searcher is a police officer; and

                     (b)  the searcher conducts a strip search of a person detained under this Division; and

                     (c)  the search is conducted:

                              (i)  without either the approval of a prescribed authority or the consent of the detained person; or

                             (ii)  in a way that contravenes subsection 34ZC(1); and

                     (d)  the searcher knows of the lack of approval and consent or of the contravention.

Penalty:  Imprisonment for 2 years.

             (7)  A person (the searcher) commits an offence if:

                     (a)  the searcher is a police officer who is conducting or has conducted a strip search of a person detained under this Division; and

                     (b)  the searcher engages in conduct; and

                     (c)  the conduct contravenes subsection 34ZC(5); and

                     (d)  the searcher knows of the contravention.

Penalty:  Imprisonment for 2 years.

34ZG  Complaints and information about contravention of procedural statement

             (1)  Contravention of the written statement of procedures in force under section 34C may be the subject of:

                     (a)  a complaint to the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986; or

                     (b)  a complaint to the Ombudsman under the Ombudsman Act 1976; or

                     (c)  information given under Division 2 of Part V of the Australian Federal Police Act 1979 to a person referred to in subsection 40SA(1) of that Act.

             (2)  This section does not limit:

                     (a)  the subjects of complaint under:

                              (i)  the Inspector‑General of Intelligence and Security Act 1986; or

                             (ii)  the Ombudsman Act 1976; or

                     (b)  the subject of information given under Division 2 of Part V of the Australian Federal Police Act 1979.

34ZH  Providing reports to the Minister

                   The Director‑General must give the Minister, for each warrant issued under this Division, a written report on the extent to which the action taken under the warrant has assisted the Organisation in carrying out its functions.

34ZI  Providing information to the Inspector‑General

                   The Director‑General must, as soon as practicable, give the following to the Inspector‑General of Intelligence and Security:

                     (a)  a copy of any draft request given to the Minister under subsection 34D(3) or 34F(3) in seeking the Minister’s consent to request the issue of a warrant under this Division;

                     (b)  a copy of any warrant issued under this Division;

                     (c)  a copy of any video recording made under section 34ZA;

                     (d)  a statement containing details of any seizure, taking into custody, or detention under this Division;

                     (e)  a statement describing any action the Director‑General has taken as a result of being informed of the Inspector‑General’s concern under section 34Q.

34ZJ  Reporting by Inspector‑General on multiple warrants

             (1)  This section imposes requirements on the Inspector‑General of Intelligence and Security if:

                     (a)  a person is detained under this Division in connection with a warrant issued under this Division; and

                     (b)  one or more other warrants (the later warrants) are issued later under section 34G in relation to the person.

             (2)  The Inspector‑General must inspect a copy of the draft request given to the Minister under subsection 34D(3) or 34F(3) for each of the warrants, to determine whether the draft request for each of the later warrants included information described in paragraph 34F(6)(b).

Note:          Paragraph 34F(6)(b) describes information additional to or materially different from that known to the Director‑General at the time the Director‑General sought the Minister’s consent to request the issue of the last warrant that:

(a)    was issued under this Division before the seeking of the Minister’s consent to the request proposed in the draft request; and

(b)    was a warrant in connection with which the person was detained under this Division.

             (3)  The Inspector‑General must report on the outcome of the inspection in his or her annual report for the period in which he or she carries out the examination. For this purpose, annual report means a report referred to in section 35 of the Inspector‑General of Intelligence and Security Act 1986.

34ZK  Discontinuing action before warrants expire

                   If, before a warrant issued under this Division ceases to be in force, the Director‑General is satisfied that the grounds on which the warrant was issued have ceased to exist, the Director‑General must:

                     (a)  inform the Minister, and the issuing authority who issued the warrant, accordingly; and

                     (b)  take such steps as are necessary to ensure that action under the warrant is discontinued.

34ZL  Certain records obtained under warrant to be destroyed

                   The Director‑General must cause a record or copy to be destroyed if:

                     (a)  the record or copy was made because of a warrant issued under this Division; and

                     (b)  the record or copy is in the possession or custody, or under the control, of the Organisation; and

                     (c)  the Director‑General is satisfied that the record or copy is not required for the purposes of the performance of functions or exercise of powers under this Act.

34ZM  Status of issuing authorities and prescribed authorities

             (1)  An issuing authority or prescribed authority has, in the performance of his or her duties under this Division, the same protection and immunity as a Justice of the High Court.

             (2)  If a person who is a member of a court created by the Parliament has under this Division a function, power or duty that is neither judicial nor incidental to a judicial function or power, the person has the function, power or duty in a personal capacity and not as a court or a member of a court.

34ZN  Certain functions and powers not affected

             (1)  This Division does not affect a function or power of the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986.

             (2)  This Division does not affect a function or power of the Ombudsman under the Ombudsman Act 1976 in relation to the Australian Federal Police.

             (3)  This Division does not affect a function or power of a person under Part V of the Australian Federal Police Act 1979.

34ZO  Limit on contact of lawyer of choice

             (1)  If:

                     (a)  a person (the subject) is specified in a warrant issued under section 34E and the person is in detention in connection with the warrant; or

                     (b)  a person (the subject) is specified in a warrant issued under section 34G;

the subject may be prevented from contacting a particular lawyer of the subject’s choice if the prescribed authority concerned so directs.

             (2)  The prescribed authority may so direct only if the authority is satisfied, on the basis of circumstances relating to that lawyer, that, if the subject is permitted to contact the lawyer:

                     (a)  a person involved in a terrorism offence may be alerted that the offence is being investigated; or

                     (b)  a record or thing that the person may be requested in accordance with the warrant to produce may be destroyed, damaged or altered.

             (3)  This section has effect despite paragraph 34K(11)(a).

             (4)  To avoid doubt, subsection (1) does not prevent the subject from choosing another lawyer to contact, but the subject may be prevented from contacting that other lawyer under another application of that subsection.

34ZP  Questioning person in absence of lawyer of person’s choice

             (1)  To avoid doubt, a person before a prescribed authority for questioning under a warrant issued under this Division may be questioned under the warrant in the absence of a lawyer of the person’s choice.

Note:          As the warrant authorises questioning of the person only while the person is before a prescribed authority, the prescribed authority can control whether questioning occurs by controlling whether the person is present before the prescribed authority.

             (2)  This section does not permit questioning of the person by a person exercising authority under the warrant at a time when a person exercising authority under the warrant is required by another section of this Division not to question the person.

Example:    This section does not permit the person to be questioned when a person exercising authority under the warrant is required by section 34M or section 34N to defer questioning because an interpreter is not present.

34ZQ  Involvement of lawyers

             (1)  This section applies if the person (the subject) specified in a warrant issued under this Division contacts another person as a legal adviser as permitted by the warrant or a direction under paragraph 34K(1)(d).

Contact to be able to be monitored

             (2)  The contact must be made in a way that can be monitored by a person exercising authority under the warrant.

             (3)  Subsection (2) does not apply in relation to a warrant issued under section 34E if the contact is in circumstances covered by paragraph 34E(3)(a).

Legal adviser to be given copy of the warrant

             (4)  A person exercising authority under the warrant must give the legal adviser a copy of the warrant. This subsection does not:

                     (a)  require more than one person to give the legal adviser a copy of the warrant; or

                     (b)  entitle the legal adviser to be given a copy of, or see, a document other than the warrant.

Breaks in questioning to give legal advice

             (5)  The prescribed authority before whom the subject is being questioned must provide a reasonable opportunity for the legal adviser to advise the subject during breaks in the questioning.

Note:          The prescribed authority may set breaks between periods of questioning by giving directions under section 34K. Paragraphs 34R(13)(b) to (d) also contain examples of procedural breaks in questioning.

             (6)  The legal adviser must not intervene in questioning of the subject or address the prescribed authority before whom the subject is being questioned, except to request clarification of an ambiguous question.

Breaks in questioning to address prescribed authority

             (7)  During a break in the questioning of the subject, the legal adviser may request the prescribed authority for an opportunity to address the prescribed authority on a matter.

Note:          The prescribed authority may set breaks between periods of questioning by giving directions under section 34K. Paragraphs 34R(13)(b) to (d) also contain examples of procedural breaks in questioning.

             (8)  The prescribed authority must approve or refuse a request under subsection (7).

Removal of legal adviser for disrupting questioning

             (9)  If the prescribed authority considers the legal adviser’s conduct is unduly disrupting the questioning, the authority may direct a person exercising authority under the warrant to remove the legal adviser from the place where the questioning is occurring.

           (10)  If the prescribed authority directs the removal of the legal adviser, the prescribed authority must also direct under paragraph 34K(1)(d) that the subject may contact someone else as a legal adviser. Subsection 34K(2) does not prevent the prescribed authority from giving the direction under paragraph 34K(1)(d) in accordance with this subsection.

If legal adviser also represents young person

           (11)  If section 34ZR also applies to the legal adviser in another capacity in relation to the subject, this section does not apply to conduct of the legal adviser in that other capacity.

34ZR  Conduct of parents etc.

             (1)  This section applies in relation to a person (the representative) who:

                     (a)  is either:

                              (i)  the parent or guardian of a person (the subject) specified in a warrant issued under this Division; or

                             (ii)  another person who meets the requirements in subsection 34ZE(7) in relation to the subject; and

                     (b)  either:

                              (i)  is or has been contacted by the subject as permitted by the warrant or a direction under paragraph 34K(1)(d); or

                             (ii)  is or has been present when the subject was before a prescribed authority for questioning under the warrant.

             (2)  If a prescribed authority considers the representative’s conduct is unduly disrupting questioning of the subject, the authority may direct a person exercising authority under the warrant to remove the representative from the place where the questioning is occurring.

             (3)  If the prescribed authority directs the removal of the representative, the prescribed authority must also:

                     (a)  inform the subject that the subject:

                              (i)  may request that one of the subject’s parents or guardians or one other person who meets the requirements in subsection 34ZE(7), other than the representative, be present during the questioning; and

                             (ii)  may contact a person covered by subparagraph (i) to request the person to be present during the questioning; and

                     (b)  if the subject requests that one of the subject’s parents or guardians, other than the representative, be present during the questioning—direct everyone proposing to question the subject under the warrant not to do so in the absence of the parent or guardian; and

                     (c)  if the subject does not request that one of the subject’s parents or guardians, other than the representative, be present during the questioning—direct everyone proposing to question the subject under the warrant not to do so in the absence of another person (other than the prescribed authority) who meets the requirements in subsection 34ZE(7); and

                     (d)  direct under paragraph 34K(1)(d) that the subject may contact a person covered by subparagraph (a)(i) of this subsection to request the person to be present during the questioning.

Subsection 34K(2) does not prevent the prescribed authority from giving the direction under paragraph 34K(1)(d) in accordance with this subsection.

34ZS  Secrecy relating to warrants and questioning

Before the expiry of the warrant

             (1)  A person (the discloser) commits an offence if:

                     (a)  a warrant has been issued under this Division; and

                     (b)  the discloser discloses information; and

                     (c)  either or both of the following apply:

                              (i)  the information indicates the fact that the warrant has been issued or a fact relating to the content of the warrant or to the questioning or detention of a person in connection with the warrant;

                             (ii)  the information is operational information; and

                     (d)  if subparagraph (c)(ii) applies but subparagraph (c)(i) does not—the discloser has the information as a direct or indirect result of:

                              (i)  the issue of the warrant; or

                             (ii)  the doing of anything authorised by the warrant, by a direction given under subsection 34K(1) in connection with the warrant or by another provision of this Division in connection with the warrant; and

                     (e)  the disclosure occurs before the end of the period specified in the warrant as the period for which the warrant is to be in force; and

                      (f)  the disclosure is not a permitted disclosure.

Penalty:  Imprisonment for 5 years.

In the 2 years after the expiry of the warrant

             (2)  A person (the discloser) commits an offence if:

                     (a)  a warrant has been issued under this Division; and

                     (b)  the discloser discloses information; and

                     (c)  the information is operational information; and

                     (d)  the discloser has the information as a direct or indirect result of:

                              (i)  the issue of the warrant; or

                             (ii)  the doing of anything authorised by the warrant, by a direction given under subsection 34K(1) in connection with the warrant or by another provision of this Division in connection with the warrant; and

                     (e)  the disclosure occurs before the end of the 2 years starting at the end of the period specified in the warrant as the period during which the warrant is to be in force; and

                      (f)  the disclosure is not a permitted disclosure.

Penalty:  Imprisonment for 5 years.

Strict liability

             (3)  Strict liability applies to paragraphs (1)(c) and (2)(c) if the discloser is:

                     (a)  the person (the subject) specified in the warrant; or

                     (b)  a lawyer who has at any time been:

                              (i)  present, as the subject’s legal adviser, at the questioning of the subject under the warrant; or

                             (ii)  contacted for the purpose of the subject obtaining legal advice in connection with the warrant; or

                            (iii)  contacted for the purpose of the subject obtaining representation in legal proceedings seeking a remedy relating to the warrant or the treatment of the subject in connection with the warrant.

Otherwise, the fault element applying to paragraphs (1)(c) and (2)(c) is recklessness.

Note:          For strict liability, see section 6.1 of the Criminal Code. For recklessness, see section 5.4 of the Criminal Code.

Extended geographical jurisdiction—category D

             (4)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2).

Definitions

             (5)  In this section:

operational information means information indicating one or more of the following:

                     (a)  information that the Organisation has or had;

                     (b)  a source of information (other than the person specified in the warrant mentioned in subsection (1) or (2)) that the Organisation has or had;

                     (c)  an operational capability, method or plan of the Organisation.

permitted disclosure means any of the following:

                     (a)  a disclosure made by a person in the course of any of the following:

                              (i)  exercising a power, or performing a function or duty, under this Act;

                             (ii)  doing anything the person is authorised to do by a warrant issued under this Act;

                            (iii)  doing anything the person is required or permitted to do by a direction under subsection 34K(1);

                            (iv)  exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under the Inspector‑General of Intelligence and Security Act 1986, the Ombudsman Act 1976 or Part V of the Australian Federal Police Act 1979;

                             (v)  exercising a power (including a power to make a complaint), or performing a function or duty, under a law of a State or Territory appointing or establishing a complaints agency;

                     (b)  a disclosure that is:

                              (i)  made in the course of the questioning of a person under a warrant issued under this Division; and

                             (ii)  made by a person who is present at the questioning when making the disclosure;

                     (c)  a disclosure to a lawyer for the purpose of:

                              (i)  obtaining legal advice in connection with a warrant issued under this Division; or

                             (ii)  obtaining representation in legal proceedings seeking a remedy relating to such a warrant or the treatment of a person in connection with such a warrant;

                     (d)  a disclosure for the purpose of the initiation, conduct or conclusion (by judgment or settlement) of legal proceedings relating to such a remedy;

                     (e)  a disclosure that is permitted by a prescribed authority to be made;

                      (f)  a disclosure to one or more of the following persons, by the representative mentioned in subsection 34ZR(1), by the subject mentioned in that subsection or by a parent, guardian or sibling of the subject mentioned in that subsection, of information described in paragraph (1)(c) or (2)(c) of this section in relation to the warrant mentioned in that subsection:

                              (i)  a parent, guardian or sibling of the subject;

                             (ii)  the representative;

                            (iii)  the subject;

                            (iv)  a prescribed authority;

                             (v)  a person exercising authority under the warrant;

                            (vi)  the Inspector‑General of Intelligence and Security;

                           (vii)  the Commonwealth Ombudsman;

                          (viii)  a complaints agency;

                     (g)  a disclosure permitted by the Director‑General;

                     (h)  a disclosure permitted by the Minister;

                      (i)  a disclosure prescribed by the regulations.

             (6)  For the purposes of paragraph (e) of the definition of permitted disclosure in subsection (5), a prescribed authority may give written permission, not inconsistent with the regulations (if any), for:

                     (a)  a person contacted as described in subsection 34ZQ(1); or

                     (b)  the representative mentioned in subsection 34ZR(1);

to disclose specified information to a specified person. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The prescribed authority may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

             (7)  For the purposes of paragraph (g) of the definition of permitted disclosure in subsection (5), the Director‑General may give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The Director‑General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

             (8)  For the purposes of paragraph (h) of the definition of permitted disclosure in subsection (5), the Minister may, after obtaining advice from the Director‑General, give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions.

Note 1:       The Minister may, after obtaining advice from the Director‑General, revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       If permission is given subject to a condition and the condition is not met, the permission is not in force.

             (9)  In deciding whether to give permission to a person under subsection (6), (7) or (8), the prescribed authority, the Director‑General or the Minister must take into account:

                     (a)  the person’s family and employment interests to the extent that the prescribed authority, the Director‑General or the Minister is aware of those interests; and

                     (b)  the public interest; and

                     (c)  the risk to security if the permission were given.

This subsection does not limit the matters that may be taken into account.

           (10)  Regulations made for the purposes of paragraph (i) of the definition of permitted disclosure in subsection (5) may prescribe a disclosure by reference to one or more of the following:

                     (a)  the person making the disclosure;

                     (b)  the person to whom the disclosure is made;

                     (c)  the circumstances in which the disclosure is made;

                     (d)  the purpose of the disclosure;

                     (e)  the nature of information disclosed;

                      (f)  an opinion of a specified person about the possible or likely effect of the disclosure.

This subsection does not limit the way in which such regulations may prescribe a disclosure.

Offences apply to original and previously disclosed information

           (11)  To avoid doubt, subsections (1) and (2) apply whether or not the discloser has the information that he or she discloses as a result of a disclosure by someone else.

Relationship with other laws prohibiting disclosure

           (12)  This section has effect in addition to, and does not limit, other laws of the Commonwealth that prohibit the disclosure of information.

Implied freedom of political communication

           (13)  This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

34ZT  Lawyers’ access to information for proceedings relating to warrant

                   The regulations may prohibit or regulate access to information, access to which is otherwise controlled or limited on security grounds, by lawyers acting for a person in connection with proceedings for a remedy relating to:

                     (a)  a warrant issued under this Division in relation to the person; or

                     (b)  the treatment of the person in connection with such a warrant.

34ZU  Rules of Court about proceedings connected with warrants

                   Rules of Court of the High Court or the Federal Court of Australia may make special provision in relation to proceedings for a remedy relating to a warrant issued under this Division or the treatment of a person in connection with such a warrant.

34ZV  Law relating to legal professional privilege not affected

                   To avoid doubt, this Division does not affect the law relating to legal professional privilege.

34ZW  Jurisdiction of State and Territory courts excluded

             (1)  A court of a State or Territory does not have jurisdiction in proceedings for a remedy if:

                     (a)  the remedy relates to a warrant issued under this Division or the treatment of a person in connection with such a warrant; and

                     (b)  the proceedings are commenced while the warrant is in force.

             (2)  This section has effect despite any other law of the Commonwealth (whether passed or made before or after the commencement of this section).

34ZX  Financial assistance

Application for assistance

             (1)  At any time after a person specified in a warrant issued under this Division is notified of the issue of the warrant, the person may apply to the Minister for the provision of assistance under this section in respect of the person’s appearance before a prescribed authority for questioning under the warrant.

Authorisation of assistance

             (2)  The Minister may authorise the provision by the Commonwealth to the person of such financial assistance as the Minister determines.

             (3)  The Minister may authorise the provision of assistance on such conditions (if any) as the Minister determines.

Guidelines

             (4)  The Minister may, in writing, determine guidelines that are to be applied in authorising the provision of assistance under this section.

Limit on assistance

             (5)  This section does not apply in relation to:

                     (a)  any complaint the person makes that is of the kind mentioned in paragraph 34J(1)(e); or

                    (aa)  any information the person gives that is of a kind mentioned in paragraph 34J(1)(ea); or

                     (b)  any remedy the person seeks that is of the kind mentioned in paragraph 34J(1)(f).

34ZY  Instruments are not legislative instruments

                   An instrument made under this Division (other than an instrument made by the Minister under section 34C) is not a legislative instrument.

34ZZ  Cessation of effect of Division

                   This Division ceases to have effect on 7 September 2018.

Division 4Special intelligence operations

35A  Relationship to other laws and matters

             (1)  Subject to subsection (2) and section 35R, this Division is not intended to limit a discretion that a court has:

                     (a)  to admit or exclude evidence in any proceedings; or

                     (b)  to stay criminal proceedings in the interests of justice.

             (2)  In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if:

                     (a)  the person was a participant in a special intelligence operation authorised under this Division acting in the course of the special intelligence operation; and

                     (b)  the criminal activity was special intelligence conduct.

35B  Applications for authorities to conduct special intelligence operations

             (1)  The Director‑General, a senior position‑holder or an ASIO employee may apply to the Minister for an authority to conduct a special intelligence operation on behalf of the Organisation.

             (2)  An application may be made:

                     (a)  in writing signed by the applicant; or

                     (b)  if the applicant reasonably believes that the delay caused by making a written application may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (3)  To avoid doubt, nothing in this Division prevents an application for a special intelligence operation authority being made in respect of a special intelligence operation that has been the subject of a previous application.

Note:          A special intelligence operation authority can be varied, but not so as to extend beyond 12 months—see section 35F.

             (4)  As soon as practicable after making an application in accordance with paragraph (2)(b), the applicant must:

                     (a)  make a written record of the application; and

                     (b)  give a copy of it to the Minister.

35C  Granting of special intelligence operation authorities

             (1)  If:

                     (a)  an application for an authority to conduct a special intelligence operation is made under section 35B; and

                     (b)  the Minister is satisfied that there are reasonable grounds on which to believe that the matters in subsection (2) exist;

the Minister may authorise the special intelligence operation by granting the authority.

             (2)  The matters are as follows:

                     (a)  the special intelligence operation will assist the Organisation in the performance of one or more special intelligence functions;

                     (b)  the circumstances are such as to justify the conduct of a special intelligence operation;

                     (c)  any unlawful conduct involved in conducting the special intelligence operation will be limited to the maximum extent consistent with conducting an effective special intelligence operation;

                     (d)  the special intelligence operation will not be conducted in such a way that a person is likely to be induced to commit an offence against a law of the Commonwealth, a State or a Territory that the person would not otherwise have intended to commit;

                     (e)  any conduct involved in the special intelligence operation will not:

                              (i)  cause the death of, or serious injury to, any person; or

                            (ia)  constitute torture; or

                             (ii)  involve the commission of a sexual offence against any person; or

                            (iii)  result in significant loss of, or serious damage to, property.

             (3)  A special intelligence operation authority may be granted unconditionally or subject to conditions.

             (4)  A special intelligence operation authority may be granted:

                     (a)  by means of a written document signed by the Minister; or

                     (b)  if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written authority may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (5)  If a special intelligence operation authority is granted in accordance with paragraph (4)(b), a written record of the special intelligence operation authority that complies with section 35D must be issued within 7 days.

             (6)  To avoid doubt, nothing in this Division prevents a special intelligence operation authority being granted in respect of a special intelligence operation that has been the subject of a previous special intelligence operation authority.

Note:          A special intelligence operation authority can be varied, but not so as to extend beyond 12 months—see section 35F.

             (7)  The following are not legislative instruments:

                     (a)  a document referred to in paragraph (4)(a);

                     (b)  a written record referred to in subsection (5).

35D  Contents of special intelligence operation authorities

             (1)  A special intelligence operation authority must:

                     (a)  state how the special intelligence operation will assist the Organisation in the performance of one or more special intelligence functions; and

                     (b)  identify the persons authorised to engage in special intelligence conduct for the purposes of the special intelligence operation; and

                     (c)  state a description of the nature of the special intelligence conduct that the persons referred to in paragraph (b) may engage in; and

                     (d)  specify the period of effect of the special intelligence operation authority, being a period not exceeding 12 months; and

                     (e)  specify any conditions to which the conduct of the special intelligence operation is subject; and

                      (f)  state the date and time when the special intelligence operation authority is granted.

             (2)  A person is sufficiently identified for the purposes of paragraph (1)(b) if the person is identified:

                     (a)  by an assumed name under which the person is operating; or

                     (b)  by a code name or code number;

as long as the person’s identity can be matched to the assumed name, code name or code number.

35E  Commencement and duration of special intelligence operation authorities

             (1)  A special intelligence operation authority comes into force at the time the special intelligence operation authority is granted under section 35C.

             (2)  A special intelligence operation authority has effect for the period specified in accordance with paragraph 35D(1)(d) unless:

                     (a)  it is cancelled before the end of the period of effect; or

                     (b)  the period of effect is extended under section 35F.

35F  Variation of special intelligence operation authorities

             (1)  The Minister may vary a special intelligence operation authority on application by the Director‑General, a senior position‑holder or an ASIO employee.

Application for variation

             (2)  An application under subsection (1) may be made:

                     (a)  in writing signed by the applicant; or

                     (b)  if the applicant reasonably believes that the delay caused by making a written application may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (3)  As soon as practicable after making an application in accordance with paragraph (2)(b), the applicant must:

                     (a)  make a written record of the application; and

                     (b)  give a copy of it to the Minister.

Limits on variation

             (4)  The Minister must not vary the special intelligence operation authority unless the Minister:

                     (a)  is satisfied that there are reasonable grounds on which to believe that the special intelligence operation, conducted in accordance with the special intelligence operation authority as varied, will assist the Organisation in the performance of one or more special intelligence functions; and

                     (b)  considers it is appropriate to do so.

             (5)  If a variation extends, or further extends, the period of effect of a special intelligence operation authority, the total period of effect must not be longer than 12 months.

Manner of variation

             (6)  The variation may be made:

                     (a)  by means of a written document signed by the Minister; or

                     (b)  if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written variation may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (7)  If a special intelligence operation authority is varied in accordance with paragraph (6)(b), a written record of the variation must be issued within 7 days.

Authority may be varied more than once

             (8)  A special intelligence operation authority may be varied more than once under this section.

35G  Cancellation of special intelligence operation authorities

             (1)  The Director‑General or a Deputy Director‑General may cancel a special intelligence operation authority at any time and for any reason.

             (2)  A cancellation of a special intelligence operation authority must:

                     (a)  be in writing; and

                     (b)  specify when the cancellation takes effect.

35H  Effect of special intelligence operation authorities

             (1)  A special intelligence operation authority authorises each person who is identified in the special intelligence operation authority to engage in the special intelligence conduct specified in the special intelligence operation authority in respect of that person.

             (2)  The authorisation, in relation to a person identified in the special intelligence operation authority, is for the period of effect of the special intelligence operation authority, unless:

                     (a)  the special intelligence operation authority specifies a shorter period during which the person is so authorised; or

                     (b)  the special intelligence operation authority is varied under section 35F to provide that the person is no longer so authorised; or

                     (c)  the special intelligence operation authority is cancelled before the end of that period.

35J  Defect in a special intelligence operation authority

                   An application for a special intelligence operation authority or variation of such an authority, and any special intelligence operation authority or variation of such an authority granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, special intelligence operation authority or variation in a material particular.

35K  Immunity from liability for special intelligence conduct during special intelligence operations

             (1)  A participant in a special intelligence operation is not subject to any civil or criminal liability for or in relation to conduct if:

                     (a)  the participant engages in the conduct in the course of, and for the purposes of, the special intelligence operation; and

                     (b)  the participant engages in the conduct in accordance with the special intelligence operation authority to conduct the special intelligence operation; and

                     (c)  the participant is identified in the special intelligence operation authority as a person authorised to engage in special intelligence conduct for the purposes of the special intelligence operation; and

                     (d)  the conduct does not involve the participant intentionally inducing another person to commit an offence against a law of the Commonwealth, a State or a Territory that the other person would not otherwise have intended to commit; and

                     (e)  the conduct does not involve the participant engaging in any conduct that:

                              (i)  causes the death of, or serious injury to, any person; or

                            (ia)  constitutes torture; or

                             (ii)  involves the commission of a sexual offence against any person; or

                            (iii)  causes significant loss of, or serious damage to, property; and

                      (f)  the requirements (if any) specified in a determination under subsection (2) have been met.

             (2)  The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (1)(f).

35L  Requirements for warrants etc. not affected

             (1)  If, apart from this Division, the Organisation could not do a particular act without it being authorised by warrant issued under this Act or under Part 2‑2 of the Telecommunications (Interception and Access) Act 1979, this Division does not allow the Organisation to do the act without the warrant.

             (2)  If, apart from this Division, the Organisation could not obtain particular information other than in accordance with Division 3 of Part 4‑1 of the Telecommunications (Interception and Access) Act 1979, this Division does not allow the Organisation to obtain the information otherwise than in accordance with that Division of the Telecommunications (Interception and Access) Act 1979.

             (3)  This section is enacted to avoid doubt.

35M  Effect of being unaware of variation or cancellation of special intelligence operation authority

             (1)  If an authority to conduct a special intelligence operation is varied in a way that limits its scope, this Division continues to apply to a participant in the special intelligence operation as if the authority had not been varied in that way, for so long as the participant:

                     (a)  is unaware of the variation; and

                     (b)  is not reckless about the existence of the variation.

             (2)  If an authority to conduct a special intelligence operation is cancelled, this Division continues to apply to a person who was a participant in the special intelligence operation immediately before the cancellation as if the authority had not been cancelled in that way, for so long as the person:

                     (a)  is unaware of the cancellation; and

                     (b)  is not reckless about the existence of the cancellation.

             (3)  For the purposes of this section, a person is reckless about the existence of the variation or cancellation of a special intelligence operation authority if:

                     (a)  the person is aware of a substantial risk that the variation or cancellation has happened; and

                     (b)  having regard to the circumstances known to the person, it is unjustifiable to take the risk that the special intelligence operation authority has not been varied or cancelled.

35N  Protection from criminal responsibility for certain ancillary conduct

             (1)  This section applies if:

                     (a)  a person engages in conduct (the ancillary conduct) that relates to special intelligence conduct (the related conduct) engaged in by another person; and

                     (b)  engaging in the ancillary conduct is an ancillary offence in relation to the offence constituted by the related conduct.

             (2)  Despite any other law of the Commonwealth, a State or a Territory, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence, if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in a special intelligence operation authorised under this Division.

             (3)  For the purposes of this section, ancillary offence, in relation to an offence constituted by related conduct, means an offence against a law of the Commonwealth, a State or a Territory:

                     (a)  of conspiring to commit the offence constituted by the related conduct; or

                     (b)  of aiding, abetting, counselling or procuring, inciting or being in any way knowingly concerned in, the commission of the offence constituted by the related conduct.

35P  Unauthorised disclosure of information

Unauthorised disclosure of information

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information relates to a special intelligence operation.

Penalty:  Imprisonment for 5 years.

Note:          Recklessness is the fault element for the circumstance described in paragraph (1)(b)—see section 5.6 of the Criminal Code.

Unauthorised disclosure of information—endangering safety, etc.

             (2)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information relates to a special intelligence operation; and

                     (c)  either:

                              (i)  the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or

                             (ii)  the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:  Imprisonment for 10 years.

Note:          Recklessness is the fault element for the circumstance described in paragraph (2)(b)—see section 5.6 of the Criminal Code.

Exceptions

             (3)  Subsections (1) and (2) do not apply if the disclosure was:

                     (a)  in connection with the administration or execution of this Division; or

                     (b)  for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

                     (c)  in accordance with any requirement imposed by law; or

                     (d)  in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

                     (e)  for the purpose of obtaining legal advice in relation to the special intelligence operation; or

                      (f)  to an IGIS official for the purpose of the Inspector‑General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector‑General of Intelligence and Security Act 1986; or

                     (g)  by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

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

Extended geographical jurisdiction

             (4)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2).

             (5)  Subsection (4) does not, by implication, affect the interpretation of any other provision of this Act.

35PA  Notifications by Director‑General

             (1)  The Director‑General must cause the Inspector‑General of Intelligence and Security to be notified if a special intelligence operation is authorised under this Division.

             (2)  The notification must be given:

                     (a)  in writing; and

                     (b)  as soon as practicable after the special intelligence operation authority is granted.

35Q  Reports by the Director‑General

             (1)  If a special intelligence operation is authorised under this Division, the Director‑General must give the Minister and the Inspector‑General of Intelligence and Security a written report:

                     (a)  if the special intelligence operation authority has effect for a period of 6 months or less—for that period; or

                     (b)  otherwise:

                              (i)  for the first 6‑months during which the special intelligence operation authority has effect; and

                             (ii)  for the remainder of the period during which the special intelligence operation authority has effect.

             (2)  A report under subsection (1) must report on the extent to which the special intelligence operation has, during the period to which the report relates, assisted the Organisation in the performance of one or more special intelligence functions.

Note:          The Inspector‑General of Intelligence and Security has oversight powers in relation to conduct engaged in accordance with this Division: see section 8 of the Inspector‑General of Intelligence and Security Act 1986.

          (2A)  A report under subsection (1) must report on whether conduct of a participant in a special intelligence operation:

                     (a)  caused the death of, or injury to, any person; or

                     (b)  involved the commission of a sexual offence against any person; or

                     (c)  resulted in loss of, or damage to, property.

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

35R  Evidence relating to granting of special intelligence operation authority

             (1)  The Minister may issue a written certificate signed by the Minister setting out such facts as the Minister considers relevant with respect to the granting of a special intelligence operation authority.

             (2)  In any proceeding, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.

Part IVSecurity assessments

Division 1Preliminary

35  Interpretation

             (1)  In this Part, unless the contrary intention appears:

adverse security assessment means a security assessment in respect of a person that contains:

                     (a)  any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

                     (b)  a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.

agency head means:

                     (a)  the Director‑General; or

                     (b)  the Director‑General of the Australian Secret Intelligence Service; or

                     (c)  the Director‑General of the Office of National Assessments; or

                     (d)  the Director of that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation; or

                     (e)  the Director of that part of the Defence Department known as the Defence Intelligence Organisation; or

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

applicant means a person who has applied to the Tribunal for a review of a security assessment.

authority of a State includes a State Minister, Department or Police Force.

Commonwealth agency means a Minister or an authority of the Commonwealth.

Commonwealth contractor means a person performing work or rendering services, otherwise than as an employee, for the purposes of the Commonwealth or an authority of the Commonwealth, including a person performing such work or rendering such services as a sub‑contractor or as an adviser or consultant.

prescribed administrative action means:

                     (a)  action that relates to or affects:

                              (i)  access by a person to any information or place access to which is controlled or limited on security grounds; or

                             (ii)  a person’s ability to perform an activity in relation to, or involving, a thing (other than information or a place), if that ability is controlled or limited on security grounds;

                            including action affecting the occupancy of any office or position under the Commonwealth or an authority of the Commonwealth or under a State or an authority of a State, or in the service of a Commonwealth contractor, the occupant of which has or may have any such access or ability;

                     (b)  the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act; or

                     (c)  the exercise of any power, or the performance of any function, in relation to a person under the Australian Citizenship Act 2007, the Australian Passports Act 2005 or the regulations under either of those Acts; or

                     (d)  the exercise of a power under any of the following provisions of the Telecommunications Act 1997:

                              (i)  section 58A;

                             (ii)  subsection 581(3);

                            (iii)  clause 57A of Schedule 3A;

                            (iv)  clause 72A of Schedule 3A.

Note:          An obligation, prohibition or restriction imposed by a control order is not prescribed administrative action (see subsection (2)).

qualified security assessment means a security assessment in respect of a person that:

                     (a)  contains any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and

                     (b)  does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment;

whether or not the matters contained in the assessment would, by themselves, justify prescribed administrative action being taken or not being taken in respect of the person to the prejudice of the interests of the person.

security assessment or assessment means a statement in writing furnished by the Organisation to a Commonwealth agency expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person or the question whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person, and includes any qualification or comment expressed in connection with any such recommendation, opinion or advice, being a qualification or comment that relates or that could relate to that question.

staff member of the Organisation or an intelligence or security agency means:

                     (a)  the agency head of the Organisation or agency; or

                     (b)  an employee or officer of the Organisation or agency; or

                     (c)  a consultant or contractor to the Organisation or agency; or

                     (d)  a person who is made available by an authority of the Commonwealth, authority of a State or other person to perform services for the Organisation or agency.

Tribunal means the Administrative Appeals Tribunal.

             (2)  To avoid doubt, an obligation, prohibition or restriction imposed on a person by a control order made under Division 104 of the Criminal Code is not prescribed administrative action.

36  Part not to apply to certain assessments

             (1)  This Part (other than subsections 37(1), (3) and (4)) does not apply to or in relation to:

                     (a)  a security assessment in relation to the employment, by engagement outside Australia for duties outside Australia, of a person who is not an Australian citizen or is not normally resident in Australia; or

                     (b)  a security assessment in relation to action of a kind referred to in paragraph (b) of the definition of prescribed administrative action in section 35 (other than an assessment made for the purposes of subsection 202(1) of the Migration Act 1958) in respect of a person who is not:

                              (i)  an Australian citizen;

                             (ii)  a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent visa; or

                            (iii)  a person who holds a special category visa or is taken by subsection 33(2) of the Migration Act 1958 to have been granted a special purpose visa; or

                   (ba)  a security assessment that is a request under section 22A of the Australian Passports Act 2005 for suspension of all Australian travel documents issued to a person; or

                     (c)  a security assessment in relation to the engagement, or proposed engagement, of a person by or in the Organisation, or an intelligence or security agency, as a staff member of the Organisation or agency.

             (2)  Despite paragraph (1)(b), this Part applies to a security assessment in respect of a person if:

                     (a)  the person was the holder of a valid permanent visa; and

                     (b)  the visa was cancelled under section 134B of the Migration Act 1958; and

                     (c)  the security assessment is made for the purposes of section 134C of that Act in relation to that cancellation.

Division 2Furnishing of security assessments

37  Security assessments

             (1)  The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

             (2)  An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:

                     (a)  shall contain all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director‑General, be contrary to the requirements of security; and

                     (b)  shall, for the purposes of this Part, be deemed to be part of the assessment.

             (3)  The regulations may prescribe matters that are to be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account, in the making of assessments, or of assessments of a particular class, and any such regulations are binding on the Organisation and on the Tribunal.

             (4)  Subject to any regulations made in accordance with subsection (3), the Director‑General shall, in consultation with the Minister, determine matters of a kind referred to in subsection (3), but nothing in this subsection affects the powers of the Tribunal.

             (5)  No proceedings, other than an application to the Tribunal under section 54, shall be brought in any court or tribunal in respect of the making of an assessment or anything done in respect of an assessment in accordance with this Act.

38  Person to be notified of assessment

             (1)  Subject to this section, where, after the commencement of this Act, an adverse or qualified security assessment in respect of a person is furnished by the Organisation to a Commonwealth agency or a State or an authority of a State, the Commonwealth agency, the State or the authority of the State shall, within 14 days after the day on which the assessment is so furnished, give to that person a notice in writing, to which a copy of the assessment is attached, informing him or her of the making of the assessment and containing information, in the prescribed form, concerning his or her right to apply to the Tribunal under this Part.

          (1A)  This section does not apply to a security assessment if section 38A applies to the assessment.

             (2)  The Attorney‑General may, by writing signed by the Attorney‑General delivered to the Director‑General, certify that the Attorney‑General is satisfied that:

                     (a)  the withholding of notice to a person of the making of a security assessment in respect of the person is essential to the security of the nation; or

                     (b)  the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person, or of a particular part of that statement, would be prejudicial to the interests of security.

             (3)  Where the Attorney‑General issues a certificate under subsection (2), he or she shall cause a copy of the certificate to be delivered to the Commonwealth agency to which the assessment was furnished.

             (4)  Subsection (1) does not require a notice to be given in relation to a security assessment to which a certificate in accordance with paragraph (2)(a) applies.

             (5)  In the case of a security assessment in relation to which a certificate certifying in accordance with paragraph (2)(b) has been given, the copy of the assessment to be attached to a notice under subsection (1) shall not contain any matter to which the certificate applies.

             (6)  A notice under subsection (1) may be given to a person by delivering it to him or her personally or by sending it to the person by registered post at his or her address last known to the Commonwealth agency.

             (7)  Before the end of the following periods, the Attorney‑General must consider whether to revoke a certificate certifying in accordance with paragraph (2)(a) (if the certificate remains in force):

                     (a)  12 months after it was issued;

                     (b)  12 months after the Attorney‑General last considered whether to revoke it.

38A  Notification where assessment relates to Telecommunications Act

             (1)  This section applies to an adverse or qualified security assessment in respect of a person (the assessed person) if the assessment is given to the Attorney‑General in connection with any of the following provisions of the Telecommunications Act 1997:

                     (a)  section 58A;

                     (b)  subsection 581(3);

                     (c)  clause 57A of Schedule 3A;

                     (d)  clause 72A of Schedule 3A.

             (2)  Within 14 days after receiving the assessment, the Attorney‑General must give to the assessed person a notice in writing, to which a copy of the assessment is attached, informing the assessed person of the making of the assessment and containing information, in the form prescribed for the purposes of subsection 38(1), concerning his or her right to apply to the Tribunal under this Part.

             (3)  If the Attorney‑General is satisfied that the assessment contains any matter the disclosure of which would be prejudicial to the interests of security, then the Attorney‑General must exclude that matter from the copy provided under subsection (2).

39  Effect of preliminary advice by Organisation

             (1)  Subject to subsection (2), a Commonwealth agency shall not take, refuse to take or refrain from taking prescribed administrative action on the basis of any communication in relation to a person made by the Organisation not amounting to a security assessment or on the basis of an adverse or qualified security assessment made by the Organisation before the commencement of this Act.

             (2)  Subsection (1) does not prevent a Commonwealth agency from taking action of a temporary nature to prevent:

                     (a)  access by a person to any information or place access to which is controlled or limited on security grounds; or

                     (b)  a person from performing an activity in relation to, or involving, a thing (other than information or a place), if the person’s ability to perform that activity is controlled or limited on security grounds;

if, on the basis of a preliminary communication by the Organisation, the Commonwealth agency is satisfied that the requirements of security make it necessary to take that action as a matter of urgency pending the furnishing of an assessment by the Organisation.

40  Assessments for State purposes

             (1)  If any prescribed administrative action in respect of a person by a State or an authority of a State would affect security in connection with matters within the functions and responsibilities of a Commonwealth agency, it is within the functions of the Organisation:

                     (a)  in any case—to furnish a security assessment in respect of that person to the Commonwealth agency, for the purpose of its transmission to the State or the authority of the State for use in considering that prescribed administrative action; or

                     (b)  if the prescribed administrative action would affect security in connection with an event designated in writing by the Minister as a special event—to furnish a security assessment in respect of that person to the State or the authority of a State for use in considering that prescribed administrative action.

             (2)  The Organisation shall not:

                     (a)  subject to paragraph (1)(b), communicate directly to a State or an authority of a State, whether in the form of an assessment or otherwise, any information, recommendation, opinion or advice concerning a person which the Organisation knows is intended or likely to be used by the State or an authority of the State in considering prescribed administrative action in relation to that person; or

                     (b)  furnish to a Commonwealth agency otherwise than in the form of an assessment any information, recommendation, opinion or advice concerning a person if the Organisation knows that the Commonwealth agency intends to communicate it to a State or an authority of a State for use in considering prescribed administrative action in relation to that person.

             (3)  For the purposes of paragraph 40(1)(b), the Minister must notify the Director‑General in writing of an event designated as a special event.

Division 4Review of security assessments

54  Applications to Tribunal

             (1)  An application may be made to the Tribunal for a review of an adverse or qualified security assessment.

             (2)  At any time after the completion of a review by the Tribunal of a security assessment (other than a review of a security assessment made for the purposes of subsection 202(1) of the Migration Act 1958), an application may be made for a review of the findings of the Tribunal on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review.

61  Effect of findings

                   Where an assessment has been reviewed by the Tribunal, every Commonwealth agency concerned with prescribed administrative action to which the assessment is relevant, and any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the assessment is relevant, shall treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.

64  Restriction on further assessments after review

                   Where the Tribunal has made findings upon a review of an assessment, the Organisation shall not make a further assessment in respect of the person concerned that is not in accordance with those findings except on the basis of matters occurring after the review or of which evidence was not available at the time of the review.

65  Reference of certain matters to Tribunal by Minister

             (1)  Where:

                     (a)  before the commencement of this Act, the Organisation furnished, or is alleged to have furnished, to a Commonwealth agency a security assessment, or a communication of a similar nature, concerning a person; or

                     (b)  after the commencement of this Act, the Organisation has furnished, or is alleged to have furnished, to a Commonwealth agency a security assessment, or a communication of a similar nature, concerning a person, other than a security assessment of which a copy has been delivered to that person in accordance with this Part;

the Minister may, if satisfied that it is desirable to do so by reason of special circumstances, require the Tribunal to inquire and report to the Minister upon any question concerning that action or alleged action of the Organisation, and may require the Tribunal to review any such assessment or communication and any information or matter on which any such assessment or communication was based, and the Tribunal shall comply with the requirement and report its findings to the Minister.

          (1A)  For the purposes of determining whether it is desirable to make a requirement of the Tribunal under subsection (1) in relation to a matter, the Minister may request the Inspector‑General of Intelligence and Security to inquire into the matter or into a specified aspect of the matter and to report to the Minister the results of the inquiry, and the Inspector‑General shall comply with any such request.

             (2)  The constitution and procedure of the Tribunal under this section shall be as determined by the President.

             (3)  Sections 43 and 43AAA of the Administrative Appeals Tribunal Act 1975 and section 61 of this Act do not apply in relation to a review under this section but, when the Tribunal has made findings under this section, the Minister shall, subject to the requirements of security, take or cause to be taken such action in relation to those findings, by way of communication or publication of the findings or alteration of records, as the Minister considers appropriate in the interests of justice.

81  Secrecy

             (1)  A person who is or has been a member or an officer of the Tribunal shall not, either directly or indirectly, except for the purposes of this Act:

                     (a)  make a record of, or divulge or communicate to any person, any information acquired by him or her by reason of his or her office or employment under or for the purposes of this Act; or

                     (b)  produce to any person a document furnished for the purposes of this Act.

Penalty:  Imprisonment for 2 years.

             (2)  A person who is or has been a member or an officer of the Tribunal shall not be required to produce in a court any document of which the person has custody, or to which the person has access, by virtue of his or her office or employment under or for the purposes of this Act, or to divulge or to communicate to a court any information obtained by him or her by reason of such an office or employment, except when it is necessary to do so for the purposes of this Act.

             (3)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to, and production has a corresponding meaning;

and a reference in this section to information or a document shall be read as a reference to information or a document supplied to the Tribunal for the purposes of this Part or otherwise related to proceedings under this Part.

Part VASIO employees etc.

  

84  Employees of the Organisation

Employees

             (1)  The Director‑General may, on behalf of the Commonwealth, employ such persons as he or she considers necessary for the performance of the Organisation’s functions and the exercise of the Organisation’s powers.

             (2)  The Director‑General may from time to time determine in writing the terms and conditions of employment applying to persons employed under subsection (1).

             (3)  The Director‑General, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of persons employed under subsection (1).

             (4)  Without limiting subsection (3), the Director‑General has, in respect of persons employed under subsection (1), the rights, duties and powers that are prescribed by regulation.

Termination of employment

             (5)  The Director‑General may, at any time, by written notice, terminate the employment of a person employed under subsection (1).

Note:          The Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

85  Consultants and contractors

             (1)  The Director‑General may engage persons as consultants or contractors to the Organisation.

             (2)  An engagement under subsection (1) is to be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.

86  Secondment of ASIO employees

Secondment

             (1)  The Director‑General may, in writing, arrange for an ASIO employee to be seconded for a specified period to a body or organisation whether within or outside Australia.

Termination of secondment

             (2)  The Director‑General may at any time, by notice given to the body or organisation to which an ASIO employee is seconded under subsection (1), terminate the secondment.

87  Secondment of persons to the Organisation

             (1)  The Director‑General may, by written agreement with a body or organisation (whether within or outside Australia), arrange for a person who is an officer, employee or other member of staff of the body or organisation to be made available to the Organisation to perform services in connection with the performance or the exercise of any of the Organisation’s functions or powers.

             (2)  The terms and conditions (including remuneration and allowances) applicable to a person performing services under an agreement are those specified in the agreement.

88  Applicability of principles of the Public Service Act 1999

                   Although ASIO employees are not employed under the Public Service Act 1999, the Director‑General must adopt the principles of that Act in relation to ASIO employees to the extent to which the Director‑General considers they are consistent with the effective performance of the functions of the Organisation.

89  Voluntary moves to APS

             (1)  Section 26 of the Public Service Act 1999 applies in relation to an ASIO employee as if the ASIO employee were an APS employee and the Organisation were an APS Agency.

             (2)  An ASIO employee who moves to an APS Agency under that section is entitled to have his or her employment, as an ASIO employee, treated as if it were:

                     (a)  employment as an APS employee; and

                     (b)  at a corresponding classification, as agreed between the Director‑General and the Australian Public Service Commissioner.

90  Regulations relating to employment of persons

             (1)  The regulations may make provision for the employment of persons otherwise than under section 84 and may, in respect of persons so employed, make provision from time to time for their terms and conditions of employment (including salaries).

          (2A)  The regulations may make provision for the establishment of a body, or for a person, to review actions of the Organisation affecting persons who are ASIO employees, ASIO affiliates, former ASIO employees or former ASIO affiliates, and for the immunity from civil proceedings of any such body or person in relation to their review of such actions.

             (3)  Regulations made in accordance with this section have effect despite section 84.

91  Application of Crimes Act

                   The Director‑General and ASIO employees and ASIO affiliates shall be deemed to be Commonwealth officers for the purposes of the Crimes Act 1914.

92  Publication of identity of ASIO employee or ASIO affiliate

             (1)  A person (other than a member of the Committee on Intelligence and Security) shall not, except with the consent in writing of the Minister or of the Director‑General, publish or cause to be published in a newspaper or other publication, or by radio broadcast or television, or otherwise make public, any matter stating, or from which it could reasonably be inferred, that a person having a particular name or otherwise identified, or a person residing at a particular address, is:

                     (a)  an ASIO employee or ASIO affiliate, or is in any way connected with an ASIO employee or ASIO affiliate; or

                     (b)  subject to subsection (1B), is a former ASIO employee or former ASIO affiliate or is in any way connected with a former ASIO employee or former ASIO affiliate.

Penalty:  Imprisonment for 10 years.

          (1A)  A member of the Committee referred to in subsection (1) shall not, except with the consent in writing of the Minister or of the Director‑General, make public or authorise the publication of, any information acquired by the person by reason of being such a member, being information from which it could reasonably be inferred that a person having a particular name or otherwise identified, or a person residing at a particular address, is:

                     (a)  an ASIO employee or ASIO affiliate, or is in any way connected with an ASIO employee or ASIO affiliate; or

                     (b)  subject to subsection (1B), is a former ASIO employee or former ASIO affiliate, or is in any way connected with a former ASIO employee or former ASIO affiliate.

Penalty:  Imprisonment for 10 years.

          (1B)  Subsections (1) and (1A) do not apply in relation to action taken in respect of a former ASIO employee or former ASIO affiliate:

                     (a)  who has consented in writing to the taking of that action; or

                     (b)  who has caused or permitted the fact that the person is a former ASIO employee or former ASIO affiliate to be made public.

             (2)  Nothing in this section applies to the broadcasting, datacasting or reporting of proceedings in the Parliament (other than proceedings of the Committee referred to in subsection (1)).

             (3)  A prosecution for an offence against this section shall be instituted only by or with the consent of the Attorney‑General.

Note:          For communication of information about an offence against this section to appropriate authorities, see subsection 18(3).

Part VIMiscellaneous

  

93  Offences

             (5)  Where, in proceedings for an offence against this Act in respect of any conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.

             (6)  Any conduct engaged in on behalf of a body corporate:

                     (a)  by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or

                     (b)  by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

shall be deemed, for the purposes of this Act, to have been engaged in by the body corporate.

             (7)  A reference in subsection (5) to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for his or her intention, opinion, belief or purpose.

94  Annual report

             (1)  The annual report prepared by the Director‑General and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include a statement of:

                     (a)  the total number of requests made under Division 3 of Part III to issuing authorities during the period for the issue of warrants under that Division; and

                     (b)  the total number of warrants issued during the period under that Division; and

                     (c)  the total number of warrants issued during the period under section 34E; and

                     (d)  the number of hours each person appeared before a prescribed authority for questioning under a warrant issued during the period under section 34E and the total of all those hours for all those persons; and

                     (e)  the total number of warrants issued during the period under section 34G; and

                      (f)  the following numbers:

                              (i)  the number of hours each person appeared before a prescribed authority for questioning under a warrant issued during the period under section 34G;

                             (ii)  the number of hours each person spent in detention under such a warrant;

                            (iii)  the total of all those hours for all those persons; and

                     (g)  the number of times each prescribed authority had persons appear for questioning before him or her under warrants issued during the period.

             (2)  A statement included under subsection (1) in a report must not name, or otherwise specifically identify, any person to whom information provided in the report relates.

          (2A)  A report under subsection (1) must also include a statement of:

                     (a)  the total number of applications made under section 35B during the period for the granting of special intelligence operation authorities; and

                     (b)  the total number of special intelligence operation authorities granted during the period; and

                     (c)  the number of authorisations made during the period under section 175 and subsection 176(3) of the Telecommunications (Interception and Access) Act 1979; and

                     (d)  the purposes for which those authorisations were made; and

                     (e)  the lengths of time for which the information or documents that were, or would have been, covered by those authorisations had been held when access was sought; and

                      (f)  the number of those authorisations that related to retained data that included information of a kind referred to in item 1 of the table in subsection 187AA(1) of that Act; and

                     (g)  the number of those authorisations that related to retained data that included information of a kind referred to in item 2, 3, 4, 5 or 6 of the table in subsection 187AA(1) of that Act; and

                     (h)  the number of those authorisations that were made under journalist information warrants issued under Subdivision B of Division 4C of Part 4‑1 of that Act; and

                      (i)  the number of journalist information warrants issued under that Subdivision during the period; and

                      (j)  information of a kind declared under subsection (2C) of this section.

          (2B)  A report under subsection (1) is to set out the matters referred to in paragraph (2A)(e) by specifying:

                     (a)  in relation to each of 8 successive periods of 3 months, the number of the authorisations sought for information or documents held for lengths of time included in that period; and

                     (b)  the number of the authorisations sought for information or documents held for lengths of time exceeding 24 months.

          (2C)  The Minister may, by legislative instrument, declare kinds of information that are to be set out in a report under subsection (1).

             (3)  A copy of the report must be given to the Leader of the Opposition in the House of Representatives, but it is the duty of the Leader of the Opposition to treat as secret any part of the report that is not tabled in a House of the Parliament.

             (4)  Subject to subsection (5), the Minister must cause a copy of the report to be laid before each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.

             (5)  For the purposes of subsection (4), the Minister may make such deletions from the report as the Minister, after obtaining advice from the Director‑General, considers necessary in order to avoid prejudice to security, the defence of the Commonwealth, the conduct of the Commonwealth’s international affairs or the privacy of individuals.

             (6)  The Minister must not delete from a report a statement described in subsection (1).

95  Regulations

                   The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Australian Security Intelligence Organization Act 1979

113, 1979

25 Oct 1979

1 June 1980 (Gazette 1980, No. G21, p. 2)

 

Australian Security Intelligence Organization Amendment Act 1979

182, 1979

4 Dec 1979

1 June 1980 (s 2)

Statute Law (Miscellaneous Provisions) Act (No. 1) 1985

65, 1985

5 June 1985

s 3: 3 July 1985

Australian Security Intelligence Organization Amendment Act 1986

122, 1986

2 Dec 1986

s 33–37: never commenced (s 2)
Remainder: 1 Feb 1987 (Gazette 1987, No. S13)

as amended by

 

 

 

 

Australian Security Intelligence Organization Amendment Act 1988

137, 1988

26 Dec 1988

26 Dec 1988

Law and Justice Legislation Amendment Act 1990

115, 1990

21 Dec 1990

(115, 1990 below)

Telecommunications (Interception) Amendment Act 1987

89, 1987

5 June 1987

s 1 and 2: 5 June 1987
s 5(1)(a), (2), 6 and 8: 16 Dec 1987 (s. 2(1A))
Remainder: 1 Sept 1988 (Gazette 1988, No. S256)

as amended by

 

 

 

 

Crimes Legislation Amendment Act 1987

120, 1987

16 Dec 1987

s 53 and 54: 16 Dec 1987

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987

18 Dec 1987

s 3: 18 Dec 1987

s 5(1)

Telecommunications Amendment Act 1988

121, 1988

14 Dec 1988

s 5, 6, 10, 12, 13, 23(2) and 26(1): 1 Jan 1989 (Gazette 1988, No. S402)
s 14, 23(3) and 26(2): 30 June 1989 (Gazette 1989, No. S216)
Remainder: 14 Dec 1988

Postal Services Amendment Act 1988

126, 1988

14 Dec 1988

s 4, 5, 9–11, 21(2) and 22(1): 1 Jan 1989 (Gazette 1988, No. S402)
s 12, 21(3) and 22(2): 30 June 1989 (Gazette 1989, No. S216)
Remainder: 14 Dec 1988

as amended by

 

 

 

 

Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989

63, 1989

19 June 1989

(63, 1989 below)

Australian Security Intelligence Organization Amendment Act 1988

137, 1988

26 Dec 1988

26 Dec 1988

Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989

63, 1989

19 June 1989

s 1 and 2: 19 June 1989
Pt 5 (s 17, 18): 30 June 1989 (s 2(3))
Remainder: 1 July 1989 (Gazette 1989, No. S230)

s 2(4)

as amended by

 

 

 

 

Transport and Communications Legislation Amendment Act 1991

11, 1991

21 Jan 1991

s 45: 1 July 1989 (s 2(13)(e))

Courts and Tribunal Administration Amendment Act 1989

157, 1989

5 Dec 1989

Pt 1 and 6 (s 1, 2, 17, 18): 5 Dec 1989
Remainder: 1 Jan 1990 (Gazette 1989, No. S398)

s 2(3)

Migration Legislation Amendment (Consequential Amendments) Act 1989

159, 1989

18 Dec 1989

s 4: 19 Dec 1989 (s 2(2))
Remainder: 19 Dec 1989 (s 2(1))

Law and Justice Legislation Amendment Act 1989

11, 1990

17 Jan 1990

Pt 3 (s 6, 7): 22 Oct 1990

Defence Legislation Amendment Act 1990

75, 1990

22 Oct 1990

s 5: 22 Oct 1990

Law and Justice Legislation Amendment Act 1990

115, 1990

21 Dec 1990

s 1, 2 and 40–49: 21 Dec 1990
s 3, 5, 6, 8, 9, 16, 17, 20–23, 28, 30, 32, 33, 38 and 39: 4 Feb 1991 (Gazette 1991, No. GN3)
Remainder: 21 June 1991

Industrial Relations Legislation Amendment Act 1991

122, 1991

27 June 1991

s 4(1), 10(b) and 15–20: 1 Dec 1988
s 28(b)–(e), 30 and 31: 10 Dec 1991 (Gazette 1991, No. S332)
Remainder: 27 June 1991

s 31(2)

Law and Justice Legislation Amendment Act 1991

136, 1991

12 Sept 1991

s 4–9: 10 Oct 1991

Crimes (Aviation) Act 1991

139, 1991

27 Sept 1991

16 Mar 1992 (Gazette 1992, No. S65)

as amended by

 

 

 

 

Crimes and Other Legislation Amendment Act 1994

182, 1994

19 Dec 1994

s 31: 16Mar 1992 (s 2(5))

Transport and Communications Legislation Amendment Act 1994

64, 1994

30 May 1994

30 May 1994

s 2(2)–(4)

Crimes and Other Legislation Amendment Act 1994

182, 1994

19 Dec 1994

s 3–7: 19 Dec 1994

s 4 and 6(2)

Law and Justice Legislation Amendment Act (No. 1) 1995

175, 1995

16 Dec 1995

16 Dec 1995

Sch 1 (item 60)

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Sch 4 (item 40): 25 Oct 1996

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Sch 1 (items 252–258): 5 Dec 1999 (s 2(1) and Gazette 1999, No. S584)

Australian Security Intelligence Organisation Legislation Amendment Act 1999

161, 1999

10 Dec 1999

Sch 1, Sch 2 and Sch 3 (item 21): 10 Dec 1999 (s 2(1), (2))

Sch 1 (items 44, 45) and Sch 2 (item 14)

Telecommunications (Interception) Legislation Amendment Act 2000

63, 2000

22 June 2000

Sch 3 (item 1): 22 June 2000

Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000

108, 2000

3 Aug 2000

Sch 3 (item 1): 1 Jan 2001 (Gazette 2000, No. GN50)

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Sch 2 (items 50, 418, 419): 24 May 2001 (s 2(3))

Sch 2 (items 418, 419)

Privacy Amendment (Private Sector) Act 2000

155, 2000

21 Dec 2000

Sch 3: 21 Dec 2000
Remainder: 21 Dec 2001

Sch 3 (item 2)

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001

24, 2001

6 Apr 2001

s 4(1), (2) and Sch 4: 24 May 2001 (s 2(1)(a))

s 4(1) and (2)

Intelligence Services (Consequential Provisions) Act 2001

153, 2001

1 Oct 2001

29 Oct 2001 (s 2)

s 4 and Sch 1 (items 7–9)

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001

159, 2001

1 Oct 2001

29 Oct 2001

Sch 1 (item 97)

Cybercrime Act 2001

161, 2001

1 Oct 2001

21 Dec 2001 (Gazette 2001, No. S529)

Australian Crime Commission Establishment Act 2002

125, 2002

10 Dec 2002

Sch 2 (items 2–4): 1 Jan 2003

Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003

77, 2003

22 July 2003

Sch 1: (items 1–8, 15–27C): 23 July 2003 (s 2(1) item 2)
Sch 1 (items 10, 11): 23 July 2003 (s 2(1) item 3)

Sch 1 (items 5, 11, 20, 27C)

ASIO Legislation Amendment Act 2003

143, 2003

17 Dec 2003

18 Dec 2003

Sch 1 (items 2, 4, 6, 11)

Communications Legislation Amendment Act (No. 1) 2004

35, 2004

20 Apr 2004

21 Apr 2004

Anti‑terrorism Act (No. 3) 2004

125, 2004

16 Aug 2004

Sch 2: 13 Sept 2004

Sch 2 (item 2)

Australian Security Intelligence Organisation Amendment Act 2004

141, 2004

14 Dec 2004

14 Dec 2004

Australian Passports (Transitionals and Consequentials) Act 2005

7, 2005

18 Feb 2005

Sch 1 (items 2–4): 1 July 2005 (s 2(1))

Telstra (Transition to Full Private Ownership) Act 2005

118, 2005

23 Sept 2005

s. 3: 23 Sept 2005
Sch 1 (items 43–46): 24 Nov 2006 (F2006L03997)

s. 3

Intelligence Services Legislation Amendment Act 2005

128, 2005

4 Nov 2005

Sch 4 (item 1) and Sch 8 (items 2, 15–19): 2 Dec 2005

Anti‑Terrorism Act (No. 2) 2005

144, 2005

14 Dec 2005

Sch 10 (items 1–25): 14 Dec 2005
Sch 10 (items 26–28): 15 Dec 2005

Sch 10 (item 25)

Telecommunications (Interception) Amendment Act 2006

40, 2006

3 May 2006

Sch 1 (items 13–15): 13 June 2006 (F2006L01623)

ASIO Legislation Amendment Act 2006

54, 2006

19 June 2006

Sch 1 (items 1–10, 16–21) and Sch 2 (items 1–32): 20 June 2006 (s 2(1) items 2, 3)

Sch 1 (items 16–21)

Law Enforcement (AFP Professional Standards and Related Measures) Act 2006

84, 2006

30 June 2006

Sch 3A (items 1–9): never commenced (s 2(1) item 3)
Sch 3A (items 10–22): 30 Dec 2006 (s 2(1) items 2, 4)

Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006

86, 2006

30 June 2006

Sch 1 (items 6–10): 30 Dec 2006 (s 2(1))

Privacy Legislation Amendment (Emergencies and Disasters) Act 2006

148, 2006

6 Dec 2006

7 Dec 2006

Law and Justice Legislation Amendment (Marking of Plastic Explosives) Act 2007

3, 2007

19 Feb 2007

Sch 3 (item 2): 25 Aug 2007 (s 2(1) item 2)

Australian Citizenship (Transitionals and Consequentials) Act 2007

21, 2007

15 Mar 2007

Sch 1 (item 5): 1 July 2007 (s 2(1) item 2)

Anti‑People Smuggling and Other Measures Act 2010

50, 2010

31 May 2010

Sch 2: 1 June 2010 (s 2)

Telecommunications Interception and Intelligence Services Legislation Amendment Act 2011

4, 2011

22 Mar 2011

Sch 6 (items 1–17, 29): 23 Mar 2011 (s 2)

Sch 6 (item 29)

Statute Law Revision Act 2011

5, 2011

22 Mar 2011

Sch 6 (items 10, 11): 19 Apr 2011 (s 2(1) item 15)

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Sch 2 (item 242) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 3, 12)

Sch 3 (items 10, 11)

Intelligence Services Legislation Amendment Act 2011

80, 2011

25 July 2011

Sch 1 (items 1–18, 29–31): 26 July 2011 (s 2)

Sch 1 (items 29–31)

Federal Circuit Court of Australia (Consequential Amendments) Act 2013

13, 2013

14 Mar 2013

Sch 1 (items 51–53): 12 Apr 2013 (s 2(1))

Sch 1 (item 53)

Statute Law Revision Act 2013

103, 2013

29 June 2013

Sch 1 (item 23): 29 June 2013 (s 2(1) item 2)

Telecommunications Legislation Amendment (Submarine Cable Protection) Act 2014

33, 2014

27 May 2014

Sch 1 (items 2, 3): 28 May 2014 (s 2(1) item 2)

Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014

62, 2014

30 June 2014

Sch 7 (items 437–439) and Sch 14: 1 July 2014 (s 2(1) items 6, 14)

Sch 14

as amended by

 

 

 

 

Public Governance and Resources Legislation Amendment Act (No. 1) 2015

36, 2015

13 Apr 2015

Sch 2 (items 79) and Sch 7: 14 Apr 2015 (s 2)

Sch 7

as amended by

 

 

 

 

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015

126, 2015

10 Sept 2015

Sch 1 (item 486): 5 Mar 2016 (s 2(1) item 2)

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015

126, 2015

10 Sept 2015

Sch 1 (item 495): 5 Mar 2016 (s 2(1) item 2)

National Security Legislation Amendment Act (No. 1) 2014

108, 2014

2 Oct 2014

Sch 1 (items 1–30, 78–87), Sch 2 (items 1–45, 45A, 46, 46A, 46B, 47, 50), Sch 3, Sch 4 and Sch 6 (items 1–5A, 23): 30 Oct 2014 (s 2(1) item 2)
Sch 7 (items 72–83, 144, 145): 3 Oct 2014 (s 2(1) item 3)

Sch 1 (items 78–87), Sch 2 (item 50), Sch 6 (item 23) and Sch 7 (items 144, 145)

Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014

116, 2014

3 Nov 2014

Sch 1 (items 27–34B): 1 Dec 2014 (s 2(1) item 2)
Sch 4 (items 6, 7): 4 Nov 2014 (s 2(1) item 3)

Sch 1 (items 29, 31, 34B)

Statute Law Revision Act (No. 1) 2015

5, 2015

25 Feb 2015

Sch 3 (item 42): 25 Mar 2015 (s 2(1) item 10)

Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015

39, 2015

13 Apr 2015

Sch 1 (items 1A–1D, 7): 13 Oct 2015 (s 2(1) item 2)
Sch 1 (items 8–12): 13 Apr 2015 (s 2(1) items 1, 3)

Sch 1 (items 7–12)

Passports Legislation Amendment (Integrity) Act 2015

122, 2015

10 Sept 2015

Sch 1 (items 79–92): 8 Oct 2015 (s 2(1) item 2)

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015

126, 2015

10 Sept 2015

Sch 1 (items 59, 60): 5 Mar 2016 (s 2(1) item 2)

 

Endnote 4—Amendment history

 

Provision affected

How affected

Title.....................................

am No 161, 1999

Part I

 

s 1........................................

am No 161, 1999

s 3........................................

am No 161, 1999

s 4........................................

am No 122, 1986; No 159, 1989; No 75, 1990; No 136, 1991; No 139, 1991 (as am by No 182, 1994); No 182, 1994; Nos 146 and 161, 1999; No 153, 2001; No 77, 2003; Nos 118, 128 and 144, 2005; No 3, 2007; No 50, 2010; Nos 4, 5 and 80, 2011; No 108 and 116, 2014; No 39, 2015; No 122, 2015

s 4A.....................................

ad No 24, 2001

s 5........................................

rs No 122, 1986

s 5A.....................................

ad No 122, 1986

Part II

 

Part II heading......................

am No 161, 1999

s 6........................................

am No 161, 1999

s 8........................................

am No 122, 1986; No 161, 1999

s 8A.....................................

ad No 122, 1986

 

am No 137, 1988; No 161, 1999; No 153, 2001; No 128, 2005; No 108, 2014

s 9........................................

am No 141, 1987; No 159, 2001

s 10......................................

am No 141, 1987; No 43, 1996

s 11......................................

rs No 122, 1991

 

am No 146, 1999

s 12......................................

am No 141, 1987

s 13......................................

am No 141, 1987; No 122, 1991

s 14......................................

am No 141, 1987; No 161, 1999

s 15......................................

am No 141, 1987

s 16......................................

rep No 65, 1985

 

ad No 122, 1986

 

am No 161, 1999

 

rs No 108, 2014

Part III

 

Part III heading....................

am No 161, 1999

Division 1

 

s 17......................................

am No 122, 1986; No 161, 1999; No 63, 2000; No 40, 2006; No 4, 2011

s 17AA................................

ad No 161, 1999

s 17A...................................

ad No 122, 1986

 

am No 161, 1999

s 18......................................

am No 182, 1979; No 122, 1986; No 141, 1987; No 161, 1999; No 125, 2002; No 77, 2003; Nos 86 and 148, 2006; No 4, 2011; No 108, 2014

s 18A...................................

ad No 108, 2014

s 18B...................................

ad No 108, 2014

s 18C...................................

ad No 108, 2014

s 18D...................................

ad No 108, 2014

s 19......................................

am No 122, 1986; No 161, 1999; No 4, 2011; No 108, 2014

s 19A...................................

ad No 4, 2011

 

am No 108, 2014

s 20......................................

am No 161, 1999

s 21......................................

am No 141, 1987

Division 2

 

Subdivision A

 

Subdivision A heading.........

ad No 108, 2014

s 22......................................

am No 122, 1986; No 161, 1999; No 108, 2014

s 23......................................

rep No 77, 2003

 

ad No 144, 2005

 

am No 108, 2014

s 24......................................

am No 141, 1987

 

rs No 182, 1994

 

am Nos 146 and 161, 1999; No 77, 2003; No 54, 2006

 

rs No 108, 2014

Subdivision B

 

Subdivision B heading.........

ad No 108, 2014

s 25......................................

am No 122, 1986; No 141, 1987

 

rs No 161, 1999

 

am No 77, 2003; No 144, 2005; No 108, 2014

s 25AA................................

ad No 77, 2003

Subdivision C

 

Subdivision C heading.........

ad No 108, 2014

s 25A...................................

ad No 161, 1999

 

am No 161, 2001; No 144, 2005; No 54, 2006; No 80, 2011; No 108, 2014

Subdivision D

 

Subdivision D heading.........

ad No 108, 2014

s 26......................................

am No 122, 1986; Nos 89 and 141, 1987; No 121,1988; No 64, 1994; No 161, 1999; No 118, 2005; No 40, 2006

 

rs No 108, 2014

s 26A...................................

ad No 161, 1999

 

rs No 108, 2014

s 26B...................................

ad No 161, 1999

 

rs No 108, 2014

s 26C...................................

ad No 161, 1999

 

rs No 108, 2014

s 26D...................................

ad No 108, 2014

s 26E...................................

ad No 108, 2014

s 26F....................................

ad No 108, 2014

Subdivision E

 

Subdivision E heading.........

ad No 108, 2014

s 27......................................

am No 122, 1986; No 141, 1987; No 126, 1988 (as am by No 63, 1989); No 63, 1989 (as am by No 11, 1991); No 136, 1991; No 161, 1999; No 144, 2005; No 108, 2014

s 27AA................................

ad No 161, 1999

 

am No 144, 2005; No 108, 2014

Subdivision F

 

Subdivision F heading..........

ad No 108, 2014

s 27A...................................

ad No 122, 1986

 

am Nos 121 and 126, 1988; No 63, 1989 (as am by No 11, 1991); No 136, 1991; No 64, 1994; No 161, 1999; Nos 118 and 144, 2005; No 40, 2006; No 80, 2011; No 108, 2014

s 27B...................................

ad No 161, 1999

 

am No 80, 2011

Subdivision G

 

Subdivision G......................

ad No 108, 2014

s 27C...................................

ad No 108, 2014

s 27D...................................

ad No 108, 2014

s 27E...................................

ad No 108, 2014

s 27F....................................

ad No 108, 2014

s 27G...................................

ad No 108, 2014

s 27H...................................

ad No 108, 2014

s 27J....................................

ad No 108, 2014

Subdivision H

 

Subdivision H heading.........

ad No 108, 2014

s 29......................................

am No 141, 1987; No 161, 1999; No 128, 2005; No 108, 2014

s 29A...................................

ad No 108, 2014

s 30......................................

am No 141, 1987; No 161, 1999

 

rs No 108, 2014

s 31......................................

rs No 122, 1986

 

am No 161, 1999

s 31A...................................

ad No 108, 2014

s 32......................................

am No 141, 1987; No 161, 1999

s 33......................................

am No 161, 1999

 

rep No 137, 2000

 

ad No 108, 2014

s 34......................................

am No 122, 1986; No 161, 1999; No 108, 2014

s 34AA................................

ad No 108, 2014

Division 3

 

Division 3............................

ad No 77, 2003

 

exp 7 Sept 2018 (s 34ZZ)

Subdivision A

 

s 34A...................................

ad No 77, 2003

 

am No 54, 2006; No 13, 2013

 

exp 7 Sept 2018 (s 34ZZ)

s 34AB.................................

ad No 77, 2003

 

am No 13, 2013

 

exp 7 Sept 2018 (s 34ZZ)

s 34B...................................

ad No 77, 2003

 

exp 7 Sept 2018 (s 34ZZ)

s 34C...................................

ad No 77, 2003

 

am No 128, 2005

 

rs No 54, 2006

 

am No 126, 2015

 

exp 7 Sept 2018 (s 34ZZ)

Subdivision B

 

Subdivision B......................

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34D...................................

ad No 77, 2003

 

rs No 54, 2006

 

am No 54, 2006; No 116, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34DA................................

ad No 77, 2003

 

rep No 54, 2006

s 34E...................................

ad No 77, 2003

 

rs No 54, 2006

 

am No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

Subdivision C

 

Subdivision C......................

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34F....................................

ad No 77, 2003

 

am No 143, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34G...................................

ad No 77, 2003

 

am No 144, 2005

 

rs No 54, 2006

 

am No 54, 2006; No 84, 2006; No 46, 2011

 

exp 7 Sept 2018 (s 34ZZ)

s 34H...................................

ad No 77, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

ss 34HAA, 34HAB..............

ad No 77, 2003

 

rep No 54, 2006

s 34HA................................

ad No 77, 2003

 

rep No 54, 2006

s 34HB.................................

ad No 77, 2003

 

am No 143, 2003

 

rep No 54, 2006

s 34HC.................................

ad No 77, 2003

 

rep No 54, 2006

Subdivision D

 

Subdivision D heading.........

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34J....................................

ad No 77, 2003

 

rs No 54, 2006

 

am Nos 54 and 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

ss 34JA, 34JB......................

ad No 77, 2003

 

rep No 54, 2006

s 34JBA...............................

ad No 125, 2004

 

am No 7, 2005

 

rep No 54, 2006

s 34JBB................................

ad No 125, 2004

 

rep No 54, 2006

s 34JC..................................

ad No 143, 2003

 

am No 7, 2005

 

rep No 54, 2006

s 34JD..................................

ad No 143, 2003

 

rep No 54, 2006

s 34K...................................

ad No 77, 2003

 

rs No 54, 2006

 

am Nos 54 and 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34L...................................

ad No 77, 2003

 

rs No 54, 2006

 

am No 116, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34M..................................

ad No 77, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34N...................................

ad No 77, 2003

 

am No 144, 2005

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

ss 34NA–34NC....................

ad No 77, 2003

 

rep No 54, 2006

s 34P....................................

ad No 77, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34Q...................................

ad No 77, 2003

 

rs No 54, 2006

 

am No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34QA................................

ad No 77, 2003

 

rep No 54, 2006

s 34R...................................

ad No 77, 2003

 

rs No 54, 2006

 

am Nos 54 and 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34S....................................

ad No 77, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34SA.................................

ad No 77, 2003

 

rep No 54, 2006

Subdivision E

 

Subdivision E heading.........

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34T...................................

ad No 77, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

ss 34TA, 34TB....................

ad No 77, 2003

 

rep No 54, 2006

s 34U...................................

ad No 77, 2003

 

am No 143, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34V...................................

ad No 77, 2003

 

am No 143, 2003

 

rs No 54, 2006

 

am No 116, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34VAA..............................

ad No 143, 2003

 

rep No 54, 2006

s 34VA................................

ad No 77, 2003

 

rep No 54, 2006

s 34W..................................

ad No 77, 2003

 

rs No 54, 2006

 

am No 122, 2015

 

exp 7 Sept 2018 (s 34ZZ)

s 34WA................................

ad No 77, 2003

 

rep No 54, 2006

s 34X...................................

ad No 77, 2003

 

rs No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34Y...................................

ad No 77, 2003

 

rs No 54, 2006

 

am No 122, 2015

 

exp 7 Sept 2018 (s 34ZZ)

s 34Z...................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZA.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZB.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZC.................................

ad No 54, 2006

 

am No 108, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZD.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZE.................................

ad No 54, 2006

 

am No 54, 2006; No 108, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZF.................................

ad No 54, 2006

 

am Nos 54 and 84, 2006; No 108, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZG.................................

ad No 54, 2006

 

rs No 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZH.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZI..................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZJ..................................

ad No 54, 2006

 

am No 62, 2014

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZK.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZL.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZM................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZN.................................

ad No 54, 2006

 

am No 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZO.................................

ad No 54, 2006

 

am No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZP.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZQ.................................

ad No 54, 2006

 

am No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZR.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZS.................................

ad No 54, 2006

 

am Nos 54 and 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZT.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZU.................................

ad No 54, 2006

 

am No 103, 2013

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZV.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZW................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZX.................................

ad No 54, 2006

 

am No 84, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZY.................................

ad No 54, 2006

 

exp 7 Sept 2018 (s 34ZZ)

s 34ZZ.................................

ad No 54, 2006

 

am No 54, 2006; No 116, 2014

 

exp 7 Sept 2018 (s 34ZZ)

Division 4

 

Division 4............................

ad No 108, 2014

s 35A...................................

ad No 108, 2014

s 35B...................................

ad No 108, 2014

s 35C...................................

ad No 108, 2014

s 35D...................................

ad No 108, 2014

s 35E...................................

ad No 108, 2014

s 35F....................................

ad No 108, 2014

s 35G...................................

ad No 108, 2014

s 35H...................................

ad No 108, 2014

s 35J....................................

ad No 108, 2014

s 35K...................................

ad No 108, 2014

s 35L...................................

ad No 108, 2014

s 35M..................................

ad No 108, 2014

s 35N...................................

ad No 108, 2014

s 35P....................................

ad No 108, 2014

s 35PA.................................

ad No 108, 2014

s 35Q...................................

ad No 108, 2014

s 35R...................................

ad No 108, 2014

Part IV

 

Division 1

 

s 35......................................

am No 122, 1986; No 175, 1995; No 161, 1999; No 77, 2003; Nos 35 and 141, 2004; Nos 7 and 144, 2005; No 21, 2007; No 80, 2011; No 33 and 108, 2014

s 36......................................

am No 122, 1986; No 159, 1989; No 136, 1991; No 175, 1995; No 161, 1999; No 141, 2004; No 80, 2011, No 116, 2014

Division 2

 

s 37......................................

am No 175, 1995; No 161, 1999

s 38......................................

am No 141, 1987; No 161, 1999; No 35, 2004; No 116, 2014

s 38A...................................

ad No 35, 2004

 

am No 33, 2014

s 39......................................

am No 161, 1999; No 141, 2004

s 40......................................

am No 161, 1999; No 77, 2003

Division 3............................

rep No 175, 1995

s 41......................................

rep No 175, 1995

ss 42, 43..............................

am No 141, 1987

 

rep No 175, 1995

s 44......................................

rep No 175, 1995

ss 45–50..............................

am No 141, 1987

 

rep No 175, 1995

s 51......................................

rep No 175, 1995

s 52......................................

am No 141, 1987

 

rep No 175, 1995

s 53......................................

rep No 175, 1995

Division 4

 

s 54......................................

am No 122, 1986; No 141, 1987

 

rs No 175, 1995

s 55......................................

rep No 175, 1995

s 56......................................

am No 122, 1986

 

rep No 175, 1995

s 57......................................

rep No 175, 1995

ss 58, 59..............................

am No 141, 1987

 

rep No 175, 1995

s 60......................................

am No 65, 1985; No 122, 1986; No 141, 1987

 

rep No 175, 1995

s 60A...................................

ad No 122, 1986

 

rep No 175, 1995

s 61......................................

am No 122, 1986; No 141, 2004

s 62......................................

rep No 175, 1995

s 63......................................

am No 122, 1986; No 141, 1987; No 136, 1991

 

rep No 175, 1995

s 64......................................

am No 161, 1999

s 65......................................

am No 122, 1986; No 141, 1987; No 175, 1995; No 161, 1999

Division 5............................

rep No 175, 1995

ss 66–68..............................

rep No 175, 1995

ss 69, 70..............................

am No 141, 1987

 

rep No 175, 1995

s 71......................................

rep No 175, 1995

Division 6 heading...............

rep No 175, 1995

s 72......................................

am No 141, 1987

 

rep No 175, 1995

s 72A...................................

ad No 122, 1986

 

rep No 175, 1995

s 73......................................

am No 141, 1987

 

rep No 175, 1995

ss 74–76..............................

am No 122, 1986; No 141, 1987

 

rep No 175, 1995

s 77......................................

am No 141, 1987

 

rep No 175, 1995

s 78......................................

am No 157, 1989

 

rep No 175, 1995

ss 79, 80..............................

rep No 175, 1995

s 81......................................

am No 122, 1986; No 141, 1987; No 161, 1999

ss 82, 83..............................

rep No 175, 1995

Part V

 

Part V heading......................

am No 161, 1999

 

rs No 108, 2014

s 84......................................

am No 141, 1987; No 161, 1999

 

rs No 108, 2014

s 85......................................

am No 122, 1986 (as am by No 137, 1988); No 137, 1988; No 161, 1999

 

rs No 108, 2014

s 86......................................

am No 122, 1986 (as am by No 137, 1988); No 137, 1988; Nos 146 and 161, 1999

 

rs No 108, 2014

s 87......................................

am No 141, 1987; No 161, 1999

 

rs No 108, 2014

s 88......................................

rep No 65, 1985

 

ad No 108, 2014

s 89......................................

am No 141, 1987; No 161, 1999

 

rs No 108, 2014

s 90......................................

am Nos 146 and 161,1999; No 108, 2014

s 90A...................................

ad No 182, 1994

 

rep No 146, 1999

s 91......................................

am No 161, 1999; No 108, 2014

 

rs No 108, 2014

s 92......................................

am No 122, 1986; No 161, 1999; No 108, 2000; No 153, 2001; No 128, 2005; No 108, 2014

Part VA heading...................

am No 161, 1999

 

rep No 153, 2001

Part VA................................

ad No 122, 1986

 

rep No 153, 2001

s 92A...................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

s 92B...................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

s 92C...................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

ss 92D–92F.........................

ad No 122, 1986

 

rep No 153, 2001

s 92G...................................

ad No 122, 1986

 

am No 115, 1990; No 161, 1999

 

rep No 153, 2001

s 92H...................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

s 92J....................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

ss 92K, 92L.........................

ad No 122, 1986

 

rep No 153, 2001

s 92M..................................

ad No 122, 1986

 

am No 161, 1999; No 24, 2001

 

rep No 153, 2001

s 92N...................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

s 92P....................................

ad No 122, 1986

 

rs No 115, 1990

 

rep No 153, 2001

s 92Q...................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

s 92R...................................

ad No 122, 1986

 

am No 115, 1990

 

rep No 153, 2001

s 92S....................................

ad No 122, 1986

 

am No 161, 1999

 

rep No 153, 2001

s 92T...................................

ad No 122, 1986

 

rep No 153, 2001

Part VI

 

s 93......................................

rs No 122, 1986

 

am No 161, 1999; No 5, 2015

s 93A...................................

ad No 11, 1990

 

am No 161, 1999

 

rep No 155, 2000

s 94......................................

am No 122, 1986; No 161, 1999; No 77, 2003; No 54, 2006

 

rs No 62, 2014

 

am No 108, 2014; No 39, 2015