National Security Legislation Amendment Act (No. 1) 2014 (108 of 2014)
Schedule 2 Powers of the Organisation
Part 1 Amendments
Australian Security Intelligence Organisation Act 1979
41 After section 27B
Insert:
Subdivision G - Identified 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.