National Security Legislation Amendment Act (No. 1) 2014 (108 of 2014)
Schedule 5 Activities and functions of Intelligence Services Act 2001 agencies
Intelligence Services Act 2001
11 After section 13A
Insert:
Division 3 Activities undertaken in relation to ASIO
13B Activities undertaken in relation to ASIO
When an activity may be undertaken in relation to ASIO
(1) Subject to section 13D, ASIS may undertake an activity, or a series of activities, if:
(a) the activity or series of activities will be undertaken for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person or a class of Australian persons; and
(b) the activity or series of activities will be undertaken outside Australia; and
(c) the activity or series of activities will be undertaken to support ASIO in the performance of its functions; and
(d) either:
(i) the Director-General of Security; or
(ii) a person who is authorised under section 13C for the purposes of this subparagraph;
has, in writing, notified ASIS that ASIO requires the production of intelligence on the Australian person or class of Australian persons.
(2) The undertaking of an activity or series of activities under subsection (1) is subject to any conditions specified in the notice under paragraph (1)(d).
When notice from ASIO not required - particular activity
(3) Paragraph (1)(d) does not apply in relation to the undertaking of a particular activity in relation to a particular Australian person if a staff member of ASIS who:
(a) is authorised under subsection (7); and
(b) will be undertaking the activity;
reasonably believes that it is not practicable in the circumstances for ASIO to notify ASIS in accordance with that paragraph before undertaking the activity.
(4) If ASIS undertakes an activity in accordance with subsection (3), ASIS must, as soon as practicable, notify ASIO and the Inspector-General of Intelligence and Security, in writing, of the activity.
Effect of this section
(5) ASIS may undertake an activity or series of activities under subsection (1) without an authorisation under section 9 for the activity or series of activities.
Incidental production of intelligence
(6) An activity, or a series of activities, does not cease to be undertaken:
(a) in accordance with this section; or
(b) for the specific purpose of supporting ASIO in the performance of its functions;
only because, in undertaking the activity or series of activities, ASIS also incidentally produces intelligence that relates to the involvement, or likely involvement, of an Australian person in one or more of the activities set out in paragraph 9(1A)(a).
Authorised staff members
(7) The Director-General may authorise, in writing, a staff member of ASIS, or a class of such staff members, for the purposes of paragraph (3)(a).
Instruments not legislative instruments
(8) The following are not legislative instruments:
(a) a notice under paragraph (1)(d);
(b) a notice under subsection (4);
(c) an authorisation made under subsection (7).
13C Authorised persons for activities undertaken in relation to ASIO
Authorised persons
(1) The Director-General of Security may authorise, in writing, a senior position-holder, or a class of senior position-holders, for the purposes of subparagraph 13B(1)(d)(ii).
Authorisation is not a legislative instrument
(2) An authorisation made under subsection (1) is not a legislative instrument.
Definitions
(3) For the purposes of this section, senior position-holder has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
13D Certain acts not permitted
If ASIO could not undertake a particular act in at least one State or Territory without it being authorised by warrant under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2-2 of the Telecommunications (Interception and Access) Act 1979, this Division does not allow ASIS to undertake the act.
13E Director-General to be satisfied of certain matters
The Director-General must be satisfied that:
(a) there are satisfactory arrangements in place to ensure that activities will be undertaken in accordance with section 13B only for the specific purpose of supporting ASIO in the performance of its functions; and
(b) there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in accordance with section 13B will be reasonable, having regard to the purposes for which they are carried out.
13F Other matters relating to activities undertaken in relation to ASIO
ASIO to be consulted before communicating intelligence
(1) If, in undertaking an activity or series of activities in accordance with section 13B, ASIS produces intelligence, ASIS must not communicate the intelligence outside ASIS (other than in accordance with subsection (2)) unless ASIO has been consulted.
Intelligence to be communicated to ASIO
(2) If, in undertaking an activity or series of activities in accordance with section 13B, ASIS produces intelligence, ASIS must cause the intelligence to be communicated to ASIO as soon as practicable after the production.
Notices to be made available to the Inspector-General of Intelligence and Security
(3) If a notice is given to ASIS under paragraph 13B(1)(d), the Director-General must ensure that a copy of the notice is kept by ASIS and is available for inspection on request by the Inspector-General of Intelligence and Security.
Reports about activities to be given to the responsible Minister
(4) As soon as practicable after each year ending on 30 June, the Director-General must give to the responsible Minister in relation to ASIS a written report in respect of activities undertaken by ASIS in accordance with section 13B during the year.
13G Guidelines relating to activities undertaken in relation to ASIO
(1) The responsible Minister in relation to ASIO and the responsible Minister in relation to ASIS may jointly make written guidelines relating to the undertaking of activities in accordance with section 13B.
(2) Guidelines made under subsection (1) are not a legislative instrument.