Australian Security Intelligence Organisation Amendment Act 2020 (134 of 2020)
Schedule 2 Amendments relating to tracking devices
Australian Security Intelligence Organisation Act 1979
8 After Subdivision D of Division 2 of Part III
Insert:
Subdivision DA - Use of tracking devices under internal authorisation
26G Use of tracking devices under internal authorisation
Request for authorisation
(1) An ASIO employee or ASIO affiliate (the applicant ) may request an authorising officer to give an authorisation under this section in respect of a matter (the security matter ) that is important in relation to security.
Note: An authorisation given under this section cannot authorise certain things, including the following:
(a) entering premises or interfering with the interior of a vehicle without permission;
(b) remotely installing a tracking device;
(c) installing a tracking device to listen to a person;
(d) any other thing that the Organisation would otherwise need a warrant under section 25A to do.
See section 26K.
(2) The request must be made in relation to one or both of the following:
(a) a particular person;
(b) an object or a class of object.
(3) The request may be made:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(4) A request under subsection (1) must include a statement of:
(a) the facts and other grounds on which the applicant considers it necessary that the authorisation should be given; and
(b) the extent to which the applicant considers that the authorisation will substantially assist the collection of intelligence in respect of the security matter; and
(c) the period for which the applicant considers the authorisation should remain in force, which must not exceed 90 days.
(5) If the request is made orally, a written record of the request that meets the requirements of subsection (4) must be made within 48 hours after the request is made.
Test for giving of authorisation
(6) The authorising officer may give the authorisation only if the authorising officer is satisfied that there are reasonable grounds for believing that:
(a) if the authorisation is requested in relation to a particular person - the use by the Organisation of a tracking device in relation to the person will, or is likely to, substantially assist the collection of intelligence in respect of the security matter; and
(b) if the authorisation is requested in relation to an object or class of object - the use by the Organisation of a tracking device in or on that object, or an object of that class, will, or is likely to, substantially assist the collection of intelligence in respect of the security matter.
(7) To avoid doubt, the identity of the person referred to in paragraph (6)(a) need not be known.
Authorisation may be subject to restrictions or conditions
(8) The authorisation is subject to any restrictions or conditions specified in it.
26H Requirements for internal authorisations
(1) An internal authorisation may be given:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(2) The authorisation must specify:
(a) the matter (the security matter ) that is important in relation to security in respect of which the authorisation is given; and
(b) the day and time the authorisation is given; and
(c) if the authorisation is given in relation to a particular person - the name of the person (if known) or the fact that the person's identity is unknown; and
(d) if the authorisation is given in relation to an object or a class of object - the object or class of object; and
(e) the restrictions or conditions (if any) to which the authorisation is subject.
(3) The authorisation must also specify the period for which the authorisation is to remain in force, being a period that:
(a) the authorising officer considers reasonable and necessary in the circumstances; and
(b) does not exceed 90 days;
but the authorising officer may revoke the authorisation before the period has expired.
(4) Subsection (3) does not prevent the giving of further internal authorisations in relation to the same security matter.
(5) If an internal authorisation is given orally, a written record of the authorisation that meets the requirements of subsections (2) and (3) must be made within 48 hours after the authorisation is given.
(6) The following are not legislative instruments:
(a) an authorisation under this section;
(b) a written record referred to in subsection (5).
26J What an internal authorisation authorises
Things that may be authorised - particular person
(1) If an internal authorisation is given in relation to a particular person, the authorisation may authorise the Organisation to do, without warrant, one or more of the following:
(a) install, use or maintain one or more tracking devices to track the person;
(b) install, use or maintain one or more tracking devices in or on any object used or worn, or likely to be used or worn, by the person;
(c) install, use or maintain enhancement equipment in relation to the device or devices referred to in paragraph (a) or (b);
(d) enter into or onto, or alter, the object referred to in paragraph (b);
(e) any thing reasonably necessary to conceal the fact that any thing has been done in accordance with the authorisation;
(f) any other thing reasonably incidental to any of the above.
Note: However, an internal authorisation cannot authorise the doing of certain things: see section 26K.
Things that may be authorised - object or class of object
(2) If an internal authorisation is given in relation to an object or a class of object, the authorisation may authorise the Organisation to do, without warrant, one or more of the following:
(a) install, use or maintain one or more tracking devices in or on the specified object, or an object of the specified class;
(b) install, use or maintain enhancement equipment in relation to the device or devices;
(c) enter into or onto, or alter, the specified object, or an object of the specified class;
(d) any thing reasonably necessary to conceal the fact that any thing has been done in accordance with the authorisation;
(e) any other thing reasonably incidental to any of the above.
Note: However, an internal authorisation cannot authorise the doing of certain things: see section 26K.
26K Certain acts not authorised
Neither an internal authorisation nor section 26L authorises any of the following:
(a) the doing of any thing that would involve either or both of the following:
(i) entering premises without permission from the owner or occupier of the premises;
(ii) interference with the interior of a vehicle without permission of the person having lawful possession or control of the vehicle;
(b) the remote installation of a tracking device or enhancement equipment in relation to the device;
(c) the installation, use or maintenance of a tracking device, or enhancement equipment in relation to the device, to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person;
(d) the doing of any thing by the Organisation if, apart from section 26G, the Organisation could not do the thing without it being authorised by a warrant issued under section 25A.
Note: Section 26L deals with the recovery of tracking devices.
26L Recovery of tracking devices
(1) If a tracking device is installed, used or maintained under an internal authorisation, the Organisation is also authorised to do any of the following:
(a) recover the tracking device or any enhancement equipment in relation to the device;
(b) any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;
(c) any other thing reasonably incidental to any of the above;
at the following time:
(d) at any time while the authorisation is in force or within 28 days after it ceases to be in force;
(e) if the device or equipment is not recovered at a time mentioned in paragraph (d) - at the earliest time, after the 28 days mentioned in that paragraph, at which it is reasonably practicable to do the things concerned.
(2) If, for the purposes of subsection (1), a tracking device or enhancement equipment in relation to the device is not recovered while the authorisation is in force, the Organisation is also authorised to use the device or equipment solely for the purposes of the location and recovery of the device or equipment.
Note: However, subsections (1) and (2) do not authorise the doing of a thing that would involve a thing specified in section 26K.
26M Exercise of authority under internal authorisations
The authority conferred by an internal authorisation or by section 26L may be exercised on behalf of the Organisation by:
(a) an ASIO employee; or
(b) an ASIO affiliate.
26N Variation of internal authorisations
Request for variation
(1) An ASIO employee or ASIO affiliate (the applicant ) may request an authorising officer to vary an internal authorisation.
(2) The request may be made:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(3) A request under subsection (1) must include a statement of:
(a) the facts and other grounds on which the applicant considers it necessary that the authorisation should be varied; and
(b) the extent to which the applicant considers that the authorisation, as varied, will substantially assist the collection of intelligence in respect of the matter (the security matter ) that is important in relation to security in respect of which the authorisation is given.
(4) If the request is made orally, a written record of the request that meets the requirements of subsection (3) must be made within 48 hours after the request is made.
Giving of variation
(5) The authorising officer may vary the authorisation only if the authorising officer is satisfied that there are reasonable grounds for believing that the authorisation, as varied, will substantially assist the collection of intelligence in respect of the security matter.
(6) If the variation extends, or further extends, the period during which the authorisation is in force, the total period during which the authorisation is in force must not exceed 90 days.
(7) An internal authorisation may be varied more than once under this section.
Requirements for variations
(8) A variation under this section may be given:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(9) If the variation is given orally, a written record of the variation must be made within 48 hours after the variation is given.
Written variations and records not legislative instruments
(10) The following are not legislative instruments:
(a) a variation under this section;
(b) a written record referred to in subsection (9).
26P Discontinuance of action before expiration of internal authorisation
(1) Subject to subsections (3) and (4), if an authorising officer is satisfied that the grounds on which an internal authorisation was given have ceased to exist, the authorising officer must, as soon as practicable, take such steps as are necessary to ensure that action under the internal authorisation is discontinued.
(2) For the purposes of subsection (1), action under an internal authorisation does not include the recovery of a tracking device or any enhancement equipment in relation to the device.
(3) If:
(a) an internal authorisation was given in relation to more than one of the matters mentioned in subsection 26G(2); and
(b) the grounds on which the internal authorisation was given 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.
(4) Subsection (1) does not apply to an authorising officer if another authorising officer has already taken, or started to take, such steps as are necessary to ensure that action under the internal authorisation is discontinued.
26Q Register of internal authorisations
(1) The Director-General must establish and maintain a register of requests for internal authorisations.
(2) The register may be kept by electronic means.
(3) The register must include, for each request for an internal authorisation:
(a) the name of the person who made the request; and
(b) the matter that is important in relation to security in respect of which the authorisation was requested; and
(c) the day on which the authorisation was given or refused; and
(d) the name of the authorising officer who gave or refused to give the authorisation; and
(e) if the authorisation was given:
(i) the day on which the authorisation ceased to be in force; and
(ii) whether action under the authorisation was discontinued in accordance with section 26P, and, if so, the day on which the action was discontinued; and
(f) the location at which any record relating to the request (including the request) is kept by the Organisation.
Note: For the purposes of paragraph (f), the location may be a physical location or an electronic location.
(4) The register is not a legislative instrument.
26R Issue of warrants for recovery of tracking devices
Request for warrant
(1) The Director-General may request the Attorney-General to issue a warrant under this section in respect of one or more tracking devices (the relevant devices ), or enhancement equipment in relation to the device or devices (the relevant equipment ), if:
(a) the relevant devices, or relevant equipment, were:
(i) installed in or on an object by the Organisation; or
(ii) used by the Organisation; or
(iii) maintained by the Organisation; and
(b) the installation, use or maintenance was not under:
(i) a surveillance device warrant; or
(ii) a warrant issued under section 27A; or
(iii) an identified person warrant; and
(c) recovery of the device or devices or equipment may involve either or both of the following:
(i) entering premises without permission from the owner or occupier of the premises;
(ii) interference with the interior of a vehicle without permission of the person having lawful possession or control of the vehicle.
Issue of warrant
(2) The Attorney-General may issue a warrant in respect of the relevant devices or relevant equipment if the Attorney-General is satisfied that failure to recover the relevant devices or relevant equipment would be prejudicial to security.
(3) In determining whether the warrant should be issued, the Attorney-General must have regard to the risk that information relating to the operations, capabilities or technologies of, or methods or sources used by, the Organisation will be communicated or made available to the public without the authority of the Commonwealth if the warrant is not issued.
Requirements for warrant
(4) A warrant issued under this section must:
(a) be signed by the Attorney-General; and
(b) specify:
(i) details of the relevant devices or relevant equipment; and
(ii) the day the warrant is issued; and
(iii) the period during which the warrant is in force, which must not be more than 90 days; and
(iv) any restrictions or conditions that the Attorney-General considers appropriate in the circumstances; 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 to premises is authorised to be made at any time of the day or night or during stated hours of the day or night.
(5) Subparagraph (4)(b)(iii) does not prevent the issuing of further warrants in relation to the same devices or equipment.
Authorisation in warrant
(6) A warrant issued under this section in respect of relevant devices or relevant equipment authorises the Organisation to:
(a) recover the devices or equipment; and
(b) do any of the following:
(i) use the devices or equipment solely for the purposes of locating the devices or equipment;
(ii) enter any premises where the devices or equipment are reasonably believed to be, for the purpose of recovering the devices or equipment;
(iii) enter any other premises for the purpose of gaining entry to or exiting the premises referred to in subparagraph (ii);
(iv) enter into or onto, or alter, an object for the purpose of recovering the devices or equipment;
(v) replace an object with an equivalent object for the purpose of recovering the devices or equipment;
(vi) break open any thing for the purpose of recovering the devices or equipment;
(vii) if the devices or equipment are installed in or on an object - temporarily remove the object from any place where it is situated for the purpose of recovering the devices or equipment and returning the object to that place;
(viii) use a nominal amount of electricity from any source to power the devices or equipment;
(ix) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;
(x) use any force against persons and things that is necessary and reasonable to do any of the above;
(xi) any other thing reasonably incidental to any of the above.