National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Act 2024 (24 of 2024)
Schedule 2 Protecting identities and information
Part 1 Cover employment
Intelligence Services Act 2001
5 After section 41
Insert:
41AA Cover employment for ASIS and ASD staff members
(1) A person who is a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, may identify a Commonwealth authority as that person's employer or place of work, in relation to a period during which the person is or was a staff member of that agency, in accordance with a determination made by the relevant agency head under subsection 41AB(1).
(2) Subsection (1) applies despite any other law of the Commonwealth, a State or a Territory (whether passed or made before, on or after the commencement of this section), including such other law that is expressed to apply despite any other law.
41AB Cover employment - determining a specified Commonwealth authority
Determining specified Commonwealth authority
(1) Subject to subsection (5), the agency head of ASIS or ASD may, in writing, determine one or more specified Commonwealth authorities, within the meaning of paragraphs (a), (b), (c) and (d) of the definition of Commonwealth authority in subsection 3(1), that may be identified as theemployer or place of work of staff members or former staff members of that agency.
Note: For variation and revocation of an instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) Without limiting subsection (1), a determination under that subsection may do either or both of the following:
(a) determine a specified Commonwealth authority in relation to a specified class of staff members or former staff members of the agency;
(b) specify limitations or restrictions in relation to the identification of a specified Commonwealth authority as theemployer or place of work of staff members or former staff members of the agency.
(3) To avoid doubt, and without limiting subsection (1) or (2), if a determination under subsection (1) determines a specified Commonwealth authority in relation to a class of staff members or former staff members of the agency holding, occupying or performing the duties of a specified office or position, the class includes such an office or position that comes into existence after the determination is made.
(4) Subsection (3) does not, by implication, affect the interpretation of any other provision of this Act.
(5) The agency head must not determine a specified Commonwealth authority under subsection (1) unless the head of that authority has agreed, in writing, to the authority being so determined.
(6) To avoid doubt, the Chief of the Defence Force (within the meaning of the Defence Act 1903) is the head of the Defence Force for the purposes of subsection (5).
Note: The Defence Force is a Commonwealth authority: see paragraph (c) of the definition of Commonwealth authority in subsection 3(1).
(7) The following are not legislative instruments:
(a) a determination under subsection (1);
(b) an agreement under subsection (5).
Delegation
(8) The agency head of ASIS or ASD may, in writing, delegate the agency head's powers or duties under this section to a staff member of that agencywho holds or is acting in a position in the agency that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 3.
(9) In exercising powers or discharging duties under a delegation under subsection (8), the delegate must comply with any written direction given by the agency head to the delegate.
41AC Protection from criminal liability - third parties
(1) If a person does something that, apart from this section, would be an offence against a law of the Commonwealth, a State or a Territory, the person is not criminally responsible for the offence if:
(a) the person is a staff member of any Commonwealth authority (see subsection (3)); and
(b) the thing is done in the course of the person exercising or performing the person's powers, functions or duties as such a staff member; and
(c) the thing is done to facilitate a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, (the ASIS or ASD person ) to identify a Commonwealth authority as the ASIS or ASD person's employer or place of work in relation to a period for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1); and
(d) doing the thing would not be an offence if the Commonwealth authority referred to in paragraph (c) were the ASIS or ASD person's employer or place of work for the period mentioned in that paragraph.
(2) If a person does something that, apart from this section, would be an offence against a law of the Commonwealth, a State or a Territory, the person is not criminally responsible for the offence if:
(a) the thing is done in the performance of the functions attaching to the person's professional capacity; and
(b) the thing is done to facilitate a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, (the ASIS or ASD person ) to identify a Commonwealth authority as the ASIS or ASD person's employer or place of work in relation to a period for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1); and
(c) doing the thing would not be an offence if the Commonwealth authority referred to in paragraph (b) were the ASIS or ASD person's employer or place of work for the period mentioned in that paragraph.
(3) For the purposes of paragraphs (1)(a) and (b), a staff member of a Commonwealth authority means:
(a) the head (however described) of the Commonwealth authority, or another person who holds an office or appointment in relation to the Commonwealth authority; and
(b) a person who is otherwise a member of the staff of the Commonwealth authority, whether:
(i) an employee of the Commonwealth authority; or
(ii) a consultant or contractor to the Commonwealth authority; or
(iii) a person who is made available, to perform services for the Commonwealth authority, by another Commonwealth authority, a State authority or other person.
Note: If a person referred to in paragraphs (1)(a) and (b) is a staff member of ASIO or an agency (within the meaning of subsection 3(1)), the definition of staff member in subsection (3) of this section applies for the purposes of those paragraphs rather than the definition of staff member in subsection 3(1).