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
Australian Security Intelligence Organisation Act 1979
2 At the end of Part V
Add:
92B Cover employment for ASIO employees and ASIO affiliates
(1) A person who is an ASIO employee or ASIO affiliate, or a former ASIO employee or former ASIO affiliate, may identify an authority of the Commonwealth as that person's employer or place of work, in relation to a period during which the person is or was an ASIO employee or ASIO affiliate, in accordance with a determination made by the Director-General under subsection 92C(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.
92C Cover employment - determining a specified authority of the Commonwealth
Determining specified authority of the Commonwealth
(1) Subject to subsection (5), the Director-General may, in writing, determine one or more specified authorities of the Commonwealth, within the meaning of paragraphs (a), (aa), (b) and (c) of the definition of authority of the Commonwealth in section 4, that may be identified as the employer or place of work of ASIO employees, ASIO affiliates, former ASIO employees or former ASIO affiliates.
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 authority of the Commonwealth in relation to a specified class of ASIO employees, ASIO affiliates, former ASIO employees or former ASIO affiliates;
(b) specify limitations or restrictions in relation to the identification of a specified authority of the Commonwealth as the employer or place of work of ASIO employees, ASIO affiliates, former ASIO employees or former ASIO affiliates.
(3) To avoid doubt, and without limiting subsection (1) or (2), if a determination under subsection (1) determines a specified authority of the Commonwealth in relation to a class of ASIO employees, ASIO affiliates, former ASIO employers or former ASIO affiliates 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 Director-General must not determine a specified authority of the Commonwealth 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 an authority of the Commonwealth: see paragraph (b) of the definition of authority of the Commonwealth in section 4.
(7) The following are not legislative instruments:
(a) a determination under subsection (1);
(b) an agreement under subsection (5).
Delegation
(8) The Director-General may, in writing, delegate the Director-General's powers or duties under this section to an ASIO employee, or an 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 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 Director-General to the delegate.
92D 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 authority of the Commonwealth; 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 an ASIO employee or ASIO affiliate, or a former ASIO employee or former ASIO affiliate, (the ASIO person ) to identify an authority of the Commonwealth as the ASIO person's employer or place of work in relation to a period for the purposes of subsection 92B(1), in accordance with a determination under subsection 92C(1); and
(d) doing the thing would not be an offence if the authority of the Commonwealth referred to in paragraph (c) were the ASIO 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 an ASIO employee or ASIO affiliate, or a former ASIO employee or former ASIO affiliate, (the ASIO person ) to identify an authority of the Commonwealth as the ASIO person's employer or place of work in relation to a period for the purposes of subsection 92B(1), in accordance with a determination under subsection 92C(1); and
(c) doing the thing would not be an offence if the authority of the Commonwealth referred to in paragraph (b) were the ASIO person's employer or place of work for the period mentioned in that paragraph.