National Security Legislation Amendment Act (No. 1) 2014

(108 of 2014)

An Act to amend the law relating to national security and intelligence services, and for related purposes

[Assented to 2 October 2014]

The Parliament of Australia enacts:

[Minister's second reading speech made in - Senate on 16 July 2014 House of Representatives on 1 October 2014 ]

1 Short title

This Act may be cited as the National Security Legislation Amendment Act (No. 1) 2014.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	2 October 2014
2. Schedules 1 to 6	The 28th day after this Act receives the Royal Assent.	30 October 2014
3. Schedule 7, items 1 to 110	The day after this Act receives the Royal Assent.	3 October 2014
4. Schedule 7, items 111 to 114	The day after this Act receives the Royal Assent. However, if item 1 of Schedule 1 to the Independent National Security Legislation Monitor Repeal Act 2014 commences at or before that time, the provision(s) do not commence at all.	3 October 2014
5. Schedule 7, items 115 to 145	The day after this Act receives the Royal Assent.	3 October 2014

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 ASIO employment etc.

Part 1 Main amendments

Australian Security Intelligence Organisation Act 1979

1 Section 4

Insert:

ASIO affiliate means a person performing functions or services for the Organisation in accordance with a contract, agreement or other arrangement, and includes a person engaged under section 85 and a person performing services under an agreement under section 87, but does not include the Director-General or an ASIO employee.

ASIO employee means a person employed under section 84 or 90.

2 Section 4 (definition of Deputy Director-General )

Omit "an officer of the Organisation who holds office", substitute "a person who holds, or is acting in, a position known".

3 Section 4

Insert:

senior position-holder means an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is:

(a) equivalent to or higher than a position occupied by an SES employee; or

(b) known as Coordinator.

4 Paragraph 8A(1)(b)

Omit "sections 85 and 86", substitute "sections 84, 85, 86 and 87".

5 Section 16

Repeal the section, substitute:

16 Delegation

(1) The Director-General may, by signed writing, delegate to a person any of the Director-General's powers, functions or duties under or for the purposes of this Act that relate to:

(a) the management of ASIO employees or ASIO affiliates; or

(b) the financial management of the Organisation.

Note: For further provisions relating to delegations, see sections 34AB and 34A of the Acts Interpretation Act 1901.

(2) In exercising powers, performing functions or discharging duties under a delegation, the delegate must comply with any written direction given by the Director-General to the delegate.

6 Subsection 18(2)

Repeal the subsection (not including the penalty), substitute:

Offence for unauthorised communication of information or matter

(2) A person commits an offence if:

(a) the person makes a communication of any information or matter; and

(b) the information or matter has come to the knowledge or into the possession of the person by reason of:

(i) his or her being, or having been, an ASIO employee; or

(ii) his or her being, or having been, an ASIO affiliate; or

(iii) his or her having entered into a contract, agreement or arrangement with ASIO (otherwise than as an ASIO affiliate); and

(i) was acquired or prepared by or on behalf of the Organisation in connection with its functions; or

(ii) relates to the performance by the Organisation of its functions; and

(d) the communication was not made to the Director-General, an ASIO employee or an ASIO affiliate:

(i) by an ASIO employee, in the course of the ASIO employee's duties; or

(ii) by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation; or

(iii) by a person who has entered into a contract, agreement or arrangement with ASIO (otherwise than as an ASIO affiliate), in accordance with the contract, agreement or arrangement; and

(e) the communication was not made by a person acting within the limits of authority conferred on the person by the Director-General; and

(f) the communication was not made with the approval of the Director-General or of a person having the authority of the Director-General to give such an approval.

7 Subsection 19A(3)

Omit "officers and employees, and other resources, of the Organisation", substitute "ASIO employees and ASIO affiliates, and other resources of the Organisation,".

8 Subsection 23(1)

Omit "an authorised officer or employee", substitute "the Director-General or an authorised person".

9 Subsection 23(6)

Repeal the subsection, substitute:

(6) The Director-General, or a person appointed under subsection (6A), may authorise, in writing, a person, or a class of persons, for the purposes of this section.

(6A) The Director-General may, in writing, appoint a senior position-holder, or a class of senior position-holders, for the purposes of subsection (6).

10 Subsection 23(7) (definition of authorised officer or employee )

Repeal the definition.

11 Subsection 23(7)

Insert:

authorised person means a person who is authorised under subsection (6) for the purposes of this section.

12 Subsection 23(7) (definition of senior officer of the Organisation )

Repeal the definition.

13 Subsection 25A(4) (note)

Omit "an ASIO officer", substitute "a person".

14 Subsection 25A(4) (note)

Omit "the ASIO officer", substitute "the person".

15 Subsections 27(1) and 27AA(1)

Omit "an officer, employee or agent of the Organisation" (wherever occurring), substitute "the Director-General, an ASIO employee or an ASIO affiliate".

16 Paragraph 34ZC(2)(c)

Repeal the paragraph, substitute:

17 Subparagraph 34ZE(7)(c)(iii)

Repeal the subparagraph, substitute:

(iii) an ASIO employee or an ASIO affiliate;

18 Part V (heading)

Repeal the heading, substitute:

Part V - ASIO employees etc.

19 Sections 84 to 89

Repeal the sections, substitute:

84 Employees of the Organisation

Employees

(1) The Director-General may, on behalf of the Commonwealth, employ such persons as he or she considers necessary for the performance of the Organisation's functions and the exercise of the Organisation's powers.

(2) The Director-General may from time to time determine in writing the terms and conditions of employment applying to persons employed under subsection (1).

(3) The Director-General, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of persons employed under subsection (1).

(4) Without limiting subsection (3), the Director-General has, in respect of persons employed under subsection (1), the rights, duties and powers that are prescribed by regulation.

Termination of employment

(5) The Director-General may, at any time, by written notice, terminate the employment of a person employed under subsection (1).

Note: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

85 Consultants and contractors

(1) The Director-General may engage persons as consultants or contractors to the Organisation.

(2) An engagement under subsection (1) is to be made:

(a) on behalf of the Commonwealth; and

(b) by written agreement.

86 Secondment of ASIO employees

Secondment

(1) The Director-General may, in writing, arrange for an ASIO employee to be seconded for a specified period to a body or organisation whether within or outside Australia.

Termination of secondment

(2) The Director-General may at any time, by notice given to the body or organisation to which an ASIO employee is seconded under subsection (1), terminate the secondment.

87 Secondment of persons to the Organisation

(1) The Director-General may, by written agreement with a body or organisation (whether within or outside Australia), arrange for a person who is an officer, employee or other member of staff of the body or organisation to be made available to the Organisation to perform services in connection with the performance or the exercise of any of the Organisation's functions or powers.

(2) The terms and conditions (including remuneration and allowances) applicable to a person performing services under an agreement are those specified in the agreement.

88 Applicability of principles of the Public Service Act 1999

Although ASIO employees are not employed under the Public Service Act 1999, the Director-General must adopt the principles of that Act in relation to ASIO employees to the extent to which the Director-General considers they are consistent with the effective performance of the functions of the Organisation.

89 Voluntary moves to APS

(1) Section 26 of the Public Service Act 1999 applies in relation to an ASIO employee as if the ASIO employee were an APS employee and the Organisation were an APS Agency.

(2) An ASIO employee who moves to an APS Agency under that section is entitled to have his or her employment, as an ASIO employee, treated as if it were:

(a) employment as an APS employee; and

(b) at a corresponding classification, as agreed between the Director-General and the Australian Public Service Commissioner.

20 Section 90 (heading)

Repeal the heading, substitute:

90 Regulations relating to employment of persons

21 Subsection 90(1)

Omit "officers otherwise than under agreements in writing and may, in respect of officers", substitute "persons otherwise than under section 84 and may, in respect of persons".

22 Subsection 90(2)

Repeal the subsection.

23 Subsection 90(2A)

Omit "persons who are or have been officers or temporary or casual employees", substitute "persons who are ASIO employees, ASIO affiliates, former ASIO employees or former ASIO affiliates".

24 Subsection 90(3)

Omit "notwithstanding sections 84, 85 and 86", substitute "despite section 84".

25 Subsection 90(4)

Repeal the subsection.

26 Section 91

Omit "officers and employees of the Organisation", substitute "ASIO employees and ASIO affiliates".

27 Section 92 (heading)

Repeal the heading, substitute:

92 Publication of identity of ASIO employee or ASIO affiliate

28 Subsection 92(1)

Omit all the words after "residing at", substitute:

a particular address, is:

(a) an ASIO employee or ASIO affiliate, or is in any way connected with an ASIO employee or ASIO affiliate; or

(b) subject to subsection (1B), is a former ASIO employee or former ASIO affiliate or is in any way connected with a former ASIO employee or former ASIO affiliate.

29 Subsection 92(1A)

Omit all the words after "residing at", substitute:

a particular address, is:

(a) an ASIO employee or ASIO affiliate, or is in any way connected with an ASIO employee or ASIO affiliate; or

(b) subject to subsection (1B), is a former ASIO employee or former ASIO affiliate, or is in any way connected with a former ASIO employee or former ASIO affiliate.

30 Subsection 92(1B)

Omit "former officer, employee or agent of the Organisation" (wherever occurring), substitute "former ASIO employee or former ASIO affiliate".

Part 2 Other amendments

Administrative Appeals Tribunal Act 1975

31 Subsection 3(1)

Insert:

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

32 Subsections 19(3B), 21AA(3) and 21AB(3)

Omit "an officer, employee or agent of the Australian Security Intelligence Organisation", substitute "an ASIO employee or ASIO affiliate".

33 Subsection 39A(15)

Repeal the subsection, substitute:

(15) If a person invited or summoned to give evidence under subsection (14) is:

(a) an ASIO employee or ASIO affiliate; or

(b) an officer or employee of the Commonwealth agency to which the assessment was given;

subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or that agency, as the case may be.

Australian Postal Corporation Act 1989

34 Subsection 90F(1)

Omit "an officer or employee of ASIO", substitute "a person".

35 Paragraph 90F(2)(b)

Omit "an officer or employee of ASIO", substitute "a person".

36 Paragraph 90LD(2)(a)

Repeal the paragraph, substitute:

(a) the person is an ASIO employee (within the meaning of the ASIO Act) or an ASIO affiliate (within the meaning of that Act) and the information or document is or may be relevant to security (within the meaning of that Act); or

Crimes Act 1914

37 Paragraph 15LH(3) (paragraph (f) of the definition of senior officer )

Omit "senior officer of the Australian Security Intelligence Organisation as defined in section 24 of the Australian Security Intelligence Organisation Act 1979, or a person occupying an equivalent or higher position in the Australian Security Intelligence Organisation", substitute "senior position-holder within the meaning of the Australian Security Intelligence Organisation Act 1979".

Criminal Code Act 1995

38 Subsection 100.1(1) of the Criminal Code

Insert:

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

39 Subparagraph 105.39(2)(b)(vi) of the Criminal Code

Omit "officer or employee of the Australian Security Intelligence Organisation", substitute "ASIO employee or an ASIO affiliate".

40 Subsections 105.42(2) and (3) of the Criminal Code

Omit "officer or employee of the Australian Security Intelligence Organisation", substitute "ASIO employee or an ASIO affiliate".

41 Subparagraph 105.43(11)(c)(iv) of the Criminal Code

Omit "officer or employee of the Australian Security Intelligence Organisation", substitute "ASIO employee or an ASIO affiliate".

Inspector-General of Intelligence and Security Act 1986

42 Subsection 3(1)

Insert:

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

43 Paragraph 8(1)(b)

Omit "employees of ASIO", substitute "ASIO employees and ASIO affiliates".

44 Paragraph 8(7)(a)

Omit "Director-General of Security or ASIO employees", substitute "Director-General of Security, ASIO employees or ASIO affiliates".

45 After subsection 8(7)

Insert:

(8) The functions of the Inspector-General include inquiring into a matter to which a complaint to the Inspector-General made by an ASIO affiliate relates to the extent that the matter is related to:

(a) the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for ASIO; or

(b) the performance of functions or services by the ASIO affiliate under the contract, agreement or other arrangement.

(8A) However, the Inspector-General may decide not to inquire into a matter referred to in subsection (8) if the Inspector-General is satisfied that the ASIO affiliate can have the matter reviewed by a body constituted by, or including, persons other than the Director-General of Security, ASIO employees or ASIO affiliates.

46 Paragraph 11(5)(a)

Omit "employees of that agency", substitute "ASIO employees or ASIS employees (as the case may be)".

47 At the end of paragraph 11(5)(a)

Add "or".

48 At the end of section 11

Add:

(6) The Inspector-General may decide not to inquire into the matters to which a complaint of the kind referred to in subsection 8(8) relates in respect of action taken by ASIO if the Inspector-General is satisfied that:

(a) the procedures of ASIO relating to redress of grievances of ASIO affiliates are adequate and effective; or

(b) the complainant has not pursued those procedures as far as practicable; or

(c) the matters to which the complaint relates are not of sufficient seriousness or sensitivity to justify an inquiry into those matters.

Public Interest Disclosure Act 2013

49 Subparagraph 41(1)(f)(i)

Omit "or the Australian Security Intelligence Organisation".

50 After paragraph 41(1)(f)

Insert:

(fa) information:

(i) that identifies a person as an ASIO employee (within the meaning of the Australian Security Intelligence Organisation Act 1979), an ASIO affiliate (within the meaning of that Act), a former ASIO employee, or a former ASIO affiliate, other than a person referred to in subsection (4); or

(ii) from which the identity of such a person could reasonably be inferred; or

(iii) that could reasonably lead to the identity of such a person being established;

51 Subsection 41(3)

Repeal the subsection, substitute:

(3) Paragraph (1)(f) does not apply to the Director-General of ASIS, or a person who has been determined by the Director-General of ASIS under this subsection.

(4) Paragraph (1)(fa) does not apply to the Director-General of Security, or a person who has been determined by the Director-General of Security under this subsection.

52 Section 66 (table item 7)

Omit "agency to which the agent or member of the staff referred to in that paragraph belongs", substitute "Australian Secret Intelligence Service".

53 Section 66 (after table item 7)

Insert:

Paragraph 41(1)(fa)

The Australian Security Intelligence Organisation.

Surveillance Devices Act 2004

54 Subparagraph 45(4)(e)(i)

Omit "officer or employee of the Australian Security Intelligence Organisation", substitute "ASIO employee (within the meaning of the Australian Security Intelligence Organisation Act 1979) or an ASIO affiliate (within the meaning of that Act)".

Taxation Administration Act 1953

55 Paragraph 355-70(2)(b) in Schedule 1

Omit "any other individual employed under paragraph 84(1)(a) or (b) of that Act", substitute "an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act)".

56 Paragraphs 355-185(1)(c) and (2)(c) in Schedule 1

Omit "officers or employees of ASIO", substitute "ASIO employees (within the meaning of the Australian Security Intelligence Organisation Act 1979) or ASIO affiliates (within the meaning of that Act)".

Telecommunications (Interception and Access) Act 1979

57 Subsection 5(1)

Insert:

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

58 Subsection 5(1) (definition of Deputy Director-General of Security )

Omit "an officer of the Organisation who holds office", substitute "a person who holds, or is acting in, a position known".

59 Section 5AD

Omit "senior officer of the Organisation (within the meaning of section 24", substitute "senior position-holder (within the meaning".

60 Paragraph 7(2)(ac)

Omit "officer of the Organisation", substitute "ASIO employee".

61 After paragraph 7(2)(ac)

Insert:

(ad) the interception of a communication where the interception results from, or is incidental to, action taken by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation, for the purpose of:

(i) discovering whether a listening device is being used at, or in relation to, a particular place; or

(ii) determining the location of a listening device; or

62 Section 12

Omit "an officer of the Organisation", substitute "an ASIO employee or ASIO affiliate".

63 Section 12

Omit "officers and employees of the Organisation and other persons", substitute "any persons".

64 Subsection 18(4)

Omit all the words after "respect", substitute:

to anything done by an ASIO employee or an ASIO affiliate:

(a) in connection with the execution of a warrant issued under this Part; or

(b) in connection with:

(i) the communication by a person to another person of; or

(ii) the making use of; or

(iii) the making of a record of; or

(iv) the custody of a record of; or

(v) the giving in evidence of;

information obtained by the execution of such a warrant.

65 Paragraph 55(3)(c)

Repeal the paragraph, substitute:

66 Subsection 55(8)

Omit "officer or employee of the Organisation", substitute "ASIO employee".

67 Subsection 64(2)

Omit "officer or employee of the Organisation", substitute "ASIO employee or ASIO affiliate".

68 Paragraph 108(2)(g)

Omit "an officer of the Organisation", substitute "an ASIO employee".

69 After paragraph 108(2)(g)

Insert:

(ga) accessing a stored communication if the access results from, or is incidental to, action taken by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation, for the purpose of:

(i) discovering whether a listening device is being used at, or in relation to, a particular place; or

(ii) determining the location of a listening device; or

70 Subsections 136(2) and (3)

Omit "officer or employee of the Organisation", substitute "ASIO employee or ASIO affiliate".

71 Subsection 136(3)

Omit "such officer or employee", substitute "ASIO employee or ASIO affiliate".

72 Subsection 136(4)

Omit "officer or employee of the Organisation", substitute "ASIO employee or ASIO affiliate".

73 Subsection 174(2)

Omit "an officer or employee of the Organisation", substitute "any other ASIO employee or ASIO affiliate".

74 Section 175

Omit "officer or employee of the Organisation" (wherever occurring), substitute "ASIO employee or ASIO affiliate".

75 Paragraph 176(2)(c)

Omit "officer or employee of the Organisation", substitute "ASIO employee or ASIO affiliate".

76 Subsections 184(1) and (2)

Omit "officer or employee of the Organisation", substitute "ASIO employee or ASIO affiliate".

77 Paragraphs 185B(1)(a) and (b)

Omit "officer or employee of the Organisation", substitute "ASIO employee or ASIO affiliate".

Part 3 Transitional and application provisions

78 Transitional - delegations

(1) This item applies to a delegation if the delegation was in force under section 16 of the Australian Security Intelligence Organisation Act 1979 immediately before the commencement of this Schedule.

(2) The delegation has effect, after that commencement, as if the delegation had been made under section 16 of that Act as amended by this Schedule.

79 Transitional - requesting information or documents from operators of aircraft or vessels

(1) If, immediately before the commencement of this Schedule, a person was an authorised officer or employee within the meaning of section 23 of the Australian Security Intelligence Organisation Act 1979, the person is taken, after that commencement, to be an authorised person within the meaning of that section as amended by this Schedule.

(2) If, immediately before the commencement of this Schedule, a person was an authorising officer for the purposes of subsection 23(6) of the Australian Security Intelligence Organisation Act 1979, the person is taken, after that commencement, to be a person appointed under subsection 23(6A) of that Act as inserted by this Schedule.

80 Application and transitional - employees of the Organisation

A person who, immediately before the commencement of this Schedule, was an officer or employee of the Organisation employed under section 84 of the Australian Security Intelligence Organisation Act 1979, is, immediately after that commencement, taken to be employed:

(a) under subsection 84(1) of that Act as in force immediately after that commencement; and

(b) on the terms and conditions that were applicable to the person immediately before that commencement.

81 Employees of the Organisation - acquisition of property

(1) This item applies to a person who, immediately before the commencement of this Schedule, was an officer or employee of the Organisation employed under section 84 of the Australian Security Intelligence Organisation Act 1979.

(2) Section 84 of the Australian Security Intelligence Organisation Act 1979, as substituted by this Schedule, does not apply to the extent (if any) to which the operation of that section would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from the person otherwise than on just terms (within the meaning of that paragraph).

82 Transitional - former officers, employees or agents

If, immediately before the commencement of this Schedule, a person was a former officer, employee or agent of the Australian Security Intelligence Organisation, the person is, after that commencement, taken, for the purposes of the Australian Security Intelligence Organisation Act 1979, to be a former ASIO employee or former ASIO affiliate.

83 Transitional - authorisations under the Australian Postal Corporation Act 1989

If, immediately before the commencement of this Schedule, a person was an authorised ASIO officer within the meaning of section 90F of the Australian Postal Corporation Act 1989, the person is taken, after that commencement, to be an authorised ASIO officer within the meaning of that section as amended by this Schedule.

84 Transitional - delegations under the Crimes Act 1914

(1) This item applies to a delegation if the delegation was in force immediately before the commencement of this Schedule under section 15LH of the Crimes Act 1914 in relation to a person referred to in paragraph (f) of the definition of senior officer in subsection 15LH(3) of that Act.

(2) The delegation has effect, after that commencement, as if the delegation had been made under that section in relation to a person referred to in that paragraph as amended by this Schedule.

85 Transitional - determinations under the Public Interest Disclosure Act 2013

(1) If, immediately before the commencement of this Schedule, a person is a person determined by the Director-General of ASIS under paragraph 41(3)(a) of the Public Interest Disclosure Act 2013, the person is taken, after that commencement, to be a person determined by the Director-General of ASIS under subsection 41(3) of that Act as substituted by this Schedule.

(2) If, immediately before the commencement of this Schedule, a person is a person determined by the Director-General of Security under paragraph 41(3)(b) of the Public Interest Disclosure Act 2013, the person is taken, after that commencement, to be a person determined by the Director-General of Security under subsection 41(4) of that Act as inserted by this Schedule.

86 Transitional - authorisations under the Taxation Administration Act 1953

If, immediately before the commencement of this Schedule, a person was an authorised ASIO officer within the meaning of paragraph 355-70(2)(b) of the Taxation Administration Act 1953, the person is taken, after that commencement, to be an authorised ASIO officer within the meaning of that paragraph as amended by this Schedule.

87 Transitional provisions - Telecommunications (Interception and Access) Act 1979

(1) If, immediately before the commencement of this Schedule, a person was a person authorised to be a certifying person under section 5AD of the Telecommunications (Interception and Access) Act 1979, the person is taken, after that commencement, to be a person authorised to be a certifying person under that section as amended by this Schedule.

(2) If, immediately before the commencement of this Schedule, a person was an authorizing officer for the purposes of section 12 of the Telecommunications (Interception and Access) Act 1979, the person is taken, after that commencement, to be an authorizing officer for the purposes of that section as amended by this Schedule.

(3) If, immediately before the commencement of this Schedule, a person was approved under section 12 of the Telecommunications (Interception and Access) Act 1979, the person is taken, after that commencement, to be a person approved under that section as amended by this Schedule.

(4) If, immediately before the commencement of this Schedule, a person was approved under paragraph 55(3)(c) of the Telecommunications (Interception and Access) Act 1979 to exercise the authority conferred by warrants (or classes of warrants), the person is taken, after that commencement, to be approved under that paragraph as amended by this Schedule.

Schedule 2 Powers of the Organisation

Part 1 Amendments

Australian Security Intelligence Organisation Act 1979

1 Section 4 (definition of certified copy )

Repeal the definition, substitute:

certified copy means:

(a) in relation to a warrant - a copy of the warrant that has been certified in writing by the Director-General or a Deputy Director-General to be a true copy of the warrant; or

(b) in relation to an authorisation under section 27G - a copy of the authorisation that has been certified in writing by the Director-General or a Deputy Director-General to be a true copy of the authorisation; or

(c) in relation to an instrument varying or revoking a warrant or an authorisation under section 27G - a copy of the instrument that has been certified in writing by the Director-General or a Deputy Director-General to be a true copy of the instrument.

2 Before section 22

Insert:

Subdivision A - Preliminary

3 Section 22

Insert:

communication in transit means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).

4 Section 22 (definition of computer )

Repeal the definition, substitute:

computer means all or part of:

(a) one or more computers; or

(b) one or more computer systems; or

(d) any combination of the above.

5 Section 22

Insert:

device includes instrument, apparatus and equipment.

enhancement equipment , in relation to a surveillance device, means equipment capable of enhancing a signal, image or other information obtained by the use of the surveillance device.

identified person warrant means a warrant issued under section 27C.

install includes attach and apply.

6 Section 22 (definition of listening device )

Repeal the definition, substitute:

listening device means any device capable of being used, whether alone or in conjunction with any other device, to overhear, record, monitor or listen to sounds, signals or a conversation, or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome that impairment and permit that person to hear only sounds ordinarily audible to the human ear.

7 Section 22

Insert:

maintain , in relation to a surveillance device, includes adjust, improve, relocate, repair, service and replace the device.

object means:

(a) a vehicle, aircraft, vessel or other means of transportation; or

(b) clothing or any other thing worn; or

optical surveillance device means any device capable of being used, whether alone or in conjunction with any other device, to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.

prejudicial activities of a person means activities prejudicial to security that the person is engaged in, or is reasonably suspected by the Director-General of being engaged in, or of being likely to engage in.

surveillance device means:

(a) a listening device, an optical surveillance device or a tracking device; or

(b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a) or (c); or

surveillance device warrant means a warrant issued under section 26.

track an object or person means be aware of the movement of the object or person from place to place.

tracking device means a device or substance that, when installed in or on an object, enables a person to track the object or a person using or wearing the object.

use of a surveillance device includes use of the device:

(a) to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person, or the activities of a person; or

(b) to track an object or person.

8 Section 24

Repeal the section, substitute:

24 Exercise of authority under warrant etc.

Who may exercise authority under warrant etc.

(1) The authority conferred by a relevant warrant or relevant device recovery provision may be exercised on behalf of the Organisation only by:

(a) the Director-General; or

(b) a person approved under subsection (2); or

Approval of persons authorised to exercise authority under warrant etc.

(2) The Director-General or a person appointed under subsection (3) may, in writing, approve a person, or a class of persons, as people authorised to exercise, on behalf of the Organisation, the authority conferred by relevant warrants or relevant device recovery provisions.

(3) The Director-General may, in writing, appoint a senior position-holder, or a class of senior position-holders, for the purposes of subsection (2).

Definitions

(4) In this section:

relevant device recovery provision means subsection 26B(5) or (6), 27A(3A) or (3B) or 27F(5).

relevant warrant means a warrant issued under this Division or under Division 3.

9 Before section 25

Insert:

Subdivision B - Search warrants

10 After paragraph 25(4)(a)

Insert:

(aa) entering any premises for the purposes of gaining entry to or exiting the subject premises;

11 Paragraph 25(5)(a)

After "adding,", insert "copying,".

12 Subsection 25(6)

Repeal the subsection, substitute:

Certain acts not authorised

(6) Subsection (5) 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 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 one or more of the things specified under subsection (5); or

(b) cause any other material loss or damage to other persons lawfully using the computer, equipment or device.

13 Subsection 25(7) (heading)

Repeal the heading, substitute:

Warrant must provide for certain matters

14 Paragraph 25(7)(a)

After "any force", insert "against persons and things".

15 Before section 25A

Insert:

Subdivision C - Computer access warrants

16 Subsection 25A(2)

Omit "particular".

17 At the end of subsection 25A(2)

Add:

Note: See section 22 for the definition of computer .

18 Subsection 25A(3)

Repeal the subsection, substitute:

(3) The target computer may be any one or more of the following:

(a) a particular computer;

(b) a computer on particular premises;

Authorisation in warrant

(3A) The warrant must:

(a) be signed by the Minister; and

(b) authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the target computer; and

(d) if the target computer is or includes a computer on particular premises - specify the premises; and

(e) if the target computer is or includes a computer associated with, used by or likely to be used by, a person - specify the person (whether by name or otherwise).

19 After paragraph 25A(4)(aa)

Insert:

(aaa) entering any premises for the purposes of gaining entry to or exiting the specified premises;

20 Subparagraph 25A(4)(a)(i)

Omit "a computer", substitute "the target computer".

21 Paragraph 25A(4)(a)

After "access to data", insert "(the relevant data )".

22 Paragraph 25A(4)(a)

After "adding,", insert "copying,".

23 After paragraph 25A(4)(a)

Insert:

(ab) 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 - using any other computer or a communication in transit to access the relevant data and, if necessary to achieve that purpose, adding, copying, deleting or altering other data in the computer or the communication in transit;

24 Subsection 25A(4) (note)

Omit "the target computer etc.", substitute "a computer etc.".

25 Subsection 25A(5)

Repeal the subsection, substitute:

Certain acts not authorised

(5) Subsection (4) 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 specified in the warrant; or

(b) cause any other material loss or damage to other persons lawfully using a computer.

26 Subsection 25A(5A) (heading)

Repeal the heading, substitute:

Warrant must provide for certain matters

27 Paragraph 25A(5A)(a)

After "any force", insert "against persons and things".

28 Paragraph 25A(5A)(b)

Before "state whether", insert "if the warrant authorises entering premises - ".

29 Sections 26 to 26C

Repeal the sections, substitute:

Subdivision D - Use of surveillance devices

26 Issue of surveillance device warrants

Issue of surveillance device warrant

(1) If the Director-General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (3), the Minister may issue a warrant in accordance with this section.

(2) The warrant may be issued:

(a) in relation to one or more of the following:

(i) a particular person;

(ii) particular premises;

(iii) an object or class of object; and

(b) in respect of more than one kind of surveillance device; and

Test for issue of warrant

(3) The Minister is only to issue the warrant if he or she is satisfied that:

(a) if the warrant is requested in relation to a particular person:

(i) 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

(ii) the use by the Organisation of a surveillance device in relation to that person will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security; and

(b) if the warrant is requested in relation to particular premises:

(i) those premises are used, likely to be used or frequented by a person engaged in or reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(ii) the use on behalf of the Organisation of a surveillance device in or on those premises will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security; and

(i) that object, or an object of that class, is used or worn, or likely to be used or worn by a person engaged in or reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

(ii) the use by the Organisation of a surveillance device in or on that object, or an object of that class, will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security.

(4) To avoid doubt, the identity of the person referred to in paragraph (3)(a) or subparagraph (3)(b)(i) or (c)(i) need not be known.

Warrant may be subject to restrictions or conditions

(5) The warrant is subject to any restrictions or conditions specified in it.

26A Requirements for surveillance device warrants

(1) A surveillance device warrant must:

(a) be signed by the Minister; and

(b) specify:

(i) the kind of surveillance device, or kinds of surveillance devices, authorised to be used; and

(ii) the date the warrant is issued; and

(iii) if the warrant is issued in relation to a particular person - the name of the person (if known) or the fact that the person's identity is unknown; and

(iv) if the warrant is issued in relation to particular premises - the premises; and

(v) if the warrant is issued in relation to an object or class of object - the object or class of object; 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 is authorised to be made at any time of the day or night or during stated hours of the day or night.

(2) If a surveillance device warrant is issued in relation to particular premises that are vehicles, the warrant need only specify the class of vehicle in relation to which the use of the surveillance device is authorised.

(3) The surveillance device 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.

(4) Subsection (3) does not prevent the issue of any further warrant.

26B What a surveillance device warrant authorises

Authorisation in warrant - particular person

(1) If a surveillance device warrant is issued in relation to a particular person, the warrant authorises the following:

(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant to:

(i) listento, record, observe or monitor the words, sounds or signals communicated to or by the person, or the activities of the person; or

(ii) track the person;

(b) the installation, use and maintenance of a surveillance device of the kind specified in the warrant:

(i) in or on premises where the person is reasonably believed to be or likely to be; or

(ii) in or on any other premises specified in the warrant from which the activities of that person, or the words, sounds or signals communicated by or to that person, can be listened to, recorded, observed or monitored;

(c) entering the premises referred to in paragraph (b) for any of the purposes referred to in paragraph (a) or (b) or in subsection (4) or (5);

(d) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on any object used or worn, or likely to be used or worn, by the person;

(e) the entry into or onto, or the alteration of, the object referred to in paragraph (d);

(f) entering any premises in which the 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 (4) or (5);

(g) entering any other premises, for the purposes of gaining entry to or exiting premises referred in to paragraph (b) or (f);

(h) any other thing reasonably incidental to any of the above.

Authorisation in warrant - particular premises

(2) If a surveillance device warrant is issued in relation to particular premises (the subject premises ), the warrant authorises the following:

(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant:

(i) in or on the subject premises; or

(ii) in or on any other premises specified in the warrant from which the activities of a person, or the words, sounds or signals communicated by or to a person, can be listened to, recorded, observed or monitored while the person is in or on the subject premises;

(b) entering the subject premises, or any other premises specified in the warrant, for any of the purposes referred to in paragraph (a) or subsection (4) or (5);

(c) entering any other premises, for the purposes of gaining entry to or exiting the subject premises or any other premises specified in the warrant;

(d) any other thing reasonably incidental to any of the above.

Authorisation in warrant - object or class of object

(3) If a surveillance device warrant is issued in relation to an object, or class of object, the warrant authorises the following:

(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object, or an object of the specified class;

(b) the entry into or onto, or alteration of, the specified object, or an object of the specified class;

(c) entering any premises where the object, or an object of the class, is reasonably believed to be or is likely to be for any of the purposes referred to in paragraph (a) or (b) or subsection (4) or (5);

(d) entering any other premises, for the purposes of gaining entry to or exiting premises referred to in paragraph (c);

(e) any other thing reasonably incidental to any of the above.

Authorisation in warrant - general

(4) A surveillance device warrant also authorises the following:

(a) the installation, use and maintenance of enhancement equipment in relation to the surveillance device;

(b) the temporary removal of an object from premises for the installation or maintenance of the surveillance device or enhancement equipment and the return of the object to the premises;

(c) the replacement of an object with an equivalent object for the purposes of the installation or maintenance of the surveillance device or enhancement equipment;

(d) the breaking open of any thing for the installation or maintenance of the surveillance device or enhancement equipment;

(e) the connection of the surveillance device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment;

(f) the connection of the surveillance device or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the device or equipment;

(g) the doing of any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;

(h) any other thing reasonably incidental to any of the above.

Recovery of surveillance devices

(5) If a surveillance device is installed or used under a surveillance device warrant, the Organisation is authorised to do any of the following:

(a) recover the surveillance device or any enhancement equipment in relation to the device;

(b) enter any premises where the surveillance device is reasonably believed to be, for the purpose of recovering the device or the equipment;

(d) enter into or onto, or alter, an object for the purpose of recovering the device or the equipment;

(e) replace an object with an equivalent object for the purposes of recovering the device or the equipment;

(f) break open any thing for the purpose of recovering the device or the equipment;

(g) if the device or equipment is installed in or on an object - temporarily remove the object from any place where it is situated for the purpose of recovering the device or the equipment and returning the object to that place;

(h) use a nominal amount of electricity from any source to power the device or equipment;

(i) any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;

(j) use any force against persons and things that is necessary and reasonable to do any of the above;

(k) any other thing reasonably incidental to any of the above;

at the following time:

(l) at any time while the warrant is in force or within 28 days after it ceases to be in force;

(m) if the surveillance device is not recovered at a time mentioned in paragraph (l) - at the earliest time, after the 28 days mentioned in that paragraph, at which it is reasonably practicable to do the things concerned.

(6) If, for the purposes of subsection (5):

(a) the surveillance device is not recovered while the warrant is in force; and

(b) the surveillance device is a tracking device;

the Organisation is also authorised to use the surveillance device or any enhancement equipment in relation to the device solely for the purposes of the location and recovery of the device or equipment.

26C Use etc. of listening device without warrant

Either of the following (the first person ):

(a) an ASIO employee acting in the course of the ASIO employee's duties;

(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain a listening device without warrant for any purpose involving listening to or recording words, sounds or signals being communicated by or to another person (the second person ) if:

(d) the second person intends, or should reasonably expect, those words, sounds or signals to be communicated to the first person, or to a class or group of persons in which the first person is included; or

(e) the first person does so with the implied or express consent of a person who is permitted under paragraph (c) or (d) to listen to or record the words, sounds or signals.

Note: This section does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

26D Use etc. of optical surveillance device without warrant

Either of the following:

(a) an ASIO employee acting in the course of the ASIO employee's duties;

(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain an optical surveillance device without warrant if the installation, use or maintenance of the device does not involve:

(d) interference with any vehicle or thing without permission of the person having lawful possession or control of the vehicle or thing.

Note: This section does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

26E Use etc. of tracking device without warrant

(1) Either of the following:

(a) an ASIO employee acting in the course of the ASIO employee's duties;

(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain a tracking device without warrant for the purposes of tracking a person if the person consents to the installation, use or maintenance.

Note: This subsection does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

(2) Either of the following:

(a) an ASIO employee acting in the course of the ASIO employee's duties;

(b) an ASIO affiliate, acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;

may install, use or maintain a tracking device without warrant for the purposes of tracking an object if the person using the object consents to the installation, use or maintenance.

Note: This subsection does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).

26F Director-General may determine that certain provisions do not apply to specified ASIO affiliates

(1) The Director-General may, by signed writing, determine that section 26C or 26D or subsection 26E(1) or (2) does not apply to:

(a) a specified ASIO affiliate; or

(b) a specified class of ASIO affiliates.

(2) A determination under subsection (1) has effect accordingly.

(3) A determination under subsection (1) is not a legislative instrument.

(4) The Director-General may, by signed writing, delegate the Director-General's power under this section to:

(a) a Deputy Director-General; or

(b) any other ASIO employee or 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 2.

(5) In exercising powers under a delegation, the delegate must comply with any written direction given by the Director-General to the delegate.

30 Before section 27

Insert:

Subdivision E - Inspection of postal and other articles

31 Subsection 27(1)

Omit "this section or section 27A", substitute "this Division".

32 Before section 27A

Insert:

Subdivision F - Foreign intelligence

33 Paragraph 27A(1)(a)

Omit "computer or a thing", substitute "computer or an object".

34 Paragraph 27A(1)(a)

Omit "26(3) or (4), 26B(3), 26C(3)", substitute "26B(1), (2), (3) or (4)".

35 Subsection 27A(1)

Omit "those things", substitute "those objects".

36 Paragraph 27A(2)(a)

After "any force", insert "against persons and things".

37 Paragraph 27A(2)(b)

Before "state whether", insert "ifthe warrant authorises entering premises - ".

38 Paragraph 27A(3)(b)

Omit "26(3) or (4), 26B(3), 26C(3)", substitute "26B(1), (2), (3) or (4)".

39 Subsections 27A(3A) and (3B)

Repeal the subsections, substitute:

(3A) If a surveillance device is installed or used in accordance with a warrant under this section authorising the doing of acts referred to in subsection 26B(1) (2), (3) or (4), the Organisation is authorised to do any of the following: