National Security Legislation Amendment Act (No. 1) 2014 (108 of 2014)

Schedule 2   Powers of the Organisation

Part 1   Amendments

Australian Security Intelligence Organisation Act 1979

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

(c) in respect of more than one surveillance device of any particular kind.

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

(c) if the warrant is requested in relation to an object or class of object:

(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) listen to, 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;

(c) enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (b);

(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:

(c) the first person is the communicator of the words, sounds or signals; or

(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:

(c) entering premises without permission from the owner or occupier of the premises; or

(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.