Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (148 of 2018)

Schedule 5   Australian Security Intelligence Organisation

Australian Security Intelligence Organisation Act 1979

2   At the end of Division 1 of Part III

Add:

21A Voluntary assistance provided to the Organisation

Assistance provided in accordance with a request by the Director-General

(1) If:

(a) the Director-General requests a person or body to engage in conduct; and

(b) the Director-General is satisfied, on reasonable grounds, that the conduct is likely to assist the Organisation in the performance of its functions; and

(c) the person engages in the conduct in accordance with the request; and

(d) the conduct does not involve the person or body committing an offence against a law of the Commonwealth, a State or a Territory; and

(e) the conduct does not result in significant loss of, or serious damage to, property;

the person or body is not subject to any civil liability for, or in relation to, the conduct.

(2) A request under paragraph (1)(a) may be made orally if:

(a) the Director-General is satisfied that the request should be made as a matter of urgency; or

(b) the Director-General is satisfied that making the request in writing would be prejudicial to security; or

(c) the Director-General is satisfied that making the request in writing would be prejudicial to the operational security of the Organisation.

(2A) If subsection (2) does not apply to a request under paragraph (1)(a), the request must be made in writing.

(3) If a request under paragraph (1)(a) is made orally, the Director-General must:

(a) make a written record of the request; and

(b) do so within 48 hours after the request was made.

(3A) If a request is made under paragraph (1)(a), the Director-General must, within 7 days after the request is made, notify the Inspector-General of Intelligence and Security that the request has been made.

(4) The Director-General may enter into a contract, agreement or arrangement with a person or body in relation to conduct engaged in by the person or body in accordance with a request under paragraph (1)(a).

Unsolicited disclosure of information etc.

(5) If:

(a) a person or body engages in conduct that consists of, or is connected with:

(i) giving information to the Organisation; or

(ii) giving or producing a document to the Organisation; or

(iii) making one or more copies of a document and giving those copies to the Organisation; and

(b) the person reasonably believes that the conduct is likely to assist the Organisation in the performance of its functions; and

(c) the conduct does not involve the person or body committing an offence against a law of the Commonwealth, a State or a Territory; and

(d) the conduct does not result in significant loss of, or serious damage to, property; and

(e) subsection (1) does not apply to the conduct;

the person or body is not subject to any civil liability for, or in relation to, the conduct.

Copies of, or extracts from, documents

(6) The Organisation may make and retain copies of, or take and retain extracts from, a document given or produced to the Organisation:

(a) in accordance with a request under paragraph (1)(a); or

(b) under paragraph (5)(a).

Subsections (1) and (5) have effect despite other laws

(7) Subsections (1) and (5) have effect despite anything in a law of the Commonwealth, a State or a Territory (whether passed or made before or after the commencement of this section) unless the law expressly provides otherwise.

Certificate

(8) The Director-General may give a certificate in writing certifying one or more facts relevant to the question of whether the Director-General was satisfied, on reasonable grounds, that particular conduct was likely to assist the Organisation in the performance of its functions.

(9) In any proceedings that involve determining whether subsection (1) or (5) applies to particular conduct, a certificate given under subsection (8) is prima facie evidence of the facts certified.

Compensation for acquisition of property

(10) If the operation of this section would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(11) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.