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Intelligence Services Bill 2001

Part 2 Functions of the agencies

   

6   Functions of ASIS

             (1)  The functions of ASIS are:

                     (a)  to obtain, in accordance with the Government’s requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and

                     (b)  to communicate, in accordance with the Government’s requirements, such intelligence; and

                     (c)  to conduct counter-intelligence activities; and

                     (d)  to liaise with intelligence or security services, or other authorities, of other countries; and

                     (e)  to undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.

             (2)  The responsible Minister may direct ASIS to undertake activities referred to in paragraph (1)(e) only if the Minister:

                     (a)  has consulted other Ministers who have related responsibilities; and

                     (b)   is satisfied that there are satisfactory arrangements in place to ensure that, in carrying out the direction, nothing will be done beyond what is necessary having regard to the purposes for which the direction is given; and

                     (c)  is satisfied that there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in carrying out the direction will be reasonable having regard to the purposes for which the direction is given.

             (3)  A direction under paragraph (1)(e) must be in writing.

             (4)  In performing its functions, ASIS must not plan for, or undertake, paramilitary activities or activities involving violence against the person or the use of weapons.

Note 1A:    For paramilitary activities see section 3.

Note 1:       For other limits on the agency’s functions and activities see sections 11 and 12.

Note 2:       If the Minister gives a direction under paragraph (1)(e), the Minister must give a copy of the direction to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given to the head of ASIS (see section 32B of the Inspector-General of Intelligence and Security Act 1986 ).

6A   Committee to be advised of other activities

                   If the responsible Minister gives a direction under paragraph 6(1)(e), the Minister must as soon as practicable advise the Committee of the nature of the activity or activities to be undertaken.

Note:          For Committee see section 3.

7   Functions of DSD

                   The functions of DSD are:

                     (a)  to obtain intelligence about the capabilities, intentions or activities of people or organisations outside Australia in the form of electromagnetic energy, whether guided or unguided or both, or in the form of electrical, magnetic or acoustic energy, for the purposes of meeting the requirements of the Government, and in particular the requirements of the Defence Force, for such intelligence; and

                     (b)  to communicate, in accordance with the Government’s requirements, such intelligence; and

                     (c)  to provide material, advice and other assistance to Commonwealth and State authorities on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; and

                     (d)  to provide assistance to Commonwealth and State authorities in relation to cryptography and communications technologies.

Note:          For limits on the agency’s functions and activities see sections 11 and 12.

8   Ministerial directions

             (1)  The responsible Minister in relation to ASIS, and the responsible Minister in relation to DSD, must issue a written direction under this subsection to the relevant agency head. The direction must:

                     (a)  require the agency to obtain an authorisation under section 9 from the Minister before:

                              (i)  undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person who is overseas; or

                             (ii)  undertaking, in accordance with a direction under paragraph 6(1)(e), an activity, or a series of activities, that will, or is likely to, have a direct effect on an Australian person who is overseas; and

                     (b)  specify the circumstances in which the agency must, before undertaking other activities or classes of activities, obtain an authorisation under section 9 from the Minister.

             (2)  The responsible Minister may give written directions to be observed:

                     (a)  in the performance by the relevant agency of its functions; or

                     (b)  in the case of ASIS—in the exercise of the powers of the Director-General under section 33 or 34.

             (3)  Each agency head must ensure that the agency complies with any direction given by the responsible Minister under this section.

             (4)  Directions under paragraph (2)(b) must not relate to a specific staff member.

Note:          The Inspector-General of Intelligence and Security has oversight powers in relation to Ministerial directions and authorisations given under this Act. See in particular section 32B of the Inspector-General of Intelligence and Security Act 1986 (which requires the Minister to give a copy of a direction under this section to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given).

9   Ministerial authorisation

             (1)  Before a Minister gives an authorisation under this section, the Minister must be satisfied that:

                     (a)  any activities which may be done in reliance on the authorisation will be necessary for the proper performance of a function of the agency concerned; and

                     (b)  there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the authorisation beyond what is necessary for the proper performance of a function of the agency; and

                     (c)  there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in reliance on the authorisation will be reasonable, having regard to the purposes for which they are carried out.

          (1A)  Before a Minister gives an authorisation under this section for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i) or (ii), the Minister must also:

                     (a)  be satisfied that the Australian person mentioned in that subparagraph is, or is likely to be, involved in one or more of the following activities:

                              (i)  activities that present a significant risk to a person’s safety;

                             (ii)  acting for, or on behalf of, a foreign power;

                            (iii)  activities that are, or are likely to be, a threat to security;

                            (iv)  activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958 );

                             (v)  committing a serious crime by moving money, goods or people;

                            (vi)  committing a serious crime by using or transferring intellectual property;

                           (vii)  committing a serious crime by transmitting data or signals by means of guided and/or unguided electromagnetic energy; and

                     (b)  if the Australian person is, or is likely to be, involved in an activity or activities that are, or are likely to be, a threat to security (whether or not covered by another subparagraph of paragraph (a) in addition to subparagraph (a)(iii))—obtain the agreement of the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 .

          (1B)  In subsection (1A):

foreign power has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

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

Note:          For serious crime see section 3.

             (2)  The Minister may give an authorisation in relation to:

                     (a)  an activity, or class of activities, specified in the authorisation; or

                     (b)  acts of a staff member or agent, or a class of staff members or agents, specified (whether by name or otherwise) in the authorisation; or

                     (c)  activities done for a particular purpose connected with the agency’s functions.

             (3)  An authorisation is subject to any conditions specified in it.

             (4)  An authorisation must be in writing and must specify how long it will have effect. The period of effect specified in an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i) or (ii), must not exceed 6 months.

             (5)  If a Minister gives an authorisation under this section in relation to an agency, the relevant agency head must ensure that a copy of the authorisation is kept by the agency and is available for inspection on request by the Inspector-General of Intelligence and Security.

10   Period during which authorisation has effect etc.

             (1)  The Minister may, at any time before the day on which an authorisation would cease to have effect, renew it for the length of time specified in the renewal. However, the authorisation must not be renewed unless the Minister is satisfied that it is necessary, for the purpose for which the authorisation was given, for the authorisation to continue to have effect.

          (1A)  The renewal (or any subsequent renewal) of an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i) or (ii), must be for a period not exceeding 6 months.

             (2)  The Minister may vary or cancel an authorisation at any time.

             (3)  A renewal, variation or cancellation of an authorisation must be in writing.

11   Limits on agencies’ functions

             (1)  The functions of the agencies are to be performed only in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia.

             (2)  The agencies’ functions do not include:

                     (a)  the carrying out of police functions; or

                     (b)  any other responsibility for the enforcement of the law.

However, this does not prevent the agencies from:

                     (c)  obtaining intelligence under paragraph 6(1)(a) or 7(a) and communicating any such intelligence that is relevant to serious crime to the appropriate law enforcement authorities; or

                     (d)  in the case of DSD—performing the function set out in paragraph 7(d).

Note:          For police functions and serious crime see section 3.

          (2A)  The agencies’ functions do not include undertaking any activity for the purpose of furthering the interests of an Australian political party or other Australian political organisation.

             (3)  Subsection (1) does not apply to the functions described in paragraphs 7(c) and (d).

12   Limits on agencies’ activities

                   An agency must not undertake any activity unless the activity is:

                     (a)  necessary for the proper performance of its functions; or

                     (b)  authorised or required by or under another Act.

12A   Special responsibilities of Director and Director-General

                   Both the Director and the Director-General must take all reasonable steps to ensure that:

                     (a)  his or her agency is kept free from any influences or considerations not relevant to the undertaking of activities as mentioned in paragraph 12(a) or (b); and

                     (b)  nothing is done that might lend colour to any suggestion that his or her agency is concerned to further or protect the interests of any particular section of the community, or with undertaking any activities other than those mentioned in paragraph 12(a) or (b).

13   Co-operation with other authorities

             (1)  Subject to any arrangements made or directions given by the responsible Minister, an agency may cooperate with:

                     (a)  Commonwealth authorities; and

                     (b)  State authorities; and

                     (c)  authorities of other countries approved by the Minister as being capable of assisting the agency in the performance of its functions;

so far as is necessary for the agency to perform its functions, or so far as facilitates the performance by the agency of its functions.

Note:          For Commonwealth authority and State authority see section 3.

             (2)  An approval under paragraph (1)(c) must be in writing.

             (3)  Each agency head must ensure that a copy of any approval given by the relevant responsible Minister is kept by the agency and is available on request by the Inspector-General of Intelligence and Security.

14   Liability for certain acts

             (1)  A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.

             (2)  A person is not subject to any civil or criminal liability for any act done inside Australia if:

                     (a)  the act is preparatory to, in support of, or otherwise directly connected with, overseas activities of the agency concerned; and

                     (b)  the act:

                              (i)  taken together with an act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but

                             (ii)  in the absence of that other act, event, circumstance or result, would not amount to an offence; and

                     (c)  the act is done in the proper performance of a function of the agency.

          (2A)  Subsection (2) is not intended to permit any act in relation to premises, persons, computers, things, or telecommunications services in Australia, being:

                     (a)  an act that ASIO could not do without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part III of the Telecommunications (Interception) Act 1979 ; or

                     (b)  an act to obtain information that ASIO could not obtain other than in accordance with section 283 of the Telecommunications Act 1997 .

          (2B)  The Inspector-General of Intelligence and Security may give a certificate in writing certifying any fact relevant to the question of whether an act was done in the proper performance of a function of an agency.

          (2C)  In any proceedings, a certificate given under subsection (2B) is prima facie evidence of the facts certified.

             (3)  In this section:

act includes omission.

staff member includes the Director and the Director-General.

15   Rules to protect privacy of Australians

             (1)  The responsible Minister in relation to ASIS, and the responsible Minister in relation to DSD, must make written rules regulating the communication and retention by the relevant agency of intelligence information concerning Australian persons.

             (2)  In making the rules, the Minister must have regard to the need to ensure that the privacy of Australian persons is preserved as far as is consistent with the proper performance by the agencies of their functions.

Note:          For Australian person see section 3.

             (3)  Before making the rules, the Minister must consult with:

                     (a)  in the case of ASIS—the Director-General; and

                     (b)  in the case of DSD—the Director; and

                     (c)  in either case—the Inspector-General of Intelligence and Security and the Attorney-General.

             (4)  For the purpose of consultations under paragraph (3)(c), the Minister must provide a copy of the rules the Minister is proposing to make to the Inspector-General of Intelligence and Security and to the Attorney-General.

             (5)  The agencies must not communicate intelligence information concerning Australian persons, except in accordance with the rules.

Note:          For intelligence information see section 3.

             (6)  The Inspector-General of Intelligence and Security must brief the Committee on the content and effect of the rules if:

                     (a)  the Committee requests the Inspector-General of Intelligence and Security to do so; or

                     (b)  the rules change.

Note:          For Committee see section 3.