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Part 2—Office of National Intelligence

Part 2 Office of National Intelligence

Division 1 Office of National Intelligence

6   Establishment

             (1)  The Office of National Assessments established by section 4 of the Office of National Assessments Act 1977 continues in existence, by force of this subsection, under and subject to the provisions of this Act, under the name Office of National Intelligence.

             (2)  For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013 ):

                     (a)  ONI is a listed entity; and

                     (b)  the Director-General is the accountable authority of ONI; and

                     (c)  the following persons are officials of ONI:

                              (i)  the Director-General;

                             (ii)  the staff of ONI referred to in section 33;

                            (iii)  consultants engaged under section 34;

                            (iv)  persons whose services are made available to the Director-General under section 36; and

                     (d)  the purposes of ONI include the functions of ONI referred to in section 7.

Division 2 Functions and powers

7   Functions of ONI

             (1)  ONI has the following functions:

                     (a)  to lead the national intelligence community, as described in section 8;

                     (b)  to carry out the evaluation functions mentioned in section 9;

                     (c)  to:

                              (i)  assemble, correlate and analyse information relating to international matters that are of political, strategic or economic significance to Australia, including domestic aspects relating to such matters; and

                             (ii)  prepare assessments and reports in relation to such matters in accordance with the Government’s requirements;

                     (d)  to:

                              (i)  assemble, correlate and analyse information relating to other matters that are of political, strategic or economic significance to Australia; and

                             (ii)  prepare assessments and reports in relation to such matters in accordance with the Government’s requirements;

                            if doing so would support the performance of any other function or the Director-General’s functions, or complement the work of the national intelligence community;

                     (e)  to provide advice to the Prime Minister, from a whole-of-national intelligence community perspective, on national intelligence priorities, requirements and capabilities;

                      (f)  to provide advice, from time to time, to the Prime Minister on matters relating to the national intelligence community more generally;

                     (g)  to collect, interpret and disseminate information relating to matters of political, strategic or economic significance to Australia that is accessible to any section of the public;

                     (h)  to cooperate with and assist bodies referred to in section 14 in accordance with that section;

                      (i)  to provide assessments or reports, prepared under paragraph (c) or (d), to a person or body, inside or outside Australia;

                      (j)  such other functions as are conferred on ONI by this Act or any other law of the Commonwealth;

                     (k)  to do anything incidental or conducive to the performance of any of its functions.

Note:          For matters that do not form part of ONI’s functions: see subsection 10(2).

             (2)  ONI must perform its function under paragraph (1)(a) in ways that promote the appropriate integration of the intelligence capabilities of the national intelligence community.

Note 1:       The Director-General must ensure that ONI performs its functions in ways that do not inappropriately impact on, or encroach on, the functions and responsibilities of other agencies within the national intelligence community: see subsection 10(1).

Note 2:       The Prime Minister may give directions to the Director-General about the performance of ONI’s functions, but not in relation to the content or conclusions to be contained in any advice, report or assessment by ONI: see section 12.

8   Leading the national intelligence community

             (1)  ONI is to provide leadership in the national intelligence community by guiding the direction of the national intelligence community so as to ensure the following:

                     (a)  the development, strategic planning, coordination and appropriate integration of matters relating to the national intelligence community;

                     (b)  prioritisation of national intelligence priorities and requirements, and allocation of resources accordingly;

                     (c)  structured and appropriate responses to technological advancements.

             (2)  Examples of the ways in which ONI might provide that leadership in the national intelligence community include:

                     (a)  identifying particular areas of intelligence focus that require greater integration and overseeing appropriate action; and

                     (b)  developing strategic policies relating to the national intelligence community, and coordinating and overseeing their implementation; and

                     (c)  coordinating matters relating to the national intelligence community.

Note:          Leadership could, for example, be provided in areas such as intelligence liaison with international partners, engagement with the private sector, workforce planning, training for agencies within the national intelligence community, data management, or information technology and communication networks or systems.

             (3)  ONI must perform its leadership function in ways that are consistent with other agencies in the national intelligence community developing relationships with other entities, including international partners and the private sector.

             (4)  ONI’s leadership in the national intelligence community is to be supported by:

                     (a)  directions given by the Director-General under section 20; and

                     (b)  guidelines issued by the Director-General under section 21.

9   Evaluating matters relating to the national intelligence community

             (1)  The evaluation functions of ONI are the following:

                     (a)  evaluating the activities of an affected agency or agencies, having regard to:

                              (i)  Australia’s national intelligence priorities and requirements; and

                             (ii)  the intelligence needs of relevant Ministers;

                     (b)  evaluating the adequacy of the resources available to carry out Australia’s national intelligence activities and whether those resources are being appropriately allocated;

                     (c)  to the extent required to perform any other function, evaluating other aspects of an affected agency or agencies;

                     (d)  at the direction of the Prime Minister, evaluating an affected agency or agencies to assess the national intelligence community’s effectiveness in relation to specific matters;

                     (e)  providing advice to the Prime Minister on:

                              (i)  the results of any evaluations made; and

                             (ii)  any improvements or changes that should be made to remedy any identified inadequacies.

             (2)  In carrying out its evaluation functions, ONI may have regard to:

                     (a)  directions given by the Director-General under section 20; and

                     (b)  guidelines issued by the Director-General under section 21; and

                     (c)  to the extent that an evaluation relates to an affected agency or agencies, any failure by the affected agency or agencies to comply with:

                              (i)  a direction given by the Director-General under section 20; or

                             (ii)  a guideline issued by the Director-General under section 21.

             (3)  Before providing advice to the Prime Minister under this section, ONI must consult with any affected agency or agencies to which the advice relates. Any advice provided to the Prime Minister must include any comments made by any affected agency or agencies that are relevant to the advice.

             (4)  In this section:

affected agency or agencies means:

                     (a)  a particular intelligence agency; or

                     (b)  a particular agency with an intelligence role or function; or

                     (c)  ONI; or

                     (d)  a class of agencies within the national intelligence community; or

                     (e)  the national intelligence community as a whole.

10   Matters that are not part of ONI’s functions

             (1)  The Director-General must ensure that ONI performs its functions in ways that do not inappropriately impact on, or encroach on the functions, powers and responsibilities of:

                     (a)  an intelligence agency; or

                     (b)  an agency with an intelligence role or function; or

                     (c)  a Department in relation to an intelligence agency or agency with an intelligence role or function in the same portfolio as the Department; or

                     (d)  a person who holds any office or appointment under a law of the Commonwealth, being an office or appointment that relates to an agency within the national intelligence community or the national intelligence community more generally.

Note:          The Director-General must also take all reasonable steps to ensure that ONI is kept free from any influences or considerations not relevant to its functions and that nothing is done that might lend colour to any suggestion that ONI is concerned to further or protect the interests of any particular section of the community: see section 19.

             (2)  In particular, ONI’s functions do not include the following:

                     (a)  directing an intelligence agency or an agency with an intelligence role or function to:

                              (i)  carry out operational activities; or

                             (ii)  allocate resources, or use particular methods, when carrying out such operational activities;

                     (b)  conducting inquiries into individual complaints about the activities of:

                              (i)  an intelligence agency; or

                             (ii)  an agency with an intelligence role or function;

                     (c)  directing the content of, or conclusions reached in, any intelligence communicated, or any advice given or assessments or reports prepared, by:

                              (i)  an intelligence agency; or

                             (ii)  an agency with an intelligence role or function;

                     (d)  inquiring into the legality, propriety or integrity of activities undertaken by:

                              (i)  an intelligence agency; or

                             (ii)  an agency with an intelligence role or function.

             (3)  To avoid doubt, the reference to directing in paragraphs (2)(a) and (c) is not limited to directions given by the Director-General under section 20.

11   Powers of ONI

                   ONI has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

12   Prime Minister may give directions

             (1)  Subject to subsection (2), the Prime Minister may give directions to the Director-General concerning the performance of ONI’s functions or the exercise of ONI’s powers.

             (2)  However, the Director-General is not subject to direction in respect of the content of, or any conclusions to be reached in, any advice given, or report or assessment prepared, by ONI under this Act.

             (3)  The Director-General need not comply with a direction to the extent that:

                     (a)  compliance with the direction would be inconsistent with the Director-General’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to ONI; or

                     (b)  the direction relates to the Director-General’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to ONI.

             (4)  The Director-General may request that a direction be given in writing, and if the Director-General makes such a request, the Prime Minister must provide the direction in writing.

Note:          The Inspector-General of Intelligence and Security has oversight powers in relation to Ministerial directions 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).

             (5)  A direction given under this section is not a legislative instrument.

Division 3 Cooperation

13   Cooperation with entities in connection with performance of ONI’s functions

             (1)  In performing functions and exercising powers, ONI may cooperate with:

                     (a)  subject to subsections (5) and (6), an authority of another country approved in an instrument under subsection (2); and

                     (b)  any other person or entity, within or outside Australia.

             (2)  For the purposes of paragraph (1)(a), the Director-General may, in writing, approve an authority of another country as being capable of assisting ONI in the performance of its functions and the exercise of its powers.

             (3)  Each month the Director-General must, in writing, notify the Prime Minister of:

                     (a)  each approval given under subsection (2) during the month; and

                     (b)  each variation or revocation of an approval given under subsection (2) during the month.

Note:          The Director-General does not need to notify the Prime Minister if no approvals are given, and no variations or revocations of approvals are made, in a particular month.

             (5)  The Prime Minister may, at any time, cancel an approval given under subsection (2).

             (6)  The cancellation of an approval:

                     (a)  must be in writing; and

                     (b)  unless specified otherwise, has immediate effect.

             (7)  An approval under subsection (2), and a cancellation of an approval under subsection (5), are not legislative instruments.

14   Cooperation with intelligence agencies etc. in connection with performance of their functions

             (1)  ONI may cooperate with and assist:

                     (a)  an intelligence agency in the performance of its functions; and

                     (b)  an agency with an intelligence role or function in the performance of that intelligence role or function; and

                     (c)  any of the following kinds of bodies prescribed by the general rules for the purposes of this paragraph:

                              (i)  a Commonwealth authority;

                             (ii)  a State authority.

             (2)  However, ONI may only do so:

                     (a)  subject to any arrangements made or directions given by the Prime Minister; and

                     (b)  on request by the head (however described) of the agency or body referred to in subsection (1).

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).

             (3)  Without limiting subsection (1), in cooperating with and assisting an agency or body in accordance with this section, ONI may make the services of staff members and other resources available to the agency or body.

             (4)  An arrangement or direction under paragraph (2)(a):

                     (a)  must be in writing; and

                     (b)  is not a legislative instrument.