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National Security Legislation Amendment Bill (No. 1) 2014

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

                     (c)  the information or matter:

                              (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:

                     (c)  an ASIO employee or an ASIO affiliate;

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 employeewere 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:

7A

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:

                     (c)  ASIO employees (or classes of ASIO employees);

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.