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Australian Security Intelligence Organisation Legislation Amendment Bill 1999

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1999

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT BILL 1999

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendment to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

 the Honourable Daryl Williams AM QC MP)

 

 

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT BILL 1999

 

 

OUTLINE

 

The amendment to be moved on behalf of the Government amends the Australian Security Intelligence Organisation Legislation Amendment Bill 1999.

 

The amendment clarifies the authority of the Minister in issuing a computer access warrant to permit the adding, deleting or altering of data in a target computer for the purpose of obtaining access to data that is relevant to security.

 

In addition, changes are made to the Explanatory Memorandum in response to recommendations made by the Parliamentary Joint Committee on the Australian Security Intelligence Organization in an Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment Bill 1999.  The purpose of these changes is to provide additional explanation in relation to amendments contained in schedule 1, item 16 of the Bill.

Financial Impact

Nil.

 

NOTES ON CLAUSES

 

Amendments to Schedule 1 of the Bill

 

Australian Security Intelligence Organization Act 1979

 

 

Amendment 1 - section 25A

 

This amendment to new paragraph 25A(4)(a) provides that the Minister, in issuing a computer access warrant, may authorise persons executing a computer access warrant to add, delete or alter ‘other’ data in the target computer for the purpose of obtaining access to data that is relevant to security.  The addition of the word ‘other’ is intended to clarify that paragraph 25A(4)(a) will allow a person executing a warrant to modify protection mechanisms in the target computer system for the purpose of accessing relevant data  but that provision does not allow ASIO to modify the target data in the computer. 

 

 

 

 

Addendum to the Explanatory Memorandum

 

Australian Security Intelligence Organization Act 1979

 

Omit item 16 in the Explanatory Memorandum and substitute the following paragraphs.  These changes to the wording of the Explanatory Memorandum implement recommendations made by the Parliamentary Joint Committee on the Australian Security Intelligence Organization in an Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment Bill 1999 (paragraphs 3.27 and 3.57) as well as providing for amendment 1.

 

 

Item 16     section 25

Section 25 is repealed and replaced by a new section 25 dealing with search warrants.

Subsection 25(1) authorises the Minister to issue a search warrant if the Director-General of Security requests the Minister to do so and the Minister is satisfied of the matters set out in subsection (2).

Subsection 25(2) sets out the matters about which the Minister must be satisfied before he or she issues a search warrant in relation to particular premises.  The present test is worded in a negative form which is difficult to apply to particular circumstances.  This amendment expresses the test in a more conventional and clearer style but does not change the substance of the test.

Subsection 25(3) provides that a warrant must be signed by the Minister and must authorise the Organization to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the subject premises.  The premises to which a search warrant applies must also be specified in that warrant.

Subsection 25(4) provides the things that the Minister may specify in a search warrant.

Subsection 25(5) allows the Minister in issuing a search warrant to authorise the ASIO officers or other authorised persons executing that warrant to use a computer or other electronic equipment found on the subject premises to access data relevant to security.  This provision is intended to clarify ASIO’s authority to use computer or other electronic equipment on premises being searched for the purpose of examining and copying data which appears to be relevant to ASIO’s statutory function of collecting intelligence where that data is either stored on the premises being searched or is accessible by a computer or equipment on those premises.  This is similar to the authority already given under section 3L of the Crimes Act 1914 to a police officer executing a search warrant.

 

In addition, paragraph 25(5)(a) permits the Minister to authorise the adding, deleting or altering of other data in a computer or other electronic equipment found on the subject premises for the purpose of obtaining access to relevant data.  This provision will enable a person executing a warrant to modify protection mechanisms in a computer or other electronic equipment for the purpose of accessing relevant data.  Paragraph 25(5)(a) does not allow ASIO to modify the target data in the computer or other electronic equipment.

 

Subsection 25(6) prohibits ASIO from obstructing the lawful use of a computer or doing anything that causes loss or damage to a person lawfully using the computer or other electronic equipment.

 

Subsection 25(7) provides for the authorisation of entry methods in relation to the subject premises.

Subsection 25(8) allows the Minister to delay the commencement of a warrant for up to 28 days after the day on which the warrant is issued.

Subsection 25(9) provides for the commencement of a warrant.

Subsection 25(10) extends the maximum period a warrant may remain in force from 7 days to 28 days.  The change to the maximum duration of a warrant is intended to give greater flexibility to ASIO.  Unlike law enforcement agencies, most search warrants issued to ASIO need to be executed covertly and it may take time for a suitable opportunity to arise.

Subsection 25(11) provides that subsection (10) does not prevent the issue of any further warrant.

 

Item 16 also inserts a new section 25A which provides for a computer access warrant which enables the Minister to authorise ASIO to obtain remote access to data held in a computer specified in the warrant where access will substantially assist the collection of intelligence in respect of a matter that is important in relation to security.

Subsection 25A(1) authorises the Minister to issue a computer access warrant if the Director-General of Security requests the Minister to do so and the Minister is satisfied of the matters set out in subsection (2).

Subsection 25A(2) sets out the matters about which the Minister must be satisfied before he or she issues a computer access warrant in relation to a particular computer.

Subsection 25A(3) provides that a warrant must be signed by the Minister and must authorise the Organization to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the target computer.  The target computer must also be specified in a warrant.

Subsection 25A(4) provides the things that the Minister may specify in a search warrant and allows the Minister to authorise:

·                using a computer, a telecommunications facility or other electronic equipment, as well as adding, deleting or altering other data in the target computer, for the purpose of obtaining access to data that is relevant to security that is stored in the target computer;

·                copying data that appears relevant to the collection of intelligence by the Organization in accordance with this Act;

·                anything reasonably necessary to conceal that fact that any thing has been done under the warrant;

·                any other thing reasonably incidental to any of the above.

Paragraph 25A(4)(a) provides that the Minister, in issuing a computer access warrant, may authorise persons executing a computer access warrant to add, delete or alter other data in the target computer for the purpose of obtaining access to data that is relevant to security.  This provision permits a person executing a warrant to modify protection mechanisms in the target computer system for the purpose of accessing relevant data.  Paragraph 25A(4)(a) does not allow ASIO to modify the target data in the computer. 

 

Subsection 25A(5) prohibits ASIO from obstructing the lawful use of a computer or doing anything that causes loss or damage to a person lawfully using the computer or other electronic equipment.

 

Subsection 25A(6) provides that a warrant must specify the period during which it is to remain in force which must not be more than 6 months.

 

Subsection 25A(7) provides that subsection (6) does not prevent the issue of any further warrant.