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Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2011

Schedule 6 Co-operation, assistance and communication between intelligence agencies

   

Australian Security Intelligence Organisation Act 1979

1  Section 4

Insert:

ASIS has the meaning given by the Intelligence Services Act 2001 .

2  Section 4 (after paragraph (a) of the definition of authority of the Commonwealth )

Insert:

                    (aa)  a Department within the meaning of the Parliamentary Service Act 1999 ;

3  Section 4 (paragraph (f) of the definition of authority of the Commonwealth )

Repeal the paragraph, substitute:

                      (f)  a body corporate in which the Commonwealth or a body referred to in paragraph (c) has a controlling interest.

4  Section 4

Insert:

authority of a State :

                     (a)  in Part IV—has the meaning given by subsection 35(1); and

                     (b)  otherwise—includes:

                              (i)  a Department of State of a State, or a Department of the Public Service of a State; and

                             (ii)  a body, whether incorporated or not, established for public purposes by or under a law of a State; and

                            (iii)  a body corporate in which a State or a body referred to in subparagraph (ii) has a controlling interest.

5  Section 4

Insert:

DIGO has the meaning given by the Intelligence Services Act 2001 .

6  Section 4

Insert:

DSD has the meaning given by the Intelligence Services Act 2001 .

7  Section 4

Insert:

law enforcement agency means an authority of the Commonwealth, or an authority of a State, that has functions relating to law enforcement.

8  Section 4

Insert:

serious crime means conduct that, if engaged in within, or in connection with, Australia, would constitute an offence against the law of the Commonwealth, a State or a Territory punishable by imprisonment for a period exceeding 12 months.

9  Section 4

Insert:

staff member of a body (however described) includes:

                     (a)  the head (however described) of the body, or another person who holds an office or appointment in relation to the body; and

                     (b)  a person who is otherwise a member of the staff of the body (whether an employee of the body, a consultant or contractor to the body, or a person who is made available by an authority of the Commonwealth, an authority of a State, or other person, to perform services for the body).

10  Paragraph 17(1)(b)

Omit “and not otherwise”.

11  At the end of subsection 17(1)

Add:

             ; and (f)  to co-operate with and assist bodies referred to in section 19A in accordance with that section.

12  Subsection 18(3)

Repeal the subsection, substitute:

Communicating information to appropriate authorities of the Commonwealth or a State

             ( 3)  A person referred to in subsection (1) may communicate information to a person referred to in subsection (4) if:

                     (a)  the information has come into the possession of the Organisation in the course of performing the Organisation’s functions under section 17; and

                     (b)  either:

                              (i)  the information relates, or appears to relate, to the commission, or intended commission, of a serious crime; or

                             (ii)  the Director-General, or a person authorised for the purpose by the Director-General, is satisfied that the national interest requires the communication; and

                     (c)  the information relates, or appears to relate, to the performance of the functions, responsibilities or duties of the person referred to in subsection (4).

Note:          There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979 , on communicating telecommunications information.

             (4)  The persons to whom information may be communicated under subsection (3) are the following:

                     (a)  a Minister;

                     (b)  a staff member of an authority of the Commonwealth;

                     (c)  a staff member of an authority of a State.

Communicating information to ASIS, DSD and DIGO

          (4A)  A person referred to in subsection (1) may communicate information to a staff member of ASIS, DSD or DIGO if:

                     (a)  the information has come into the possession of the Organisation in the course of performing the Organisation’s functions under section 17; and

                     (b)  the information relates, or appears to relate, to the performance of ASIS, DSD or DIGO’s functions (as the case requires).

Communicating information in relation to emergency declarations

          (4B)  A person referred to in subsection (1) may communicate information, in accordance with Part VIA of the Privacy Act 1988 , if:

                     (a)  the information has come into the possession of the Organisation in the course of performing its functions under section 17; and

                     (b)  an emergency declaration (within the meaning of section 80G of that Act) is in force.

Note 1:    The following heading to subsection 18(1) is inserted “ Who may communicate intelligence ”.

Note 2:    The following heading to subsection 18(2) is inserted “ Offence for unauthorised communication of information ”.

Note 3:    The following heading to subsection 18(5) is inserted “ Attorney-General’s consent required for prosecution of offence ”.

13  Subsection 18(6)

Repeal the subsection.

14  Subsection 19(1)

Omit “its” (first occurring), substitute “the Organisation’s”.

Note:       The heading to section 19 is altered by adding at the end “ in connection with performance of Organisation’s functions ”.

15  Subsection 19(2)

Omit “Notwithstanding paragraph 17(1)(b), the Director-General or an officer authorised by the Director-General”, substitute “A person referred to in subsection 18(1)”.

16  At the end of subsection 19(2)

Add:

Note:          There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979 , on communicating telecommunications information.

17  After section 19

Insert:

19A   Co-operation with intelligence and law enforcement agencies etc. in connection with performance of their functions

             (1)  The Organisation may co-operate with and assist the following bodies in the performance of their functions:

                     (a)  ASIS;

                     (b)  DSD;

                     (c)  DIGO;

                     (d)  a law enforcement agency;

                     (e)  an authority of the Commonwealth, or an authority of a State, that is prescribed by the regulations for the purposes of this paragraph.

             (2)  However, the Organisation may only do so:

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

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

             (3)  Without limiting subsection (1), in co-operating with and assisting a body in accordance with this section, the Organisation may make the services of officers and employees, and other resources, of the Organisation available to the body.

Communicating information

             (4)  A person referred to in subsection 18(1) may communicate information to a staff member of a body referred to in paragraph (1)(d) or (e) if:

                     (a)  the information has come into the possession of the Organisation in the course of performing the Organisation’s functions under section 17; and

                     (b)  the information is communicated for the purposes of co-operating with or assisting the body under this section.

Note 1:       For communication of information to ASIS, DSD and DIGO, see subsection 18(4A).

Note 2:       There are additional restrictions, in the Telecommunications (Interception and Access) Act 1979 , on communicating telecommunications information.

Intelligence Services Act 2001

18  Section 3 (paragraph (a) of the definition of incidentally obtained intelligence )

After “subsection 6(1)”, insert “(other than intelligence obtained solely in the course of obtaining intelligence under paragraph 6(1)(da))”.

19  Section 3 (at the end of paragraph (a) of the definition of intelligence information )

Add “(other than information obtained solely under paragraph 6(1)(da))”.

20  After paragraph 6(1)(d)

Insert:

                   (da)  to co-operate with and assist bodies referred to in section 13A in accordance with that section; and

21  At the end of section 6B

Add:

             ; and (f)  to co-operate with and assist bodies referred to in section 13A in accordance with that section.

22  At the end of section 7

Add:

             ; and (f)  to co-operate with and assist bodies referred to in section 13A in accordance with that section.

23  Paragraph 11(2)(d)

Before “providing”, insert “performing the function set out in paragraph 6(1)(da) or”.

24  Paragraph 11(2)(e)

Omit “paragraph 6B(e)”, substitute “paragraphs 6B(e) and (f)”.

25  Paragraph 11(2)(f)

Omit “paragraph 7(e)”, substitute “paragraphs 7(e) and (f)”.

26  Subsection 11(3)

Omit “6B(b), (c), (d) and (e) and 7(c), (d) and (e)”, substitute “6(1)(da), 6B(b), (c), (d), (e) and (f), and 7(c), (d), (e) and (f)”.

27  After section 13

Insert:

13A   Co-operation with intelligence agencies etc. in connection with performance of their functions

             (1)  An agency may co-operate with and assist the following bodies in the performance of their functions:

                     (a)  another agency;

                     (b)  ASIO;

                     (c)  a Commonwealth authority, or a State authority, that is prescribed by the regulations for the purposes of this paragraph.

             (2)  However, the agency may only do so:

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

                     (b)  on request by the head (however described) of the 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 co-operating with and assisting a body in accordance with this section, an agency may make the services of staff members, and other resources, of the agency available to the body.

Note:       The heading to section 13 is altered by adding at the end “ in connection with performance of agency’s own functions ”.

Telecommunications (Interception and Access) Act 1979

28  Subsections 65(1) and 137(1)

Omit “paragraph 18(3)(a) or (b)”, substitute “subsection 18(3) or (4A), or subsection 19A(4)”.

29  Application of amendments relating to communication of information

Section 18 and subsection 19(2) of the Australian Security Intelligence Organisation Act 1979 , as amended by this Schedule, and subsection 19A(4) of that Act, as inserted by this Schedule, apply in relation to any information, whether the information comes into the possession of the Organisation before or after this Schedule commences.