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Schedule 5—Australian Security Intelligence Organisation

Schedule 5 Australian Security Intelligence Organisation

   

Australian Security Intelligence Organisation Act 1979

1  After subsection 16(1)

Insert:

          (1A)  The Director-General may, by writing, delegate any or all of the Director-General’s functions or powers under section 21A to a senior position-holder.

2  At the end of Division 1 of Part III

Add:

21A   Voluntary assistance provided to the Organisation

Assistance provided in accordance with a request by the Director-General

             (1)  If:

                     (a)  the Director-General requests a person or body to engage in conduct; and

                     (b)  the Director-General is satisfied, on reasonable grounds, that the conduct is likely to assist the Organisation in the performance of its functions; and

                     (c)  the person engages in the conduct in accordance with the request; and

                     (d)  the conduct does not involve the person or body committing an offence against a law of the Commonwealth, a State or a Territory; and

                     (e)  the conduct does not result in significant loss of, or serious damage to, property;

the person or body is not subject to any civil liability for, or in relation to, the conduct.

             (2)  A request under paragraph (1)(a) may be made:

                     (a)  orally; or

                     (b)  in writing.

             (3)  If a request under paragraph (1)(a) is made orally, the Director-General must:

                     (a)  make a written record of the request; and

                     (b)  do so within 48 hours after the request was made.

             (4)  The Director-General may enter into a contract, agreement or arrangement with a person or body in relation to conduct engaged in by the person or body in accordance with a request under paragraph (1)(a).

Unsolicited disclosure of information etc.

             (5)  If:

                     (a)  a person or body engages in conduct that consists of, or is connected with:

                              (i)  giving information to the Organisation; or

                             (ii)  giving or producing a document to the Organisation; or

                            (iii)  making one or more copies of a document and giving those copies to the Organisation; and

                     (b)  the person reasonably believes that the conduct is likely to assist the Organisation in the performance of its functions; and

                     (c)  the conduct does not involve the person or body committing an offence against a law of the Commonwealth, a State or a Territory; and

                     (d)  the conduct does not result in significant loss of, or serious damage to, property; and

                     (e)  subsection (1) does not apply to the conduct;

the person or body is not subject to any civil liability for, or in relation to, the conduct.

Copies of, or extracts from, documents

             (6)  The Organisation may make and retain copies of, or take and retain extracts from, a document given or produced to the Organisation:

                     (a)  in accordance with a request under paragraph (1)(a); or

                     (b)  under paragraph (5)(a).

Subsections (1) and (5) have effect despite other laws

             (7)  Subsections (1) and (5) have effect despite anything in a law of the Commonwealth, a State or a Territory (whether passed or made before or after the commencement of this section) unless the law expressly provides otherwise.

Certificate

             (8)  The Director-General may give a certificate in writing certifying one or more facts relevant to the question of whether the Director-General was satisfied, on reasonable grounds, that particular conduct was likely to assist the Organisation in the performance of its functions.

             (9)  In any proceedings that involve determining whether subsection (1) or (5) applies to particular conduct, a certificate given under subsection (8) is prima facie evidence of the facts certified.

Compensation for acquisition of property

           (10)  If the operation of this section would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

           (11)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

3  At the end of Division 2 of Part III

Add:

Subdivision J Assistance relating to access to data

34AAA   Person with knowledge of a computer or a computer system to assist access to data

             (1)  The Director-General may request the Attorney-General to make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the Organisation to do one or more of the following:

                     (a)  access data held in, or accessible from, a computer or data storage device that:

                              (i)  is the subject of a warrant under section 25A, 26 or 27A; or

                             (ii)  is the subject of an authorisation under section 27E or 27F; or

                            (iii)  is on premises in relation to which a warrant under section 25, 26 or 27A is in force; or

                            (iv)  is on premises in relation to which an authorisation under section 27D or 27F is in force; or

                             (v)  is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 25 or 27A; or

                            (vi)  is found in the course of an ordinary search of a person, or a frisk search of a person, authorised under section 27D; or

                           (vii)  has been removed from premises under a warrant under section 25, 26 or 27A; or

                          (viii)  has been removed from premises under section 27D; or

                            (ix)  has been seized under section 34ZB;

                     (b)  copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;

                     (c)  convert into documentary form or another form intelligible to an ASIO employee or ASIO affiliate:

                              (i)  data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or

                             (ii)  data held in a data storage device to which the data was copied as described in paragraph (b); or

                            (iii)  data held in a computer or data storage device removed from premises under a warrant under section 25, 26 or 27A; or

                            (iv)  data held in a computer or data storage device removed from premises under section 27D.

             (2)  The Attorney-General may make the order if:

                     (a)  in a case where the computer or data storage device:

                              (i)  is the subject of a warrant under section 27A; or

                             (ii)  is on premises in relation to which a warrant under section 27A is in force; or

                            (iii)  is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 27A; or

                            (iv)  has been removed from premises under a warrant under section 27A;

                            the Attorney-General is satisfied, on reasonable grounds, that:

                             (v)  access by the Organisation to data held in, or accessible from, the computer or data storage device will be for the purpose of obtaining foreign intelligence relating to a matter specified in the relevant notice under subsection 27A(1); and

                            (vi)  on the basis of advice received from the Defence Minister or the Foreign Affairs Minister, the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being; and

                     (b)  in a case where paragraph (a) does not apply—the Attorney-General is satisfied that there are reasonable grounds for suspecting that access by the Organisation to data held in, or accessible from, the computer or data storage device will substantially assist the collection of intelligence in accordance with this Act in respect of a matter that is important in relation to security; and

                     (c)  the Attorney-General is satisfied, on reasonable grounds, that the specified person is:

                              (i)  reasonably suspected of being involved in activities that are prejudicial to security; or

                             (ii)  the owner or lessee of the computer or device; or

                            (iii)  an employee of the owner or lessee of the computer or device; or

                            (iv)  a person engaged under a contract for services by the owner or lessee of the computer or device; or

                             (v)  a person who uses or has used the computer or device; or

                            (vi)  a person who is or was a system administrator for the system including the computer or device; and

                     (d)  the Attorney-General is satisfied, on reasonable grounds, that the specified person has relevant knowledge of:

                              (i)  the computer or device or a computer network of which the computer or device forms or formed a part; or

                             (ii)  measures applied to protect data held in, or accessible from, the computer or device.

             (3)  If the computer or data storage device is not on premises in relation to which a warrant is in force, the order must:

                     (a)  specify the period within which the person must provide the information or assistance; and

                     (b)  specify the place at which the person must provide the information or assistance; and

                     (c)  specify the conditions (if any) determined by the Attorney-General as the conditions to which the requirement on the person to provide the information or assistance is subject.

             (4)  A person commits an offence if:

                     (a)  the person is subject to an order under this section; and

                     (b)  the person is capable of complying with a requirement in the order; and

                     (c)  the person omits to do an act; and

                     (d)  the omission contravenes the requirement.

Penalty for contravention of this subsection:        Imprisonment for 5 years or 300 penalty units, or both.