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National Security Legislation Amendment Bill (No. 1) 2014

Schedule 3 Protection for special intelligence operations

   

Australian Security Intelligence Organisation Act 1979

1  Section 4

Insert:

engage in conduct has the same meaning as in the Criminal Code .

IGIS official (short for Inspector-General of Intelligence and Security official) means:

                     (a)  the Inspector-General of Intelligence and Security; or

                     (b)  a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 .

participant in a special intelligence operation means a person who is authorised under Division 4 of Part III to engage in special intelligence conduct for the purposes of the special intelligence operation.

special intelligence conduct means conduct for or in relation to which a person would, but for section 35K, be subject to civil or criminal liability under a law of the Commonwealth, a State or a Territory.

special intelligence function means a function of the Organisation under paragraph 17(1)(a), (b), (e) or (f).

special intelligence operation is an operation:

                     (a)  in relation to which a special intelligence operation authority has been granted; and

                     (b)  that is carried out for a purpose relevant to the performance of one or more special intelligence functions; and

                     (c)  that may involve an ASIO employee or an ASIO affiliate in special intelligence conduct.

special intelligence operation authority means an authority to conduct a special intelligence operation granted under section 35C.

2  Subsection 34ZF(8)

Repeal the subsection.

3  At the end of Part III

Add:

Division 4 Special intelligence operations

35A   Relationship to other laws and matters

             (1)  Subject to subsection (2) and section 35R, this Division is not intended to limit a discretion that a court has:

                     (a)  to admit or exclude evidence in any proceedings; or

                     (b)  to stay criminal proceedings in the interests of justice.

             (2)  In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if:

                     (a)  the person was a participant in a special intelligence operation authorised under this Division acting in the course of the special intelligence operation; and

                     (b)  the criminal activity was special intelligence conduct.

35B   Applications for authorities to conduct special intelligence operations

             (1)  The Director-General, a senior position-holder or an ASIO employee may apply to the Minister for an authority to conduct a special intelligence operation on behalf of the Organisation.

             (2)  An application may be made:

                     (a)  in writing signed by the applicant; or

                     (b)  if the applicant reasonably believes that the delay caused by making a written application may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (3)  To avoid doubt, nothing in this Division prevents an application for a special intelligence operation authority being made in respect of a special intelligence operation that has been the subject of a previous application.

Note:          A special intelligence operation authority can be varied, but not so as to extend beyond 12 months—see section 35F.

             (4)  As soon as practicable after making an application in accordance with paragraph (2)(b), the applicant must:

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

                     (b)  give a copy of it to the Minister.

35C   Granting of special intelligence operation authorities

             (1)  If:

                     (a)  an application for an authority to conduct a special intelligence operation is made under section 35B; and

                     (b)  the Minister is satisfied that there are reasonable grounds on which to believe that the matters in subsection (2) exist;

the Minister may authorise the special intelligence operation by granting the authority.

             (2)  The matters are as follows:

                     (a)  the special intelligence operation will assist the Organisation in the performance of one or more special intelligence functions;

                     (b)  the circumstances are such as to justify the conduct of a special intelligence operation;

                     (c)  any unlawful conduct involved in conducting the special intelligence operation will be limited to the maximum extent consistent with conducting an effective special intelligence operation;

                     (d)  the special intelligence operation will not be conducted in such a way that a person is likely to be induced to commit an offence against a law of the Commonwealth, a State or a Territory that the person would not otherwise have intended to commit;

                     (e)  any conduct involved in the special intelligence operation will not:

                              (i)  cause the death of, or serious injury to, any person; or

                            (ia)  constitute torture; or

                             (ii)  involve the commission of a sexual offence against any person; or

                            (iii)  result in significant loss of, or serious damage to, property.

             (3)  A special intelligence operation authority may be granted unconditionally or subject to conditions.

             (4)  A special intelligence operation authority may be granted:

                     (a)  by means of a written document signed by the Minister ; or

                     (b)  if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written authority may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (5)  If a special intelligence operation authority is granted in accordance with paragraph (4)(b), a written record of the special intelligence operation authority that complies with section 35D must be issued within 7 days.

             (6)  To avoid doubt, nothing in this Division prevents a special intelligence operation authority being granted in respect of a special intelligence operation that has been the subject of a previous special intelligence operation authority.

Note:          A special intelligence operation authority can be varied, but not so as to extend beyond 12 months—see section 35F.

             (7)  The following are not legislative instruments:

                     (a)  a document referred to in paragraph (4)(a);

                     (b)  a written record referred to in subsection (5).

35D   Contents of special intelligence operation authorities

             (1)  A special intelligence operation authority must:

                     (a)  state how the special intelligence operation will assist the Organisation in the performance of one or more special intelligence functions; and

                     (b)  identify the persons authorised to engage in special intelligence conduct for the purposes of the special intelligence operation; and

                     (c)  state a description of the nature of the special intelligence conduct that the persons referred to in paragraph (b) may engage in; and

                     (d)  specify the period of effect of the special intelligence operation authority, being a period not exceeding 12 months; and

                     (e)  specify any conditions to which the conduct of the special intelligence operation is subject; and

                      (f)  state the date and time when the special intelligence operation authority is granted.

             (2)  A person is sufficiently identified for the purposes of paragraph (1)(b) if the person is identified:

                     (a)  by an assumed name under which the person is operating; or

                     (b)  by a code name or code number;

as long as the person’s identity can be matched to the assumed name, code name or code number.

35E   Commencement and duration of special intelligence operation authorities

             (1)  A special intelligence operation authority comes into force at the time the special intelligence operation authority is granted under section 35C.

             (2)  A special intelligence operation authority has effect for the period specified in accordance with paragraph 35D(1)(d) unless:

                     (a)  it is cancelled before the end of the period of effect; or

                     (b)  the period of effect is extended under section 35F.

35F   Variation of special intelligence operation authorities

             (1)  The Minister may vary a special intelligence operation authority on application by the Director-General, a senior position-holder or an ASIO employee.

Application for variation

             (2)  An application under subsection (1) may be made:

                     (a)  in writing signed by the applicant; or

                     (b)  if the applicant reasonably believes that the delay caused by making a written application may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (3)  As soon as practicable after making an application in accordance with paragraph ( 2)(b) , the applicant must:

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

                     (b)  give a copy of it to the Minister.

Limits on variation

             (4)  The Minister must not vary the special intelligence operation authority unless the Minister:

                     (a)  is satisfied that there are reasonable grounds on which to believe that the special intelligence operation, conducted in accordance with the special intelligence operation authority as varied, will assist the Organisation in the performance of one or more special intelligence functions; and

                     (b)  considers it is appropriate to do so.

             (5)  If a variation extends, or further extends, the period of effect of a special intelligence operation authority, the total period of effect must not be longer than 12 months.

Manner of variation

             (6)  The variation may be made:

                     (a)  by means of a written document signed by the Minister ; or

                     (b)  if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written variation may be prejudicial to security—orally in person, or by telephone or other means of communication.

             (7)  If a special intelligence operation authority is varied in accordance with paragraph (6)(b), a written record of the variation must be issued within 7 days.

Authority may be varied more than once

             (8)  A special intelligence operation authority may be varied more than once under this section.

35G   Cancellation of special intelligence operation authorities

             (1)  The Director-General or a Deputy Director-General may cancel a special intelligence operation authority at any time and for any reason.

             (2)  A cancellation of a special intelligence operation authority must:

                     (a)  be in writing; and

                     (b)  specify when the cancellation takes effect.

35H   Effect of special intelligence operation authorities

             (1)  A special intelligence operation authority authorises each person who is identified in the special intelligence operation authority to engage in the special intelligence conduct specified in the special intelligence operation authority in respect of that person.

             (2)  The authorisation, in relation to a person identified in the special intelligence operation authority, is for the period of effect of the special intelligence operation authority, unless:

                     (a)  the special intelligence operation authority specifies a shorter period during which the person is so authorised; or

                     (b)  the special intelligence operation authority is varied under section 35F to provide that the person is no longer so authorised; or

                     (c)  the special intelligence operation authority is cancelled before the end of that period.

35J   Defect in a special intelligence operation authority

                   An application for a special intelligence operation authority or variation of such an authority, and any special intelligence operation authority or variation of such an authority granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, special intelligence operation authority or variation in a material particular.

35K   Immunity from liability for special intelligence conduct during special intelligence operations

             (1)  A participant in a special intelligence operation is not subject to any civil or criminal liability for or in relation to conduct if:

                     (a)  the participant engages in the conduct in the course of, and for the purposes of, the special intelligence operation; and

                     (b)  the participant engages in the conduct in accordance with the special intelligence operation authority to conduct the special intelligence operation; and

                     (c)  the participant is identified in the special intelligence operation authority as a person authorised to engage in special intelligence conduct for the purposes of the special intelligence operation; and

                     (d)  the conduct does not involve the participant intentionally inducing another person to commit an offence against a law of the Commonwealth, a State or a Territory that the other person would not otherwise have intended to commit; and

                     (e)  the conduct does not involve the participant engaging in any conduct that:

                              (i)  causes the death of, or serious injury to, any person; or

                            (ia)  constitutes torture; or

                             (ii)  involves the commission of a sexual offence against any person; or

                            (iii)  causes significant loss of, or serious damage to, property; and

                      (f)  the requirements (if any) specified in a determination under subsection (2) have been met.

             (2)  The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (1)(f).

35L   Requirements for warrants etc. not affected

             (1)  If, apart from this Division, the Organisation could not do a particular act without it being authorised by warrant issued under this Act or under Part 2-2 of the Telecommunications (Interception and Access) Act 1979 , this Division does not allow the Organisation to do the act without the warrant.

             (2)  If, apart from this Division, the Organisation could not obtain particular information other than in accordance with Division 3 of Part 4-1 of the Telecommunications (Interception and Access) Act 1979 , this Division does not allow the Organisation to obtain the information otherwise than in accordance with that Division of the Telecommunications (Interception and Access) Act 1979 .

             (3)  This section is enacted to avoid doubt.

35M   Effect of being unaware of variation or cancellation of special intelligence operation authority

             (1)  If an authority to conduct a special intelligence operation is varied in a way that limits its scope, this Division continues to apply to a participant in the special intelligence operation as if the authority had not been varied in that way, for so long as the participant:

                     (a)  is unaware of the variation; and

                     (b)  is not reckless about the existence of the variation.

             (2)  If an authority to conduct a special intelligence operation is cancelled, this Division continues to apply to a person who was a participant in the special intelligence operation immediately before the cancellation as if the authority had not been cancelled in that way, for so long as the person:

                     (a)  is unaware of the cancellation; and

                     (b)  is not reckless about the existence of the cancellation.

             (3)  For the purposes of this section, a person is reckless about the existence of the variation or cancellation of a special intelligence operation authority if:

                     (a)  the person is aware of a substantial risk that the variation or cancellation has happened; and

                     (b)  having regard to the circumstances known to the person, it is unjustifiable to take the risk that the special intelligence operation authority has not been varied or cancelled.

35N   Protection from criminal responsibility for certain ancillary conduct

             (1)  This section applies if:

                     (a)  a person engages in conduct (the ancillary conduct ) that relates to special intelligence conduct (the related conduct ) engaged in by another person; and

                     (b)  engaging in the ancillary conduct is an ancillary offence in relation to the offence constituted by the related conduct.

             (2)  Despite any other law of the Commonwealth, a State or a Territory, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence, if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in a special intelligence operation authorised under this Division.

             (3)  For the purposes of this section, ancillary offence , in relation to an offence constituted by related conduct, means an offence against a law of the Commonwealth, a State or a Territory:

                     (a)  of conspiring to commit the offence constituted by the related conduct; or

                     (b)  of aiding, abetting, counselling or procuring, inciting or being in any way knowingly concerned in, the commission of the offence constituted by the related conduct.

35P   Unauthorised disclosure of information

Unauthorised disclosure of information

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information relates to a special intelligence operation.

Penalty:  Imprisonment for 5 years.

Note:          Recklessness is the fault element for the circumstance described in paragraph (1)(b)—see section 5.6 of the Criminal Code .

Unauthorised disclosure of information—endangering safety, etc.

             (2)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information relates to a special intelligence operation; and

                     (c)  either:

                              (i)  the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or

                             (ii)  the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:  Imprisonment for 10 years.

Note:          Recklessness is the fault element for the circumstance described in paragraph (2)(b)—see section 5.6 of the Criminal Code .

Exceptions

             (3)  Subsections (1) and (2) do not apply if the disclosure was:

                     (a)  in connection with the administration or execution of this Division; or

                     (b)  for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

                     (c)  in accordance with any requirement imposed by law; or

                     (d)  in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

                     (e)  for the purpose of obtaining legal advice in relation to the special intelligence operation; or

                      (f)  to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 ; or

                     (g)  by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code .

Extended geographical jurisdiction

             (4)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2).

             (5)  Subsection (4) does not, by implication, affect the interpretation of any other provision of this Act.

35PA   Notifications by Director-General

             (1)  The Director-General must cause the Inspector-General of Intelligence and Security to be notified if a special intelligence operation is authorised under this Division.

             (2)  The notification must be given:

                     (a)  in writing; and

                     (b)  as soon as practicable after the special intelligence operation authority is granted.

35Q   Reports by the Director-General

             (1)  If a special intelligence operation is authorised under this Division, the Director-General must give the Minister and the Inspector-General of Intelligence and Security a written report:

                     (a)  if the special intelligence operation authority has effect for a period of 6 months or less—for that period; or

                     (b)  otherwise:

                              (i)  for the first 6-months during which the special intelligence operation authority has effect; and

                             (ii)  for the remainder of the period during which the special intelligence operation authority has effect.

             (2)  A report under subsection (1) must report on the extent to which the special intelligence operation has, during the period to which the report relates, assisted the Organisation in the performance of one or more special intelligence functions.

Note:          The Inspector-General of Intelligence and Security has oversight powers in relation to conduct engaged in accordance with this Division: see section 8 of the Inspector-General of Intelligence and Security Act 1986 .

          (2A)  A report under subsection (1) must report on whether conduct of a participant in a special intelligence operation:

                     (a)  caused the death of, or injury to, any person; or

                     (b)  involved the commission of a sexual offence against any person; or

                     (c)  resulted in loss of, or damage to, property.

             (3)  A report under subsection (1) is not a legislative instrument.

35R   Evidence relating to granting of special intelligence operation authority

             (1)  The Minister may issue a written certificate signed by the Minister setting out such facts as the Minister considers relevant with respect to the granting of a special intelligence operation authority.

             (2)  In any proceeding, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.

4  After subsection 94(2)

Insert:

          (2A)  A report under subsection (1) must also include a statement of:

                     (a)  the total number of applications made under section 35B during the year for the granting of special intelligence operation authorities; and

                     (b)  the total number of special intelligence operation authorities granted during the year.