9A   Authorisations in an emergency—Ministerial authorisations

             (1)  This section applies if:

                     (a)  an emergency situation arises in which an agency head considers it necessary or desirable to undertake an activity or a series of activities (except an activity or a series of activities of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)); and

                     (b)  a direction under subsection 8(1) requires the agency to obtain an authorisation under section 9, 9A or 9B before undertaking that activity or series of activities.

Giving oral authorisations

             (2)  A Minister specified in subsection (3) may orally give an authorisation under this section for the activity or series of activities if (subject to section 9C) the conditions in subsections 9(1) and (1A) are met.

Note:          The condition in paragraph 9(1A)(b) may not be required to be met if the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 is unavailable (see section 9C).

             (3)  The Ministers who may orally give an authorisation are:

                     (a)  the responsible Minister in relation to the relevant agency; or

                     (b)  if the agency head is satisfied that the relevant responsible Minister is not readily available or contactable—any of the following Ministers:

                              (i)  the Prime Minister;

                             (ii)  the Defence Minister;

                            (iii)  the Foreign Affairs Minister;

                            (iv)  the Attorney-General.

Note:          An authorisation may be given by an agency head if none of those Ministers are readily available or contactable (see section 9B).

Period of effect of oral authorisation

             (4)  An authorisation given under this section for an activity or series of activities ceases to have effect at the earlier of the following times:

                     (a)  when an authorisation for the activity or series of activities is given under section 9;

                     (b)  48 hours from the time the authorisation was given under this section.

Record of oral authorisation

             (5)  The agency head must:

                     (a)  ensure that a written record of an authorisation given under this section is made as soon as practicable (but no later than 48 hours) after the authorisation is given; and

                     (b)  give the Inspector-General of Intelligence and Security a copy of the record within 3 days after the authorisation is given.

9B   Authorisations in an emergency—Ministers unavailable

             (1)  This section applies if:

                     (a)  an agency head considers it necessary or desirable to undertake an activity or a series of activities; and

                     (b)  an authorisation is sought under section 9A; and

                     (c)  the agency head is satisfied that none of the Ministers specified in subsection 9A(3) are readily available or contactable.

             (2)  The agency head may give an authorisation under this section for the activity or series of activities if the agency head is satisfied that:

                     (a)  the facts of the case would justify the relevant responsible Minister giving an authorisation under section 9 because (subject to section 9C) the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and

                     (b)  the responsible Minister would have given the authorisation; and

                     (c)  if the activity or series of activities is not undertaken before an authorisation is given under section 9 or 9A:

                              (i)  security (within the meaning of the Australian Security Intelligence Organisation Act 1979 ) will be, or is likely to be, seriously prejudiced; or

                             (ii)  there will be, or is likely to be, a serious risk to a person’s safety.

Note:          The condition in paragraph 9(1A)(b) may not be required to be met if the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 is unavailable (see section 9C).

Content and form of authorisation

             (3)  An authorisation given under this section:

                     (a)  may be given in relation to the same matters as an authorisation may be given under subsection 9(2); and

                     (b)  is subject to the requirements of subsections 9(3) and (4A).

Period of effect of authorisation

             (4)  An authorisation given under this section for an activity or series of activities ceases to have effect at the earliest of the following times:

                     (a)  when an authorisation for the activity or series of activities is given under section 9 or 9A;

                     (b)  when the authorisation given under this section is cancelled by the relevant responsible Minister under subsection (8) of this section;

                     (c)  48 hours from the time the authorisation was given under this section.

Copies of authorisation and other documents

             (5)  An agency head who gives an authorisation under this section for an activity or series of activities must give the following documents to the relevant responsible Minister and the Inspector-General of Intelligence and Security:

                     (a)  a copy of the authorisation;

                     (b)  a summary of the facts of the case that the agency head was satisfied justified giving the authorisation;

                     (c)  an explanation of the Minister’s obligation under subsection (7).

             (6)  The documents must be given to the responsible Minister and the Inspector-General of Intelligence and Security as soon as practicable, but no later than the following time:

                     (a)  for documents given to the responsible Minister—48 hours after giving the authorisation;

                     (b)  for documents given to the Inspector-General of Intelligence and Security—3 days after giving the authorisation.

Responsible Minister must consider cancelling authorisation or giving new authorisation

             (7)  As soon as practicable after being given the documents, the responsible Minister must consider whether to:

                     (a)  cancel the authorisation under subsection (8); or

                     (b)  give a new authorisation for the activity or series of activities under section 9 or 9A.

Responsible Minister may cancel authorisation

             (8)  For the purposes of paragraph (4)(b), the relevant responsible Minister may, in writing, cancel an authorisation given under this section.

Authorisation and cancellation not legislative instruments

             (9)  An authorisation and a cancellation under this section are not legislative instruments.

9C   Authorisations in an emergency—Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 unavailable

             (1)  This section applies if:

                     (a)  an agency head considers it necessary or desirable to undertake an activity or a series of activities; and

                     (b)  an authorisation is sought under section 9A or 9B; and

                     (c)  all of the following apply:

                              (i)  the agreement of the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister ) is required to be obtained under paragraph 9(1A)(b);

                             (ii)  the agreement has not been obtained;

                            (iii)  the agency head is satisfied that the ASIO Minister is not readily available or contactable.

Giving authorisation

             (2)  Despite paragraph 9(1A)(b), the authorisation may (subject to subsection (3)) be given without obtaining the agreement of the ASIO Minister.

Obtaining the agreement of the Director-General of Security

             (3)  Before an authorisation is given under section 9A or 9B, unless the agency head is satisfied that the Director-General of Security is not readily available or contactable, the agency head must obtain the agreement of the Director-General to the authorisation being given without the agreement of the ASIO Minister.

Advising the ASIO Minister

             (4)  The relevant agency head must advise the ASIO Minister and the Inspector-General of Intelligence and Security that an authorisation was given under section 9A or 9B (as the case requires) in accordance with this section. The advice must state whether the agreement of the Director-General of Security was obtained.

             (5)  The advice must be given as soon as practicable, but no later than the following time:

                     (a)  for advice given to the ASIO Minister—48 hours after the authorisation is given under section 9A or 9B;

                     (b)  for advice given to the Inspector-General of Intelligence and Security—3 days after the authorisation is given under section 9A or 9B.

19  Section 10 (heading)

Repeal the heading, substitute:

10   Period during which authorisation given under section 9 has effect etc.

20  Before subsection 10(1)

Insert:

Renewing authorisations

21  Subsection 10(1)

After “an authorisation”, insert “given under section 9”.

22  Subsection 10(1A)

Omit “an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i)”, substitute “an authorisation given under section 9 for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (ia), (ib)”.

23  Before subsection 10(2)

Insert:

Varying or cancelling authorisations

24  Subsection 10(2)

After “an authorisation”, insert “given under section 9”.

25  Subsection 10(2A)

Omit “issued”, substitute “given under section 9”.

26  After subsection 10(2A)

Insert:

          (2B)  Without limiting subsection (2A), if an authorisation is given under section 9 for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib), the grounds on which the authorisation was given cease to exist if:

                     (a)  the Defence Force is no longer engaged in any military operations to which the request for the authorisation relates; or

                     (b)  the Defence Minister withdraws the request for the authorisation.

Note:          For the request for the authorisation, see paragraph 9(1)(d).

          (2C)  For the purposes of subsection (2A), if an authorisation is given in reliance on an agreement that specifies a period in accordance with paragraph 9(1AB)(b), the grounds on which the authorisation was given are taken not to have ceased to exist merely because the period specified in the agreement ends.

Renewal, variation or cancellation to be in writing

27  Subsection 10(3)

After “an authorisation”, insert “given under section 9”.

28  At the end of section 10

Add:

Relationship with the Acts Interpretation Act 1901

             (4)  To avoid doubt, this section does not limit subsection 33(3) of the Acts Interpretation Act 1901 to the extent that it applies to an authorisation given under section 9A or 9B.

29  At the end of subsection 10A(1)

Add “, 9A or 9B”.

30  Subsection 10A(2)

After “report must”, insert “(subject to subsections (3) and (4))”.

31  At the end of section 10A

Add:

             (3)  If the report is in respect of an activity, or series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib), the report must be provided to the Minister as soon as practicable, but no later than 3 months, after each of the following days:

                     (a)  the day on which the relevant authorisation ceased to have effect;

                     (b)  the day on which the relevant authorisation was renewed.

             (4)  If the report is in respect of an activity, or series of activities, carried out by the agency in reliance on an authorisation under section 9A or 9B, the report must be provided to the Minister as soon as practicable, but no later than 1 month, after the day on which the authorisation ceased to have effect.