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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Intelligence
Services Bill 2001
No. ,
2001
(Foreign
Affairs)
A Bill for an Act relating to the
Australian intelligence services, and for related purposes
ISBN: 0642 459851
Contents
A Bill for an Act relating to the Australian intelligence
services, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Intelligence Services Act
2001.
This Act commences 28 days after the day on which it receives the Royal
Assent.
In this Act, unless the contrary intention appears:
agency means ASIS or DSD.
agency head means:
(a) in relation to ASIS—the Director-General; and
(b) in relation to DSD—the Director.
ASIO means the Australian Security Intelligence
Organisation.
ASIS means the Australian Secret Intelligence
Service.
Australia, when used in a geographical sense, includes the
external Territories.
Australian person means a person who is:
(a) an Australian citizen; or
(b) a permanent resident.
Chair means the Chair of the Committee.
Committee means the Parliamentary Joint Committee on ASIO and
ASIS.
Commonwealth authority includes:
(a) an Agency within the meaning of the Public Service Act 1999;
and
(b) a Department within the meaning of the Parliamentary Service Act
1999; and
(c) the Defence Force; and
(d) a body (whether incorporated or not) established, or continued in
existence, for a public purpose by or under a law of the Commonwealth;
and
(e) a body corporate in which the Commonwealth or a body referred to in
paragraph (d) has a controlling interest.
court includes a tribunal, authority or person that has power
to require the production of documents or the answering of questions.
Director means the Director of DSD.
Director-General means the Director-General of
ASIS.
Director-General of Security means the Director-General of
Security holding office under the Australian Security Intelligence
Organisation Act 1979.
DSD means that part of the Department of Defence known as the
Defence Signals Directorate.
Inspector-General of Intelligence and Security means the
Inspector-General of Intelligence and Security appointed under the
Inspector-General of Intelligence and Security Act 1986.
intelligence information means information obtained by ASIS
under paragraph 6(1)(a), or by DSD under paragraph 7(a).
member means a member of the Committee, and includes the
Chair.
operationally sensitive information means
information:
(a) about sources of information, other operational assistance or
operational methods available to ASIO or ASIS; or
(b) about particular operations that have been, are being or are proposed
to be undertaken by ASIO or ASIS; or
(c) provided by, or by an agency of, a foreign government where that
government does not consent to the public disclosure of the
information.
permanent resident has the same meaning as in section 4
of the Australian Security Intelligence Organisation Act 1979.
responsible Minister means:
(a) in relation to ASIO—the Minister responsible for ASIO;
and
(b) in relation to ASIS—the Minister responsible for ASIS;
and
(c) in relation to DSD—the Minister responsible for DSD.
staff member means:
(a) in relation to ASIO—a member of the staff of ASIO (whether an
officer or employee of ASIO, or a person who is made available by another
Commonwealth or State authority or other person to perform services for
ASIO); and
(b) in relation to ASIS—a member of the staff of ASIS (whether an
employee of ASIS, a consultant to ASIS, or a person who is made available by
another Commonwealth or State authority or other person to perform services for
ASIS); and
(c) in relation to DSD—a member of the staff of DSD (whether an
employee of DSD, a consultant to DSD, or a person who is made available by
another Commonwealth or State authority or other person to perform services for
DSD).
State authority includes:
(a) a Department of State of a State or Territory or a Department of the
Public Service of a State or Territory; and
(b) a body (whether incorporated or not) established, or continued in
existence, for a public purpose by or under a law of a State or Territory;
and
(c) a body corporate in which a State, Territory or a body referred to in
paragraph (b) has a controlling interest.
This Act extends to every external Territory.
(1) Chapter 2 of the Criminal Code applies to all offences
against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) Section 15.4 of the Criminal Code (extended geographical
jurisdiction—category D) applies to all offences against this
Act.
(1) The functions of ASIS are:
(a) to obtain, in accordance with the Government’s requirements,
intelligence about the capabilities, intentions or activities of people or
organisations outside Australia; and
(b) to communicate, in accordance with the Government’s
requirements, such intelligence; and
(c) to conduct counter-intelligence activities; and
(d) to liaise with intelligence or security services, or other
authorities, of other countries; and
(e) to undertake such other activities as the responsible Minister directs
relating to the capabilities, intentions or activities of people or
organisations outside Australia.
(2) The responsible Minister may direct ASIS to undertake activities
referred to in paragraph (1)(e) only if the Minister:
(a) has consulted other Ministers who have related responsibilities;
and
(b) is satisfied that there are satisfactory arrangements in
place to ensure that, in carrying out the direction, nothing will be done beyond
what is necessary having regard to the purposes for which the direction is
given; and
(c) is satisfied that there are satisfactory arrangements in place to
ensure that the nature and consequences of acts done in carrying out the
direction will be reasonable having regard to the purposes for which the
direction is given.
(3) A direction under paragraph (1)(e) must be in writing.
(4) In performing its functions, ASIS must not plan for, or undertake,
paramilitary activities or activities involving violence against the person or
the use of weapons.
Note 1: For other limits on the agency’s functions and
activities see sections 11 and 12.
Note 2: If the Minister gives a direction under
paragraph (1)(e), the Minister must give a copy of the direction to the
Inspector-General of Intelligence and Security as soon as practicable after the
direction is given to the head of ASIS (see section 32B of the
Inspector-General of Intelligence and Security Act
1986).
The functions of DSD are:
(a) to obtain intelligence about the capabilities, intentions or
activities of people or organisations outside Australia in the form of
electromagnetic energy, whether guided or unguided or both, or in the form of
electrical, magnetic or acoustic energy, for the purposes of meeting the
requirements of the Government, and in particular the requirements of the
Defence Force, for such intelligence; and
(b) to communicate, in accordance with the Government’s
requirements, such intelligence; and
(c) to provide material, advice and other assistance to Commonwealth and
State authorities on matters relating to the security and integrity of
information that is processed, stored or communicated by electronic or similar
means; and
(d) to provide assistance to Commonwealth and State authorities in
relation to cryptography and communications technologies.
Note: For limits on the agency’s functions and
activities see sections 11 and 12.
(1) The responsible Minister in relation to ASIS, and the responsible
Minister in relation to DSD, must issue a written direction under this
subsection to the relevant agency head. The direction must specify the
circumstances in which the agency must, before undertaking particular activities
or classes of activities, obtain an authorisation under section 9 from the
Minister.
(2) The responsible Minister may give written directions to be
observed:
(a) in the performance by the relevant agency of its functions;
or
(b) in the case of ASIS—in the exercise of the powers of the
Director-General under section 33 or 34.
(3) Each agency head must ensure that the agency complies with any
direction given by the responsible Minister under this section.
(4) Directions under paragraph (2)(b) must not relate to a specific
staff member.
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).
(1) Before a Minister gives an authorisation under this section, the
Minister must be satisfied that:
(a) any activities which may be done in reliance on the authorisation will
be necessary for the proper performance of a function of the agency concerned;
and
(b) there are satisfactory arrangements in place to ensure that nothing
will be done in reliance on the authorisation beyond what is necessary for the
proper performance of a function of the agency; and
(c) there are satisfactory arrangements in place to ensure that the nature
and consequences of acts done in reliance on the authorisation will be
reasonable, having regard to the purposes for which they are carried
out.
(2) The Minister may give an authorisation in relation to:
(a) an activity, or class of activities, specified in the authorisation;
or
(b) acts of a staff member or agent, or a class of staff members or
agents, specified (whether by name or otherwise) in the authorisation;
or
(c) activities done for a particular purpose connected with the
agency’s functions.
(3) An authorisation is subject to any conditions specified in
it.
(4) An authorisation must be in writing and must specify how long it will
have effect.
(5) If a Minister gives an authorisation under this section in relation to
an agency, the relevant agency head must ensure that a copy of the authorisation
is kept by the agency and is available for inspection on request by the
Inspector-General of Intelligence and Security.
(1) The Minister may, at any time before the day on which an authorisation
would cease to have effect, renew it for the length of time specified in the
renewal. However, the authorisation must not be renewed unless the Minister is
satisfied that it is necessary, for the purpose for which the authorisation was
given, for the authorisation to continue to have effect.
(2) The Minister may vary or cancel an authorisation at any
time.
(3) A renewal, variation or cancellation of an authorisation must be in
writing.
(1) The functions of the agencies are to be performed only in the
interests of Australia’s national security, Australia’s foreign
relations or Australia’s national economic well-being and only to the
extent that those matters are affected by the capabilities, intentions or
activities of people or organisations outside Australia.
(2) The agencies’ functions do not include:
(a) the carrying out of police functions; or
(b) any other responsibility for the enforcement of the law.
However, this does not prevent the agencies from:
(c) obtaining intelligence under paragraph 6(1)(a) or 7(a) and
communicating any such intelligence that is relevant to serious crime to the
appropriate law enforcement authorities; or
(d) in the case of DSD—performing the function set out in paragraph
7(d).
(3) Subsection (1) does not apply to the functions described in
paragraphs 7(c) and (d).
An agency must not undertake any activity unless the activity
is:
(a) necessary for the proper performance of its functions; or
(b) authorised or required by or under another Act.
(1) Subject to any arrangements made or directions given by the
responsible Minister, an agency may cooperate with:
(a) Commonwealth authorities; and
(b) State authorities; and
(c) authorities of other countries approved by the Minister as being
capable of assisting the agency in the performance of its functions;
so far as is necessary for the agency to perform its functions, or so far
as facilitates the performance by the agency of its functions.
Note: For Commonwealth authority and
State authority see section 3.
(2) An approval under paragraph (1)(c) must be in writing.
(3) Each agency head must ensure that a copy of any approval given by the
relevant responsible Minister is kept by the agency and is available on request
by the Inspector-General of Intelligence and Security.
(1) A staff member or agent of an agency is not subject to any civil or
criminal liability for any act done outside Australia if the act is done in the
proper performance of a function of the agency.
(2) A person is not subject to any civil or criminal liability for
any act done inside Australia if:
(a) the act is preparatory to, in support of, or otherwise directly
connected with, overseas activities of the agency concerned; and
(b) the act:
(i) involves aiding, abetting, counselling, procuring or otherwise
planning or attempting to carry out; or
(ii) is otherwise directly connected with;
some other act outside Australia that would amount to an offence if that
other act were committed in Australia; and
(c) the act is done in the proper performance of a function of the
agency.
(3) In this section:
act includes omission.
staff member includes the Director and the
Director-General.
(1) The responsible Minister in relation to ASIS, and the responsible
Minister in relation to DSD, must make written rules regulating the
communication and retention by the relevant agency of intelligence information
concerning Australian persons.
(2) In making the rules, the Minister must have regard to the need to
ensure that the privacy of Australian persons is preserved as far as is
consistent with the proper performance by the agencies of their
functions.
Note: For Australian person see
section 3.
(3) Before making the rules, the Minister must consult with:
(a) in the case of ASIS—the Director-General; and
(b) in the case of DSD—the Director; and
(c) in either case—the Inspector-General of Intelligence and
Security.
(4) For the purpose of consultations under paragraph (3)(c), the
Minister must provide a copy of the rules the Minister is proposing to make to
the Inspector-General of Intelligence and Security.
(5) The agencies must not communicate intelligence information concerning
Australian persons, except in accordance with the rules.
Note: For intelligence information see
section 3.
The organisation known as the Australian Secret Intelligence Service is
continued in existence in accordance with this Act.
(1) There is to be a Director-General of ASIS.
(2) The Director-General is to be appointed by the
Governor-General.
(3) Before a recommendation is made to the Governor-General for the
appointment of a person as Director-General, the Prime Minister must consult
with the Leader of the Opposition in the House of Representatives.
(4) The person who, immediately before the commencement of this Act, held
office as the Director-General of ASIS continues, subject to this Act, to hold
the office for the remainder of the term for which he or she was
appointed.
(1) ASIS is under the control of the Director-General.
(2) The Director-General, under the Minister, is responsible for managing
ASIS and must advise the Minister in matters relating to ASIS.
(1) The Director-General may, with the authorisation of the Prime
Minister, brief the Leader of the Opposition in the House of Representatives
about ASIS.
(2) The Leader of the Opposition may at any time request the Prime
Minister to authorise the Director-General to provide a briefing about
ASIS.
(1) The Director-General holds office for the period specified in the
instrument of appointment, but is eligible for re-appointment.
(2) The period must not be longer than 5 years.
(1) The remuneration and other conditions of appointment of the
Director-General are as determined in writing by the responsible
Minister.
(2) For each determination, the responsible Minister must seek the advice
of the Remuneration Tribunal and take that advice into account.
(3) Each determination must be published in the Gazette within 14
days after the determination is made.
The Director-General may resign by giving a signed notice of resignation
to the Governor-General.
(1) The Governor-General may terminate the appointment of the
Director-General for misbehaviour or physical or mental incapacity.
(2) The Governor-General must terminate the appointment of the
Director-General if:
(a) the Director-General:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(b) the Director-General is absent, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months; or
(c) the Director-General engages, except with the Minister’s
approval, in paid employment outside the duties of his or her office;
or
(d) the Director-General fails, without reasonable excuse, to comply with
section 26 (disclosure of interests).
(3) The Governor-General may, with the Director-General’s consent,
retire the Director-General from office on the ground of incapacity if the
Director-General is:
(a) an eligible employee for the purposes of the Superannuation Act
1976; or
(b) a member of the superannuation scheme established by deed under the
Superannuation Act 1990.
(1) The Minister may appoint a person to act as the Director-General if
there is a vacancy in the office of the Director-General.
(2) The Minister may appoint a person to act as the Director-General
during any period, or during all periods, when the Director-General is absent
from duty or from Australia or is, for any reason, unable to perform the duties
of the office.
(3) Anything done by or in relation to a person purporting to act under
this section is not invalid merely because:
(a) the occasion of the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Note: See section 33A of the Acts Interpretation Act
1901 on acting appointments.
The Director-General must not engage in paid employment that, in the
Minister’s opinion, conflicts or may conflict with the proper performance
of the Director-General’s duties.
The Director-General must give written notice to the Minister of all
interests, pecuniary or otherwise, that the Director-General has or acquires and
that could conflict with the proper performance of the Director-General’s
functions.
(1) The Director-General may delegate to a staff member (other than a
consultant) all or any of the powers of the Director-General that relate to the
management of the staff of ASIS or the financial management of ASIS.
Note: See sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 on delegations.
(2) The delegation must be in writing.
(1) A Committee to be known as the Parliamentary Joint Committee on ASIO
and ASIS is to be established as soon as practicable after the commencement of
this Act and after the commencement of the first session of each
Parliament.
(2) The Committee is to consist of 7 members, 3 of whom must be Senators
and 4 of whom must be members of the House of Representatives.
(3) A majority of the Committee’s members must be Government
members.
Note: For more detailed provisions on the appointment of
members see Part 3 of Schedule 1.
(1) The functions of the Committee are:
(a) to review the administration and expenditure of ASIO and ASIS,
including the annual financial statements of ASIO and ASIS; and
(b) to review any matter in relation to ASIO or ASIS referred to the
Committee by:
(i) the responsible Minister; or
(ii) a resolution of either House of the Parliament; and
(c) to report the Committee’s comments and recommendations to each
House of the Parliament and to the responsible Minister.
(2) The Committee may, by resolution, request the responsible Minister to
refer a particular aspect of the activities of ASIO or ASIS (as the case may be)
to the Committee, and the Minister may, under paragraph (1)(b), refer that
aspect to the Committee for review.
(3) The functions of the Committee do not include:
(a) reviewing the intelligence gathering priorities of ASIO or ASIS;
or
(b) reviewing the sources of information, other operational assistance or
operational methods available to ASIO or ASIS; or
(c) reviewing particular operations that have been, are being or are
proposed to be undertaken by ASIO or ASIS; or
(d) reviewing information provided by, or by an agency of, a foreign
government where that government does not consent to the disclosure of the
information; or
(e) reviewing an aspect of the activities of ASIO or ASIS that does not
affect an Australian person; or
(f) reviewing the rules made under section 15 of this Act;
or
(g) conducting inquiries into individual complaints about the activities
of ASIO or ASIS.
Note: For Australian person see
section 3.
For the purpose of performing its functions, the Committee may request
the following people to brief the Committee:
(a) the Director-General of Security;
(b) the Director-General of ASIS;
(c) the Inspector-General of Intelligence and Security.
Note: The Committee cannot require anyone briefing the
Committee to disclose operationally sensitive information (see clause 1 of
Schedule 1).
As soon as practicable after each year ending on 30 June, the
Committee must give to the Parliament a report on the activities of the
Committee during the year.
Schedule 1 contains further provisions about the
Committee.
(1) The Director-General may, on behalf of the Commonwealth, employ by
written agreement such employees of ASIS as the Director-General thinks
necessary for the purposes of this Act.
(2) The Director-General, on behalf of the Commonwealth, has all the
rights, duties and powers of an employer in respect of the engagement, and
employment, of employees of ASIS.
(3) The Director-General may determine the terms and conditions on which
employees are to be employed. Before making a determination the Director-General
must consult with the employees who are to be subject to the terms and
conditions of the determination.
(1) The Director-General may, on behalf of the Commonwealth, engage as
consultants persons having suitable qualifications and experience.
(2) The engagement of a consultant must be by written agreement.
(3) The terms and conditions of engagement are those determined by the
Director-General from time to time.
Although employees of ASIS are not employed under the Public Service
Act 1999, the Director-General must adopt the principles of that Act in
relation to employees of ASIS to the extent to which the Director-General
considers they are consistent with the effective performance of the functions of
ASIS.
A person who, immediately before the commencement of this Act, was
employed in ASIS under a written agreement continues to be employed on the terms
and conditions specified in that agreement, unless he or she agrees to accept
other terms and conditions.
(1) The Director-General must:
(a) establish procedures relating to the consideration of grievances of
employees and former employees of ASIS; and
(b) determine the classes of ASIS actions that are to be subject to the
grievance procedures.
(2) In establishing the procedures and determining the classes of action,
the Director-General must:
(a) adopt the principles of the Public Service Act 1999 to the
extent to which the Director-General considers they are consistent with the
effective performance of the functions of ASIS; and
(b) consult with the employees of ASIS.
(3) The procedures must include the following matters:
(a) initial consideration of grievances by the Director-General or a
person authorised in writing by the Director-General;
(b) establishment of Grievance Review Panels chaired by independent Chairs
to make determinations reviewing initial considerations of grievances.
(4) The Director-General must implement a determination of a Grievance
Review Panel to the extent that it is within his or her power to do
so.
(5) In this section:
action includes a refusal or failure to act.
ASIS action means action taken after the commencement of this
Act by the Director-General or an employee of ASIS that relates to an ASIS
employee’s employment.
The Director-General and staff members of ASIS are Commonwealth officers
for the purposes of the Crimes Act 1914.
(1) A person is guilty of an offence if:
(a) the person communicates any information or matter that was prepared by
or on behalf of ASIS in connection with its functions or relates to the
performance by ASIS of its functions; and
(b) the information or matter has come to the knowledge or into the
possession of the person by reason of:
(i) his or her being, or having been, a staff member or agent of ASIS;
or
(ii) his or her having entered into any contract, agreement or arrangement
with ASIS; or
(iii) his or her having been an employee or agent of a person who has
entered into a contract, agreement or arrangement with ASIS; and
(c) the communication was not made:
(i) to the Director-General or a staff member by the person in the course
of the person’s duties as a staff member; or
(ii) to the Director-General or a staff member by the person in accordance
with a contract, agreement or arrangement; or
(iii) by the person in the course of the person’s duties as a staff
member or agent, within the limits of authority conferred on the person by the
Director-General; or
(iv) with the approval of the Director-General or of a staff member having
the authority of the Director-General to give such an approval.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) A prosecution for an offence against subsection (1) may be
instituted only by the Attorney-General or with the Attorney-General’s
consent.
(1) A person is guilty of an offence if:
(a) the person communicates any information or matter that was prepared by
or on behalf of DSD in connection with its functions or relates to the
performance by DSD of its functions; and
(b) the information or matter has come to the knowledge or into the
possession of the person by reason of:
(i) his or her being, or having been, a staff member of DSD; or
(ii) his or her having entered into any contract, agreement or arrangement
with DSD; or
(iii) his or her having been an employee or agent of a person who has
entered into a contract, agreement or arrangement with DSD; and
(c) the communication was not made:
(i) to the Director or a staff member by the person in the course of the
person’s duties as a staff member; or
(ii) to the Director or a staff member by the person in accordance with a
contract, agreement or arrangement; or
(iii) by the person in the course of the person’s duties as a staff
member, within the limits of authority conferred on the person by the Director;
or
(iv) with the approval of the Director or of a staff member having the
authority of the Director to give such an approval.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) A prosecution for an offence against subsection (1) may be
instituted only by the Attorney-General or with the Attorney-General’s
consent.
(1) A person is guilty of an offence:
(a) if:
(i) the person identifies a person as being, or having been, an agent or
staff member of ASIS; and
(ii) the identification is not of the Director-General or such other
persons as the Director-General determines; or
(b) if:
(i) the person makes public any information from which the identity of
such a person could reasonably be inferred, or any information that could
reasonably lead to the identity of such a person being established;
and
(ii) the Minister or Director-General has not consented in writing to the
information being made public; and
(iii) the information has not been made public by means of broadcasting or
reporting proceedings of the Parliament (other than proceedings of the
Committee) as authorised by the Parliament.
Penalty: Imprisonment for 1 year or 60 penalty units, or both.
Note: For agent and staff member
see section 3.
(2) A prosecution for an offence against subsection (1) may be
instituted only by the Attorney-General or with the Attorney-General’s
consent.
As soon as practicable after each year ending on 30 June, the
Director-General must give to the Minister a report on the activities of ASIS
during the year.
The Governor-General may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Note: See section 32.
The Committee must not require a person or body to disclose to the
Committee operationally sensitive information or information that would or might
prejudice Australia’s national security or the conduct of
Australia’s foreign relations.
Note: For operationally sensitive information
see section 3.
(1) The Chair or another member authorised by the Committee may give a
person written notice requiring the person to appear before the Committee to
give evidence or to produce documents to the Committee.
(2) The notice must specify the day on which, and the time and place at
which, the person is required to appear or to produce documents. The day must
not be less than 14 days after the day on which the notice is given to the
person.
(3) The notice must also specify the nature of the evidence or documents
to be provided to the Committee, and in the case of documents, the form in which
they are to be provided.
(4) A requirement under this clause must not be made of:
(a) the Director-General of Security or the Director-General of ASIS;
or
(b) a staff member or agent of ASIO or a staff member or agent of ASIS;
or
(c) the Inspector-General of Intelligence and Security; or
(d) a member of the staff of the Inspector-General of Intelligence and
Security.
(5) A requirement under this clause may only be made of a person if the
Committee has reasonable grounds for believing that the person is capable of
giving evidence or producing documents relevant to a matter that the Committee
is reviewing or that has been referred to the Committee.
(6) If a member gives a notice to a person, the member must as soon as
practicable give a copy of the notice to the Minister responsible for ASIO or
the Minister responsible for ASIS, as the case requires.
(7) The Commonwealth must pay a person who has been given a notice
requiring the person to appear before the Committee such allowances for the
person’s travelling and other expenses as are prescribed.
(1) The Chair or another member authorised by the Committee may give a
written notice to the Director-General of Security or the Director-General of
ASIS requiring him or her to appear before the Committee to give evidence or to
produce documents to the Committee.
(2) The notice must specify the day on which, and the time and place at
which, the Director-General is required to appear or to produce documents. The
day must not be less than 14 days after the day on which the notice is given to
the Director-General.
(3) The notice must also specify the nature of the evidence or documents
to be provided to the Committee, and in the case of documents, the form in which
they are to be provided.
(4) A requirement under this clause may only be made of the
Director-General if the Committee has reasonable grounds for believing that the
Director-General is capable of giving evidence or producing documents relevant
to a matter that has been referred to the Committee.
(5) The evidence is to be given by:
(a) if the Director-General nominates a staff member to give the
evidence—the staff member or both the staff member and the
Director-General; or
(b) in any other case—the Director-General.
(6) If a member gives a notice to the Director-General, the member must as
soon as practicable give a copy of the notice to the responsible
Minister.
(1) If:
(a) a person is about to give or is giving evidence to the Committee or is
about to produce a document to the Committee (whether or not required to do so
under clause 2 or 3); and
(b) either the Minister responsible for ASIO or the Minister
responsible for ASIS is of the opinion that, to prevent the disclosure of
operationally sensitive information:
(i) the person (not being the Director-General of Security or the
Director-General of ASIS) should not give evidence before the Committee;
or
(ii) the person should not give evidence before the Committee relating to
a particular matter; or
(iii) in a case where a person has commenced to give evidence before the
Committee:
(A) the person should not continue to give evidence before the Committee;
or
(B) the person should not give, or continue to give, evidence relating to
a particular matter before the Committee; or
(iv) the person should not produce documents to the Committee;
or
(v) the person should not produce documents of a particular kind to the
Committee;
the Minister may give to the presiding member of the Committee a
certificate in relation to the matter stating the Minister’s
opinion.
(2) The Minister’s certificate must also specify:
(a) in a case to which subparagraph (1)(b)(ii) or (v)
applies—the matter in relation to which the Minister is satisfied that the
person should not give, or continue to give, evidence, or specifying the kind of
documents that the Minister is satisfied the person should not produce, as the
case requires; and
(b) in a case to which sub-subparagraph (1)(b)(iii)(B)
applies—the matter in relation to which the Minister is satisfied that the
person should not give, or continue to give, evidence.
(3) The Minister must give a copy of a certificate under
subclause (1) to the President of the Senate, to the Speaker of the House
of Representatives and to the person required to give evidence or produce
documents.
(4) A decision of the Minister under subclause (1) must not be
questioned in any court or tribunal.
(5) Where the Minister gives a certificate under subclause (1) in
relation to a person:
(a) if the certificate states that the person should not give, or continue
to give, evidence before the Committee—the Committee must not receive, or
continue to receive, as the case may be, evidence from the person; or
(b) if the certificate states that the person should not give, or continue
to give, evidence before the Committee relating to a particular matter—the
Committee must not receive, or continue to receive, as the case may be, evidence
from the person relating to that matter; or
(c) if the certificate states that the person should not produce
documents, or documents of a particular kind, to the Committee—the
Committee must not receive documents, or documents of that kind, as the case may
be, from the person.
(1) The Committee may take evidence on oath or affirmation.
(2) The member presiding may administer an oath or affirmation to a
witness appearing before the Committee.
(3) The oath or affirmation is an oath or affirmation that the evidence
the person will give will be true.
(4) To avoid doubt, the Committee is not to be taken to be an Australian
court for the purposes of the Evidence Act 1995.
(1) Subject to this clause, the Committee may disclose or publish, or
authorise the disclosure or publication of:
(a) any evidence taken by the Committee; or
(b) the contents of any document produced to the Committee.
(2) The Committee must not disclose or publish, or authorise the
disclosure or publication of, the evidence or the contents of the document
without the written authority of:
(a) if the person who gave the evidence or produced the document is a
staff member of ASIO or ASIS—the relevant Director-General; or
(b) in any other case—the person who gave the evidence or produced
the document.
(3) The Committee must obtain the advice of the responsible Minister as to
whether the disclosure or publication would or might disclose:
(a) the identity of a person who is or has been a staff member or agent of
ASIO or a staff member or agent of ASIS (as the case requires); or
(b) any information from which the identity of such a person could
reasonably be inferred; or
(c) operationally sensitive information or information that would or might
prejudice:
(i) Australia’s national security or the conduct of
Australia’s foreign relations; or
(ii) the performance by either ASIO or ASIS of its functions.
Note: For operationally sensitive information
see section 3.
(4) The Director-General of Security and the Director-General of ASIS may
determine that paragraphs (3)(a) and (b) do not apply to the identification
of specified staff members or agents of their respective agencies, and the
determination has effect accordingly.
(5) The Committee must not disclose or publish, or authorise the
disclosure or publication of, the evidence or the contents of the document if
the responsible Minister has advised the Committee that the disclosure or
publication would or might disclose a matter referred to in
subclause (3).
(6) This clause has effect despite section 2 of the Parliamentary
Papers Act 1908.
(7) If the evidence, or the contents of the document, are disclosed or
published under this clause, section 4 of the Parliamentary Papers Act
1908 applies to the disclosure or publication as if it were a publication
under an authority given under section 2 of that Act.
(1) The Committee must not disclose in a report to a House of the
Parliament:
(a) the identity of a person who is or has been a staff member or agent of
ASIO or ASIS; or
(b) any information from which the identity of such a person could
reasonably be inferred; or
(c) operationally sensitive information or information that would or might
prejudice:
(i) Australia’s national security or the conduct of
Australia’s foreign relations; or
(ii) the performance by either ASIO or ASIS of its functions.
Note: For operationally sensitive information
see section 3.
(2) The Director-General of Security and the Director-General of ASIS may
determine that paragraphs (1)(a) and (b) do not apply to the identification
of specified staff members or agents of their respective agencies, and the
determination has effect accordingly.
(3) The Committee must obtain the advice of the responsible Minister as to
whether the disclosure of any part of the report would or might disclose a
matter referred to in subclause (1).
(4) The Committee must not present a report of the Committee to a House of
the Parliament if the responsible Minister has advised that the report or a part
of the report would or might disclose such a matter.
(1) If:
(a) any evidence or document about a matter has been taken by or produced
to the Committee as constituted at a time; and
(b) the Committee as so constituted has ceased to exist before reporting
on the matter;
the Committee as constituted at a later time, whether during the same or
another Parliament, may consider the evidence or document as if the evidence or
document had been taken by or produced to it.
(2) Clause 9 applies to each member of the later Committee as if the
evidence or document had been taken or produced to that Committee.
(1) A person (including a member) is guilty of an offence if:
(a) the person discloses or publishes any evidence taken by the Committee
or the contents of any document produced to the Committee; and
(b) the disclosure or publication is not authorised in writing
by:
(i) if the person who gave the evidence or produced the document is a
staff member—the Director-General; or
(ii) in any other case—the person who gave the evidence or produced
the document; and
(c) the disclosure or publication is of evidence, or is of the contents of
a document, that has not already been lawfully disclosed or published.
(2) Subclause (1) does not apply to the disclosure or publication by
a person of a matter of which the person has become aware otherwise than because
of the giving of any evidence before, or the production of any document to, the
Committee.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(3) Subclause (1) has effect despite section 2 of the
Parliamentary Papers Act 1908.
(4) In this clause:
Committee includes the Parliamentary Joint Committee on the
Australian Security Intelligence Organisation.
Note: The Parliamentary Joint Committee on the Australian
Security Intelligence Organisation (established under the Australian Security
Intelligence Organisation Act 1979) ceased to exist when the Parliamentary
Joint Committee on ASIS and ASIO was established. However, the records of the
earlier Committee were transferred to the Parliamentary Joint Committee on ASIS
and ASIO.
(1) A person who has been given a notice requiring the person to appear
before the Committee is guilty of an offence if the person:
(a) fails to attend as required by the notice; or
(b) having not been excused or released by the Committee, fails to attend
and report from day to day; or
(c) refuses or fails to be sworn or to make an affirmation; or
(d) refuses or fails to answer a question, not being a question about a
matter in respect of which a certificate has been issued under clause 4,
that the Committee requires the person to answer.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(2) Subclause (1) applies to a staff member who is nominated by the
Director-General under subclause 3(5) to appear before the Committee to give
evidence.
(3) Paragraph (1)(d) does not apply if the answer to the question
would tend to incriminate the person.
(4) A person who has been given a notice requiring the person to produce a
document, not being a document in respect of which a certificate has been issued
under clause 4, to the Committee is guilty of an offence if the person
refuses or fails to produce the document.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(5) Subclause (4) does not apply if the producing of the document
would tend to incriminate the person.
(6) A person is guilty of an offence if the person:
(a) gives evidence to the Committee; and
(b) does so knowing that the evidence is false or misleading in a material
particular.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(1) A person who causes or threatens to cause any detriment to another
person with the intention that the other person or a third person
will:
(a) not attend as a witness before the Committee; or
(b) give false evidence or a falsified document to the Committee;
or
(c) withhold true evidence or a document from the Committee;
is guilty of an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person who otherwise improperly influences another person with the
intention that the other person or a third person will:
(a) not attend as a witness before the Committee; or
(b) give false evidence or a falsified document to the Committee;
or
(c) withhold true evidence or a document from the Committee;
is guilty of an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) A person who causes or threatens to cause any detriment to another
person because that other person or a third person appeared before the Committee
or produced a document to the Committee is guilty of an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(1) A person who is or has been a member, or a member of the staff, of the
Committee is guilty of an offence if the person, directly or
indirectly:
(a) makes a record of, or discloses or communicates to a person, any
information acquired because of holding the office or employment; or
(b) produces to a person a document provided to the Committee for the
purposes of enabling the Committee to perform its functions;
and the action of the person is not carried out for the purposes of
enabling the Committee to perform its functions.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) A person who is or has been a member, or a member of the staff, of the
Committee must not be required to:
(a) produce in a court a document of which he or she has custody, or to
which he or she has access, because of his or her position as a member, or a
member of the staff, of the Committee; or
(b) disclose or to communicate to a court any information obtained by him
or her because of such a position.
(3) In this clause:
produce includes permit access to.
A prosecution for an offence against this Part can be instituted only by
the Attorney-General or with the Attorney-General’s consent.
(1) The members who are members of the House of Representatives must be
appointed by resolution of the House on the nomination of the Prime
Minister.
(2) Before nominating the members, the Prime Minister must consult with
the Leader of each recognised political party that is represented in the House
and does not form part of the Government.
(3) The members who are Senators must be appointed by resolution of the
Senate on the nomination of the Leader of the Government in the
Senate.
(4) Before nominating the members, the Leader of the Government in the
Senate must consult with the Leader of each recognised political party that is
represented in the Senate and does not form part of the Government.
(5) In nominating the members, the Prime Minister and the Leader of the
Government in the Senate must have regard to the desirability of ensuring that
the composition of the Committee reflects the representation of recognised
political parties in the Parliament.
(6) A person is not eligible for appointment as a member if the person
is:
(a) a Minister; or
(b) the President of the Senate; or
(c) the Speaker of the House of Representatives.
(1) A member holds office during the pleasure of the House of the
Parliament by which the member was appointed.
(2) A member ceases to hold office as a member:
(a) when the House of Representatives expires by the passing of time or is
dissolved; or
(b) if the person becomes the holder of an office specified in any of the
paragraphs of subclause 14(6); or
(c) if the person ceases to be a member of the House of the Parliament by
which the person was appointed; or
(d) if the person resigns the office.
(3) A member who is a Senator may resign his or her office by giving a
signed notice of resignation to the President of the Senate.
(4) A member who is a member of the House of Representatives may resign
his or her office by giving a signed notice of resignation to the Speaker of the
House of Representatives.
(5) Either House of the Parliament may appoint one of its members to fill
a vacancy among the members of the Committee appointed by that House.
(1) There must be a Chair of the Committee who must be a Government member
elected by the members from time to time.
(2) The Chair holds office during the pleasure of the Committee.
(3) A person holding office as Chair ceases to hold the office
if:
(a) the person ceases to be a member; or
(b) the person resigns the office.
(4) A person holding office as Chair may resign the office by giving a
signed notice of resignation to a meeting of the Committee.
(1) The Committee may meet at such times and, subject to
subclause (3), at such places in Australia as the Committee decides by
resolution or, subject to a resolution of the Committee, as the Chair
decides.
(2) The Committee may meet and transact business even though the
Parliament has been prorogued.
(3) Before the Committee or the Chair decides a place of meeting, the
Chair must obtain advice from the Director-General of Security and the
Director-General of ASIS as to the suitability of the place.
(4) The Chair must preside at all meetings of the Committee at which he or
she is present.
(5) If the Chair is not present at a meeting of the Committee, the members
present are to appoint a member to preside, and the member so appointed may
exercise, in relation to the meeting and any matter arising out of the meeting,
any of the powers of the Chair.
(6) The Committee must keep minutes of its proceedings.
(1) At a meeting of the Committee, a quorum is constituted if:
(a) at least 4 members are present; and
(b) subject to subclause (2), a majority of the members present are
Government members.
(2) There may be an equal number of Government members and non-Government
members if the presiding member is a Government member.
(1) A question arising at a meeting is to be decided by a majority of the
votes of the members present and voting.
(2) The member presiding at the meeting has a deliberative vote.
(3) The member presiding at the meeting has a casting vote if votes are
equal.
(1) The proceedings of the Committee are to be conducted in the manner
determined by the Committee.
(2) The Committee must not, without the approval of the Minister
responsible for ASIO and the Minister responsible for ASIS, conduct a review in
public.
(3) At a review conducted in private, the Committee may give directions as
to the persons who may be present. In giving such directions, the Committee must
have regard to the requirements of security and any other matters the Committee
thinks fit.
Each member of the staff of the Committee must be cleared for security
purposes to the same level and at the same frequency as staff members of
ASIS.
(1) The Committee must make arrangements acceptable to the
Director-General of Security and the Director-General of ASIS for the security
of any information held and any records made by the Committee.
(2) The Committee must ensure that any documents having a national
security classification provided to the Committee are returned as soon as
possible after the members have examined them.