AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979 - SECT 27A Warrants for the performance of functions under paragraph 17(1)(e)

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979 - SECT 27A

  (1)   Where:

  (a)   the Director - General gives a notice in writing to the Attorney - General requesting the Attorney - General to issue a warrant under this section in relation to premises, a person, a computer or an object identified in the notice authorising the Organisation to do acts or things referred to in whichever of subsections   25(4) or (5), 25A(4), 26B(1), (2), (3) or (4), 27(2) or (3) or 27AA(5) or (8) is or are specified in the notice for the purpose of obtaining foreign intelligence relating to a matter specified in the notice; and

  (b)   the Attorney - General is satisfied, on the basis of advice received from the Defence Minister or the Foreign Affairs Minister, that 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;

the Attorney - General may, by warrant under his or her hand, authorise the Organisation, subject to any conditions or restrictions that are specified in the warrant, to do such of those acts or things in relation to those premises, that person, that computer or those objects as the Attorney - General considers appropriate in the circumstances and are specified in the warrant for the purpose of obtaining that intelligence.

  (2)   The warrant must:

  (a)   authorise the use of any force against persons and things that is necessary and reasonable to do the things mentioned in subsection   (1); and

  (b)   if the warrant authorises entering premises--state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.

  (3)   A warrant under this section shall specify the period for which it is to remain in force, being a period not exceeding:

  (a)   in a case where the warrant authorises the doing of acts or things referred to in subsection   25(4) or (5)--90 days;

  (b)   in a case where the warrant authorises the doing of acts or things referred to in subsection   25A(4), 26B(1), (2), (3) or (4), 27(2) or (3) or 27AA(5) or (8)--6 months;

but may be revoked by the Attorney - General at any time before the end of the period so specified.

  (3A)   If a surveillance device is installed or used in accordance with a warrant under this section authorising the doing of acts referred to in subsection   26B(1) (2), (3) or (4), the Organisation is authorised to do any of the following:

  (a)   recover the surveillance device or any enhancement equipment in relation to the device;

  (b)   enter any premises where the surveillance device is reasonably believed to be, for the purpose of recovering the device or the equipment;

  (c)   enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph   (b);

  (d)   enter into or onto, or alter, an object for the purpose of recovering the device or the equipment;

  (e)   replace an object with an equivalent object for the purposes of recovering the device or the equipment;

  (f)   break open any thing for the purpose of recovering the device or the equipment;

  (g)   if the device or equipment is installed in or on an object--temporarily remove the object from any place where it is situated for the purpose of recovering the device or the equipment and returning the object to that place;

  (h)   use a nominal amount of electricity from any source to power the device or equipment;

  (i)   any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;

  (j)   use any force against persons and things that is necessary and reasonable to do any of the above;

  (k)   any other thing reasonably incidental to any of the above;

at the following time:

  (l)   at any time while the warrant is in force or within 28 days after it ceases to be in force;

  (m)   if the surveillance device is not recovered at a time mentioned in paragraph   (l)--at the earliest time, after the 28 days mentioned in that paragraph, at which it is reasonably practicable to do the things concerned.

  (3B)   If, for the purposes of subsection   (3A):

  (a)   the surveillance device is not recovered while the warrant is in force; and

  (b)   the surveillance device is a tracking device;

the Organisation is also authorised to use the surveillance device or any enhancement equipment in relation to the device solely for the purposes of the location and recovery of the device or equipment.

  (3C)   If any thing has been done in relation to a computer under:

  (a)   a warrant under this section that authorises the Organisation to do acts or things referred to in subsection   25A(4); or

  (b)   this subsection;

the Organisation is authorised to do any of the following:

  (c)   any thing reasonably necessary to conceal the fact that any thing has been done under the warrant or under this subsection;

  (d)   enter any premises where the computer is reasonably believed to be, for the purposes of doing the things mentioned in paragraph   (c);

  (e)   enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph   (d);

  (f)   remove the computer or another thing from any place where it is situated for the purposes of doing the things mentioned in paragraph   (c), and returning the computer or other thing to that place;

  (g)   if, having regard to other methods (if any) of doing the things mentioned in paragraph   (c) which are likely to be as effective, it is reasonable in all the circumstances to do so:

  (i)   use any other computer or a communication in transit to do those things; and

  (ii)   if necessary to achieve that purpose--add, copy, delete or alter other data in the computer or the communication in transit;

  (h)   intercept a communication passing over a telecommunications system, if the interception is for the purposes of doing any thing mentioned in this subsection;

  (i)   any other thing reasonably incidental to any of the above;

at the following time:

  (j)   at any time while the warrant is in force or within 28 days after it ceases to be in force;

  (k)   if none of the things mentioned in paragraph   (c) are done within the 28 - day period mentioned in paragraph   (j)--at the earliest time after that 28 - day period at which it is reasonably practicable to do the things mentioned in paragraph   (c).

  (3D)   Subsection   (3C) does not authorise the doing of a thing that is likely to:

  (a)   materially interfere with, interrupt or obstruct:

  (i)   a communication in transit; or

  (ii)   the lawful use by other persons of a computer;

    unless the doing of the thing is necessary to do one or more of the things specified in subsection   (3C); or

  (b)   cause any other material loss or damage to other persons lawfully using a computer.

  (3E)   If a computer or another thing is removed from a place in accordance with paragraph   (3C)(f), the computer or thing must be returned to that place:

  (a)   if returning the computer or thing would be prejudicial to security--when returning the computer or thing would no longer be prejudicial to security; or

  (b)   otherwise--within a reasonable period.

  (4)   Subsection   (3) shall not be construed as preventing the issue of any further warrant.

  (6)   Where the Director - General is informed under section   32 of the issue of a warrant under this section authorising the doing of acts or things referred to in subsection   27(2) or (3), the Director - General must:

  (a)   cause the Australian Postal Corporation to be informed of the issue of the warrant without delay; and

  (b)   where, under section   32, the Director - General receives the warrant--cause a certified copy of the warrant to be given to the Australian Postal Corporation as soon as practicable.

  (6A)   Where:

  (a)   the Director - General has been informed under section   32 of the issue of a warrant under this section authorising the doing of acts or things referred to in subsection   27(2) or (3); and

  (b)   the Director - General is informed under section   32 that the warrant has been revoked;

the Director - General must:

  (c)   cause the Australian Postal Corporation to be informed of the revocation without delay; and

  (d)   where, under section   32, the Director - General receives the instrument of revocation--cause a certified copy of the instrument of revocation to be given to the Australian Postal Corporation as soon as practicable.

  (7)   The Australian Postal Corporation shall give to a person acting pursuant to a warrant under this section authorising the doing of acts or things referred to in subsection   27(2) or (3) all reasonable assistance.

  (8)   Nothing in Part   VIIA of the Crimes Act 1914 or the Australian Postal Corporation Act 1989 shall be taken to prohibit the doing of anything pursuant to, or for the purposes of, a warrant under this section.

  (9)   The Director - General shall not request the issue of a warrant under this section for the purpose of collecting information concerning an Australian citizen or a permanent resident, unless the Director - General reasonably suspects that the person is acting for, or on behalf of, a foreign power.

  (9A)   If the Director - General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection   (9)), then:

  (a)   the Director - General must include details in the request about the grounds on which the Director - General suspects that the person is acting for, or on behalf of, a foreign power; and

  (b)   the Attorney - General must not issue the warrant unless the Attorney - General is satisfied that the person is, or is reasonably suspected by the Director - General of, acting for, or on behalf of, a foreign power.

  (10)   The reference in subsection   (1) to conditions or restrictions includes a reference to conditions or restrictions designed to minimise the obtaining by the Organisation, pursuant to a warrant issued under that subsection, of information that is not publicly available concerning Australian citizens or permanent residents, or to minimise the retention of information of that kind.