Commonwealth Numbered Acts

AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION AMENDMENT ACT 1986 No. 122 of 1986 - SECT 39

39. After Part V of the Principal Act the following Part is inserted:

"PART VA - PARLIAMENTARY JOINT COMMITTEE ON THE
AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION Interpretation

"92A. In this Part, unless the contrary intention appears -
'Committee' means the Parliamentary Joint Committee on the Australian
Security Intelligence Organization for the time being constituted
under this Part;
'member' means a member of the Committee, and includes the Presiding
Member;
'Presiding Member' means the Presiding Member of the Committee. Joint
Committee on the Australian Security Intelligence Organization

"92B. (1) As soon as practicable after the commencement of this Part and after
the commencement of the first session of each Parliament, a joint committee of
members of the Parliament to be known as the Parliamentary Joint Committee on
the Australian Security Intelligence Organization shall be appointed.

"(2) The Committee shall consist of 7 members, 3 of whom shall be Senators and
4 of whom shall be members of the House of Representatives.

"(3) The members of the Committee who are Senators shall be appointed by
resolution of the Senate on the nomination of the Leader of the Government in
the Senate.

"(4) The members of the Committee who are members of the House of
Representatives shall be appointed by resolution of that House on the
nomination of the Prime Minister.

"(5) Before nominating members of a House of the Parliament for appointment as
members of the Committee, the Prime Minister and the Leader of the Government
in the Senate shall consult with the Leader of each recognised political party
that is represented in that House and that does not form part of the
Government.

"(6) The Prime Minister and the Leader of the Government in the Senate shall,
in nominating members of a House of the Parliament for appointment as members
of the Committee, have regard to the desirability of ensuring that the
composition of the Committee takes into account the representation of
recognised political parties in the Parliament.

"(7) A person is not eligible for appointment as a member of the Committee if
the person is -

   (a)  a Minister;

   (b)  the President of the Senate;

   (c)  the Speaker of the House of Representatives; or

   (d)  the Deputy President and Chairman of Committees of the Senate
or the Chairman of Committees of the House of Representatives.

"(8) Subject to sub-sections (9) and (10), a member holds office during the
pleasure of the House of the Parliament by which the member was appointed.

"(9) A person who is a member ceases to hold office as a member -

   (a)  when the House of Representatives expires by effluxion of time or
is dissolved;

   (b)  if the person becomes the holder of an office specified in any of the
paragraphs of sub-section (7);

   (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 as provided by sub-section (10).

"(10) A member may resign the office of member by writing signed by the member
and delivered to the President of the Senate or the Speaker of the House of
Representatives, as the case requires.

"(11) Either House of the Parliament may appoint one of its members to fill a
vacancy amongst the members of the Committee appointed by that House.
Functions of Committee

"92C. (1) Subject to this section, the functions of the Committee are -

   (a)  to review aspects of the activities of the Organization that are
referred to the Committee in accordance with sub-section (2); and

   (b)  to report to the Minister and, subject to section 92N, to each House
of the Parliament, the Committee's comments and recommendations
following such a review.

"(2) Where -

   (a)  the Minister refers a particular aspect of the activities of the
Organization to the Committee for review; or

   (b)  a House of the Parliament passes a motion that the Committee
review a particular aspect of the activities of the Organization, the
Committee shall, subject to sub-section (4), review that aspect.

"(3) The Committee may, by resolution, request the Minister to refer a
particular aspect of the activities of the Organization to the Committee under
paragraph (2) (a) and, where the Committee passes such a resolution, the
Minister may refer that aspect to the Committee for review.

"(4) The functions of the Committee do not include -

   (a)  reviewing a matter that relates to the obtaining or communicating
by the Organization of foreign intelligence;

   (b)  reviewing an aspect of the activities of the Organization that does
not affect any person who is an Australian citizen or a permanent
resident;

   (c)  reviewing a matter, including a matter that relates to intelligence
collection methods or sources of information, that is operationally
sensitive; or

   (d)  originating inquiries into individual complaints concerning the
activities of the Organization. Presiding Member

"92D. (1) There shall be a Presiding Member of the Committee who shall be
elected by the members from time to time.

"(2) Subject to sub-section (3), the Presiding Member holds office during the
pleasure of the Committee.

"(3) A person holding office as Presiding Member ceases to hold that office if
-

   (a)  the person ceases to be a member; or

   (b)  the person resigns that office as provided by sub-section (4).

"(4) A person holding office as Presiding Member may resign that office by
writing signed by the person presented to a meeting of the Committee. Meetings
of Committee

"92E. (1) The Committee may meet at such times and, subject to sub-section
(3), at such places within Australia as the Committee determines by resolution
or, subject to any resolution of the Committee, as the Presiding Member
determines.

"(2) The Committee may meet and transact business notwithstanding the
prorogation of the Parliament.

"(3) Before the Committee or the Presiding Member determines a place of
meeting under sub-section (1), the Presiding Member shall obtain advice from
the Director-General as to the suitability of that place.

"(4) The Presiding Member shall preside at all meetings of the Committee at
which he or she is present.

"(5) If the Presiding Member is not present at a meeting of the Committee, the
members present shall elect one of their number to preside at the meeting, and
a member so elected may exercise, in relation to that meeting and any matter
arising out of that meeting, any of the powers of the Presiding Member.

"(6) At a meeting of the Committee -

   (a)  4 members constitute a quorum;

   (b)  all questions shall be decided by a majority of the votes of the
members present and voting; and

   (c)  the member presiding at the meeting has a deliberative vote and, in
the event of an equality of votes, also has a casting vote.

"(7) Where the members present at a meeting of the Committee do not vote
unanimously on a question, there shall, if a member so requires, be recorded
in the minutes of the meeting and in the report of the Committee to the
Minister and, subject to section 92N, in the report of the Committee to the
Parliament, on the matter to which the question relates -

   (a)  the names of the members who voted and the manner in which
each such member voted;

   (b)  the names of the members who abstained from voting and the fact
that they abstained from voting; and

   (c)  if the question was determined by the casting vote of the member
presiding - the name of the member presiding and the fact that the
question was so determined.

"(8) The Committee shall keep minutes of its proceedings. Proceedings of
Committee

"92F. (1) Subject to this Part, the proceedings of the Committee shall be
conducted in such manner as the Committee determines.

"(2) Where a matter is referred to the Committee for review, the Committee
shall conduct the review in private unless the Committee, with the approval of
the Minister, otherwise determines.

"(3) At a review conducted in private, the Committee may, having regard to the
requirements of security and to such other matters as the Committee thinks
fit, give directions as to the persons who may be present.

"(4) The Committee shall ensure that any documents having a national security
classification provided to the Committee -

   (a)  are, while in the custody of the Committee, kept at a place approved
for the purpose by the Director-General; and

   (b)  are returned to the appropriate Department or agency as soon as
possible after the members have examined them. Publication of evidence, &c.

"92G. (1) Where the Committee conducts a review in private, a person
(including a member) shall not disclose or publish any evidence taken by the
Committee at the review or the contents of any documents produced to the
Committee for the purposes of the review without the authority in writing of -

   (a)  except in a case to which paragraph (b) applies - the person who
gave the evidence or produced the document; or

   (b)  in a case where the person who gave the evidence or produced the
document is an officer fo the Organization - the Director-General.
Penalty:

   (c)  in the case of a natural person - $5,000 or imprisonment for 2 years,
or both; or

   (d)  in the case of a body corporate - $25,000.

"(2) Nothing in sub-section (1) prohibits -

   (a)  the disclosure or publication of evidence or of the contents of a
document if that evidence or those contents has or have already
been lawfully published; or

   (b)  the disclosure or publication by a person of a matter of which the
person has become aware otherwise than by reason, directly or
indirectly, of the giving of evidence before, or the production of a
document to, the Committee.

"(3) Subject to sub-section (4), the Committee may, in its discretion,
disclose or publish or authorise the disclosure or publication of evidence
taken in private before the Committee, but this sub-section does not affect
the need for obtaining the authority of a witness under sub-section (1).

"(4) The Committee shall not disclose or publish evidence or authorise the
disclosure or publication of evidence unless the Committee, after obtaining
advice from the Minister, is satisfied that that disclosure or publication
would not disclose a matter that the Committee is not, under section 92N,
permitted to disclose in a report to a House of the Parliament. Power to
obtain information and documents

"92H. (1) Where the Committee has reason to believe that a person (other than
the Director-General or an officer, employee or agent of the Organization) is
capable of giving evidence or producing documents relevant to a matter that
has been referred to the Committee, the Presiding Member or a member
authorised by the Committee by resolution may, subject to section 92K, by
notice in writing given to the person, require the person to appear before the
Committee to give evidence, or to produce to the Committee any such documents,
on a day specified in the notice, not being a day earlier than 5 days after
the notice is given to the person.

"(2) Where a member gives a notice to a person under sub-section (1), the
member shall forthwith give a copy of the notice to the Minister.

"(3) A person who has been given a notice under sub-section (1) requiring the
person to appear before the Committee is entitled to be paid by the
Commonwealth such allowances for the person's travelling and other expenses as
are prescribed. Provision of information to Committee by Organization

"92J. (1) Where the Committee has reason to believe that the Director-General
is capable of giving evidence relevant to a matter that has been referred to
the Committee, the Presiding Member or a member authorised by the Committee by
resolution may, by notice in writing given to the Director-General, require
the Director-General to appear before the Committee to give evidence relating
to the matter.

"(2) Where the Director-General has been given a notice under sub-section (1),
the Director-General, an officer of the Organization nominated by the
Director-General or the Director-General and an officer of the Organization
nominated by the Director-General shall appear before the Committee to give
evidence.

"(3) Where the Committee has reason to believe that the Director-General is
capable of producing documents relevant to a matter that has been referred to
the Committee, the Presiding Member or a member authorised by the Committee by
resolution may, by notice in writing given to the Director-General, require
the Director-General to produce to the Committee any such documents on a day
specified in the notice, not being a day earlier than 5 days after the notice
is given to the Director-General.

"(4) Where a member gives a notice to the Director-General under subsection
(3), the member shall forthwith give a copy of the notice to the Minister.
Certificates by Minister

"92K. (1) Where -

   (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 section 92H or 92J); and

   (b)  the Minister is of the opinion that, for reasons relevant to security
        -

        (i)    the person (not being the Director-General) should not give
evidence before the Committee;

        (ii)   the person should not give evidence before the Committee
relating to a particular matter;

        (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;

        (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 or to the
member exercising the powers of the Presiding Member a certificate stating
that the Minister is so satisfied and, in a case to which sub-paragraph (b)
(ii) or (v) or sub-sub-paragraph (b) (iii) (B) applies, specifying 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.

"(2) The Minister shall give a copy of a certificate under sub-section (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.

"(3) A decision of the Minister under sub-section (1) shall not be questioned
in any court or tribunal.

"(4) Where the Minister gives a certificate under sub-section (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 shall not
receive, or continue to receive, as the case may be, evidence from
the person;

   (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 shall 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 shall not
receive documents, or documents of that kind, as the case may be, from the
person. Evidence

"92L. (1) The Committee may take evidence on oath or affirmation and the
Presiding Member or the member exercising the powers of the Presiding Member
may administer an oath or affirmation to a witness appearing before the
Committee.

"(2) The oath or affirmation to be taken or made by a person for the purpose
of sub-section (1) is an oath or affirmation that the evidence the person will
give will be true. Offences relating to giving evidence, &c.

"92M. (1) Subject to sub-section (2), a person who has been given a notice
under sub-section 92H (1) or 92J (1) requiring the person to appear before the
Committee shall not, without reasonable excuse -

   (a)  fail to attend as required by the notice;

   (b)  fail to attend and report from day to day unless excused, or released
from further attendance, by the Committee;

   (c)  refuse or fail to be sworn or to make an affirmation; or

   (d)  refuse or fail to answer a question that the Committee requires the
person to answer.
Penalty:

   (e)  in the case of a natural person - $1,000 or imprisonment for 6
months, or both; or

   (f)  in the case of a body corporate - $5,000.

"(2) Where the Director-General has nominated an officer of the Organization
for the purposes of sub-section 92J (2)-

   (a)  except in a case to which paragraph (b) applies - a reference in
sub-section (1) to a person who has been given a notice under
subsection
92J (1) is a reference to the nominated officer; or

   (b)  in a case where both the Director-General and the nominated officer
appear before the Committee-neither the Director-General nor the
nominated officer shall, without reasonable excuse-

        (i)    fail to attend and report from day to day unless excused, or
released from further attendance, by the Committee;

        (ii)   refuse or fail to be sworn or to make an affirmation; or

        (iii)  refuse or fail to answer a question that the Committee
requires the person to answer. Penalty: $1,000 or imprisonment for 6 months,
or both.

"(3) A person who has been given a notice under sub-section 92H (1) or 92J (3)
requiring the person to produce a document to the Committee shall not, without
reasonable excuse, refuse or fail to produce the document.
Penalty:

   (a)  in the case of a natural person - $1,000 or imprisonment for 6
months, or both; or

   (b)  in the case of a body corporate - $5,000.

"(4) A person who is required to give evidence under section 92H or 92J shall
not give evidence that is, to the knowledge of the person, false or misleading
in a material particular.
Penalty:

   (a)  in the case of a natural person - $5,000 or imprisonment for 2 years,
or both; or

   (b)  in the case of a body corporate - $25,000.

"(5) Without limiting by implication the references in this section to
'reasonable excuse', it is a reasonable excuse for the purposes of this
section for a person to refuse to produce a document to the Committee or to
refuse to answer a question that the Committee has required the person to
answer if the production of the document or the answer to the question would
tend to incriminate the person. Restrictions on disclosure to Parliament

"92N. (1) The Committee shall not, in a report to a House of the Parliament,
disclose -

   (a)  the identity of a person who is or has been an officer (not including
the Director-General), employee or agent of the Organization (other
than a person the disclosing of whose identity is not an offence
under section 92), or any information from which the identity of
such a person could reasonably be inferred; or

   (b)  classified material or information on the methods, sources, targets or
        results of the operations or procedures of the Organization the public
        disclosure of which would, or would be likely to, prejudice the
        performance by the Organization of its functions.

"(2) The Committee shall, before presenting a report of the Committee to a
House of the Parliament, obtain the advice of the Minister as to whether the
disclosure of any part of the report would, or would be likely to, disclose a
matter referred to in paragraph (1) (a) or (b). Continuance of evidence

"92P. Where the Committee as constituted at any time has taken evidence in
relation to a matter but the Committee as so constituted has ceased to exist
before reporting on the matter, the Committee as constituted at any subsequent
time, whether during the same or another Parliament may consider that evidence
as if it had taken that evidence. Protection of witnesses

"92Q. A person shall not -

   (a)  use violence to or inflict injury on;

   (b)  cause violence, damage, loss or disadvantage to; or

   (c)  cause the punishment of, another person for or on account of the other
        person having appeared, or being due to appear, as a witness before
        the Committee or for or on account of any evidence given by that other
        person before the Committee.
Penalty:

   (d)  in the case of a natural person - $10,000 or imprisonment for
5 years, or both; or

   (e)  in the case of a body corporate - $50,000. Application of
        Parliamentary Papers Act

"92R. (1) Sub-section 92G (1) has effect notwithstanding section 2 of the
Parliamentary Papers Act 1908.

"(2) Where evidence taken by the Committee in private is disclosed or
published in accordance with section 92G, section 4 of the Parliamentary
Papers Act 1908 applies to the disclosure or publication as if it were a
publication of that evidence under an authority given in pursuance of section
2 of that Act. Secrecy

"92S. (1) A person who is or has been a member, or a member of the staff, of
the Committee shall not, either directly or indirectly, except for the
purposes of this Part -

   (a)  make a record of, or divulge or communicate to any person, any
information acquired by reason of the person holding that office or
employment; or

   (b)  produce to any person a document furnished for the purposes of
this Part.
Penalty: $5,000 or imprisonment for 2 years, or both.

"(2) A person who is, or has been a member, or a member of the staff, of the
Committee shall not be required to produce in a court any document of which he
or she has custody, or to which he or she has access, by virtue of the
person's office or employment under or for the purposes of this Part, or to
divulge or to communicate to a court any information obtained by him or her by
reason of such an office or employment.

"(3) in this section -
'court' includes any tribunal, authority or person having power to require
the production of documents or the answering of questions;
'produce', includes permit access to, and 'production' has a corresponding
meaning, and a reference in this section to information or a document shall be
read as a reference to information or a document supplied to the Committee for
the purposes of this Part. Prosecution of offences

"92T. A prosecution for an offence against this Part shall be instituted only
by or with the consent of the Attorney-General.".