to obtain, in accordance with the Government’s requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and

to communicate, in accordance with the Government’s requirements, such intelligence; and

to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and

to conduct counter-intelligence activities; and

to liaise with intelligence or security services, or other authorities, of other countries; and

to cooperate with and assist bodies referred to in section 13A in accordance with that section; and

to undertake activities in accordance with section 13B; and

to undertake the following other activities relating to the capabilities, intentions or activities of people or organisations outside Australia:

such activities of a general or specific nature as the responsible Minister directs;

activities included in such a class or classes of activity or activities as the responsible Minister directs.

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

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.

paramilitary activities; or

violence against the person; or

the use of weapons;

by staff members or agents of ASIS.

the provision of weapons, or training in the use of weapons or in self-defence techniques, in accordance with Schedule 2; or

the use of weapons or self-defence techniques in accordance with Schedule 2.

the provision of weapons, or training in the use of force (including in the use of weapons) against a person, in accordance with Schedule 3, for the purposes of activities undertaken by ASIS outside Australia; or

the use of force against a person (including the use of weapons), in accordance with Schedule 3, in the course of activities undertaken by ASIS outside Australia; or

the threat of the use of force against a person (including the threat of the use of weapons), in accordance with Schedule 3, in the course of activities undertaken by ASIS outside Australia.

would constitute torture; or

would subject a person to cruel, inhuman or degrading treatment; or

would involve the commission of a sexual offence against any person; or

is likely to cause the death of, or grievous bodily harm to, a person, unless the actor believes on reasonable grounds that the conduct is necessary to protect life or to prevent serious injury to another person (including the actor).

provide weapons; or

provide training in the use of weapons; or

provide training in the use of force, or the threat of the use of force, against a person; or

provide training in the use of self-defence techniques;

other than in accordance with Schedule 2 or Schedule 3.

to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence about the capabilities, intentions or activities of people or organisations outside Australia from the electromagnetic spectrum or other sources, for the purposes of meeting the requirements of the Government for such intelligence; and

to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence from the electromagnetic spectrum or other sources for the purposes of meeting the operational, targeting, training and exercise requirements of the Defence Force; and

to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence from the electromagnetic spectrum or other sources for the purposes of supporting Commonwealth authorities and State authorities in carrying out national security functions; and

to communicate, in accordance with the Government’s requirements, intelligence referred to in paragraph (a), (b) or (c); and

to provide the following to persons and bodies mentioned in subsection (2):

imagery and other geospatial, hydrographic, meteorological and oceanographic products, not being intelligence obtained under paragraph (a), (b) or (c) of this subsection;

assistance in relation to the production and use of imagery and other geospatial, hydrographic, meteorological and oceanographic products;

assistance in relation to the production and use of imagery technologies and other geospatial, hydrographic, meteorological and oceanographic technologies; and

to provide to any persons or bodies (including Commonwealth authorities and State authorities) assistance in relation to the performance by the persons or bodies of emergency response functions, safety functions, scientific research functions, economic development functions, cultural functions and environmental protection functions, if:

the provision of the assistance is incidental to the performance by AGO of its other functions; or

the assistance is capable of being conveniently provided by the use of resources that are not immediately required in performing AGO’s other functions; or

the assistance is capable of being conveniently provided in the course of performing AGO’s other functions; and

to cooperate with and assist bodies referred to in section 13A in accordance with that section; and

to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and

(h) the functions mentioned in subsection 223(2) of the Navigation Act 2012 (to the extent they are not covered by another paragraph of this subsection).

a Commonwealth authority;

a State authority of a Territory;

a foreign person or entity;

any other person or body (including a State authority of a State) if:

the imagery and other products or technologies are for use in, or incidental to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or are for use outside Australia; or

the imagery and other products or assistance are provided by way of postal, telegraphic, telephonic or other like services.

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

to communicate, in accordance with the Government’s requirements, such intelligence; and

to prevent and disrupt, by electronic or similar means, cybercrime undertaken by people or organisations outside Australia; and

to provide material, advice and other assistance to any person or body mentioned in subsection (2) on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; and

to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and

to protect specialised technologies acquired in connection with the performance of any of the preceding functions; and

to provide assistance to Commonwealth authorities and State authorities in relation to:

cryptography, and communication and computer technologies; and

other specialised technologies acquired in connection with the performance of its other functions; and

the performance by those authorities of search and rescue functions; and

to cooperate with and assist bodies referred to in section 13A in accordance with that section.

a Commonwealth authority;

a State authority;

a foreign person or entity;

any other person or body if:

the material, advice and other assistance are provided for the purpose of protecting or facilitating trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or outside Australia; or

the material, advice and other assistance are provided by way of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or

the information was obtained or generated in the operation of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

require the agency to obtain an authorisation under section 9, 9A, 9B or 9D (as the case requires) before:

undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person; or

undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on one or more members of a class of Australian persons; or

undertaking, in the course of providing assistance to the Defence Force in support of military operations under paragraph 6(1)(ba), 6B(1)(g) or 7(1)(d), an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on one or more members of a class of Australian persons; or

undertaking, in the course of providing assistance to the Defence Force in support of military operations under paragraph 6(1)(ba), an activity, or a series of activities, that will, or is likely to, have a direct effect on one or more members of a class of Australian persons; or

undertaking, in accordance with a direction under subparagraph 6(1)(e)(i) or (ii), an activity, or a series of activities, that will, or is likely to, have a direct effect on an Australian person; or

undertaking, in accordance with paragraph 7(1)(c), an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of preventing or disrupting cybercrime undertaken by, or enabled by, an Australian person; and

specify the circumstances in which the agency must, before undertaking other activities or classes of activities, obtain an authorisation under section 9, 9A or 9B (as the case requires).

the agency undertakes a prescribed activity to obtain that intelligence; or

the agency expressly or impliedly requests an authority referred to in paragraph 13(1)(c) to undertake a prescribed activity to obtain that intelligence.

(a) Australian Security Intelligence Organisation Act 1979; orDivision 2 of Part III of the

(b) Telecommunications (Interception and Access) Act 1979.Part 2-2 of the

in the performance by the relevant agency of its functions; or

in the case of ASIS—in the exercise of the powers of the Director-General of ASIS under section 33 or 34.

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

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

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; and

for an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the Defence Minister has requested the authorisation in writing.

activities that present a significant risk to the safety of any person (including the Australian person or a member of the class of Australian persons mentioned in the relevant subparagraph);

acting for, or on behalf of, a foreign power;

activities that are, or are likely to be, a threat to security;

activities that pose a risk, or are likely to pose a risk, to the operational security of ASIS;

(e) activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);

activities related to a contravention, or an alleged contravention, of a UN sanction enforcement law by any person (including the Australian person or a member of the class of Australian persons mentioned in the relevant subparagraph);

committing a serious crime by moving money, goods or people;

committing a serious crime by using or transferring intellectual property;

committing a serious crime by transmitting data or signals by means of guided and/or unguided electromagnetic energy.

(1AAA) Before a Minister gives an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(iaa), the Minister must also be satisfied that the class of Australian persons mentioned in that subparagraph is, or is likely to be, involved with a listed terrorist organisation or a state sponsor of terrorism.

(1AAB) Without limiting the circumstances in which a person is involved with a listed terrorist organisation or state sponsor of terrorism, a person is taken to be involved with a listed terrorist organisation or state sponsor of terrorism if the person:

directs, or participates in, the activities of the listed terrorist organisation or state sponsor of terrorism; or

recruits a person to join, or participate in the activities of, the listed terrorist organisation or state sponsor of terrorism; or

provides training to, receives training from, or participates in training with, the listed terrorist organisation or state sponsor of terrorism; or

is:

(i) a member (Criminal Code) of the listed terrorist organisation; orwithin the meaning of subsection 102.1(1) of the

(ii) a member (Criminal Code) of the state sponsor of terrorism; orwithin the meaning of subsection 110.1(1) of the

provides financial or other support to the listed terrorist organisation or state sponsor of terrorism; or

advocates for, or on behalf of, the listed terrorist organisation or state sponsor of terrorism.

Agreement of the Attorney-General

(1AAC) An authorisation referred to in subsection (1A) for an activity, or a series of activities, in relation to an Australian person, or a class of Australian persons, who is, or is likely to be, involved in activities referred to in paragraph (1A)(c) (whether or not the person, or the class of persons, is, or likely to be, involved in activities covered by another paragraph of subsection (1A)) cannot take effect unless and until the Minister has obtained the agreement (orally or in writing, but subject to subsection (1AA)) of the Attorney-General. The agreement may be sought before or after the authorisation is given.

(1AAD) An authorisation referred to in subsection (1AAA) for an activity, or a series of activities, in relation to a class of Australian persons cannot take effect unless and until the Minister has obtained the agreement (orally or in writing, but subject to subsection (1AA)) of the Attorney-General. The agreement may be sought before or after the authorisation is given.

(1AA) Without limiting subsection (1AAC) or (1AAD), the Attorney-General may, in writing:

specify classes of Australian persons who are, or are likely to be:

involved in an activity or activities that are, or are likely to be, a threat to security; or

involved with a listed terrorist organisation or state sponsor of terrorism; and

give his or her agreement in relation to any Australian person in that specified class.

(1AB) An agreement given in accordance with subsection (1AA) may:

relate to an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib) or (ii); and

specify the period during which the agreement has effect.

(1AC) If an agreement relating to a specified class of Australian persons specifies a period in accordance with paragraph (1AB)(b), the agreement of the Attorney-General is, for authorisations to be given after the period ends, taken not to have been obtained in relation to a person in that class.

Content and form of authorisation

an activity, or class of activities, specified in the authorisation; or

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

activities done for a particular purpose connected with the agency’s functions.

the authorisation;

any record or copy of an agreement given under subsection (1AAC) or (1AAD) (including any agreement given in accordance with subsection (1AA));

if the authorisation is for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the request from the Defence Minister referred to in paragraph (1)(d) of this section.

Status of instruments

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)(iaa), (ia) or (ib)); and

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

the responsible Minister in relation to the relevant agency; or

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

the Prime Minister;

the Defence Minister;

the Foreign Affairs Minister;

the Attorney-General;

(v) the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979.

Period of effect of oral authorisation

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

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

Record of oral authorisation

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

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

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

an authorisation is sought under section 9A; and

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

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

the responsible Minister would have given the authorisation; and

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

there will be, or is likely to be, a significant risk to the safety of any person.

Content and form of authorisation

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

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

Period of effect of authorisation

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

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

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

Notifying the responsible Minister

a copy of the authorisation;

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

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

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

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

cancel the authorisation under subsection (8); or

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

Responsible Minister may cancel authorisation

consider whether the agency head complied with the requirements of this section in giving the authorisation; and

provide the responsible Minister with a report on the Inspector-General’s views of the extent of the agency head’s compliance with the requirements of this section in giving the authorisation; and

provide to the Committee a copy of the conclusions in the report.

Status of instruments

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

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

all of the following apply:

the authorisation cannot take effect unless and until the agreement of the Attorney-General has been obtained under subsection 9(1AAC);

the agreement has not been obtained;

the agency head is satisfied that the Attorney-General is not readily available or contactable.

Giving authorisation

may be given; and

may take effect without the agreement of the Attorney-General having been obtained.

Obtaining the agreement of the Director-General of Security

being given; and

taking effect without the agreement of the Attorney-General having been obtained.

Notifying Attorney-General, ASIO Minister and Inspector-General of Intelligence and Security

the Attorney-General;

(b) the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister);

the Inspector-General of Intelligence and Security.

The notification must state whether the agreement of the Director-General of Security was obtained.

for a notification given to the Attorney-General or the ASIO Minister—before the end of 8 hours after the authorisation is given under section 9A or 9B; and

for a notification given to the Inspector-General of Intelligence and Security—as soon as practicable, but no later than 3 days after the authorisation is given under section 9A or 9B.

Oversight by Inspector-General of Intelligence and Security

consider whether the agency head complied with the requirements of this section in giving the authorisation under section 9A or 9B; and

provide the responsible Minister with a report on the Inspector-General’s views of the extent of the agency head’s compliance with the requirements of this section in giving the authorisation under that section; and

provide to the Committee a copy of the conclusions in the report.

there is, or is likely to be, an imminent risk to the safety of an Australian person who is outside Australia; and

it is necessary or desirable to undertake an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on the person; and

it is not reasonably practicable to obtain the person’s consent to the agency producing that intelligence; and

having regard to the nature and gravity of the risk, it is reasonable to believe that the person would consent to the agency producing that intelligence if the person were able to do so.

Authorisation

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

the responsible Minister would have given the authorisation.

Conditions on authorisation

if the authorisation is given orally—ensure that the authorisation is recorded in writing; and

ensure that a summary of the facts of the case that the agency head was satisfied justified giving the authorisation is recorded in writing; and

give to the responsible Minister:

a copy of the authorisation; and

a summary of the facts of the case that the agency head was satisfied justified giving the authorisation; and

an explanation of the Minister’s obligation under subsection (6); and

give to the Inspector-General of Intelligence and Security the documents referred to in subparagraphs (c)(i) and (ii); and

(e) if the Australian person is, or is likely to be, involved in an activity or activities that are, or are likely to be, a threat to security—give to the Attorney-General and the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister) the documents referred to in subparagraphs (c)(i) and (ii).

Role of responsible Minister

consider whether the agency head has complied with the requirements of this section; and

provide the responsible Minister with a report on the Inspector-General’s views of the extent of the compliance by the agency head with the requirements of this section; and

provide to the Committee a copy of the conclusions in the report.

Period of effect of authorisation

the end of 6 months, starting on the day the authorisation is given;

if the authorisation specifies a time when the authorisation ceases to have effect—that time;

if the responsible Minister cancels the authorisation under subsection (10)—the time of cancellation;

if the agency head cancels the authorisation under subsection (12)—the time of cancellation;

if an authorisation for the activity, or series of activities, is given under section 9, 9A or 9B—the time the authorisation under section 9, 9A or 9B is given.

Cancellation by responsible Minister

the Inspector-General of Intelligence and Security; and

if the Attorney-General and the ASIO Minister are required to be given documents under paragraph (5)(e)—those Ministers.

Cancellation by agency head

there is not; and

there is not likely to be;

a significant risk to the safety of the Australian person.

the responsible Minister; and

the Inspector-General of Intelligence and Security; and

if the Attorney-General and the ASIO Minister are required to be given documents under paragraph (5)(e)—those Ministers.

Delegation

an authorisation given in writing under subsection (2);

a written notice given under subsection (4), (11) or (13);

a record made, or a summary or explanation given, under subsection (5);

a report under subsection (8);

a cancellation under subsection (10) or (12).

the agency head must inform the Minister accordingly, and must take the steps necessary to ensure that activities under the authorisation are discontinued; and

as soon as practicable after being so informed, the Minister must consider cancelling the authorisation under subsection (2).

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

the Defence Minister withdraws the request for the authorisation.

identifies each Australian person in relation to whom the agency intends to undertake activities, or a series of activities, under the authorisation; and

gives an explanation of the reasons why the agency believes the person is a member of the class; and

includes any other information that the agency head considers appropriate.

the Attorney-General’s agreement under subsection (1AAC) or (1AAD) was obtained in relation to the class of Australian persons mentioned in subsection (1); and

an Australian person who is a member of that class is included on the list;

then the agency head must ensure that the Director-General of Security is given, as soon as practicable:

a copy of the list; and

written notice that the Australian person was included on the list.

the report must be provided to the Minister as soon as practicable, but no later than 3 months, after each of the following days:

the day on which the relevant authorisation ceased to have effect;

the day on which the relevant authorisation was renewed; and

the report must be accompanied with a statement identifying every Australian person who was included on the list referred to in section 10AA during the period the authorisation was in effect.

the carrying out of police functions; or

any other responsibility for the enforcement of the law.

However, this does not prevent the agencies from:

obtaining intelligence under paragraph 6(1)(a), 6B(1)(a), (b), or (c) or 7(1)(a) and communicating any such intelligence that is relevant to serious crime to the appropriate law enforcement authorities; or

in the case of ASIS—performing the function set out in paragraph 6(1)(da) or providing assistance as mentioned in subsection 6(7); or

in the case of AGO—performing the functions set out in paragraphs 6B(1)(e), (ea), (f) and (h); or

in the case of ASD—performing the functions set out in paragraphs 7(1)(c), (e) and (f).

(2AA) An agency may communicate incidentally obtained intelligence to appropriate Commonwealth or State authorities or to authorities of other countries approved under paragraph 13(1)(c) if the intelligence relates to the involvement, or likely involvement, by a person in one or more of the following activities:

activities that present a significant risk to the safety of that person or any other person;

acting for, or on behalf of, a foreign power;

activities that are a threat to security;

(d) activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);

committing a serious crime.

Commonwealth authorities; and

State authorities; and

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.

Cooperating with authorities of other countries—with approval

activities covered by paragraphs 6(4)(a) to (c); or

training in the use of weapons or in self-defence techniques;

unless, before giving the approval, the Minister consults with the Prime Minister and the Attorney-General.

must be in writing; and

is not a legislative instrument.

another agency;

ASIO;

ONI;

a Commonwealth authority, or a State authority, that is prescribed by the regulations for the purposes of this paragraph.

subject to any arrangements made or directions given by the responsible Minister; and

on request by the head (however described) of the body referred to in subsection (1).

the activity or series of activities will be undertaken for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person or a class of Australian persons; and

the activity or series of activities will be undertaken to support ASIO in the performance of its functions; and

either:

the Director-General of Security; or

a person who is authorised under section 13C for the purposes of this subparagraph;

has, in writing, notified ASIS that ASIO requires the production of intelligence on the Australian person or class of Australian persons.

the activity will be undertaken outside Australia; and

a staff member of ASIS who:

is authorised under subsection (7); and

will be undertaking the activity;

reasonably believes that it is not practicable in the circumstances for ASIO to notify ASIS in accordance with paragraph (1)(d) before undertaking the activity.

in accordance with this section; or

for the specific purpose of supporting ASIO in the performance of its functions;

only because, in undertaking the activity or series of activities, ASIS also incidentally produces intelligence that relates to the involvement, or likely involvement, of an Australian person in one or more of the activities set out in subsection 9(1A).

Authorised staff members

a notice under paragraph (1)(d);

a notice under subsection (4);

an authorisation made under subsection (7).

the act is preparatory to, in support of, or otherwise directly connected with, overseas activities of the agency concerned; and

the act:

taken together with an act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but

in the absence of that other act, event, circumstance or result, would not amount to an offence; and

the act is done in the proper performance of a function of the agency.

(a) an act that ASIO could not do without a Minister authorising it by warrant issued under Australian Security Intelligence Organisation Act 1979 or under Part 2-2 of the Telecommunications (Interception and Access) Act 1979; orDivision 2 of Part III of the

(b) an act to obtain information that ASIO could not obtain other than in accordance with Telecommunications (Interception and Access) Act 1979.Division 3 of Part 4-1 of the

(2AA) Subsections (1) and (2) have effect despite anything in a law of the Commonwealth or of a State or Territory, whether passed or made before or after the commencement of this subsection, unless the law expressly provides otherwise.

(2AB) Subsection (2AA) does not affect the operation of subsection (2A).

in the case of ASIS—the Director-General of ASIS; and

in the case of AGO—the Director of AGO; and

in the case of ASD—the Director-General of ASD; and

in any case—the Inspector-General of Intelligence and Security and the Attorney-General.

operationally sensitive information (within the meaning of Schedule 1); or

information that would or might prejudice:

Australia’s national security or the conduct of Australia’s foreign relations; or

the performance by the relevant agency of its functions.

the Committee requests the Inspector-General of Intelligence and Security to do so; or

the rules change.

ASIS is a listed entity; and

the Director-General of ASIS is the accountable authority of ASIS; and

the following persons are officials of ASIS:

the Director-General of ASIS;

the staff of ASIS referred to in subsection 33(1); and

the purposes of ASIS include the functions of ASIS referred to in section 6.

the Director-General:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of his or her remuneration for the benefit of his or her creditors; or

the Director-General is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

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 Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.section 29 of the

(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; or

(c) an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.

ASD is a listed entity; and

the Director-General of ASD is the accountable authority of ASD; and

the following persons are officials of ASD:

the Director-General of ASD;

the staff referred to in section 38A;

consultants engaged under section 38B;

employees of contracted service providers engaged under section 38C who are providing services under the relevant ASD contract;

persons whose services are made available to ASD under section 38E; and

the purposes of ASD include the functions of ASD referred to in section 7.

for misbehaviour; or

if the Director-General is unable to perform the duties of his or her office because of physical or mental incapacity.

the Director-General:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of his or her remuneration for the benefit of his or her creditors; or

the Director-General is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

the Director-General engages in paid work that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the Director-General’s duties (see section 27L); or

the Director-General lacks, or has lost, an essential qualification for performing the duties of his or her office.

(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; or

(c) an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.

during a vacancy in the office of the Director-General (whether or not an appointment has previously been made to the office); or

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.

Appointment while under command

a person is appointed to act as the Director-General of ASD under subsection (1); and

(b) the person is under the command of the Chief of the Defence Force under the Defence Act 1903;

then, the person must perform the duties of the office of the Director-General consistently with this Act during the period of the appointment, even though the person is under the command of the Chief of the Defence Force.

(a) the person communicates any information or matter that was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and

the information or matter has come to the knowledge or into the possession of the person by reason of the person:

being, or having been, a staff member of the relevant agency or an agent of ASIS; or

having entered into any contract, agreement or arrangement with the relevant agency; or

having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency; and

the communication was not made:

to the head of the relevant agency or a staff member of the relevant agency by the person in the course of the person’s duties as a staff member; or

to the head of the relevant agency or a staff member of the relevant agency by the person in accordance with a contract, agreement or arrangement; or

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 head of the relevant agency; or

with the approval of the head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency to give such an approval.

Exception—information or matter lawfully available

in relation to ASIS, AGO or ASD—the agency head of the agency; or

in relation to DIO—the Director of DIO.

(a) the person engages in any of the following conduct (the relevant conduct):

copying a record;

transcribing a record;

retaining a record;

removing a record;

dealing with a record in any other manner; and

(b) the record was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and

the record was obtained by the person by reason of the person:

being, or having been, a staff member of the relevant agency or an agent of ASIS; or

having entered into any contract, agreement or arrangement with the relevant agency; or

having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency; and

the relevant conduct was not engaged in:

in the course of the person’s duties as a staff member or agent; or

in accordance with a contract, agreement or arrangement with the relevant agency; or

by the person acting within the limits of authority conferred on the person by the head of the relevant agency; or

with the approval of the head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency to give such an approval.

Exception—record lawfully available

is not satisfied that the defendant is guilty of the prosecuted offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40D(1) (the alternative offence).

the person makes a record of any information or matter; and

(b) the information or matter was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD (the relevant agency) in connection with its functions, or relates to the performance by the relevant agency of its functions; and

the information or matter has come to the knowledge or into the possession of the person by reason of the person:

being, or having been, a staff member of the relevant agency or an agent of ASIS; or

having entered into any contract, agreement or arrangement with the relevant agency; or

having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency; and

the record was not made:

in the course of the person’s duties as a staff member or agent; or

in accordance with a contract, agreement or arrangement with the relevant agency; or

by the person acting within the limits of authority conferred on the person by the head of the relevant agency; or

with the approval of the head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency to give such an approval.

Exception—information or matter lawfully available

is not satisfied that the defendant is guilty of the prosecuted offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 40C(1) (the alternative offence).

if:

the person identifies a person as being, or having been, an agent or staff member of ASIS; and

the identification is not of the Director-General of ASIS or such other persons as the Director-General of ASIS determines; or

if:

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

the Minister or Director-General of ASIS has not consented in writing to the information being made public; and

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.

Exception—IGIS officials

determine a specified Commonwealth authority in relation to a specified class of staff members or former staff members of the agency;

(b) specify limitations or restrictions in relation to the identification of a specified Commonwealth authority as the employer or place of work of staff members or former staff members of the agency.

a determination under subsection (1);

an agreement under subsection (5).

Delegation

the person is a staff member of any Commonwealth authority (see subsection (3)); and

the thing is done in the course of the person exercising or performing the person’s powers, functions or duties as such a staff member; and

(c) the thing is done to facilitate a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, (the ASIS or ASD person) to identify a Commonwealth authority as the ASIS or ASD person’s employer or place of work in relation to a period for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1); and

doing the thing would not be an offence if the Commonwealth authority referred to in paragraph (c) were the ASIS or ASD person’s employer or place of work for the period mentioned in that paragraph.

the thing is done in the performance of the functions attaching to the person’s professional capacity; and

(b) the thing is done to facilitate a staff member of ASIS or ASD, or a former staff member of ASIS or ASD, (the ASIS or ASD person) to identify a Commonwealth authority as the ASIS or ASD person’s employer or place of work in relation to a period for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1); and

doing the thing would not be an offence if the Commonwealth authority referred to in paragraph (b) were the ASIS or ASD person’s employer or place of work for the period mentioned in that paragraph.

the head (however described) of the Commonwealth authority, or another person who holds an office or appointment in relation to the Commonwealth authority; and

a person who is otherwise a member of the staff of the Commonwealth authority, whether:

an employee of the Commonwealth authority; or

a consultant or contractor to the Commonwealth authority; or

a person who is made available, to perform services for the Commonwealth authority, by another Commonwealth authority, a State authority or other person.

a person charged with an offence against this Division may be arrested, or a warrant for his or her arrest may be issued and executed; and

such a person may be remanded in custody or on bail;

even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

the person is an IGIS official; and

the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGIS official.

the information relates to:

a cyber security incident that has occurred or is occurring; or

a cyber security incident that may potentially occur; and

the information has been acquired or prepared by ASD in a circumstance mentioned in subsection (2); and

the information is not excepted under subsection (3).

(a) the information has been voluntarily provided to ASD, in the performance of its functions, by, or on behalf of, an entity (the impacted entity) that:

is, was or could reasonably be expected to be directly or indirectly impacted by the cyber security incident; or

would be or would reasonably be expected to be impacted by the cyber security incident that may potentially occur;

the information has been acquired or prepared by ASD, in the performance of its functions, with the consent of the impacted entity;

the information has been:

(i) acquired by the National Cyber Security Coordinator under subsection 35(2) of the Cyber Security Act 2024 in relation to the cyber security incident; and

disclosed to ASD under subsection 38(1), 39(2) or 40(2) of that Act.

the information has been provided to the Commonwealth about the cyber security incident to comply with:

(i) a requirement in Part 3 of the Cyber Security Act 2024; or

(ii) a requirement in Security of Critical Infrastructure Act 2018; orPart 2B of the

(iii) a requirement under the Telecommunications Act 1997; or

a requirement under a prescribed law; or

the information has already been lawfully made available to the public; or

the information is about an entity and has been de-identified so that it is no longer about an identifiable entity or an entity that is reasonably identifiable.

one or more acts, events or circumstances:

(i) of a kind covered by the meaning of cyber security incident in the Security of Critical Infrastructure Act 2018; or

involving unauthorised impairment of electronic communication to or from a computer, within the meaning of that phrase in that Act, but as if that phrase did not exclude the mere interception of any such communication; or

the discovery of unintended or unexpected vulnerabilities in a computer, computer data or a computer program that, if exploited, would result in a cyber security incident within the meaning of paragraph (a).

(a) Commonwealth body has the same meaning as in the Cyber Security Act 2024; and

(b) Commonwealth enforcement body has the same meaning as in the Cyber Security Act 2024; and

(c) entity has the same meaning as in the Cyber Security Act 2024; and

(d) State body has the same meaning as in the Cyber Security Act 2024.

the performance of any of ASD’s functions under this Act including, for example:

assisting, in the performance of ASD’s functions, the impacted entity (referred to in paragraph 41BA(2)(a) or (b)) to respond to, mitigate or resolve the cyber security incident or the cyber security incident that may potentially occur; or

providing technical advice and assistance, in the performance of ASD’s functions, to entities on the prevention of cyber security incidents or cyber security incidents that may potentially occur;

informing and advising the Minister, and other Ministers of the Commonwealth, about a cyber security incident or a cyber security incident that may potentially occur;

the performance of the functions of a Commonwealth body (to the extent that it is not a Commonwealth enforcement body) relating to responding to, mitigating or resolving a cyber security incident or a cyber security incident that may potentially occur;

(d) the performance of the functions of a State body relating to responding to, mitigating or resolving a cyber security incident (within the meaning of the Cyber Security Act 2024);

(e) the performance of the functions of the National Cyber Security Coordinator under Part 4 of the Cyber Security Act 2024 in relation to a cyber security incident (within the meaning of that Act);

the performance of the functions of ASIS, AGO, the Australian Security Intelligence Organisation, the Defence Intelligence Organisation or the Office of National Intelligence;

the performance of the functions of the Inspector-General of Intelligence and Security;

(h) the performance of the functions of the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002;

the performance of the functions of a Commonwealth enforcement body.

Restriction on use and communication for civil or regulatory action

is a contravention by the impacted entity that:

originally voluntarily provided the information to ASD as referred to in paragraph 41BA(2)(a); or

consented to the information being acquired or prepared by ASD as referred to in paragraph 41BA(2)(b); or

(iii) originally voluntarily provided the information to the National Cyber Security Coordinator under subsection 35(2), or as referred to in subsection 39(1), of the Cyber Security Act 2024; and

is not a contravention by the impacted entity of:

this Division; or

a law that imposes a penalty or sanction for a criminal offence.

Interaction with this Act

has been acquired, under subsection 41BB(1) or this section, by:

a Commonwealth body; or

a State body; or

an entity that is a corporation to which paragraph 51(xx) of the Constitution applies; and

is held by the Commonwealth body, State body or entity.

informing and advising the Minister, and other Ministers of the Commonwealth, about a cyber security incident or a cyber security incident that may potentially occur;

the performance of the functions of a Commonwealth body (to the extent that it is not a Commonwealth enforcement body) relating to responding to, mitigating or resolving a cyber security incident or a cyber security incident that may potentially occur;

(c) the performance of the functions of a State body relating to responding to, mitigating or resolving a cyber security incident (within the meaning of the Cyber Security Act 2024);

(d) the performance of the functions of the National Cyber Security Coordinator under Part 4 of the Cyber Security Act 2024 in relation to a cyber security incident (within the meaning of that Act);

the performance of the functions of ASD, ASIS, AGO, the Australian Security Intelligence Organisation, the Defence Intelligence Organisation or the Office of National Intelligence;

the performance of the functions of the Inspector-General of Intelligence and Security;

(g) the performance of the functions of the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002;

the performance of the functions of a Commonwealth enforcement body.

Restriction on use and communication for civil or regulatory action

is a contravention by the impacted entity that:

originally voluntarily provided the information to ASD as referred to in paragraph 41BA(2)(a); or

consented to the information being acquired or prepared by ASD as referred to in paragraph 41BA(2)(b); or

(iii) originally voluntarily provided the information to the National Cyber Security Coordinator under subsection 35(2), or as referred to in subsection 39(1), of the Cyber Security Act 2024; and

is not a contravention by the impacted entity of:

this Division; or

a law that imposes a penalty or sanction for a criminal offence.

Interaction with this Act

use or communication of the limited cyber security information, by the Commonwealth body, State body or entity, with the consent of the impacted entity that:

originally voluntarily provided the limited cyber security information to ASD as referred to in paragraph 41BA(2)(a); or

consented to the limited cyber security information being acquired or prepared by ASD as referred to in paragraph 41BA(2)(b); or

(iii) originally voluntarily provided the limited cyber security information to the National Cyber Security Coordinator under subsection 35(2), or as referred to in subsection 39(1), of the Cyber Security Act 2024; or

use or communication of information for the purposes of carrying out a State’s constitutional functions, powers or duties.

Civil penalty for contravention of this section

the entity contravenes subsection (2); and

(b) the entity is not a Commonwealth officer (within the meaning of Criminal Code); andPart 5.6 of the

any of the following applies:

(i) the information is sensitive information (within the meaning of the Privacy Act 1988) about an individual and the individual has not consented to the use or communication of the information;

the information is confidential or commercially sensitive;

the use or communication of the information would, or could reasonably be expected to cause, damage to the security, defence or international relations of the Commonwealth.

a Minister of the State or Territory has informed the responsible Minister for ASD, in writing, that the State or Territory gives consent to the provisions of this Division applying to the State body; and

a Minister of the State or Territory has not informed the responsible Minister for ASD, in writing, that the State or Territory withdraws that consent.

under any Commonwealth, State or Territory law (including the common law); or

before a tribunal of the Commonwealth, a State or a Territory.

the proceedings of a coronial inquiry or a Royal Commission in Australia;

proceedings in a federal court exercising original jurisdiction in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

either:

(i) has been voluntarily provided to ASD by, or on behalf of, an entity (the impacted entity), as referred to in paragraph 41BA(2)(a); or

(ii) has been acquired or prepared by ASD with the consent of an entity (the impacted entity), as referred to in paragraph 41BA(2)(b); and

has been prepared by, as referred to in paragraph 41BA(2)(b), acquired by, as referred to in paragraph 41BA(2)(a) or (b), or acquired, under subsection 41BB(1) or section 41BC, by a Commonwealth body or a State body; and

is held by the Commonwealth body or State body.

criminal proceedings for an offence against a Commonwealth, State or Territory law, other than:

(i) proceedings for an offence against Criminal Code (which deal with false or misleading information or documents) that relates to this Act; orsection 137.1 or 137.2 of the

(ii) proceedings for an offence against Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act;section 149.1 of the

civil proceedings for a contravention of a civil penalty provision of a Commonwealth, State or Territory law, other than a civil penalty provision of this Division;

proceedings for a breach of any other Commonwealth, State or Territory law (including the common law);

proceedings before a tribunal of the Commonwealth, a State or a Territory.

the proceedings of a coronial inquiry or a Royal Commission in Australia;

proceedings in a federal court exercising original jurisdiction in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

is not obliged to comply with a subpoena or similar direction of a federal court or a court of a State or Territory to attend and answer questions relating to limited cyber security information; and

is not compellable to give an expert opinion in any civil or criminal proceedings in a federal court or a court of a State or Territory in relation to limited cyber security information.

is conferred on each person who is an accountable person for the entity at the time the permission or right may be exercised; and

may be exercised by:

any person who is an accountable person for the entity at the time the permission or right may be exercised; or

any person who is authorised by a person referred to in subparagraph (i) to exercise the permission or right.

How obligations and duties are imposed and discharged

is imposed on each person who is an accountable person for the entity at the time the obligation or duty arises or is in operation; and

may be discharged by:

any person who is an accountable person for the entity at the time the obligation or duty arises or is in operation; or

any person who is authorised by a person referred to in subparagraph (i) to discharge the obligation or duty.

How non-legal persons contravene this Division

did the relevant act or made the relevant omission; or

aided, abetted, counselled or procured the relevant act or omission; or

was in any way knowingly concerned in, or party to, the relevant act or omission.

Meaning of accountable person

in the case of a partnership in which one or more of the partners is an individual—the individual is a partner in the partnership at that time; or

in the case of a partnership in which one or more of the partners is a body corporate—the person is a director of the body corporate at that time; or

in the case of a trust in which the trustee, or one or more of the trustees, is an individual—the individual is a trustee of the trust at that time; or

in the case of a trust in which the trustee, or one or more of the trustees, is a body corporate—the person is a director of the body corporate at that time; or

in the case of an unincorporated association—the person is a member of the governing body of the unincorporated association at that time.

the Attorney-General; and

the Inspector-General of Intelligence and Security; and

the Director of DIO.

operationally sensitive information (within the meaning of Schedule 1); or

information that would or might prejudice:

Australia’s national security or the conduct of Australia’s foreign relations; or

the performance by DIO of its functions.

the Committee requests the Inspector-General of Intelligence and Security to do so; or

the rules change.

the number of occasions on which force, or the threat of force, against a person by a staff member or agent of ASIS occurred in the course of activities undertaken by ASIS outside Australia during the year; and

the broad nature of those occurrences.