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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Security Legislation
Amendment (Comprehensive Review
and Other Measures No. 1) Bill 2021
No. , 2021
(Home Affairs)
A Bill for an Act to amend the law relating to
national security and intelligence services, and for
related purposes
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Emergency authorisations
4
Intelligence Services Act 2001
4
Schedule 2--Authorisations relating to counter-terrorism
9
Intelligence Services Act 2001
9
Schedule 3--Authorisations for activities in support of the
Australian Defence Force
13
Intelligence Services Act 2001
13
Schedule 4--Authorisations for producing intelligence on
Australians
14
Intelligence Services Act 2001
14
Schedule 5--ASIS cooperating with ASIO
15
Intelligence Services Act 2001
15
Schedule 6--AGO cooperating with authorities of other
countries
16
Intelligence Services Act 2001
16
Schedule 7--ONI cooperating with other entities
17
Office of National Intelligence Act 2018
17
Schedule 8--Suspension of travel documents
18
Australian Passports Act 2005
18
Foreign Passports (Law Enforcement and Security) Act 2005
18
Schedule 9--Online activities
19
Criminal Code Act 1995
19
Schedule 10--Privacy
21
Part 1--Privacy rules of ASIS, AGO and ASD
21
Intelligence Services Act 2001
21
ii
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Part 2--Privacy rules of DIO
23
Inspector-General of Intelligence and Security Act 1986
23
Intelligence Services Act 2001
23
Part 3--Privacy rules of ONI
26
Inspector-General of Intelligence and Security Act 1986
26
Intelligence Services Act 2001
26
Office of National Intelligence Act 2018
26
Part 4--Contingent amendments
29
Intelligence Services Act 2001
29
Schedule 11--Assumed identities
30
Crimes Act 1914
30
Schedule 12--Authorities of other countries
33
Intelligence Services Act 2001
33
Schedule 13--ASIO authorisations
34
Australian Security Intelligence Organisation Act 1979
34
Telecommunications (Interception and Access) Act 1979
34
Schedule 14--Amendments related to the Intelligence Services
Amendment (Establishment of the Australian
Signals Directorate) Act 2018
37
Intelligence Services Act 2001
37
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
1
A Bill for an Act to amend the law relating to
1
national security and intelligence services, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
National Security Legislation Amendment
6
(Comprehensive Review and Other Measures No. 1) Act 2021
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
8
The day after this Act receives the Royal
Assent.
3. Schedule 9
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the commencement of Schedule 2 to the
Security Legislation Amendment
(Critical Infrastructure) Act 2021
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
4. Schedule 10,
Part 1
The day after this Act receives the Royal
Assent.
5. Schedule 10,
Part 2
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
6. Schedule 10,
Part 3
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
7. Schedule 10,
Part 4
The later of:
(a) the commencement of the provisions
covered by item 5 of this table; and
(b) the commencement of item 136 of
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
Schedule 1 to the
Intelligence Oversight
and Other Legislation Amendment
(Integrity Measures) Act 2021
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
8. Schedules 11
to 14
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1
Emergency authorisations
4
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Schedule 1
--
Emergency authorisations
1
2
Intelligence Services Act 2001
3
1 Paragraph 8(1)(a)
4
Omit "or 9B", substitute ", 9B or 9D".
5
2 After section 9C
6
Insert:
7
9D Authorisations in an emergency--imminent risk to safety of an
8
Australian person
9
When this section applies
10
(1) This section applies if an agency head is satisfied that:
11
(a) there is, or is likely to be, an imminent risk to the safety of an
12
Australian person who is outside Australia; and
13
(b) it is necessary or desirable to undertake an activity, or a
14
series of activities, for the specific purpose, or for purposes
15
which include the specific purpose, of producing intelligence
16
on the person; and
17
(c) it is not reasonably practicable to obtain the person's consent
18
to the agency producing that intelligence; and
19
(d) having regard to the nature and gravity of the risk, it is
20
reasonable to believe that the person would consent to the
21
agency producing that intelligence if the person were able to
22
do so.
23
Authorisation
24
(2) The agency head may, orally or in writing, give an authorisation
25
under this section for the activity, or series of activities, if the
26
agency head is satisfied that, apart from paragraph 9(1A)(b):
27
(a) the facts of the case would justify the responsible Minister
28
giving an authorisation under section 9 because the agency
29
head is satisfied that the conditions in subsections 9(1) and
30
(1A) are met; and
31
Emergency authorisations
Schedule 1
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
5
(b) the responsible Minister would have given the authorisation.
1
Conditions on authorisation
2
(3) The authorisation is subject to any conditions specified by the
3
agency head.
4
Agency head to record and notify
5
(4) As soon as practicable after giving the authorisation (but no later
6
than 8 hours after the authorisation is given) the agency head must,
7
orally or in writing, notify the responsible Minister of the
8
authorisation.
9
(5) As soon as practicable after giving the authorisation (but no later
10
than 48 hours after the authorisation is given) the agency head
11
must:
12
(a) if the authorisation is given orally--ensure that the
13
authorisation is recorded in writing; and
14
(b) ensure that a summary of the facts of the case that the agency
15
head was satisfied justified giving the authorisation is
16
recorded in writing; and
17
(c) give to the responsible Minister:
18
(i) a copy of the authorisation; and
19
(ii) a summary of the facts of the case that the agency head
20
was satisfied justified giving the authorisation; and
21
(iii) an explanation of the Minister's obligation under
22
subsection (6); and
23
(d) give to the Inspector-General of Intelligence and Security the
24
documents referred to in subparagraphs (c)(i) and (ii); and
25
(e) if the Australian person is, or is likely to be, involved in an
26
activity or activities that are, or are likely to be, a threat to
27
security--give to the Attorney-General and the Minister
28
responsible for administering the
Australian Security
29
Intelligence Organisation Act 1979
(the
ASIO Minister
) the
30
documents referred to in subparagraphs (c)(i) and (ii).
31
Schedule 1
Emergency authorisations
6
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Role of responsible Minister
1
(6) The responsible Minister must, as soon as practicable after being
2
given documents under paragraph (5)(c), consider whether to
3
cancel the authorisation under subsection (10).
4
(7) If the Attorney-General is required to be given documents under
5
paragraph (5)(e), the responsible Minister must have regard to any
6
advice given by the Attorney-General when making a decision
7
under subsection (6).
8
Role of Inspector-General of Intelligence and Security
9
(8) Within 30 days after the Inspector-General of Intelligence and
10
Security is given documents under paragraph (5)(d), the
11
Inspector-General must:
12
(a) consider whether the agency head has complied with the
13
requirements of this section; and
14
(b) provide the responsible Minister with a report on the
15
Inspector-General's views of the extent of the compliance by
16
the agency head with the requirements of this section; and
17
(c) provide to the Committee a copy of the conclusions in the
18
report.
19
Period of effect of authorisation
20
(9) The authorisation ceases to have effect at the earliest of the
21
following times:
22
(a) the end of 6 months, starting on the day the authorisation is
23
given;
24
(b) if the authorisation specifies a time when the authorisation
25
ceases to have effect--that time;
26
(c) if the responsible Minister cancels the authorisation under
27
subsection (10)--the time of cancellation;
28
(d) if the agency head cancels the authorisation under
29
subsection (12)--the time of cancellation;
30
(e) if an authorisation for the activity, or series of activities, is
31
given under section 9, 9A or 9B--the time the authorisation
32
under section 9, 9A or 9B is given.
33
Emergency authorisations
Schedule 1
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
7
Cancellation by responsible Minister
1
(10) The responsible Minister may, in writing, cancel the authorisation.
2
(11) If the responsible Minister cancels the authorisation under
3
subsection (10), the Minister must, as soon as practicable, give
4
written notice of the cancellation to:
5
(a) the Inspector-General of Intelligence and Security; and
6
(b) if the Attorney-General and the ASIO Minister are required
7
to be given documents under paragraph (5)(e)--those
8
Ministers.
9
Cancellation by agency head
10
(12) The agency head must, in writing, cancel the authorisation if the
11
agency head is satisfied that:
12
(a) there is not; and
13
(b) there is not likely to be;
14
a significant risk to the safety of the Australian person.
15
Note:
The agency head may cancel the authorisation in other circumstances
16
(see subsection 33(3) of the
Acts Interpretation Act 1901
).
17
(13) If the agency head cancels the authorisation under subsection (12),
18
the agency head must, as soon as practicable, give written notice of
19
the cancellation to:
20
(a) the responsible Minister; and
21
(b) the Inspector-General of Intelligence and Security; and
22
(c) if the Attorney-General and the ASIO Minister are required
23
to be given documents under paragraph (5)(e)--those
24
Ministers.
25
Delegation
26
(14) An agency head may, in writing, delegate to a staff member (other
27
than a consultant or contractor) all or any of the powers, functions
28
or duties of the agency head under this section.
29
Note:
See sections 34AA, 34AB and 34A of the
Acts Interpretation Act
30
1901
on delegations.
31
Schedule 1
Emergency authorisations
8
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
(15) In exercising a power, performing a function or discharging a duty
1
under a delegation under subsection (14), the delegate must comply
2
with any written directions of the agency head.
3
Relationship with the Acts Interpretation Act 1901
4
(16) To avoid doubt, this section does not limit subsection 33(3) of the
5
Acts Interpretation Act 1901
to the extent that it applies to an
6
authorisation given under this section.
7
Status of instruments
8
(17) The following are not legislative instruments:
9
(a) an authorisation given in writing under subsection (2);
10
(b) a written notice given under subsection (4), (11) or (13);
11
(c) a record made, or a summary or explanation given, under
12
subsection (5);
13
(d) a report under subsection (8);
14
(e) a cancellation under subsection (10) or (12).
15
3 Subsections 10A(1) and (4)
16
Omit "or 9B", substitute ", 9B or 9D".
17
4 Application of amendments
18
The amendments made by this Schedule apply in relation to activities,
19
or a series of activities, undertaken after the commencement of this
20
Schedule.
21
Authorisations relating to counter-terrorism
Schedule 2
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
9
Schedule 2
--
Authorisations relating to
1
counter-terrorism
2
3
Intelligence Services Act 2001
4
1 Section 3
5
Insert:
6
involved with a listed terrorist organisation
has a meaning
7
affected by subsection 9(1AAB).
8
listed terrorist organisation
has the same meaning as in
9
subsection 100.1(1) of the
Criminal Code
.
10
2 After subparagraph 8(1)(a)(i)
11
Insert:
12
(iaa) undertaking an activity, or a series of activities, for the
13
specific purpose, or for purposes which include the
14
specific purpose, of producing intelligence on one or
15
more members of a class of Australian persons; or
16
3 After subsection 9(1A)
17
Insert:
18
(1AAA) Before a Minister gives an authorisation for an activity, or a series
19
of activities, of a kind mentioned in subparagraph 8(1)(a)(iaa), the
20
Minister must also:
21
(a) be satisfied that the class of Australian persons mentioned in
22
that subparagraph is, or is likely to be, involved with a listed
23
terrorist organisation; and
24
(b) obtain the agreement (orally or in writing, but subject to
25
subsection (1AA)) of the Attorney-General.
26
(1AAB) Without limiting the circumstances in which a person is involved
27
with a listed terrorist organisation, a person is taken to be involved
28
with a listed terrorist organisation if the person:
29
(a) directs, or participates in, the activities of the organisation; or
30
Schedule 2
Authorisations relating to counter-terrorism
10
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
(b) recruits a person to join, or participate in the activities of, the
1
organisation; or
2
(c) provides training to, receives training from, or participates in
3
training with, the organisation; or
4
(d) is a member of the organisation (within the meaning of
5
subsection 102.1(1) of the
Criminal Code
); or
6
(e) provides financial or other support to the organisation; or
7
(f) advocates for, or on behalf of, the organisation.
8
4 Subsection 9(1AA)
9
After "paragraph (1A)(b)", insert "or (1AAA)(b)".
10
5 Paragraph 9(1AA)(a)
11
Repeal the paragraph, substitute:
12
(a) specify classes of Australian persons who are, or are likely to
13
be:
14
(i) involved in an activity or activities that are, or are likely
15
to be, a threat to security; or
16
(ii) involved with a listed terrorist organisation; and
17
6 Paragraph 9(1AB)(a)
18
After "subparagraph 8(1)(a)(i),", insert "(iaa),".
19
7 Subsection 9(4)
20
After "subparagraph 8(1)(a)(i),", insert "(iaa),".
21
8 Paragraph 9(5)(b)
22
After "paragraph (1A)(b)", insert "or (1AAA)(b)".
23
9 Subsection 9(6)
24
After "paragraph (1A)(b)", insert "or (1AAA)(b)".
25
10 Paragraph 9A(1)(a)
26
Omit "subparagraph 8(1)(a)(ia)", substitute "subparagraph 8(1)(a)(iaa),
27
(ia)".
28
Authorisations relating to counter-terrorism
Schedule 2
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
11
11 Subsection 10(1A)
1
After "subparagraph 8(1)(a)(i),", insert "(iaa),".
2
12 After section 10
3
Insert:
4
10AA Additional requirements for class authorisations
5
(1) This section applies if an authorisation is given to an agency under
6
section 9 for an activity, or a series of activities, of a kind
7
mentioned in subparagraph 8(1)(a)(iaa), (ia) or (ib) in relation to
8
one or more members of a class of Australian persons.
9
(2) The agency head must ensure that a list is kept that:
10
(a) identifies each Australian person in relation to whom the
11
agency intends to undertake activities, or a series of
12
activities, under the authorisation; and
13
(b) gives an explanation of the reasons why the agency believes
14
the person is a member of the class; and
15
(c) includes any other information that the agency head
16
considers appropriate.
17
Note:
For variation of the list, see subsection 33(3) of the
Acts Interpretation
18
Act 1901
.
19
(3) If:
20
(a) the Attorney-General's agreement under paragraph 9(1A)(b)
21
or (1AAA)(b) was obtained in relation to the class of
22
Australian persons mentioned in subsection (1); and
23
(b) an Australian person who is a member of that class is
24
included on the list;
25
then the agency head must ensure that the Director-General of
26
Security is given, as soon as practicable:
27
(c) a copy of the list; and
28
(d) written notice that the Australian person was included on the
29
list.
30
(4) The agency head must ensure that the list is available for
31
inspection on request by the Inspector-General of Intelligence and
32
Security.
33
Schedule 2
Authorisations relating to counter-terrorism
12
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
(5) The list and a notice under paragraph (3)(d) are not legislative
1
instruments.
2
13 Subsection 10A(3)
3
Repeal the subsection, substitute:
4
(3) If the report is in respect of an activity, or a series of activities, of a
5
kind mentioned in subparagraph 8(1)(a)(iaa), (ia) or (ib), then:
6
(a) the report must be provided to the Minister as soon as
7
practicable, but no later than 3 months, after each of the
8
following days:
9
(i) the day on which the relevant authorisation ceased to
10
have effect;
11
(ii) the day on which the relevant authorisation was
12
renewed; and
13
(b) the report must be accompanied with a statement identifying
14
every Australian person who was included on the list referred
15
to in section 10AA during the period the authorisation was in
16
effect.
17
Authorisations for activities in support of the Australian Defence Force
Schedule 3
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
13
Schedule 3
--
Authorisations for activities in
1
support of the Australian Defence
2
Force
3
4
Intelligence Services Act 2001
5
1 Subparagraph 8(1)(a)(ia)
6
After "paragraph 6(1)(ba)", insert ", 6B(1)(g) or 7(1)(d)".
7
Schedule 4
Authorisations for producing intelligence on Australians
14
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Schedule 4
--
Authorisations for producing
1
intelligence on Australians
2
3
Intelligence Services Act 2001
4
1 Section 3 (paragraphs (a), (b) and (c) of the definition of
5
intelligence information)
6
Omit "information" (wherever occurring), substitute "intelligence".
7
2 Section 3
8
Insert:
9
prescribed activity
has the meaning given by subsection 8(1B).
10
3 After subsection 8(1)
11
Insert:
12
(1A) For the purposes of subparagraphs (1)(a)(i), (iaa) and (ia), an
13
agency undertakes an activity, or a series of activities, for the
14
specific purpose, or for purposes which include the specific
15
purpose, of producing intelligence on an Australian person, or one
16
or more members of a class of Australian persons, only if:
17
(a) the agency undertakes a prescribed activity to obtain that
18
intelligence; or
19
(b) the agency expressly or impliedly requests an authority
20
referred to in paragraph 13(1)(c) to undertake a prescribed
21
activity to obtain that intelligence.
22
(1B)
Prescribed activity
means a covert and intrusive activity, or a
23
series of covert and intrusive activities and, to avoid doubt,
24
includes an activity, or a series of activities, that ASIO could not
25
undertake in at least one State or Territory without it being
26
authorised by warrant under:
27
(a) Division 2 of Part III of the
Australian Security Intelligence
28
Organisation Act 1979
; or
29
(b) Part 2-2 of the
Telecommunications (Interception and
30
Access) Act 1979
.
31
ASIS cooperating with ASIO
Schedule 5
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
15
Schedule 5
--
ASIS cooperating with ASIO
1
2
Intelligence Services Act 2001
3
1 Paragraph 13B(1)(b)
4
Repeal the paragraph.
5
2 Subsection 13B(3)
6
Repeal the subsection (including the heading), substitute:
7
When ASIO notice is not required--particular activity outside
8
Australia
9
(3) Paragraph (1)(d) does not apply in relation to the undertaking of a
10
particular activity in relation to a particular Australian person if:
11
(a) the activity will be undertaken outside Australia; and
12
(b) a staff member of ASIS who:
13
(i) is authorised under subsection (7); and
14
(ii) will be undertaking the activity;
15
reasonably believes that it is not practicable in the
16
circumstances for ASIO to notify ASIS in accordance with
17
paragraph (1)(d) before undertaking the activity.
18
Schedule 6
AGO cooperating with authorities of other countries
16
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Schedule 6
--
AGO cooperating with authorities
1
of other countries
2
3
Intelligence Services Act 2001
4
1 After subsection 13(3)
5
Insert:
6
Cooperating with authorities of other countries--AGO
7
(3A) Despite paragraph (1)(c), subject to any arrangements made or
8
directions given by the responsible Minister, AGO may, for the
9
purposes of performing its functions under paragraph 6B(1)(e),
10
(ea) or (h), cooperate with authorities of other countries if they are
11
capable of assisting AGO in the performance of its functions.
12
(3B) The Director of AGO must, as soon as practicable after each year
13
ending on 30 June, give to the responsible Minister and the
14
Inspector-General of Intelligence and Security a report about any
15
significant cooperation under subsection (3A) by AGO with
16
authorities of other countries referred to in that subsection.
17
2 Before subsection 13(6)
18
Insert:
19
Reports by AGO and ASD
20
3 Subsection 13(6)
21
After "subsection", insert "(3B) or".
22
ONI cooperating with other entities
Schedule 7
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
17
Schedule 7--ONI cooperating with other
1
entities
2
3
Office of National Intelligence Act 2018
4
1 Subsection 4(1)
5
Insert:
6
public international organisation
has the same meaning as in
7
section 70.1 of the
Criminal Code
.
8
2 Paragraph 13(1)(a)
9
Repeal the paragraph, substitute:
10
(a) subject to subsections (5) and (6):
11
(i) an authority of another country; or
12
(ii) a public international organisation;
13
approved in an instrument under subsection (2); and
14
3 Subsection 13(2)
15
After "country", insert ", or a public international organisation,".
16
4 Paragraph 54(2)(aa)
17
After "country", insert "or a public international organisation".
18
5 Savings
19
An approval given for the purposes of subsection 13(2) of the
Office of
20
National Intelligence Act 2018
and in force immediately before this
21
Schedule commences continues in force, on and after that
22
commencement, as if it had been given under that subsection as
23
amended by this Schedule.
24
Schedule 8
Suspension of travel documents
18
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Schedule 8
--
Suspension of travel documents
1
2
Australian Passports Act 2005
3
1 Subsection 22A(1)
4
Omit "14 days", substitute "28 days".
5
2 Application of amendment
6
The amendment to subsection 22A(1) of the
Australian Passports Act
7
2005
made by this Schedule applies to requests that are made under
8
subsection 22A(2) of that Act after the commencement of this Schedule.
9
Foreign Passports (Law Enforcement and Security) Act 2005
10
3 Section 15A (heading)
11
Repeal the heading, substitute:
12
15A Request for 28 day surrender relating to security risk
13
4 Subsection 15A(2)
14
Omit "14 days", substitute "28 days".
15
5 Section 16A (heading)
16
Repeal the heading, substitute:
17
16A Demand for 28 day surrender of foreign travel document
18
ordered by Minister on request under section 15A
19
6 Subsections 16A(6) and (7)
20
Omit "14 days", substitute "28 days".
21
7 Application of amendments
22
The amendments to sections 15A and 16A of the
Foreign Passports
23
(Law Enforcement and Security) Act 2005
made by this Schedule apply
24
to requests that are made under section 15A of that Act after the
25
commencement of this Schedule.
26
Online activities
Schedule 9
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
19
Schedule 9
--
Online activities
1
2
Criminal Code Act 1995
3
1 Subsection 476.4(2) of the Criminal Code
4
Omit "sections 476.5 and 476.6", substitute "section 476.6".
5
2 Section 476.5 of the Criminal Code
6
Repeal the section.
7
3 Section 476.6 of the Criminal Code (heading)
8
Omit "
ASD
", substitute "
ASIS, ASD or AGO
".
9
4 Subsection 476.6(1) of the Criminal Code
10
Omit "ASD" (first occurring), substitute "an agency (within the
11
meaning of subsection (10))".
12
5 Paragraph 476.6(1)(b) of the Criminal Code
13
Omit "ASD", substitute "the agency".
14
6 Paragraph 476.6(2)(a)
15
Omit "ASD", substitute "an agency".
16
7 Paragraph 476.6(2)(c)
17
Omit "ASD", substitute "the agency".
18
8 Subsection 476.6(6)
19
Omit "ASD", substitute "an agency".
20
9 Paragraph 476.6(8)(a)
21
Omit "to ASD", substitute "to an agency".
22
10 Subsection 476.6(8)
23
Omit "of ASD", substitute "of the agency".
24
Schedule 9
Online activities
20
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
11 Subsection 476.6(10)
1
Insert:
2
agency
means ASIS, ASD or AGO.
3
AGO
means that part of the Defence Department known as the
4
Australian Geospatial-Intelligence Organisation.
5
ASIS
means the Australian Secret Intelligence Service.
6
12 Subsection 476.6(10) (definition of staff member)
7
Repeal the definition, substitute:
8
staff member
means:
9
(a) in relation to ASIS:
10
(i) the Director-General of ASIS; or
11
(ii) a member of the staff of ASIS (whether an employee of
12
ASIS, a consultant or contractor to ASIS, or a person
13
who is made available by another Commonwealth or
14
State authority or other person to perform services for
15
ASIS); or
16
(b) in relation to ASD:
17
(i) the Director-General of ASD; or
18
(ii) a member of the staff of ASD (whether an employee of
19
ASD, a consultant or contractor to ASD, or a person
20
who is made available by another Commonwealth or
21
State authority or other person to perform services for
22
ASD); or
23
(c) in relation to AGO:
24
(i) the Director of AGO; or
25
(ii) a member of the staff of AGO (whether an employee of
26
AGO, a consultant or contractor to AGO, or a person
27
who is made available by another Commonwealth or
28
State authority or other person to perform services for
29
AGO).
30
13 Application of amendments
31
The amendments made by this Part apply in relation to conduct engaged
32
in after the commencement of this Schedule.
33
Privacy
Schedule 10
Privacy rules of ASIS, AGO and ASD
Part 1
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
21
Schedule 10
--
Privacy
1
Part 1--Privacy rules of ASIS, AGO and ASD
2
Intelligence Services Act 2001
3
1 After subsection 15(1)
4
Insert:
5
(1A) The agencies must not communicate intelligence information
6
concerning Australian persons, except in accordance with the rules.
7
2 Subsection 15(5)
8
Repeal the subsection, substitute:
9
(5) The Minister
must ensure that the rules are published on the
10
relevant agency's website as soon as practicable after the rules are
11
made, except to the extent that the rules contain:
12
(a) operationally sensitive information (within the meaning of
13
Schedule 1); or
14
(b) information that would or might prejudice:
15
(i) Australia's national security or the conduct of
16
Australia's foreign relations; or
17
(ii) the performance by the relevant agency of its functions.
18
3 After paragraph 29(1)(cf)
19
Insert:
20
(cg) to review the privacy rules made under section 15 of this Act;
21
and
22
4 Paragraph 29(3)(f)
23
Repeal the paragraph, substitute:
24
(f) reviewing compliance by ASIS, AGO and ASD with the
25
privacy rules made under section 15 of this Act; or
26
Schedule 10
Privacy
Part 1
Privacy rules of ASIS, AGO and ASD
22
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
5 Application of amendments
1
(1)
The amendment to subsection 29(1) of the
Intelligence Services Act
2
2001
made by this Part applies to privacy rules made on or after the
3
commencement of this Part.
4
(2)
The other amendments to that Act made by this Part apply to the
5
communication and retention of intelligence information that occurs
6
after the commencement of this Part, whether the intelligence
7
information was obtained or produced before or after that
8
commencement.
9
Privacy
Schedule 10
Privacy rules of DIO
Part 2
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
23
Part 2--Privacy rules of DIO
1
Inspector-General of Intelligence and Security Act 1986
2
6 Subsection 35(2B)
3
Omit "and ASD", substitute ", ASD and DIO".
4
7 Subsection 35(2B)
5
Omit "section 15", substitute "section 15 or 41C".
6
8 Subsection 35(2B) (note)
7
Repeal the note, substitute:
8
Note:
The rules referred to in this subsection regulate the communication
9
and retention of intelligence information (within the meaning of the
10
Intelligence Services Act 2001
) concerning Australian persons (within
11
the meaning of that Act).
12
Intelligence Services Act 2001
13
9 Section 3 (after paragraph (c) of the definition of
14
intelligence information)
15
Insert:
16
(ca) intelligence obtained or produced by DIO in the performance
17
of its intelligence functions;
18
10 After paragraph 29(1)(cg)
19
Insert:
20
(ch) to review the privacy rules made under section 41C of this
21
Act; and
22
11 After paragraph 29(3)(f)
23
Insert:
24
(faa) reviewing compliance by DIO with the privacy rules made
25
under section 41C of this Act; or
26
Schedule 10
Privacy
Part 2
Privacy rules of DIO
24
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
12 Before section 42
1
Insert:
2
41C Rules to protect privacy of Australians--DIO
3
(1) The responsible Minister in relation to DIO must make written
4
rules regulating the communication and retention by DIO of
5
intelligence information concerning Australian persons.
6
(2) DIO must not communicate intelligence information concerning
7
Australian persons, except in accordance with the rules.
8
(3) In making the rules, the Minister must have regard to the need to
9
ensure that the privacy of Australian persons is preserved as far as
10
is consistent with the proper performance by DIO of its functions.
11
(4) Before making the rules, the Minister must consult with:
12
(a) the Attorney-General; and
13
(b) the Inspector-General of Intelligence and Security; and
14
(c) the Director of DIO.
15
(5) For the purpose of consultations under paragraphs (4)(a) and (b),
16
the Minister must provide a copy of the rules the Minister is
17
proposing to make to the Attorney-General and to the
18
Inspector-General of Intelligence and Security.
19
(6) The Minister
must ensure that the rules are published on DIO's
20
website as soon as practicable after the rules are made, except to
21
the extent that the rules contain:
22
(a) operationally sensitive information (within the meaning of
23
Schedule 1); or
24
(b) information that would or might prejudice:
25
(i) Australia's national security or the conduct of
26
Australia's foreign relations; or
27
(ii) the performance by DIO of its functions.
28
(7) Rules made under subsection (1) are not legislative instruments.
29
(8) The Inspector-General of Intelligence and Security must brief the
30
Committee on the content and effect of the rules if:
31
Privacy
Schedule 10
Privacy rules of DIO
Part 2
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
25
(a) the Committee requests the Inspector-General of Intelligence
1
and Security to do so; or
2
(b) the rules change.
3
13 Application of amendments
4
(1)
The amendments to the
Inspector-General of Intelligence and Security
5
Act 1986
made by this Part apply to a report prepared under section 46
6
of the
Public Governance, Performance and Accountability Act 2013
7
for the period in which this Part commences, and for later periods.
8
(2)
The amendment to subsection 29(1) of the
Intelligence Services Act
9
2001
made by this Part applies to privacy rules made on or after the
10
commencement of this Part.
11
(3)
The other amendments to the
Intelligence Services Act 2001
made by
12
this Part apply to the communication and retention of intelligence
13
information that occurs after the commencement of this Part, whether
14
the intelligence information was obtained or produced before or after
15
that commencement.
16
Schedule 10
Privacy
Part 3
Privacy rules of ONI
26
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Part 3--Privacy rules of ONI
1
Inspector-General of Intelligence and Security Act 1986
2
14 Subsection 35(2C) (note)
3
Repeal the note, substitute:
4
Note:
The rules referred to in this subsection regulate the collection,
5
communication, handling and retention of certain information that is
6
personal information about an Australian citizen or permanent resident
7
(within the meaning of the
Office of National Intelligence Act 2018
).
8
Intelligence Services Act 2001
9
15 Before paragraph 29(1)(c)
10
Insert:
11
(ci) to review the privacy rules made under section 53 of the
12
Office of National Intelligence Act 2018
; and
13
16 Paragraph 29(3)(fa)
14
Repeal the paragraph, substitute:
15
(fa) reviewing compliance by ONI with the privacy rules made
16
under section 53 of the
Office of National Intelligence Act
17
2018
; or
18
Office of National Intelligence Act 2018
19
17 Section 3 (paragraph
beginning "This Act also deals
20
with")
21
Omit "identifiable information and", substitute "certain personal
22
information about an Australian citizen or permanent resident, as well
23
as".
24
18 Subsection 4(1) (definition of identifiable information)
25
Repeal the definition.
26
Privacy
Schedule 10
Privacy rules of ONI
Part 3
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
27
19 Subsection 4(1)
1
Insert:
2
intelligence information
has the meaning given by
3
subsection 53(1C).
4
personal information about an Australian citizen or permanent
5
resident
has the meaning given by subsection 53(1B).
6
20 After paragraph 7(1)(g)
7
Insert:
8
(ga) to communicate, in accordance with the Government's
9
requirements, intelligence that is produced under
10
paragraph (c), (d) or (g);
11
21 Paragraph 53(1)(a)
12
Omit "identifiable information", substitute "personal information about
13
an Australian citizen or permanent resident".
14
22 Paragraph 53(1)(b)
15
Omit "identifiable information", substitute "intelligence information
16
that is personal information about an Australian citizen or permanent
17
resident".
18
23 After subsection 53(1)
19
Insert:
20
(1A) ONI must not, except in accordance with the privacy rules:
21
(a) collect personal information about an Australian citizen or
22
permanent resident under paragraph 7(1)(g); or
23
(b) communicate intelligence information that is personal
24
information about an Australian citizen or permanent
25
resident.
26
(1B)
Personal information about an Australian citizen or permanent
27
resident
means information or an opinion about an identified
28
Australian citizen or permanent resident, or an Australian citizen or
29
permanent resident who is reasonably identifiable:
30
(a) whether the information or opinion is true or not; and
31
Schedule 10
Privacy
Part 3
Privacy rules of ONI
28
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
(b) whether the information or opinion is recorded in a material
1
form or not.
2
(1C)
Intelligence information
means intelligence produced by ONI
3
under paragraph 7(1)(c), (d) or (g).
4
24 Subsection 53(5)
5
Repeal the subsection.
6
25 Application of amendments
7
(1)
The amendments to the
Inspector-General of Intelligence and Security
8
Act 1986
made by this Part apply in relation to a report prepared under
9
section 46 of the
Public Governance, Performance and Accountability
10
Act 2013
for the period in which this Part commences, and for later
11
periods.
12
(2)
The amendment to subsection 29(1) of the
Intelligence Services Act
13
2001
made by this Part applies to privacy rules made on or after the
14
commencement of this Part.
15
(3)
The other amendments to the
Intelligence Services Act 2001
, and the
16
amendments to the
Office of National Intelligence Act 2018
,
made by
17
this Part apply to:
18
(a) the collection of information under paragraph 7(1)(g) of the
19
Office of National Intelligence Act 2018
that occurs after the
20
commencement of this Part; and
21
(b) the communication, handling and retention of intelligence
22
information that occurs after that commencement, whether
23
the intelligence information was produced before or after that
24
commencement.
25
Privacy
Schedule 10
Contingent amendments
Part 4
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
29
Part 4--Contingent amendments
1
Intelligence Services Act 2001
2
26 Section 3 (definition of intelligence function)
3
Before "means", insert ", in relation to AUSTRAC,".
4
Schedule 11
Assumed identities
30
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Schedule 11
--
Assumed identities
1
2
Crimes Act 1914
3
1 Section 15K (subparagraph (a)(iii) of the definition of chief
4
officer)
5
Omit "and".
6
2 Section 15K (at the end of paragraph (a) of the definition of
7
chief officer)
8
Add:
9
(iv) in relation to the Australian Signals Directorate--the
10
Director-General of the Australian Signals Directorate;
11
and
12
3 Section 15K (at the end of the definition of intelligence
13
agency)
14
Add:
15
; or (d) the Australian Signals Directorate.
16
4 Section 15K (paragraphs (a), (b) and (c) of the definition of
17
intelligence officer)
18
Repeal the paragraphs, substitute:
19
(a) for an intelligence agency other than the Office of National
20
Intelligence--a person who is a staff member (within the
21
meaning of the
Intelligence Services Act 2001
) of the agency;
22
and
23
(b) for the Office of National Intelligence--a staff member
24
(within the meaning of the
Office of National Intelligence Act
25
2018
) of the Office of National Intelligence;
26
5 At the end of subsection 15KB(4)
27
Add:
28
; or (i) in the case of the Australian Signals Directorate--a person
29
who holds the position, or performs the duties, of an APS
30
Assumed identities
Schedule 11
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
31
Executive Officer Level 1 position, or an equivalent or higher
1
position, in the Australian Signals Directorate.
2
6 Paragraph 15KG(b)
3
After "Office of National Intelligence", insert "or the Australian Signals
4
Directorate".
5
7 Subsection 15KH(2)
6
After "Office of National Intelligence", insert "or the Australian Signals
7
Directorate".
8
8 Paragraph 15KI(2A)(b)
9
After "Office of National Intelligence", insert "or the Australian Signals
10
Directorate".
11
9 Paragraph 15KI(2A)(c)
12
Omit "another intelligence agency", substitute "the Australian Security
13
Intelligence Organisation or the Australian Secret Intelligence Service".
14
10 At the end of subsection 15KI(2A)
15
Add:
16
; or (d) if the chief officer of the Australian Signals Directorate
17
granted the authority--the chief officer of the Australian
18
Security Intelligence Organisation or the Australian Secret
19
Intelligence Service.
20
11 Paragraph 15KX(2A)(b)
21
After "Office of National Intelligence", insert "or the Australian Signals
22
Directorate".
23
12 Paragraph 15KX(2A)(c)
24
Omit "another intelligence agency", substitute "the Australian Security
25
Intelligence Organisation or the Australian Secret Intelligence Service".
26
13 After paragraph 15KX(2A)(c)
27
Insert:
28
; or (d) if the chief officer of the Australian Signals Directorate
29
granted the authority--the chief officer of the Australian
30
Schedule 11
Assumed identities
32
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Security Intelligence Organisation or the Australian Secret
1
Intelligence Service.
2
14 Paragraph 15KY(3)(b)
3
Repeal the paragraph.
4
15 Subsection 15LH(3) (paragraph (g) of the definition of
5
senior officer)
6
Omit "a senior ASIS intelligence officer designated by the Deputy
7
Director-General of ASIS, or a person occupying an equivalent or
8
higher position in ASIS", substitute "an intelligence officer who holds,
9
or is acting in, a position in ASIS that is equivalent to, or higher than, a
10
position occupied by an SES employee".
11
16 Subsection 15LH(3) (after paragraph (ga) of the definition
12
of senior officer)
13
Insert:
14
(gb) in relation to the Australian Signals Directorate--an
15
intelligence officer who holds, or is acting in, a position in
16
the Australian Signals Directorate that is equivalent to, or
17
higher than, a position occupied by an SES employee in the
18
Australian Signals Directorate; and
19
Authorities of other countries
Schedule 12
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
33
Schedule 12
--
Authorities of other countries
1
2
Intelligence Services Act 2001
3
1 Section 3
4
Before "In this Act", insert "(1)".
5
2 Subsection 3(1)
6
Insert:
7
authority
, of another country, has a meaning affected by
8
subsection (2).
9
3 At the end of section 3
10
Add:
11
(2) For the purposes of determining whether a body is an authority of
12
another country, it does not matter whether:
13
(a) the body is established by a law of the country; or
14
(b) the body is connected with an internationally recognised
15
government of the country.
16
Schedule 13
ASIO authorisations
34
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
Schedule 13--ASIO authorisations
1
2
Australian Security Intelligence Organisation Act 1979
3
1 After subsection 24(2)
4
Add:
5
(2A) To avoid doubt, and without limiting subsection (2), if approval is
6
given to a person or class of persons holding, occupying or
7
performing the duties of an office or position, then the approval
8
extends to such an office or position that comes into existence after
9
the approval is given.
10
(2B) Subsection (2A) does not, by implication, affect the interpretation
11
of any other provision of this Act.
12
2 After subsection 24(3)
13
Add:
14
Records of persons who exercise the authority
15
(3A) The Director-General must, as soon as practicable after the
16
authority conferred by a relevant warrant or relevant device
17
recovery provision is exercised on behalf of the Organisation,
18
cause one or more written records to be made that identify each
19
person who exercised that authority.
20
Telecommunications (Interception and Access) Act 1979
21
3 Section 12
22
Before "The Director-General", insert "(1)".
23
4 Subsection 12(1)
24
After "approve any persons", insert ", or class of persons,".
25
5 At the end of section 12
26
Add:
27
ASIO authorisations
Schedule 13
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
35
(2) To avoid doubt, and without limiting subsection (1), if approval is
1
given to a person or class of persons holding, occupying or
2
performing the duties of an office or position, then the approval
3
extends to such an office or position that comes into existence after
4
the approval is given.
5
(3) Subsection (2) does not, by implication, affect the interpretation of
6
any other provision of this Act.
7
(4) The Director-General of Security must, as soon as practicable after
8
the authority conferred by a Part 2-2 warrant is exercised on behalf
9
of the Organisation, cause one or more written records to be made
10
that identify each person who exercised that authority.
11
6 Application of amendments
12
(1)
Subsection 24(2A) of the
Australian Security Intelligence Organisation
13
Act 1979
(as inserted by this Schedule) applies in relation to approvals
14
given after the commencement of this Schedule to exercise authority
15
conferred by:
16
(a) a relevant warrant issued before or after that commencement;
17
or
18
(b) a relevant device recovery provision relating to a relevant
19
warrant issued before or after that commencement.
20
(2)
Subsection 24(3A) of the
Australian Security Intelligence Organisation
21
Act 1979
(as inserted by this Schedule) applies in relation to the
22
exercise by a person, after the commencement of this Schedule, of
23
authority conferred by a relevant warrant or relevant device recovery
24
provision, whether or not:
25
(a) approval for the person to exercise the authority was given
26
before or after that commencement; or
27
(b) the warrant to which the authority relates was issued before
28
or after that commencement.
29
(3)
Subsection 12(1) of the
Telecommunications (Interception and Access)
30
Act 1979
(as amended by this Schedule), and subsection 12(2) of that
31
Act (as inserted by this Schedule), apply in relation to approvals given
32
after the commencement of this Schedule to exercise authority
33
conferred by a warrant issued before or after that commencement.
34
Schedule 13
ASIO authorisations
36
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
No. , 2021
(4)
Subsection 12(3) of the
Telecommunications (Interception and Access)
1
Act 1979
(as inserted by this Schedule) applies in relation to the
2
exercise by a person, after the commencement of this Schedule, of
3
authority conferred by a warrant, whether or not:
4
(a) approval for the person to exercise the authority was given
5
before or after that commencement; or
6
(b) the warrant to which the authority relates was issued before
7
or after that commencement.
8
Amendments related to the Intelligence Services Amendment (Establishment of the
Australian Signals Directorate) Act 2018
Schedule 14
No. , 2021
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 1) Bill 2021
37
Schedule 14--Amendments related to the
1
Intelligence Services Amendment
2
(Establishment of the Australian
3
Signals Directorate) Act 2018
4
5
Intelligence Services Act 2001
6
1 Subsections 9(4) and 10(1A)
7
Omit "or (ii)", substitute ", (ii) or (iii)".
8
2 Subsection 13(5)
9
Omit "this section", substitute "subsection (4)".
10
3 Subsection 13(5)
11
Omit "subsection (4)", substitute "that subsection".
12