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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Counter-Terrorism Legislation
Amendment Bill (No. 1) 2014
No. , 2014
(Attorney-General)
A Bill for an Act to amend the law relating to
counter-terrorism, and for related purposes
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Criminal Code Act 1995
3
Criminal Code Act 1995
3
Schedule 2--Intelligence Services Act 2001
12
Intelligence Services Act 2001
12
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
1
A Bill for an Act to amend the law relating to
1
counter-terrorism, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Counter-Terrorism Legislation
5
Amendment Act (No. 1) 2014.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
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. Schedule 1
The 28th day after this Act receives the
Royal Assent.
3. Schedule 2
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repealed as set out in the applicable items in the Schedule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
Criminal Code Act 1995 Schedule 1
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
3
Schedule 1
--Criminal Code Act 1995
1
2
Criminal Code Act 1995
3
1 Subsection 102.1A(1)
4
Repeal the subsection, substitute:
5
Disallowable instruments
6
(1) This section applies in relation to the following disallowable
7
instruments:
8
(a) a regulation that specifies an organisation for the purposes of
9
paragraph (b) of the definition of terrorist organisation in
10
section 102.1;
11
(b) an instrument made under section 102.1AA.
12
Review of disallowable instrument
13
(2) The Parliamentary Joint Committee on Intelligence and Security
14
may:
15
(a) review the disallowable instrument as soon as possible after
16
the making of the instrument; and
17
(b) report the Committee's comments and recommendations to
18
each House of the Parliament before the end of the applicable
19
disallowance period for that House.
20
2 Subsection 102.1A(3) (heading)
21
Repeal the heading, substitute:
22
Review of disallowable instrument--extension of disallowance
23
period
24
3 Subsection 102.1A(3)
25
Omit "regulation" (first occurring), substitute "disallowable
26
instrument".
27
Schedule 1 Criminal Code Act 1995
4
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
4 Subsection 102.1A(3)
1
Omit all the words from "then whichever" to "in accordance with the
2
table", substitute "then Part 5 of the Legislative Instruments Act 2003
3
has effect, in relation to that disallowable instrument and that House, as
4
if each period of 15 sitting days referred to in that Part were extended in
5
accordance with the table".
6
5 Subsection 102.1A(4)
7
Repeal the subsection, substitute:
8
Applicable disallowance period
9
(4) The applicable disallowance period for a House of the Parliament
10
means the period of 15 sitting days of that House after the
11
disallowable instrument, or a copy of the disallowable instrument,
12
was laid before that House in accordance with section 38 of the
13
Legislative Instruments Act 2003.
14
6 Subdivision A of Division 104 of the Criminal Code
15
Repeal the Subdivision, substitute:
16
Subdivision A--Objects of this Division
17
104.1 Objects of this Division
18
The objects of this Division are to allow obligations, prohibitions
19
and restrictions to be imposed on a person by a control order for
20
one or more of the following purposes:
21
(a) protecting the public from a terrorist act;
22
(b) preventing the provision of support for or the facilitation of a
23
terrorist act;
24
(c) preventing the provision of support for or the facilitation of
25
the engagement in a hostile activity in a foreign country.
26
7 At the end of subsection 104.2(2) of the Criminal Code
27
Add:
28
; or (c) suspects on reasonable grounds that the order in the terms to
29
be requested would substantially assist in preventing the
30
provision of support for or the facilitation of a terrorist act; or
31
Criminal Code Act 1995 Schedule 1
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
5
(d) suspects on reasonable grounds that the person has provided
1
support for or otherwise facilitated the engagement in a
2
hostile activity in a foreign country.
3
8 Subsections 104.2(3) to (4) of the Criminal Code
4
Repeal the subsections, substitute:
5
(3) In seeking the Attorney-General's consent, the member must give
6
the Attorney-General:
7
(a) a draft of the interim control order to be requested; and
8
(b) information (if any) that the member has about the person's
9
age; and
10
(c) a summary of the grounds on which the order should be
11
made.
12
Note:
An interim control order cannot be requested in relation to a person
13
who is under 16 years of age (see section 104.28).
14
(3A) To avoid doubt, paragraph (3)(c) does not require any information
15
to be included in the summary if disclosure of that information is
16
likely to prejudice national security (within the meaning of the
17
National Security Information (Criminal and Civil Proceedings)
18
Act 2004).
19
(4) The Attorney-General's consent may be made subject to the
20
member making changes required by the Attorney-General to the
21
draft of the interim control order to be requested.
22
9 Section 104.3 of the Criminal Code
23
Repeal the section, substitute:
24
104.3 Requesting the court to make an interim control order
25
If the Attorney-General consents to the request under
26
section 104.2, the senior AFP member may request an interim
27
control order by giving an issuing court the following:
28
(a) a request the information in which is sworn or affirmed by
29
the member;
30
(b) all that is required under subsection 104.2(3) (incorporating
31
any change made to the draft of the interim control order
32
under subsection 104.2(4));
33
(c) the following:
34
Schedule 1 Criminal Code Act 1995
6
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
(i) a statement of the facts relating to why the order should
1
be made;
2
(ii) if the member is aware of any facts relating to why the
3
order should not be made--a statement of those facts;
4
(d) the following:
5
(i) an explanation as to why the proposed obligations,
6
prohibitions or restrictions should be imposed on the
7
person;
8
(ii) if the member is aware of any facts relating to why the
9
proposed obligations, prohibitions or restrictions should
10
not be imposed on the person--a statement of those
11
facts;
12
(e) the following:
13
(i) the outcomes and particulars of all previous requests for
14
interim control orders (including the outcomes of the
15
hearings to confirm the orders) in relation to the person;
16
(ii) the outcomes and particulars of all previous applications
17
for variations of control orders made in relation to the
18
person;
19
(iii) the outcomes and particulars of all previous applications
20
for revocations of control orders made in relation to the
21
person;
22
(iv) the outcomes and particulars of all previous applications
23
for preventative detention orders in relation to the
24
person;
25
(v) information (if any) that the member has about any
26
periods for which the person has been detained under an
27
order made under a corresponding State preventative
28
detention law;
29
(f) a copy of the Attorney-General's consent.
30
Note:
The member might commit an offence if the draft request is false or
31
misleading (see sections 137.1 and 137.2).
32
10 Subparagraph 104.4(1)(c)(v) of the Criminal Code
33
Omit "; and", substitute "; or".
34
11 At the end of paragraph 104.4(1)(c) of the Criminal Code
35
Add:
36
Criminal Code Act 1995 Schedule 1
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
7
(vi) that making the order would substantially assist in
1
preventing the provision of support for or the facilitation
2
of a terrorist act; or
3
(vii) that the person has provided support for or otherwise
4
facilitated the engagement in a hostile activity in a
5
foreign country; and
6
12 Paragraph 104.4(1)(d) of the Criminal Code
7
Repeal the paragraph, substitute:
8
(d) the court is satisfied on the balance of probabilities that the
9
order is reasonably necessary, and reasonably appropriate
10
and adapted, for the purpose of:
11
(i) protecting the public from a terrorist act; or
12
(ii) preventing the provision of support for or the facilitation
13
of a terrorist act; or
14
(iii) preventing the provision of support for or the facilitation
15
of the engagement in a hostile activity in a foreign
16
country.
17
13 Subsections 104.4(2) and (3) of the Criminal Code
18
Repeal the subsections, substitute:
19
(2) In determining whether the order is reasonably necessary, and
20
reasonably appropriate and adapted, the court must take into
21
account the impact of the order on the person's circumstances
22
(including the person's financial and personal circumstances).
23
(3) The court need not include in the order an obligation, prohibition
24
or restriction that was sought by the senior AFP member if not
25
including the obligation, prohibition or restriction in the order
26
would allow the court to become satisfied as mentioned in
27
paragraph (1)(d).
28
14 After subsection 104.5(1A) of the Criminal Code
29
Insert:
30
(1B) In specifying a day for the purposes of paragraph (1)(e), the issuing
31
court must take into account:
32
(a) that the persons mentioned in subsection 104.14(1) may need
33
to prepare in order to adduce evidence or make submissions
34
to the court in relation to the confirmation of the order; and
35
Schedule 1 Criminal Code Act 1995
8
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
(b) any other matter the court considers relevant.
1
15 Subsection 104.6(2) of the Criminal Code (note)
2
Omit "4 hours", substitute "12 hours".
3
16 Paragraph 104.6(4)(a) of the Criminal Code
4
Repeal the paragraph, substitute:
5
(a) all that is required under paragraphs 104.3(1)(b) to (e) in
6
respect of an ordinary request for an interim control order;
7
17 Subsection 104.8(1) of the Criminal Code (note)
8
Omit "4 hours", substitute "12 hours".
9
18 Paragraph 104.8(2)(a) of the Criminal Code
10
Repeal the paragraph, substitute:
11
(a) all that is required under paragraphs 104.3(1)(a) to (e) in
12
respect of an ordinary request for an interim control order;
13
19 Section 104.10 of the Criminal Code (heading)
14
Repeal the heading, substitute:
15
104.10 Obtaining the Attorney-General's consent within 12 hours
16
20 Subsections 104.10(1) and (2) of the Criminal Code
17
Omit "4 hours", substitute "12 hours".
18
21 Subsection 104.10(2) of the Criminal Code (note)
19
Omit "vary the request and".
20
22 Subparagraph 104.12A(2)(a)(ii) of the Criminal Code
21
Omit "104.2(3)(b) and (c)", substitute "104.3(1)(c) and (d)".
22
23 Paragraph 104.14(7)(b) of the Criminal Code
23
Repeal the paragraph, substitute:
24
(b) confirm and vary the order by removing one or more
25
obligations, prohibitions or restrictions if, at the time of
26
confirming the order, the court is satisfied as mentioned in
27
paragraph 104.4(1)(c), and removing the obligations,
28
Criminal Code Act 1995 Schedule 1
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
9
prohibitions or restrictions would allow the court to become
1
satisfied as mentioned in paragraph 104.4(1)(d); or
2
24 Paragraph 104.20(1)(b) of the Criminal Code
3
Repeal the paragraph, substitute:
4
(b) vary the order by removing one or more obligations,
5
prohibitions or restrictions if, at the time of considering the
6
application, the court is satisfied as mentioned in
7
paragraph 104.4(1)(c), and removing the obligations,
8
prohibitions or restrictions would allow the court to become
9
satisfied as mentioned in paragraph 104.4(1)(d); or
10
25 At the end of subsection 104.23(1) of the Criminal Code
11
Add:
12
; or (c) suspects on reasonable grounds that the varied order in the
13
terms to be sought would substantially assist in preventing
14
the provision of support for or the facilitation of a terrorist
15
act; or
16
(d) suspects on reasonable grounds that the person has provided
17
support for or otherwise facilitated the engagement in a
18
hostile activity in a foreign country.
19
26 Subparagraph 104.23(2)(b)(i) of the Criminal Code
20
Repeal the subparagraph, substitute:
21
(i) an explanation as to why the order should be varied; and
22
27 Subparagraph 104.23(2)(b)(ii) of the Criminal Code
23
Omit "any of those obligations, prohibitions or restrictions", substitute
24
"the proposed additional obligations, prohibitions or restrictions".
25
28 Paragraph 104.24(1)(b) of the Criminal Code
26
Repeal the paragraph, substitute:
27
(b) the court is satisfied on the balance of probabilities that the
28
varied control order is reasonably necessary, and reasonably
29
appropriate and adapted, for the purpose of:
30
(i) protecting the public from a terrorist act; or
31
(ii) preventing the provision of support for or the facilitation
32
of a terrorist act; or
33
Schedule 1 Criminal Code Act 1995
10
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
(iii) preventing the provision of support for or the facilitation
1
of the engagement in a hostile activity in a foreign
2
country.
3
29 Subsections 104.24(2) and (3) of the Criminal Code
4
Repeal the subsections, substitute:
5
(2) In determining whether the varied control order is reasonably
6
necessary, and reasonably appropriate and adapted, the court must
7
take into account the impact of the varied order on the person's
8
circumstances (including the person's financial and personal
9
circumstances).
10
(3) The court need not include in the order an obligation, prohibition
11
or restriction that was sought if not including the obligation,
12
prohibition or restriction would allow the court to become satisfied
13
as mentioned in paragraph (1)(b).
14
30 At the end of Division 106 of the Criminal Code
15
Add:
16
106.6 Application provisions for certain amendments in the
17
Counter-Terrorism Legislation Amendment Act (No. 1)
18
2014
19
(1) Section 104.1, as amended by Schedule 1 to the Counter-Terrorism
20
Legislation Amendment Act (No. 1) 2014, applies in relation to
21
control orders, where the relevant interim control order is requested
22
after the commencement of this section.
23
(2) Sections 104.2, 104.3, 104.10 and 104.12A, as amended by
24
Schedule 1 to the Counter-Terrorism Legislation Amendment Act
25
(No. 1) 2014, apply to requests for interim control orders made
26
after the commencement of this section, where the conduct in
27
relation to which the request is made occurs before or after that
28
commencement.
29
(3) Section 104.4 and subsection 104.5(1B), as amended by
30
Schedule 1 to the Counter-Terrorism Legislation Amendment Act
31
(No. 1) 2014, apply to the making of orders requested after the
32
commencement of this section, where the conduct in relation to
33
Criminal Code Act 1995 Schedule 1
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
11
which the request is made occurs before or after that
1
commencement.
2
(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the
3
Counter-Terrorism Legislation Amendment Act (No. 1) 2014, apply
4
to the making of requests after the commencement of this section,
5
where the conduct in relation to which the request is made occurs
6
before or after that commencement.
7
(5) Section 104.14, as amended by Schedule 1 to the
8
Counter-Terrorism Legislation Amendment Act (No. 1) 2014,
9
applies to confirmations of control orders, where the relevant
10
interim control order is requested after that commencement.
11
(6) Sections 104.20, 104.23 and 104.24, as amended by Schedule 1 to
12
the Counter-Terrorism Legislation Amendment Act (No. 1) 2014,
13
apply to variations of control orders, where the relevant interim
14
control order is requested after that commencement.
15
Schedule 2 Intelligence Services Act 2001
12
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
Schedule 2
--Intelligence Services Act 2001
1
2
Intelligence Services Act 2001
3
1 After paragraph 6(1)(b)
4
Insert:
5
(ba) to provide assistance to the Defence Force in support of
6
military operations and to cooperate with the Defence Force
7
on intelligence matters; and
8
2 Subsection 6(7)
9
Omit ", including to the Defence Force in support of military
10
operations,".
11
3 Paragraph 8(1)(a)
12
Omit "section 9 from the Minister", substitute "section 9, 9A or 9B (as
13
the case requires)".
14
4 After subparagraph 8(1)(a)(i)
15
Insert:
16
(ia) undertaking, in the course of providing assistance to the
17
Defence Force in support of military operations under
18
paragraph 6(1)(ba), an activity, or a series of activities,
19
for the specific purpose, or for purposes which include
20
the specific purpose, of producing intelligence on one or
21
more members of a class of Australian persons; or
22
(ib) undertaking, in the course of providing assistance to the
23
Defence Force in support of military operations under
24
paragraph 6(1)(ba), an activity, or a series of activities,
25
that will, or is likely to, have a direct effect on one or
26
more members of a class of Australian persons; or
27
5 Paragraph 8(1)(b)
28
Omit "section 9 from the Minister", substitute "section 9, 9A or 9B (as
29
the case requires)".
30
6 Before subsection 9(1)
31
Insert:
32
Intelligence Services Act 2001 Schedule 2
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
13
Preconditions for giving authorisation
1
7 Subsection 9(1)
2
Omit "under this section".
3
8 At the end of subsection 9(1)
4
Add:
5
; and (d) for an authorisation for an activity, or a series of activities, of
6
a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)--the
7
Defence Minister has requested the authorisation in writing.
8
9 Subsection 9(1A)
9
Omit "under this section for an activity, or a series of activities, of a
10
kind mentioned in subparagraph 8(1)(a)(i)", substitute "for an activity,
11
or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i),
12
(ia), (ib)".
13
10 Paragraph 9(1A)(a)
14
After "the Australian person", insert ", or the class of Australian
15
persons,".
16
11 Paragraph 9(1A)(b)
17
After "the Australian person", insert ", or the class of Australian
18
persons,".
19
12 Paragraph 9(1A)(b)
20
After "agreement", insert "(orally or in writing, but subject to
21
subsection (1AA))".
22
13 At the end of subsection 9(1A)
23
Add:
24
Note:
For serious crime, see section 3.
25
14 After subsection 9(1A)
26
Insert:
27
Schedule 2 Intelligence Services Act 2001
14
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
Agreement of Minister administering the Australian Security
1
Intelligence Organisation Act 1979
2
(1AA) Without limiting paragraph (1A)(b), the Minister responsible for
3
administering the Australian Security Intelligence Organisation
4
Act 1979 may, in writing:
5
(a) specify classes of Australian persons who are, or are likely to
6
be, involved in an activity or activities that are, or are likely
7
to be, a threat to security; and
8
(b) give his or her agreement in relation to any Australian person
9
in that specified class.
10
(1AB) An agreement given in accordance with subsection (1AA) may:
11
(a) relate to an authorisation for an activity, or a series of
12
activities, of a kind mentioned in subparagraph 8(1)(a)(i),
13
(ia), (ib) or (ii); and
14
(b) specify the period during which the agreement has effect.
15
(1AC) If an agreement relating to a specified class of Australian persons
16
specifies a period in accordance with paragraph (1AB)(b), the
17
agreement of the Minister responsible for administering the
18
Australian Security Intelligence Organisation Act 1979 is, for
19
authorisations to be given after the period ends, taken not to have
20
been obtained in relation to a person in that class.
21
Note:
The agreement of the Minister would need to be obtained again in
22
relation to such a person.
23
Content and form of authorisation
24
15 Subsection 9(1B)
25
Repeal the subsection.
26
16 Subsection 9(4)
27
Repeal the subsection, substitute:
28
(4) An authorisation must specify how long it will have effect. The
29
period of effect specified in an authorisation for an activity, or a
30
series of activities, of a kind mentioned in subparagraph 8(1)(a)(i),
31
(ia), (ib) or (ii) must not exceed 6 months.
32
Intelligence Services Act 2001 Schedule 2
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
15
17 Subsection 9(5)
1
Repeal the subsection, substitute:
2
(4A) An authorisation must be in writing.
3
Requirement to keep copies
4
(5) If a Minister gives an authorisation under this section in relation to
5
an agency, the relevant agency head must ensure that copies of the
6
following are kept by the agency and are available for inspection
7
on request by the Inspector-General of Intelligence and Security:
8
(a) the authorisation;
9
(b) any record or copy of an agreement given under
10
paragraph (1A)(b) (including any agreement given in
11
accordance with subsection (1AA));
12
(c) if the authorisation is for an activity, or a series of activities,
13
of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)--the
14
request from the Defence Minister referred to in
15
paragraph (1)(d) of this section.
16
Status of instruments
17
(6) A request under paragraph (1)(d), an agreement under
18
paragraph (1A)(b) (if in writing), a request under subsection (5) (if
19
in writing), and an authorisation under this section, are not
20
legislative instruments.
21
Definitions
22
(7) In this section:
23
security has the same meaning as in the Australian Security
24
Intelligence Organisation Act 1979.
25
UN sanction enforcement law has the same meaning as in the
26
Charter of the United Nations Act 1945.
27
18 Section 9A
28
Repeal the section, substitute:
29
Schedule 2 Intelligence Services Act 2001
16
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
9A Authorisations in an emergency--Ministerial authorisations
1
(1) This section applies if:
2
(a) an emergency situation arises in which an agency head
3
considers it necessary or desirable to undertake an activity or
4
a series of activities (except an activity or a series of
5
activities of a kind mentioned in subparagraph 8(1)(a)(ia) or
6
(ib)); and
7
(b) a direction under subsection 8(1) requires the agency to
8
obtain an authorisation under section 9, 9A or 9B before
9
undertaking that activity or series of activities.
10
Giving oral authorisations
11
(2) A Minister specified in subsection (3) may orally give an
12
authorisation under this section for the activity or series of
13
activities if (subject to section 9C) the conditions in
14
subsections 9(1) and (1A) are met.
15
Note:
The condition in paragraph 9(1A)(b) may not be required to be met if
16
the Minister responsible for administering the Australian Security
17
Intelligence Organisation Act 1979 is unavailable (see section 9C).
18
(3) The Ministers who may orally give an authorisation are:
19
(a) the responsible Minister in relation to the relevant agency; or
20
(b) if the agency head is satisfied that the relevant responsible
21
Minister is not readily available or contactable--any of the
22
following Ministers:
23
(i) the Prime Minister;
24
(ii) the Defence Minister;
25
(iii) the Foreign Affairs Minister;
26
(iv) the Attorney-General.
27
Note:
An authorisation may be given by an agency head if none of those
28
Ministers are readily available or contactable (see section 9B).
29
Period of effect of oral authorisation
30
(4) An authorisation given under this section for an activity or series of
31
activities ceases to have effect at the earlier of the following times:
32
(a) when an authorisation for the activity or series of activities is
33
given under section 9;
34
Intelligence Services Act 2001 Schedule 2
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
17
(b) 48 hours from the time the authorisation was given under this
1
section.
2
Record of oral authorisation
3
(5) The agency head must:
4
(a) ensure that a written record of an authorisation given under
5
this section is made as soon as practicable (but no later than
6
48 hours) after the authorisation is given; and
7
(b) give the Inspector-General of Intelligence and Security a
8
copy of the record within 3 days after the authorisation is
9
given.
10
9B Authorisations in an emergency--Ministers unavailable
11
(1) This section applies if:
12
(a) an agency head considers it necessary or desirable to
13
undertake an activity or a series of activities; and
14
(b) an authorisation is sought under section 9A; and
15
(c) the agency head is satisfied that none of the Ministers
16
specified in subsection 9A(3) are readily available or
17
contactable.
18
(2) The agency head may give an authorisation under this section for
19
the activity or series of activities if the agency head is satisfied
20
that:
21
(a) the facts of the case would justify the relevant responsible
22
Minister giving an authorisation under section 9 because
23
(subject to section 9C) the agency head is satisfied that the
24
conditions in subsections 9(1) and (1A) are met; and
25
(b) the responsible Minister would have given the authorisation;
26
and
27
(c) if the activity or series of activities is not undertaken before
28
an authorisation is given under section 9 or 9A:
29
(i) security (within the meaning of the Australian Security
30
Intelligence Organisation Act 1979) will be, or is likely
31
to be, seriously prejudiced; or
32
(ii) there will be, or is likely to be, a serious risk to a
33
person's safety.
34
Schedule 2 Intelligence Services Act 2001
18
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
Note:
The condition in paragraph 9(1A)(b) may not be required to be met if
1
the Minister responsible for administering the Australian Security
2
Intelligence Organisation Act 1979 is unavailable (see section 9C).
3
Content and form of authorisation
4
(3) An authorisation given under this section:
5
(a) may be given in relation to the same matters as an
6
authorisation may be given under subsection 9(2); and
7
(b) is subject to the requirements of subsections 9(3) and (4A).
8
Period of effect of authorisation
9
(4) An authorisation given under this section for an activity or series of
10
activities ceases to have effect at the earliest of the following
11
times:
12
(a) when an authorisation for the activity or series of activities is
13
given under section 9 or 9A;
14
(b) when the authorisation given under this section is cancelled
15
by the relevant responsible Minister under subsection (8) of
16
this section;
17
(c) 48 hours from the time the authorisation was given under this
18
section.
19
Copies of authorisation and other documents
20
(5) An agency head who gives an authorisation under this section for
21
an activity or series of activities must give the following
22
documents to the relevant responsible Minister and the
23
Inspector-General of Intelligence and Security:
24
(a) a copy of the authorisation;
25
(b) a summary of the facts of the case that the agency head was
26
satisfied justified giving the authorisation;
27
(c) an explanation of the Minister's obligation under
28
subsection (7).
29
(6) The documents must be given to the responsible Minister and the
30
Inspector-General of Intelligence and Security as soon as
31
practicable, but no later than the following time:
32
(a) for documents given to the responsible Minister--48 hours
33
after giving the authorisation;
34
Intelligence Services Act 2001 Schedule 2
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
19
(b) for documents given to the Inspector-General of Intelligence
1
and Security--3 days after giving the authorisation.
2
Responsible Minister must consider cancelling authorisation or
3
giving new authorisation
4
(7) As soon as practicable after being given the documents, the
5
responsible Minister must consider whether to:
6
(a) cancel the authorisation under subsection (8); or
7
(b) give a new authorisation for the activity or series of activities
8
under section 9 or 9A.
9
Responsible Minister may cancel authorisation
10
(8) For the purposes of paragraph (4)(b), the relevant responsible
11
Minister may, in writing, cancel an authorisation given under this
12
section.
13
Authorisation and cancellation not legislative instruments
14
(9) An authorisation and a cancellation under this section are not
15
legislative instruments.
16
9C Authorisations in an emergency--Minister responsible for
17
administering the Australian Security Intelligence
18
Organisation Act 1979 unavailable
19
(1) This section applies if:
20
(a) an agency head considers it necessary or desirable to
21
undertake an activity or a series of activities; and
22
(b) an authorisation is sought under section 9A or 9B; and
23
(c) all of the following apply:
24
(i) the agreement of the Minister responsible for
25
administering the Australian Security Intelligence
26
Organisation Act 1979 (the ASIO Minister) is required
27
to be obtained under paragraph 9(1A)(b);
28
(ii) the agreement has not been obtained;
29
(iii) the agency head is satisfied that the ASIO Minister is
30
not readily available or contactable.
31
Schedule 2 Intelligence Services Act 2001
20
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
Giving authorisation
1
(2) Despite paragraph 9(1A)(b), the authorisation may (subject to
2
subsection (3)) be given without obtaining the agreement of the
3
ASIO Minister.
4
Obtaining the agreement of the Director-General of Security
5
(3) Before an authorisation is given under section 9A or 9B, unless the
6
agency head is satisfied that the Director-General of Security is not
7
readily available or contactable, the agency head must obtain the
8
agreement of the Director-General to the authorisation being given
9
without the agreement of the ASIO Minister.
10
Advising the ASIO Minister
11
(4) The relevant agency head must advise the ASIO Minister and the
12
Inspector-General of Intelligence and Security that an authorisation
13
was given under section 9A or 9B (as the case requires) in
14
accordance with this section. The advice must state whether the
15
agreement of the Director-General of Security was obtained.
16
(5) The advice must be given as soon as practicable, but no later than
17
the following time:
18
(a) for advice given to the ASIO Minister--48 hours after the
19
authorisation is given under section 9A or 9B;
20
(b) for advice given to the Inspector-General of Intelligence and
21
Security--3 days after the authorisation is given under
22
section 9A or 9B.
23
19 Section 10 (heading)
24
Repeal the heading, substitute:
25
10 Period during which authorisation given under section 9 has
26
effect etc.
27
20 Before subsection 10(1)
28
Insert:
29
Intelligence Services Act 2001 Schedule 2
No. , 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
21
Renewing authorisations
1
21 Subsection 10(1)
2
After "an authorisation", insert "given under section 9".
3
22 Subsection 10(1A)
4
Omit "an authorisation for an activity, or a series of activities, of a kind
5
mentioned in subparagraph 8(1)(a)(i)", substitute "an authorisation
6
given under section 9 for an activity, or a series of activities, of a kind
7
mentioned in subparagraph 8(1)(a)(i), (ia), (ib)".
8
23 Before subsection 10(2)
9
Insert:
10
Varying or cancelling authorisations
11
24 Subsection 10(2)
12
After "an authorisation", insert "given under section 9".
13
25 Subsection 10(2A)
14
Omit "issued", substitute "given under section 9".
15
26 After subsection 10(2A)
16
Insert:
17
(2B) Without limiting subsection (2A), if an authorisation is given under
18
section 9 for an activity, or a series of activities, of a kind
19
mentioned in subparagraph 8(1)(a)(ia) or (ib), the grounds on
20
which the authorisation was given cease to exist if:
21
(a) the Defence Force is no longer engaged in any military
22
operations to which the request for the authorisation relates;
23
or
24
(b) the Defence Minister withdraws the request for the
25
authorisation.
26
Note:
For the request for the authorisation, see paragraph 9(1)(d).
27
(2C) For the purposes of subsection (2A), if an authorisation is given in
28
reliance on an agreement that specifies a period in accordance with
29
paragraph 9(1AB)(b), the grounds on which the authorisation was
30
Schedule 2 Intelligence Services Act 2001
22
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
No. , 2014
given are taken not to have ceased to exist merely because the
1
period specified in the agreement ends.
2
Renewal, variation or cancellation to be in writing
3
27 Subsection 10(3)
4
After "an authorisation", insert "given under section 9".
5
28 At the end of section 10
6
Add:
7
Relationship with the Acts Interpretation Act 1901
8
(4) To avoid doubt, this section does not limit subsection 33(3) of the
9
Acts Interpretation Act 1901 to the extent that it applies to an
10
authorisation given under section 9A or 9B.
11
29 At the end of subsection 10A(1)
12
Add ", 9A or 9B".
13
30 Subsection 10A(2)
14
After "report must", insert "(subject to subsections (3) and (4))".
15
31 At the end of section 10A
16
Add:
17
(3) If the report is in respect of an activity, or series of activities, of a
18
kind mentioned in subparagraph 8(1)(a)(ia) or (ib), the report must
19
be provided to the Minister as soon as practicable, but no later than
20
3 months, after each of the following days:
21
(a) the day on which the relevant authorisation ceased to have
22
effect;
23
(b) the day on which the relevant authorisation was renewed.
24
(4) If the report is in respect of an activity, or series of activities,
25
carried out by the agency in reliance on an authorisation under
26
section 9A or 9B, the report must be provided to the Minister as
27
soon as practicable, but no later than 1 month, after the day on
28
which the authorisation ceased to have effect.
29