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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Office of National Intelligence Bill 2018
No. , 2018
(Prime Minister)
A Bill for an Act to provide for the Office of
National Intelligence, and for related purposes
No. , 2018
Office of National Intelligence Bill 2018
i
Contents
Part 1--Introduction
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Simplified outline of this Act ............................................................ 2
4
Definitions ......................................................................................... 3
5
Extension to external Territories ....................................................... 8
Part 2--Office of National Intelligence
9
Division 1--Office of National Intelligence
9
6
Establishment .................................................................................... 9
Division 2--Functions and powers
10
7
Functions of ONI ............................................................................. 10
8
Leading the national intelligence community .................................. 11
9
Evaluating matters relating to the national intelligence
community ....................................................................................... 12
10
Matters that are not part of ONI's functions .................................... 14
11
Powers of ONI ................................................................................. 15
12
Prime Minister may give directions ................................................. 15
Division 3--Cooperation
17
13
Cooperation with entities in connection with performance of
ONI's functions ............................................................................... 17
14
Cooperation with intelligence agencies etc. in connection
with performance of their functions................................................. 18
Part 3--Director-General of National Intelligence and staff of
ONI
19
Division 1--Functions and powers of the Director-General
19
15
Director-General of National Intelligence ....................................... 19
16
Functions of the Director-General ................................................... 19
17
Prime Minister to be kept informed on matters relating to the
national intelligence community ...................................................... 21
18
Leader of Opposition to be kept informed on significant
intelligence matters .......................................................................... 21
19
Special responsibilities of the Director-General .............................. 21
20
Director-General may give directions .............................................. 21
21
Director-General may issue guidelines ............................................ 23
22
Requests for reports or assessments................................................. 24
23
Consultation with National Assessments Board .............................. 24
ii
Office of National Intelligence Bill 2018
No. , 2018
Division 2--Appointment of the Director-General
25
24
Appointment .................................................................................... 25
25
Term of appointment ....................................................................... 25
26
Acting appointments ........................................................................ 25
Division 3--Terms and conditions of appointment
26
27
Remuneration and allowances ......................................................... 26
28
Leave of absence ............................................................................. 26
29
Outside employment ........................................................................ 26
30
Resignation ...................................................................................... 26
31
Termination of appointment ............................................................ 27
32
Other terms and conditions .............................................................. 27
Division 4--Staff of ONI
28
33
Staff ................................................................................................. 28
34
Consultants ...................................................................................... 28
35
Secondment of ONI employees ....................................................... 28
36
Secondment of persons to ONI ........................................................ 29
Part 4--Provisions relating to information
30
Division 1--Information gathering
30
37
Requirement to provide information, documents or things to
ONI relating to international matters ............................................... 30
38
Ability to provide information, documents or things to ONI
relating to international or other matters .......................................... 31
39
Ability of agencies to provide information, documents or
things to ONI relating to its functions ............................................. 31
40
Use of information, documents or things ......................................... 31
41
Protection of information, documents or things ............................... 32
Division 2--Secrecy
33
42
Offence--communicating certain information ................................ 33
43
Offence--subsequent communications of certain information ........ 34
44
Offences--dealing with and making records ................................... 36
45
Instituting prosecutions for offences against this Division .............. 39
46
Offences against this Division--IGIS officials ............................... 39
Part 5--Administration
40
Division 1--National Assessments Board
40
47
National Assessments Board ........................................................... 40
48
Constitution ..................................................................................... 40
49
Holding of meetings ........................................................................ 41
50
Presiding at meetings ....................................................................... 41
No. , 2018
Office of National Intelligence Bill 2018
iii
51
Officials to attend meetings ............................................................. 41
Division 2--Committees
42
52
Committees ...................................................................................... 42
Division 3--Privacy rules
43
53
Privacy rules to protect Australians ................................................. 43
Part 6--Miscellaneous
45
54
Delegation ....................................................................................... 45
55
General rules.................................................................................... 45
No. , 2018
Office of National Intelligence Bill 2018
1
A Bill for an Act to provide for the Office of
1
National Intelligence, and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Introduction
4
5
1 Short title
6
This Act is the Office of National Intelligence Act 2018.
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
Part 1 Introduction
Section 3
2
Office of National Intelligence Bill 2018
No. , 2018
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
55
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.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Simplified outline of this Act
10
This Act continues the former Office of National Assessments as
11
the Office of National Intelligence (ONI). ONI's functions include
12
leading the national intelligence community, carrying out
13
evaluations, preparing assessments and reports and otherwise
14
providing advice to the Prime Minister on matters relating to the
15
national intelligence community.
16
The Director-General manages ONI and ensures the proper,
17
efficient and effective performance of ONI's functions. In carrying
18
out the role, the Director-General may give directions and issue
19
Introduction Part 1
Section 4
No. , 2018
Office of National Intelligence Bill 2018
3
guidelines to be followed by the national intelligence community
1
or particular agencies within the community.
2
The Director-General has a leadership role in the national
3
intelligence community and also has responsibility for keeping the
4
Prime Minister informed on matters relating to the national
5
intelligence community and the Leader of the Opposition informed
6
on matters relating to intelligence.
7
This Act also continues the National Assessments Board. The
8
Board considers whether assessments prepared by ONI are national
9
assessments, and considers national assessments.
10
Commonwealth authorities must provide relevant information to
11
ONI, if requested to do so, for the purpose of ONI preparing
12
assessments relating to international matters. Commonwealth
13
authorities may provide information to ONI for the purpose of ONI
14
preparing assessments relating to international or other matters.
15
This Act also deals with other matters such as secrecy obligations,
16
providing for privacy rules to be made to protect the collection,
17
communication and handling of identifiable information and other
18
administrative matters.
19
4 Definitions
20
(1) In this Act:
21
agency with an intelligence role or function means:
22
(a) AUSTRAC (within the meaning of the Anti-Money
23
Laundering and Counter-Terrorism Financing Act 2006); or
24
(b) the Australian Federal Police; or
25
(c) the Department of Home Affairs; or
26
(d) the Defence Department (other than AGO or DIO);
27
to the extent that the agency:
28
(e) collects, correlates, analyses, produces or disseminates
29
intelligence that relates, or may relate, to national intelligence
30
priorities, requirements or capabilities; or
31
(f) either:
32
Part 1 Introduction
Section 4
4
Office of National Intelligence Bill 2018
No. , 2018
(i) maintains a capability that materially assists in doing
1
any of the things mentioned in paragraph (e); or
2
(ii) is developing a capability that is designed to materially
3
assist in doing any of the things mentioned in
4
paragraph (e).
5
Note:
The Defence Department does not include the Australian Defence
6
Force.
7
AGO means that part of the Defence Department known as the
8
Australian Geospatial-Intelligence Organisation.
9
ASD means the Australian Signals Directorate.
10
ASIO means the Australian Security Intelligence Organisation.
11
ASIS means the Australian Secret Intelligence Service.
12
AUSTRAC means the Australian Transaction Reports and Analysis
13
Centre.
14
Commonwealth authority includes:
15
(a) an Agency within the meaning of the Public Service Act
16
1999; and
17
(b) a Department within the meaning of the Parliamentary
18
Service Act 1999; and
19
(c) the Defence Force; and
20
(d) a body, whether incorporated or not, established, or
21
continued in existence, for a public purpose by or under a law
22
of the Commonwealth; and
23
(e) a body corporate in which the Commonwealth or a body
24
referred to in paragraph (d) has a controlling interest.
25
Defence Department means the Department administered by the
26
Defence Minister.
27
Defence Minister means the Minister responsible for administering
28
the Defence Act 1903.
29
Department of Home Affairs means the Department administered
30
by the Home Affairs Minister.
31
Introduction Part 1
Section 4
No. , 2018
Office of National Intelligence Bill 2018
5
DIO means that part of the Defence Department known as the
1
Defence Intelligence Organisation.
2
Director-General means the Director-General of National
3
Intelligence.
4
general rules means the rules made under section 55.
5
head, in relation to an intelligence agency or an agency with an
6
intelligence role or function, means the following persons:
7
(a) in relation to the ASD--the Director-General of ASD;
8
(b) in relation to the ASIO--the Director-General of Security;
9
(c) in relation to the ASIS--the Director-General of the ASIS;
10
(d) in relation to AUSTRAC--the Chief Executive Officer of
11
AUSTRAC;
12
(e) in relation to the agency known as the Australian Criminal
13
Intelligence Commission--the Chief Executive Officer of
14
that agency;
15
(f) in relation to the Australian Federal Police--the
16
Commissioner of Police;
17
(g) in relation to the part of the Defence Department known as
18
the Australian Geospatial-Intelligence Organisation--the
19
Director of that part of the Department;
20
(h) in relation to the part of the Defence Department known as
21
the Defence Intelligence Organisation--the Director of that
22
part of the Department;
23
(i) in relation to ONI--the Director-General;
24
(j) in relation to any other Department of the Commonwealth or
25
part of such a Department--the Secretary of the Department.
26
Home Affairs Minister means the Minister administering the
27
Australian Border Force Act 2015.
28
identifiable information means information or an opinion about an
29
identified Australian citizen or permanent resident, or an
30
Australian citizen or permanent resident who is reasonably
31
identifiable:
32
(a) whether the information or opinion is true or not; and
33
Part 1 Introduction
Section 4
6
Office of National Intelligence Bill 2018
No. , 2018
(b) whether the information or opinion is recorded in a material
1
form or not.
2
IGIS official: see Inspector-General of Intelligence and Security
3
official.
4
Inspector-General of Intelligence and Security official or IGIS
5
official means:
6
(a) the Inspector-General of Intelligence and Security; or
7
(b) a member of the staff referred to in subsection 32(1) of the
8
Inspector-General of Intelligence and Security Act 1986.
9
intelligence agency means:
10
(a) ASD, ASIO, ASIS, AGO or DIO; or
11
(b) the agency known as the Australian Criminal Intelligence
12
Commission.
13
national intelligence community means the following agencies:
14
(a) ONI;
15
(b) each intelligence agency;
16
(c) each agency with an intelligence role or function.
17
national security has the same meaning as in the National Security
18
Information (Criminal and Civil Proceedings) Act 2004.
19
ONI means the body continued in existence by section 6 under the
20
name Office of National Intelligence.
21
paid work means work for financial gain or reward (whether as an
22
employee, a self-employed person or otherwise).
23
permanent resident means:
24
(a) a natural person who is a permanent resident within the
25
meaning of the Australian Security Intelligence Organisation
26
Act 1979; or
27
(b) a body corporate incorporated under a law in force in a State
28
or Territory, other than a body corporate whose activities one
29
or more of the following controls, or is in a position to
30
control, whether directly or indirectly:
31
(i) a foreign power;
32
Introduction Part 1
Section 4
No. , 2018
Office of National Intelligence Bill 2018
7
(ii) a natural person who is neither an Australian citizen nor
1
a person covered by paragraph (a);
2
(iii) a group of natural persons, none of whom is an
3
Australian citizen or a person covered by paragraph (a).
4
prescribed Commonwealth officer means:
5
(a) a Secretary of a Department; or
6
(b) the Chief of the Defence Force; or
7
(c) the Commissioner of the Australian Federal Police; or
8
(d) the Australian Border Force Commissioner (within the
9
meaning of the Australian Border Force Act 2015); or
10
(e) the Director-General of ASD; or
11
(f) the Director-General of ASIS; or
12
(g) the Chief Executive Officer of the agency known as the
13
Australian Criminal Intelligence Commission; or
14
(h) the AUSTRAC CEO (within the meaning of the Anti-Money
15
Laundering and Counter-Terrorism Financing Act 2006); or
16
(i) the Director-General of Security holding office under the
17
Australian Security Intelligence Organisation Act 1979; or
18
(j) any other person employed by the Commonwealth (whether
19
under the Public Service Act 1999 or otherwise) who is
20
authorised in an instrument under subsection (2).
21
privacy rules means the rules made under section 53.
22
record means a document, or any other object by which words,
23
images, sounds or signals are recorded or stored or from which
24
information can be obtained, and includes part of a record.
25
Note:
For the definition of document, see section 2B of the Acts
26
Interpretation Act 1901.
27
staff member means:
28
(a) a member of the staff of ONI referred to in section 33; or
29
(b) a consultant engaged under section 34; or
30
(c) a person whose services are made available to the
31
Director-General under section 36.
32
State authority includes:
33
Part 1 Introduction
Section 5
8
Office of National Intelligence Bill 2018
No. , 2018
(a) a Department of State of a State or Territory or a Department
1
of the Public Service of a State or Territory; and
2
(b) a body, whether incorporated or not, established, or
3
continued in existence, for a public purpose by or under a law
4
of a State or Territory; and
5
(c) a body corporate in which a State, Territory or a body
6
referred to in paragraph (b) has a controlling interest.
7
Prescribed Commonwealth officer instrument
8
(2) The Prime Minister may, in writing, authorise a person employed
9
by the Commonwealth (whether under the Public Service Act 1999
10
or otherwise) for the purposes of paragraph (j) of the definition of
11
prescribed Commonwealth officer in subsection (1).
12
5 Extension to external Territories
13
This Act extends to every external Territory.
14
Office of National Intelligence Part 2
Office of National Intelligence Division 1
Section 6
No. , 2018
Office of National Intelligence Bill 2018
9
Part 2--Office of National Intelligence
1
Division 1--Office of National Intelligence
2
6 Establishment
3
(1) The Office of National Assessments established by section 4 of the
4
Office of National Assessments Act 1977 continues in existence, by
5
force of this subsection, under and subject to the provisions of this
6
Act, under the name Office of National Intelligence.
7
(2) For the purposes of the finance law (within the meaning of the
8
Public Governance, Performance and Accountability Act 2013):
9
(a) ONI is a listed entity; and
10
(b) the Director-General is the accountable authority of ONI; and
11
(c) the following persons are officials of ONI:
12
(i) the Director-General;
13
(ii) the staff of ONI referred to in section 33;
14
(iii) consultants engaged under section 34;
15
(iv) persons whose services are made available to the
16
Director-General under section 36; and
17
(d) the purposes of ONI include the functions of ONI referred to
18
in section 7.
19
Part 2 Office of National Intelligence
Division 2 Functions and powers
Section 7
10
Office of National Intelligence Bill 2018
No. , 2018
Division 2--Functions and powers
1
7 Functions of ONI
2
(1) ONI has the following functions:
3
(a) to lead the national intelligence community, as described in
4
section 8;
5
(b) to carry out the evaluation functions mentioned in section 9;
6
(c) to:
7
(i) assemble, correlate and analyse information relating to
8
international matters that are of political, strategic or
9
economic significance to Australia, including domestic
10
aspects relating to such matters; and
11
(ii) prepare assessments and reports in relation to such
12
matters in accordance with the Government's
13
requirements;
14
(d) to:
15
(i) assemble, correlate and analyse information relating to
16
other matters that are of political, strategic or economic
17
significance to Australia; and
18
(ii) prepare assessments and reports in relation to such
19
matters in accordance with the Government's
20
requirements;
21
if doing so would support the performance of any other
22
function or the Director-General's functions, or complement
23
the work of the national intelligence community;
24
(e) to provide advice to the Prime Minister, from a
25
whole-of-national intelligence community perspective, on
26
national intelligence priorities, requirements and capabilities;
27
(f) to provide advice, from time to time, to the Prime Minister on
28
matters relating to the national intelligence community more
29
generally;
30
(g) to collect, interpret and disseminate information relating to
31
matters of political, strategic or economic significance to
32
Australia that is accessible to any section of the public;
33
Office of National Intelligence Part 2
Functions and powers Division 2
Section 8
No. , 2018
Office of National Intelligence Bill 2018
11
(h) to cooperate with and assist bodies referred to in section 14 in
1
accordance with that section;
2
(i) to provide assessments or reports, prepared under
3
paragraph (c) or (d), to a person or body, inside or outside
4
Australia;
5
(j) such other functions as are conferred on ONI by this Act or
6
any other law of the Commonwealth;
7
(k) to do anything incidental or conducive to the performance of
8
any of its functions.
9
Note:
For matters that do not form part of ONI's functions: see
10
subsection 10(2).
11
(2) ONI must perform its function under paragraph (1)(a) in ways that
12
promote the appropriate integration of the intelligence capabilities
13
of the national intelligence community.
14
Note 1:
The Director-General must ensure that ONI performs its functions in
15
ways that do not inappropriately impact on, or encroach on, the
16
functions and responsibilities of other agencies within the national
17
intelligence community: see subsection 10(1).
18
Note 2:
The Prime Minister may give directions to the Director-General about
19
the performance of ONI's functions, but not in relation to the content
20
or conclusions to be contained in any advice, report or assessment by
21
ONI: see section 12.
22
8 Leading the national intelligence community
23
(1) ONI is to provide leadership in the national intelligence
24
community by guiding the direction of the national intelligence
25
community so as to ensure the following:
26
(a) the development, strategic planning, coordination and
27
appropriate integration of matters relating to the national
28
intelligence community;
29
(b) prioritisation of national intelligence priorities and
30
requirements, and allocation of resources accordingly;
31
(c) structured and appropriate responses to technological
32
advancements.
33
(2) Examples of the ways in which ONI might provide that leadership
34
in the national intelligence community include:
35
Part 2 Office of National Intelligence
Division 2 Functions and powers
Section 9
12
Office of National Intelligence Bill 2018
No. , 2018
(a) identifying particular areas of intelligence focus that require
1
greater integration and overseeing appropriate action; and
2
(b) developing strategic policies relating to the national
3
intelligence community, and coordinating and overseeing
4
their implementation; and
5
(c) coordinating matters relating to the national intelligence
6
community.
7
Note:
Leadership could, for example, be provided in areas such as
8
intelligence liaison with international partners, engagement with the
9
private sector, workforce planning, training for agencies within the
10
national intelligence community, data management, or information
11
technology and communication networks or systems.
12
(3) ONI must perform its leadership function in ways that are
13
consistent with other agencies in the national intelligence
14
community developing relationships with other entities, including
15
international partners and the private sector.
16
(4) ONI's leadership in the national intelligence community is to be
17
supported by:
18
(a) directions given by the Director-General under section 20;
19
and
20
(b) guidelines issued by the Director-General under section 21.
21
9 Evaluating matters relating to the national intelligence community
22
(1) The evaluation functions of ONI are the following:
23
(a) evaluating the activities of an affected agency or agencies,
24
having regard to:
25
(i) Australia's national intelligence priorities and
26
requirements; and
27
(ii) the intelligence needs of relevant Ministers;
28
(b) evaluating the adequacy of the resources available to carry
29
out Australia's national intelligence activities and whether
30
those resources are being appropriately allocated;
31
(c) to the extent required to perform any other function,
32
evaluating other aspects of an affected agency or agencies;
33
Office of National Intelligence Part 2
Functions and powers Division 2
Section 9
No. , 2018
Office of National Intelligence Bill 2018
13
(d) at the direction of the Prime Minister, evaluating an affected
1
agency or agencies to assess the national intelligence
2
community's effectiveness in relation to specific matters;
3
(e) providing advice to the Prime Minister on:
4
(i) the results of any evaluations made; and
5
(ii) any improvements or changes that should be made to
6
remedy any identified inadequacies.
7
(2) In carrying out its evaluation functions, ONI may have regard to:
8
(a) directions given by the Director-General under section 20;
9
and
10
(b) guidelines issued by the Director-General under section 21;
11
and
12
(c) to the extent that an evaluation relates to an affected agency
13
or agencies, any failure by the affected agency or agencies to
14
comply with:
15
(i) a direction given by the Director-General under
16
section 20; or
17
(ii) a guideline issued by the Director-General under
18
section 21.
19
(3) Before providing advice to the Prime Minister under this section,
20
ONI must consult with any affected agency or agencies to which
21
the advice relates. Any advice provided to the Prime Minister must
22
include any comments made by any affected agency or agencies
23
that are relevant to the advice.
24
(4) In this section:
25
affected agency or agencies means:
26
(a) a particular intelligence agency; or
27
(b) a particular agency with an intelligence role or function; or
28
(c) ONI; or
29
(d) a class of agencies within the national intelligence
30
community; or
31
(e) the national intelligence community as a whole.
32
Part 2 Office of National Intelligence
Division 2 Functions and powers
Section 10
14
Office of National Intelligence Bill 2018
No. , 2018
10 Matters that are not part of ONI's functions
1
(1) The Director-General must ensure that ONI performs its functions
2
in ways that do not inappropriately impact on, or encroach on the
3
functions, powers and responsibilities of:
4
(a) an intelligence agency; or
5
(b) an agency with an intelligence role or function; or
6
(c) a Department in relation to an intelligence agency or agency
7
with an intelligence role or function in the same portfolio as
8
the Department; or
9
(d) a person who holds any office or appointment under a law of
10
the Commonwealth, being an office or appointment that
11
relates to an agency within the national intelligence
12
community or the national intelligence community more
13
generally.
14
Note:
The Director-General must also take all reasonable steps to ensure that
15
ONI is kept free from any influences or considerations not relevant to
16
its functions and that nothing is done that might lend colour to any
17
suggestion that ONI is concerned to further or protect the interests of
18
any particular section of the community: see section 19.
19
(2) In particular, ONI's functions do not include the following:
20
(a) directing an intelligence agency or an agency with an
21
intelligence role or function to:
22
(i) carry out operational activities; or
23
(ii) allocate resources, or use particular methods, when
24
carrying out such operational activities;
25
(b) conducting inquiries into individual complaints about the
26
activities of:
27
(i) an intelligence agency; or
28
(ii) an agency with an intelligence role or function;
29
(c) directing the content of, or conclusions reached in, any
30
intelligence communicated, or any advice given or
31
assessments or reports prepared, by:
32
(i) an intelligence agency; or
33
(ii) an agency with an intelligence role or function;
34
(d) inquiring into the legality, propriety or integrity of activities
35
undertaken by:
36
Office of National Intelligence Part 2
Functions and powers Division 2
Section 11
No. , 2018
Office of National Intelligence Bill 2018
15
(i) an intelligence agency; or
1
(ii) an agency with an intelligence role or function.
2
(3) To avoid doubt, the reference to directing in paragraphs (2)(a) and
3
(c) is not limited to directions given by the Director-General under
4
section 20.
5
11 Powers of ONI
6
ONI has power to do all things necessary or convenient to be done
7
for or in connection with the performance of its functions.
8
12 Prime Minister may give directions
9
(1) Subject to subsection (2), the Prime Minister may give directions
10
to the Director-General concerning the performance of ONI's
11
functions or the exercise of ONI's powers.
12
(2) However, the Director-General is not subject to direction in respect
13
of the content of, or any conclusions to be reached in, any advice
14
given, or report or assessment prepared, by ONI under this Act.
15
(3) The Director-General need not comply with a direction to the
16
extent that:
17
(a) compliance with the direction would be inconsistent with the
18
Director-General's performance of functions or exercise of
19
powers under the Public Governance, Performance and
20
Accountability Act 2013 in relation to ONI; or
21
(b) the direction relates to the Director-General's performance of
22
functions or exercise of powers under the Public Service Act
23
1999 in relation to ONI.
24
(4) The Director-General may request that a direction be given in
25
writing, and if the Director-General makes such a request, the
26
Prime Minister must provide the direction in writing.
27
Note:
The Inspector-General of Intelligence and Security has oversight
28
powers in relation to Ministerial directions given under this Act. See
29
in particular section 32B of the Inspector-General of Intelligence and
30
Security Act 1986 (which requires the Minister to give a copy of a
31
direction under this section to the Inspector-General of Intelligence
32
and Security as soon as practicable after the direction is given).
33
Part 2 Office of National Intelligence
Division 2 Functions and powers
Section 12
16
Office of National Intelligence Bill 2018
No. , 2018
(5) A direction given under this section is not a legislative instrument.
1
Office of National Intelligence Part 2
Cooperation Division 3
Section 13
No. , 2018
Office of National Intelligence Bill 2018
17
Division 3--Cooperation
1
13 Cooperation with entities in connection with performance of
2
ONI's functions
3
(1) In performing functions and exercising powers, ONI may
4
cooperate with:
5
(a) subject to subsections (5) and (6), an authority of another
6
country approved in an instrument under subsection (2); and
7
(b) any other person or entity, within or outside Australia.
8
(2) For the purposes of paragraph (1)(a), the Director-General may, in
9
writing, approve an authority of another country as being capable
10
of assisting ONI in the performance of its functions and the
11
exercise of its powers.
12
(3) Each month the Director-General must, in writing, notify the Prime
13
Minister of:
14
(a) each approval given under subsection (2) during the month;
15
and
16
(b) each variation or revocation of an approval given under
17
subsection (2) during the month.
18
Note:
The Director-General does not need to notify the Prime Minister if no
19
approvals are given, and no variations or revocations of approvals are
20
made, in a particular month.
21
(5) The Prime Minister may, at any time, cancel an approval given
22
under subsection (2).
23
(6) The cancellation of an approval:
24
(a) must be in writing; and
25
(b) unless specified otherwise, has immediate effect.
26
(7) An approval under subsection (2), and a cancellation of an
27
approval under subsection (5), are not legislative instruments.
28
Part 2 Office of National Intelligence
Division 3 Cooperation
Section 14
18
Office of National Intelligence Bill 2018
No. , 2018
14 Cooperation with intelligence agencies etc. in connection with
1
performance of their functions
2
(1) ONI may cooperate with and assist:
3
(a) an intelligence agency in the performance of its functions;
4
and
5
(b) an agency with an intelligence role or function in the
6
performance of that intelligence role or function; and
7
(c) any of the following kinds of bodies prescribed by the
8
general rules for the purposes of this paragraph:
9
(i) a Commonwealth authority;
10
(ii) a State authority.
11
(2) However, ONI may only do so:
12
(a) subject to any arrangements made or directions given by the
13
Prime Minister; and
14
(b) on request by the head (however described) of the agency or
15
body referred to in subsection (1).
16
Note:
The Inspector-General of Intelligence and Security has oversight
17
powers in relation to Ministerial directions and authorisations given
18
under this Act. See in particular section 32B of the Inspector-General
19
of Intelligence and Security Act 1986 (which requires the Minister to
20
give a copy of a direction under this section to the Inspector-General
21
of Intelligence and Security as soon as practicable after the direction is
22
given).
23
(3) Without limiting subsection (1), in cooperating with and assisting
24
an agency or body in accordance with this section, ONI may make
25
the services of staff members and other resources available to the
26
agency or body.
27
(4) An arrangement or direction under paragraph (2)(a):
28
(a) must be in writing; and
29
(b) is not a legislative instrument.
30
Director-General of National Intelligence and staff of ONI Part 3
Functions and powers of the Director-General Division 1
Section 15
No. , 2018
Office of National Intelligence Bill 2018
19
Part 3--Director-General of National Intelligence
1
and staff of ONI
2
Division 1--Functions and powers of the Director-General
3
15 Director-General of National Intelligence
4
(1) There is to be a Director-General of National Intelligence.
5
Note:
In this Act, Director-General means the Director-General of National
6
Intelligence: see section 4.
7
(2) The Director-General has a leadership role in the national
8
intelligence community and may, as part of that role, provide
9
advice relating to the appointment or engagement of persons in
10
senior leadership roles within the national intelligence community.
11
(3) To avoid doubt, subsection (2) does not require that the
12
Director-General's advice be sought in relation to any appointment
13
or engagement of a person in a senior leadership role within the
14
national intelligence community.
15
16 Functions of the Director-General
16
(1) The functions of the Director-General are:
17
(a) subject to any direction by the Prime Minister under
18
section 12, to ensure the proper, efficient and effective
19
performance of ONI's functions; and
20
(b) to manage ONI; and
21
(c) to endeavour to respond to requests under section 22 for
22
reports or assessments; and
23
(d) if the Director-General considers that an assessment made by
24
ONI should be a national assessment but the National
25
Assessments Board does not, or vice versa, to decide whether
26
the assessment is a national assessment; and
27
(e) any other functions conferred on the Director-General by this
28
Act or any other law of the Commonwealth.
29
Part 3 Director-General of National Intelligence and staff of ONI
Division 1 Functions and powers of the Director-General
Section 16
20
Office of National Intelligence Bill 2018
No. , 2018
(2) The Director-General must inform the Prime Minister:
1
(a) if the Director-General decides that an assessment is not to be
2
a national assessment under paragraph (1)(d); and
3
(b) of the matter or matters on which there is a difference of
4
opinion in relation to the assessment.
5
(3) The Director-General has power to do all things necessary or
6
convenient to be done for or in connection with the performance of
7
the Director-General's functions.
8
(4) The Director-General must perform the Director-General's
9
functions and powers in ways that do not inappropriately impact
10
on, or encroach on the functions, powers and responsibilities of:
11
(a) an intelligence agency; or
12
(b) an agency with an intelligence role or function; or
13
(c) a Department in relation to an intelligence agency or agency
14
with an intelligence role or function in the same portfolio as
15
the Department; or
16
(d) a person who holds any office or appointment under a law of
17
the Commonwealth, being an office or appointment that
18
relates to an agency within the national intelligence
19
community or the national intelligence community more
20
generally.
21
(5) In particular, the Director-General's functions and powers do not
22
include the following:
23
(a) directing an intelligence agency or an agency with an
24
intelligence role or function to:
25
(i) carry out operational activities; or
26
(ii) allocate resources, or use particular methods, when
27
carrying out such operational activities;
28
(b) conducting inquiries into individual complaints about the
29
activities of:
30
(i) an intelligence agency; or
31
(ii) an agency with an intelligence role or function;
32
(c) directing the content of, or conclusions reached in, any
33
intelligence communicated, or any advice given or
34
assessments or reports prepared, by:
35
Director-General of National Intelligence and staff of ONI Part 3
Functions and powers of the Director-General Division 1
Section 17
No. , 2018
Office of National Intelligence Bill 2018
21
(i) an intelligence agency; or
1
(ii) an agency with an intelligence role or function;
2
(d) inquiring into the legality, propriety or integrity of activities
3
undertaken by:
4
(i) an intelligence agency; or
5
(ii) an agency with an intelligence role or function.
6
(6) To avoid doubt, the reference to directing in paragraphs (5)(a) and
7
(c) is not limited to directions given by the Director-General under
8
section 20.
9
17 Prime Minister to be kept informed on matters relating to the
10
national intelligence community
11
The Director-General must keep the Prime Minister informed on
12
matters relating to the national intelligence community.
13
18 Leader of Opposition to be kept informed on significant
14
intelligence matters
15
The Director-General must consult regularly with the Leader of the
16
Opposition in the House of Representatives for the purpose of
17
keeping the Leader of the Opposition informed on matters relating
18
to intelligence that the Director-General considers significant.
19
19 Special responsibilities of the Director-General
20
The Director-General must take all reasonable steps to ensure that:
21
(a) ONI is kept free from any influences or considerations not
22
relevant to its functions; and
23
(b) nothing is done that might lend colour to any suggestion that
24
ONI is concerned to further or protect the interests of any
25
particular section of the community, or with any matters
26
other than the performance of its functions.
27
20 Director-General may give directions
28
(1) If the Director-General considers it necessary to enable ONI to
29
perform its function under paragraph 7(1)(a) (to lead the national
30
Part 3 Director-General of National Intelligence and staff of ONI
Division 1 Functions and powers of the Director-General
Section 20
22
Office of National Intelligence Bill 2018
No. , 2018
intelligence community), the Director-General may give written
1
directions to:
2
(a) for the national intelligence community as a whole--the head
3
of each agency within the community; or
4
(b) for a class of agencies within the national intelligence
5
community--the head of each agency within the class; or
6
(c) the head of a particular intelligence agency or agency with an
7
intelligence role or function.
8
Note:
The Director-General and ONI must perform functions in ways that do
9
not inappropriately impact on, or encroach on, the functions and
10
responsibilities of intelligence agencies, see sections 10 and 16. In
11
particular, for matters on which directions may not be given: see
12
subsections 10(2) and 16(5).
13
(2) Before giving a direction, the Director-General must consult with:
14
(a) the head of any agency mentioned in subsection (1) that
15
would be affected by the proposed direction; and
16
(b) if AGO would be affected by the proposed direction--the
17
head of AGO and the Secretary of the Defence Department;
18
and
19
(c) if DIO would be affected by the proposed direction--the
20
head of DIO and the Secretary of the Defence Department.
21
(3) A direction given under this section in relation to an agency
22
mentioned in subsection (1) has no effect to the extent that:
23
(a) the direction is inconsistent with a direction given to the
24
agency or head of the agency by the Minister responsible for
25
the agency; or
26
(b) the direction is inconsistent with a statutory rule made by the
27
Minister responsible for the agency and applicable to the
28
agency; or
29
(c) compliance with the direction would be inconsistent with a
30
guideline given to the agency or head of the agency by the
31
Minister responsible for the agency; or
32
(d) compliance with the direction would be directly inconsistent
33
with obligations imposed on the agency or head of the
34
agency by any other law of the Commonwealth.
35
Director-General of National Intelligence and staff of ONI Part 3
Functions and powers of the Director-General Division 1
Section 21
No. , 2018
Office of National Intelligence Bill 2018
23
(4) Failure to comply with a direction given under this section cannot
1
result in any sanction or penalty being imposed on:
2
(a) an intelligence agency; or
3
(b) an agency with an intelligence role or function; or
4
(c) the head of an intelligence agency or an agency with an
5
intelligence role or function.
6
Note:
See also subsection 9(2).
7
(5) A direction given under this section is not a legislative instrument.
8
21 Director-General may issue guidelines
9
(1) To assist ONI's performance of its functions or the
10
Director-General's performance of the Director-General's
11
functions, the Director-General may, by written notice to the heads
12
of the agencies within the national intelligence community, issue
13
guidelines to be followed in relation to matters relevant to, or
14
affecting:
15
(a) the national intelligence community as a whole; or
16
(b) a class of agencies within the national intelligence
17
community.
18
Note:
The Director-General and ONI must perform functions in ways that do
19
not inappropriately impact on, or encroach on, the functions and
20
responsibilities of intelligence agencies: see sections 10 and 16. In
21
particular, for matters on which guidelines may not be issued: see
22
subsections 10(2) and 16(5).
23
(2) Before issuing guidelines, the Director-General must consult with:
24
(a) the heads of agencies within the national intelligence
25
community that would be affected by the proposed
26
guidelines; and
27
(b) if AGO would be affected by the proposed guidelines--the
28
head of AGO and the Secretary of the Defence Department;
29
and
30
(c) if DIO would be affected by the proposed guidelines--the
31
head of DIO and the Secretary of the Defence Department.
32
(3) Failure to comply with guidelines issued under this section cannot
33
result in any sanction or penalty being imposed on:
34
Part 3 Director-General of National Intelligence and staff of ONI
Division 1 Functions and powers of the Director-General
Section 22
24
Office of National Intelligence Bill 2018
No. , 2018
(a) an intelligence agency; or
1
(b) an agency with an intelligence role or function; or
2
(c) the head of an intelligence agency or an agency with an
3
intelligence role or function.
4
Note:
See also subsection 9(2).
5
(4) Guidelines issued under this section are not a legislative
6
instrument.
7
22 Requests for reports or assessments
8
For the purpose of obtaining assistance in forming policies or plans
9
by the Commonwealth Government, a Minister or prescribed
10
Commonwealth officer may request that ONI prepare a report or
11
make an assessment in accordance with paragraph 7(1)(c) or (d).
12
23 Consultation with National Assessments Board
13
(1) The Director-General must consult the National Assessments
14
Board in relation to each national assessment made by ONI, and if
15
practicable, before providing the assessment.
16
(2) If there is a significant difference of opinion between the
17
Director-General and the National Assessments Board in relation
18
to a national assessment, the Director-General and the Board must
19
endeavour to reach agreement.
20
(3) If the Director-General and the National Assessments Board are
21
unable to reach agreement, the Director-General must give a
22
statement to each person to whom the national assessment is
23
provided that sets out the matter on which there is a difference of
24
opinion.
25
Director-General of National Intelligence and staff of ONI Part 3
Appointment of the Director-General Division 2
Section 24
No. , 2018
Office of National Intelligence Bill 2018
25
Division 2--Appointment of the Director-General
1
24 Appointment
2
(1) The Director-General is to be appointed by the Governor-General
3
by written instrument, on a full-time basis.
4
Note:
The Director-General may be reappointed: see section 33AA of the
5
Acts Interpretation Act 1901.
6
(2) Before a recommendation is made to the Governor-General for the
7
appointment of a person as the Director-General, the Prime
8
Minister must consult with the Leader of the Opposition in the
9
House of Representatives.
10
25 Term of appointment
11
The Director-General holds office for the period specified in the
12
instrument of appointment. The period must not exceed 5 years.
13
26 Acting appointments
14
(1) The Prime Minister may, by written instrument, appoint a person to
15
act as the Director-General:
16
(a) during a vacancy in the office of Director-General (whether
17
or not an appointment has previously been made to the
18
office); or
19
(b) during any period, or during all periods, when the
20
Director-General:
21
(i) is absent from duty or from Australia; or
22
(ii) is, for any reason, unable to perform the duties of the
23
office.
24
Note:
For rules that apply to acting appointments: see sections 33AB and
25
33A of the Acts Interpretation Act 1901.
26
(2) Before the appointment of a person under subsection (1) to act as
27
the Director-General, the Prime Minister must consult with the
28
Leader of the Opposition in the House of Representatives, unless it
29
is impracticable to do so.
30
Part 3 Director-General of National Intelligence and staff of ONI
Division 3 Terms and conditions of appointment
Section 27
26
Office of National Intelligence Bill 2018
No. , 2018
Division 3--Terms and conditions of appointment
1
27 Remuneration and allowances
2
(1) The Director-General is to be paid the remuneration that is
3
determined by the Remuneration Tribunal. If no determination of
4
that remuneration by the Tribunal is in operation, the
5
Director-General is to be paid the remuneration that is prescribed
6
by the general rules.
7
(2) The Director-General is to be paid the allowances that are
8
prescribed by the general rules.
9
(3) This section has effect subject to the Remuneration Tribunal Act
10
1973.
11
28 Leave of absence
12
(1) The Director-General has the recreation leave entitlements that are
13
determined by the Remuneration Tribunal.
14
(2) The Prime Minister may grant the Director-General leave of
15
absence, other than recreation leave, on the terms and conditions as
16
to remuneration or otherwise that the Prime Minister determines.
17
29 Outside employment
18
The Director-General must not engage in paid work outside the
19
duties of the Director-General's office without the Prime
20
Minister's approval.
21
30 Resignation
22
(1) The Director-General may resign the Director-General's
23
appointment by giving the Governor-General a written resignation.
24
(2) The resignation takes effect on the day it is received by the
25
Governor-General or, if a later day is specified in the resignation,
26
on that later day.
27
Director-General of National Intelligence and staff of ONI Part 3
Terms and conditions of appointment Division 3
Section 31
No. , 2018
Office of National Intelligence Bill 2018
27
31 Termination of appointment
1
(1) The Governor-General may terminate the appointment of the
2
Director-General:
3
(a) for misbehaviour; or
4
(b) if the Director-General is unable to perform the duties of the
5
Director-General's office because of physical or mental
6
incapacity.
7
(2) The Governor-General may terminate the appointment of the
8
Director-General if:
9
(a) the Director-General:
10
(i) becomes bankrupt; or
11
(ii) applies to take the benefit of any law for the relief of
12
bankrupt or insolvent debtors; or
13
(iii) compounds with the Director-General's creditors; or
14
(iv) makes an assignment of the Director-General's
15
remuneration for the benefit of the Director-General's
16
creditors; or
17
(b) the Director-General is absent, except on leave of absence,
18
for 14 consecutive days or for 28 days in any 12 months; or
19
(c) the Director-General engages, except with the Prime
20
Minister's approval, in paid work outside the duties of the
21
Director-General's office (see section 29); or
22
(d) the Director-General fails, without reasonable excuse, to
23
comply with section 29 of the Public Governance,
24
Performance and Accountability Act 2013 (which deals with
25
the duty to disclose interests) or rules made for the purposes
26
of that section.
27
32 Other terms and conditions
28
The Director-General holds office on the terms and conditions (if
29
any) in relation to matters not covered by this Act that are
30
determined by the Governor-General.
31
Part 3 Director-General of National Intelligence and staff of ONI
Division 4 Staff of ONI
Section 33
28
Office of National Intelligence Bill 2018
No. , 2018
Division 4--Staff of ONI
1
33 Staff
2
(1) The staff of ONI are to be:
3
(a) persons engaged under the Public Service Act 1999; and
4
(b) such other persons, if any, as the Director-General considers
5
necessary for the performance of ONI's functions.
6
(2) For the purposes of the Public Service Act 1999:
7
(a) the Director-General and the APS employees assisting the
8
Director-General together constitute a Statutory Agency; and
9
(b) the Director-General is the Head of that Statutory Agency.
10
Staff of ONI who are not APS employees
11
(3) A person mentioned in paragraph (1)(b) is to be employed on the
12
terms and conditions that the Director-General determines in
13
writing. Although such a person is not employed under the Public
14
Service Act 1999, the Director-General must adopt the principles of
15
that Act in relation to the person to the extent to which the
16
Director-General considers they are consistent with the effective
17
performance of ONI's functions.
18
34 Consultants
19
The Director-General may, on behalf of the Commonwealth,
20
engage consultants to assist in the performance of ONI's functions.
21
35 Secondment of ONI employees
22
Secondment
23
(1) The Director-General may, in writing, arrange for a member of
24
ONI's staff to be seconded for a specified period to a body or
25
organisation whether within or outside Australia.
26
Director-General of National Intelligence and staff of ONI Part 3
Staff of ONI Division 4
Section 36
No. , 2018
Office of National Intelligence Bill 2018
29
Termination of secondment
1
(2) The Director-General may at any time, by notice given to the body
2
or organisation to which the member of ONI's staff is seconded
3
under subsection (1), terminate the secondment.
4
36 Secondment of persons to ONI
5
(1) The Director-General may, by written agreement with a body or
6
organisation (whether inside or outside Australia), arrange for a
7
person who is an officer, employee or other member of staff of the
8
body or organisation to be made available to ONI to perform
9
services in connection with the performance of its functions or the
10
exercise of its powers.
11
(2) The terms and conditions (including remuneration and allowances)
12
applicable to a person performing services under an agreement are
13
those specified in the agreement.
14
Part 4 Provisions relating to information
Division 1 Information gathering
Section 37
30
Office of National Intelligence Bill 2018
No. , 2018
Part 4--Provisions relating to information
1
Division 1--Information gathering
2
37 Requirement to provide information, documents or things to ONI
3
relating to international matters
4
(1) For the purpose of ONI performing its function under
5
paragraph 7(1)(c), the Director-General may make a written
6
request that a Commonwealth authority provide information,
7
documents or things in its possession that relate to:
8
(a) international matters of political, strategic or economic
9
significance to Australia; or
10
(b) domestic aspects relating to such international matters.
11
(2) Before making a written request of a Commonwealth authority
12
under subsection (1), the Director-General must:
13
(a) consult with the Commonwealth authority; and
14
(b) consider any concerns raised by the Commonwealth
15
authority, including concerns about:
16
(i) a contract, arrangement or understanding that would
17
prohibit or limit the Commonwealth authority's ability
18
to provide information, documents or things that would
19
need to be provided in response to a request; or
20
(ii) the need to provide personal information (within the
21
meaning of the Privacy Act 1988) in response to a
22
request.
23
(3) A Commonwealth authority must provide any information,
24
documents or things to ONI in response to a written request by the
25
Director-General under subsection (1), unless and to the extent that
26
a law of the Commonwealth, or of a State or Territory prohibits the
27
provision (however described) of the information, documents or
28
things.
29
Note:
For limits on the use that ONI may make of such information,
30
documents or things: see section 40.
31
Provisions relating to information Part 4
Information gathering Division 1
Section 38
No. , 2018
Office of National Intelligence Bill 2018
31
38 Ability to provide information, documents or things to ONI
1
relating to international or other matters
2
(1) For the purpose of ONI performing its function under
3
paragraph 7(1)(c) or (d), a Commonwealth authority may provide
4
to ONI information, documents or things that the head (however
5
described) of the Commonwealth authority considers relates to
6
matters of political, strategic or economic significance to Australia.
7
Note:
Even though a Commonwealth authority may voluntarily provide
8
information, documents or things under this section, the
9
Commonwealth authority may be required to provide the same
10
information, documents or things in response to a request made under
11
section 37.
12
(2) To avoid doubt, a Commonwealth authority may provide
13
information, documents or things to ONI under this section even if
14
doing so would not otherwise fall within the Commonwealth
15
authority's statutory functions.
16
39 Ability of agencies to provide information, documents or things
17
to ONI relating to its functions
18
(1) For the purpose of ONI performing its functions, an intelligence
19
agency or agency with an intelligence role or function may provide
20
to ONI information, documents or things that relate, or may relate,
21
to any of ONI's functions.
22
Note:
Even though an intelligence agency or agency with an intelligence
23
role or function may voluntarily provide information, documents or
24
things under this section, if the agency is a Commonwealth authority,
25
the agency may be required to provide the same information,
26
documents or things in response to a request made under section 37.
27
(2) To avoid doubt, an intelligence agency or agency with an
28
intelligence role or function may provide information, documents
29
or things to ONI under this section even if doing so would not
30
otherwise fall within the agency's statutory functions.
31
40 Use of information, documents or things
32
(1) If information, documents or things are provided to ONI under
33
section 37, the Director-General must ensure that the information,
34
Part 4 Provisions relating to information
Division 1 Information gathering
Section 41
32
Office of National Intelligence Bill 2018
No. , 2018
documents and things are only used for the purpose of ONI
1
performing its function under paragraph 7(1)(c), unless the head
2
(however described) of the relevant Commonwealth authority
3
gives written authorisation for the subsequent use of information,
4
documents or things in relation to:
5
(a) the performance of another of ONI's functions; or
6
(b) the exercise of ONI's powers; or
7
(c) the performance of the Director-General's functions; or
8
(d) the exercise of the Director-General's powers.
9
(2) To avoid doubt, ONI does not contravene subsection (1) in relation
10
to information, documents and things if:
11
(a) the information, a document or thing is mentioned or referred
12
to in any way in an assessment or report prepared under
13
paragraph 7(1)(c); and
14
(b) anything is done in relation to an assessment or report
15
prepared under paragraph 7(1)(c) that is otherwise allowed
16
by this Act or the general rules.
17
41 Protection of information, documents or things
18
(1) If information, documents or things are provided to ONI under this
19
Division by an intelligence agency or agency with an intelligence
20
role or function, the Director-General must make arrangements
21
with the head of the relevant agency for the protection of the
22
information, documents or things while they remain in ONI's
23
possession.
24
(2) If such arrangements are not made, ONI must take all reasonable
25
steps to ensure:
26
(a) the appropriate storage, access, use or further disclosure of
27
the information or documents, according to their sensitivity
28
or classification; and
29
(b) in relation to a thing:
30
(i) the appropriate storage, access or use of the thing; and
31
(ii) the appropriate further disclosure of information or
32
documents generated from the thing;
33
according to the thing's sensitivity or classification.
34
Provisions relating to information Part 4
Secrecy Division 2
Section 42
No. , 2018
Office of National Intelligence Bill 2018
33
(3) Subsection (2) is subject to section 40.
1
Division 2--Secrecy
2
42 Offence--communicating certain information
3
Communication of information or matter
4
(1) A person commits an offence if:
5
(a) the person communicates any information or matter that:
6
(i) was acquired or prepared by or on behalf of ONI in
7
connection with its functions; or
8
(ii) relates or related to the performance by ONI of its
9
functions; and
10
(b) the information or matter has come to the knowledge or into
11
the possession of the person by reason of:
12
(i) the person being, or having been, a staff member of
13
ONI; or
14
(ii) the person having entered into any contract, agreement
15
or arrangement with ONI; or
16
(iii) the person having been an employee or agent of another
17
person who has entered into a contract, agreement or
18
arrangement with ONI; and
19
(c) the communication was not made:
20
(i) to the Director-General or a staff member by the person
21
in the course of the person's duties as a staff member; or
22
(ii) to the Director-General or a staff member by the person
23
in accordance with a contract, agreement or
24
arrangement; or
25
(iii) by the person in the course of the person's duties as a
26
staff member, within the limits of authority conferred on
27
the person by the Director-General; or
28
(iv) with the approval of the Director-General or of a staff
29
member having the authority of the Director-General to
30
give such an approval.
31
Penalty: Imprisonment for 10 years.
32
Part 4 Provisions relating to information
Division 2 Secrecy
Section 43
34
Office of National Intelligence Bill 2018
No. , 2018
Exception--information or matter lawfully available
1
(2) Subsection (1) does not apply to information or matter that has
2
already been communicated or made available to the public with
3
the authority of the Commonwealth.
4
Note:
A defendant bears an evidential burden in relation to the matter in
5
subsection (2): see subsection 13.3(3) of the Criminal Code.
6
Exception--communication to IGIS officials
7
(3) Subsection (1) does not apply if the person communicates the
8
information or matter to an IGIS official for the purpose of the
9
IGIS official exercising a power, or performing a function or duty,
10
as an IGIS official.
11
Note:
A defendant bears an evidential burden in relation to the matter in
12
subsection (3): see subsection 13.3(3) of the Criminal Code.
13
Extended geographical jurisdiction
14
(4) Section 15.4 of the Criminal Code (extended geographical
15
jurisdiction--category D) applies to an offence against
16
subsection (1).
17
43 Offence--subsequent communications of certain information
18
(1) A person commits an offence if:
19
(a) the person has come to know or possess information or
20
matter other than by reason of:
21
(i) the person being, or having been, a staff member of
22
ONI; or
23
(ii) the person having entered into any contract, agreement
24
or arrangement with ONI; or
25
(iii) the person having been an employee or agent of another
26
person who has entered into a contract, agreement or
27
arrangement with ONI; and
28
(b) the information or matter:
29
(i) was acquired or prepared by or on behalf of ONI in
30
connection with its functions; or
31
Provisions relating to information Part 4
Secrecy Division 2
Section 43
No. , 2018
Office of National Intelligence Bill 2018
35
(ii) relates or related to the performance by ONI of its
1
functions; and
2
(c) the person communicates the information or matter; and
3
(d) the person:
4
(i) intends that the communication cause harm to national
5
security or endanger the health or safety of another
6
person; or
7
(ii) knows that the communication will, or is likely to, cause
8
harm to national security or endanger the health or
9
safety of another person.
10
Penalty: Imprisonment for 5 years.
11
Exception--information or matter lawfully available
12
(2) Subsection (1) does not apply to information or matter that has
13
already been communicated or made available to the public with
14
the authority of the Commonwealth.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (2): see subsection 13.3(3) of the Criminal Code.
17
Other exceptions
18
(3) Subsection (1) does not apply if the communication was:
19
(a) for the purposes of any legal proceedings arising out of or
20
otherwise related to this section or of any report of any such
21
proceedings; or
22
(b) in accordance with any requirement imposed by law; or
23
(c) to an IGIS official for the purpose of the IGIS official
24
exercising a power, or performing a function or duty, as an
25
IGIS official.
26
Note:
A defendant bears an evidential burden in relation to the matters in
27
subsection (3): see subsection 13.3(3) of the Criminal Code.
28
Extended geographical jurisdiction
29
(4) Section 15.4 of the Criminal Code (extended geographical
30
jurisdiction--category D) applies to an offence against
31
subsection (1).
32
Part 4 Provisions relating to information
Division 2 Secrecy
Section 44
36
Office of National Intelligence Bill 2018
No. , 2018
44 Offences--dealing with and making records
1
Unauthorised dealing with records
2
(1) A person commits an offence if:
3
(a) the person engages in any of the following conduct (the
4
relevant conduct):
5
(i) copying a record;
6
(ii) transcribing a record;
7
(iii) retaining a record;
8
(iv) removing a record;
9
(v) dealing with a record in any other manner; and
10
(b) the record was obtained by the person by reason of:
11
(i) the person being, or having been, a staff member of
12
ONI; or
13
(ii) the person having entered into any contract, agreement
14
or arrangement with ONI; or
15
(iii) the person having been an employee or agent of a
16
person who has entered into a contract, agreement or
17
arrangement with ONI; and
18
(c) the record:
19
(i) was acquired or prepared by or on behalf of ONI in
20
connection with its functions; or
21
(ii) relates to the performance by ONI of its functions; and
22
(d) the relevant conduct was not engaged in:
23
(i) in the course of the person's duties as a staff member; or
24
(ii) in accordance with a contract, agreement or
25
arrangement with ONI; or
26
(iii) by the person acting within the limits of authority
27
conferred on the person by the Director-General; or
28
(iv) with the approval of the Director-General or a staff
29
member having the authority of the Director-General to
30
give such an approval.
31
Penalty: Imprisonment for 3 years.
32
Provisions relating to information Part 4
Secrecy Division 2
Section 44
No. , 2018
Office of National Intelligence Bill 2018
37
Unauthorised recording of information or matter
1
(2) A person commits an offence if:
2
(a) the person makes a record of any information or matter; and
3
(b) the information or matter has come to the knowledge or into
4
the possession of the person by reason of:
5
(i) the person being, or having been, a staff member of
6
ONI; or
7
(ii) the person having entered into any contract, agreement
8
or arrangement with ONI; or
9
(iii) the person having been an employee or agent of a
10
person who has entered into a contract, agreement or
11
arrangement with ONI; and
12
(c) the information or matter:
13
(i) was acquired or prepared by or on behalf of ONI in
14
connection with its functions; or
15
(ii) relates to the performance by ONI of its functions; and
16
(d) the record was not made:
17
(i) in the course of the person's duties as a staff member; or
18
(ii) in accordance with a contract, agreement or
19
arrangement with ONI; or
20
(iii) by the person acting within the limits of authority
21
conferred on the person by the Director-General; or
22
(iv) with the approval of the Director-General or of a staff
23
member having the authority of the Director-General to
24
give such an approval.
25
Penalty: Imprisonment for 3 years.
26
Exception--record, information or matter lawfully available
27
(3) Subsection (1) does not apply to a record, and subsection (2) does
28
not apply to information or matter, that has already been
29
communicated or made available to the public with the authority of
30
the Commonwealth.
31
Note:
A defendant bears an evidential burden in relation to the matter in
32
subsection (3): see subsection 13.3(3) of the Criminal Code.
33
Part 4 Provisions relating to information
Division 2 Secrecy
Section 44
38
Office of National Intelligence Bill 2018
No. , 2018
Exception--dealing with or making record for IGIS officials
1
(4) Subsection (1) does not apply if the person deals with, and
2
subsection (2) does not apply if the person makes, the record for
3
the purpose of an IGIS official exercising a power, or performing a
4
function or duty, as an IGIS official.
5
Note:
A defendant bears an evidential burden in relation to the matter in
6
subsection (4): see subsection 13.3(3) of the Criminal Code.
7
Extended geographical jurisdiction
8
(5) Section 15.4 of the Criminal Code (extended geographical
9
jurisdiction--category D) applies to an offence against this section.
10
Alternative verdicts
11
(6) In a prosecution for an offence against subsection (1), the trier of
12
fact may find the defendant not guilty of that offence but guilty of
13
an offence against subsection (2) if:
14
(a) the trier of fact:
15
(i) is not satisfied that the defendant is guilty of the offence
16
against subsection (1); but
17
(ii) is satisfied beyond reasonable doubt that the defendant
18
is guilty of the offence against subsection (2); and
19
(b) the defendant has been accorded procedural fairness in
20
relation to that finding of guilt.
21
(7) In a prosecution for an offence against subsection (2), the trier of
22
fact may find the defendant not guilty of that offence but guilty of
23
an offence against subsection (1) if:
24
(a) the trier of fact:
25
(i) is not satisfied that the defendant is guilty of the offence
26
against subsection (2); but
27
(ii) is satisfied beyond reasonable doubt that the defendant
28
is guilty of the offence against subsection (1); and
29
(b) the defendant has been accorded procedural fairness in
30
relation to that finding of guilt.
31
Provisions relating to information Part 4
Secrecy Division 2
Section 45
No. , 2018
Office of National Intelligence Bill 2018
39
45 Instituting prosecutions for offences against this Division
1
(1) A prosecution under this Division may be instituted only by or
2
with the consent of:
3
(a) the Attorney-General; or
4
(b) a person acting under the Attorney-General's direction.
5
(2) However:
6
(a) a person charged with an offence against this Division may
7
be arrested, or a warrant for the person's arrest may be issued
8
and executed; and
9
(b) such a person may be remanded in custody or on bail;
10
even if the consent of the Attorney-General or a person acting
11
under the Attorney-General's direction has not been obtained, but
12
no further proceedings are to be taken until that consent has been
13
obtained.
14
(3) Nothing in subsection (1) or (2) prevents the discharging of the
15
accused if proceedings are not continued within a reasonable time.
16
46 Offences against this Division--IGIS officials
17
(1) A person does not commit an offence against this Division if:
18
(a) the person is an IGIS official; and
19
(b) the relevant conduct is engaged in by the person for the
20
purpose of exercising powers, or performing functions or
21
duties, as an IGIS official.
22
(2) In a prosecution for an offence against this Division, the defendant
23
does not bear an evidential burden in relation to the matter in
24
subsection (1) of this section, despite subsection 13.3(3) of the
25
Criminal Code.
26
Part 5 Administration
Division 1 National Assessments Board
Section 47
40
Office of National Intelligence Bill 2018
No. , 2018
Part 5--Administration
1
Division 1--National Assessments Board
2
47 National Assessments Board
3
(1) The National Assessments Board continues in existence.
4
(2) The National Assessments Board's functions are:
5
(a) to consider which assessments made by ONI are national
6
assessments; and
7
(b) to consider national assessments.
8
Note:
After the Board considers which assessments made by ONI are to be
9
national assessments, the Director-General decides whether they are:
10
see paragraph 16(1)(d).
11
48 Constitution
12
(1) The National Assessments Board consists of:
13
(a) the Director-General; and
14
(b) an official of the Department of the Prime Minister and
15
Cabinet; and
16
(c) an official of the Department of Foreign Affairs and Trade;
17
and
18
(d) an official of the Defence Department; and
19
(e) an official of the Department of Home Affairs; and
20
(f) an official of the Department of the Treasury; and
21
(g) a member of the Defence Force; and
22
(h) such other persons as the Prime Minister directs.
23
(2) For the purposes of a particular national assessment, the
24
Director-General may add one or more persons to the membership
25
of the National Assessments Board.
26
Administration Part 5
National Assessments Board Division 1
Section 49
No. , 2018
Office of National Intelligence Bill 2018
41
49 Holding of meetings
1
(1) The Director-General must hold such meetings as are necessary for
2
the efficient performance of the National Assessment Board's
3
functions.
4
(2) The Director-General may convene a meeting at any time.
5
50 Presiding at meetings
6
(1) The Director-General presides at all meetings of the National
7
Assessments Board.
8
(2) The Director-General may direct the procedure to be followed at a
9
meeting.
10
51 Officials to attend meetings
11
When a national assessment is under consideration by the National
12
Assessments Board at a meeting, the Director-General must take
13
reasonable steps to ensure that representatives of Departments and
14
agencies appropriate to the subject matter of the national
15
assessment are present.
16
Part 5 Administration
Division 2 Committees
Section 52
42
Office of National Intelligence Bill 2018
No. , 2018
Division 2--Committees
1
52 Committees
2
(1) The Director-General may establish committees to advise or assist
3
in the performance of ONI's functions.
4
(2) The Director-General may determine, in relation to a committee
5
established under this section:
6
(a) the committee's terms of reference; and
7
(b) the terms and conditions of appointment of the members of
8
the committee; and
9
(c) the procedures to be followed by the committee.
10
(3) The members of the committee (other than a member who is a
11
person mentioned in paragraph 6(2)(c)) are not officials for the
12
purposes of the Public Governance, Performance and
13
Accountability Act 2013.
14
(4) A determination made under subsection (2) is not a legislative
15
instrument.
16
Administration Part 5
Privacy rules Division 3
Section 53
No. , 2018
Office of National Intelligence Bill 2018
43
Division 3--Privacy rules
1
53 Privacy rules to protect Australians
2
(1) The Prime Minister must make rules (the privacy rules) regulating:
3
(a) the collection of information mentioned in paragraph 7(1)(g),
4
to the extent that information is identifiable information; and
5
(b) the communication, handling and retention by ONI of
6
identifiable information.
7
(2) The Prime Minister may make privacy rules dealing with other
8
matters if the Prime Minister considers it appropriate to do so.
9
(3) In making the privacy rules, the Prime Minister must have regard
10
to the need to ensure that the privacy of Australian citizens and
11
permanent residents is preserved as far as is consistent with the
12
proper performance by ONI of its functions.
13
(4) Before making the privacy rules, the Prime Minister must consult
14
with the Director-General, the Inspector-General of Intelligence
15
and Security and the Attorney-General, including by providing
16
those persons with a copy of the privacy rules the Prime Minister is
17
proposing to make.
18
(5) ONI must not collect or communicate identifiable information,
19
except in accordance with the privacy rules.
20
(6) The Inspector-General of Intelligence and Security must brief the
21
Parliamentary Joint Committee on Intelligence and Security on the
22
content and effect of the privacy rules if:
23
(a) the Committee requests the Inspector-General to do so; or
24
(b) the privacy rules change.
25
(7) To avoid doubt, the privacy rules may not do the following:
26
(a) create an offence or civil penalty;
27
(b) provide powers of:
28
(i) arrest or detention; or
29
(ii) entry, search or seizure;
30
(c) impose a tax;
31
Part 5 Administration
Division 3 Privacy rules
Section 53
44
Office of National Intelligence Bill 2018
No. , 2018
(d) set an amount to be appropriated from the Consolidated
1
Revenue Fund under an appropriation in this Act;
2
(e) directly amend the text of this Act.
3
(8) Privacy rules made under this section are not legislative
4
instruments.
5
Miscellaneous Part 6
Section 54
No. , 2018
Office of National Intelligence Bill 2018
45
Part 6--Miscellaneous
1
2
54 Delegation
3
(1) The Director-General may, by written instrument, delegate any of
4
the Director-General's functions or powers under this Act or the
5
general rules (other than those mentioned in subsection (2)) to a
6
person who holds, or performs the duties of, an SES position, or an
7
equivalent position, in ONI.
8
(2) Subsection (1) does not apply to the following functions and
9
powers:
10
(a) the power to give written directions under section 20;
11
(b) the power to issue guidelines under section 21;
12
(c) the power to make a written request under section 37.
13
55 General rules
14
(1) The Prime Minister may, by legislative instrument, make rules (the
15
general rules) prescribing matters:
16
(a) required or permitted by this Act to be prescribed by the
17
rules; or
18
(b) necessary or convenient to be prescribed for carrying out or
19
giving effect to this Act.
20
(2) To avoid doubt, the general rules may not do the following:
21
(a) create an offence or civil penalty;
22
(b) provide powers of:
23
(i) arrest or detention; or
24
(ii) entry, search or seizure;
25
(c) impose a tax;
26
(d) set an amount to be appropriated from the Consolidated
27
Revenue Fund under an appropriation in this Act;
28
(e) directly amend the text of this Act.
29