Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies if an agency head is satisfied that:
(a) there is, or is likely to be, an imminent risk to the safety of an Australian person who is outside Australia; and
(b) it is necessary or desirable to undertake an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on the person; and
(c) it is not reasonably practicable to obtain the person's consent to the agency producing that intelligence; and
(d) having regard to the nature and gravity of the risk, it is reasonable to believe that the person would consent to the agency producing that intelligence if the person were able to do so.
(2) The agency head may, orally or in writing, give an authorisation under this section for the activity, or series of activities, if the agency head is satisfied that, apart from paragraph 9(1A)(b):
(a) the facts of the case would justify the responsible Minister giving an authorisation under section 9 because the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and
(b) the responsible Minister would have given the authorisation.
(3) The authorisation is subject to any conditions specified by the agency head.
Agency head to record and notify
(4) As soon as practicable after giving the authorisation (but no later than 8 hours after the authorisation is given) the agency head must, orally or in writing, notify the responsible Minister of the authorisation.
(5) As soon as practicable after giving the authorisation (but no later than 48 hours after the authorisation is given) the agency head must:
(a) if the authorisation is given orally--ensure that the authorisation is recorded in writing; and
(b) ensure that a summary of the facts of the case that the agency head was satisfied justified giving the authorisation is recorded in writing; and
(c) give to the responsible Minister:
(i) a copy of the authorisation; and
(ii) a summary of the facts of the case that the agency head was satisfied justified giving the authorisation; and
(iii) an explanation of the Minister's obligation under subsection (6); and
(d) give to the Inspector - General of Intelligence and Security the documents referred to in subparagraphs (c)(i) and (ii); and
(e) if the Australian person is, or is likely to be, involved in an activity or activities that are, or are likely to be, a threat to security--give to the Attorney - General and the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister ) the documents referred to in subparagraphs (c)(i) and (ii).
(6) The responsible Minister must, as soon as practicable after being given documents under paragraph (5)(c), consider whether to cancel the authorisation under subsection (10).
(7) If the Attorney - General is required to be given documents under paragraph (5)(e), the responsible Minister must have regard to any advice given by the Attorney - General when making a decision under subsection (6).
Role of Inspector - General of Intelligence and Security
(8) Within 30 days after the Inspector - General of Intelligence and Security is given documents under paragraph (5)(d), the Inspector - General must:
(a) consider whether the agency head has complied with the requirements of this section; and
(b) provide the responsible Minister with a report on the Inspector - General's views of the extent of the compliance by the agency head with the requirements of this section; and
(c) provide to the Committee a copy of the conclusions in the report.
Period of effect of authorisation
(9) The authorisation ceases to have effect at the earliest of the following times:
(a) the end of 6 months, starting on the day the authorisation is given;
(b) if the authorisation specifies a time when the authorisation ceases to have effect--that time;
(c) if the responsible Minister cancels the authorisation under subsection (10)--the time of cancellation;
(d) if the agency head cancels the authorisation under subsection (12)--the time of cancellation;
(e) if an authorisation for the activity, or series of activities, is given under section 9, 9A or 9B--the time the authorisation under section 9, 9A or 9B is given.
Cancellation by responsible Minister
(10) The responsible Minister may, in writing, cancel the authorisation.
(11) If the responsible Minister cancels the authorisation under subsection (10), the Minister must, as soon as practicable, give written notice of the cancellation to:
(a) the Inspector - General of Intelligence and Security; and
(b) if the Attorney - General and the ASIO Minister are required to be given documents under paragraph (5)(e)--those Ministers.
(12) The agency head must, in writing, cancel the authorisation if the agency head is satisfied that:
(b) there is not likely to be;
a significant risk to the safety of the Australian person.
Note: The agency head may cancel the authorisation in other circumstances (see subsection 33(3) of the Acts Interpretation Act 1901 ).
(13) If the agency head cancels the authorisation under subsection (12), the agency head must, as soon as practicable, give written notice of the cancellation to:
(a) the responsible Minister; and
(b) the Inspector - General of Intelligence and Security; and
(c) if the Attorney - General and the ASIO Minister are required to be given documents under paragraph (5)(e)--those Ministers.
(14) An agency head may, in writing, delegate to a staff member (other than a consultant or contractor) all or any of the powers, functions or duties of the agency head under this section.
Note: See sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 on delegations.
(15) In exercising a power, performing a function or discharging a duty under a delegation under subsection (14), the delegate must comply with any written directions of the agency head.
Relationship with the Acts Interpretation Act 1901
(16) To avoid doubt, this section does not limit subsection 33(3) of the Acts Interpretation Act 1901 to the extent that it applies to an authorisation given under this section.
(17) The following are not legislative instruments:
(a) an authorisation given in writing under subsection (2);
(b) a written notice given under subsection (4), (11) or (13);
(c) a record made, or a summary or explanation given, under subsection (5);
(d) a report under subsection (8);
(e) a cancellation under subsection (10) or (12).