Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 32.
In this Schedule, unless the contrary intention appears:
"agency" means ASIO, ASIS, AGO, DIO, ASD, ONI, AFP or the Immigration and Border Protection Department.
"agency head" means:
(a) the Director - General of Security; or
(b) the Director - General of ASIS; or
(ba) the Director of AGO; or
(bb) the Director of DIO; or
(c) the Director - General of ASD; or
(d) the Director - General of National Intelligence; or
(e) the Commissioner of the AFP; or
(f) the Secretary of the Immigration and Border Protection Department.
"operationally sensitive information" means information:
(a) about sources of information, other operational assistance or operational methods available to ASIO, ASIS, AGO, DIO, ASD or ONI; or
(b) about particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, AGO, DIO or ASD; or
(c) provided by, or by an agency of, a foreign government where that government does not consent to the public disclosure of the information.
"responsible Minister" , in relation to the review of a matter, means the Minister responsible for the agency concerned in relation to that matter.
"staff member" , in relation to an agency, means a member of the staff of the agency (whether an employee of the agency, a member or special member of the agency (within the meaning of the Australian Federal Police Act 1979 ), a consultant or contractor to the agency, or a person who is made available by another Commonwealth or State authority or other person to perform services for the agency).
1B Application of provisions of Schedule to subcommittees
Parts 1 and 2 and clauses 20, 21 and 22 of this Schedule apply to a subcommittee appointed under clause 23 as if:
(a) references to the Committee included references to the subcommittee; and
(b) references to the Chair of the Committee included references to a member of the subcommittee authorised by the subcommittee for the purpose of the provision concerned.
1 Committee must not require certain information to be disclosed
The Committee must not require a person or body to disclose to the Committee operationally sensitive information or information that would or might prejudice Australia's national security or the conduct of Australia's foreign relations.
2 Power to obtain information and documents
(1) The Chair or another member authorised by the Committee may give a person written notice requiring the person to appear before the Committee to give evidence or to produce documents to the Committee.
(2) The notice must specify the day on which, and the time and place at which, the person is required to appear or to produce documents. The day must not be less than 5 days after the day on which the notice is given to the person.
(3) The notice must also specify the nature of the evidence or documents to be provided to the Committee, and in the case of documents, the form in which they are to be provided.
(4) A requirement under this clause must not be made of:
(a) an agency head; or
(b) a staff member or agent of an agency; or
(c) the Inspector - General of Intelligence and Security; or
(d) a member of the staff of the Inspector - General of Intelligence and Security.
(5) A requirement under this clause may only be made of a person if the Committee has reasonable grounds for believing that the person is capable of giving evidence or producing documents relevant to a matter that the Committee is reviewing or that has been referred to the Committee.
(7) The Commonwealth must pay a person who has been given a notice requiring the person to appear before the Committee such allowances for the person's travelling and other expenses as are prescribed.
3 Provision of information to Committee by agencies
(1) The Chair or another member authorised by the Committee may give a written notice to an agency head requiring him or her to appear before the Committee to give evidence or to produce documents to the Committee.
(2) The notice must specify the day on which, and the time and place at which, the agency head is required to appear or to produce documents. The day must not be less than 5 days after the day on which the notice is given to the agency head.
(3) The notice must also specify the nature of the evidence or documents to be provided to the Committee, and in the case of documents, the form in which they are to be provided.
(4) A requirement under this clause may only be made of the agency head if the Committee has reasonable grounds for believing that the agency head is capable of giving evidence or producing documents relevant to a matter that has been referred to the Committee.
(5) The evidence is to be given by:
(a) if the agency head nominates a staff member to give the evidence--the staff member or both the staff member and the agency head; or
(b) in any other case--the agency head.
(1) If:
(a) a person is about to give or is giving evidence to the Committee or is about to produce a document to the Committee (whether or not required to do so under clause 2 or 3); and
(b) a Minister responsible for an agency is of the opinion that, to prevent the disclosure of operationally sensitive information:
(i) the person (not being an agency head) should not give evidence before the Committee; or
(ii) the person should not give evidence before the Committee relating to a particular matter; or
(iii) in a case where a person has commenced to give evidence before the Committee:
(A) the person should not continue to give evidence before the Committee; or
(B) the person should not give, or continue to give, evidence relating to a particular matter before the Committee; or
(iv) the person should not produce documents to the Committee; or
(v) the person should not produce documents of a particular kind to the Committee;
the Minister may give to the presiding member of the Committee a certificate in relation to the matter stating the Minister's opinion.
(2) The Minister's certificate must also specify:
(a) in a case to which subparagraph (1)(b)(ii) or (v) applies--the matter in relation to which the Minister is satisfied that the person should not give, or continue to give, evidence, or specifying the kind of documents that the Minister is satisfied the person should not produce, as the case requires; and
(b) in a case to which sub - subparagraph (1)(b)(iii)(B) applies--the matter in relation to which the Minister is satisfied that the person should not give, or continue to give, evidence.
(3) The Minister must give a copy of a certificate under subclause (1) to the President of the Senate, to the Speaker of the House of Representatives and to the person required to give evidence or produce documents.
(4) A decision of the Minister under subclause (1) must not be questioned in any court or tribunal.
(5) Where the Minister gives a certificate under subclause (1) in relation to a person:
(a) if the certificate states that the person should not give, or continue to give, evidence before the Committee--the Committee must not receive, or continue to receive, as the case may be, evidence from the person; or
(b) if the certificate states that the person should not give, or continue to give, evidence before the Committee relating to a particular matter--the Committee must not receive, or continue to receive, as the case may be, evidence from the person relating to that matter; or
(c) if the certificate states that the person should not produce documents, or documents of a particular kind, to the Committee--the Committee must not receive documents, or documents of that kind, as the case may be, from the person.
(1) The Committee may take evidence on oath or affirmation.
(2) The member presiding may administer an oath or affirmation to a witness appearing before the Committee.
(3) The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.
(4) To avoid doubt, the Committee is not to be taken to be an Australian court for the purposes of the Evidence Act 1995 .
6 Publication of evidence or contents of documents
(1) Subject to this clause, the Committee may disclose or publish, or authorise the disclosure or publication of:
(a) any evidence taken by the Committee; or
(b) the contents of any document produced to the Committee.
(2) If the evidence is taken, or the document is produced, in a review conducted in private, the Committee must not disclose or publish, or authorise the disclosure or publication of the evidence or the contents of the document without the written authority of:
(a) if the person who gave the evidence or produced the document is a staff member of an agency--the agency head; or
(b) in any other case--the person who gave the evidence or produced the document.
(3) Subclause (2) does not apply:
(a) if the evidence, or the contents of the document, have already been lawfully disclosed or published; or
(b) in relation to a matter of which the Committee has become aware otherwise than because of the giving of any evidence before, or the production of any document to, the Committee.
(4) The Committee must not disclose or publish, or authorise the disclosure or publication of, the evidence, or the contents of the document, if the disclosure or publication would disclose a matter that the Committee is not, under clause 7, permitted to disclose in a report to a House of the Parliament.
(5) The Committee may obtain the advice of the responsible Minister or responsible Ministers concerned as to whether the disclosure or publication might disclose a matter of that kind.
(6) This clause has effect despite section 2 of the Parliamentary Papers Act 1908 .
(7) If the evidence, or the contents of the document, are disclosed or published under this clause, section 4 of the Parliamentary Papers Act 1908 applies to the disclosure or publication as if it were a publication under an authority given under section 2 of that Act.
7 Restrictions on disclosure to Parliament
(1) The Committee must not disclose in a report to a House of the Parliament:
(a) the identity of a person who is or has been a staff member of ASIO or ASIS or an agent of ASIO, ASIS, AGO or ASD; or
(b) any information from which the identity of such a person could reasonably be inferred; or
(c) operationally sensitive information or information that would or might prejudice:
(i) Australia's national security or the conduct of Australia's foreign relations; or
(ii) the performance by an agency of its functions.
(2) An agency head may determine that paragraphs (1)(a) and (b) do not apply to the identification of specified staff members or agents of his or her agency, and the determination has effect accordingly.
(3) The Committee must obtain the advice of the responsible Minister or responsible Ministers concerned as to whether the disclosure of any part of the report would or might disclose a matter referred to in subclause (1).
(4) The Committee must not present a report of the Committee to a House of the Parliament if a responsible Minister concerned has advised that the report or a part of the report would or might disclose such a matter.
(1) If:
(a) any evidence or document about a matter has been taken by or produced to the Committee as constituted at a time; and
(b) either of the following happens before the Committee reports on the matter:
(i) the Committee as so constituted ceases to exist;
(ii) the constitution of the Committee changes;
the Committee as constituted at a later time, whether during the same or another Parliament, may consider the evidence or document as if the evidence or document had been taken by or produced to it.
(2) Clause 9 applies to each member of the later Committee as if the evidence or document had been taken or produced to that Committee.
9 Offences relating to publishing or disclosing evidence or documents
(1) A person (including a member) commits an offence if:
(a) the person discloses or publishes any evidence taken by, or the contents of any document produced to, the Committee in a review conducted in private; and
(b) the disclosure or publication is not authorised in writing by:
(i) if the person who gave the evidence or produced the document is a staff member of an agency--the agency head; or
(ii) in any other case--the person who gave the evidence or produced the document; and
(c) the disclosure or publication is of evidence, or is of the contents of a document, that has not already been lawfully disclosed or published.
(2) Subclause (1) does not apply to the disclosure or publication by a person of a matter of which the person has become aware otherwise than because of the giving of any evidence before, or the production of any document to, the Committee.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(3) Subclause (1) has effect despite section 2 of the Parliamentary Papers Act 1908 .
(4) In this clause:
"Committee" includes the Parliamentary Joint Committee on the Australian Security Intelligence Organisation.
Note: The Parliamentary Joint Committee on the Australian Security Intelligence Organisation (established under the Australian Security Intelligence Organisation Act 1979 ) ceased to exist when the Parliamentary Joint Committee on ASIO, ASIS and DSD was established. However, the records of the earlier Committee were transferred to the Parliamentary Joint Committee on ASIO, ASIS and DSD.
10 Offences relating to giving evidence or producing documents
(1) A person who has been given a notice requiring the person to appear before the Committee commits an offence if the person:
(a) fails to attend as required by the notice; or
(b) having not been excused or released by the Committee, fails to attend and report from day to day; or
(c) refuses or fails to be sworn or to make an affirmation; or
(d) refuses or fails to answer a question, not being a question about a matter in respect of which a certificate has been issued under clause 4, that the Committee requires the person to answer.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(2) Subclause (1) applies to a staff member who is nominated by an agency head under subclause 3(5) to appear before the Committee to give evidence.
(3) Paragraph (1)(d) does not apply if the answer to the question would tend to incriminate the person.
(4) A person who has been given a notice requiring the person to produce a document, not being a document in respect of which a certificate has been issued under clause 4, to the Committee commits an offence if the person refuses or fails to produce the document.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(5) Subclause (4) does not apply if the producing of the document would tend to incriminate the person.
(6) A person commits an offence if the person:
(a) gives evidence to the Committee; and
(b) does so knowing that the evidence is false or misleading in a material particular.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(1) A person who causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:
(a) not attend as a witness before the Committee; or
(b) give false evidence or a falsified document to the Committee; or
(c) withhold true evidence or a document from the Committee;
commits an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(2) A person who otherwise improperly influences another person with the intention that the other person or a third person will:
(a) not attend as a witness before the Committee; or
(b) give false evidence or a falsified document to the Committee; or
(c) withhold true evidence or a document from the Committee;
commits an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(3) A person who causes or threatens to cause any detriment to another person because that other person or a third person appeared before the Committee or produced a document to the Committee commits an offence.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(1) A person who is or has been a member, or a member of the staff, of the Committee commits an offence if the person, directly or indirectly:
(a) makes a record of, or discloses or communicates to a person, any information acquired because of holding the office or employment; or
(b) produces to a person a document provided to the Committee for the purposes of enabling the Committee to perform its functions;
and the action of the person is not carried out for the purposes of enabling the Committee to perform its functions.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) A person who is or has been a member, or a member of the staff, of the Committee must not be required to:
(a) produce in a court a document of which he or she has custody, or to which he or she has access, because of his or her position as a member, or a member of the staff, of the Committee; or
(b) disclose or to communicate to a court any information obtained by him or her because of such a position.
(3) In this clause:
"produce" includes permit access to.
A prosecution for an offence against this Part can be instituted only by the Attorney - General or with the Attorney - General's consent.
(1) The members who are members of the House of Representatives must be appointed by resolution of the House on the nomination of the Prime Minister.
(2) Before nominating the members, the Prime Minister must consult with the Leader of each recognised political party that is represented in the House and does not form part of the Government.
(3) The members who are Senators must be appointed by resolution of the Senate on the nomination of the Leader of the Government in the Senate.
(4) Before nominating the members, the Leader of the Government in the Senate must consult with the Leader of each recognised political party that is represented in the Senate and does not form part of the Government.
(5) In nominating the members, the Prime Minister and the Leader of the Government in the Senate must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament.
(6) A person is not eligible for appointment as a member if the person is:
(a) a Minister; or
(b) the President of the Senate; or
(c) the Speaker of the House of Representatives.
(1) A member holds office during the pleasure of the House of the Parliament by which the member was appointed.
(2) A member ceases to hold office as a member:
(a) when the House of Representatives expires by the passing of time or is dissolved; or
(b) if the person becomes the holder of an office specified in any of the paragraphs of subclause 14(6); or
(c) if the person ceases to be a member of the House of the Parliament by which the person was appointed; or
(d) if the person resigns the office.
(3) A member who is a Senator may resign his or her office by giving a signed notice of resignation to the President of the Senate.
(4) A member who is a member of the House of Representatives may resign his or her office by giving a signed notice of resignation to the Speaker of the House of Representatives.
(5) Either House of the Parliament may appoint one of its members to fill a vacancy among the members of the Committee appointed by that House.
(1) There must be a Chair of the Committee who must be a Government member elected by the members from time to time.
(2) The Chair holds office during the pleasure of the Committee.
(3) A person holding office as Chair ceases to hold the office if:
(a) the person ceases to be a member; or
(b) the person resigns the office.
(4) A person holding office as Chair may resign the office by giving a signed notice of resignation to a meeting of the Committee.
(1) There must be a Deputy Chair of the Committee who must be a member elected by the members from time to time.
(2) The Deputy Chair holds office during the pleasure of the Committee.
(3) A person holding office as Deputy Chair ceases to hold the office if:
(a) the person ceases to be a member; or
(b) the person resigns the office.
(4) A person holding office as Deputy Chair may resign the office by giving a signed notice of resignation to a meeting of the Committee.
(1) The Committee may meet at such times and, subject to subclause (3), at such places in Australia as the Committee decides by resolution or, subject to a resolution of the Committee, as the Chair decides.
(2) The Committee may meet and transact business even though the Parliament has been prorogued.
(3) Before the Committee or the Chair decides a place of meeting, the Chair must obtain advice from each of the agency heads as to the suitability of the place.
(4) The Chair must preside at all meetings of the Committee at which he or she is present.
(5) If:
(a) the Chair is not present at a meeting of the Committee; and
(b) either:
(i) the meeting is one at which a question is to be decided by voting, or could reasonably be expected to be so decided; or
(ii) throughout a continuous period of more than one month immediately preceding the day of the meeting, the Chair was absent from duty or from Australia, or was for any reason unable to perform the duties of his or her office as Chair;
the members present are to appoint a Government member to preside.
(5A) If:
(a) the Chair is not present at a meeting of the Committee; and
(b) the members are not required by subclause (5) to appoint a Government member to preside;
then:
(c) if the Deputy Chair is present at the meeting--the Deputy Chair is to preside; or
(d) if the Deputy Chair is not present at the meeting--the members present are to appoint a member to preside.
(5B) A member who presides at a meeting of the Committee under subclause (5) or (5A) may exercise, in relation to the meeting and any matter arising out of the meeting, any of the powers of the Chair.
(6) The Committee must keep minutes of its proceedings.
(1) At a meeting of the Committee, a quorum is constituted if:
(a) at least 7 members are present; and
(b) subject to subclause (2), a majority of the members present are Government members.
(2) There may be an equal number of Government members and non - Government members if the presiding member is a Government member.
(1) A question arising at a meeting is to be decided by a majority of the votes of the members present and voting.
(2) The member presiding at the meeting has a deliberative vote.
(3) The member presiding at the meeting has a casting vote if votes are equal.
(1) The proceedings of the Committee are to be conducted in the manner determined by the Committee.
(2) The Committee must not conduct a review in public without the approval of:
(a) the Minister responsible for ASIO; and
(b) the Minister responsible for ASIS; and
(c) the Minister responsible for AGO, DIO and ASD; and
(d) the Minister responsible for ONI.
(3) At a review conducted in private, the Committee may give directions as to the persons who may be present. In giving such directions, the Committee must have regard to the requirements of security and any other matters the Committee thinks fit.
21 Staff of the Committee must be cleared for security purposes
Each member of the staff of the Committee must be cleared for security purposes to the same level and at the same frequency as staff members of ASIS.
22 Protection of information and documents
(1) The Committee must make arrangements acceptable to all of the agency heads for the security of any information held and any records made by the Committee.
(2) The Committee must ensure that any documents having a national security classification provided to the Committee are returned as soon as possible after the members have examined them.
(1) The Committee may appoint one or more subcommittees of at least 3 of its members to inquire into and report to the Committee upon such matters with which the Committee is concerned as the Committee directs.
(2) A subcommittee must report in writing to the Committee as soon as practicable on each matter referred to that subcommittee by the Committee.
(3) A subcommittee may sit at any time, including at a time when the Committee is sitting.
(1) A member of a subcommittee holds office during the pleasure of the Committee.
(2) A member of a subcommittee ceases to hold office if:
(a) the person ceases to be a member of the Committee; or
(b) the person resigns the office.
(3) A member of a subcommittee may resign his or her office by giving a signed notice of resignation to the Chair of the Committee.
(1) A subcommittee may determine matters relating to the operation of the subcommittee, except as mentioned in subsection (2).
(2)
If the Chair of the Committee gives a direction to a subcommittee in relation
to the operation of the subcommittee, the subcommittee must operate in
accordance with the direction.