Commonwealth Numbered Acts Commonwealth Numbered ActsAustralian Security Intelligence Organisation Act 1979
1 Section 4 (definition of certified copy )
Repeal the definition, substitute:
"certified copy" means:
(a) in relation to a warrant--a copy of the warrant that has been certified in writing by the Director-General or a Deputy Director-General to be a true copy of the warrant; or
(b) in relation to an authorisation under section 27G--a copy of the authorisation that has been certified in writing by the Director-General or a Deputy Director-General to be a true copy of the authorisation; or
(c) in relation to an instrument varying or revoking a warrant or an authorisation under section 27G--a copy of the instrument that has been certified in writing by the Director-General or a Deputy Director-General to be a true copy of the instrument.
2 Before section 22
Insert:
3 Section 22
Insert:
"communication in transit" means a communication (within the meaning of the Telecommunications Act 1997 ) passing over a telecommunications network (within the meaning of that Act).
4 Section 22 (definition of computer )
Repeal the definition, substitute:
"computer" means all or part of:
(a) one or more computers; or
(b) one or more computer systems; or
(c) one or more computer networks; or
(d) any combination of the above.
5 Section 22
Insert:
"device" includes instrument, apparatus and equipment.
"enhancement equipment" , in relation to a surveillance device, means equipment capable of enhancing a signal, image or other information obtained by the use of the surveillance device.
"identified person warrant" means a warrant issued under section 27C.
"install" includes attach and apply.
6 Section 22 (definition of listening device )
Repeal the definition, substitute:
"listening device" means any device capable of being used, whether alone or in conjunction with any other device, to overhear, record, monitor or listen to sounds, signals or a conversation, or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome that impairment and permit that person to hear only sounds ordinarily audible to the human ear.
7 Section 22
Insert:
"maintain" , in relation to a surveillance device, includes adjust, improve, relocate, repair, service and replace the device.
"object" means:
(a) a vehicle, aircraft, vessel or other means of transportation; or
(b) clothing or any other thing worn; or
(c) any other thing.
"optical surveillance device" means any device capable of being used, whether alone or in conjunction with any other device, to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.
"prejudicial activities" of a person means activities prejudicial to security that the person is engaged in, or is reasonably suspected by the Director-General of being engaged in, or of being likely to engage in.
"surveillance device" means:
(a) a listening device, an optical surveillance device or a tracking device; or
(b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a) or (c); or
(c) a device of a kind prescribed by regulation for the purposes of this paragraph.
"surveillance device warrant" means a warrant issued under section 26.
"track" an object or person means be aware of the movement of the object or person from place to place.
"tracking device" means a device or substance that, when installed in or on an object, enables a person to track the object or a person using or wearing the object.
"use" of a surveillance device includes use of the device:
(a) to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person, or the activities of a person; or
(b) to track an object or person.
8 Section 24
Repeal the section, substitute:
24 Exercise of authority under warrant etc.
Who may exercise authority under warrant etc.
(1) The authority conferred by a relevant warrant or relevant device recovery provision may be exercised on behalf of the Organisation only by:
(a) the Director-General; or
(b) a person approved under subsection (2); or
(c) a person included in a class of persons approved under subsection (2).
Approval of persons authorised to exercise authority under warrant etc.
(2) The Director-General or a person appointed under subsection (3) may, in writing, approve a person, or a class of persons, as people authorised to exercise, on behalf of the Organisation, the authority conferred by relevant warrants or relevant device recovery provisions.
(3) The Director-General may, in writing, appoint a senior position-holder, or a class of senior position-holders, for the purposes of subsection (2).
Definitions
(4) In this section:
"relevant device recovery provision" means subsection 26B(5) or (6), 27A(3A) or (3B) or 27F(5).
"relevant warrant" means a warrant issued under this Division or under Division 3.
9 Before section 25
Insert:
Subdivision B -- Search warrants
10 After paragraph 25(4)(a)
Insert:
(aa) entering any premises for the purposes of gaining entry to or exiting the subject premises;
11 Paragraph 25(5)(a)
After "adding,", insert "copying,".
12 Subsection 25(6)
Repeal the subsection, substitute:
Certain acts not authorised
(6) Subsection (5) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct the lawful use by other persons of a computer or other electronic equipment, or a data storage device, found on the subject premises unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified under subsection (5); or
(b) cause any other material loss or damage to other persons lawfully using the computer, equipment or device.
13 Subsection 25(7) (heading)
Repeal the heading, substitute:
Warrant must provide for certain matters
14 Paragraph 25(7)(a)
After "any force", insert "against persons and things".
15 Before section 25A
Insert:
Subdivision C -- Computer access warrants
16 Subsection 25A(2)
Omit "particular".
17 At the end of subsection 25A(2)
Add:
Note: See section 22 for the definition of computer .
18 Subsection 25A(3)
Repeal the subsection, substitute:
(3) The target computer may be any one or more of the following:
(a) a particular computer;
(b) a computer on particular premises;
(c) a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).
Authorisation in warrant
(3A) The warrant must:
(a) be signed by the Minister; and
(b) authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the target computer; and
(c) if the target computer is or includes a particular computer--specify the computer; and
(d) if the target computer is or includes a computer on particular premises--specify the premises; and
(e) if the target computer is or includes a computer associated with, used by or likely to be used by, a person--specify the person (whether by name or otherwise).
19 After paragraph 25A(4)(aa)
Insert:
(aaa) entering any premises for the purposes of gaining entry to or exiting the specified premises;
20 Subparagraph 25A(4)(a)(i)
Omit "a computer", substitute "the target computer".
21 Paragraph 25A(4)(a)
After "access to data", insert "(the relevant data )".
22 Paragraph 25A(4)(a)
After "adding,", insert "copying,".
23 After paragraph 25A(4)(a)
Insert:
(ab) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so--using any other computer or a communication in transit to access the relevant data and, if necessary to achieve that purpose, adding, copying, deleting or altering other data in the computer or the communication in transit;
24 Subsection 25A(4) (note)
Omit "the target computer etc.", substitute "a computer etc.".
25 Subsection 25A(5)
Repeal the subsection, substitute:
Certain acts not authorised
(5) Subsection (4) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct a communication in transit or the lawful use by other persons of a computer unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
26 Subsection 25A(5A) (heading)
Repeal the heading, substitute:
Warrant must provide for certain matters
27 Paragraph 25A(5A)(a)
After "any force", insert "against persons and things".
28 Paragraph 25A(5A)(b)
Before "state whether", insert "if the warrant authorises entering premises--".
29 Sections 26 to 26C
Repeal the sections, substitute:
Subdivision D -- Use of surveillance devices
26 Issue of surveillance device warrants
Issue of surveillance device warrant
(1) If the Director-General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (3), the Minister may issue a warrant in accordance with this section.
(2) The warrant may be issued:
(a) in relation to one or more of the following:
(i) a particular person;
(ii) particular premises;
(iii) an object or class of object; and
(b) in respect of more than one kind of surveillance device; and
(c) in respect of more than one surveillance device of any particular kind.
Test for issue of warrant
(3) The Minister is only to issue the warrant if he or she is satisfied that:
(a) if the warrant is requested in relation to a particular person:
(i) the person is engaged in or is reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and
(ii) the use by the Organisation of a surveillance device in relation to that person will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security; and
(b) if the warrant is requested in relation to particular premises:
(i) those premises are used, likely to be used or frequented by a person engaged in or reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and
(ii) the use on behalf of the Organisation of a surveillance device in or on those premises will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security; and
(c) if the warrant is requested in relation to an object or class of object:
(i) that object, or an object of that class, is used or worn, or likely to be used or worn by a person engaged in or reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and
(ii) the use by the Organisation of a surveillance device in or on that object, or an object of that class, will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relevant to security.
(4) To avoid doubt, the identity of the person referred to in paragraph (3)(a) or subparagraph (3)(b)(i) or (c)(i) need not be known.
Warrant may be subject to restrictions or conditions
(5) The warrant is subject to any restrictions or conditions specified in it.
26A Requirements for surveillance device warrants
(1) A surveillance device warrant must:
(a) be signed by the Minister; and
(b) specify:
(i) the kind of surveillance device, or kinds of surveillance devices, authorised to be used; and
(ii) the date the warrant is issued; and
(iii) if the warrant is issued in relation to a particular person--the name of the person (if known) or the fact that the person's identity is unknown; and
(iv) if the warrant is issued in relation to particular premises--the premises; and
(v) if the warrant is issued in relation to an object or class of object--the object or class of object; and
(c) authorise the use of any force against persons and things that is necessary and reasonable to do the things authorised by the warrant; and
(d) state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.
(2) If a surveillance device warrant is issued in relation to particular premises that are vehicles, the warrant need only specify the class of vehicle in relation to which the use of the surveillance device is authorised.
(3) The surveillance device warrant must specify the period during which it is to remain in force. The period must not be more than 6 months, although the Minister may revoke the warrant before the period has expired.
(4) Subsection (3) does not prevent the issue of any further warrant.
26B What a surveillance device warrant authorises
Authorisation in warrant--particular person
(1) If a surveillance device warrant is issued in relation to a particular person, the warrant authorises the following:
(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant to:
(i) listen to, record, observe or monitor the words, sounds or signals communicated to or by the person, or the activities of the person; or
(ii) track the person;
(b) the installation, use and maintenance of a surveillance device of the kind specified in the warrant:
(i) in or on premises where the person is reasonably believed to be or likely to be; or
(ii) in or on any other premises specified in the warrant from which the activities of that person, or the words, sounds or signals communicated by or to that person, can be listened to, recorded, observed or monitored;
(c) entering the premises referred to in paragraph (b) for any of the purposes referred to in paragraph (a) or (b) or in subsection (4) or (5);
(d) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on any object used or worn, or likely to be used or worn, by the person;
(e) the entry into or onto, or the alteration of, the object referred to in paragraph (d);
(f) entering any premises in which the object referred to in paragraph (d) is or is likely to be found, for any of the purposes referred to in that paragraph or in subsection (4) or (5);
(g) entering any other premises, for the purposes of gaining entry to or exiting premises referred in to paragraph (b) or (f);
(h) any other thing reasonably incidental to any of the above.
Authorisation in warrant--particular premises
(2) If a surveillance device warrant is issued in relation to particular premises (the subject premises ), the warrant authorises the following:
(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant:
(i) in or on the subject premises; or
(ii) in or on any other premises specified in the warrant from which the activities of a person, or the words, sounds or signals communicated by or to a person, can be listened to, recorded, observed or monitored while the person is in or on the subject premises;
(b) entering the subject premises, or any other premises specified in the warrant, for any of the purposes referred to in paragraph (a) or subsection (4) or (5);
(c) entering any other premises, for the purposes of gaining entry to or exiting the subject premises or any other premises specified in the warrant;
(d) any other thing reasonably incidental to any of the above.
Authorisation in warrant--object or class of object
(3) If a surveillance device warrant is issued in relation to an object, or class of object, the warrant authorises the following:
(a) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object, or an object of the specified class;
(b) the entry into or onto, or alteration of, the specified object, or an object of the specified class;
(c) entering any premises where the object, or an object of the class, is reasonably believed to be or is likely to be for any of the purposes referred to in paragraph (a) or (b) or subsection (4) or (5);
(d) entering any other premises, for the purposes of gaining entry to or exiting premises referred to in paragraph (c);
(e) any other thing reasonably incidental to any of the above.
Authorisation in warrant--general
(4) A surveillance device warrant also authorises the following:
(a) the installation, use and maintenance of enhancement equipment in relation to the surveillance device;
(b) the temporary removal of an object from premises for the installation or maintenance of the surveillance device or enhancement equipment and the return of the object to the premises;
(c) the replacement of an object with an equivalent object for the purposes of the installation or maintenance of the surveillance device or enhancement equipment;
(d) the breaking open of any thing for the installation or maintenance of the surveillance device or enhancement equipment;
(e) the connection of the surveillance device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment;
(f) the connection of the surveillance device or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the device or equipment;
(g) the doing of any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;
(h) any other thing reasonably incidental to any of the above.
Recovery of surveillance devices
(5) If a surveillance device is installed or used under a surveillance device warrant, the Organisation is authorised to do any of the following:
(a) recover the surveillance device or any enhancement equipment in relation to the device;
(b) enter any premises where the surveillance device is reasonably believed to be, for the purpose of recovering the device or the equipment;
(c) enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (b);
(d) enter into or onto, or alter, an object for the purpose of recovering the device or the equipment;
(e) replace an object with an equivalent object for the purposes of recovering the device or the equipment;
(f) break open any thing for the purpose of recovering the device or the equipment;
(g) if the device or equipment is installed in or on an object--temporarily remove the object from any place where it is situated for the purpose of recovering the device or the equipment and returning the object to that place;
(h) use a nominal amount of electricity from any source to power the device or equipment;
(i) any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;
(j) use any force against persons and things that is necessary and reasonable to do any of the above;
(k) any other thing reasonably incidental to any of the above;
at the following time:
(l) at any time while the warrant is in force or within 28 days after it ceases to be in force;
(m) if the surveillance device is not recovered at a time mentioned in paragraph (l)--at the earliest time, after the 28 days mentioned in that paragraph, at which it is reasonably practicable to do the things concerned.
(6) If, for the purposes of subsection (5):
(a) the surveillance device is not recovered while the warrant is in force; and
(b) the surveillance device is a tracking device;
the Organisation is also authorised to use the surveillance device or any enhancement equipment in relation to the device solely for the purposes of the location and recovery of the device or equipment.
26C Use etc. of listening device without warrant
Either of the following (the first person ):
(a) an ASIO employee acting in the course of the ASIO employee's duties;
(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;
may install, use or maintain a listening device without warrant for any purpose involving listening to or recording words, sounds or signals being communicated by or to another person (the second person ) if:
(c) the first person is the communicator of the words, sounds or signals; or
(d) the second person intends, or should reasonably expect, those words, sounds or signals to be communicated to the first person, or to a class or group of persons in which the first person is included; or
(e) the first person does so with the implied or express consent of a person who is permitted under paragraph (c) or (d) to listen to or record the words, sounds or signals.
Note: This section does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).
26D Use etc. of optical surveillance device without warrant
Either of the following:
(a) an ASIO employee acting in the course of the ASIO employee's duties;
(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;
may install, use or maintain an optical surveillance device without warrant if the installation, use or maintenance of the device does not involve:
(c) entering premises without permission from the owner or occupier of the premises; or
(d) interference with any vehicle or thing without permission of the person having lawful possession or control of the vehicle or thing.
Note: This section does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).
26E Use etc. of tracking device without warrant
(1) Either of the following:
(a) an ASIO employee acting in the course of the ASIO employee's duties;
(b) an ASIO affiliate acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;
may install, use or maintain a tracking device without warrant for the purposes of tracking a person if the person consents to the installation, use or maintenance.
Note: This subsection does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).
(2) Either of the following:
(a) an ASIO employee acting in the course of the ASIO employee's duties;
(b) an ASIO affiliate, acting in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation;
may install, use or maintain a tracking device without warrant for the purposes of tracking an object if the person using the object consents to the installation, use or maintenance.
Note: This subsection does not apply to an ASIO affiliate specified in a determination under subsection 26F(1).
26F Director-General may determine that certain provisions do not apply to specified ASIO affiliates
(1) The Director-General may, by signed writing, determine that section 26C or 26D or subsection 26E(1) or (2) does not apply to:
(a) a specified ASIO affiliate; or
(b) a specified class of ASIO affiliates.
(2) A determination under subsection (1) has effect accordingly.
(3) A determination under subsection (1) is not a legislative instrument.
(4) The Director-General may, by signed writing, delegate the Director-General's power under this section to:
(a) a Deputy Director-General; or
(b) any other ASIO employee or ASIO affiliate who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 2.
(5) In exercising powers under a delegation, the delegate must comply with any written direction given by the Director-General to the delegate.
30 Before section 27
Insert:
Subdivision E -- Inspection of postal and other articles
31 Subsection 27(1)
Omit "this section or section 27A", substitute "this Division".
32 Before section 27A
Insert:
Subdivision F -- Foreign intelligence
33 Paragraph 27A(1)(a)
Omit "computer or a thing", substitute "computer or an object".
34 Paragraph 27A(1)(a)
Omit "26(3) or (4), 26B(3), 26C(3)", substitute "26B(1), (2), (3) or (4)".
35 Subsection 27A(1)
Omit "those things", substitute "those objects".
36 Paragraph 27A(2)(a)
After "any force", insert "against persons and things".
37 Paragraph 27A(2)(b)
Before "state whether", insert "if the warrant authorises entering premises--".
38 Paragraph 27A(3)(b)
Omit "26(3) or (4), 26B(3), 26C(3)", substitute "26B(1), (2), (3) or (4)".
39 Subsections 27A(3A) and (3B)
Repeal the subsections, substitute:
(3A) If a surveillance device is installed or used in accordance with a warrant under this section authorising the doing of acts referred to in subsection 26B(1) (2), (3) or (4), the Organisation is authorised to do any of the following:
(a) recover the surveillance device or any enhancement equipment in relation to the device;
(b) enter any premises where the surveillance device is reasonably believed to be, for the purpose of recovering the device or the equipment;
(c) enter any other premises for the purposes of gaining entry to or exiting the premises referred to in paragraph (b);
(d) enter into or onto, or alter, an object for the purpose of recovering the device or the equipment;
(e) replace an object with an equivalent object for the purposes of recovering the device or the equipment;
(f) break open any thing for the purpose of recovering the device or the equipment;
(g) if the device or equipment is installed in or on an object--temporarily remove the object from any place where it is situated for the purpose of recovering the device or the equipment and returning the object to that place;
(h) use a nominal amount of electricity from any source to power the device or equipment;
(i) any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;
(j) use any force against persons and things that is necessary and reasonable to do any of the above;
(k) any other thing reasonably incidental to any of the above;
at the following time:
(l) at any time while the warrant is in force or within 28 days after it ceases to be in force;
(m) if the surveillance device is not recovered at a time mentioned in paragraph (l)--at the earliest time, after the 28 days mentioned in that paragraph, at which it is reasonably practicable to do the things concerned.
(3B) If, for the purposes of subsection (3A):
(a) the surveillance device is not recovered while the warrant is in force; and
(b) the surveillance device is a tracking device;
the Organisation is also authorised to use the surveillance device or any enhancement equipment in relation to the device solely for the purposes of the location and recovery of the device or equipment.
40 Subsection 27A(5)
Repeal the subsection.
41 After section 27B
Insert:
Subdivision G -- Identified person warrants
27C Issue of identified person warrants
Issue of warrant
(1) If the Director-General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (2), the Minister may issue an identified person warrant in relation to a particular person.
Test for issue of warrant
(2) The Minister is only to issue an identified person warrant in relation to the person if he or she is satisfied that:
(a) the person is engaged in or is reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and
(b) the issuing of the warrant in relation to the person will, or is likely to, substantially assist the collection of intelligence relevant to security.
Requirements for warrant
(3) The identified person warrant must:
(a) be signed by the Minister; and
(b) identify the person:
(i) if the name of the person is known--by specifying the person's name; or
(ii) otherwise--by including other details sufficient to identify the person; and
(c) give conditional approval for the Organisation to do one or more of the following:
(i) access records or other things in or on premises;
(ii) access data held in computers;
(iii) use one or more kinds of surveillance devices;
(iv) access postal articles that are in the course of the post;
(v) access articles that are being delivered by a delivery service provider.
Note: Conditional approval does not, of itself, authorise the Organisation to do things under an identified person warrant. Things can only be done under the warrant if the Organisation is subsequently authorised to do those things: see sections 27D to 27H.
Duration of warrant
(4) An identified person warrant must specify the period during which it is to remain in force. The period must not be more than 6 months, although the Minister may revoke the warrant before the period has expired.
Issue of further warrants not prevented
(5) Subsection (4) does not prevent the issue of any further warrant.
Warrant may be subject to restrictions or conditions
(6) An identified person warrant is subject to any restrictions or conditions specified in it.
27D Authority under identified person warrant--search of premises and persons
(1) This section applies if an identified person warrant in relation to a person (the identified person ) gives conditional approval for the Organisation to access records or other things in or on premises.
Things that may be authorised under warrant
(2) Subject to subsection (3), the Minister or the Director-General may, on request, authorise the Organisation to do one or more of the following things under the identified person warrant in relation to one or more specified premises (the subject premises ):
(a) enter the subject premises;
(b) enter any premises for the purposes of gaining entry to or exiting the subject premises;
(c) search the subject premises for the purpose of finding records or other things relevant to the prejudicial activities of the identified person;
(d) open any safe, box, drawer, parcel, envelope or other container in or on the premises in which there is reasonable cause to believe that records or other things relevant to the prejudicial activities of the identified person may be found;
(e) conduct an ordinary search or a frisk search of the identified person or any other person if:
(i) the person is at or near the subject premises when the authority given by this subsection is exercised; and
(ii) there is reasonable cause to believe that the person has, on his or her person, records or other things that are relevant to the prejudicial activities of the identified person;
(f) inspect or otherwise examine any records or other things so found, and make copies or transcripts of any such record or other thing that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act;
(g) remove and retain any record or other thing so found, for the purposes of:
(i) inspecting or examining it; and
(ii) making copies or transcripts of it;
(h) if there is reasonable cause to believe that data relevant to the prejudicial activities of the identified person may be accessible by using a computer or other electronic equipment, or a data storage device, brought to or found on the subject premises--use the computer, equipment or device for the purpose of obtaining access to any such data and, if necessary to achieve that purpose, add, copy, delete or alter other data in the computer, equipment or device;
(i) if paragraph (h) applies--use the computer, equipment or device to do any of the following:
(i) inspect and examine any data to which access has been obtained;
(ii) convert any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act, into documentary form and removing any such document;
(iii) copy any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act, to any data storage device and remove the device;
(j) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;
(k) any other thing reasonably incidental to any of the above.
Test for authorisation
(3) The Minister or the Director-General is only to give an authorisation under subsection (2) if the Minister or the Director-General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant in relation to the subject premises will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.
Additional rules applying to authorisations
(4) An ordinary search or frisk search of a person that is authorised under paragraph (2)(e) must, if practicable, be conducted by a person of the same sex as the person being searched.
(5) A record or other thing retained as mentioned in paragraph (2)(g) may be retained:
(a) if returning the record or thing would be prejudicial to security--only until returning the record or thing would no longer be prejudicial to security; and
(b) otherwise--for only such time as is reasonable.
Certain acts not authorised
(6) Paragraph (2)(e) does not authorise a strip search or a search of a person's body cavities.
(7) Paragraphs (2)(h) to (k) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct the lawful use by other persons of a computer or other electronic equipment, or a data storage device, found on the subject premises unless the addition, deletion or alteration, or the doing of the thing, is necessary to do the things authorised under one or more of those paragraphs; or
(b) cause any other material loss or damage to other persons lawfully using the computer, equipment or device.
27E Authority under identified person warrant--computer access
(1) This section applies if an identified person warrant in relation to a person (the identified person ) gives conditional approval for the Organisation to access data held in computers.
Things that may be authorised under warrant
(2) Subject to subsection (4), the Minister or the Director-General may, on request, authorise the Organisation to do one or more of the following things under the identified person warrant in relation to a computer (the target computer ):
(a) enter specified premises for the purposes of doing the things authorised under this subsection;
(b) enter any premises for the purposes of gaining entry to or exiting the specified premises;
(c) use:
(i) the target computer; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of obtaining access to data (the relevant data ) that is relevant to the prejudicial activities of the identified person and is held in the target computer at any time while the authorisation is in force and, if necessary to achieve that purpose, add, copy, delete or alter other data in the target computer;
(d) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so--use any other computer or a communication in transit for the purpose referred to in paragraph (c) and, if necessary to achieve that purpose, add, copy, delete or alter other data in the computer or the communication in transit;
(e) copy any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act;
(f) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;
(g) any other thing reasonably incidental to any of the above.
Target computer
(3) For the purposes of subsection (2), the target computer may be any one or more of the following:
(a) a particular computer;
(b) a computer on particular premises;
(c) a computer associated with, used by or likely to be used by a person (whose identity may or may not be known).
Test for authorisation
(4) The Minister or the Director-General is only to give an authorisation under subsection (2) if the Minister or the Director-General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant in relation to the target computer will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.
Certain acts not authorised
(5) Subsection (2) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct a communication in transit or the lawful use by other persons of a computer unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things authorised under subsection (2); or
(b) cause any other material loss or damage to other persons lawfully using a computer.
27F Authority under identified person warrant--surveillance devices
(1) This section applies if an identified person warrant in relation to a person (the identified person ) gives conditional approval for the Organisation to use one or more kinds of surveillance devices.
Things that may be authorised under warrant
(2) Subject to subsection (3), the Minister or the Director-General may, on request, authorise the Organisation to do one or more of the following things under the identified person warrant:
(a) install, use and maintain surveillance devices of the kind specified in the conditional approval to:
(i) listen to, record, observe or monitor the words, sounds or signals communicated to or by the identified person, or the activities of the identified person; or
(ii) track the identified person;
(b) install, use and maintain surveillance devices of the kind specified in the conditional approval:
(i) in or on premises where the identified person is reasonably believed to be or likely to be; or
(ii) in or on any other specified premises from which the activities of the identified person, or the words, sounds or signals communicated by or to the identified person, can be listened to, recorded, observed or monitored;
(c) enter the premises referred to in paragraph (b) for any of the purposes referred to in paragraph (a) or (b) or in subsection 26B(4), (5) or (6) (as those subsections apply because of this section);
(d) install, use and maintain surveillance devices of the kind specified in the conditional approval in or on any object used or worn, or likely to be used or worn, by the identified person ;
(e) enter into or onto, or alter, an object referred to in paragraph (d);
(f) enter any premises in which an object referred to in paragraph (d) is or is likely to be found, for any of the purposes referred to in that paragraph or in subsection 26B(4), (5) or (6) (as those subsections apply because of this section);
(g) enter any other premises, for the purposes of gaining entry to or exiting premises referred to in paragraph (b) or (f);
(h) any other thing reasonably incidental to any of the above.
Test for authorisation
(3) The Minister or the Director-General is only to give an authorisation under subsection (2) if the Minister or the Director-General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.
(4) If an authorisation is given under subsection (2) in relation to a surveillance device, the identified person warrant under which the authorisation is given also authorises the Organisation to do the things mentioned in subsection 26B(4) in relation to the device.
(5) If the Organisation installs or uses a surveillance device under the identified person warrant, the Organisation is authorised to do the things mentioned in subsections 26B(5) and (6) in relation to the device.
(6) For the purposes of subsections (4) and (5) of this section, section 26B applies as if references in that section to a surveillance device warrant were references to an identified person warrant.
27G Authority under identified person warrant--inspection of postal articles
(1) This section applies if an identified person warrant in relation to a person (the identified person ) gives conditional approval for the Organisation to access postal articles while the articles are in the course of the post.
Things that may be authorised under warrant
(2) Subject to subsection (4), the Minister or the Director-General may, on request, authorise the Organisation to do one or more of the things mentioned in subsection (3) under the identified person warrant in relation to any of the following:
(a) articles posted by or on behalf of the identified person;
(b) articles addressed to the identified person;
(c) articles reasonably suspected by a person authorised to exercise the authority of the Organisation under the warrant to be intended to be received by the identified person.
(3) The things are as follows:
(a) inspect and make copies of the articles, or the covers of the articles;
(b) open the articles;
(c) inspect and make copies of the contents of the articles;
(d) any other thing reasonably incidental to any of the above.
Test for authorisation
(4) The Minister or the Director-General is only to give an authorisation under subsection (2) if the Minister or the Director-General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.
Rules relating to the Australian Postal Corporation
(5) If an authorisation is given under this section, the Director-General must, as soon as practicable:
(a) inform the Australian Postal Corporation of that fact; and
(b) give a certified copy of the authorisation to the Australian Postal Corporation.
(6) If either of the following is revoked:
(a) an authorisation under this section;
(b) the identified person warrant under which the authorisation is given;
the Director-General must:
(c) inform the Australian Postal Corporation of that fact; and
(d) give a certified copy of the instrument of revocation to the Australian Postal Corporation.
(7) The Australian Postal Corporation must provide all reasonable assistance to a person acting in accordance with an authorisation under this section.
Relationship with other laws
(8) Nothing in Part VIIA of the Crimes Act 1914 or the Australian Postal Corporation Act 1989 prohibits the doing of anything under or for the purposes of an authorisation under this section.
27H Authority under identified person warrant--inspection of delivery articles
(1) This section applies if an identified person warrant in relation to a person (the identified person ) gives conditional approval for the Organisation to access articles while the articles are being delivered by a delivery service provider.
Things that may be authorised under warrant
(2) Subject to subsection (4), the Minister or the Director-General may, on request, authorise the Organisation to do one or more of the things mentioned in subsection (3) in relation to any of the following:
(a) articles posted by or on behalf of the identified person;
(b) articles addressed to the identified person;
(c) articles reasonably suspected by a person authorised to exercise the authority of the Organisation under the warrant to be intended to be received by the identified person.
(3) The things are as follows:
(a) inspect and make copies of the articles, or the covers of the articles;
(b) open the articles;
(c) inspect and make copies of the contents of the articles;
(d) any other thing reasonably incidental to any of the above.
Test for authorisation
(4) The Minister or the Director-General is only to give an authorisation under subsection (2) if the Minister or the Director-General is satisfied, on reasonable grounds, that doing that thing or those things under the warrant will substantially assist the collection of intelligence relevant to the prejudicial activities of the identified person.
Definitions
(5) In this section:
"article" has the same meaning as in section 27AA.
"delivery service provider" has the same meaning as in section 27AA.
27J Authority under identified person warrants--general rules
Requests for authorisations
(1) A request for an authorisation under this Subdivision may be made:
(a) if the request is to the Minister--by the Director-General; or
(b) if the request is to the Director-General--by an ASIO employee or an ASIO affiliate.
(2) The request must specify the facts and other grounds on which the person making the request considers it necessary that the authorisation should be given.
Requirements for authorisations
(3) An authorisation under this Subdivision:
(a) must be in writing; and
(b) must identify the identified person warrant under which the authorisation is given; and
(c) must specify:
(i) for an authorisation under section 27D (search of premises or persons)--the subject premises; and
(ii) for an authorisation under section 27E (computer access)--the target computer; and
(iii) the thing or things that are authorised to be done; and
(iv) the restrictions or conditions (if any) to which the authorisation is subject; and
(v) the period during which the authorisation is in force; and
(d) must authorise the use of any force against persons and things that is necessary and reasonable to do the things covered by the authorisation; and
(e) if the authorisation authorises entering premises--must state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night.
(4) A restriction or condition specified in an authorisation must not be inconsistent with any restrictions or conditions specified in the identified person warrant under which the authorisation is given.
(5) For the purposes of subparagraph (3)(c)(v), the period:
(a) in the case of an authorisation under section 27D (search of premises and persons)--must not be more than 90 days; and
(b) in any case--must not end after the end of the period for which the identified person warrant under which the authorisation is given is in force.
When authorisations cease to be in force
(6) An authorisation under this Subdivision ceases to be in force at the earliest of the following times:
(a) the time the identified person warrant under which the authorisation is given ceases to be in force;
(b) the time it is revoked by the Minister or the Director-General;
(c) the time specified in the authorisation.
Other matters
(7) To avoid doubt, for the purposes of this Act, the authority conferred by an identified person warrant includes the authority conferred by an authorisation under this Subdivision under the warrant.
(8) To avoid doubt, nothing in this Subdivision prevents 2 or more authorisations under this Subdivision from being given under the same identified persons warrant at any time while the warrant is in force.
(9) An authorisation under this Subdivision is not a legislative instrument.
42 Before section 28
Insert:
Subdivision H -- General provisions relating to warrants
43 Paragraph 29(1)(a)
Omit "26B, 26C,".
44 After section 29
Insert:
29A Variation of warrants issued under this Division
(1) The Minister may, on request by the Director-General, vary a warrant issued under this Division (other than under section 29).
(2) The variation must be in writing.
(3) If the variation extends, or further extends, the period during which the warrant is in force, the total period during which the warrant is in force must not exceed:
(a) for a warrant issued under section 25--90 days; or
(b) for a warrant issued under section 25A, 26, 27, 27AA or 27C--6 months.
(4) The request by the Director-General must specify:
(a) the facts and other grounds on which the Director-General considers it necessary that the warrant should be varied; and
(b) where appropriate--the grounds on which the Director-General suspects a person of being engaged in or reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security.
(5) A warrant may be varied more than once under this section.
45 Section 30
Repeal the section, substitute:
30 Discontinuance of action before expiration of warrant
(1) Subject to subsection (3), if the Director-General is satisfied that the grounds on which a warrant under this Division was issued have ceased to exist, the Director-General must, as soon as practicable:
(a) inform the Minister of that fact; and
(b) take such steps as are necessary to ensure that action under the warrant is discontinued.
(2) For the purposes of paragraph (1)(b), action under a warrant :
(a) includes action under an authorisation given under an identified person warrant; but
(b) does not include the recovery of a surveillance device or any enhancement equipment in relation to the device.
(3) If:
(a) a surveillance device warrant was issued in relation to more than one of the matters mentioned in paragraph 26(2)(a); and
(b) the grounds on which the warrant was issued continue to exist for at least one of those matters;
subsection (1) applies only in relation to the matters for which the grounds have ceased to exist.
45A After section 31
Insert:
31A Notification requirements in relation to the use of force under warrant
(1) This section applies if a warrant issued under this Division authorises the use of force against persons to do the things authorised by the warrant.
(2) The Director-General must cause the Minister and the Inspector-General of Intelligence and Security to be notified if such force is used against a person in the execution of the warrant.
(3) The notification must be given:
(a) in writing; and
(b) as soon as practicable after such force is used.
46 After section 32
Insert:
33 Relationship with other laws
Computer access--relationship with the Telecommunications (Interception and Access) Act 1979
(1) Nothing in section 25A, 27A or 27E, or in a warrant or authorisation under those sections, authorises, for the purposes of the Telecommunications (Interception and Access) Act 1979 , the interception of a communication passing over a telecommunications system operated by a carrier or a carriage service provider.
Listening devices--relationship with the Telecommunications (Interception and Access) Act 1979
(2) Nothing in section 26B, 27A or 27F, or in a warrant or authorisation under those sections, applies to or in relation to the use of a listening device for a purpose that would, for the purposes of the Telecommunications (Interception and Access) Act 1979 , constitute the interception of a communication passing over a telecommunications system operated by a carrier or a carriage service provider.
Surveillance devices--interaction with other laws
(3) Despite any other law of the Commonwealth, a State or a Territory (including the common law), a person acting on behalf of the Organisation does not act unlawfully by installing, using or maintaining a surveillance device if the person does so:
(a) in accordance with a warrant issued under section 26, 27A or 27C; or
(b) in accordance with subsection 26B(5) or (6), section 26C, 26D, or 26E, or subsection 27A(3A) or (3B) or 27F(5).
46A Section 34
Before "The", insert "(1)".
46B At the end of section 34
Add:
(2) If:
(a) the warrant was issued under section 25, 25A, 27A, 27C or 29; and
(b) a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant;
the report must also include details of anything done that materially interfered with, interrupted or obstructed the lawful use by other persons of a computer or other electronic equipment, or a data storage device.
47 At the end of Division 2 of Part III
Add:
(1) Subject to subsection (2), the Director-General or a Deputy Director-General may issue a written certificate setting out such facts as he or she considers relevant with respect to acts or things done by, on behalf of, or in relation to, the Organisation:
(a) in connection with a relevant warrant; or
(b) in accordance with a relevant authorising provision.
(2) A certificate may be issued with respect to acts or things done in connection with:
(aa) a warrant issued under section 25, but only if the warrant authorises the doing of acts or things referred to in paragraph 25(5)(a), (b), (c) or (d), and only with respect to those acts or things; or
(a) a warrant issued under section 27A or 29, but only if the warrant authorises the doing of acts or things referred to in subsection 25(5) or section 25A or 26B, and only with respect to those acts or things; or
(b) a warrant issued under section 27C, but only if acts or things are authorised under paragraphs 27D(2)(h) to (k) or section 27E or 27F under the warrant, and only with respect to those acts or things.
(3) Without limiting subsection (1), the certificate may set out one or more of the following:
(a) if premises were entered under the relevant warrant or relevant authorising provision:
(i) details of the premises; or
(ii) the time of day or night the premises were entered;
(b) if data was accessed under the relevant warrant or relevant authorising provision--details of the computer, telecommunications facility, electronic equipment, data storage device or communication in transit used for the purpose of obtaining such access;
(c) if the warrant is a surveillance device warrant--the matters required to be specified under section 26A for the warrant;
(d) if one or more surveillance devices were installed, used or maintained under the relevant warrant or relevant authorising provision:
(i) details of the installation, use or maintenance of the surveillance device or devices; or
(ii) details of the installation, use or maintenance of any enhancement equipment in relation to the surveillance device; or
(iii) details of the processes and procedures employed to use the surveillance device or devices, or any enhancement equipment; or
(iv) details of acts or things done for the purposes of recovering the surveillance device or devices, or any enhancement equipment;
(e) details of things done under the relevant warrant or relevant authorising provision that were reasonably necessary to conceal the fact that things were done under the relevant warrant or relevant authorising provision;
(f) details of persons who exercised the authority given by the relevant warrant or relevant authorising provision;
(g) details of things done under the relevant warrant or relevant authorising provision that were reasonably incidental to any of the acts or things done by, on behalf of, or in relation to, the Organisation in connection with the relevant warrant or relevant authorising provision.
(4) In a proceeding, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.
(5) In this section:
"proceeding" means:
(a) a proceeding or proposed proceeding in a federal court, or in a court of a State or Territory; or
(b) a proceeding or proposed proceeding (including a hearing or examination, or proposed hearing or examination) by or before:
(i) a tribunal in Australia; or
(ii) any other body, authority or person in Australia having power to hear or examine evidence.
"relevant authorising provision" means subsection 26B(5) or (6), section 26C, 26D or 26E or subsection 27A(3A) or (3B) or 27F(5).
"relevant warrant" means a warrant issued under section 25, 25A, 26, 27A, 27C or 29.
Part 2 -- Consequential amendments
Telecommunications (Interception and Access) Act 1979
48 After paragraph 108(2)(c)
Insert:
(ca) accessing a stored communication under an authorisation given under a warrant in accordance with section 27E of the Australian Security Intelligence Organisation Act 1979 ; or
49 At the end of paragraph 108(2)(f)
Add:
(iv) authorisations given under warrants in accordance with section 27E of the Australian Security Intelligence Organisation Act 1979 ; or
Part 3 -- Application, transitional and savings provisions
50 Application, transitional and savings provisions
(1) Subject to this item, the amendments made by this Schedule do not apply in relation to:
(a) warrants requested before the commencement of this Schedule; or
(b) warrants issued before the commencement of this Schedule.
(2) If, immediately before the commencement of this Schedule, a person was approved under subsection 24(1) of the Australian Security Intelligence Organisation Act 1979 , the person is taken, after that commencement, to be a person approved under subsection 24(2) of that Act as amended by this Schedule.
(3) If, immediately before the commencement of this Schedule, a person was an authorising officer for the purposes of subsection 24(1) of the Australian Security Intelligence Organisation Act 1979 , the person is taken, after that commencement, to be a person appointed under subsection 24(3) of that Act as amended by this Schedule.
(4) Section 34AA of the Australian Security Intelligence Organisation Act 1979 , as inserted by this Schedule, applies in relation to:
(a) warrants issued, and authorisations given, after the commencement of this Schedule; and
(b) proceedings commenced after that commencement.
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