Intelligence Services Act 2001

In this Act, unless the contrary intention appears:

in relation to ASIS—the Director‑General of ASIS; and

in relation to AGO—the Director of AGO; and

in relation to ASD—the Director‑General of ASD.

an Australian citizen; or

a permanent resident.

an Agency within the meaning of the Public Service Act 1999; and

a Department within the meaning of the Parliamentary Service Act 1999; and

the Defence Force; and

a body (whether incorporated or not) established, or continued in existence, for a public purpose by or under a law of the Commonwealth; and

a body corporate in which the Commonwealth or a body referred to in paragraph (d) has a controlling interest.

a person who is a party to the ASD contract and who is responsible for the provision of services to ASD under the ASD contract; or

a subcontractor for the ASD contract.

search and rescue; or

emergency rescue; or

response to natural disasters.

the Inspector‑General of Intelligence and Security; or

a person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.

that is obtained by ASIS in the course of obtaining intelligence under subsection 6(1) (other than intelligence obtained solely in the course of obtaining intelligence under paragraph 6(1)(da)), by AGO in the course of obtaining intelligence under paragraph 6B(1)(a), (b) or (c) or by ASD in the course of obtaining intelligence under paragraph 7(1)(a); and

that is not intelligence of a kind referred to in those provisions.

intelligence obtained by ASIS under subsection 6(1) (other than intelligence obtained solely under paragraph 6(1)(da));

intelligence obtained by AGO under paragraph 6B(1)(a), (b) or (c);

intelligence obtained by ASD under paragraph 7(1)(a);

intelligence obtained or produced by DIO in the performance of its intelligence functions;

incidentally obtained intelligence.

The term intelligence functions in paragraph (ca) has its ordinary meaning, and does not have the meaning given by the definition of intelligence function in subsection 3(1).

interference by a foreign person or entity; or

reliance on inaccurate or false information.

a natural person who is a permanent resident within the meaning of the Australian Security Intelligence Organisation Act 1979; or

a body corporate incorporated under a law in force in a State or Territory, other than a body corporate whose activities one or more of the following controls, or is in a position to control, whether directly or indirectly:

a foreign power;

a natural person who is neither an Australian citizen nor a person covered by paragraph (a);

a group of natural persons, none of whom is an Australian citizen or a person covered by paragraph (a).

the arrest, charging or detention of suspected offenders; or

any other activity undertaken for the purposes of prosecuting, or for determining whether to prosecute, an offence.

For the definition of document, see section 2B of the Acts Interpretation Act 1901.

in relation to ACIC—the Minister responsible for ACIC; and

in relation to the AFP—the Minister responsible for the AFP; and

in relation to ASIO—the Minister responsible for ASIO; and

in relation to AUSTRAC—the Minister responsible for AUSTRAC; and

in relation to an agency—the Minister responsible for the agency; and

in relation to DIO—the Minister responsible for DIO; and

in relation to ONI—the Minister responsible for ONI; and

in relation to the Department of Home Affairs—the Minister administering the Australian Border Force Act 2015.

in relation to ASIO—a member of the staff of ASIO (whether an employee of ASIO, a consultant or contractor to ASIO, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIO); and

in relation to an agency—a member of the staff of the agency (whether an employee of the agency, 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); and

in relation to DIO—a member of the staff of that part of the Defence Department known as the Defence Intelligence Organisation, whether:

an employee, a consultant or contractor that works in that part of the Defence Department; or

a person who is made available by another Commonwealth authority, a State authority or other person to perform services for that part of the Defence Department.

a Department of State of a State or Territory or a Department of the Public Service of a State or Territory; and

a body (whether incorporated or not) established, or continued in existence, for a public purpose by or under a law of a State or Territory; and

a body corporate in which a State, Territory or a body referred to in paragraph (b) has a controlling interest.

who is a party to a contract (the subcontract):

with a contracted service provider for the ASD contract (within the meaning of paragraph (a) of the definition of contracted service provider); or

with a subcontractor for the ASD contract (under a previous application of this definition); and

who is responsible under the subcontract for the provision of services to ASD, or to a contracted service provider for the ASD contract, for the purposes (whether direct or indirect) of the ASD contract.

For the purposes of determining whether a body is an authority of another country, it does not matter whether:

the body is established by a law of the country; or

the body is connected with an internationally recognised government of the country.

a reference to the responsible Minister in relation to a relevant agency is a reference only to the most senior responsible Minister in relation to that agency; and

a reference to the Prime Minister or the Attorney‑General is a reference only to the Minister with that title; and

a reference to the Defence Minister is a reference only to the most senior Defence Minister; and

a reference to the Foreign Affairs Minister is a reference only to the most senior Foreign Affairs Minister; and

a reference to the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 is a reference only to the most senior such Minister; and

a reference to the Minister responsible for administering the Australian Border Force Act 2015 is a reference only to the most senior such Minister.

A reference to a Minister mentioned in this section may include a reference to a person acting as that Minister (see subsection 19(4) of the Acts Interpretation Act 1901).

Chapter 2 of the Criminal Code applies to all offences against this Act.

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Act.

The functions of ASIS are:

to obtain, in accordance with the Government’s requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and

to communicate, in accordance with the Government’s requirements, such intelligence; and

to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and

to conduct counter‑intelligence activities; and

to liaise with intelligence or security services, or other authorities, of other countries; and

to cooperate with and assist bodies referred to in section 13A in accordance with that section; and

to undertake activities in accordance with section 13B; and

to undertake the following other activities relating to the capabilities, intentions or activities of people or organisations outside Australia:

such activities of a general or specific nature as the responsible Minister directs;

activities included in such a class or classes of activity or activities as the responsible Minister directs.

Without limiting subparagraph (1)(e)(i), a direction given under that subparagraph may specify the purpose or purposes for which an activity or activities are to be undertaken.

Without limiting subparagraph (1)(e)(ii), a direction given under that subparagraph may specify the purpose or purposes for which a class or classes of activity or activities are to be undertaken.

The responsible Minister may give a direction under subparagraph (1)(e)(i) or (ii) only if the Minister:

has consulted other Ministers who have related responsibilities; and

is satisfied that there are satisfactory arrangements in place to ensure that, in carrying out the direction, nothing will be done beyond what is necessary having regard to the purposes for which the direction is given; and

is satisfied that there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in carrying out the direction will be reasonable having regard to the purposes for which the direction is given.

A direction under subparagraph (1)(e)(i) or (ii) must be in writing.

If the Minister gives a direction under subparagraph (1)(e)(i) or (ii), the Minister must give a copy of the direction to the Inspector‑General of Intelligence and Security as soon as practicable after the direction is given to the head of ASIS (see section 32B of the Inspector‑General of Intelligence and Security Act 1986).

A direction under subparagraph (1)(e)(i) or (ii) is not a legislative instrument.

In performing its functions, ASIS must not plan for, or undertake, activities that involve:

paramilitary activities; or

violence against the person; or

the use of weapons;

This subsection does not prevent ASIS from being involved with the planning or undertaking of activities covered by paragraphs (a) to (c) by other organisations provided that staff members or agents of ASIS do not undertake those activities.

For other limits on the agency’s functions and activities see sections 11 and 12.

For paramilitary activities see section 3.

Subsection (4) does not prevent:

the provision of weapons, or training in the use of weapons or in self‑defence techniques, in accordance with Schedule 2; or

the use of weapons or self‑defence techniques in accordance with Schedule 2.

Subsection (4) does not prevent:

the provision of weapons, or training in the use of force (including in the use of weapons) against a person, in accordance with Schedule 3, for the purposes of activities undertaken by ASIS outside Australia; or

the use of force against a person (including the use of weapons), in accordance with Schedule 3, in the course of activities undertaken by ASIS outside Australia; or

the threat of the use of force against a person (including the threat of the use of weapons), in accordance with Schedule 3, in the course of activities undertaken by ASIS outside Australia.

Nothing in subsection (5) or (5A) permits conduct by a person (the actor) that:

would constitute torture; or

would subject a person to cruel, inhuman or degrading treatment; or

would involve the commission of a sexual offence against any person; or

is likely to cause the death of, or grievous bodily harm to, a person, unless the actor believes on reasonable grounds that the conduct is necessary to protect life or to prevent serious injury to another person (including the actor).

Nothing in subsection (5) or Schedule 2 limits the operation of subsection (5A) or Schedule 3.

Nothing in subsection (5A) or Schedule 3 limits the operation of subsection (5) or Schedule 2.

ASIS must not:

provide weapons; or

provide training in the use of weapons; or

provide training in the use of force, or the threat of the use of force, against a person; or

provide training in the use of self‑defence techniques;

In performing its functions, ASIS is not prevented from providing assistance to Commonwealth authorities and to State authorities.

For Committee see section 3.

The functions of AGO are:

to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence about the capabilities, intentions or activities of people or organisations outside Australia from the electromagnetic spectrum or other sources, for the purposes of meeting the requirements of the Government for such intelligence; and

to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence from the electromagnetic spectrum or other sources for the purposes of meeting the operational, targeting, training and exercise requirements of the Defence Force; and

to obtain geospatial, hydrographic, meteorological, oceanographic and imagery intelligence from the electromagnetic spectrum or other sources for the purposes of supporting Commonwealth authorities and State authorities in carrying out national security functions; and

to communicate, in accordance with the Government’s requirements, intelligence referred to in paragraph (a), (b) or (c); and

to provide the following to persons and bodies mentioned in subsection (2):

imagery and other geospatial, hydrographic, meteorological and oceanographic products, not being intelligence obtained under paragraph (a), (b) or (c) of this subsection;

assistance in relation to the production and use of imagery and other geospatial, hydrographic, meteorological and oceanographic products;

assistance in relation to the production and use of imagery technologies and other geospatial, hydrographic, meteorological and oceanographic technologies; and

to provide to any persons or bodies (including Commonwealth authorities and State authorities) assistance in relation to the performance by the persons or bodies of emergency response functions, safety functions, scientific research functions, economic development functions, cultural functions and environmental protection functions, if:

the provision of the assistance is incidental to the performance by AGO of its other functions; or

the assistance is capable of being conveniently provided by the use of resources that are not immediately required in performing AGO’s other functions; or

the assistance is capable of being conveniently provided in the course of performing AGO’s other functions; and

to cooperate with and assist bodies referred to in section 13A in accordance with that section; and

to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and

the functions mentioned in subsection 223(2) of the Navigation Act 2012 (to the extent they are not covered by another paragraph of this subsection).

For limits on the agency’s functions and activities see sections 11 and 12.

Subsection 223(2) of the Navigation Act 2012 deals with the functions of the Australian Hydrographic Office, which is part of AGO (see subsection (3) of this section).

Paragraph (1)(e) applies to providing imagery and other products, or assistance in relation to imagery and other products or technologies, to the following:

a Commonwealth authority;

a State authority of a Territory;

a foreign person or entity;

any other person or body (including a State authority of a State) if:

the imagery and other products or technologies are for use in, or incidental to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or are for use outside Australia; or

the imagery and other products or assistance are provided by way of postal, telegraphic, telephonic or other like services.

For State authority, see section 3.

The Australian Hydrographic Office mentioned in section 223 of the Navigation Act 2012 is part of the AGO.

AGO may, on behalf of the Commonwealth, charge a fee in relation to anything done in performing AGO’s functions under paragraph (1)(e), (ea) or (h).

A fee must not be such as to amount to taxation.

The functions of ASD are:

to obtain intelligence about the capabilities, intentions or activities of people or organisations outside Australia in the form of electromagnetic energy, whether guided or unguided or both, or in the form of electrical, magnetic or acoustic energy, for the purposes of meeting the requirements of the Government, and in particular the requirements of the Defence Force, for such intelligence; and

to communicate, in accordance with the Government’s requirements, such intelligence; and

to prevent and disrupt, by electronic or similar means, cybercrime undertaken by people or organisations outside Australia; and

to provide material, advice and other assistance to any person or body mentioned in subsection (2) on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; and

to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and

to protect specialised technologies acquired in connection with the performance of any of the preceding functions; and

to provide assistance to Commonwealth authorities and State authorities in relation to:

cryptography, and communication and computer technologies; and

other specialised technologies acquired in connection with the performance of its other functions; and

the performance by those authorities of search and rescue functions; and

to cooperate with and assist bodies referred to in section 13A in accordance with that section.

For limits on the agency’s functions and activities see sections 11 and 12.

For the purposes of paragraph (1)(ca), material, advice and other assistance may be provided to the following:

a Commonwealth authority;

a State authority;

a foreign person or entity;

any other person or body if:

the material, advice and other assistance are provided for the purpose of protecting or facilitating trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or outside Australia; or

the material, advice and other assistance are provided by way of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or

the information was obtained or generated in the operation of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

For State authority, see section 3.

The responsible Minister in relation to ASIS, the responsible Minister in relation to AGO and the responsible Minister in relation to ASD, must issue a written direction under this subsection to the relevant agency head. The direction must:

require the agency to obtain an authorisation under section 9, 9A, 9B or 9D (as the case requires) before:

undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person; or

undertaking an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on one or more members of a class of Australian persons; or

undertaking, in the course of providing assistance to the Defence Force in support of military operations under paragraph 6(1)(ba), 6B(1)(g) or 7(1)(d), an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on one or more members of a class of Australian persons; or

undertaking, in the course of providing assistance to the Defence Force in support of military operations under paragraph 6(1)(ba), an activity, or a series of activities, that will, or is likely to, have a direct effect on one or more members of a class of Australian persons; or

undertaking, in accordance with a direction under subparagraph 6(1)(e)(i) or (ii), an activity, or a series of activities, that will, or is likely to, have a direct effect on an Australian person; or

undertaking, in accordance with paragraph 7(1)(c), an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of preventing or disrupting cybercrime undertaken by, or enabled by, an Australian person; and

specify the circumstances in which the agency must, before undertaking other activities or classes of activities, obtain an authorisation under section 9, 9A or 9B (as the case requires).

For the purposes of subparagraphs (1)(a)(i), (iaa) and (ia), an agency undertakes an activity, or a series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person, or one or more members of a class of Australian persons, only if:

the agency undertakes a prescribed activity to obtain that intelligence; or

the agency expressly or impliedly requests an authority referred to in paragraph 13(1)(c) to undertake a prescribed activity to obtain that intelligence.

Prescribed activity means a covert and intrusive activity, or a series of covert and intrusive activities and, to avoid doubt, includes an activity, or a series of activities, that ASIO could not undertake in at least one State or Territory without it being authorised by warrant under:

Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979; or

Part 2‑2 of the Telecommunications (Interception and Access) Act 1979.

The responsible Minister may give written directions to be observed:

in the performance by the relevant agency of its functions; or

in the case of ASIS—in the exercise of the powers of the Director‑General of ASIS under section 33 or 34.

Each agency head must ensure that the agency complies with any direction given by the responsible Minister under this section.

Directions under paragraph (2)(b) must not relate to a specific staff member.

A direction given under this section is not a legislative instrument.

The Inspector‑General of Intelligence and Security has oversight powers in relation to Ministerial directions and authorisations given under this Act. See in particular section 32B of the Inspector‑General of Intelligence and Security Act 1986 (which requires the Minister to give a copy of a direction under this section to the Inspector‑General of Intelligence and Security as soon as practicable after the direction is given).

Before a Minister gives an authorisation, the Minister must be satisfied that:

any activities which may be done in reliance on the authorisation will be necessary for the proper performance of a function of the agency concerned; and

there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the authorisation beyond what is necessary for the proper performance of a function of the agency; and

there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in reliance on the authorisation will be reasonable, having regard to the purposes for which they are carried out; and

for an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the Defence Minister has requested the authorisation in writing.

Before a Minister gives an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (ia), (ib) or (ii) (the relevant subparagraph), the Minister must also be satisfied that the Australian person, or the class of Australian persons, mentioned in the relevant subparagraph is, or is likely to be, involved in one or more of the following activities:

activities that present a significant risk to the safety of any person (including the Australian person or a member of the class of Australian persons mentioned in the relevant subparagraph);

acting for, or on behalf of, a foreign power;

activities that are, or are likely to be, a threat to security;

activities that pose a risk, or are likely to pose a risk, to the operational security of ASIS;

activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);

activities related to a contravention, or an alleged contravention, of a UN sanction enforcement law by any person (including the Australian person or a member of the class of Australian persons mentioned in the relevant subparagraph);

committing a serious crime by moving money, goods or people;

committing a serious crime by using or transferring intellectual property;

committing a serious crime by transmitting data or signals by means of guided and/or unguided electromagnetic energy.

For serious crime, see section 3.

Certain authorisations referred to in this subsection cannot take effect unless the Minister has obtained the agreement of the Attorney‑General (see subsection (1AAC)).

Before a Minister gives an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(iaa), the Minister must also be satisfied that the class of Australian persons mentioned in that subparagraph is, or is likely to be, involved with a listed terrorist organisation or a state sponsor of terrorism.

An authorisation referred to in this subsection cannot take effect unless the Minister has obtained the agreement of the Attorney‑General (see subsection (1AAD)).

Without limiting the circumstances in which a person is involved with a listed terrorist organisation or state sponsor of terrorism, a person is taken to be involved with a listed terrorist organisation or state sponsor of terrorism if the person:

directs, or participates in, the activities of the listed terrorist organisation or state sponsor of terrorism; or

recruits a person to join, or participate in the activities of, the listed terrorist organisation or state sponsor of terrorism; or

provides training to, receives training from, or participates in training with, the listed terrorist organisation or state sponsor of terrorism; or

is:

a member (within the meaning of subsection 102.1(1) of the Criminal Code) of the listed terrorist organisation; or

a member (within the meaning of subsection 110.1(1) of the Criminal Code) of the state sponsor of terrorism; or

provides financial or other support to the listed terrorist organisation or state sponsor of terrorism; or

advocates for, or on behalf of, the listed terrorist organisation or state sponsor of terrorism.

An authorisation referred to in subsection (1A) for an activity, or a series of activities, in relation to an Australian person, or a class of Australian persons, who is, or is likely to be, involved in activities referred to in paragraph (1A)(c) (whether or not the person, or the class of persons, is, or likely to be, involved in activities covered by another paragraph of subsection (1A)) cannot take effect unless and until the Minister has obtained the agreement (orally or in writing, but subject to subsection (1AA)) of the Attorney‑General. The agreement may be sought before or after the authorisation is given.

An authorisation referred to in subsection (1AAA) for an activity, or a series of activities, in relation to a class of Australian persons cannot take effect unless and until the Minister has obtained the agreement (orally or in writing, but subject to subsection (1AA)) of the Attorney‑General. The agreement may be sought before or after the authorisation is given.

Without limiting subsection (1AAC) or (1AAD), the Attorney‑General may, in writing:

specify classes of Australian persons who are, or are likely to be:

involved in an activity or activities that are, or are likely to be, a threat to security; or

involved with a listed terrorist organisation or state sponsor of terrorism; and

give his or her agreement in relation to any Australian person in that specified class.

An agreement given in accordance with subsection (1AA) may:

relate to an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib) or (ii); and

specify the period during which the agreement has effect.

If an agreement relating to a specified class of Australian persons specifies a period in accordance with paragraph (1AB)(b), the agreement of the Attorney‑General is, for authorisations to be given after the period ends, taken not to have been obtained in relation to a person in that class.

The agreement of the Attorney‑General would need to be obtained again in relation to such a person.

The Minister may give an authorisation in relation to:

an activity, or class of activities, specified in the authorisation; or

acts of a staff member or agent, or a class of staff members or agents, specified (whether by name or otherwise) in the authorisation; or

activities done for a particular purpose connected with the agency’s functions.

An authorisation is subject to any conditions specified in it.

An authorisation must specify how long it will have effect. The period of effect specified in an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib), (ii) or (iii) must not exceed 6 months.

An authorisation must be in writing.

If a Minister gives an authorisation under this section in relation to an agency, the relevant agency head must ensure that copies of the following are kept by the agency and are available for inspection on request by the Inspector‑General of Intelligence and Security:

the authorisation;

any record or copy of an agreement given under subsection (1AAC) or (1AAD) (including any agreement given in accordance with subsection (1AA));

if the authorisation is for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the request from the Defence Minister referred to in paragraph (1)(d) of this section.

A request under paragraph (1)(d), an agreement under subsection (1AAC) or (1AAD) (if in writing), a request under subsection (5) (if in writing), and an authorisation under this section, are not legislative instruments.

In this section: