Intelligence Services Act 2001

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).