Intelligence Services Act 2001

This section applies if:

an agency head considers it necessary or desirable to undertake an activity or a series of activities; and

an authorisation is sought under section 9A; and

the agency head is satisfied that none of the Ministers specified in subsection 9A(3) are readily available or contactable.

The agency head may give an authorisation under this section for the activity or series of activities if the agency head is satisfied that:

the facts of the case would justify the relevant responsible Minister giving an authorisation under section 9 because (subject to section 9C) the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and

the responsible Minister would have given the authorisation; and

if the activity or series of activities is not undertaken before an authorisation is given under section 9 or 9A:

security (within the meaning of the Australian Security Intelligence Organisation Act 1979) will be, or is likely to be, seriously prejudiced; or

there will be, or is likely to be, a significant risk to the safety of any person.

An authorisation given under this section:

may be given in relation to the same matters as an authorisation may be given under subsection 9(2); and

is subject to the requirements of subsections 9(3) and (4A).

An authorisation given under this section for an activity or series of activities ceases to have effect at the earliest of the following times:

when an authorisation for the activity or series of activities is given under section 9 or 9A;

when the authorisation given under this section is cancelled by the relevant responsible Minister under subsection (8) of this section;

48 hours from the time the authorisation was given under this section.

An agency head who gives an authorisation under this section for an activity or series of activities must notify the relevant responsible Minister of the authorisation within 8 hours after giving the authorisation.

The agency head must also give the following documents to the relevant responsible Minister and the Inspector‑General of Intelligence and Security:

a copy of the authorisation;

a summary of the facts of the case that the agency head was satisfied justified giving the authorisation;

an explanation of the Minister’s obligation under subsection (7).

The documents must be given to the responsible Minister and the Inspector‑General of Intelligence and Security as soon as practicable, but no later than the following time:

for documents given to the responsible Minister—48 hours after giving the authorisation;

for documents given to the Inspector‑General of Intelligence and Security—3 days after giving the authorisation.

As soon as practicable after the responsible Minister is given the documents, the responsible Minister must consider whether to:

cancel the authorisation under subsection (8); or

give a new authorisation for the activity or series of activities under section 9 or 9A.

For the purposes of paragraph (4)(b), the relevant responsible Minister may, in writing, cancel an authorisation given under this section.

Within 30 days after the Inspector‑General of Intelligence and Security is given the documents, the Inspector‑General must:

consider whether the agency head complied with the requirements of this section in giving the authorisation; and

provide the responsible Minister with a report on the Inspector‑General’s views of the extent of the agency head’s compliance with the requirements of this section in giving the authorisation; and

provide to the Committee a copy of the conclusions in the report.

An authorisation, report and a cancellation under this section are not legislative instruments.