NATIONAL SECURITY LEGISLATION AMENDMENT (COMPREHENSIVE REVIEW AND OTHER MEASURES NO. 3) BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

National Security Legislation

Amendment (Comprehensive Review

and Other Measures No. 3) Bill 2023

No. , 2023

(Home Affairs)

A Bill for an Act to amend the law relating to

national security and intelligence services, and for

related purposes

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1

Security assessments

Part 1

Prescribed administrative action

Division 1

Decisions relating to parole, firearm licences and security guard

licences

Australian Security Intelligence Organisation Act 1979

Division 2

Regulations to prescribe actions as prescribed administrative

action

Australian Security Intelligence Organisation Act 1979

Part 2

Security assessments and preliminary communications

Division 1

Decisions under the Foreign Acquisitions and Takeovers Act

1975

Australian Security Intelligence Organisation Act 1979

Division 2

Clarification of effect of definitions on certain security

assessments

Australian Security Intelligence Organisation Act 1979

Division 3

Preliminary communications to States

Australian Security Intelligence Organisation Act 1979

Division 4

Temporary actions by Commonwealth agencies

Australian Security Intelligence Organisation Act 1979

Part 3

Delayed security assessments

Australian Security Intelligence Organisation Act 1979

Schedule 2

Protecting identities and information

Part 1

Cover employment

Australian Security Intelligence Organisation Act 1979

Intelligence Services Act 2001

Part 2

Consolidating secrecy offences

Division 1

Main amendments

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Intelligence Services Act 2001

Division 2

Consequential amendments

Privacy Act 1988

Part 3

Protection from disclosure under Archives Act 1983

Administrative Appeals Tribunal Act 1975

Archives Act 1983

Part 4

Protecting the identity of ASIO employees and ASIO

affiliates

Division 1

Main amendments

Australian Security Intelligence Organisation Act 1979

Division 2

Consequential amendments

Australian Crime Commission Act 2002

Business Names Registration Act 2011

Commonwealth Registers Act 2020

Corporations Act 2001

Criminal Code Act 1995

Freedom of Information Act 1982

National Consumer Credit Protection Act 2009

Privacy Act 1988

Schedule 3

Authorisations for intelligence activities

Part 1

Sequencing of ministerial authorisations and clarifying

references to persons

Intelligence Services Act 2001

Part 2

References to Attorney-General not to include junior

Minister

Australian Security Intelligence Organisation Act 1979

Telecommunications (Interception and Access) Act 1979

Part 3

Applicant for special intelligence operation authority

Australian Security Intelligence Organisation Act 1979

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

iii

Schedule 4

Security vetting and security clearance related activities

Part 1

Security clearance suitability assessments

Australian Security Intelligence Organisation Act 1979

Part 2

Delayed assessments and security clearance decisions

Australian Security Intelligence Organisation Act 1979

No. , 2023

National Security Legislation Amendment (Comprehensive Review

and Other Measures No. 3) Bill 2023

A Bill for an Act to amend the law relating to

national security and intelligence services, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

National Security Legislation Amendment

(Comprehensive Review and Other Measures No. 3) Act 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Part 1, Division 1

The day after this Act receives the Royal

Assent.

3. Schedule 1,

Part 1, Division 2

Immediately after the commencement of the

provisions covered by table item 2.

4. Schedule 1,

Part 2,

Divisions 1 and 2

The day after this Act receives the Royal

Assent.

5. Schedule 1,

Part 2,

Divisions 3 and 4

At the same time as the provisions covered

by table item 3.

6. Schedule 1,

Part 3

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

7. Schedules 2

and 3

The day after this Act receives the Royal

Assent.

8. Schedule 4,

Part 1

The day after this Act receives the Royal

Assent.

9. Schedule 4,

Part 2

At the same time as the provisions covered

by table item 6.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Schedule 1

Security assessments

Part 1

Prescribed administrative action

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Schedule

1--Security assessments

Part

1--Prescribed administrative action

Division 1

Decisions relating to parole, firearm licences

and security guard licences

Australian Security Intelligence Organisation Act 1979

1 Subsection 35(1) (after paragraph (f) of the definition of

prescribed administrative action

)

Insert:

; or (g) the exercise of any power, or the performance of any

function, in relation to any of the following decisions under a

law of

the Commonwealth

a State or a Territory:

(i) a decision about whether to release a person from prison

on parole or on licence;

(ii) a decision otherwise relating to the release of a person

on parole or on licence (including a decision in relation

to conditions or supervision);

(iii) a decision about whether to revoke a parole order or a

licence mentioned in subparagraph (i); or

(h) the exercise of any power, or the performance of any

function, in relation to any of the following decisions under a

law of a State or Territory:

(i) a decision about whether to issue a firearms licence or a

licence to work as a security guard to a person or

otherwise relating to the issue of such a licence

(including in relation to conditions);

(ii) a decision about whether to revoke a licence mentioned

in subparagraph (i).

2 Subsection 39(1)

Omit "subsection

(2)", substitute "subsections

(2) and (3)".

3 At the end of section 39

Add:

Security assessments

Schedule 1

Prescribed administrative action

Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

(3) Subsection (1) does not prevent a Commonwealth agency from

taking prescribed administrative action within the meaning of

paragraph (h) of the definition of

prescribed administrative action

in subsection 35(1) on the basis of a communication made under

subsection 18(3) or 19A(4) to a staff member of the

Commonwealth agency.

4 At the end of section 40

Add:

(3) However, subsection (2) does not prevent the communication of

information under subsection 18(3) or 19A(4) which the

Organisation knows is intended or likely to be used by a State or an

authority of a State in considering prescribed administrative action

within the meaning of paragraph (h) of the definition of

prescribed

administrative action

in subsection 35(1).

5 Application of amendments

The amendments of the

Australian Security Intelligence Organisation

Act 1979

made by this Division apply in relation to a communication

made by the Organisation on or after the commencement of this item.

Division 2

Regulations to prescribe actions as

prescribed administrative action

Australian Security Intelligence Organisation Act 1979

6 Subsection 35(1) (after paragraph (h) of the definition of

prescribed administrative action

)

Insert:

; or (i) subject to subsection 36AA(1), another action prescribed by

the regulations for the purposes of this paragraph.

7 After section 35

Insert:

Schedule 1

Security assessments

Part 1

Prescribed administrative action

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

36AA Prescribing actions as

prescribed administrative action

(1) Regulations made for the purposes of paragraph (i) of the

definition of

prescribed administrative action

in subsection 35(1)

(the

relevant regulations

) may prescribe an action if:

(a)

the action is likely to affect a person's liberty or livelihood;

and

(b) matters relating to security would be a primary consideration

in deciding whether to take the action.

(2) The Committee on Intelligence and Security must:

(a) review the relevant regulations as soon as possible after they

are made; and

(b)

report the Committee's comments and recommendations to

each House of the Parliament before the end of the applicable

disallowance period for that House.

(3)

If the Committee's report on a review of the relevant regulations is

tabled in a House of the Parliament:

(a) during the applicable disallowance period for that House; and

(b) on or after the eighth sitting day of the applicable

disallowance period;

then Part 2 of Chapter 3 of the

Legislation Act 2003

has effect, in

relation to the relevant regulations and that House, as if each period

of 15 sitting days referred to in that Part were extended in

accordance with the following table.

Extension of applicable disallowance period

Item

If the Committee's report is tabled

in that House ...

extend the period of 15 sitting

days by ...

on the fifteenth sitting day of the

applicable disallowance period

8 sitting days of that House

on the fourteenth sitting day of the

applicable disallowance period

7 sitting days of that House

on the thirteenth sitting day of the

applicable disallowance period

6 sitting days of that House

on the twelfth sitting day of the

applicable disallowance period

5 sitting days of that House

Security assessments

Schedule 1

Prescribed administrative action

Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Extension of applicable disallowance period

Item

If the Committee's report is tabled

in that House ...

extend the period of 15 sitting

days by ...

on the eleventh sitting day of the

applicable disallowance period

4 sitting days of that House

on the tenth sitting day of the

applicable disallowance period

3 sitting days of that House

on the ninth sitting day of the

applicable disallowance period

2 sitting days of that House

on the eighth sitting day of the

applicable disallowance period

1 sitting day of that House

(4) The

applicable disallowance period

for a House of the Parliament

means the period of 15 sitting days of that House after the relevant

regulations, or a copy of the relevant regulations, were laid before

that House in accordance with section 38 of the

Legislation Act

2003

8 At the end of section 95

Add:

Note:

Regulations made for the purposes of paragraph (i) of the definition of

prescribed administrative action

in subsection 35(1) are subject to an

extended disallowance period (see section 36AA).

Schedule 1

Security assessments

Part 2

Security assessments and preliminary communications

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Part

2--Security assessments and preliminary

communications

Division 1

Decisions under the Foreign Acquisitions

and Takeovers Act 1975

Australian Security Intelligence Organisation Act 1979

9 Subsection 35(1) (definition of

prescribed administrative

action

)

Before "means", insert ", subj

ect to subsections

(1A) and (2),".

10 Subsection 35(1) (at the end of the note to the definition of

prescribed administrative action

)

Add "A decision made under the

Foreign Acquisitions and Takeovers

Act 1975

or the regulations under that Act is also not prescribed

administrative action (see subsection

(1A)).".

11 After subsection 35(1)

Insert:

(1A) A decision made under the

Foreign Acquisitions and Takeovers

Act 1975

or the regulations under that Act is not prescribed

administrative action.

12 Application of amendments

The amendments of the

Australian Security Intelligence Organisation

Act 1979

made by this Division apply in relation to a communication

made by the Organisation on or after the commencement of this item.

Division 2

Clarification of effect of definitions on

certain security assessments

Australian Security Intelligence Organisation Act 1979

13 Subsection 36(1)

Before "subsections", insert "section

35 and".

Security assessments

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Security assessments and preliminary communications

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

14 At the end of section 36

Add:

(3) This section does not, by implication, affect the interpretation of

any other provision of this Part.

Division 3

Preliminary communications to States

Australian Security Intelligence Organisation Act 1979

15 Paragraph 17(1)(ca)

After "security assessments", insert "and make preliminary

communications".

16 Paragraph 17(1)(ca)

Omit "paragraph

40(1)(b)", substitute "paragraphs 40(1)(b) and

(1A)(a)".

17 Section 40 (heading)

After "

Assessments

", insert "

and preliminary communications

18 After subsection 40(1)

Insert:

(1A) It is also a function of the Organisation to make a preliminary

communication, pending the furnishing of a security assessment by

the Organisation, to:

(a) a State or an authority of a State; or

(b) a Commonwealth agency for transmission to a State or an

authority of a State;

if the Director-General, or a person authorised by the

Director-General under subsection (4), is satisfied that the

requirements of security make it necessary as a matter of urgency

for the State or authority to take the action referred to in

subsection (1B).

(1B) For the purposes of subsection (1A), the action is any of the

following:

(a) action of a temporary nature to prevent:

Schedule 1

Security assessments

Part 2

Security assessments and preliminary communications

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

(i) access by a person to any information or place access to

which is controlled or limited on security grounds; or

(ii) a person from performing an activity in relation to, or

involving, a thing (other than information or a place), if

the person's ability to perform that activity is controlled

or limited on security grounds;

(b) action that is of a temporary nature and of a kind referred to

in paragraph (g) or (h) of the definition of

prescribed

administrative action

in subsection 35(1);

(i) referred to in paragraph (i) of the definition of

prescribed administrative action

in subsection 35(1);

and

(ii) prescribed by the regulations for the purposes of this

subparagraph.

19 Subsection 40(2)

Omit "shall not", substitute "must not, other than in the form of an

assessment or in accordance with subsection

(1A)".

20 Paragraphs 40(2)(a) and (b)

Omit "otherwise than in the form of an assessment".

21 At the end of section 40

Add:

(4) The Director-General may, in writing, authorise a person for the

purposes of subsection (1A) if the person is an ASIO employee, or

an 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.

22 Application of amendments

The amendments of the

Australian Security Intelligence Organisation

Act 1979

made by this Division apply in relation to a communication

made by the Organisation after the commencement of this item.

Security assessments

Schedule 1

Security assessments and preliminary communications

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Division 4

Temporary actions by Commonwealth

agencies

Australian Security Intelligence Organisation Act 1979

23 Subsection 39(1)

Omit "and (3)", substitute ", (3) and (4)".

24 At the end of section 39

Add:

(4) Subsection (1) does not prevent a Commonwealth agency from

taking action that is of a temporary nature and is:

(a) of a kind referred to in paragraph (g) or (h) of the definition

prescribed administrative action

in subsection 35(1); or

(b) of a kind:

(i) referred to in paragraph (i) of the definition of

prescribed administrative action

in subsection 35(1);

and

(ii) prescribed by the regulations for the purposes of this

subparagraph;

if, on the basis of a preliminary communication by the

Organisation, the Commonwealth agency is satisfied that the

requirements of security make it necessary to take that action as a

matter of urgency pending the furnishing of an assessment by the

Organisation.

25 Application of amendments

The amendments of the

Australian Security Intelligence Organisation

Act 1979

made by this Division apply in relation to a communication

made by the Organisation after the commencement of this item.

Schedule 1

Security assessments

Part 3

Delayed security assessments

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Part

3--Delayed security assessments

Australian Security Intelligence Organisation Act 1979

26 Subsection 35(1)

Insert:

delayed security assessment

has the meaning given by

subsection 41(1).

27 Subsection 36(1)

Omit "section

35", substitute "sections

35, 41 and

42".

28 At the end of Division 2 of Part IV

Add:

41 Notification of delayed security assessment

Notification of delayed security assessment

(1) If a security assessment is not furnished under this Part within 12

months after the Organisation starts to prepare the assessment (the

delayed security assessment

), the Director-General must cause the

Inspector-General of Intelligence and Security to be notified of the

delayed security assessment.

Note:

A protocol made under subsection 42(1) must specify when the

Organisation is taken to have started to prepare a security assessment,

which may be specified differently for different classes of security

assessments (see subsections 42(3) and (4)).

(2) The notification must:

(a) be made within the period specified, for the purposes of

subparagraph 42(3)(b)(i), in the protocol made under

subsection 42(1), as in force from time to time; and

(b) include the information specified in that protocol for the

purposes of subparagraph 42(3)(b)(ii); and

for the purposes of paragraph 42(3)(d).

Security assessments

Schedule 1

Delayed security assessments

Part 3

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Exceptions to requirement to notify

(3) However, subsection (1) does not apply if:

(a) the Organisation has been notified that the security

assessment is no longer required; or

(b) the Organisation initiated the preparation of the security

assessment without a request for the assessment being made

by another Commonwealth agency, a State or an authority of

a State.

Application of this section

(4) This section applies to a security assessment that the Organisation

starts to prepare on or after the commencement of this section.

42 Protocol for dealing with delayed security assessments

Requirement to make protocol

(1) The Director-General must make a written protocol for dealing

with delayed security assessments.

Note 1:

For variation of a protocol, see subsection 33(3) of the

Acts

Interpretation Act 1901

Note 2:

A protocol made under this subsection may be combined with a

protocol made under subsection 82GB(1) (protocol for dealing with

delayed security clearance decisions and delayed security clearance

suitability assessments).

(2) The Director-General must consult with the Inspector-General of

Intelligence and Security before making a protocol under

subsection (1).

(3) The protocol:

(a) must specify when the Organisation is taken to have started

to prepare a security assessment; and

(b) must specify the following in relation to the notification of a

delayed security assessment under section 41:

(i) the period within which the notification must be made;

(ii) the information to be included in the notification; and

Schedule 1

Security assessments

Part 3

Delayed security assessments

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

relation to the delayed security assessment after the

notification referred to in paragraph (b) is made; and

(d) may specify other requirements, or deal with any other

matters, that:

(i) relate to a delayed security assessment or the

notification of the assessment under section 41; and

(ii) the Director-General considers appropriate.

(4) Without limiting subsection (1), the protocol may provide

differently for different classes of security assessments.

(5) A protocol made under subsection (1) is not a legislative

instrument.

Requirement to comply with protocol

(6) The Organisation must, in relation to a delayed security assessment

to which subsection 41(1) applies, comply with a protocol made

under subsection (1) of this section, as in force from time to time.

Protecting identities and information

Schedule 2

Cover employment

Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Schedule

2--Protecting identities and

information

Part

1--Cover employment

Australian Security Intelligence Organisation Act 1979

1 Subsection 16(1)

Omit "The", substitute "Subject to subsection

92C

(8), the".

2 At the end of Part V

Add:

92B Cover employment for ASIO employees and ASIO affiliates

(1) A person who is an ASIO employee or ASIO affiliate, or a former

ASIO employee or former ASIO affiliate, may identify an

authority of the Commonwealth as that person's employer or place

of work, in relation to a period during which the person is or was

an ASIO employee or ASIO affiliate, in accordance with a

determination made by the Director-General under

subsection 92C(1).

(2) Subsection (1) applies despite any other law of the

Commonwealth, a State or a Territory (whether passed or made

before, on or after the commencement of this section), including

such other law that is expressed to apply despite any other law.

92C Cover employment

determining a specified authority of the

Commonwealth

Determining specified authority of the Commonwealth

(1) Subject to subsection (5), the Director-General may, in writing,

determine one or more specified authorities of the Commonwealth,

within the meaning of paragraphs (a), (aa), (b) and (c) of the

definition of

authority of the Commonwealth

in section 4, that

may be identified as the employer or place of work of ASIO

Schedule 2

Protecting identities and information

Part 1

Cover employment

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

employees, ASIO affiliates, former ASIO employees or former

ASIO affiliates.

Note:

For variation and revocation of an instrument, see subsection 33(3) of

the

Acts Interpretation Act 1901

(2) Without limiting subsection (1), a determination under that

subsection may do either or both of the following:

(a) determine a specified authority of the Commonwealth in

relation to a specified class of ASIO employees, ASIO

affiliates, former ASIO employees or former ASIO affiliates;

(b) specify limitations or restrictions in relation to the

identification of a specified authority of the Commonwealth

as the employer or place of work of ASIO employees, ASIO

affiliates, former ASIO employees or former ASIO affiliates.

(3) To avoid doubt, and without limiting subsection (1) or (2), if a

determination under subsection (1) determines a specified authority

of the Commonwealth in relation to a class of ASIO employees,

ASIO affiliates, former ASIO employers or former ASIO affiliates

holding, occupying or performing the duties of a specified office or

position, the class includes such an office or position that comes

into existence after the determination is made.

(4) Subsection (3) does not, by implication, affect the interpretation of

any other provision of this Act.

(5) The Director-General must not determine a specified authority of

the Commonwealth under subsection (1) unless the head of that

authority has agreed, in writing, to the authority being so

determined.

(6) To avoid doubt, the Chief of the Defence Force (within the

meaning of the

Defence Act 1903

) is the head of the Defence Force

for the purposes of subsection (5).

Note:

The Defence Force is an authority of the Commonwealth: see

paragraph (b) of the definition of

authority of the Commonwealth

section 4.

(7) The following are not legislative instruments:

(a) a determination under subsection (1);

(b) an agreement under subsection (5).

Protecting identities and information

Schedule 2

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Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Delegation

(8) The Director-General may, in writing, delegate the

Director-

General's powers or duties und

er this section to an ASIO

employee, or an 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 3.

(9) In exercising powers or discharging duties under a delegation

under subsection (8), the delegate must comply with any written

direction given by the Director-General to the delegate.

92D Protection from criminal liability

third parties

(1) If a person does something that, apart from this section, would be

an offence against a law of the Commonwealth, a State or a

Territory, the person is not criminally responsible for the offence

if:

(a) the person is a staff member of any authority of the

Commonwealth; and

(b) the thing is done in the course of the person exercising or

performing the person's powers, functions or duties as such a

staff member; and

affiliate, or a former ASIO employee or former ASIO

affiliate, (the

ASIO person

) to identify an authority of the

Commonwealth as the ASIO person's employer or place of

work in relation to a period for the purposes of

subsection 92B(1), in accordance with a determination under

subsection 92C(1); and

(d) doing the thing would not be an offence if the authority of the

Commonwealth referred to in paragraph (c) were the ASIO

person's employer or place of work for the period mentioned

in that paragraph.

(2) If a person does something that, apart from this section, would be

an offence against a law of the Commonwealth, a State or a

Territory, the person is not criminally responsible for the offence

if:

(a) the thing is done in the performance of the functions

attaching to the person's professional capacity; and

Schedule 2

Protecting identities and information

Part 1

Cover employment

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

(b) the thing is done to facilitate an ASIO employee or ASIO

affiliate, or a former ASIO employee or former ASIO

affiliate, (the

ASIO person

) to identify an authority of the

Commonwealth as the ASIO person's employer or place of

work in relation to a period for the purposes of

subsection 92B(1), in accordance with a determination under

subsection 92C(1); and

Commonwealth referred to in paragraph (b) were the ASIO

person's employer or place of

work for the period mentioned

in that paragraph.

Intelligence Services Act 2001

3 Subsection 3(1) (definition of

staff member

)

Before "means", insert ", subject to subsection

41AC(3),".

4 Subsection 27(1)

Omit "The", substitute "Subject to subsection

41A

B(8), the".

5 After section 41

Insert:

41AA Cover employment for ASIS and ASD staff members

(1) A person who is a staff member of ASIS or ASD, or a former staff

member of ASIS or ASD, may identify a Commonwealth authority

as that person's employer or

place of work, in relation to a period

during which the person is or was a staff member of that agency, in

accordance with a determination made by the relevant agency head

under subsection 41AB(1).

(2) Subsection (1) applies despite any other law of the

Commonwealth, a State or a Territory (whether passed or made

before, on or after the commencement of this section), including

such other law that is expressed to apply despite any other law.

Protecting identities and information

Schedule 2

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Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

41AB Cover employment

determining a specified Commonwealth

authority

Determining specified Commonwealth authority

(1) Subject to subsection (5), the agency head of ASIS or ASD may, in

writing, determine one or more specified Commonwealth

authorities, within the meaning of paragraphs (a), (b), (c) and (d) of

the definition of

Commonwealth authority

in subsection 3(1), that

may be identified as the

employer or place of work of staff

members or former staff members of that agency.

Note:

For variation and revocation of an instrument, see subsection 33(3) of

the

Acts Interpretation Act 1901

(2) Without limiting subsection (1), a determination under that

subsection may do either or both of the following:

(a) determine a specified Commonwealth authority in relation to

a specified class of staff members or former staff members of

the agency;

(b) specify limitations or restrictions in relation to the

identification of a specified Commonwealth authority as the

employer or place of work of staff members or former staff

members of the agency.

(3) To avoid doubt, and without limiting subsection (1) or (2), if a

determination under subsection (1) determines a specified

Commonwealth authority in relation to a class of staff members or

former staff members of the agency holding, occupying or

performing the duties of a specified office or position, the class

includes such an office or position that comes into existence after

the determination is made.

(4) Subsection (3) does not, by implication, affect the interpretation of

any other provision of this Act.

(5) The agency head must not determine a specified Commonwealth

authority under subsection (1) unless the head of that authority has

agreed, in writing, to the authority being so determined.

(6) To avoid doubt, the Chief of the Defence Force (within the

meaning of the

Defence Act 1903

) is the head of the Defence Force

for the purposes of subsection (5).

Schedule 2

Protecting identities and information

Part 1

Cover employment

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Note:

The Defence Force is a Commonwealth authority: see paragraph (c) of

the definition of

Commonwealth authority

in subsection 3(1).

(7) The following are not legislative instruments:

(a) a determination under subsection (1);

(b) an agreement under subsection (5).

Delegation

(8) The agency head of ASIS or ASD may, in writing, delegate the

agency head's powers or duties under this section to a staff

member of that agency

who holds or is acting in a position in the

agency that is equivalent to or higher than a position occupied by

an SES employee with a classification of SES Band 3.

(9) In exercising powers or discharging duties under a delegation

under subsection (8), the delegate must comply with any written

direction given by the agency head to the delegate.

41AC Protection from criminal liability

third parties

(1) If a person does something that, apart from this section, would be

an offence against a law of the Commonwealth, a State or a

Territory, the person is not criminally responsible for the offence

if:

(a) the person is a staff member of any Commonwealth authority

(see subsection (3)); and

(b) the thing is done in the course of the person exercising or

performing t

he person's powers, functions or duties as such a

staff member; and

ASD, or a former staff member of ASIS or ASD, (the

ASIS

or ASD person

) to identify a Commonwealth authority as the

ASIS or AS

D person's employer or place of work in relation

to a period for the purposes of subsection 41AA(1), in

accordance with a determination under subsection 41AB(1);

and

(d) doing the thing would not be an offence if the

Commonwealth authority referred to in paragraph (c) were

the ASIS or ASD person's employer or place of work for the

period mentioned in that paragraph.

Protecting identities and information

Schedule 2

Cover employment

Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

(2) If a person does something that, apart from this section, would be

an offence against a law of the Commonwealth, a State or a

Territory, the person is not criminally responsible for the offence

if:

(a) the thing is done in the performance of the functions

attaching to the person's professional capacity; and

(b) the thing is done to facilitate a staff member of ASIS or

ASD, or a former staff member of ASIS or ASD, (the

ASIS

or ASD person

) to identify a Commonwealth authority as the

ASIS or ASD person's employer or place of work in relation

to a period for the purposes of subsection 41AA(1), in

accordance with a determination under subsection 41AB(1);

and

Commonwealth authority referred to in paragraph (b) were

the ASIS or ASD person's employer or place of work for the

period mentioned in that paragraph.

(3) For the purposes of paragraphs (1)(a) and (b), a

staff member

of a

Commonwealth authority means:

(a) the head (however described) of the Commonwealth

authority, or another person who holds an office or

appointment in relation to the Commonwealth authority; and

(b) a person who is otherwise a member of the staff of the

Commonwealth authority, whether:

(i) an employee of the Commonwealth authority; or

(ii) a consultant or contractor to the Commonwealth

authority; or

(iii) a person who is made available, to perform services for

the Commonwealth authority, by another

Commonwealth authority, a State authority or other

person.

Note:

If a person referred to in paragraphs (1)(a) and (b) is a staff member of

ASIO or an agency (within the meaning of subsection 3(1)), the

definition of

staff member

in subsection (3) of this section applies for

the purposes of those paragraphs rather than the definition of

staff

member

in subsection 3(1).

Schedule 2

Protecting identities and information

Part 1

Cover employment

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

6 Application of amendments

(1)

The amendments of the

Australian Security Intelligence Organisation

Act 1979

made by this Part apply in relation to a person identifying, on

or after the commencement of this item, their employer or place of work

in relation to a period, regardless of the following:

(a) whether the person became an ASIO employee or ASIO

affiliate before, on or after that commencement;

(b) whether the period occurred, partly or wholly, before, on or

after that commencement.

(2)

The amendments of the

Intelligence Services Act 2001

made by this

Part apply in relation to a person identifying, on or after the

commencement of this item, their employer or place of work in relation

to a period, regardless of the following:

(a) whether the person became a staff member of ASIS or ASD

before, on or after that commencement;

(b) whether the period occurred, partly or wholly, before, on or

after that commencement.

Protecting identities and information

Schedule 2

Consolidating secrecy offences

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Part

2--Consolidating secrecy offences

Division 1

Main amendments

Intelligence Services Act 2001

7 Subsection 3(1) (at the end of the definition of

staff

member

)

Add:

; and (c) in relation to DIO

a member of the staff of that part of the

Defence Department known as the Defence Intelligence

Organisation, whether:

(i) an employee, a consultant or contractor that works in

that part of the Defence Department; or

(ii) 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.

8 Section 39 (at the end of the heading)

Add "

, AGO, DIO and ASD

9 Paragraph 39(1)(a)

Omit "ASIS in connection with its functions or relates to the

performance by ASIS", substitute "ASIS, AGO, DIO or ASD (the

relevant agency

) in connection with its functions, or relates to the

performance by the relevant

agency".

10 Paragraph 39(1)(b)

Repeal the paragraph, substitute:

(b) the information or matter has come to the knowledge or into

the possession of the person by reason of the person:

(i) being, or having been, a staff member of the relevant

agency or an agent of ASIS; or

(ii) having entered into any contract, agreement or

arrangement with the relevant agency; or

Schedule 2

Protecting identities and information

Part 2

Consolidating secrecy offences

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

(iii) having been an employee or agent of a person who has

entered into a contract, agreement or arrangement with

the relevant agency; and

11 Subparagraphs 39(1)(c)(i) and (ii)

Omit "Director

General of ASIS or a staff member", substitute "head of

the relevant agency or a staff member of the relevant agency".

12 Subparagraph 39(1)(c)(iii)

Omit "Director

General of ASIS", substitute "head of

the relevant

agency".

13 Subparagraph 39(1)(c)(iv)

Omit "Director

-General of ASIS or of a staff member having the

authority of the Director-

General of ASIS", substitute "head of the

relevant agency or of a staff member of the relevant agency having the

thority of the head of the relevant agency".

14 At the end of section 39

Add:

Definitions

(4) In this section:

head of the relevant agency

means:

(a) in relation to ASIS, AGO or ASD

the agency head of the

agency; or

(b) in relation to DIO

the Director of DIO.

15 Sections 39A to 40B

Repeal the sections.

16 Section 40C (at the end of the heading)

Add "

, AGO, DIO and ASD

17 Paragraphs 40C(1)(b) and (c)

Repeal the paragraphs, substitute:

Protecting identities and information

Schedule 2

Consolidating secrecy offences

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

(b) the record was acquired or prepared by or on behalf of ASIS,

AGO, DIO or ASD (the

relevant agency

) in connection with

its functions, or relates to the performance by the relevant

agency of its functions; and

person:

(i) being, or having been, a staff member of the relevant

agency or an agent of ASIS; or

(ii) having entered into any contract, agreement or

arrangement with the relevant agency; or

(iii) having been an employee or agent of a person who has

entered into a contract, agreement or arrangement with

the relevant agency; and

18 Subparagraph 40C(1)(d)(ii)

Omit "ASIS", substitute "the relevant agency".

19 Subparagraph 40C(1)(d)(iii)

Omit "Director

General of ASIS", substitute "head of the relevant

agency".

20 Subparagraph 40C(1)(d)(iv)

Omit

"Director

-General of ASIS or of a staff member having the

authority of the Director-

General of ASIS", substitute "head of the

relevant agency or of a staff member of the relevant agency having the

authority of the head of the relevant agency".

21 At the end of section 40C

Add:

Definitions

(5) In this section:

head of the relevant agency

has the same meaning as in

section 39.

22 Section 40D (at the end of the heading)

Add "

, AGO, DIO and ASD

Schedule 2

Protecting identities and information

Part 2

Consolidating secrecy offences

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

23 Paragraphs 40D(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) the information or matter was acquired or prepared by or on

behalf of ASIS, AGO, DIO or ASD (the

relevant agency

) in

connection with its functions, or relates to the performance

by the relevant agency of its functions; and

the possession of the person by reason of the person:

(i) being, or having been, a staff member of the relevant

agency or an agent of ASIS; or

(ii) having entered into any contract, agreement or

arrangement with the relevant agency; or

(iii) having been an employee or agent of a person who has

entered into a contract, agreement or arrangement with

the relevant agency; and

24 Subparagraph 40D(1)(d)(ii)

Omit "ASIS", substitute "the relevant agency".

25 Subparagraph 40D(1)(d)(iii)

Omit "Director

General of ASIS", substitute "head of the relevant

agency".

26 Subparagraph 40D(1)(d)(iv)

Omit "Director

-General of ASIS or of a staff member having the

authority of the Director-

General of ASIS", substitute "head of the

relevant agency or of a staff member of the relevant agency having the

authority of the head of the relevant agency".

27 At the end of section 40D

Add:

Definitions

(5) In this section:

head of the relevant agency

has the same meaning as in

section 39.

Protecting identities and information

Schedule 2

Consolidating secrecy offences

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

28 Sections 40E to 40M

Repeal the sections.

29 Subsection 41B(3) (definition of

information offence

provision

)

Repeal the definition, substitute:

information offence provision

means subsection 39(1), 40C(1) or

40D(1) or paragraph 41(1)(a).

30 Application of amendments

(1)

The amendment of section 39, and the repeal of sections 39A, 40 and

40B, of the

Intelligence Services Act 2001

made by this Division apply

in relation to a communication by a person of any information or matter

on or after the commencement of this item, regardless of the following:

(a) whether the information or matter came to the knowledge or

into the possession of the person before, on or after that

commencement;

(b) if that information or matter had been acquired or prepared

by or on behalf of ASIS, AGO, DIO or ASD

whether the

information or matter was so acquired or prepared before, on

or after that commencement.

(2)

The amendment of section 40C, and the repeal of sections 40E, 40G

and 40L, of the

Intelligence Services Act 2001

made by this Division

apply in relation to conduct engaged in by a person in relation to a

record on or after the commencement of this item, regardless of the

following:

(a) whether the record was obtained by the person before, on or

after that commencement;

(b) if that record had been acquired or prepared by or on behalf

of ASIS, AGO, DIO or ASD

whether the record was so

acquired or prepared before, on or after that commencement.

(3)

The amendment of section 40D, and the repeal of sections 40F, 40H

and 40M, of the

Intelligence Services Act 2001

made by this Division

apply in relation to the making of a record of any information or matter

by a person on or after the commencement of this item, regardless of the

following:

Schedule 2

Protecting identities and information

Part 2

Consolidating secrecy offences

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

(a) whether the information or matter came to the knowledge or

into the possession of the person before, on or after that

commencement;

(b) if that information or matter had been acquired or prepared

by or on behalf of ASIS, AGO, DIO or ASD

whether the

information or matter was so acquired or prepared before, on

or after that commencement.

Division 2

Consequential amendments

Privacy Act 1988

31 Subsection 80P(7) (paragraph (c) of the definition of

designated secrecy provision

)

Omit "39A, 40, 40B to 40H, 40L, 40M", substitute "40C, 40D".

Protecting identities and information

Schedule 2

Protection from disclosure under Archives Act 1983

Part 3

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Part

3--Protection from disclosure under Archives

Act 1983

Administrative Appeals Tribunal Act 1975

32 Subsection 3(1) (paragraph (b) of the definition of

exempt

security record

)

After "paragraph

33(1)(a) or (b)", insert "or subsection

33(4A) or (4C)".

Archives Act 1983

33 Subsection 3(1)

Insert:

ASIO affiliate

has the same meaning as in the

Australian Security

Intelligence Organisation Act 1979

ASIO employee

has the same meaning as in the

Australian Security

Intelligence Organisation Act 1979

34 Paragraphs 29(6)(a) and (7)(a)

After "paragraph

33(1)(a) or (b)", insert "or subsection

33(4A) or (4C)".

35 After subsection 33(4)

Insert:

(4A) For the purposes of this Act, a Commonwealth record is an exempt

record if:

(a) it contains information or matter:

(i) that identifies a person as being, or having been, an

ASIO employee or an ASIO affiliate; or

(ii) from which the identity of a person referred to in

subparagraph (i) could reasonably be inferred, or that

could reasonably lead to the identity of such a person

being established; and

(b) the information or matter has not been made public by means

of broadcasting or reporting proceedings of the Parliament as

authorised by the Parliament;

Schedule 2

Protecting identities and information

Part 3

Protection from disclosure under Archives Act 1983

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

unless the Minister administering section 92 of the

Australian

Security Intelligence Organisation Act 1979

or the

Director-General of Security has consented in writing to the

information or matter being made public.

(4B) If:

(a) the consent of the Minister administering section 92 of the

Australian Security Intelligence Organisation Act 1979

or the

Director-General of Security has been given in relation to

information or a matter for the purposes of that section

(before, on or after the commencement of this subsection);

and

(b) that information or matter is substantially the same as the

information or matter referred to in subsection (4A) of this

section;

the consent referred to in paragraph (a) of this subsection is taken

also to be consent given for the purposes of subsection (4A).

(4C) For the purposes of this Act, a Commonwealth record is an exempt

record if:

(a) it contains information or matter:

(i) that identifies a person as being, or having been, a staff

member of the Australian Secret Intelligence Service

(

ASIS

) (within the meaning of the

Intelligence Services

Act 2001

) or an agent of ASIS; or

(ii) from which the identity of a person referred to in

subparagraph (i) could reasonably be inferred, or that

could reasonably lead to the identity of such a person

being established; and

(b) the information or matter has not been made public by means

of broadcasting or reporting proceedings of the Parliament as

authorised by the Parliament;

unless the responsible Minister for ASIS (within the meaning of

the

Intelligence Services Act 2001

) or the Director-General of

ASIS has consented in writing to the information or matter being

made public.

(4D) If:

(a) the consent of the responsible Minister for ASIS (within the

meaning of the

Intelligence Services Act 2001

) or the

Protecting identities and information

Schedule 2

Protection from disclosure under Archives Act 1983

Part 3

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Director-General of ASIS has been given in relation to

information for the purposes of section 41 of that Act

(before, on or after the commencement of this subsection);

and

(b) that information is substantially the same as the information

referred to in subsection (4C) of this section;

the consent referred to in paragraph (a) of this subsection is taken

also to be consent given for the purposes of subsection (4C).

36 At the end of section 33

Add:

(6) A reference in this section to:

(a) the Minister administering section 92 of the

Australian

Security Intelligence Organisation Act 1979

; or

(b) the responsible Minister for ASIS (within the meaning of the

Intelligence Services Act 2001

);

is a reference only to the most senior such Minister.

Note:

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

37 At the end of subsection 39(1)

Add "or subsection

33(4A) or (4C)".

38 Paragraph 39(2)(b)

After "paragraph

33(1)(a), (b) or (e)", insert "or subsection

33(4A) or

(4C)".

Schedule 2

Protecting identities and information

Part 4

Protecting the identity of ASIO employees and ASIO affiliates

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Part

4--Protecting the identity of ASIO employees

and ASIO affiliates

Division 1

Main amendments

Australian Security Intelligence Organisation Act 1979

39 Section 92

Repeal the section, substitute:

92 Making public the identity of ASIO employees and ASIO

affiliates

Offence

(1) A person commits an offence if:

(a) the person makes information public, or causes or permits

information to be made public; and

(b) any of the following applies:

(i) the information identifies a person as being an ASIO

employee, a former ASIO employee, an ASIO affiliate

or a former ASIO affiliate;

(ii) the information could reasonably lead to establishing

the identity of a person as being an ASIO employee, a

former ASIO employee, an ASIO affiliate or a former

ASIO affiliate;

(iii) the identity of a person as being an ASIO employee, a

former ASIO employee, an ASIO affiliate or a former

ASIO affiliate could reasonably be inferred from the

information.

Penalty: Imprisonment for 10 years.

Exceptions

(2) Subsection (1) does not apply to a person making information

public, or causing or permitting information to be made public, if

the Minister or Director-General has consented in writing to the

information being made public.

Protecting identities and information

Schedule 2

Protecting the identity of ASIO employees and ASIO affiliates

Part 4

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2) (see subsection 13.3(3) of the

Criminal Code

(3) Subsection (1) does not apply to a person making information

public, or causing or permitting information to be made public, if:

(a) the information relates to a person who is a former ASIO

employee or former ASIO affiliate; and

(b) the former ASIO employee or former ASIO affiliate has:

(i) consented in writing to the information being made

public; or

(ii) caused or authorised the fact that the person is a former

ASIO employee or former ASIO affiliate to be made

public; and

permitting the information to be made public, is not that

former ASIO employee or former ASIO affiliate.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (3) (see subsection 13.3(3) of the

Criminal Code

Extended geographical jurisdiction

(4) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (1) of this section.

(5) Subsection (4) does not, by implication, affect the interpretation of

any other provision of this Act or another Act.

Attorney-

General's involvement in prosecution of offence

(6) A prosecution for an offence against subsection (1) may only be

instituted by, or with the consent of, the Attorney-General.

Note:

For communication of information about an offence against this

section to appropriate authorities, see subsection 18(3).

Minister or Director-

General's consent

(7) Consent given under this section is not a legislative instrument.

Schedule 2

Protecting identities and information

Part 4

Protecting the identity of ASIO employees and ASIO affiliates

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

92A Disclosing the identity of ASIO employees and ASIO affiliates

Offence

(1) A person (the

defendant

) commits an offence if:

(a) either:

(i) the defendant discloses information to another person;

(ii) the defendant engages in conduct that results in

information being disclosed to another person; and

(b) any of the following applies:

(i) the information identifies a person as being an ASIO

employee, a former ASIO employee, an ASIO affiliate

or a former ASIO affiliate;

(ii) the information could reasonably lead to establishing

the identity of a person as being an ASIO employee, a

former ASIO employee, an ASIO affiliate or a former

ASIO affiliate;

(iii) the identity of a person as being an ASIO employee, a

former ASIO employee, an ASIO affiliate or a former

ASIO affiliate could reasonably be inferred from the

information; and

(i) the defendant intends to endanger the health or safety of

a person;

(ii) the defendant intends to prejudice the effective

performance of the functions or duties, or the effective

exercise of the powers, of the Organisation;

(iii) the defendant knows that the disclosure will endanger

the health or safety of a person;

(iv) the defendant knows that the disclosure will prejudice

the effective performance of the functions or duties, or

the effective exercise of the powers, of the Organisation.

Penalty: Imprisonment for 10 years.

Protecting identities and information

Schedule 2

Protecting the identity of ASIO employees and ASIO affiliates

Part 4

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Extended geographical jurisdiction

(2) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (1) of this section.

(3) Subsection (2) does not, by implication, affect the interpretation of

any other provision of this Act or another Act.

Attorney-

General's involvement in prosecution of off

ences

(4) A prosecution for an offence against subsection (1) may only be

instituted by, or with the consent of, the Attorney-General.

Note:

For communication of information about an offence against this

section to appropriate authorities, see subsection 18(3).

40 Application of amendments

(1)

Subsection 92(1) of the

Australian Security Intelligence Organisation

Act 1979

, as substituted by this Division, applies to information made

public, or caused or permitted to be made public, after the

commencement of this Division (whether the information was obtained

before, on or after that commencement).

(2)

Subsections 92(2) and (3) of the

Australian Security Intelligence

Organisation Act 1979

, as substituted by this Division, apply to

information made public, or consents given, before, on or after the

commencement of this Division.

(3)

Subsection 92A(1) of the

Australian Security Intelligence Organisation

Act 1979

, as inserted by this Division, applies to information disclosed

after the commencement of this Division (whether the information was

obtained before, on or after that commencement).

Division 2

Consequential amendments

Australian Crime Commission Act 2002

41 Schedule 1 (entry relating to the

Australian Security

Intelligence Organisation Act 1979

)

Omit "and 92", substitute ", 92 and 92A".

Schedule 2

Protecting identities and information

Part 4

Protecting the identity of ASIO employees and ASIO affiliates

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Business Names Registration Act 2011

42 Paragraph 62N(3)(a)

Omit "and 92", substitute ", 92 and 92A".

Commonwealth Registers Act 2020

43 Paragraph 18(3)(a)

Omit "and 92", substitute ", 92 and 92A".

Corporations Act 2001

44 Paragraph 1270M(3)(a)

Omit "and 92", substitute ", 92 and 92A".

Criminal Code Act 1995

45 Paragraph 122.5(7)(a) of the

Criminal Code

Omit "section

92 of the

Australian Security Intelligence Organisation

Act 1979

(publication of identity of ASIO employee or ASIO affiliate)",

substitute "section

92 of the

Australian Security Intelligence

Organisation Act 1979

(making public the identity of ASIO employees

and ASIO affiliates) or section 92A of that Act (disclosing the identity

of ASIO employees and ASIO affiliates)".

Freedom of Information Act 1982

46 Schedule 3 (entry relating to the

Australian Security

Intelligence Organisation Act 1979

)

Omit "and (1A)", substitute "and 92A(1)".

National Consumer Credit Protection Act 2009

47 Paragraph 212N(3)(a)

Omit "and 92", substitute ", 92 and 92A".

Schedule 3

Authorisations for intelligence activities

Part 1

Sequencing of ministerial authorisations and clarifying references to persons

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Schedule

3--Authorisations for intelligence

activities

Part

1--Sequencing of ministerial authorisations and

clarifying references to persons

Intelligence Services Act 2001

1 Subsections 9(1A) and (1AAA)

Repeal the subsections, substitute:

(1A) 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:

(a) 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);

(b) acting for, or on behalf of, a foreign power;

(d) activities that pose a risk, or are likely to pose a risk, to the

operational security of ASIS;

(e) 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

);

(f) 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);

(g) committing a serious crime by moving money, goods or

people;

Authorisations for intelligence activities

Schedule 3

Sequencing of ministerial authorisations and clarifying references to persons

Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

(h) committing a serious crime by using or transferring

intellectual property;

(i) committing a serious crime by transmitting data or signals by

means of guided and/or unguided electromagnetic energy.

Note 1:

For

serious crime

, see section 3.

Note 2:

Certain authorisations referred to in this subsection cannot take effect

unless the Minister has obtained the agreement of the

Attorney-General (see subsection (1AAC)).

(1AAA) 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.

Note:

An authorisation referred to in this subsection cannot take effect

unless the Minister has obtained the agreement of the

Attorney-General (see subsection (1AAD)).

2 After the heading to subsection 9(1AA)

Insert:

(1AAC) 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.

(1AAD) 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.

Schedule 3

Authorisations for intelligence activities

Part 1

Sequencing of ministerial authorisations and clarifying references to persons

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

3 Subsection 9(1AA)

Omit "paragraph

(1A)(b) or (1AAA)(b)", substitute

"subsection

(1AAC) or (1AAD)".

4 Paragraph 9(5)(b)

Omit "paragraph

(1A)(b) or (1AAA)(b)", substitute

"subsection

(1AAC) or

(1AAD)".

5 Subsection 9(6)

Omit "paragraph

(1A)(b) or (1AAA)(b)", substitute

"subsection

(1AAC) or (1AAD)".

6 Subsection 9A(2) (note)

Repeal the note.

7 Subparagraph 9B(2)(c)(ii)

Omit "serious risk to a person's safety", substitute "significant risk to

the safety of any person".

8 Subsection 9B(2) (note)

Repeal the note.

9 Subparagraph 9C(1)(c)(i)

Repeal the subparagraph, substitute:

(i) the authorisation cannot take effect unless and until the

agreement of the Attorney-General has been obtained

under subsection 9(1AAC);

10 Subsections 9C(2) and (3)

Repeal the subsections, substitute:

Giving authorisation

(2) Despite subsection 9(1AAC) and subject to subsection (3) of this

section, the authorisation:

(a) may be given; and

(b) may take effect without the agreement of the

Attorney-General having been obtained.

Authorisations for intelligence activities

Schedule 3

Sequencing of ministerial authorisations and clarifying references to persons

Part 1

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Obtaining the agreement of the Director-General of Security

(3) Before an authorisation is given under section 9A or 9B, the

agency head must, unless the agency head is satisfied that the

Director-General of Security is not readily available or contactable,

obtain the agreement of the Director-General to the authorisation:

(a) being given; and

(b) taking effect without the agreement of the Attorney-General

having been obtained.

11 Subsection 9D(2)

Omit ", apart from paragraph

9(1A)(b)".

12 After subsection 9D(3)

Insert:

Agreement of the Attorney-General not required

(3A) Subsection 9(1AAC) does not apply in relation to the authorisation.

13 Paragraph 10AA(3)(a)

Omit "paragraph

9(1A)(b) or (1AAA)(b)", substitute

"subsection

(1AAC) or (1AAD)".

14 Paragraph 11(2AA)(a)

Omit "a person's safety", substitute "the safety of that person or any

other person".

15 Subsection 13B(6)

Omit "paragraph

9(1A)(a)", substitute "subsection

9(1A)".

16 Application of amendments

The amendments made by this Part apply in relation to an authorisation

given under Division 1 of Part 2 of the

Intelligence Services Act 2001

after the commencement of this Part.

Schedule 3

Authorisations for intelligence activities

Part 2

References to Attorney-General not to include junior Minister

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Part

2--References to Attorney-General not to

include junior Minister

Australian Security Intelligence Organisation Act 1979

17 After section 4

Insert:

4AA References to the Attorney-General

Despite subsection 19(1) of the

Acts Interpretation Act 1901

, a

reference in this Act to the Attorney-General is a reference only to

the Minister with that title.

Note:

A reference in this Act to the Attorney-General may include a

reference to a person acting as the Attorney-General: see

subsection 19(4) of the

Acts Interpretation Act 1901

Telecommunications (Interception and Access) Act 1979

18 After subsection 5(3)

Insert:

(3A) Despite subsection 19(1) of the

Acts Interpretation Act 1901

, a

reference in this Act to the Attorney-General is a reference only to

the Minister with that title.

Note:

A reference in this Act to the Attorney-General may include a

reference to a person acting as the Attorney-General: see

subsection 19(4) of the

Acts Interpretation Act 1901

19 Subsection 5(4)

Omit "A reference", substitute "However, a reference".

Authorisations for intelligence activities

Schedule 3

Applicant for special intelligence operation authority

Part 3

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Part

3--Applicant for special intelligence operation

authority

Australian Security Intelligence Organisation Act 1979

20 Subsection 35B(1)

Omit ", a senior position

holder or an ASIO employee".

21 Paragraphs 35B(2)(a) and (b)

Omit "the applicant", substitute "the Director

-G

eneral".

22 Subsection 35B(4)

Omit "the applicant", substitute "the Director

General".

23 Subsection 35F(1)

Omit ", a senior position

holder or an ASIO employee".

24 Paragraphs 35F(2)(a) and (b)

Omit "the applicant", substitute "the Director

General".

25 Subsection 35F(3)

Omit "the applicant", substitute "the Director

General".

26 Application of amendments

The amendments made by this Part apply in relation to an application

made under subsection 35B(1) or 35F(1) of the

Australian Security

Intelligence Organisation Act 1979

on or after the commencement of

this Part.

Schedule 4

Security vetting and security clearance related activities

Part 1

Security clearance suitability assessments

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

Schedule

4--Security vetting and security

clearance related activities

Part

1--Security clearance suitability assessments

Australian Security Intelligence Organisation Act 1979

1 Section 4 (paragraph (b) of the definition of

security

clearance suitability assessment

)

After "security vetting agency", insert "(within the meaning of

Part

IVA)".

2 At the end of paragraph 16(1C)(b)

Add "that is a prejudicial security clearance

suitability assessment

(within the meaning of Part

IVA)".

3 At the end of subsection 16(1C)

Add:

Note:

The Director-General may, under subsection (1B), delegate the power

or function under subsection 82D(1) to furnish a security clearance

suitability assessment under paragraph 82C(1)(d) that is not a

prejudicial security clearance suitability assessment.

4 Application of amendments

The amendments of the

Australian Security Intelligence Organisation

Act 1979

made by this Part apply in relation to a security clearance

suitability assessment furnished on or after the commencement of this

item.

Security vetting and security clearance related activities

Schedule 4

Delayed assessments and security clearance decisions

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Part

2--Delayed assessments and security clearance

decisions

Australian Security Intelligence Organisation Act 1979

5 Section 82A

Insert:

delayed security clearance decision

has the meaning given by

subsection 82GA(1).

delayed security clearance suitability assessment

has the meaning

given by subsection 82GA(2).

6 Section

82B (after the paragraph beginning "There are

some limitations")

Insert:

The Director-General must cause the Inspector-General of

Intelligence and Security to be notified of delayed security

clearance decisions and delayed security clearance suitability

assessments. The Director-General must make a protocol for

dealing with such decisions and suitability assessments.

7 At the end of Division 2 of Part IVA

Add:

82GA Notification of delayed security clearance decision or delayed

security clearance suitability assessment

Notification of delayed security clearance decision or security

clearance suitability assessment

(1) If a security clearance decision is not made under this Part within

12 months after the Organisation starts to consider making the

decision (the

delayed security clearance decision

), the

Director-General must cause the Inspector-General of Intelligence

Schedule 4

Security vetting and security clearance related activities

Part 2

Delayed assessments and security clearance decisions

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

and Security to be notified of the delayed security clearance

decision.

Note:

A protocol made under subsection 82GB(1) must specify when the

Organisation is taken to have started to consider making a security

clearance decision, which may be specified differently for different

classes of security clearance decisions (see subsections 82GB(3) and

(4)).

(2) If a security clearance suitability assessment is not furnished under

this Part within 12 months after the Organisation starts to prepare

the suitability assessment (the

delayed security clearance

suitability assessment

), the Director-General must cause the

Inspector-General of Intelligence and Security to be notified of the

delayed security clearance suitability assessment.

Note:

A protocol made under subsection 82GB(1) must specify when the

Organisation is taken to have started to prepare a security clearance

suitability assessment, which may be specified differently for different

classes of security clearance suitability assessments (see

subsections 82GB(3) and (4)).

(3) A notification under subsection (1) or (2) must:

(a) be made within the period specified, for the purposes of

subparagraph 82GB(3)(b)(i), in the protocol made under

subsection 82GB(1), as in force from time to time; and

(b) include the information specified in that protocol for the

purposes of subparagraph 82GB(3)(b)(ii); and

for the purposes of paragraph 82GB(3)(d).

Exceptions to requirement to notify

(4) However, subsection (1) or (2) does not apply if:

(a) the Organisation has been notified that the security clearance

decision or security clearance suitability assessment is no

longer required; or

(b) the Organisation initiated the making of the security

clearance decision or the preparation of the security clearance

suitability assessment without a request for the decision or

suitability assessment being made by another Commonwealth

agency, a State or an authority of a State.

Security vetting and security clearance related activities

Schedule 4

Delayed assessments and security clearance decisions

Part 2

No. , 2023

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

Application of this section

(5) This section applies to:

(a) a security clearance decision that the Organisation starts to

consider making on or after the commencement of this

section; and

(b) a security clearance suitability assessment that the

Organisation starts to prepare on or after the commencement

of this section.

82GB Protocol for dealing with delayed security clearance decisions

and delayed security clearance suitability assessments

Requirement to make protocol

(1) The Director-General must make a written protocol for dealing

with delayed security clearance decisions and delayed security

clearance suitability assessments.

Note 1:

For variation of a protocol, see subsection 33(3) of the

Acts

Interpretation Act 1901

Note 2:

A protocol made under this subsection may be combined with a

protocol made under subsection 42(1) (protocol for dealing with

delayed security assessments).

(2) The Director-General must consult with the Inspector-General of

Intelligence and Security before making a protocol under

subsection (1).

(3) The protocol:

(a) must specify the following:

(i) when the Organisation is taken to have started to

consider making a security clearance decision;

(ii) when the Organisation is taken to have started to

prepare a security clearance suitability assessment; and

(b) must specify the following in relation to the notification

under section 82GA of a delayed security clearance decision

or delayed security clearance suitability assessment:

(i) the period within

which the notification must be made;

(ii) the information to be included in the notification; and

Schedule 4

Security vetting and security clearance related activities

Part 2

Delayed assessments and security clearance decisions

National Security Legislation Amendment (Comprehensive Review and

Other Measures No. 3) Bill 2023

No. , 2023

relation to the delayed security clearance decision or delayed

security clearance suitability assessment after the notification

referred to in paragraph (b) is made; and

(d) may specify other requirements, or deal with any other

matters, that:

(i) relate to a delayed security clearance decision or

delayed security clearance suitability assessment, or the

notification of the decision or suitability assessment

under section 82GA; and

(ii) the Director-General considers appropriate.

(4) Without limiting subsection (1), the protocol may provide

differently for different classes of security clearance decisions or

security clearance suitability assessments.

(5) A protocol made under subsection (1) is not a legislative

instrument.

Requirement to comply with protocol

(6) The Organisation must, in relation to a delayed security clearance

decision or delayed security clearance suitability assessment to

which subsection 82GA(1) or (2) applies, comply with a protocol

made under subsection (1) of this section, as in force from time to

time.

Commonwealth of Australia Bills

NATIONAL SECURITY LEGISLATION AMENDMENT (COMPREHENSIVE REVIEW AND OTHER MEASURES NO. 3) BILL 2023

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