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Inspection of agencies subject to the Intelligence Services Act 2001

Limits on intelligence agencies' functions

The functions of the Intelligence Services Act 2001 (the ISA) agencies are set out in sections 6, 6B and 7 of the ISA. For example, for ASIS the most relevant functions 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. The work of ASIS, ASD and AGO is guided by the national intelligence priorities, which are reviewed and agreed by the National Security Committee of Cabinet each year.

The ISA also requires that ASIS, ASD and AGO only perform their functions in the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia.

Ministerial authorisations

Previously all activities undertaken by ASIS, ASD or AGO to produce intelligence on an Australian person required individual consideration and approval by the agency minister; changes to legislation made during the current reporting period introduced a number of exceptions. In summary these are:

  • Intelligence can be produced by ASIS on an Australian person without ministerial authorisation if doing so assists ASIO in the performance of its functions;
  • 'class authorisations' can be given by the minister where the intelligence is produced by ASIS in the course of providing assistance to the Defence Force
  • Agency heads may given an authorisation in an emergency when ministers are not available

Agencies' use of these new powers is discussed later in this report.

Ministers are still able to direct that other activities require prior ministerial approval, and each Minister has done so. In AGO's case, any intelligence collected over Australian territory requires authorisation by the head of the agency.

Privacy rules

Section 15 of the ISA provides that the ministers responsible for ASIS, ASD and AGO must make written rules to regulate the communication and retention of intelligence information concerning Australian persons (privacy rules). The term 'Australian person' includes citizens and certain permanent residents and companies. The rules regulate the agencies' communication of intelligence information concerning Australian persons to other Australian agencies and to foreign authorities including to Australia's closest intelligence partners. Communication to foreign authorities is also subject to additional requirements. The privacy rules are unclassified and appear on the agency websites. No changes were made to the privacy rules in this reporting period.

Privacy rules require that agencies may only retain or communicate information about an Australian person where it is necessary to do so for the proper performance of each agency's functions, or where the retention or communication is required under another Act.

If a breach of an agency's privacy rules is identified, the agency in question must advise the IGIS of the incident, and the measures taken by the agency to protect the privacy of the Australian person, or Australian persons more generally. Adherence to this reporting requirement provides us with sufficient information upon which to decide whether appropriate remedial action has been taken, or further investigation and reporting back to the IGIS is required.

The presumption of nationality

The privacy rules require that ASIS, ASD and AGO are to presume that a person located in Australia is an Australian person, and that a person who is located outside of Australia is not an Australian person unless there is evidence to the contrary.

An agency may later overturn an initial presumption of nationality, for example:

  • New information or evidence may indicate that a person overseas is an 'Australian person'. If it was not reasonable for this information to have been known and considered at the time the initial assessment was made then the presumption of nationality could be overturned but there would have been no breach of the privacy rules.
  • The agency may discover that it was already in possession of evidence that indicated that a person was an Australian person that should have been considered in the initial assessment, or another Australian agency might have possessed that information. In this case the presumption of nationality would be overturned and if intelligence information had already been communicated about the Australian person there could have been a breach of the privacy rules. There may also be a breach of the ministerial authorisation rules if intelligence collection actually was undertaken.

If the agency made a reasonable assessment of the nationality status of that person, based on all information which was available at the time, there is no breach of the privacy rules.

Where a presumption of nationality is later found to be incorrect ASIS, ASD and AGO must advise us of this and the measures taken to protect the privacy of the Australian concerned.

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