40Assessments and preliminary communications for State purposes

#### 40 Assessments and preliminary communications for State purposes (1) It is within the functions of the Organisation: (a) to furnish a security assessment in respect of a person to a Commonwealth agency for transmission to a State or an authority of a State for use in considering the taking of prescribed administrative action by the State or authority in respect of the person; or (b) to furnish a security assessment in respect of a person to a State or an authority of a State for use in considering the taking of prescribed administrative action by the State or authority in respect of the person. (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: (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); (c) action that is of a temporary nature and is 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. (2) The Organisation must not, other than in the form of an assessment or in accordance with subsection (1A): (a) furnish to a State or an authority of a State any information, recommendation, opinion or advice concerning a person which the Organisation knows is intended or likely to be used by the State or an authority of the State in considering prescribed administrative action in relation to that person; or (b) furnish to a Commonwealth agency any information, recommendation, opinion or advice concerning a person if the Organisation knows that the Commonwealth agency intends to communicate it to a State or an authority of a State for use in considering prescribed administrative action in relation to that person. (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). (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.