9Ministerial authorisation

#### 9 Ministerial authorisation Preconditions for giving authorisation (1) Before a Minister gives an authorisation, the Minister must be satisfied that: (a) any activities which may be done in reliance on the authorisation will be necessary for the proper performance of a function of the agency concerned; and (b) there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the authorisation beyond what is necessary for the proper performance of a function of the agency; and (c) there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in reliance on the authorisation will be reasonable, having regard to the purposes for which they are carried out; and (d) for an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the Defence Minister has requested the authorisation in writing. (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; (c) activities that are, or are likely to be, a threat to security; (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; (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 or a state sponsor of terrorism. > 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)). (1AAB) Without limiting the circumstances in which a person is involved with a listed terrorist organisation or state sponsor of terrorism, a person is taken to be involved with a listed terrorist organisation or state sponsor of terrorism if the person: (a) directs, or participates in, the activities of the listed terrorist organisation or state sponsor of terrorism; or (b) recruits a person to join, or participate in the activities of, the listed terrorist organisation or state sponsor of terrorism; or (c) provides training to, receives training from, or participates in training with, the listed terrorist organisation or state sponsor of terrorism; or (d) is: (i) a member (within the meaning of subsection 102.1(1) of the Criminal Code) of the listed terrorist organisation; or (ii) a member (within the meaning of subsection 110.1(1) of the Criminal Code) of the state sponsor of terrorism; or (e) provides financial or other support to the listed terrorist organisation or state sponsor of terrorism; or (f) advocates for, or on behalf of, the listed terrorist organisation or state sponsor of terrorism. Agreement of the Attorney‑General (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. (1AA) Without limiting subsection (1AAC) or (1AAD), the Attorney‑General may, in writing: (a) specify classes of Australian persons who are, or are likely to be: (i) involved in an activity or activities that are, or are likely to be, a threat to security; or (ii) involved with a listed terrorist organisation or state sponsor of terrorism; and (b) give his or her agreement in relation to any Australian person in that specified class. (1AB) An agreement given in accordance with subsection (1AA) may: (a) relate to an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib) or (ii); and (b) specify the period during which the agreement has effect. (1AC) If an agreement relating to a specified class of Australian persons specifies a period in accordance with paragraph (1AB)(b), the agreement of the Attorney‑General is, for authorisations to be given after the period ends, taken not to have been obtained in relation to a person in that class. > Note: The agreement of the Attorney‑General would need to be obtained again in relation to such a person. Content and form of authorisation (2) The Minister may give an authorisation in relation to: (a) an activity, or class of activities, specified in the authorisation; or (b) acts of a staff member or agent, or a class of staff members or agents, specified (whether by name or otherwise) in the authorisation; or (c) activities done for a particular purpose connected with the agency’s functions. (3) An authorisation is subject to any conditions specified in it. (4) An authorisation must specify how long it will have effect. The period of effect specified in an authorisation for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(i), (iaa), (ia), (ib), (ii) or (iii) must not exceed 6 months. (4A) An authorisation must be in writing. Requirement to keep copies (5) If a Minister gives an authorisation under this section in relation to an agency, the relevant agency head must ensure that copies of the following are kept by the agency and are available for inspection on request by the Inspector‑General of Intelligence and Security: (a) the authorisation; (b) any record or copy of an agreement given under subsection (1AAC) or (1AAD) (including any agreement given in accordance with subsection (1AA)); (c) if the authorisation is for an activity, or a series of activities, of a kind mentioned in subparagraph 8(1)(a)(ia) or (ib)—the request from the Defence Minister referred to in paragraph (1)(d) of this section. Status of instruments (6) A request under paragraph (1)(d), an agreement under subsection (1AAC) or (1AAD) (if in writing), a request under subsection (5) (if in writing), and an authorisation under this section, are not legislative instruments. Definitions (7) In this section: > security has the same meaning as in the Australian Security Intelligence Organisation Act 1979. > UN sanction enforcement law has the same meaning as in the Charter of the United Nations Act 1945.