ANNEX 15: THE LAW OF THE FIVE EYES
21.
Before any authorisation is made (on any of the bases set out above) the authorised
officer considering making the authorisation must be satisfied on reasonable grounds
that any interference with privacy is justifiable and proportionate.46
22.
An authorisation, the notification of that authorisation, revocation and notification of the
revocation must be in written or electronic form, and must contain:
(a)
The identity of the eligible person and the basis on which they are eligible to
make the authorisation;
(b)
The person or company from whom the disclosure is sought;
(c)
Details of the information or documents to be disclosed;
(d)
A statement that the eligible person considers that to be in connection with
ASIO’s functions; and
(e)
The date of the authorisation. 47
23.
Authorisations made on behalf of an enforcement agency must set out certain
additional material. The rules are very detailed and vary, depending on whether the
material is historic or prospective and on behalf of a foreign government or not.
24.
Each year, the head of an enforcement agency must give the Minister a written report
that sets out the number of authorisations made and the number of disclosures to
foreign countries and names of those countries. The minister consolidates that material
and lays before Parliament a report that sets out the consolidated material.48
The Australian Secret Intelligence Service
25.
Different provisions apply to the activities of ASIS (the equivalent of MI6), which are
controlled by the Intelligence Services Act 2001 [ISA 2001].
26.
ASIS may gather intelligence about an Australian person or class of Australian persons
outside Australia, as long as this is authorised by the Minister for Foreign Affairs.49 The
Minister must be satisfied that gathering the intelligence is necessary for the proper
performance of one of ASIS’s statutory functions, and the person or class of persons
is involved in one of a list of specified activities (such as acting for a foreign power, or
other activities that pose a threat to Australia’s security).50 ISA 2001 s14 waives any
liability for ASIS in respect of acts committed overseas that would be unlawful if done
pursuant to a proper function of the agency. That waiver does not extend to activities
inside Australia that ASIO could not carry out without a warrant, but it may well include
interceptions overseas.
46
TIA 1979 s180F.
The Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and
Revocations) Determination 2012, drafted by the Communications Access Co-ordinator.
TIA 1979 s186.
TIA 1979 s9.
ISA 2001 s9.
47
48
49
50
353