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Disclosures of information about ASIO's activities

Fact sheet

Different rules apply in relation to disclosures of information about activities undertaken by ASIO in carrying out its functions under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act).

There are some situations in which it is permissible to disclose information about ASIO's activities, and some situations in which such disclosures are illegal. Serious penalties, including prison terms, may apply to unlawful disclosures of information about ASIO's activities.

Generally

The disclosure of ASIO information by ASIO staff or contractors is regulated by section 18 of the ASIO Act, and unauthorised disclosure is an offence punishable by up to 2 years imprisonment.

Special powers

The ASIO Act and other legislation gives the Attorney-General the power to issue, at the request of the Director-General of Security, warrants authorising ASIO to use intrusive methods of investigation to assist in carrying out its functions. These "special powers" warrants include warrants authorising ASIO to enter and search premises.

While there is no specific provision of the ASIO Act which would make it an offence for a person to disclose the fact that a special powers warrant has been applied for, issued or executed, any such disclosure could constitute an offence against section 70 of the Crimes Act 1914 for Commonwealth officers or section 18 of the ASIO Act.

Generally, where a member of the general public becomes aware that a warrant under the ASIO Act has been issued or executed, it would not be an offence under the ASIO Act for the person to disclose or pass on that information.

Telecommunications (Interception) Act 1979

The Telecommunications (Interception) Act 1979 (the TI Act) gives the Attorney-General the power to issue telecommunications interception warrants to ASIO.

It is an offence under the TI Act to communicate intercepted information, to disclose the fact that a telecommunications interception warrant has been applied for, issued or has expired, or any information as to the existence or non-existence of a warrant, or to identify a telecommunications service or person to which a warrant relates.

Questioning warrants

Under the ASIO Act, the Director-General of Security may, with the consent of the Attorney-General, request a warrant authorising ASIO to question a person for the purpose of investigating terrorism. The warrant may authorise police officers to detain the person in limited circumstances.

Unlike other special powers warrants, these warrants are not issued by the Attorney-General, but rather by an independent issuing authority (a Federal Magistrate or a Federal Judge).

There are some specific rules in the ASIO Act regulating disclosures of information about questioning warrants, and questioning and detention warrants.

For the 28 day period in which a questioning warrant, or a questioning and detention warrant, remains in force - It is an offence punishable by a maximum of 5 years imprisonment for any person to disclose, without permission (see below) the fact that the questioning warrant, or questioning and detention warrant, has been issued, or any fact relating to the content of the warrant or to the questioning or detention of a person in connection with the warrant, or any operational information.

For the period of 2 years after the expiry of a questioning warrant, or a questioning and detention warrant - It is an offence, also punishable by a maximum of 5 years imprisonment, for any person to disclose, without permission (see below) operational information.

In either case, operational information means information ASIO has or had, a source of information, or an operational capability, method or plan of ASIO, where the information has been obtained as a direct or indirect result of the issue of the warrant, or the doing of any thing authorised by or in connection with the warrant.

The ASIO Act authorises information to be disclosed in certain circumstances, for example where a person needs to seek legal advice in relation to a warrant. The ASIO Act gives the Attorney-General, the Director-General of Security and certain others the power to permit a person to disclose information.

These secrecy provisions apply only to questioning warrants, and do not apply to "special powers" warrants (such as search warrants).

Note: This fact sheet provides a summary of the relevant provisions of the ASIO Act. To understand the precise legal effect of these provisions, see Part III Division 3 of the ASIO Act.

1 July 2005