Australian Security Intelligence Organisation Regulations 2025

EXPLANATORY STATEMENT

Issued by the Minister for Home Affairs

Australian Security Intelligence Organisation Act 1979

Australian Security Intelligence Organisation Regulations 2025

Legislative Authority

The Australian Security Intelligence Organisation Act 1979 (the Act) establishes the functions, duties and powers of the Australian Security Intelligence Organisation (ASIO).

Section 95 of the Act provides that the Governor-General may make such regulations, not inconsistent with the Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

Purpose

The Australian Security Intelligence Organisation Regulations 2025 (the Regulations) repeal and remake the Australian Security Intelligence Organisation Regulation 2016 (the ASIO Regulation 2016), as that instrument is scheduled to sunset on 1 April 2026.

The Regulations retain the substantive provisions of the ASIO Regulation 2016, prescribing matters in relation to:

• cooperation with the Department of Defence in the performance of its functions;
• secrecy relating to questioning warrants under Division 3 of Part III of the Act;
• lawyers’ access to security information for proceedings relating to a questioning warrant under Division 3 of Part III of the Act; and
• information to be provided on notification of a right to seek review of a security assessment made under Part IV of the Act and certain security clearance decisions and security clearance suitability assessments made under Part IVA of the Act.

The Regulations also include minor amendments to clarify their intended operation, remove a redundant reference and streamline the notice requirements for external and independent review pathways, including:

Part 4 of Chapter 3 of the Legislation Act 2003 (the Legislation Act) provides that legislative instruments sunset after a fixed period of time, subject to some exceptions.

The ASIO Regulation 2016 is scheduled to sunset on 1 April 2026. Prior to the sunset date, the Department of Home Affairs (the Department) conducted a fitness-for-purpose review to determine whether the ASIO Regulation 2016 remains necessary and should be remade. The review found that the ASIO Regulation 2016 was operating as intended, remains necessary and should be remade with minor amendments.

The Regulations clarify that ASIO may cooperate with and assist the Department of Defence, which includes the Defence Force, in the performance of their functions under paragraph 19A(1)(e) of the Act. As the Explanatory Statement to the ASIO Regulation 2016 notes, the existing reference to the ‘Defence Department’ includes the ‘Defence Force’. The Regulations will separately list the ‘Defence Department’ and ‘Defence Force’ for clarity.

The Regulations remove a reference to subsection 38A(2) of the Act in section 9 of the ASIO Regulation 2016. Section 38A of the Act was repealed by the Security of Critical Infrastructure and Other Legislation Amendment (Enhanced Response and Prevention) Act 2024, so this reference was redundant.

The Regulations expressly permit the use of an electronic link or website address to provide access to or explain matters which must be contained in a notice for an assessment or decision which is reviewable by the ART or an independent reviewer, such as factual information on the fees or timeframes associated with a particular review. This provides additional flexibility for a decision-maker to consider the most appropriate and efficient way to convey information in a notice depending on the circumstances, consistent with rule 16(5) of the Administrative Review Tribunal Rules 2024.

The Regulations also enable ASIO to provide a tailored notice to an affected person who is the subject of an externally reviewable decision under Part IVA of the Act, which is subject to a conclusive certificate under section 83E of the Act. This clarifies that ASIO can provide tailored information to a person whose right of review has been limited by the operation of a conclusive certificate.

Finally, the Regulations include minor drafting improvements to reflect current best practice.

Details and operation

The Regulations are a legislative instrument for the purposes of the Legislation Act.

The Regulations commence on the day after they are registered on the Federal Register of Legislation.

The Regulations prescribe certain matters which enable the carrying out of or giving effect to the Act.

Part 2 enables ASIO to cooperate with and assist prescribed bodies. Section 6 prescribes the ‘Defence Department’ and the ‘Defence Force’ for the purposes of paragraph 19A(1)(e) of the Act, which enables ASIO to cooperate and assist ‘Defence Department’ and the ‘Defence Force’ in the performance of their functions.

Part 3 prescribes matters related to questioning warrants under Division 3 of Part III of the Act. Section 7 regulates the right of access to security information by a lawyer acting for a person in connection with proceedings for a remedy relating to either a questioning warrant or the treatment of the person in connection with such a warrant. Section 8 provides that, for the purposes of subsection 34GF(6) of the Act, a prescribed authority must not give a direction to a lawyer, for the subject of a questioning warrant, to communicate to anyone else information that is obtained during the questioning or apprehension of the subject under warrant, which relates to sources of holdings of intelligence or ASIO’s method of operations.

Part 4 prescribes the information that must be contained in a notice in relation to review of a security assessment made under Part IV of the Act and certain security clearance decisions and security clearance suitability assessments made under Part IVA of the Act. Section 9 prescribes the information to be included in a notice given under subsection 38(1) of the Act concerning an affected person's right to apply to the ART for a review of an adverse or qualified security assessment. Section 10 prescribes information for the purposes of subsection 82J(2) of the Act concerning an affected person's right to apply to ASIO for internal review of an internally reviewable decision. Section 11 prescribes information for the purposes of subsections 82L(6) and 83A(2) of the Act concerning an affected person's right to apply to the ART for review of an externally reviewable decision. Section 12 prescribes information for the purposes of subsection 82L(6A) of the Act concerning an affected person's right to apply to an independent reviewer for review of an independently reviewable decision.

Further details of the Regulations are set out in Attachment A.

Consultation

In accordance with section 17 of the Legislation Act, the Department consulted relevant stakeholders on whether the ASIO Regulation 2016 should be remade and any necessary amendments.  

Stakeholders included: ASIO, the Office of National Intelligence, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence Organisation, the Australian Criminal Intelligence Commission, the Australian Federal Police, the Australian Transaction Reports and Analysis Centre, the Office of the Inspector-General of Intelligence and Security, the Attorney-General's Department, the Department of Defence and the Department of Foreign Affairs and Trade.

No public consultation was undertaken given the limited scope of the instrument.

Parliamentary scrutiny and other matters

A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 and is set out in Attachment B.

The Regulations are subject to section 50 of the Legislation Act and will be automatically repealed on the first 1 April or 1 October falling on or after the tenth anniversary of their registration.

ATTACHMENT A

Details of the Australian Security Intelligence Organisation Regulations 2025Part 1—Preliminary

Section 1 – Name

This section provides that the title of the Regulations is the Australian Security Intelligence Organisation Regulations 2025.

Section 2 – Commencement

This section provides for the Regulations to commence the day following registration.

Section 3 – Authority

This section provides that the Regulations are made under the Australian Security Intelligence Organisation Act 1979 (the Act).

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 specifies that the Australian Security Intelligence Organisation Regulation 2016 (the ASIO Regulation 2016) is to be repealed.

Section 5 – Definitions

This section contains definitions that are used in the Regulations.

The note to this section highlights that a number of expressions used in the Regulations, including lawyer, questioning warrant and Organisation, are defined in the Act. This reflects the operation of paragraph 13(1)(b) of the Legislation Act 2003, which provides that expressions used in instruments made under enabling legislation have the same meaning as in the enabling legislation.

Part 2—Cooperation

Section 6 – Cooperation with intelligence and law enforcement agencies etc.

This section prescribes the ‘Defence Department’ and the ‘Defence Force’ for the purposes of paragraph 19A(1)(e) of the Act.

‘Defence Department’ is defined in section 4 of the Act to mean the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903 (the Defence Act).

The ‘Defence Force’ is an authority of the Commonwealth pursuant to the definition of ‘authority of the Commonwealth’ in section 4 of the Act. The ‘Defence Force,’ as per the Defence Act, consists of the Royal Australian Navy, the Australian Army, and the Royal Australian Air Force.

Subsection 19A(1) of the Act allows ASIO to cooperate with and assist a number of bodies in the performance of their functions, including other Commonwealth intelligence collection agencies and law enforcement agencies, and authorities of the Commonwealth or of a State prescribed by the regulations for the purposes of paragraph 19A(1)(e) of the Act.

This section enables ASIO to cooperate with and assist the Department of Defence, which includes the Defence Force, in the performance of their functions. Assistance may include, but is not limited to, capability sharing such as the provision of linguistic, analytical, technical or logistical support. By prescribing the ‘Defence Department’ and the ‘Defence Force’ under section 6, ASIO will, for example, be able to provide Department of Defence APS employees, contractors to the Department of Defence and Defence Force personnel training on technical equipment, provide support to its recovery and humanitarian operations, and assist in developing new capabilities. By prescribing the ‘Defence Department’ and the ‘Defence Force’ under section 6, ASIO will, for example, be able to provide Department of Defence APS employees, contractors to the Department of Defence and Defence Force personnel training on technical equipment, provide support to its recovery and humanitarian operations, and assist in developing new capabilities.

In accordance with subsection 19A(2) and (3) of the Act, ASIO may only cooperate with and assist the Department of Defence, including the Defence Force, by making the services of ASIO employees and ASIO affiliates, and other resources of ASIO, available to these bodies, subject to any arrangements made or directions given by the Minister, and on request by the head of these bodies.

Part 3—Questioning warrants

Section 7 – Lawyers’ access to security information for proceedings relating to questioning warrant

Subsection 7(1) regulates access to security information by a lawyer acting for a person in connection with proceedings for a remedy relating to a questioning warrant in relation to the person or the treatment of the person in connection with such a warrant, for the purposes of section 34FH of the Act. Security information is information that is otherwise controlled or limited on security grounds.

Subsection 7(2) provides that access to security information is to be given to a lawyer only if the lawyer has been given a security clearance in relation to the information at the level considered appropriate by the Secretary of the Department, or if the Secretary of the Department is satisfied that giving the lawyer access to the information would not be prejudicial to the interests of security. The reference to the ‘Department’ is the Department responsible for administering the Act. A note following subsection 7(2) clarifies that security clearances are given in accordance with the Australian Government’s Protective Security Policy Framework.

Subsection 7(3) provides that the Secretary of the Department may impose such conditions as the Secretary considers appropriate on the lawyer’s access to the security information, including conditions relating to the use, handling, storage or disclosure of the information.

Subsection 7(4) clarifies that nothing in this section entitles a lawyer who has been given security clearance to be given access to security information.

Section 8 – Secrecy relating to questioning warrants

Section 34GF of the Act creates offences for unauthorised disclosures of information pertaining to questioning warrants and sets out a range of permitted disclosures of information where the offences do not apply. Subsection 34GF(6) of the Act provides that a prescribed authority may give a direction, not inconsistent with the regulations (if any), permitting the subject of a questioning warrant, the lawyer for the subject, or a minor’s representative for the subject, to disclose specified information to a specified person. The direction may be given either unconditionally or subject to specified conditions. For example, the prescribed authority may give a direction permitting the lawyer for the subject to disclose specific information to a different lawyer for the purpose of seeking legal advice in relation to their own conduct in questioning.   

Section 8 provides that, for the purposes of subsection 34GF(6) of the Act, a direction given by the prescribed authority to a lawyer for the subject of a questioning warrant must not permit the lawyer to communicate to anyone else information that is obtained during questioning of the subject under the warrant or apprehension of the subject in connection with the warrant, and that relates to sources or holdings of intelligence, or ASIO’s method of operations.

Section 8 does not seek to limit the operation of section 34GF of the Act. Instead, it

prevents the prescribed authority from giving a direction under subsection 34GF(6) of the Act permitting the disclosure of particular information. This reflects that the disclosure of such information would likely prejudice national security, including undermining the effectiveness of ASIO's operations, and such information requires protection from disclosure.

The first note in this section clarifies that the section limits the disclosure of information that may be permitted under a direction given by a prescribed authority under subsection 34GF(6) of the Act. The second note in the section clarifies that a disclosure of information in contravention of such a direction may not be a permitted disclosure for the purposes of section 34GF of the Act.

Part 4—Prescribed information for notices

Section 9 – Prescribed information—review of security assessments under Part IV of the Act

Subsection 9(1) prescribes, for the purposes of subsection 38(1) of the Act, the information that must be given in a notice to a person in relation to an adverse or qualified security assessment made under Part IV of the Act in respect of the person.

Paragraph 9(1)(a) requires that a notice given to a person, in relation to an adverse or qualified security assessment made in respect of them, must contain a statement that ASIO is an exempt agency under subsection 7(1) of the Freedom of Information Act 1982 (the FOI Act) and that the person is not able to obtain access to documents or information about the assessment under that Act.

Paragraph 9(1)(b) requires that a notice given to a person, in relation to an adverse or qualified security assessment made in respect of them, must also contain information about certain matters relating to the person’s right to apply to the Administrative Review Tribunal (ART) for review of the assessment, including:

• how the person may seek the review and how the application for that review is to be made;
• whether there are any time limits for seeking the review, and if so, what those time limits are;
• whether or not a fee is payable for that review and if so, the amount of the fee and when it is payable;
• whether the ART is required to conduct the review within a particular period, and if so, what that period is;
• any procedures of the ART that ASIO considers that an affected person should be made aware of, including whether an affected person may be contacted by the ART.

Section 267 of the Administrative Review Tribunal Act 2024 (the ART Act) provides that a decision-maker must have regard to the matters (if any) prescribed in the Administrative Review Tribunal Rules 2024 (the ART Rules) in giving a notice of a reviewable decision by the ART. The information prescribed in paragraph 9(1)(b) is consistent with rule 16(4) of the ART Rules, which provides that a notice of decision should clearly explain a number of matters, including the kind of review available, how the person can apply for the review and applicable fees and time periods.

Subsection 9(2) provides that, in giving information about the matters mentioned in paragraph 9(1)(b), the notice may include an electronic link or website address to provide access to or explain the information. This provides flexibility for a decision-maker to consider the most appropriate and efficient way to convey information in a notice in the circumstances. It also provides a mechanism to ensure the person receiving the notice has access to factual information directly from an appropriate source. For example, a notice could direct a person to the ART website which provides detailed information about fees and related arrangements, rather than including lengthy information about fee arrangements replicated from the website. This is consistent with rule 16(5) of the ART Rules, which provides that it is possible for a notice of a decision to explain a matter by providing an electronic link or website address that can be used to access an explanation.  

The note under subsection 9(2) makes clear that whether it is appropriate to include an electronic link or website address to provide access to or explain particular information will depend on the circumstances. This may include the particular circumstances of the recipient. For example, where a person is prohibited from accessing, or has limited access to, the internet, it may be more appropriate to explain the matters in the notice in full, rather than referring the person to a website.

Section 10 – Prescribed information—internally reviewable decisions under Part IVA of the Act

Section 10 prescribes, for the purposes of subsection 82J(2) of the Act, the information that must be given in a notice to an affected person in relation to an internally reviewable decision mentioned in subsection 82J(1) of the Act.

Paragraph 10(a) requires that a notice given to an affected person, in relation to an internally reviewable decision, must contain a statement that ASIO is an exempt agency under subsection 7(1) of the FOI Act and that the affected person is not able to obtain access to documents or information about the decision under that Act.

Paragraph 10(b) requires that a notice given to an affected person, in relation to an internally reviewable decision, must also contain information about the person’s right to apply to ASIO for an internal review of the internally reviewable decision, including:

• how the person may seek the review and how the application for that review is to be made;
• whether there are any time limits for seeking the review, and if so, what those time limits are;
• whether or not a fee is payable for that review and if so, the amount of the fee and when it is payable;
• whether the internal reviewer is required to conduct the review within a particular period, and if so, what that period is;
• any procedures of the internal reviewer that ASIO considers that an affected person should be made aware of, including whether an affected person may be contacted by the internal reviewer.

Section 11 – Prescribed information—externally reviewable decisions under Part IVA of the Act

Subsection 11(1) prescribes, for the purposes of subsections 82L(6) and 83A(2) of the Act, information for a notice given to an affected person in relation to an externally reviewable decision referred to in subsection 82L(5) or 83A(1) of the Act.  

Subsection 11(2) prescribes information that must be contained in a notice for an externally reviewable decision, in circumstances when the Minister has not issued a conclusive certificate in relation to the externally reviewable decision under subsection 83E(1) of the Act. Paragraph 11(2)(a) requires that, if the Minister has not issued a conclusive certificate, a notice given to an affected person, in relation to an externally reviewable decision, must include a statement that ASIO is an exempt agency under subsection 7(1) of the FOI Act and that the affected person is not able to obtain access to documents or information about the decision under that Act.

Paragraph 11(2)(b) requires that a notice given to an affected person, in relation to an externally reviewable decision which is not subject to a conclusive certificate, must also contain information about certain matters relating to the person’s right to apply to the ART for review of the externally reviewable decision, including:

• how the person may seek the review and how the application for that review is to be made;
• whether there are any time limits for seeking the review, and if so, what those time limits are;
• whether or not a fee is payable for that review and if so, the amount of the fee and when it is payable;
• whether the ART is required to conduct the review within a particular period, and if so, what that period is;
• any procedures of the ART that ASIO considers that an affected person should be made aware of, including whether an affected person may be contacted by the ART.

Section 267 of the ART Act provides that a decision-maker must have regard to the matters (if any) prescribed in the ART Rules in giving a notice of a reviewable decision by the ART. The information prescribed in paragraph 11(2)(b) is consistent with rule 16(4) of the ART Rules, which provides that a notice of decision should clearly explain a number of matters, including the kind of review available, how the person can apply for the review and applicable fees and time periods.

Subsection 11(3) provides that, in giving information about the matters mentioned in paragraph 11(2)(b), the notice may include an electronic link or website address to provide access to or explain the information. This provides flexibility for a decision-maker to consider the most appropriate and efficient way to convey information in a notice in the circumstances. It also provides a mechanism to ensure the person receiving the notice has access to factual information directly from an appropriate source. For example, a notice could direct a person to the ART website which provides detailed factual information about fees and related arrangements, rather than including lengthy information about fee arrangements replicated from the website. This is consistent with rule 16(5) of the ART Rules, which provides that it is possible for a notice of a decision to explain a matter by providing an electronic link or website address that can be used to access an explanation.  

The note under subsection 11(3) also makes clear that whether it is appropriate to include an electronic link or website address to provide access to or explain particular information will depend on the circumstances. This may include the particular circumstances of the recipient. For example, where a person is prohibited from accessing, or has limited access to, the internet, it may be more appropriate to explain the matters in the notice in full, rather than referring the person to a website.

Subsection 11(4) enables ASIO to provide a tailored notice to an affected person who is the subject of an externally reviewable decision under Part IVA of the Act, which is subject to a conclusive certificate under section 83E of the Act. This ensures that ASIO can provide tailored information to a person about the effect of a conclusive certificate on their right of review.

Subsection 11(4) prescribes that, if the Minister has issued a conclusive certificate in relation to the externally reviewable decision under subsection 83E(1) of the Act, a notice given to an affected person must contain a statement given by ASIO that:

• ASIO is an exempt agency under subsection 7(1) of the FOI Act and that the person is not able to obtain access to documents or information about the decision under that Act; and
• the decision is an externally reviewable decision under section 83 of the Act; and
• the Minister has issued a conclusive certificate in relation to the decision under subsection 83E(1) of the Act; and
• the effect of the certificate is that the ART must not review, or continue to review, the decision.

Section 12 – Prescribed information—independently reviewable decisions under Part IVA of the Act

Section 12(1) prescribes, for the purposes of subsection 82L(6A) of the Act, the information that must be contained in a notice given to an affected person in relation to an independently reviewable decision mentioned in subsection 82L(5) of the Act.

Paragraph 12(1)(a) requires that a notice given to an affected person, in relation to an independently reviewable decision, must contain a statement that ASIO is an exempt agency under subsection 7(1) of the FOI Act and that the affected person is not able to obtain access to documents or information about the decision under that Act.

Paragraph 12(1)(b) requires that a notice given to an affected person, in relation to an independently reviewable decision, must contain information about certain matters relating to the person’s right to apply to an independent reviewer for review of the independently reviewable decision, including:

• how an affected person may seek review, by an independent reviewer, of the independently reviewable decision, including how the application for that review is to be made;
• whether there are any time limits for seeking that review and, if so, what those time limits are;
• whether or not a fee is payable for that review and, if so, the amount of the fee and when it is payable;
• whether the independent reviewer is required to conduct the review within a particular period and, if so, what that period is;
• any procedures of the independent reviewer that ASIO considers that an affected person should be made aware of, including whether an affected person may be contacted by the independent reviewer.

Subsection 12(2) provides that, in giving information about the matters mentioned in paragraph 12(1)(b), the notice may include an electronic link or website address to provide access to or explain the information. This provides flexibility for a decision-maker to consider the most appropriate and efficient way to convey information in a notice in the circumstances. It also provides a mechanism to ensure the person receiving the notice has access to factual information directly from an appropriate source. For example, a notice could direct a person to the Attorney-General’s Department’s website which provides detailed factual information about the internal review process. This is consistent with rule 16(5) of the ART Rules, which provides that it is possible for a notice of a decision to explain a matter by providing an electronic link or website address that can be used to access an explanation.  

The note under subsection 12(2) also makes clear that whether it is appropriate to include an electronic link or website address to provide access to or explain particular information will depend on the circumstances. This may include the particular circumstances of the recipient. For example, where a person is prohibited from accessing, or has limited access to, the internet, it may be more appropriate to explain the matters in the notice in full, rather than referring the person to a website.

Schedule 1—Repeals

Australian Security Intelligence Organisation Regulation 2016

Item 1 – The whole of the instrument

This schedule repeals the ASIO Regulation 2016 in its entirety. This is in order to substitute the Regulations as the relevant instrument made under section 95 of the Act.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Security Intelligence Organisation Regulations 2025

This Disallowable Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Australian Security Intelligence Organisation Regulations 2025 (the Regulations) provide a mechanism to prescribe certain matters which enable the carrying out of or giving effect to the Australian Security Intelligence Organisation Act 1979 (the Act).

The Australian Security Intelligence Organisation’s (ASIO) purpose is to protect Australia and Australians from threats to their security as defined in section 4 of the Act. ASIO achieves this by obtaining, correlating, evaluating and communicating intelligence relevant to security. The Regulations are an important part of the legislative framework enabling ASIO’s functions, prescribing matters in relation to:

• cooperation with the Department of Defence in the performance of its functions;
• secrecy relating to questioning warrants under Division 3 of Part III of the Act;
• lawyers’ access to security information for proceedings relating to a questioning warrant under Division 3 of Part III of the Act; and
• information to be provided on notification of a right to seek review of a security assessment made under Part IV of the Act and certain security clearance decisions and security clearance suitability assessments made under Part IVA of the Act.

The Regulations also repeal the Australian Security Intelligence Organisation Regulation 2016 (the ASIO Regulation 2016), which is scheduled to sunset on 1 April 2026. The Regulations retain the substantive provisions of the ASIO Regulation 2016 with minor amendments, including:

• a technical update to remove a reference to subsection 38A(2) of the Act, which is now redundant as section 38A has been repealed in its entirety;

Human rights implications

The Regulations may engage the following human rights:

The right to freedom of expression in Article 19 of the ICCPR

Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information of all kinds. However, Article 19(3) also relevantly provides that the exercise of the right to freedom of expression can be subject to certain restrictions for the protection of national security, provided that any restrictions are necessary and prescribed by legislation.

Section 7 of the Regulations regulates access to security information by a lawyer acting for a person in connection with proceedings for a remedy either relating to a questioning warrant, or the treatment of the person under the questioning warrant. The provision grants access to security information to the lawyer only if the lawyer has been given a security clearance at a level considered appropriate by the Secretary of the Department, or if the Secretary of the Department is satisfied that granting the access would not be prejudicial to the interests of security. Furthermore, the Secretary of the Department may impose appropriate conditions on the lawyer’s access to the security information.

Section 8 of the Regulations provide that a direction given by a prescribed authority under subsection 34GF(6) of the Act to a lawyer for the subject of a questioning warrant permitting the lawyer to disclose specified information to a specified person, must not permit the lawyer to communicate information that is obtained in the course of questioning of the subject, or apprehension of the subject in connection with the warrant, that relates to sources or holdings of intelligence or ASIO’s method of operations. The provision itself does not prohibit disclosure; rather, it prevents a prescribed authority from giving a direction under subsection 34GF(6) of the Act which would permit the disclosure of information regarding ASIO’s intelligence capabilities.

Sections 7 and 8 of the Regulations engage the right to freedom of expression by restricting the access to and disclosure of particular information. However, the restrictions are necessary for the protection of national security. The disclosure of particular information, such as information relating to ASIO’s methods of operations, its sources and intelligence holdings, would be likely to compromise ASIO’s operations or investigations, and cause harm to Australia’s national security. The provisions also represent a reasonable and proportionate limitation on the right to freedom of expression, because it goes no further than is necessary to maintain secrecy of national security information and continues to allow for legal representation of a subject during questioning, or for proceedings for a remedy relating to the questioning warrant or treatment in connection to the warrant. This measure is therefore consistent with the right to freedom of expression.

The right to an effective remedy in Article 2(3) of the ICCPR

Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR.

Section 7 engages the right to an effective remedy, as the provision regulates access to security information by a lawyer acting for a person in connection with proceedings for a remedy either relating to a questioning warrant or the treatment of the person under the questioning warrant. However, the section relates only to security information and does not prohibit access by a lawyer with an appropriate security clearance or where granting the access would not be prejudicial to the interests of security. The provision ensures that security information is handled appropriately. It does not prevent a person who is the subject of a questioning warrant from obtaining legal representation or impede their ability to make a complaint or seek an effective remedy regarding their treatment under a questioning warrant.

Section 7 balances the right of a person to an effective remedy with the need to ensure security information is adequately protected. It is unlikely to have any material impact on a person's ability to seek an effective remedy and is therefore consistent with the right.

The right to a fair and public hearing in Article 14 of the ICCPR

Article 14 of the ICCPR relates to the right to a fair and public hearing.

Sections 9 and 11 of the Regulations engage the right to a fair and public hearing. Section 9 prescribes, for the purposes of subsection 38(1) of the Act, the information for a notice given to a person in relation to an adverse or qualified security assessment, including information about the person’s right to seek review of the assessment by the ART. Section 11 prescribes, for the purposes of subsections 82L(6) and 83A(2) of the Act, information for a notice given to an affected person in relation to an externally reviewable decision. Where the Minister has not issued a conclusive certificate in relation to the externally reviewable decision under subsection 83E(1) of the Act, the prescribed information includes information about the person’s right to seek review of the decision by the ART, including how the person may seek review, whether there are any time limits for seeking that review and whether the ART is required to conduct the review within a particular period.

Sections 9 and 11 of the Regulations also permit the use of an electronic link or website address to explain matters to be included in a notice given to a person in relation to their right to seek review of security assessments made under Part IV of the Act and certain security clearance decisions made under Part IVA of the Act. This would ensure that an affected person is directed to up-do-date information from the most appropriate source. Sections 9 and 11 of the Regulations include a note to clarify that whether it is appropriate to give particular information by providing an electronic link or website address will depend on the circumstances. Providing clear, accessible and instructive information to an applicant seeking a review of a security assessment or an externally reviewable decision is consistent with a person's right to a fair and public hearing under Article 14 of the ICCPR.

Under subsection 11(3) of the Regulations, where the Minister has issued a conclusive certificate in relation to the externally reviewable decision under subsection 83E(1) of the Act, ASIO must give the affected person a statement advising that the effect of the conclusive certificate is that the ART must not review, or continue to review, the decision.

Under subsection 83E(1) of the Act, the Minister may issue a conclusive certificate in exceptional circumstances, if the Minister believes that it would be prejudicial to security to change the decision or for the decision to be reviewed. A conclusive certificate issued by the Minister is subject to judicial review in the Federal Court of Australia and High Court of Australia. Subsection 11(3) of the Regulations provides clarity and certainty to an affected person about the operation of a conclusive certificate and interaction with their right to review, consistent with a person's right to a fair and public hearing under Article 14 of the ICCPR.

Conclusion

The Regulations are compatible with human rights because, to the extent that they may limit human rights, those limitations are for a legitimate purpose and are reasonable, necessary and proportionate.

The Hon Tony Burke MP

Minister for Home Affairs