Rules under section 15 of the Intelligence Services Act 2001 regulating the communication and retention by Defence Signals Directorate of intelligence information concerning Australian persons

Overview

The Intelligence Services (Defence Signals Directorate – Communication and Retention of Intelligence Information Concerning Australian Persons) Rules 2001 were enacted to regulate the communication and retention of intelligence information concerning Australian persons by the Defence Signals Directorate (DSD). This legislative instrument was introduced to ensure that the privacy of Australian persons is preserved as far as is consistent with the proper performance by DSD of its functions. It was made under section 15 of the Intelligence Services Act 2001 by the Minister for Defence, Peter Keaston Reith, in accordance with the policy objective of balancing national security requirements with the protection of personal privacy. These rules outline the circumstances under which DSD may communicate intelligence information concerning Australian persons, establish presumptions regarding nationality, and set the standards for the retention of such information. The enactment of these rules reflects a commitment to transparency and accountability in intelligence operations concerning Australian citizens.

Scope and Application

The Intelligence Services (Australian Person) (Communication and Retention) Rules 2001, made under the Intelligence Services Act 2001, govern the Defence Signals Directorate's (DSD) communication and retention of intelligence information concerning Australian persons. These rules apply to the DSD, which is the entity responsible for managing and handling intelligence information. They establish conditions under which the DSD may disclose information about Australian persons, such as when the information pertains to public activities, when the individual is acting in an official capacity, or when the information is critical to national security, economic well-being, foreign relations, or crime prevention. Conversely, the rules outline circumstances in which the DSD must presume an individual is not an Australian person if they are outside Australia. Additionally, the rules mandate that the DSD retain intelligence information about Australian persons with a security classification of at least 'Secret', ensuring access is strictly controlled. Any communication of intelligence information concerning Australian persons contrary to these rules requires immediate consultation with the Inspector-General of Intelligence and Security to safeguard the privacy of the individuals involved.

Key Provisions

The rules made under section 15 of the Intelligence Services Act 2001 specify the conditions under which the Defence Signals Directorate (DSD) can communicate and retain intelligence information concerning Australian persons. The rules allow DSD to communicate intelligence information when it relates to activities where the Australian person's involvement is already public knowledge (Section 3(a)), when the Australian person is a representative of the Commonwealth or a State or Territory in the course of official duties (Section 3(b)), or when deleting the information would significantly diminish its utility for specified national interests or security purposes (Section 3(c)). The rules also permit communication of intelligence information when it relates to an Australian person acting for, or on behalf of, or suspected of acting for a foreign power (Section 3(d)). In all these cases, DSD is required to keep a record of the communication for inspection by the Inspector-General of Intelligence and Security (IGIS) (Section 4). The rules establish a presumption that a person within Australia is an Australian person unless evidence to the contrary is obtained, while a person outside Australia is presumed to be a non-Australian person unless there is evidence to the contrary (Section 5). If DSD identifies that it has communicated intelligence information concerning an Australian person contrary to these rules or because the presumption in Section 5 was incorrect, DSD must immediately consult with the IGIS to determine appropriate action to protect the privacy of the Australian person (Section 6). The rules mandate that intelligence information concerning Australian persons be retained in a manner applicable to information with a security classification of not less than Secret, with access permitted only when necessary for the proper performance of DSD's functions (Section 7). The obligations imposed by these rules on DSD include establishing arrangements to ensure that communication of intelligence information is limited to those with a need to know (Section 4), maintaining records of communications for IGIS inspection (Section 4), and consulting with the IGIS if intelligence information concerning an Australian person has been communicated contrary to these rules or based on an incorrect presumption of nationality (Section 6). Additionally, DSD must retain intelligence information concerning Australian persons in a secure manner, ensuring access is limited to those who need to know for the proper performance of DSD's functions (Section 7). Breach of these rules may result in civil or criminal consequences, although specific offences and penalties are not detailed in the rules themselves. However, the overarching legislation, the Intelligence Services Act 2001, likely contains provisions for offences and penalties related to breaches of these rules. Generally, such breaches could lead to disciplinary action, legal proceedings, or other administrative actions as deemed necessary by the relevant authorities. The exact penalties would depend on the nature and severity of the breach, as well as the specific provisions of the overarching legislation.