Privacy rules

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Rules to Protect the Privacy of Australians

Under section 15 of the Intelligence Services Act 2001, the Minister responsible for ASIS "must make written rules regulating the communication and retention by ASIS of intelligence information concerning Australian persons". In so doing, the Minister "must have regard to the need to ensure that the privacy of Australian persons is preserved as far as it is consistent with the proper performance by [ASIS of its] functions".

On 17 September 2008 the Minister for Foreign Affairs, as the Minister responsible for ASIS and following consultation with the Director-General of ASIS, the Inspector-General of Intelligence and Security and the Attorney-General, made Rules in accordance with the Act. The rules are as follows:

QUOTE
RULES TO PROTECT THE PRIVACY OF AUSTRALIANS

I, Stephen Francis Smith, Minister of State for Foreign Affairs, being the Minister responsible for the Australian Secret Intelligence Service (‘ASIS’), hereby revoke the Rules to Protect the Privacy of Australians (the ‘Rules’) issued by my predecessor under section 15 of the Intelligence Services Act 2001 (‘the Act’), dated 25 October 2001; and:

1. having had regard to the need to ensure that the privacy of Australian persons is preserved as far as is consistent with the proper performance by ASIS of its functions; and
2. having consulted the Director-General of ASIS (the Director-General), the Inspector-General of Intelligence and Security (IGIS) and the Attorney-General and, for these purposes, provided a copy of the Rules I was proposing to make to the IGIS and the Attorney-General in accordance with sections 15(3) and (4) of the Act,

hereby issue the following Rules, in accordance with section 15 of the Act, regulating the communication and retention by ASIS of intelligence information concerning Australian persons..

Communication

1. ASIS may communicate intelligence information concerning an Australian person when:
   1. the information relates to activities in which the involvement of that Australian person is already public knowledge; or
   2. the information relates to activities in respect of which the Australian person is a representative of the Commonwealth or of a State or Territory in the normal course of official duties; or
   3. the deletion of that part of the intelligence information concerning the Australian person would significantly diminish the utility of the information for the purpose of:
      1. maintaining Australia's national security;
      2. maintaining Australia's economic well-being;
      3. promoting Australia's foreign relations;
      4. preventing or investigating the commission of a serious crime;
      5. responding to an apparent threat to the safety of a person;
      6. responding to a serious risk to an Australian intelligence operation or operative; or
   4. the information relates to an Australian person who is acting for, or on behalf of, or is suspected of acting for, or on behalf of, a foreign power.
   In all such cases, ASIS shall keep a record of the communication for inspection by the IGIS.
2. ASIS shall establish arrangements to ensure that communication of such information is limited to those with a need to know in accordance with the Government's requirements.

Presumption of Nationality

3. Where it is not clear whether an individual is an Australian person or not, the following presumptions shall apply unless evidence to the contrary is obtained:
   1. a person within Australia shall be presumed to be an Australian person, and
   2. a person outside Australia shall be presumed to be a non-Australian person, subject to consideration of any evidence as to nationality that may be contained in the relevant communication or the general context in which the intelligence was obtained.
4. If ASIS identifies that it has communicated intelligence information concerning an Australian person:
   1. contrary to these Rules; or
   2. because the presumption in paragraph 3 has been found to be incorrect;
   then ASIS shall immediately consult the IGIS with a view to determining what appropriate action should be taken to protect the privacy of the Australian person.

Retention

5. Intelligence information concerning Australian persons shall be retained by ASIS in a manner applicable to retention of information having a security classification of not less than Secret. Specifically, access to such information within ASIS shall be permitted only when there is a need to know the information for the proper performance of ASIS's functions.

Definitions

6. Expressions used in these Rules have the same meaning as in the Act.

Dated this 17th day of September 2008