Guidelines to Protect the Privacy of Australian Persons
i. The purpose of these guidelines is to ensure that DIO preserves the privacy of Australian persons while ensuring the proper performance of the organisation's intelligence functions. These guidelines are intended to be broadly consistent with rules made under section 15 of the Intelligence Services Act 2001 ("the Act") that apply to the Australian Geospatial-Intelligence Organisation, the Australian Secret Intelligence Service and the Australian Signals Directorate, and the guidelines developed by the Office of National Assessments. Expressions used in these guidelines are defined in appendix A1.
ii. The Minister for Defence approved these guidelines on 16 December 2012. The Inspector-General of Intelligence and Security (IGIS) and the Attorney-General were consulted in preparing these guidelines.
1. Protecting the Privacy of Australian Persons – Presumptions
1.1 These rules regulate the communication and retention of intelligence information concerning Australian persons. Where it is not clear whether a person is an Australian person, the following presumptions shall apply unless there is evidence to the contrary including from the context in which the intelligence was obtained:
- a person within Australia shall be presumed to be an Australian person, and
- a person outside Australia shall be presumed to not be an Australian person.
2. Retention of Intelligence Information Concerning Australian Persons
2.1 DIO may retain intelligence information concerning an Australian person only where it is necessary to do so for the proper performance of DIO's functions or the retention is authorised or required by or under another Act.
2.2 Where DIO does retain intelligence information concerning an Australian person, DIO is to ensure that:
- the information is protected – by such security safeguards as it is reasonable in the circumstances to take – against loss, unauthorised access, use, modification or disclosure, and other misuse, and
- access to the information is only to be provided to persons who require such access for the proper performance of a DIO function.
3. Communication of Intelligence Information Concerning Australian Persons
3.1 DIO may communicate intelligence information concerning Australian persons only where it is necessary to do so for the proper performance of DIO's functions or where such communications are required by law. In addition, the following specific guidelines apply.
Information that is Important for Specified Purpose
3.2 DIO may communicate intelligence information concerning an Australian person where:
- the information is publicly available, or
- the information concerns activities in respect of which the Australian person is a representative of the Commonwealth or a State or Territory in the normal course of official duties, or
- omission of that part of the information concerning the Australian person would significantly diminish the utility of the information for the purposes of:
- maintaining Australia's national security
- maintaining Australia's national economic well-being
- promoting Australia's foreign relations
- preventing or investigating the commission of a serious crime
- responding to an apparent threat or to the safety of a person
- the information relates to an Australian person who is, or is likely, to be:
- acting for, or on behalf of, or is suspected of acting for, or on behalf of, a foreign power
- involved in activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List
- involved in activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law.
4. Accuracy of Information
4.1 DIO is to take reasonable steps to ensure the intelligence information that DIO retains or communicates concerning Australian persons is recorded or reported in a fair and reasonable manner.
5. Oversight by the IGIS
5.1 To facilitate the oversight role of the IGIS, DIO is to take the following measures:
- the IGIS is to have access to all intelligence information held by DIO concerning Australian persons
- the IGIS is to be consulted about the processes and procedures applied by DIO to the communication and retention of information concerning Australian persons
- where a presumption under paragraph 3b has been found to be incorrect, DIO is to advise the IGIS of the incident and measures taken by DIO to protect the privacy of the individual
- in any case where a breach of these guidelines is identified, DIO is to advise the IGIS of the incident and the measures taken by DIO to protect the privacy of the Australian person or of Australian persons generally.
6. Public Access to the Guidelines
6.1 DIO is to ensure that a copy of these guidelines is publicly available on the DIO website.
Expressions used in this document are defined as follows:
Intelligence information means information generated for external communication by DIO for the proper performance of its intelligence functions, as set out in the DIO mandate.
An Australian person is:
- an Australian citizen, or
- a permanent resident.
A permanent resident is:
- a naturalised person
- who is not an Australian citizen
- whose normal place of residence is situated in Australia
- whose presence in Australia is not subject to any limitation as to time imposed by law
- who is not an unlawful non-citizen within the meaning of the Migration Act 1958
- a body incorporated under law in force in a State or Territory, other than a body corporate whose activities one or more of the following controls, or is in a position to control, whether directly or indirectly:
- a foreign power
- a natural person who is neither an Australian citizen nor a person covered by paragraph a
- a group of natural persons, none of whom is an Australian citizen or a person covered by paragraph a.
Foreign power means:
- a foreign government
- an entity that is directed or controlled by a foreign government or governments
- a foreign political organisation.
Serious crime means conduct that, if engaged in within or in connection with Australia, would constitute an offence against the law of the Commonwealth, a State or a Territory punishable by imprisonment for a period exceeding 12 months.