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Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002

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2002

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002

 

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 

 



AMENDMENTS TO THE AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002

 

OUTLINE

 

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, as introduced into the House of Representatives, amends the Australian Security Intelligence Organisation Act 1979 (‘ASIO Act’) to enhance the capacity of the Australian Security Intelligence Organisation (‘ASIO’) to combat terrorism.  It achieves this by giving ASIO powers with regard to the collection of intelligence that may substantially assist in the investigation of terrorism offences.

 

The proposed Government amendments to the Bill respond to the recommendations of the Parliamentary Joint Committee on ASIO, ASIS and DSD (‘the Committee’) in its report on the Bill.

The amendments will:

 

·         in relation to the issuing of warrants and questioning of detained persons, provide that:

-      only Federal Magistrates, Federal Judges or an authority prescribed by regulations can issue a warrant to ASIO for the purposes of the Bill;

-      warrants that will result in detention of a person for more than 96 hours can only be issued by a Federal Judge or an authority prescribed by regulations; and

-      the questioning of detained persons will take place before a legally qualified member of the Administrative Appeals Tribunal

(items 9, 11, 12, 21, 22, 23, 24, 27, 31, 32, 40, 50, 51; Recommendations 1 and 2);

 

·         provide for a maximum period of detention of 7 consecutive days (168 hours) (items 16, 17, 25, 26, 39; Recommendation 3);

 

·         clarify that the Director-General of Security must seek the Attorney-General’s consent before requesting all warrants, including further warrants in relation to the same individual (item 13; Recommendation 4);

 

·         clarify that a detained person must be immediately brought before a prescribed authority (items 15, 28, 33; Recommendation 5);

 

·         insert provisions covering access to legal representation (items 8, 10, 19, 29, 30, 35, 37, 52; Recommendation 6);

 

·         require the development of protocols governing the custody, detention and interview process, and provide that the powers under the Bill will not be able to be exercised until the protocols are in place (items 14, 18, 20; Recommendation 7);

 

·         provide that information disclosed under a warrant will not be able to be used as evidence against the person in criminal proceedings for a terrorism offence (item 41; Recommendation 8);

 

·         provide penalties for officials who fail to comply with the Bill’s provisions (item 46; Recommendation 9);

 

·         provide that children under the age of 14 may not be detained or questioned under the Bill, and insert a special regime for people aged between 14 and 18 (items 43, 44, 45, 53; Recommendation 10);

 

·         require warrant statistics to be included in ASIO’s unclassified Annual Report (item 56; Recommendation 11);

 

·         require the Parliamentary Joint Committee on ASIO, ASIS and DSD to review the legislation three years after its commencement (item 57; Recommendation 12);

 

·         require the Director-General of Security to advise the Inspector-General of Intelligence and Security (IGIS) every time the Attorney-General’s consent is sought to request a warrant (item 47; Recommendation 13);

 

·         clarify the roles of the IGIS and the prescribed authority where the IGIS is concerned that an impropriety has occurred or that there has been non-compliance with a law (items 38, 42, 48, 49; Recommendation 14); and

 

·         require the prescribed authority to advise a detained person of their right to seek a remedy from a federal court when the person first appears before the prescribed authority and at least once in every 24 hour period during which they are questioned (items 34, 35, 36, 54; Recommendation 15).

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments will have no financial impact.



 

NOTES ON ITEMS

Item 1

This item amends the table in clause 2 of the Bill as introduced by deleting table items 2 to 7 and substituting 3 new table items.  Table items 2 to 7 contain contingent commencement provisions which are not necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002. 

New table item 2 provides that items 1 to 8 of Schedule 1 to the Bill, which insert new and amend existing definitions in the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) will commence on the day after the day on which this Act receives the Royal Assent.

New table item 3 provides that items 10 and 11 of Schedule 1 to the Bill, commence immediately after the commencement of Division 72 of the Criminal Code .  Item 10 makes a minor consequential amendment.  Item 11 is an application provision.

New table item 4 provides that items 15 to 29 of Schedule 1 to the Bill, which amend definitions and substitute words in the ASIO Act (items 15 to 23), insert a new Division 3 - Special powers relating to terrorism offences (item 24), repeal definitions and make consequential amendments (items 25 to 27), amend the ASIO Act to enhance the annual reporting obligations of ASIO (items 27A to 27C), amend the Intelligence Services Act 2001 (item 27D) and make consequential amendments to the Telecommunications (Interception) Act 1979 (items 28 and 29) commence on the day after the day on which this Act receives the Royal Assent.

Item 2

This item amends clause 2 of the Bill as introduced by omitting subclauses 2(3) to (6).  These subclauses refer to contingent commencement provisions that are no longer necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002 .

Item 3

This item amends item 8 of Schedule 1 to the Bill as introduced by omitting the second note to the item.  The note refers to contingent commencement provisions that are no longer necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002 .

Item 4

This item amends item 9 of Schedule 1 to the Bill as introduced by omitting the item.  The item inserted an alternative definition of “terrorism offence” that was related to a contingent commencement provision that is no longer necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002 .

Item 5

This item amends item 10 of Schedule 1 to the Bill as introduced by omitting the note to the item.  The note refers to contingent commencement provisions that are no longer necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002 .

Item 6

This item amends item 11 of Schedule 1 to the Bill as introduced by omitting the note to the item.  The note refers to contingent commencement provisions that are no longer necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002 .

Item 7

This item amends items 12 to 14 of Schedule 1 to the Bill as introduced by omitting the items.  Item 12 made a minor consequential amendment to the definition of “terrorism offence” in section 4 of the ASIO Act, item 13 inserted a note at the end of the definition of “terrorism offence” in section 4 of the ASIO Act and item 14 is an application provision.  The items were alternative provisions that are no longer necessary since the passage of the Security Legislation Amendment (Terrorism) Act 2002 .

Item 8

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a definition of “approved lawyer” in proposed section 34A of the ASIO Act.

Item 9

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a definition of “issuing authority” in proposed section 34A of the ASIO Act.

Item 10

This item amends item 24 of Schedule 1 to the Bill as introduced to create a new proposed section 34AA.  This responds in part to recommendation 6 of the Committee’s report on the Bill relating to access to legal representation by persons who are the subject of a warrant.  Proposed subsection 34AA(1) empowers the Minister to approve a legal practitioner for the purposes of providing advice to persons subject to a warrant.  Proposed subsection 34AA(2) prevents the Minister from approving a legal practitioner unless certain conditions are satisfied, including that the practitioner has been enrolled for at least 5 years, the practitioner has consented to be approved, and the Minister has considered a security assessment in relation to the legal practitioner.

Item 11

This item amends item 24 of Schedule 1 to the Bill as introduced to create a new proposed section 34AB. 

Proposed subsection 34AB(1) empowers the Minister to appoint as an issuing authority a Federal Magistrate or a Judge.  (Section 4 of the ASIO Act defines “Judge” as a “Judge of a court created by the Parliament”.)

Proposed subsection 34AB(2) prevents the Minister from appointing a person as an issuing authority unless the person has consented to the appointment in writing and the consent is in force. 

Proposed subsection 34AB(3) provides that a specified class of persons may be declared to be issuing authorities by regulation.  Proposed subsection 34AB(4) clarifies that one of the bases for specifying a class may be that the members of the class have consented to being issuing authorities and their consents are in force.

This item forms part of the response to the Committee’s recommendations concerning the appropriate authority to issue warrants (Recommendations 1 and 2). 

Item 12

This item amends item 24 of Schedule 1 to the Bill as introduced to omit proposed section 34B and insert a new proposed section 34B.  New proposed subsection 34B(1) empowers the Minister to appoint as a prescribed authority a Deputy President, senior member or member of the AAT.  Proposed subsection 34B(2) prevents the Minister from appointing an AAT member, other than the Deputy President, unless the member has been enrolled as a legal practitioner in Australia for at least five years.  This responds to the Committee’s recommendation that legally qualified members of the Administrative Appeals Tribunal (AAT) should undertake the duties of the prescribed authority, excluding the power to issue warrants (Recommendation 1).

Item 13

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed subsection 34C(1A) to clarify that the procedure in proposed section 34C of the Bill in relation to the issue of a warrant under proposed section 34D, must be followed for every request for the issue of a warrant, even if a warrant has previously been issued in relation to the person.  This amendment responds to the Committee’s Recommendation 4.

Item 14

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed paragraph 34C(3)(ba).  This paragraph requires the Minister to be satisfied that the acts described in proposed new subsection (3A) have been done before giving consent to the Director-General of ASIO to apply for a warrant.  Proposed new subsection (3A) (see item 8A) deals with the creation and adoption of a statement of procedures to be followed in the exercise of authority under warrants.  This will have the effect of preventing the issue of a warrant until the statement of procedures is in place.  This amendment responds to the Committee’s concern that protocols be developed to govern custody, detention and the interview process (Recommendation 7).

Item 15

This item amends item 24 of Schedule 1 to the Bill as introduced to clarify that a person taken into custody must be immediately brought before a prescribed authority.  It is consequential on item 33 and responds to the Committee’s Recommendation 5.

Item 16

This item amends item 24 of Schedule 1 to the Bill as introduced and is consequential on item 17 which adds a new paragraph to subsection 34C(3).

Item 17

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed paragraph 34C(3)(d).  This paragraph requires the Minister to be satisfied that a warrant would not authorise a person to be detained for a continuous period of more than 168 hours under consecutive warrants before giving consent to the Director-General of Security to apply for a warrant.  This amendment responds to the Committee’s recommendation that the maximum period of detention of a person be no more than 7 days (168 hours) (Recommendation 3).

Item 18

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed subsection 34C(3A).  The proposed new subsection outlines the acts to be performed in relation to the creation and adoption of a statement of procedures to be followed in the exercise of authority under warrants issued under proposed section 34D.  The subsection requires the Director-General of Security to develop a written statement in consultation with the IGIS, the Australian Federal Police Commissioner and the President of the AAT.  The statement must be approved by the Minister.  The subsection also requires the Parliamentary Joint Committee on ASIO, ASIS and DSD to be briefed on the statement and the statement to be tabled in Parliament.  This responds to the Committee’s recommendation that the Bill include a provision requiring the development of protocols governing custody, detention and the interview process under the Bill (Recommendation 7).

Item 19

This item amends item 24 of Schedule 1 to the Bill as introduced to insert new proposed subsections 34C(3B) and 34C(3C).

Proposed subsection 34C(3B) requires the Minister to ensure that a warrant permits a person to contact an approved lawyer at any time when the person is in custody or detention under the Bill.  (Proposed section 34AA (to be inserted by item 10) explains the meaning of “approved lawyer”.)

Proposed subsection 34C(3C) provides that proposed subsection 34C(3B) not apply in relation to people over the age of 18 if the Minister is satisfied on reasonable grounds that:

·         it is likely that a terrorism offence is occurring, or is about to occur, and will have serious consequences; and

·         in all the circumstances, it is appropriate that the detained person not be given access to a lawyer for a certain period less than 48 hours.

If so satisfied, the Minister may make it a condition of the warrant that the detained person not have access to a lawyer for up to 48 hours.  At the expiry of 48 hours, all detained persons will have access to an approved lawyer.

These amendments respond to the Committee’s concern relating to access to legal representation by persons who are the subject of a warrant (Recommendation 6).

Item 20

This item amends item 24 of Schedule 1 to the Bill as introduced to insert the words “under subsection (3)” in proposed subsection 34C(4) in order to clarify that the reference to consent in proposed subsection 34C(4) means the Minister’s consent under subsection 34C(3) to the making of a request for the issue of a warrant under section 34D.

Item 21

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “a prescribed authority” with “an issuing authority” in proposed subsection 34C(4) and is consequential on the response to the Committee’s Recommendation 1.

Item 22

This item amends item 24 of Schedule 1 to the Bill as introduced to replace proposed subsection 34C(5).  The new proposed subsection provides that, if the Director-General of Security seeks a further warrant in relation to a person who has already been detained under two consecutive warrants (so that the warrant would result in detention for more than 96 hours), the Director-General must seek the warrant from a Judge or a member of a class specified by regulations.  This amendment responds to the Committee’s Recommendations 1 and 2.

Item 23

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “a prescribed authority” with “an issuing authority” in proposed subsection 34D(1) and is consequential on the response to the Committee’s Recommendation 1.

Item 24

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “a prescribed authority” with “an issuing authority” in proposed paragraph 34D(1)(b) and is consequential on the response to the Committee’s Recommendation 1.

Item 25

This item amends item 24 of Schedule 1 to the Bill as introduced by making a minor amendment to paragraph 34D(1)(b).  It is consequential on item 26 which adds a new paragraph to subsection 34D(1).

Item 26

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed paragraph 34D(1)(c).  This paragraph requires the issuing authority to be satisfied that there are reasonable grounds for believing that the warrant would not authorise a person to be detained for a continuous period of more than 168 hours under consecutive warrants before issuing a warrant.  The effect of this amendment is to prevent the issue of a warrant that would enable a person to be detained for more than 7 consecutive days (168 hours).  This amendment responds to the Committee’s recommendation that the maximum period of detention of a person be no more than 7 days (168 hours) (Recommendation 3).

Item 27

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “prescribed authority” with “issuing authority” in proposed subsection 34D(2) and is consequential on the response to Recommendation 1 of the Committee.

Item 28

This item amends item 24 of Schedule 1 to the Bill as introduced to clarify in proposed subsection 34D(2) that a person taken into custody must be immediately brought before a prescribed authority.  It is consequential on item 33 and acceptance of the Committee’s Recommendation 5.

Item 29

This item amends item 24 of Schedule 1 to the Bill as introduced to replace proposed subparagraph 34D(2)(b)(ii).  New subparagraph 34D(2)(b)(ii) requires a warrant to permit persons in custody or detention under a warrant to contact identified persons at specified times.  This amendment is related to the response to Recommendation 6 dealing with access to legal representation.

Item 30

This item amends item 24 of Schedule 1 to the Bill as introduced to replace proposed subsection 34D(4).  New proposed subsection 34D(4)  provides that a warrant may specify someone whom the person is permitted to contact, including by reference to the fact that he or she is an approved lawyer (see item 8) or has a particular legal or familial relationship with the person.  This amendment is related to the response to Recommendation 6 dealing with access to legal representation.

Item 31

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “prescribed authority” with “issuing authority” in proposed subsection 34D(5) and is consequential on the response to the Committee’s Recommendation 1.

Item 32

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “prescribed authority” with “issuing authority” in proposed paragraph 34D(6)(a) and is consequential on the response to the Committee’s Recommendation 1.

Item 33

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34DA which clarifies that a police officer who takes a person into custody under a warrant must make arrangements for the person to be immediately brought before a prescribed authority for questioning.  This amendment responds to the Committee’s Recommendation 5.

Item 34

This item amends item 24 of Schedule 1 to the Bill as introduced.  It is consequential on item 20B which adds a new paragraph to subsection 34E(1).

Item 35

This item amends item 24 of Schedule 1 to the Bill as introduced to insert new proposed paragraphs 34E(1)(f) and 34E(1)(g).  New proposed paragraph 34E(1)(f) requires a prescribed authority to inform a person when the person first appears before the prescribed authority that the person may seek a remedy from a federal court relating to the warrant or the treatment of the person in connection with the warrant.  This amendment responds to the Committee’s Recommendation 15.

New proposed paragraph 34E(1)(g) requires the prescribed authority to inform a person when the person first appears before the prescribed authority whether the warrant limits the person contacting others and, if the warrant permits the person to contact specified persons at specified times, who the person may contact and at what times.  This amendment is included to avoid doubt and responds to the Committee’s Recommendation 6.

Item 36

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed subsection 34E(3) which requires the prescribed authority to advise a detained person of their right to seek a remedy from a federal court at least once in every 24 hour period during which they are detained.  This amendment responds to the Committee’s Recommendation 15, but gives the prescribed authority flexibility to ensure that the advice can be provided at an appropriate time (for example, 24 hours might fall when the detained person is sleeping so the advice would be able to be provided in advance of that time).

Item 37

This item amends item 24 of Schedule 1 to the Bill as introduced to replace proposed paragraph 34F(1)(d).  New proposed paragraph 34F(1)(d) provides that a prescribed authority may give a direction permitting a person before the prescribed authority for questioning to contact an identified person (this may include an approved lawyer or someone who has a particular legal or familial relationship with the person), or any person.  This amendment relates to the Committee’s Recommendation 6 dealing with access to legal representation.

Item 38

This item amends item 24 of Schedule 1 to the Bill as introduced to add to proposed subsection 34F(2).  Proposed subsection 34F(2) currently provides that, when a person is before a prescribed authority for questioning, the prescribed authority can only give a direction that is consistent with the warrant or has been approved by the Minister.  The amendment enables the prescribed authority to give other directions if satisfied that such directions are necessary to address concerns raised by the IGIS.  This forms part of the response to the Committee’s Recommendation 14 concerning the role of the IGIS.

Item 39

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed paragraph 34F(4)(aa) which provides that any direction of the prescribed authority must not result in a person being detained for a continuous period of more than 168 hours.  This amendment forms part of the response to the Committee’s Recommendation 3.

Item 40

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “a prescribed authority” with “an issuing authority” in proposed paragraph 34F(7)(a) and is consequential on the response to the Committee’s Recommendation 1.

Item 41

This item amends item 24 of Schedule 1 to the Bill as introduced to omit “or a terrorism offence” from proposed subsection 34G(9).  Proposed section 34G currently provides that information provided by a person may be admissible in evidence against the person in criminal proceedings for an offence against that section or for a terrorism offence.  The proposed amendment means that information provided under a warrant would not be able to be used as evidence against the person in criminal proceedings for a terrorism offence.  This amendment responds to the Committee’s Recommendation 8 concerning the privilege against self-incrimination.

Item 42

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed subsection 34HA.  Proposed subsection 34HA(1) provides that the section will apply in cases where the IGIS is concerned about impropriety or illegality in relation to an interview being conducted under the warrant procedures.  Proposed subsection 34HA(2) provides that the IGIS may inform the prescribed authority of his or her concern, and if he or she does so, the IGIS must then also inform the Director-General of Security as soon as practicable.  Proposed subsection 34HA(3) requires the prescribed authority to consider the IGIS’s concern.  Proposed subsection 34HA(4) enables the prescribed authority to give directions suspending the questioning or deferring the exercise of any other power under the warrant until satisfied that the IGIS’s concern has been satisfactorily addressed.  The prescribed authority would also have the power to make any other directions under proposed section 34F.  This amendment responds to the Committee’s Recommendation 14 concerning the role of the IGIS.

Item 43

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “10” with “14” in proposed paragraph 34M(1)(e).  Proposed section 34M sets out the rules that apply to the conduct of a strip search under proposed new section 34L.  The effect of the amendment is that strip searches could not be conducted on a person under 14 years of age.  This forms part of the response to the Committee’s Recommendation 10 dealing with the questioning and detention of children.

Item 44

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “10” with “14” in proposed paragraph 34M(1)(f).  This is consequential on item 43 and the response to the Committee’s Recommendation 10.  The amendment ensures that the special regime for strip searches set out in proposed paragraph 34M(1)(f) will apply to persons aged between 14 and 18.

Item 45

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34NA which sets out special rules for persons under the age of 18.  This amendment is in response to the Committee’s Recommendation 10 concerning the application of the Bill to children.

Proposed subsections 34NA(1) to (3) have the effect of excluding children under the age of 14 from the operation of the new warrant procedures established by the Bill.  Any warrant issued would have no effect if the subject of the warrant is under 14.  If the prescribed authority is satisfied on reasonable grounds that a person appearing before it is under 14, then the prescribed authority must give directions that the person not be questioned and (if the person is in detention) that the person be released from detention.

Proposed subsections 34NA(4) to (9) establish a special regime for persons aged between 14 and 18.  Proposed subsection 34NA(4) provides that the Minister may consent to a request for the issue of a warrant in relation to such persons only if the Minister is satisfied on reasonable grounds that it is likely that the person will commit, is committing or has committed a terrorism offence.  The Minister must also be satisfied on reasonable grounds that the draft warrant meets the requirements in proposed subsection (6) (concerning contact with a parent, guardian or other person).  Proposed subsection 34NA(5) requires an issuing authority to be satisfied of this latter ground in order to issue a warrant. 

Proposed subsection 34NA(6) requires the draft warrant to permit the person to contact a parent or guardian or another acceptable representative (as described in proposed subsection (7)) and an approved lawyer.  It also requires the draft warrant to authorise questioning before a prescribed authority only in the presence of a parent, guardian or another acceptable representative and for no longer than 2 hours without a break.  Under proposed subsection 34NA(7), an “acceptable representative” is another person who can represent the person’s interests and who, as far as practicable, is acceptable to the person and to the prescribed authority, but who is not a police officer, the Director-General of Security, an officer or employee of ASIO or a person approved to exercise authority under a warrant under subsection 24(1) of the ASIO Act.  (This is consistent with proposed subsection 34M(2)).

Proposed subsection 34NA(8) requires the prescribed authority, if satisfied on reasonable grounds that the person appearing before it for questioning is between 14 and 18 years of age, to inform the person of his or her rights to request a parent, guardian or other acceptable representative to be present during questioning, and to contact such persons and an approved lawyer at any time.  The proposed subsection also sets out the directions the prescribed authority must make in order to ensure that the person is not questioned in the absence of a parent or guardian (or another person who meets the requirements under proposed subsection 34NA(7) if appropriate), to ensure that the person may contact a parent, guardian, other acceptable representative and an approved lawyer, and to ensure that questioning not continue for longer than 2 hours without appropriate breaks.

Proposed subsection 34NA(9) clarifies that proposed subsection 34F(2) (which prevents the prescribed authority from making a determination that is inconsistent with the terms of a warrant) would not prevent the prescribed authority from directing that a child may contact a parent, guardian or other representative, or an approved lawyer.

Item 46

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34NB which provides penalties for officials who do not comply with relevant provisions of the Bill.  This responds to Recommendation 9 of the Committee.

The proposed new subsection creates offences with a maximum penalty of 2 years imprisonment, in relation to:

·         a person approved to exercise authority under a warrant who exercises, or purports to exercise, the authority in a way that contravenes a condition or restriction in the warrant, and the person knows of the contravention (proposed subsection 34NB(1));

·         a police officer who engages in conduct that contravenes proposed section 34DA (which requires the officer to make arrangements for a person taken into custody to be immediately brought before a prescribed authority), and the officer knows of the contravention (proposed subsection 34NB(2));

·         a person responsible for implementing a direction of a prescribed authority (relating to detention arrangements, contact with other persons while in detention, further appearance before a prescribed authority for questioning, release from detention, addressing a concern of the IGIS, special procedures for persons aged less than 18, and removal of a person’s parent, guardian or representative during questioning) who engages in conduct that contravenes the direction, and the person knows of the contravention (proposed subsection 34NB(3));

·         a person who engages in conduct that contravenes certain provisions (relating to provision of facilities for contacting the IGIS or Ombudsman, deferral of questioning until an interpreter is present, and treating a detained person with humanity and respect for human dignity), and the person knows of the contravention (proposed subsection 34NB(4));

·         a police officer who conducts a strip search without the approval of a prescribed authority or the consent of the detained person, or in a way that contravenes proposed subsection 34M(1) (which sets out rules for the conduct of strip searches), and the police officer knows of the lack of approval and consent or of the contravention (proposed subsection 34NB(5));

·         a police officer who conducts a strip search and engages in conduct that contravenes proposed subsection 34M(4) (which requires a person to be provided with adequate clothing if the person’s garments are seized), and the police officer knows of the contravention (proposed subsection 34NB(6)).

 

Proposed subsection 34NB(7) provides that, for the purposes of proposed section 34NB, to “engage in conduct” means to do an act or to omit to perform an act.

Item 47

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed paragraph 34Q(aa) which requires the Director-General of Security to give the IGIS a copy of any draft request seeking the Minister’s consent to request the issue of a warrant.  This amendment responds to the Committee’s Recommendation 13.

Item 48

This item amends item 24 of Schedule 1 to the Bill as introduced.  It is consequential on item 49 which adds a new paragraph 34Q(d) to proposed section 34Q.  The new paragraph requires the Director-General of Security to give the IGIS a copy of a statement describing any action the Director-General has taken as a result of being informed about a concern of the IGIS under proposed section 34HA.

Item 49

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed paragraph 34Q(d).  The proposed amendment requires the Director-General of Security, as soon as practicable, to notify the IGIS of any action the Director-General has taken as a result of being informed of the IGIS’s concern about impropriety or illegality in relation to an interview conducted under warrant procedures.  This amendment follows from item 42 which responds to the Committee’s Recommendation 14 concerning the role of the IGIS. 

Item 50

This item amends item 24 of Schedule 1 to the Bill as introduced to replace “prescribed authority” with “issuing authority” in proposed paragraph 34R(a) and is consequential on the response to the Committee’s Recommendation 1.

Item 51

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34SA.  Proposed section 34SA reinstates, with appropriate modifications, the provisions currently in proposed subsections 34B(4) and (5) (which would be deleted by item 3).  Proposed subsection 34SA(1) provides that an issuing authority or prescribed authority has, in the performance of their duties under Division 3 of the ASIO Act, the same protection and immunity as a Justice of the High Court.  Proposed subsection 34SA(2) provides that if a function, power or duty that is neither judicial nor incidental to a judicial function is vested in a person who is a member of a court created by the Parliament, the person has the function, power or duty in a personal capacity and not as a court or a member of a court.  This proposed subsection has been included to ensure that it is clear that the function of issuing authority is conferred on federal magistrates, federal judges and prescribed persons in their personal capacity.  The provision is in similar terms to section 4AAA of the Crimes Act 1914 which regulates the conferral of functions on judicial officers under Commonwealth law in relation to ‘criminal matters’.

Item 52

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34U setting out provisions relating to the involvement of lawyers in the questioning process.  The effect of the proposed amendment is to require that:

·         contact between the detained person and the legal adviser be made in a way that can be monitored by a person exercising authority under the warrant (an ASIO officer or other appropriate officer) (proposed subsection 34U(2));

·         the prescribed authority provide a reasonable opportunity for the legal adviser to advise the detained person during breaks in the questioning (proposed subsection 34U(3)); and

·         the legal adviser not intervene in questioning or address the prescribed authority except to request clarification of an ambiguous question (proposed subsection 34U(4)).

 

Proposed subsection 34U(5) enables the prescribed authority, if it considers that the legal adviser’s conduct is unduly disrupting the questioning, to make a direction for the removal of the legal adviser from the place of questioning.  Proposed subsection 34U(6) provides that if the prescribed authority so directs, the prescribed authority must also direct that the person may contact another approved lawyer.

 

Proposed subsections 34U(7) to (11) deal with disclosure of information by the legal adviser.  Proposed subsection 34U(7) creates an offence with a penalty of a maximum of 2 years imprisonment.  A legal adviser will commit the offence if, during the period that a person is being detained, the legal adviser communicates to a third person (who is not a prescribed authority, a person exercising authority under a warrant, the IGIS or the Ombudsman) information relating to the questioning or detention of the person, and the communication is not authorised by a prescribed authority under proposed subsection 34U(8) or by regulations under proposed subsection 34U(10).

 

Proposed subsections 34U(9) and 34U(11) provide that the legal adviser must not be prevented by a direction of the prescribed authority under proposed subsection 34U(8) or by regulations under proposed subsection 34U(10) from communicating such information to a member or Registrar of a federal court for the purposes of seeking a remedy relating to a warrant or the treatment of a person in connection with a warrant.

 

Proposed subsection 34U(12) makes it clear that if proposed section 34V (see item 53) also applies to the legal adviser in another capacity in relation to the person, then proposed section 34U does not apply to conduct of the legal adviser in that other capacity.

Item 53

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34V.  The new proposed section sets out provisions relating to the conduct of parents, guardians or other persons pursuant to proposed subsection 34NA(7) who have been contacted by a young person or are present when a young person is questioned before a prescribed authority (‘a representative’).  The new proposed section also sets out provisions relating to the disclosure of information by a representative and the persons with whom the representative communicates.  This amendment relates to the response to the Committee’s Recommendation 10.

Proposed subsection 34V(2) enables the prescribed authority, if it considers that the representative’s conduct is unduly disrupting the questioning, to make a direction for the removal of the representative from the place of questioning.  This is in similar terms to proposed subsection 34U(5) relating to legal advisers.

Proposed subsection 34V(3) sets out the directions and actions the prescribed authority must take if the prescribed authority directs the removal of a representative.  The prescribed authority is required to inform the person of his or her rights to request a representative (other than the one removed) to be present during questioning, and to contact such a person.  The prescribed authority is also required to make directions to ensure that the person is not questioned in the absence of a representative, and to ensure that the person may contact a representative.

Proposed subsections 34V(4) and (5) deal with the disclosure of information by a representative.  Proposed subsection 34V(5) creates an offence, with a maximum penalty of 2 years imprisonment.  A representative will commit the offence if, during the period that a person is being detained, the representative communicates to a third person (who is not a parent, guardian or sibling of the person, a prescribed authority, a person exercising authority under a warrant, the IGIS or the Ombudsman) information relating to the questioning or detention of the person, and the prescribed authority has not given permission for the communication under proposed subsection 34V(4).

 

Proposed subsection 34V(6) deals with the disclosure of information by parents, guardians or siblings of a person who is being detained and creates an offence, with a maximum penalty of 2 years imprisonment.  A parent, guardian or sibling of a person who has information relating to the questioning or detention of the person communicated to them by a representative or another parent, guardian or sibling of the person will commit an offence if, during the period that the person is detained, they communicate that information to another person.  The offence will not be committed if the person to whom the information is communicated is another parent, guardian or sibling of the person, a representative, a prescribed authority, a person exercising authority under a warrant, the IGIS or the Ombudsman.

 

It is intended that the effect of proposed subsections 34V(4), (5) and (6) is to allow the communication of information about the questioning or detention of a young person among members of the person’s immediate family and to the relevant authorities, but to prevent the unauthorised disclosure of that information outside of the person’s immediate family or the relevant authorities.

Item 54

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34W providing that Rules of Court of the High Court or Federal Court may make special provision in relation to proceedings for a remedy relating to a warrant issued under proposed section 34D or the treatment of a person in connection with a warrant.  This amendment is related to the response to the Committee’s Recommendation 15.

Item 55

This item amends item 24 of Schedule 1 to the Bill as introduced to insert a new proposed section 34X providing that, despite any other law of the Commonwealth, a court of a State or Territory does not have jurisdiction in proceedings for a remedy relating to a warrant issued under proposed section 34D or the treatment of a person in connection with a warrant that are commenced while the warrant is in force. 

Item 56

This item inserts new items 27A, 27B and 27C in Schedule 1 to the Bill as introduced.  These amendments respond to Recommendation 11 of the Committee.

Proposed item 27A inserts a new proposed subsection 94(1A) in the ASIO Act.  Section 94 of the ASIO Act deals with ASIO’s Annual Report.  The proposed new subsection requires the report to include a statement of the total number of warrants sought from an issuing authority during the year and the total number of warrants issued during the year:

·         under proposed section 34D;

·         that relate to appearing before a prescribed authority for questioning; and

·         that relate to being taken into custody, brought before a prescribed authority and detained.

Proposed item 27B inserts a new proposed paragraph 94(5) in the ASIO Act.  The proposed paragraph prevents the Minister from deleting the statement referred to in item 27A for the purposes of ASIO’s unclassified report.

Proposed item 27C provides that the amendments effected by items 27A and 27B apply to each report for a year ending after the commencement of this item.

Item 57

This item inserts new item 27D in Schedule 1 to the Bill as introduced to provide for a review of the provisions to be inserted into the ASIO Act by the Bill.  Item 27D inserts a new paragraph 29(1)(bb) into the Intelligence Services Act 2001 to provide for the Parliamentary Joint Committee on ASIO, ASIS and DSD to review the operation, effectiveness and implications of amendments made by the Bill.  The review will be conducted three years after the Bill receives Royal Assent.

The Committee is required to report its comments and recommendations arising from the review to each House of the Parliament and to the responsible Minister (section 29(1)(c) of the Intelligence Services Act 2001 ).  Schedule 1 to the Intelligence Services Act 2001 contains provisions empowering the Committee to obtain information and documents, take evidence, and publish evidence and the contents of documents.