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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

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)



 

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002

 

GENERAL OUTLINE

 

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 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 Bill will provide ASIO with the ability to seek a warrant to detain and question people for a period of up to 48 hours for the purposes of investigating terrorism offences.

 

Under this Bill, a person can be required under a warrant to provide information or produce records or things. Before the Director-General may seek a warrant from a prescribed authority, the Attorney-General must give consent.  Before giving his or her consent, the Attorney-General must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist in the collection of intelligence that is important in relation to a terrorism offence and that relying on other methods of collecting the intelligence would be ineffective.

 

A prescribed authority will be a Federal Magistrate or a senior legal member of the Administrative Appeals Tribunal. A warrant may only be issued by the prescribed authority if the prescribed authority is satisfied that there are reasonable grounds for believing that such action will substantially assist in the collection of intelligence that is important in relation to a terrorism offence.

 

A warrant to be requested may only authorise the person to be immediately taken into custody by the police and detained if the Attorney-General is satisfied that there are reasonable grounds for believing that the person may: alert a person involved in a terrorist offence that the offence is being investigated; not appear before a prescribed authority; or destroy, damage or alter a record or thing the person may be requested under the warrant to produce.

 

The Bill includes a number of safeguards to ensure that the new powers are exercised reasonably.

 

The prescribed authority must be present throughout the questioning process.

 

The Bill specifically provides that a person being detained under a warrant must be treated with humanity and not subjected to cruel, inhuman or degrading treatment.

 

The Director-General must ensure that video recordings are made of the proceedings before the prescribed authority or any other matter that the prescribed authority directs.  These recordings must be provided to the Inspector-General of Intelligence and Security (IGIS).

 

The Bill requires the prescribed authority to inform the person being detained under the warrant of the effect of the warrant; the length of time the warrant is in force; the legal consequences of non-compliance with the warrant and the right of the person being detained to communicate with the IGIS and the Ombudsman.  Interpreting services must be provided before any questioning can take place if the person detained is unable to communicate in English.

 

The person detained has the right to make a complaint relating to ASIO to the IGIS or, if their complaint relates to the AFP, the Ombudsman.  On request, the person detained is to be provided with the facilities to communicate with the IGIS or the Ombudsman.

 

The Bill also requires ASIO to give a copy of any warrant issued and a statement containing details of any detention that has taken place to the IGIS.  The Attorney-General will also receive a report from ASIO on each warrant.

 

Under this Bill, it is an offence to fail to appear before a prescribed authority, to fail to give information in accordance with the warrant, to knowingly make a false or misleading statement in accordance with the warrant, or to fail to produce any record or thing requested in accordance with the warrant, unless the person can prove that he or she does not have the record or thing.  These offences attract a maximum penalty of five years imprisonment.

 

Financial Impact

 

It is not expected that the Bill will have a direct financial impact.

 



NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1: Short Title

 

This clause is a formal provision specifying the short title of the Bill.

 

Clause 2: Commencement

 

Subclause 2(1) provides that each provision of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 (the Act) listed in column 1 of the table in clause 2 commences, or is taken to have commenced, on the day specified in column 2 of the table.

 

Item 1 of the table provides that sections 1 to 3 of the Bill and any other clauses not covered in the table commence on the day on which the Act receives the Royal Assent.

 

Item 2 of the table provides that Schedule 1 to the Act, items 1 to 7, which insert new and amend existing definitions in the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), commence either on the start of the day after the day on which this Act receives the Royal Assent and the first to occur of either the commencement of Division 72 of the Criminal Code or the commencement of Part 5.3 of the Criminal Code , which ever is the later.

 

Item 3 of the table provides that Schedule 1, item 8, and security of the Commonwealth which inserts an alternative a definition of “terrorism offence”into section 4 of the Act, commences on the later of the start of the day after the day on which this Act receives the Royal Assent and the commencement of Part 5.3 of the Criminal Code , subject to subclause (3)

 

Item 4 of the table provides that Schedule 1, item 9, which inserts an alternative definition of “terrorism offence” into section 4 of the Act, commences on the later of the start of the day after the day on which this Act receives Royal Assent and the commencement of Division 72 of the Criminal Code , subject to subclause (4).

 

Item 5 of the table provides that Schedule 1, items 10 and 11, commence immediately after the later of the commencement of the provision covered by item 3 of the table and the commencement of Division 72 of the Criminal Code , subject to subsection 5.  Item 10 makes a minor consequential amendment.  Item 11 is an application provision.

 

Item 6 of the table provides that Schedule 1, items 12 to 14 , commence immediately after the later of the commencement of the provision covered by item 4 of the table and the commencement of Part 5.3 of the Criminal Code , subject to subsection 6. Item 12 makes a minor consequential amendment.  Item 13 adds a note at the end of the definition of terrorist offence in section 4 of the Act.  Item 14 is an application provision.

 

Item 7 of the table provides that Schedule 1, items 15 to 29, which amend definitions and substitute words in the ASIO Act (items 15 to 23), insert a new Division 3- Powers relating to Terrorism Offences (item 24) and repeal definitions and substitute alternatives (items 25 to 29) commence on the later of either the start of the day after the day on which this Act receives the Royal Assent and the first to occur of either the commencement of Division 72 of the Criminal Code or the commencement of Part 5.3 of the Criminal Code.

 

Subclause 2(2) provides that Column 3 of the table is for additional information that is not part of the Act.

 

Subclause 2(3) provides that if Division 72 of the Criminal Code commences before Part 5.3 of the Criminal Code , the provision covered by Item 3 of the table does not commence at all.  The provision covered by Item 3 of the table inserts a new definition of “terrorism offence” into section 4 of the ASIO Act.  This subclause has been included because, at the time of drafting, it could not be known whether the Security Legislation Amendment (Terrorism) Bill 200 2 , which inserts Part 5.3 into the Criminal Code , or the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, which inserts Division 72 into the Criminal Code , would commence first.

 

Subclause 2(4) provides that if Part 5.3 of the Criminal Code commences before or at the same time as Division 72 of the Criminal Code , the provision covered by Item 4 of the table does not commence at all.  The provision covered by Item 4 of the table inserts a new definition of “terrorism offence” into section 4 of the ASIO Act.  This subclause has been included because at the time of drafting, it could not be known whether the Security Legislation Amendment (Terrorism) Bill 2002, which inserts Part 5.3 into the Criminal Code , or the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, which inserts Division 72 into the Criminal Code , would commence first.

 

Subclause 2(5) provides that if Division 72 of the Criminal Code commences before Part 5.3 of the Criminal Code , the provisions covered by Item 5 of the table do not commence at all.  The provisions covered by Item 5 insert words to amend the definition of “terrorism offence” and clarify its application.  This subclause has been included because at the time of drafting, it could not be known whether the Security Legislation Amendment (Terrorism) Bill 2002, which inserts Part 5.3 into the Criminal Code , or the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, which inserts Division 72 into the Criminal Code , would commence first.

 

Subclause 2(6) provides that if Part 5.3 of the Criminal Code commences before Division 72 of the Criminal Code , the provisions covered by Item 6 of the table do not commence at all.  The provisions covered by Item 6 insert words to amend the definition of “terrorism offence” and clarify its application.  This subclause has been included because at the time of drafting, it could not be known whether the Security Legislation Amendment (Terrorism) Bill 2002, which inserts Part 5.3 into the Criminal Code , or the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, which inserts Division 72 into the Criminal Code , would commence first.

 

 

Clause 3: Schedule(s)

 

Clause 3 provides that each Act specified in a schedule is amended as set out in the Schedule concerned.

 

Schedule 1 - Amendments relating to ASIO

Item 1 - Section 4

 

This item inserts a definition of “frisk search” into the ASIO Act. 

Item 2 - Section 4

 

This item inserts a definition of “ordinary search” into the ASIO Act.

Item 3 - Section 4 (at the end of paragraphs (a) and (b) of the definition of politically motivated violence )

 

This item is a minor drafting amendment to the definition of politically motivated violence to provide for the insertion of a new paragraph (ba) into the definition. 

Item 4 - (after paragraph (b) of the definition of politically motivated violence )

 

This item amends the definition of politically motivated violence in the ASIO Act to include acts that are offences punishable under Division 72 or Part 5.3 of the Criminal Code Act 1995 (Criminal Code ) within the definition.  Part 5.3 of the Criminal Code will be inserted by Schedule 1 of the Security Legislation Amendment (Terrorism) Bill 2002  and deals with terrorism offences.  Division 72 of the Criminal Code will be inserted by Schedule 1 of the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 which deals with terrorist bombings offences.  The definition of politically motivated violence is central to the issue of a warrant under proposed new section 34D of the ASIO Act.

Item 5 - Application

 

This item clarifies that the amendments in this schedule to the definition of “politically motivated violence” in the ASIO Act are applicable in relation to an act, matter or thing done, existing or happening after the commencement of the amendments (including an act under a warrant or other instrument issued under that Act before that commencement).

Item 6 - Section 4

 

This item inserts a definition of “seizable item” into the ASIO Act.

Item 7 - Section 4

 

This item inserts a definition of “strip search” into the ASIO Act.

Item 8 - Section 4

 

This item inserts a definition of “terrorism offence” into the ASIO Act.  A “terrorism offence” is defined as an offence against Part 5.3 of the Criminal Code.   Part 5.3 of the Criminal Code deals with proscribed organisations offences, general terrorism offences and financing of terrorism offences.

 

The definition includes a note which clarifies that a person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorist act actually occurs.

 

The terrorism offences in Part 5.3 are: engaging in a terrorist act; providing or receiving training connected with terrorist acts; directing organisations concerned with terrorist acts; possessing things connected with terrorist acts; collecting or making documents likely to facilitate terrorist acts; acts done in preparation for, or planning, terrorist acts; the proscribed organisation offence and the terrorist financing offence.  With the exception of the offence engaging in a terrorist act, the offences in Part 5.3 are committed even if the terrorist act does not occur.  As a result, the collection of intelligence that is important in relation to a terrorism offence includes the collection of intelligence in relation to terrorist acts that have not actually occurred.

 

This is an alternative definition to the definition inserted by Item 9 and will only commence if Part 5.3 of the Criminal Code (terrorist offences) commences before Division 72 of the Criminal Code (terrorist bombings offences).

 

Item 9 - Section 4

 

This item inserts a definition of “terrorism offence” into the ASIO Act.  A “terrorism offence” is defined as an offence against Division 72 of the Criminal Code.   Division 72 of the Criminal Code deals with terrorist bombing offences.  This is an alternative definition to the definition inserted by Item 8 and will only commence if Division 72 of the Criminal Code (terrorist bombings offences) commences before Part 5.3 of the Criminal Code (terrorist offences).

Item 10 - Section 4 (definition of terrorism offence)

 

This item is a minor consequential amendment to the definition of “terrorism offence” to ensure that the definition will refer to both Division 72 and Part 5.3 of the Criminal Code .  The amendment is an alternative to that made by Item 12 and will only commence if Part 5.3 of the Criminal Code (terrorist offences) commences before Division 72 of the Criminal Code (terrorist bombings offences).

 

Item 11 - Application

 

This item clarifies that the amendments in this schedule to the definition of “terrorism offence” in the ASIO Act, are applicable in relation to an act, matter or thing done, existing or happening after the commencement of the amendments (including an act under a warrant or other instrument issued under that Act before that commencement).

 

Item 12 - Section 4 (definition of terrorism offence)

This item is a minor consequential amendment to the definition of “terrorism offence” to ensure that the definition will refer to both Division 72 and Part 5.3 of the Criminal Code The amendment is an alternative to that made by Item 10 and will only commence if Division 72 of the Criminal Code (terrorist bombings offences) commences before Part 5.3 of the Criminal Code (terrorist offences).

 

Item 13 - Section 4 (at the end of the definition of terrorism offence)

 

This item inserts a note at the end of the definition of terrorism offence in section 4 of the Act which clarifies that a person can commit a terrorism offence against Part 5.3 of the Criminal Code even if a terrorist act has not occurred.

 

The terrorism offences in Part 5.3 are: engaging in a terrorist act; providing or receiving training connected with terrorist acts; directing organisations concerned with terrorist acts; possessing things connected with terrorist acts; collecting or making documents likely to facilitate terrorist acts; acts done in preparation for, or planning, terrorist acts; the proscribed organisation offence and the terrorist financing offence.  With the exception of the offence engaging in a terrorist act, the offences in Part 5.3 are committed even if the terrorist act does not occur.  As a result, the collection of intelligence that is important in relation to a terrorism offence includes the collection of intelligence in relation to terrorist acts that have not actually occurred.

 

This note is an alternative to the note that is included in the definition inserted by Item 8 and will only commence if Division 72 of the Criminal Code commences before Part 5.3 of the Criminal Code

 

Item 14 - Application

 

This item clarifies that the amendments in this schedule to the definition of “terrorism offence” in the ASIO Act, are applicable in relation to an act, matter or thing done, existing or happening after the commencement of the amendments (including an act under a warrant or other instrument issued under that Act before that commencement).

Items 15 to 19 - Subsection 18(1), paragraph 18(2)(b), subsection 18(3) and paragraph 18(3)(b)

Items 15 to 19 substitute references to “an officer of the Organisation” in s ubsection 18(1), paragraph 18(2)(b), subsection 18(3) and paragraph 18(3)(b)

with references to “a person” so that people other than ASIO officers may communicate intelligence on behalf of ASIO, when authorised by the Director-General of Security. 

Item 20 - Saving of authority and authorisations

 

Item 20 has been included so it is clear that any authorisations conferred on an officer of ASIO before the commencement of the proposed amendments to section 18 are not affected by the amendments.

Item 21 - Section 23

 

This item repeals section 23 of the ASIO Act.  Section 23 deals with references to “Minister” in Division 2 of the ASIO Act and is made unnecessary by section 18C of the Acts Interpretation Act 1901

 

Item 22 - Subsection 24(3) (definition of relevant warrant)

 

This item amends subsection 24(3) of the ASIO Act so that the subsection includes a reference to the warrants in proposed section 34D.  Section 24 of the Act sets out who may approve officers and employees of ASIO and other people, to exercise on behalf of ASIO, the authority conferred by relevant warrants or device recovery provisions.

 

Item 23 - After subsection 25(4)

 

This item inserts new subsections 25(4A) and (4B) into section 25 of the ASIO Act.  Section 25 of the Act sets out ASIO’s powers in relation to search warrants.

 

Proposed subsection 25(4A) lists the things that the Minister may specify in the warrant if he or she considers it appropriate in the circumstances:

(a)     conducting of an ordinary or frisk search of a person at or near premises that are the subject of a search warrant issued under subsection 25(1) where the person authorised to execute the warrant has a reasonable cause to believe that the person has material or seizable items relevant to the security matter;

(b)    inspecting or otherwise examining any things found and making copies that appear relevant to the collection of intelligence by ASIO in accordance with the ASIO Act; and

(c)     removing or retaining for a reasonable time any thing found for the purpose of inspection and examination and, in the case of a record, making a copy, in accordance with the warrant.

 

Proposed subsection 25(4B) provides that subsection 25(4A) does not authorise a strip search of a search of a person’s body cavities.

 

Item 24 - At the end of Part III

 

This item inserts into the ASIO Act a new Division 3 - Special Powers relating to terrorism offences.  Division 3 will be inserted at the end of Part III of the ASIO Act.

 

Division 3 - Special powers relating to  terrorism offences
Subdivision A - Preliminary
Proposed new section 34A - Definitions
Subdivision A - Preliminary

 

Proposed section 34A defines certain terms for the purposes of proposed new Division 3. 

 

“Federal Magistrate” has the same meaning as in the Federal Magistrates Act 1999.

Section 5 of that Act defines Federal Magistrate as:

(a)        a Federal Magistrate (including the Chief Federal Magistrate) who holds office under this Act; and

(b)        when used in the expression the Federal Magistrates Court or a Federal Magistrate , a Federal Magistrate sitting in Chambers.

 

“Police officer” is defined to mean a member or special member of the Australian Federal Police or a member of a State or Territory police force.

 

“Prescribed authority” is defined to mean a person appointed as a prescribed authority under clause 34B.

 

“Record” has the same meaning as in Division 2 of the ASIO Act. Section 22 of the ASIO Act defines record , when used as a noun, to mean a document (including any written or printed material) or an object by which words, images, sounds, or signals are recorded or stored, or from which information can be obtained.

 

Proposed new section 34B - Prescribed Authorities

 

Proposed subsection 34B(1) empowers the Minister to appoint as a prescribed authority a Federal Magistrate, or a Deputy President, senior member or member of the Administrative Appeals Tribunal (AAT).

 

Proposed subsection 34B(2) prevents the Minister from appointing a Federal Magistrate as a prescribed authority unless the Federal Magistrate has consented to the appointment in writing and the consent is in force.

 

Proposed subsection 34B(3) prevents the Minister from appointing an AAT member, other than the Deputy President, unless the member is enrolled as a legal practitioner in Australia and has been enrolled for at least five years.

 

Proposed subsection 34B(4) provides that a 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 34B(5) provides that if a Federal Magistrate has under Division 3 of the ASIO Act a function, power or duty that is neither judicial nor incidental to a judicial function or power, the Magistrate has the function, power or duty in a personal capacity and not as a court or a member of a court.

 

Proposed subsection 34B(5) has been included in the Bill to ensure that it is clear that this new function is being conferred on Federal Magistrates 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’. 

 

Subdivision B -Questioning, detention etc.

Proposed section 34C - Requesting warrants

 

Proposed subsection 34C(1) provides that the Director-General may seek the Minister’s consent to the issue of a warrant under proposed section 34D in relation to a person.  A warrant under proposed section 34D is for questioning a person and requiring the production or records of things. 

 

While proposed subsection 34C(1) provides that the Director-General “may” seek the Minister’s consent, the effect of section 34C is that the Director-General must seek the Minister’s consent before requesting the prescribed authority to issue the warrant.  In this context “may” is used rather than “must” as the Director-General is being empowered to seek the Minister’s consent for a warrant under proposed new section 34D.  The use of “must” would not be appropriate as the Director-General is not being compelled to seek the issue of a warrant under proposed new section 34D.

 

Proposed subsection 34C(2) sets out what the Director-General must include when seeking the Minister’s consent to a request for the issue of a warrant under proposed subsection 34C(1).  In addition to a draft of the warrant, the draft request must include a statement of the facts and other grounds on which the Director-General considers it necessary that the warrant should be issued and a statement of the particulars and outcomes of all previous requests for the issue of a section 34D warrant in relation to the person.

 

Proposed subsection 34C(2) has been included to ensure that the Minister, in giving consent to the issue of a section 34D warrant, is fully aware of all the relevant circumstances in relation to the request for the warrant.

 

Proposed subsection 34C(3) provides that the Minister may, by writing, consent to the request, but only if the Minister is satisfied:

 

(a)                 that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and

 

(b)                that relying on other methods of collecting that intelligence would be ineffective.

 

Terrorism offences are the offences in Part 5.3 and Division 72 of the Criminal Code .  These are: engaging in a terrorist act; providing or receiving training connected with terrorist acts; directing organisations concerned with terrorist acts; possessing things connected with terrorist acts; collecting or making documents likely to facilitate terrorist acts; acts done in preparation for, or planning, terrorist acts; the proscribed organisation offence and the terrorist financing offence. Division 72 of the Criminal Code includes the terrorism offences dealing with terrorist bombings.

 

With the exception of the offence of engaging in a terrorist act, the offences in Part 5.3 of the Criminal Code are committed even if the terrorist act does not occur.   As a result, the collection of intelligence that is important in relation to a terrorism offence includes the collection of intelligence in relation to possible terrorist acts that are offences under Part 5.3 of the Criminal Code .

 

Proposed subsection 34C(3) also provides that if the warrant to be requested is to authorise the person to be taken into custody, brought before a prescribed authority and detained , the Minister must also be satisfied that there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained, the person may: alert a person involved in a terrorism offence that the offence is being investigated; not appear before a prescribed authority; or destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce.

 

The Minister may make his or her consent subject to changes being made to the draft request.

 

Proposed subsection 34C(4) provides that, if the Minister has consented to the request from the Director-General, the Director-General may then request the warrant by giving the prescribed authority a request that incorporates any changes required by the Minister and a copy of the Minister’s consent.

 

Proposed subsection 34C(5) provides that, if the Director-General is seeking a further warrant in relation to a person who has already been detained under two consecutive warrants, the Director-General must seek the warrant from a Deputy President of the Administrative Appeals Tribunal.

 

  Proposed section 34D - Warrants for questioning etc.

 

Proposed subsection 34D(1) provides that a prescribed authority may issue a warrant relating to a person only if the Director-General requests the warrant in accordance with proposed subsection 34C(4), and with subsection 34C(5) if relevant, and the prescribed authority is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.

 

Proposed subsection 34D(2) provides that the warrant must, in the same terms as the draft warrant given to the prescribed authority as part of the request, either:

 require the person specified in the warrant to appear before a prescribed authority for questioning under the warrant; or do both of the following: authorise the person be immediately taken into custody by a police officer and brought before a prescribed authority for questioning under the warrant and detained by a police officer for a specified period of not more than 48 hours starting when the person is brought before the authority; and specify all persons to whom the person is permitted to contact while in custody or detention authorised by the warrant.

 

Proposed subsection 34D(3) provides that the warrant may specify the end of a period for which the person is to be detained by reference to the opinion of a person exercising authority under the warrant that ASIO does not have any further requests to make of the person to provide information or things under the warrant.

 

Proposed subsection 34D(4) provides that the warrant may specify someone whom the person is permitted to contact, including by reference to the fact that he or she is the person’s legal adviser. 

 

Proposed subsection 34F(5) requires that the warrant must, in the same terms as the draft warrant, authorise ASIO, subject to any restrictions or conditions, to question the person before a prescribed authority by requesting the person to either give information that is or may be relevant to intelligence that is relevant to a terrorism offence or to produce records or things that are, or may be, relevant to intelligence that is relevant to a terrorism offence.  Proposed subsection 34F(5) also requires that the warrant must authorise ASIO to make copies of a record produced by the person before a prescribed authority in response to a request in accordance with the warrant.

 

Proposed subsection 34F(6) provides that the warrant must be signed by the prescribed authority who issues it and specify the period during which the warrant remains in force (which may not be more than 28 days).

 

Proposed section 34E - Prescribed authority must explain warrant

 

Proposed subsection 34E(1) requires a prescribed authority, when a person first appears before the prescribed authority for questioning under the warrant, to inform the person of the following:

(a)     whether the warrant authorises detention of the person by a police officer and, if it does, the period for which the warrant authorises that detention;

(b)    what the warrant authorises ASIO to do;

(c)     the effect of section 34G, including the fact that section 34G creates offences;

(d)    the period for which the warrant is in force;

(e)     the person’s right to make a complaint to the Inspector-General of Security in relation to ASIO or to the Ombudsman in relation to the Australian Federal Police.

 

Proposed subsection 34E(2) provides that subsection 34E(1) does not apply to a prescribed authority if a person has previously appeared before another prescribed authority for questioning under the warrant.

 

Proposed section 34F - Detention of persons

 

Proposed subsection 34F(1) sets out the directions that a prescribed authority may give at any time when a person is before a prescribed authority for questioning under a warrant.  The prescribed authority may give: a direction to detain the person; a direction for the further detention of a person; a direction about arrangements for the person’s detention; a direction permitting the person to contact a specified person or any person (this may include a person’s legal adviser); a direction for the person’s further appearance before the prescribed authority for questioning under the warrant; or a direction that the person be released from detention.

 

Proposed subsection 34F(2) provides that the prescribed authority may only give a direction under subsection (1) that is consistent with the warrant, or if it is not consistent with the warrant, has been approved by the Minister in writing.

 

Proposed subsection 34F(3) limits the directions that a prescribed authority may give under subsection (1) to detain a person or for the further detention of a person.  The prescribed authority may only give such a direction if he or she is satisfied that there are reasonable grounds for believing that the person: may alert a person involved in a terrorist offence that the offence is being investigated; may not continue to appear, or may not appear again, before a prescribed authority; or may destroy, damage or alter a record or thing the person has been requested, or may be requested, under the warrant, to produce.

 

Proposed subsection 34F(4) places two special limits on directions that may be given by a prescribed authority under proposed subsection 34F(1).  These are that a direction must not result in: a person being detained for more than 48 hours after a person first appears before the prescribed authority for questioning under the warrant, or detention being arranged by a person who is not a police officer.

 

Proposed subsection 34F(5) provides that directions given by a prescribed authority have effect, and may be implemented or enforced, according to their terms.

 

Proposed subsection 34F(6) provides that a police officer may take a person into custody and bring the person before a prescribed authority for questioning under the warrant issued under section 34D if the person fails to appear before a prescribed authority as required by the warrant or a direction given by a prescribed authority under section 34F.

 

Proposed subsection 34F(7) provides that section 34F does not prevent a person who was detained in connection with a section 34D warrant being the subject of a subsequent warrant under section 34D or being detained under a subsequent warrant under section 34D.  This section has been included to ensure that it is clear that a person may be the subject of more than one section 34D warrant.

 

Proposed subsection 34F(8) provides that a person who has been taken into custody or detained under Division 3 of the ASIO Act is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention. 

 

Proposed subsection 34F(8) has been included because, if a person has been taken into custody or is detained under Division 3 of the ASIO Act it is because the person may have critical information concerning terrorism offences and contact could alert other persons involved in such activities.   In this case it is the security of the community, rather than the ordinary rights of the individual, which are paramount.

 

Proposed paragraph 34F(9)(a) provides that the person in custody or detention may contact anyone whom a warrant under which he or she is detained, or a direction described under paragraph 34F(1)(d), permits the person to contact.  As a result of this provision, the prescribed authority may give a direction allowing the person in custody or being detained to contact others.  This is intended to ensure that a person in custody or being detained and held incommunicado may have contact with others as soon as it is determined that contact with others by the person will not pose a serious security risk. 

 

Proposed paragraph 34F(9)(b) provides that subsection 34F(8) does not affect the right of a person in detention to communicate with the Inspector-General of Intelligence and Security (IGIS) (if the person wishes to make a complaint about  ASIO) or the Ombudsman (if the person wishes to make a complaint about the Australian Federal Police).

 

Proposed paragraph 34F(9)(c) requires anyone who is holding the person in custody or detention under Division 3 to give to the person facilities for making a complaint to the IGIS or the Ombudsman, if the person wishes to make an oral complaint.  The requirement to provide a person with the facilities to make a complaint in writing is contained in section 13 of the Inspector-General of Intelligence and Security Act 1986 and section 22 of the Complaints (Australian Federal Police) Act 1981.

 

Proposed section 34G - Giving information and producing things etc.

 

Proposed subsection 34G(1) provides that a person must appear before a prescribed authority for questioning as required by a warrant issued under proposed section 34D or a direction under proposed section 34F.  The maximum penalty for failure to comply is 5 years imprisonment.

 

Subsection 34G(1) does not specify the fault elements that apply to the offence.  As a consequence, the fault element of intention will apply by default to a person’s failure to appear (section 5.6, Criminal Code).  However, proposed subsection 34G(2) provides that strict liability applies to the circumstance that the warrant was issued under section 34D or the direction was given under section 34G.  The meaning of strict liability is contained in section 6.1 of the Criminal Code.  The application of strict liability to this element of the offence means that the prosecution does not have to prove that the defendant knew, or was reckless as to whether, the warrant or direction was issued under those particular sections of the Act.

 

Proposed subsection 34G(3) provides that a person who is before a prescribed authority for questioning under a warrant must not fail to give any information requested in accordance with the warrant.  The maximum penalty for failure to comply is 5 years imprisonment.

 

As subsection 34G(3) does not specify the fault elements that apply to the offence, the fault element of intention will apply by default to a person’s failure to provide the information requested (section 5.6, Criminal Code).

 

Proposed subsection 34G(4) provides that subsection (3) does not apply if the person does not have the information.  In accordance with subsection 13.3 of the Criminal Code, it is the defendant who must adduce evidence that suggests a reasonable possibility that he or she does not have the information requested.  The evidential burden has been placed on the defendant because the matter is peculiarly within the defendant’s knowledge and would be too difficult for the prosecution to prove.

 

Proposed subsection 34G(5) provides that if a person makes a statement when they are before a prescribed authority for questioning under a warrant that they know to be false or misleading and the statement is made in purported compliance with a request for information made in accordance with a warrant, the person is guilty of an offence.  The maximum penalty that applies to the offence is 5 years imprisonment.

 

Subsection 34G(5) does not specify the fault elements that apply to the offence.  As a consequence, the fault element of intention will apply by default to a person’s failure to provide the information requested (section 5.6, Criminal Code).

 

Proposed subsection 34G(6) provides that a person who is before a prescribed authority for questioning under a warrant must not fail to produce any record or thing that the person is requested in accordance with the warrant to produce.  The maximum penalty for the offence is 5 years imprisonment.

 

Proposed subsection 34G(7) provides that subsection (6) does not apply if the person does not have possession or control of the record or thing. In accordance with subsection 13.3 of the Criminal Code, it is the defendant who must adduce evidence that suggests a reasonable possibility that he or she does not have the information requested.

 

Proposed subsection 34G(8) provides that, for the purposes of subsections (3) and (6), the person must not fail to give information or produce a record or thing on the grounds that the giving of the information or the production of the record or thing might tend to incriminate the person or make the person liable to a penalty.  The normal privilege against self-incrimination does not apply in relation to proposed new subsection 34G(8) to maximise the likelihood that information will be given or records or things produced that may assist to avert terrorism offences.  The protection of the community from such violence is, in this special case, considered to be more important than the privilege against self-incrimination.

 

Proposed new subsection 34G(9) limits the use which can be made of information,  records or things obtained as a result of warrant for the purposes of criminal prosecution.  The information, records or things provided by a person while before a prescribed authority for questioning under a warrant may only be used in criminal prosecutions for an offence against section 34G or a terrorism offence.

 

Proposed section 34H - Interpreter

 

Proposed section 34H provides that if the prescribed authority before whom a person specified in a warrant first appears for questioning under a warrant believes on reasonable grounds that the person specified in the warrant is unable to communicate in English the prescribed authority must arrange for an interpreter and defer the questioning under the warrant until the interpreter arrives. 

 

Subdivision C - Miscellaneous

Proposed section 34J - Humane treatment of person specified in warrant

 

Proposed section 34J requires that a person specified in a warrant be treated humanely while anything is being done to the person under the warrant or a direction given under section 34F.

 
Proposed section 34K - Video recording of procedures

 

Proposed subsection 34K(1) provides that the Director-General must ensure that video recordings are made of a person’s appearance before a prescribed authority for questioning under a warrant and any other matter or thing that the prescribed authority directs is to be video recorded.  Proposed subsection 34K(2) provides that the Director-General must ensure that, if practicable, video recordings are made of any complaint by a person specified in a warrant issued under section 34D when he or she is not appearing before a prescribed authority for questioning under the warrant.

 

Generally a complaint made by a person who is required to appear before a prescribed authority for questioning under a warrant would be expected to be made during the person’s appearance before a prescribed authority, which is required to be recorded on video.  If a complaint is made at a time other than when the person appears before a prescribed authority for questioning under the warrant it may not be practicable for the complaint to be recorded on video.

 

Proposed section 34L - Power to conduct an ordinary or strip search

 

Proposed subsection 34L(1) provides that, if a person is detained under Division 3 of the ASIO Act, a police officer may conduct an ordinary search of the person or a strip search of the person.  A strip search may only be conducted in accordance with proposed section 34M.  ‘Ordinary search’ is defined in item 2 of Schedule 1 and ‘strip search’ is defined in item 7 of Schedule 1.

 

Proposed subsection 34L(2) provides that a strip search may be conducted if a police officer suspects on reasonable grounds that both the person has a seizable item on his or her person and it is necessary to conduct a strip search to recover that item and a prescribed authority has approved the conduct of the strip search.  Item 6 of Schedule 1 defines ‘seizable item’.

 

Proposed subsection 34L(3) provides that the approval of the prescribed authority to conduct the strip search may be obtained by telephone, fax or other electronic means.  The provision has been included so it is clear that the approval does not have to be obtained from the prescribed authority in person.

 

Proposed subsection 34L(4) provides that a strip search may also be conducted if the person consents to the search in writing.  If the person consents, the approval of the prescribed authority is not required.

 

Proposed subsection 34L(5) provides that a medical practitioner may be present during a strip search and may assist in the search.

 

Proposed subsection 34L(6) provides that the prescribed authority must make a record of any refusal to approve a request for a strip search and the reasons for the decision.

 

Proposed subsection 34L(7) provides that such force that is reasonable and necessary in the circumstances may be used to conduct a strip search.

 

Proposed subsection 34L(8) provides that any seizable item or any item that is relevant to collection of intelligence that is important in relation to a terrorism offence found during a search may be seized. 

 

Proposed section 34M - Rules for conduct of strip search

 

Proposed subsection 34M(1) sets out the rules that apply to the conduct of a strip search under proposed new section 34L.  A strip search:

(a)     must be conducted in a private area;

(b)    must be conducted by a police officer of the same sex as the person being searched;

(c)     must not be conducted in the presence or view of a person of the opposite sex to the person being searched (unless the person of the opposite sex is a medical practitioner and a medical practitioner of the same sex is not available within a reasonable time (proposed subsection 34M(3));

(d)    must not be conducted in the presence or view of a person whose presence is not necessary for the search;

(e)     must not be conducted on a person under 10 years of age;

(f)      if, in the prescribed authority’s opinion, the person being searched is over 10 and less than 18 years of age, or is incapable of managing his or her affairs, the search may only be conducted in the present of a parent or guardian of the person, or if that is unacceptable to the person, in the presence of someone else who can represent the person’s interests (proposed subsection 34M(2) provides that a police officer, the Director-General, an officer of employee of ASIO or a person approved to exercise authority under a warrant under subsection 24(1) of the Act can not represent the person’s interests);

(g)     must not involve a search of a person’s body cavities;

(h)     must not involve the removal or more garments than the police officer believes is necessary to determine whether the person has a seizable item; and

(i)       must not involve more than visual inspection than the police officer believes is necessary to determine whether the person has a seizable item.

 

Proposed subsection 34M(4) provides that the person must be provided with adequate clothing if any of the person’s garments are seized as a result of the search.

 

Proposed section 34N - Power to remove, retain and copy materials etc

 

Proposed subsection 34N(1) provides that, in addition to the things that ASIO is authorised to do that are specified in the warrant, ASIO is also authorised:

(a)     to remove and retain any record or thing produced before a prescribed authority;

(b)    subject to proposed subsection 34M, to examine items removed;

(c)     to retain for such time as is reasonable, and make copies of, any item seized under proposed paragraph 34L(8)(b); and

(d)    to do any other thing reasonably incidental to paragraphs (a), (b) or (c), or any of the things that ASIO is authorised to do that are specified in the warrant.

 

Proposed subsection 34N(2) provides that a police officer may retain for such time is reasonable any seizable item seized by the officer under paragraph 34L(8)(a).

 

Proposed section 34P - Providing reports to the Minister

 

Proposed section 34P requires the Director-General to give to the Minister a report on each warrant issued under proposed section 34D.  The report must address the extent to which action taken under the warrant has assisted ASIO to carry out its functions.  In addition to this report, proposed section 34M requires details of action under proposed Division 3 of the ASIO Act to be provided to the Inspector-General of Intelligence and Security.

 
Proposed section 34Q - Providing information to Inspector-General

 

Proposed section 34Q provides that the Director-General must, as soon as practicable, give to the Inspector-General of Intelligence and Security: a copy of a warrant issued under proposed section 34D; a copy of any video recording made under proposed section 34K; and a statement containing details of any seizure, taking into custody, or detention under proposed Division 3.  Proposed section 34P also requires the Director-General to provide a report to the Minister on each warrant issued under proposed section 34D.

 

Proposed section 34R - Discontinuing action before warrants expire

 

Proposed section 34R places an obligation on the Director-General to take certain action if the Director-General is satisfied that the grounds on which the warrant under proposed section 34D was issued have ceased to exist.  The Director-General must both inform the Minister and the prescribed authority who issued the warrant and take steps to ensure that action under the warrant is discontinued.  

 

Proposed section 34S - Certain records obtained under warrant to be destroyed

 

Proposed section 34S requires the Director-General to cause a record or copy to be destroyed if the record or copy was made because of a warrant issued under section 34D; the record or copy is in the possession or custody of ASIO; and if the Director-General is satisfied that the record of copy is not required for the purposes of the performance of functions or exercise of powers under the ASIO Act.

 

Proposed section 34T - Certain functions and powers not affected

 

Proposed section 34T provides that Division 3 of the ASIO Act does not affect a function or power of the Inspector-General of Intelligence and Security (IGIS) under the Inspector-General of Intelligence and Security Act 1986 or the Ombudsman under the Complaints (Australian Federal Police) Act 1981.  It has been included to ensure that it is clear that a person being detained incommunicado under Division 3 of the ASIO Act has the right to communicate with the IGIS or the Ombudsman in relation to matters relevant to their detention.  This right of communication with the IGIS is contained in section 13 of the Inspector-General of Intelligence and Security Act 198 6.  The right of communication with the Ombudsman in relation to a complaint about the Australian Federal Police is contained in subsections 22(4), (4A) and (4B) of the Complaints (Australian Federal Police) Act 1981.  The IGIS deals with complaints about ASIO whereas the Ombudsman, among other things, investigates complaints about the Australian Federal Police.

 

Item 25 - Section 35 (definition of year 2000 Games matters)

 

Item 25 repeals the definition of year 2000 Games matters in section 35 of the ASIO Act as the Games have taken place.  Section 35 is the definition section of Part IV of the Act.  Part IV of the ASIO Act sets out when ASIO may provide security assessments.   Section 40 of the ASIO Act provides, among other things, that ASIO may provide security assessments to a State or authority of a State in relation the year 2000 Olympic Games.

 

Item 26 - Paragraph 40(1)(b)

 

Item 26 repeals paragraph 40(1)(b) of the ASIO Act and substitutes a new paragraph. The effect of paragraph 40(1)(b) is that ASIO may provide security assessments to State authorities in relation to the year 2000 Games.  The proposed new paragraph provides that the Minister may designate a special event in writing in relation to which ASIO may provide security assessments to a State or State authority.

 

The proposed new paragraph will ensure that special temporary amendment of the ASIO Act, such as that made for the year 2000 Games, will not need to be made in the future.  

 

Item 27 - At the end of section 40

 

Item 27 proposes a new subsection 40(3) that is specific to the proposed amendment of paragraph 40(1)(b) at item 25 above.  Proposed subsection 40(3) requires the Minister to notify the Director-General in writing of an event that is designated as a special event.

Telecommunications (Interception) Act 1979

 

Item 28 - Subsection 65(1)

 

Item 28 amends subsection 65(1) of the Telecommunications (Interception) Act 1979 so that people other than ASIO officers may communicate intelligence on behalf of ASIO, when authorised by the Director-General. 

Item 29 - Saving of authorisations

 

Item 29 saves authorisations to ASIO officers that are in place immediately before the commencement of the Act so that they remain in place after the commencement of this item.