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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

 

 

 

 

 

 

 

FURTHER 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 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 Government amendments to the Bill will clarify:



·         that a person who has previously been a Judge of a federal or state superior court may, with the consent of the Minister, act as either an issuing authority, a prescribed authority or both (items 1, 2, 3, 4, 5, 6, 7, 9 and 10);



·         that a procedural statement to be followed in the exercise of authority under warrants must be developed and must deal with certain matters (item 8);

 

·         that the Inspector-General of Intelligence and Security may be present at the questioning, taking into custody or detention of a person under a warrant (items 11 and 12);

 

·         that a police officer acting under the authority of a warrant or a direction of a prescribed authority may enter premises in order to take a person into custody (item 13); and

·         that a police officer acting under the authority of a warrant or a direction of a prescribed authority may use reasonable force to take a person into custody and detain them (item 14).

 

 

 

 

 

 

 

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments will have no financial impact.



 

NOTES ON ITEMS

Item 1

This item amends item 24 of Schedule 1 to the Bill to insert a definition of “former judge” into proposed section 34A.

A “former judge” is defined as a person who has been, but is no longer, a judge or a judge of a State Supreme Court.  “Judge” is defined in section 4 of the ASIO Act as a “Judge of a court created by Parliament.”

Item 2

This item amends item 24 of Schedule 1 to the Bill to insert a definition of “listed former judge” into proposed section 34A.

A “listed former judge” refers to a judge who is included in the list kept by the Minister provided for in proposed section 34AC which is inserted by item 5.

Item 3

This item amends item 24 of Schedule 1 to the Bill by making a minor amendment to subsection 34AB(1).  It is consequential on item 4 which would add a new paragraph to subsection 34AB(1).

Item 4

This item amends item 24 of Schedule 1 to the Bill to insert new paragraph (c) into proposed subsection 34AB(1).

Proposed paragraph 34AB(1)(c) adds “a listed former judge” to the list of persons the Minister may appoint as an issuing authority.

Item 5

This item amends item 24 of Schedule 1 to the Bill to insert new proposed section 34AC.

Proposed section 34AC provides that the Minister must maintain a list of the names of former judges who have consented to being appointed as an issuing authority, a prescribed authority or both.  The Minister may invite a former judge to be included on this list.  A former judge whose name is included on this list may, at any time, request that the Minister remove his or her name from that list.  The Minister may also, on his or her own initiative, remove a former judge’s name from the list at any time.

 

 

Item 6

This item amends item 24 of Schedule 1 to the Bill to amend proposed subsection 34B(1) to provide that a listed former judge may be appointed by the Minister as a prescribed authority.

Item 7

This item amends item 24 of Schedule 1 to the Bill to amend proposed subsection 34B(2) to clarify that a listed former judge is excluded from the requirements of this subsection which relate only to persons who hold an appointment to the Administrative Appeals Tribunal.

Item 8

This item amends item 24 of Schedule 1 to the Bill by inserting a new subsection 34C(3AA).

Proposed subsection 34C(3AA) requires that the written statement dealing with the procedures to be followed in the exercise of authority under warrants must deal with at least the following matters:

·         informing the prescribed authority, the Inspector-General of Intelligence and Security and police officers about the issue of a warrant;

·         transporting persons taken into custody or detained;

·         facilities to be used for questioning;

·         the prescribed authority’s obligations under section 34E;

·         arrangements for the presence of an interpreter where required;

·         recording questioning;

·         the periods for which a person may be questioned;

·         the periods for breaks between periods of questioning;

·         facilities to be used for detention;

·         the making of complaints to the Inspector-General of Intelligence and Security and the Ombudsman;

·         the conduct of any searches of persons detained under a warrant;

·         the periods for allowing opportunities to sleep; and

·         providing adequate food, drink and medical care.

Item 9

This item amends item 24 of Schedule 1 to the Bill to amend proposed subsection 34C(5) to clarify that the Director-General may only request a warrant that would result in a person being detained for a continuous period of 96 hours from an issuing authority who is a federal judge, a listed former judge or an authority specified in regulations.

Item 10

This item amends item 24 of Schedule 1 to the Bill by making a minor amendment to proposed subsection 34F(1)(e) and is consequential upon the amendments allowing a former judge to be appointed as a prescribed authority.

Item 11

This item amends item 24 of Schedule 1 to the Bill by inserting a new section 34HAB.  This amendment implements Recommendation 20 of the Senate Legal and Constitutional References Committee’s report on the Bill.

Proposed section 34HAB provides, for the avoidance of doubt, that the Inspector-General of Intelligence and Security, or an Australian Public Service employee assisting the Inspector-General, may be present when a person is questioned, taken into custody or detained.

Item 12

This item amends item 24 of Schedule 1 to the Bill by inserting a note at the end of proposed subsection 34HA(1).  The amendment is consequential on the amendment made by item 11.

The note clarifies that the Inspector-General of Intelligence and Security may form a concern for the purposes of proposed section 34HA because he or she has been present at the questioning of a person or because a person in detention has made a complaint to the Inspector-General.

Item 13

This item amends item 24 of Schedule 1 to the Bill to insert new proposed section 34JA.

Proposed section 34JA provides that a police officer may enter premises to take a person who is the subject of a warrant or a direction of a prescribed authority into custody and may use such force as is necessary and reasonable in the circumstances.  If the police officer is acting to take into custody a person who has failed to appear before a prescribed authority, the police officer must not enter the premises between the hours of 9.00pm and 6.00am, unless it would not be practicable to enter the premises at another time.

 

Item 14

This item amends item 24 of Schedule 1 to the Bill to insert proposed new section 34JB.

Proposed section 34JB provides that a police officer may use such force as is necessary and reasonable in the circumstances to take the subject of a warrant or a direction of a prescribed authority into custody, detain the person, prevent the person from escaping custody, or bring the person before a prescribed authority for questioning. 

In the course of such an act, proposed subsection 34JB(2) prevents a police officer from using greater force or from subjecting the person to greater indignity than necessary. 

Proposed subsection 34JB(3) further provides that a police officer must not do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes that such action is necessary in order to protect the life of, or to prevent serious injury to, another person or that the person cannot be taken into custody in any other manner.