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ASIO Legislation Amendment Bill 2003

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2002- 2003

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ASIO LEGISLATION AMENDMENT BILL BILL 2003

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock, MP)

 

 

 

 



 



ASIO LEGISLATION AMENDMENT BILL 2003 ASIO LEGISLATION AMENDMENT BILL BILL 2003

 

OUTLINE

 

 

This bill b B ill seeks to amend s the Australian Security Intelligence Organisation Act 1979 (the Act) .   It   to enhance s the capacity of the Australian Security Intelligence Organisation (ASIO) to exercise its powers for questioning and detaining question and detain persons who have information important to the gathering of intelligence in relation to a terrorism offence. that would substantially assist the collection of intelligence that is important in relation to a  terrorism offence. 

 



The Bill Bill : enhances ASIO’s capacity and ability to agther intelligence relating to a terrorism offence by:

·             extending the questioning time under a warrant where interpreters are used, in recognition of the additional time involved in using an interpreter

·          preventing the subject of a warrant from fleeing the country; extends the questioning time under a warrant where interpreters are used in recognition of the additional time involved in using an interpreter;

·          extending the questioning time under a warrant in recognition of the additional time involved in using an interpreter reduc es ing   the risk of the subject of a warrant fleeing the country; and ;

·          protect s ing preventing the subject from jeopardising the of an an intelligence gathering operation s by prohibiting , except in specified circumstances, , except in specified circumstances, the disclosure s of information about the investigation s or information that relates to a terrorism investigation sensitive operational information .

 

T o achieve these objectives, the Bill Bill will: he bill would: -

·          extend the maximum time available for questioning the subject of a warrant from 24 to 48 hours in cases allow for 48 hours of questioning of the subject of a warrant where an interpreter is used needed ;

·          create offences if the subject of a warrant prevent the subject of a warrant from fleeing the country by (1) introduc ing e an offences if if the subject of a warrant fails to surrender hand-up any passports issued to the subject , or leaves or attempts to leave the ; and (2) introduc ing an offence if the subject o f a warrant leaves the country after being notified of the issuing of a warrant;

·             p P rotect the effectiveness of an intelligence gathering operation s by:

·           

-           preventing a person from making a primary or secondary disclosure of information without authorisation where the information relates to the warrant, the questioning or detention of a person under the warrant, or operational information while the warrant is in force; and

-           preventing a person from making a primary or secondary disclosure of operational information without authorisation for two 2 years after the warrant ceases to be in force.

Persons making an unauthorised disclosure will be liable for a criminal offence.

- preventing a person from making a primary or secondary disclosure of information without authorisation where the information relates to the warrant, the questioning or detention of a person under the warrant, or operational information while the warrant is in force; and

- preventing a person from making a primary or secondary disclosure of operational information without authorisation for two years after the warrant ceases to be in force.  Persons making an unauthorised disclosure will be liable for a criminal offence.

prevent ing a person from making a firs t or second hand primary   or subsequent disclosure of operational information without authorisation for two years after the warrant ceases to be in force; and Persons making an unauthorised disclosure will be liable for a criminal offence .

The Bill will also remove any doubt about the ability of the ability of a prescribed authority ’s power to give directions consistent with questioning warrants, including in relation to detention consistent with a questioning warrant issued under section 34D(2)(a) , including a direction for the detention of a person . to detain a person who is subject to a questioning warrant

 

The Bill It will also amend s the Intelligence Services Act 2001 to ensure that a review of ASIO’s new terrorism-related powers required to be conducted by the Parliamentary Joint Committee on ASIO, ASIS and DSD focuses on the provisions as amended, rather than their original enacted form.

 

 

clarify that a prescribed authority can make a direction for detention that is consistent with a questioning warrant

The bill is based on information provided by ASIO’s about its operational requirements to prevent terrorist investigations from being compromised.  The amendments in the Bill are needed:

·             for ASIO to prevent the subject of a warrant from fleeing the country;

·             to extend the questioning time under a warrant in recognition of the additional time involved in using an interpreter;

·             to prevent the subject from disclosing information about the investigation or information that relates to a terrorism investigation; and

·             to clarify that a prescribed authority can make a direction for the detention of a person that is consistent with a questioning warrant. 

 

Financial impact statement  

The Bill Bill does not have any financial impact.



ASIO LEGISLATION AMENDMENT BILL BILL 2003 ASIO LEGISLATION AMENDMENT BILL 2003

 

 

NOTES ON CLAUSES

Clause 1: Short Title

1.      Clause 1 is a formal provision specifying the short title of the bill b B ill .

Clause 2: Commencement

2.                                    2. The bill B b ill will commence on the day after it receives R r oyal A a ssent.

 

Clause 3: Schedule(s)

 

3.                        3.       Each Act specified in the Schedule s are is amended or repealed as set out in the Schedule s .

Schedule 1 - Australian Security Intelligence Organisation Amendment Act 1979 Australian Security Intelligence Organisation Act 1979

Part 1 - Time for questioning through interpreter

Item 1 - At the end of section 34HB

2.                               

Schedule 1 - Amendment of the Australian Security Intelligence Organisation Amendment Act 2003 Act 1979

Part 1 - Time for questioning through interpreter

Item 1 - P proposed subsection 34HB(8) [a1]  

2.             This item will insert proposed subsection s 34HB (8 34HB(8 ) -(12) into section 34HB of the Act .   In effect, these sub - section s  34HB(8) w ill hich double s the maximum questioning time to 48 hours where an interpreter is used during the questioning of a person who is the subject of a warrant issued under section 34D of the Act. 

2.             d

2.              

2.            



2.             4.

4.                        Th ese is clause subsection s [a2]   are is necessary because as a result of the effective halving of questioning time is effectively halved where questions and answers need to pass through the interpreter to the recipient of the communication.  Currentl y, a A subject of a warrant could also exploit this loophole to reduce the amount of questioning by, for example, feigning ignorance or inadequate command of English. 

 

5.                        Proposed subsection (8) provides that p roposed subsections (9)-(12) only apply where an interpreter is present at any time while a person is questioned under a warrant

 

6.                        Proposed subsection 34HB(9) provides that a person must not be questioned under the warrant unless the prescribed authority permits the questioning to continue beyond the specified total time s The se total times are 24, 32 or 40 hours.  The effect is that there are 3 additional blocks of 8 hours in which a person can be questioned beyond the existing regime.

 

7.                        Proposed subsection 34HB(10) provides that procedures in subsection s (3)-(5) and paragraph 7(b) also apply to subsection (9).  The subsection makes it clear that the same procedure applies for the person exercising authority to request a prescribed authority to permit an extension of questioning blocks from 24 to 48 hours as that person would for the questioning blocks to 24 hours.   A prescribed authority will still only be able to permit questioning to continue where he or she is satisfied that:

·          there are reasonable grounds for the continued questioning of the subject; and

·          the questioning of the subject has been conducted properly or without delay.

A prescribed authority will also still be able to revoke permission at any time.   The subsection also clarifies that a prescribed authority must direct that a person be removed from detention if the prescribed authority revokes permission for the further questioning of the subject of a warrant. 

 

8.                        Proposed subsection 34HB(11) provides that subsection (6) and paragraph (7)(c) appl ies as if subsection (6) refers to a total of 48 hours.   This means that in cases where an interpreter is used, the maximum questioning period is 48 hours.  The prescribed authority must direct that the person be released from detention at the expiry of that time  

 

9.                        The effect that p roposed subsection 34HB(1 2 ) is that the prescribed authority must direct that the subject of a warrant be released from detention if the prescribed authority does not permit the person to be questioned for a further questioning block. 

2.                    

·             there are reasonable grounds for the continued questioning of the subject; or

·             the questioning of the subject has been conducted properly or without delay.

 

 

· there are reasonable grounds for the continued questioning of the subject; or

· the questioning of the subject has been conducted properly or without delay. using a second language other than English during questioning where that person has a sound command of E

 as provided by section 34HB(5) of the Act.  s

Item 2 - Application

 

10.                    This item provides that the amendments made by item 1 apply to warrants issued on or after the commencement of Part 1.

 

 

Part 2 -  - Preventing unauthorised overseas travel by person specified in warrant

 

Item 3 - Offences for not surrendering After section 34JB and leaving Australia

 

11.                    This item inserts proposed sections 34JC and 34JD into the Act which create offence provisions to prevent unauthorised overseas travel by a person who is the subject of a warrant.  These sections are designed to minimise the risk that the subject of a warrant will flee to avoid being questioned. 

 

12.                    Proposed sub section 34JC (1) requires a person specified in a warrant to surrender any passports that a person has possession of or control over as soon as practicable after being notified of the issue of the warrant and the effect of the subsection .  The obligation applies to both Australian and foreign passports issued to the person.  It is an offence not to comply with this provision with a maximum penalty of 5 years imprisonment. 

 

13.                    Consistent with sub section 34D(5) of the Act, which provides the power to make copies or transcripts of records produced by the subject of a warrant, the provision permits a person who is authorised under the Act to exercise authority to inspect or examine the passport, and make copies or transcripts of it.

 

14.                    The provision also obliges the Director-General of Security to return a surrendered passport to a person as soon as is practicable after the warrant expires.  The Director-General may authorise return of the passport at an earlier time if appropriate. 

 

15.                    Proposed section 34JD provides that it is an offence for the subject of a warrant that is in force to leave Australia without the permission of the Director-General after they have been notified of the warrant and the effect of this offence .  By virtue of section 11.1 of the Criminal Code Act 1995 , attempting to leave the country in these circumstances would also be an offence.  The maximum penalty for failing to comply with this provision is 5 years imprisonment. 

 

16.                    The section also provides that the Director-General can give written permission for a person to leave Australia at a specified time and to set conditions if necessary.  It is possible that the person will have a demonstrable need to travel overseas for a limited period while the warrant is in force.  The Director-General could permit such travel, subject to conditions and guarantees, in appropriate circumstances.

 

17.                    The 5 year penalties in item 3 for contravening proposed sections 34JC and 34JD are consistent with the other penalties for non-compliance with the Act, and reflect the potential for serious harm to occur if an investigation into a terrorist offence is compromised. 

 

Item 4 - Application

 

18.                    This item provides that  the section 34JC offence (surrender of passports) applies to a person who is notified about a warrant o n or after commencement of this clause.  It also provides that the section 34JD offence (leaving Australia) item 3 applies to a person leaving Australia on or after the commencement of this clause , regardless of when notice of the issue of the warrant was given to the person. and applies to passports issued before or after the issue of a warrant.

 

Part 3 - Direction by prescribed authority to detain



 

Item 5 - - Direction by prescribed authority to detain

 

Proposed subsection 34F(2A)

 

19.                    This item inserts proposed subsection 34F(2A) into the Act.   It clarifies that a direction made by a prescribed authority under subsection 34F(1) is not inconsistent with a warrant for the mere fact that the warrant is a questioning warrant as described in section paragraph 34D(2)(a).

 

20.                    For example, the prescribed authority may form the view - in light of matters disclosed by the person during during questioning -  that the person may seek to avoid further appearances or to alert other persons to the investigation.  In such circumstances (and subject to the conditions set out in subsection 34F(3) of the Act) the prescribed authority may give a direction for the detention of the person in accordance with paragraph 34F(1)(a).  Proposed subsection 34F(2A) makes clear that such a direction may be given without first obtaining the written approval of the Minister, provided that such a direction is not precluded by any restrictions or conditions in the warrant.

 

Item 6 - 6 Application

 

21.                    This item provides that item 5 applies in relation to warrants issued on or after the commencement of this P p art.

 

Part 4 - Secrecy relating to warrants and questioning

 

Item 7 - Amendment to paragraph  7 - Proposed subsection 34F(1)(d)

 

22.                    This provision item adds words to paragraph 34F(1)(d) to clarif y ies that a prescribed authority is able to make a direction that the subject of a warrant be allowed to contact someone while being questioned and impose a condition to the effect that specified information must not be discussed.  If a person fails to follow the condition in the direction, they may commit an offence under proposed subsection 34VAA(1).

 

Items 8 and 9 - Repeal

 

23.                    These items repeal subsections 34U(7)-(11) and 34V(4)-(6) of the Act.  The repealed provisions are being replaced by item 10.   As the current regulation making power under subsection 34U(10) of the Act will be repealed, regulations made under this power will no longer apply to warrants issued after the commencement of this Bill.

 

Item 1 0 - 0 - Secrecy relating to warrants and questioning

 

24.                    This item inserts proposed section 34VAA into the Act.  Section 34VAA creates offences where a person discloses information and that information is not within the categories of permitted disclosures.

 

Proposed subsection 34VAA(1)

 

25.                    This provision establishes an offence for the direct or indirect disclosure of information by a person relating to the questioning and detention of the subject of a warrant.  The offence applies while the warrant is in force and where a permitted disclosure exception does not apply.

 

2.                   Proposed subsection 34VAA(1) applies to various kinds of information.  A person must not disclose information which indicates the fact that a warrant has been issued , ; or other

26.                    other facts relating to the content of the warrant or  or to the questioning or detention of persons in connection with the warrant.

 

2.                   a warrant has been issued; or

·             o ther facts relating to the content of the warrant or to the questioning or detention of persons in connection with the warrant.

27.                    The person must also not disclose operational information (defined in proposed subsection 34VAA(5)).  Operational information may not be disclosed if a person has that information as a direct or indirect result of the issue of the warrant, or the doing of anything authorised by the warrant or other provisions under Division 3 of Part III of the Act. 

 

28.                    This provision is intended to deter the subject of a warrant from notifying persons who have terrorist links that they are being questioned.  The disclosure of such information could result in a terrorist investigation being compromised. The clause also protects sensitive information, such as information relating to ASIO’s methods of operations, its sources, and intelligence holdings.

 

29.                    The maximum penalty for contravening this subsection is 5 years imprisonment which is consistent with the other penalties in the Act for non-compliance with the person’s obligations under the warrant process.  The penalty is also appropriate due to the sensitive nature of the information and the potential for serious harm to occur if an investigation into a terrorist offence is compromised.

 

Proposed subsection 34VAA(2)

 

30.                    Proposed s ubs ection 34VAA(2) establishes an offence for the disclosure of operational information at any time before the end of 2 years starting at the end of the period during which a warrant is in force.  The subsection applies where a person has the information as a direct or indirect result of the issue of a warrant or the doing of anything authorised under the warrant, a direction made by a prescribed authority during questioning, or by another provision of Division   3 of Part III of the Act. 

 

31.                    The maximum penalty for contravening this subsection is 5 years imprisonment.  The length of this penalty is consistent with the other penalties for non-compliance with a person’s obligations under a warrant for questioning or detention.  The penalty is also appropriate due to the sensitive nature of the information and the potential for serious harm to occur if an investigation into a terrorist offence is compromised.

 

 

 

Proposed subsection 34VAA(3)

 

32.                    Proposed subsection 34VAA(3) applies strict liability to the physical elements of proposed subparagraphs 34VAA(1)(c) and (2)(c) so that there is no need to prove fault in relation to those circumstances for disclosures made by :

·          the subject of a warrant; or

·          a lawyer who is contacted by the subject for the purposes of questioning or other proceedings in connection with a warrant .

 

33.                    For disclosures by subjects of a warrant or their lawyers who are covered by the subsection , the prosecution will still need to prove that a person intended to disclose information and that the person was reckless in relation to the other elements of the offences.

 

34.                    For disclosures by other persons who are not covered by this subsection, the prosecution would need to prove that a person intended to disclose information and that the person was reckless in relation to the other elements of the offences.

 

Proposed subsection 34VAA(4)

 

35.                    Proposed subsection 34VAA(4) extends the geographical jurisdiction to category D under section 15.4 of the Criminal Code Act 1995 for proposed subsections 34VAA(1) and (2).  This means the offences apply whether a person makes the disclosure in Australia or overseas.  The extension of the geographical jurisdiction will ensure that offences may apply for communications by persons outside of Australia with other persons outside of Australia which may lead to the compromising of terrorist investigations or ASIO’s operational information.

 

Proposed subsection 34VAA(5)

 

36.                    Proposed subsection 34VAA(5) defines ‘operational information’ as information indicating :

·          information that was or is in ASIO’s possession;

·          a source of information that ASIO has other than the subject of the warrant; or information that was or is in ASIO’s possession;

·          an operational capability, method or plan of ASIO. a source of information that ASIO has other than the subject of the warrant; or

· an operational capability, method or plan of ASIO.

 

37.                    The intention of the definition of ‘operational information’ is to ensure that ASIO’s intelligence holdings and its methods of operation receive appropriate protection from unauthorised disclosure. 

 

38.                    Proposed subsection 34VAA(5) also defines a ‘permitted disclosure’.  A permitted disclosure can be made by a person who has authority or is given authority in accordance with the Act, a warrant issued under the Act, a direction by a prescribed authority under subsection 34F(1) of the Act, or as authorised under legislation that allows a complaint to be made to the Ombudsman or the Inspector-General of Intelligence and Security.   Other permitted disclosures include:

·          a disclosure by a person during the questioning of the subject of a warrant;

·          a disclosure by a lawyer for the purpose of obtaining legal advice in connection with a warrant or legal representation for a remedy relating to a warrant or the treatment of the person in connection with the warrant a disclosure by a person during the questioning of the subject of a warrant ;

·          a disclosure for the purpose of the initiation, conduct or conclusion by judgment or settlement of legal proceedings relating to such a remedy a disclosure by a lawyer for the purpose of obtaining legal advice in connection with a warrant or legal representation for a remedy relating to a warrant or the treatment of the person in connection with the warrant ;

·          a disclosure that is permitted by a prescribed authority a disclosure for the purpose of the initiation, conduct or conclusion by judgment or settlement of legal proceedings relating to such a remedy ;

·          a disclosure that is permitted by a prescribed authority a disclosure by the representative of a child in accordance with subsection 34V(1) of the Act in relation to the warrant to: ;

· a disclosure by the representative of a child in accordance with sub section 34V(1) of the Act in relation to the warrant to:

-           a parent, guardian, representative, or sibling of the subject; or

-           to a prescribed authority, a person exercising authority under the warrant, the Inspector-General of Intelligence and Security or the Ombudsman.

·          a disclosure permitted by the Director-General, the Minister, or as prescribed by the regulations.

 

Proposed subsections 34VAA(6)-(8)

 

39.                    Proposed subsection 34VAA(6) provides that a prescribed authority may permit a disclosure to be made by a lawyer of the subject of a warrant (or a parent or representative in the case of a young person) to disclose certain information to a specified person during questioning under the warrant .  A prescribed authority may only give such permission where the permission is given in writing and where the permission is consistent with the regulations.  The prescribed authority would be able to set conditions upon such a disclosure.

 

40.                    Proposed subsections 34VAA(7) and (8) provide that the Director-General and the Minister may also permit a person to make a disclosure by providing written permission for the disclosure.  The Director-General and the Minister would be able to set conditions upon such a disclosure.  However, the Minister would have to obtain advice from the Director-General before such permission could be given.  

 

41.                    Where a condition of a permitted disclosure is not met under proposed subsections 34VAA(6)-(8), that permission is revoked.  A permitted disclosure can be revoked or amended by the person who gave the permission.  The effect is that if a person discloses information in contravention of a condition, or where permission is given for a disclosure to be made and is subsequently revoked, the person may commit an offence under proposed subsections 34VAA(1) and (2).

 

Proposed subsection 34VAA(9)

 

42.                    This subsection provides for the regulations to prescribe certain disclosures so as to expand the number of disclosures that can be made if necessary should any unforeseen restrictions on disclosure occur. 

 

Proposed subsection 34VAA(10)

 

43.                    This proposed subsection provides that the secrecy provisions in proposed section 34VAA would apply regardless of the way in which the discloser obtained the information. 

 

Proposed subsection 34VAA(11)

 

44.                    This proposed subsection provides that the secrecy provisions in proposed section 34VAA operate in conjunction with and do not affect other Commonwealth laws that prohibit the disclosure of information.   

 

 

Proposed subsection 34VAA(12)

 

45.                    This proposed subsection clarifies that proposed section 34VAA does not apply to the extent, if any, that it would infringe any constitutional doctrine of implied freedom of political communication.

 



Item 11 - Application

 

46.                    This item provides that item 10 applies to warrants issued on or after the commencement of this Bill Part

 

Schedule 2 - Intelligence Services Act 2001

 

Item 1 - Proposed paragraph 29(1)(bb)

 

47.                    This item ensures that the Parliamentary Joint Committee on ASIO, ASIS and DSD reviews the amended version of Division 3 of Part III of the Act rather than the Division created under the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (the Amendment Act).

 

48.                    The amendment does not change the scope of the review or the period for undertaking it.  The specific date of 22 January 2006 has been included by reference to the date in which the Amendment Act received Royal Assent.

2.                                         

nglish.

 

 

5. The clause does not affect the first block of questioning time of 8 hours specified in subsection 34HB(1).  The clause would extend the second questioning period in subsection 34HB(2) from a period of 8 to 24 hours.  The total time would be extended from 16 to 32 hours.  The questioning period would be able to be extended again under subsection 34HB(3) until the 48 hour maximum under subsection 34HB(6) is reached.  The effect of the propsed amendment is to have an initial questioning period of 8 hours, after which the prescribed authority could permit questioning to continue for a further 24 hours (up to a total of 32 hours).  The questioning period could then be extended again for another 16 hours (up to a maximum of 48 hours total).   A prescribed authority may only give a direction to extend questioning time where he or she is satisfied that: (1) there are reasonable grounds for the continued questioning of the subject; or (2) the questioning of the subject has been conducted properly or without delay. 

 

 

 

6. The clause amendment will does not affect the ability of a prescribed authority to revoke permission at any time from the subsequent questioning of the subject under subsection 34HB(2). The prescribed authority may not give or revoke permission for the further questioning of a subject where the prescribed authority is not satisfied that: nor would it affect the requirement to provide at least a thirty minute break in questioning every four hours. 

 

·             there are reasonable grounds for the continued questioning of the subject; or

·             the questioning of the subject has been conducted properly or without delay. 

 

2.             Under this clause, the first 8 hours of questioning occurs normally.  This means that the warrant would not have to cover the need for extending the first questioning period.  In this time the prescribed authority will be able to form a view on whether an interpreter will be required.  If an interpreter is required, the second period of questioning would be for up to 24 hours.  Breaks in questioning must still be provided for at least 30 minutes every four hours in accordance with clause 4.4 of the Protocol. 

 

Item 2 - Application

 

This item provides that that the amendments made by item 1 appl y ies to warrants issued on or after the commencement of Part 1 the bill.

 

Part 2 Item 3 - Preventing unauthorised overseas travel by person specified in warrant

 

Item 3 - Surrender of passports



2.             This item inserts proposed sections 34JC and 34JD into the Act which create offence provisions directed at preventing to prevent unauthorised overseas travel by a person to deal with the surrender confiscation and return of passports of a person who is the subject of a warrant.  These sections are designed to minimise the risk that a person subject to a warrant will flee to avoid being questioned.  thereby prejudicing an operation to gath er intelligence relevant t o a terrorism offence.

 

Proposed section 34JC

 

Proposed section 34JC requires a person specified in a warrant to This clause states that a person must surrender any passports a he or shethey may have in his or hertheir haspossession of or control as soon as as is practicable after being notified of the issue of the warrant.  The obligation applies to Although the clause distinguishes between both Australian and foreign passports issued to the person.  , the same obligation to provide a passport or passports applies.  It is an offence not to comply with this clause provision with a .  The penalty is of 5 years imprisonment.  This provision applies to a person who is notified about a warrant on or after the commencement of this clause.

 

 

Consistent with section 34D(5) of the Act , which provides the power to make copies or transcripts of records produced by the subject of a warrant, t The clause provision permits a person who is authorised under the Act to exercise authority to inspect or examine the passport, and make copies or transcripts of it.

 

  This aspect of the clause is necessary so that intelligence can be verified about the places and dates in which the subject of a warrant has travelled abroad.

2.              

2.             The clause provision also requires that obliges the Director-General of ASIO Security return a confiscated surrendered passport to a person as soon as is practicable after the warrant expires .  The Director-General may authorise return of the passport  or at an earlier time if appropria te.  A passport is not required to be returned if another warrant is issued before the passport is returned or whether the passport has been cancelled.

2.              

2.             This clause is necessary because there is currently no provision requiring a person to surrender his or her ASIO does not have authority to confiscate passports pursuant to a warrant issued under section 34D of the Act.  The penalty is necessary to prevent and deter persons who have terrorist links or have information about persons committing a terrorism offence from fleeing the country.

 

2.             This provision applies to a person who is notified about a warrant on or after the commencement of this clause.

 

Proposed section 34JD

 

Proposed section 34JD This clause provides that it is an offence for the subject of a warrant that is in force to leave Australia without the permission of the Director-General after they have been notified of the warrant.  By virtue of section 11.1 of the Criminal Code The provision would also cover attempting to leave the country in these circumstances (by section 11.1 of the Criminal Code) would also be an offence .  The penalty is 5 years imprisonment. 

 

The clause provision also provides that the Director-General can give written permission for a person to leave Australia at a specified time and to set conditions if necessary.  This permission will allow persons to travel where a reasonable explanation is provided including, for example, family or medical reasons. [r3]     It is possible that the person will have a demonstrable need to travel o verseas for a limited period while the warrant is in force.  The Director-General could permit such travel, subject to conditions and guarantees, in appropriate circumstances.

2.              

The five year penalties in item 3 for contravening proposed sections 34JC and 34JD are consistent with the other penalties for non-compliance with the Act.  The penalty is also appropriate due to the sensitive nature of the information and the , and reflect the potential for serious harm to occur if an investigation into a terrorist offence is compromised because a person leaves Australia.  Should a person be able to leave Australia, they would be able to inform person connected to an investigation about the information contained in the wa

 

2.             rrant.  

 

Item 4 - Application

 

This item provides that item 3 applies to a person leaving Australia on or after the commencement of this clause and applies to passports issued before or after the issue of a warrant.

 -

Item 5: Direction by prescribed authority to detain

 

Proposed subsection 34F( 2A)

 

This clause permits a prescribed authority to make a direction under subsection 34F(1) that is consistent with a questioning warrant issued under subparagraph 34D(2)(a).  The clause also clarifies other directions made by the prescribed authority under subsection 34F(1). 

 

The purpose of this clause is to avoid doubt over whether a questioning warrant is consistent with the warrant if a prescribed authority directs that a person be detained under subparagraph 34F(1)(a).  If the view was applied that a questioning warrant is not consistent with a direction by the prescribed authority for the detention of the subject, the prescribed authority would need to obtain the consent of the Minister in writing before a direction for detention can be made.  ASIO have indicated that this approach is not realistic due to the strict time limitations during questioning. This clause This item inserts proposed subsection 34F(2A) into the Act.   It clarifies that a dire ctions made by a prescribed authority under sub-sectio n 34F(1) are is  not inconsistent with a warrant for the mere fact that the warrant is a questioning warrant as described in section 34D(2)(a).

 

Item 6

 

2.             This item provides that item 5 applies to warrants issued on or after the commencement of this part.

 

Part 4 - Secrecy relating to warrants and questioning

 

Part 4 inserts a comprehensive regime to protect against the unauthorised disclosure of information relating to the questioning or detention of persons pursuant to warrants .

 

Items 7 - Proposed subsec tion 34F(1)(d)

 

This clause provision clarif iesy that a prescribed authority is able to make a direction that a person the   subject of a warrant be allowed to contact someone while being questioned and place impose a condition to the effect that certain specified information must not be discussed.  If a person fails to follow the condition in the direction, they may commit an offence under proposed subsection 34VAA(1).

 

Items 8 and 9 - Repeal

 

These items repeal subsections 34U(7)-(11) and 34V(4)-(6) of the Act.  These items are being replaced by item 10.    

 longer apply

Item 10 - Secrecy relating to warrants and questioning

 

This item inserts proposed section 34VAA into the Act .  Section 34VAA creates offences where a person discloses information and that information is not within the ca tegories of permitted disclosures. to establish offences where a person discloses certain kinds of information depending on whether a warrant is in force and when it expired. 





Proposed subsection 34VAA(1)

 

This clause Th is provision establishes an offence for the direct or indirect disclosure of information by a person relating to the questioning and detention of the subject of a warrant.  The offence applies while the warrant is in force and where that a permitted disclosure exception does not apply.

 

Proposed subclause subsection 34VAA(1) applies to various kinds of information.  The person must not disclose operational information.  A The person must also not disclose information that indicates, or information from which it could be reasonably expected that someone could infer from the information, the fact that:

 

a warrant has been issued; or

other facts relating to the content of the warrant or to the questioning or detention of persons in connection with the warrant. the information relates to the content of the warrant; or

where the information relates to the questioning and detention of a person in connection with the warrant.

 

The person must also not disclose operational information (defined in proposed  subsectio n 34VAA (5)).  Where a subject discloses operational information, the person is deemed to have information as a direct or indirect result of the Operation al information may not be disclosed if a person has that information as a direct or indirect result of the issue of the warrant, or the doing of anything authorised by the warrant or other provisions under Division 3 of Part III of the Act. 

 

This clause provision is intended to deter the subject of a warrant from notifying persons who have terrorist links that they are being questioned.  The clause would also prevent the secondary disclosure of that information while the warrant is in force.  This aim of this offence is to prevent information about the questioning of a person under a warrant from passing to other persons who are connected to the terrorist investigation.  The disclosure of such information could result in a terrorist investigation being compromised. The clause also protects sensitive operational information such as information relating to ASIO’s methods of operations , its sources, and intelligence  and the sources and holdings of intelligence.

 

The penalty for contravening this clause subsection is 5 years imprisonment.  The length of this penalty which is consistent with the other penalties in the Act for non-compliance with this regime the person’s obligations under the warrant process.  The penalty is also appropriate due to the sensitive nature of the information and the potential for serious harm to occur if an investigation into a terrorist offence is compromised.

 

On an operational basis, a person who is served with a warrant will be given a notice that clearly outlines what obligations and rights that person has under the warrant and under the Act.  The notice will also clearly state the penalties that apply if the subject does not comply with the warrant.

 

A significant safeguard in this offence is that the subject of a warrant must understand that there is a substantial risk that the person to whom they disclose the information could reasonably infer the existence of the threshold criteria of this offence.  This is a high burden of proof which means it is not possible for a person to be prosecuted without a substantial amount of evidence that is favourable to the prosecution.

[r4]  

Proposed subsection 34VAA(2)



 

This clause inserts Pproposed section 34VAA (2) to establish es an offence for the secondary disclosure of operational information at any time before the end of 2 years starting at the end of the period during which a warrant is in force.  The clause applies where a person has the information discloses operational information as a direct or indirect result of the issue of a warrant or the doing of anything authorised under the warrant, a direction made by a prescribed authority during questioning, or by another provision of Division 3 of Part III of the Act.  The offence applies for 2 years after a warrant expires.  It is not an offence if the person makes a permitted disclosure exception.

 

This clause is designed to prevent a disclosure of operational information made by a person who receives such information from another person only after the warrant has expired.  This offence can include a primary disclosure by the subject of the warrant or a secondary disclosure by any person to whom information is passed and further disclosed.  The main reason for this offence is to prevent operational information about ASIO’s methods of operations or its sources or holdings of intelligence that is put to the subject of a warrant during questioning being disclosed to other persons who are connected to the terrorist investigation.

 

At an operational level, ASIO believe that the two year duration of this clause is a sufficient length for a terrorism investigation to be completed.  This length of time is appropriate considering the potential restriction on a person’s right to free speech balanced against the national security imperative of ensuring that terrorism investigations are not compromised.

 

The penalty for contravening this subsection clause is 5 years imprisonment.  The length of this penalty is consistent with the other penalties for non-compliance with a person’s obligations under a warrant for questioning or detentionthis regime.  The penalty is also appropriate due to the sensitive nature of the information and the potential for serious harm to occur if an investigation into a terrorist offence is compromised.

.H owever, T t he still  or overseas.The extension of the geographical jurisdiction will ensure that  which may lead to the compromis ing of terrorist investigations or ASIO s operational information , will be an offence .

Proposed subsection 34VAA(3)

 

This clause defines the terms ‘operational information’ and ‘permitted disclosure’. 

 

Operational information is defined in proposed subsection 34VAA(3) as it is information from which it could be expected that someone could infer:

 

information that was or is in ASIO’s possession;

a source of information that ASIO has other than the subject of the warrant; or

a n operational capability, method or plan for an operation of ASIO.

 

The intention of the definition of ‘operational information’ is to protect ensure that ASIO’s intelligence holdings and its method s  of operation receive appropriate protection from unauthorised disclosure.  It has been drafted in the past and present tense because some of the information disclosed may have been gathered at one point and destroyed before 2 years have elapsed.  As this information is still sensitive and potentially damaging, the offence would still apply to this information.

 

Proposed subsections 34VAA(4)-(6)

 

These clauses permit certain disclosures to be made that are not offences under the secrecy provisions. 

 

A ‘permitted disclosure’ is a disclosure by a person who has authority or is given authority in accordance with the Act, a warrant issued under the Act, a direction by a prescribed authority under subsection 34F(1) of the Act, or as authorised under legislation that allows a complaint to be made to the Ombudsman or the Inspector-General of Information Intelligence and Security.   Other permitted disclosures include:

 

a dis closure by a person during the questioning of the subject of a warrant;

a disclosure by a lawyer for the purpose of obtaining legal advice or obtaining legal in connection with a warrant or legal representation for a remedy relating to a warrant or the treatment of the person in connection with the warrant;

a disclosure for the purpose of the initiation, conduct or conclusion by judgment or settlement of legal proceedings relating to such a remedy;

a disclosure that is permitted by a prescribed authority;

a disclosure by the representative of a child in accordance with section 34V(1) of the Act in relation to the warrant to:

a parent, guardian, representative, or sibling of the subject; or

to a prescribed authority, a person exercising authority under the warrant, the Inspector-General of Intelligence and Security or the Ombudsman.

a A disclosure permitted by the Director-General, the Minister, or as prescribed by the regulations.

s

A prescribed authority may permit a disclosure to be made for by a lawyer of the subject of a warrant  (or a parent or representative of a child in the case of a young person)to disclose certain information to a person during questioning.  A prescribed authority may only give such permission where the permission is given in writing and where the permission is consistent with the regulations.  The prescribed authority would be able to set conditions upon such a disclosure.

 

The Director-General and the Minister may also permit a person to make a disclosure by providing written permission for the disclosure.  The Director-General and the Minister would be able to set conditions upon such a disclosure.  However, the Minister would have to obtain advice from the Director-General before such permission could be given . for the disclosure.  

 

Where a condition of a permitted disclosure is not met, that permission is revoked.  A permitted disclosure can be revoked or amended by the person who gave the permission.  The effect is that if a  person discloses information in contravention of a condition, or where permission is given for a disclosure to be made and is subsequently revoked, the person may commit an offence under proposed subsections 34VAA(1) and (2).

 

The purposes of the permitted disclosure exceptions are consistent with the rationale of the Act to make a blanket offence with limited specified exceptions.  These exceptions are safeguards.  The disclosure exceptions ensure that a disclosure can be made to persons who may have a role under the Act.  These safeguards are much stronger where a young person is questioned under a warrant.

 

Proposed subsection 34VAA(7)

 

The purpose of including a provision This subsection provides for the regulations to prescribe certain disclosures is so as to expand the number of disclosures that can be made if necessary should any unforeseen restrictions on disclosure occur. 

Proposed subsection 34VAA(8)

 

This proposed subsection provides that T the secrecy provisions in proposed section 34VAA would apply whether or not a person has the information that they disclos regardless of the way in which the discloser obtained the informatione from someone else.  The purpose of this provision is to avoid needing to prove that the information is true before a conviction can be made. 

 

Proposed subsection 34VAA(9)

 

This proposed subsection provides that T the secrecy provisions in proposed section 34VAA do not affect , and they operate in conjunction with, other Commonwealth laws that prohibit the disclosure of information.  This means that a person could be charged under two Commonwealth secrecy provisions if both were found to apply. 

 

Proposed subsection 34VAA(1 2 0)

 

2clarifies In recognition of the broad range of communications that may not be able to be disclosed, proposed section 34VAA does not apply to any the extent , if any, that it would in which it infringes any constitutional doctrine of implied freedom of political communication.

 

Item 11 - Application

 

This item provides that item 10 applies to warrants issued on or after the commencement of this bill B. 

 

              Schedule 2 - Amendment of the   Intelligence Services Act 2001

 

Item 1 - Proposed paragraph 29(1)(bb)

 

This clause item ensures that the Parliamentary Joint Committee on ASIO, the Australian Secret Intelligence Service and the Defence Signals Directorate ASIS and DSD reviews the amended version of Division 3 of Part III of the Act rather than the Division created under the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (the Amendment Act). 

 

The amendment does not change the scope of the review or the period for undertaking it.  The specific date of 22 January 2006 has been included by reference to the date in which the Amendment Act received Royal Assent.

 

 

 

 

 

 

 

 

 

 

 

 


  [a1] I have capitalised the "P" in Item 1 for consistency with other headings

  [a2]

  [r3] Remove if not appropropriate.

  [r4] I’m not sure if we want to keep this in light of CLB’s comments - but I thought I’d put it in anyway as it looks like we are being considerate.