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ASIO protocol to guide warrant process.



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ATTORNEY-GENERAL THE HON DARYL WILLIAMS AM QC MP

NEWS RELEASE

12 August 2003 98/03

ASIO PROTOCOL TO GUIDE WARRANT PROCESS

I have today tabled a Protocol to guide the execution of detention and questioning warrants under the new provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (the Act).

This Protocol fleshes out the detail of the operation of warrants under the Act, which provides the Australian Security Intelligence Organisation (ASIO) with the tools it needs to identify and, where possible, prevent Australians from being hurt or killed by acts of terrorism.

The legislation was passed in June, in the final sitting week before the winter recess.

Since that time, ASIO, together with the Australian Federal Police and the Attorney-General’s Department have been working on the Protocol.

The Protocol covers, among other matters, arrangements for custody and detention, interview duration periods and breaks.

It sets out standards in relation to facilities for custody, arrangements for recording of interviews and measures to ensure the welfare of people subject to a warrant.

The Protocol also sets out measures for accountability and arrangements for the making of complaints.

Relevant standards, including United Nations Rules in relation to detained persons, have been taken into account in preparing the document.

The Act sets out a clear process for the finalisation of the Protocol, including formal consultation between the Director-General of Security, the Commissioner of the Australian Federal Police and the Inspector-General of Intelligence and Security.

Following approval by the AFP and the IGIS, the Protocol is then submitted to the Attorney-General for approval and, once approved, is presented to each House of Parliament and briefing provided to the Parliamentary Joint Committee on ASIO, ASIS and DSD.

Media Contact: Carina Tan-Van Baren (02) 6277 7300/ 0419 423 965 www.law.gov.au/ag

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) ACT 2003

BRIEFING ON PROTOCOL

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (the Act) 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 grants ASIO powers to collect intelligence that may substantially assist in the investigation of terrorism offences. The Act provides ASIO with the ability to seek a warrant to detain and question people for the purposes of investigating terrorism offences.

The Act provides in sections 34C(3)(ba) and 34C(3A) for the development of a written statement of procedures (Protocol) to be followed in the exercise of authority to take persons into custody, detain persons and conduct questioning under warrants issued under section 34D. The Act also provides that no action can be taken under the warrant until the Protocol has been made.

The Protocol has been developed in accordance with the requirements of sections 34C(3)(ba) and 34C(3A) of the Act. The Protocol has been developed by the Director-General of Security in consultation with the Australian Federal Police (AFP), the Inspector-General of Intelligence and Security (IGIS) and the Attorney-General’s Department. The Protocol has been approved by the Attorney-General, the AFP and the IGIS in accordance with the requirements of the Act.

The Protocol is designed to be read in conjunction with the Act, and expands on the requirements of the Act. Wherever possible reference has been made in the Protocol to the corresponding provision of the Act. The Protocol is not a legislative instrument. This means that where a discrepancy exists between the Protocol and the Act, the provisions of the Act will prevail.

The Protocol sets out the basic standards that will apply in the questioning and detention of persons under a section 34D warrant. It clarifies concepts used in the Act and addresses issues such as the:

(i) transportation of a person under a warrant; (ii) treatment of a person being questioned, e.g. the conditions applicable during questioning such as access to fresh drinking water and toilet and sanitary facilities at all times during questioning;

(iii) supervision of detention under a warrant and the conduct of any searches undertaken pursuant to a warrant; (iv) health and welfare of a person subject to a warrant, such as the accommodation facilities and food and sleep requirements; (v) video recording of procedures; (vi) contact with other persons and a complaint mechanism; and (vii) arrangements for liaison with other persons such as the Inspector-General of

Intelligence and Security and the Commissioner of the relevant police service.