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Australian Security Intelligence Organisation Amendment Bill 2020



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ISSN 1328-8091

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BILLS DIGEST NO. 9, 2020-21 26 AUGUST 2020

Australian Security Intelligence Organisation Amendment Bill 2020 Cat Barker Foreign Affairs, Defence and Security Section Joseph Ayoub, David Markham and Kaushik Ramesh Law and Bills Digest Section

Contents

The Bills Digest at a glance .............................................. 4

Committee consideration ......................................... 4

Purpose of the Bill ........................................................... 5

Structure and overview of the Bill ................................... 5

Schedule 1—Amendments relating to compulsory questioning powers ..................................................... 5

Schedule 2—Amendments relating to tracking devices ......................................................................... 6

Commencement details................................................... 6

Background ..................................................................... 7

Existing ASIO special powers relating to terrorism offences ....................................................................... 7

Number of QWs and QDWs executed ........................ 8

Pre-sunset reviews of ASIO’s questioning and detention powers ........................................................ 8

INSLM recommendations .......................................... 9

PJCIS recommendations ............................................ 9

Committee consideration .............................................. 10

Parliamentary Joint Committee on Intelligence and Security ............................................................... 10

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 10

Policy position of non-government parties/independents.................................................... 10

Position of major interest groups................................... 11

Table 1: Key issues raised in civil society and academic submissions to the PJCIS ......................... 12

Date introduced: 13 May 2020

House: House of Representatives

Portfolio: Home Affairs

Commencement: Refer to page 6 of this Digest for details.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2020.

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Australian Security Intelligence Organisation Amendment Bill 2020 2

Financial implications .................................................... 14

Statement of Compatibility with Human Rights.............. 14

Parliamentary Joint Committee on Human Rights ... 14 Key issues and provisions .............................................. 14

Compulsory questioning powers.................................... 14

Minimum age for subject of warrant ........................ 14

Rationale for lowering the minimum age ............... 15 Safeguards ............................................................... 16

Stakeholder and PJCHR concerns ............................ 17

Issuing authority for warrants ................................... 18

Rationale for proposed change ............................... 18

Stakeholder and scrutiny committee concerns ...... 19 Purposes of questioning ............................................ 20

Rationale for proposed change ............................... 20

Stakeholder concerns .............................................. 21

Post-charge and post-confiscation application questioning ................................................................ 22

PJCIS finding ............................................................ 23

Safeguards ............................................................... 23

Stakeholder and scrutiny committee concerns ...... 24 Thresholds for issue of warrant ................................ 24

Additional threshold and considerations for minors ...................................................................... 25

Additional threshold for post-charge or post-confiscation application questioning ...................... 25 Urgent applications, warrants and variations ........... 25 Stakeholder concerns .............................................. 26

Apprehension framework ......................................... 26

Apprehension authorised by the Attorney-General .................................................................... 27

Apprehension without prior authorisation ............. 27 Powers while person is apprehended ..................... 28 Issue: apprehension of minors ................................ 28

Other issues ............................................................. 28

Authority before whom persons are questioned ..... 29 PJCIS finding ............................................................ 29

Safeguards ............................................................... 30

Degree of independence ......................................... 30

Stakeholder and Scrutiny of Bills Committee concerns .................................................................. 31

Screening of persons and restrictions on items at locations where questioning occurs ......................... 31

Lawyers and minor’s representatives ....................... 32

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Australian Security Intelligence Organisation Amendment Bill 2020 3

Overview ................................................................. 32

Right to contact lawyer and limit on choice ........... 32 Legal representation under a QW: immediate appearance requirement ........................................ 33

Legal representation under a QW: no immediate appearance requirement ........................................ 33

Appointed lawyers .................................................. 34

Questioning without a lawyer present ................... 35 Minors ................................................................... 35

Adults ..................................................................... 35

Minors: right to representative ............................... 35

Immediate appearance requirement .................... 36 No immediate appearance requirement .............. 36 Removal of minor’s representative ....................... 37

Obtaining a copy of a QW ....................................... 38

Use and disclosure of questioning material and derivative material .................................................... 38

PJCIS finding ............................................................ 38

Provisions ................................................................ 38

Offences .................................................................... 39

Sunset and review of revised framework ................. 40 Other provisions ........................................................ 40

Tracking devices ............................................................ 41

Key issues and provisions .............................................. 41

Modernising definitions related to surveillance devices ....................................................................... 41

Stakeholder views ................................................... 42

Internal authorisation for use of tracking device ..... 42 What is permitted by internal authorisation? ........ 44 Safeguards ............................................................... 44

Stakeholder concerns .............................................. 45

PJCHR and scrutiny committee concerns ................ 46 Recovery of tracking devices under authorisation ... 47 Warrants for recovery of tracking devices ................ 47

What is permitted by the warrant? ........................ 48

Safeguards ............................................................... 49

Stakeholder concerns .............................................. 49

Lawfulness of ASIO’s surveillance device framework ................................................................. 50

Appendix: Compulsory questioning powers: comparison of the Bill and current ASIO Act ................... 51

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Australian Security Intelligence Organisation Amendment Bill 2020 4

The Bills Digest at a glance The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill) will amend the Australian Security Intelligence Organisation Act 1979 (the Act) to replace the existing framework for questioning warrants and questioning and detention warrants with a revised questioning warrant framework, make related changes to the Act and other legislation, and amend provisions in the Act relating to the use of surveillance devices.

Compulsory questioning

The Bill is intended to implement the Government’s response to the most recent Parliamentary Joint Committee on Intelligence and Security (PJCIS) review of the operation, effectiveness, and implications of the Act’s existing compulsory questioning framework. Key changes between the existing and proposed frameworks include:

• replacing the existing detention powers with new apprehension powers

• expanding the purposes of questioning from terrorism offences to politically motivated violence, espionage and foreign interference

• lowering the minimum age for the subject of a warrant from 16 to 14 years of age

• having the Attorney-General issue warrants directly in place of an issuing authority

• explicitly permitting a person to be questioned after they have been charged with an offence, including on matters that are the subject of those charges

• introducing a prohibition on individuals possessing certain items at a place where questioning is taking place under a warrant, and associated new powers to screen and in some instances, search, persons entering such a place and

• allowing for requests for warrants to be made, and warrants to be issued, orally in some circumstances.

Additional safeguards will accompany the lowering of the age limit and the ability to question a person on matters relevant to an offence with which they have been charged. The Inspector-General of Intelligence and Security will continue to oversee the Australian Security Intelligence Organisation’s use of compulsory questioning powers.

Non-government stakeholders have welcomed the repeal of questioning and detention warrants, but raised concerns about many of the proposed expansions to the questioning framework, the adequacy of safeguards and the issue of warrants by the Attorney-General.

Tracking devices

The Bill creates a new framework to allow the use of certain tracking devices by ASIO with internal authorisation from higher level officers - currently the use of such devices requires a warrant. The Bill also introduces a new warrant framework for the recovery of tracking devices where this would involve entering premises or vehicles. The Bill amends definitions in the legislation relevant to the surveillance device framework with the intention of modernising ASIO’s powers and capabilities.

Committee consideration The Bill is being considered by the PJCIS. The Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights have reported on the Bill and each has made recommendations following consideration of advice from the Minister.

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Australian Security Intelligence Organisation Amendment Bill 2020 5

Purpose of the Bill The purpose of the Bill is to amend the Act to replace the existing framework for questioning warrants and questioning and detention warrants with a revised questioning warrant framework, make related changes to the Act and other legislation, and amend provisions in the Act relating to the use of surveillance devices.

The Bill is intended to implement the Government’s response to the most recent Parliamentary Joint Committee on Intelligence and Security (PJCIS) review of the operation, effectiveness, and implications of the Act’s existing compulsory questioning framework.1

Structure and overview of the Bill The Bill makes amendments in two schedules.

Schedule 1—Amendments relating to compulsory questioning powers Part 1 will repeal Part III, Division 3 of the Act—Special powers relating to terrorism offences. The Bill substitutes proposed Part III, Division 3—Compulsory questioning powers. The amendments proposed would:

• abolish questioning and detention warrants

• retain questioning warrants, under which a person:

- is compelled to attend questioning, answer questions and produce records and other things - may be held for questioning for significant periods of time and - has other limitations imposed on their liberty and freedom of movement, including restrictions on contact with third parties while apprehended or appearing for questioning

and in some cases surrender of travel documents • lower the minimum age at which an individual may be subject to a warrant from 16 to 14 years of age, retaining the existing limitation that warrants for minors are only permitted where the minor is themselves the target of an Australian Security Intelligence Organisation (ASIO)

investigation

• replace the existing detention powers with powers to apprehend individuals for the purpose of immediately bringing them before a prescribed authority for questioning

• expand availability of questioning warrants beyond terrorism offences to use for politically motivated violence (including terrorism), espionage and acts of foreign interference

• permit the Attorney-General to issue questioning warrants directly in place of an independent issuing authority

• permit ASIO to request, and the Attorney-General to issue, questioning warrants orally if the delay caused by making a written request or warrant may be prejudicial to security

• make a broader range of persons eligible to be appointed a prescribed authority (before whom persons are questioned) including:

- persons who have previously served as a judge in one or more superior courts - specific members of the Administrative Appeals Tribunal (AAT) and - experienced lawyers

1. Parliamentary Joint Committee on Intelligence and Security (PJCIS), ASIO's questioning and detention powers: review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, PJCIS, Canberra, March 2018; Australian Government, Australian Government response to the Parliamentary Joint Committee on Intelligence and Security report: ASIO’s questioning and detention powers, April 2019.

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Australian Security Intelligence Organisation Amendment Bill 2020 6

• introduce a prohibition on individuals possessing certain items at a place where questioning is taking place under a warrant, and associated new powers to screen and in some instances, search, persons entering such a place

• retain the ability to prevent contact with specific lawyers due to security concerns, and to remove a lawyer who is unduly disruptive during questioning

• permit the prescribed authority to appoint a lawyer for the subject of a questioning warrant in certain circumstances and

• permit a questioning warrant to be executed:

- even after the laying of charges against the person who is the subject of a questioning warrant or - where charges against that person are imminent and allow for the questioning to cover matters that are the subject of those charges, with safeguards intended to protect the person’s fair trial. Parts 2-4 of Schedule 1 will make a number of ‘machinery’ amendments including application and saving provisions and consequential amendments to other legislation

Schedule 2—Amendments relating to tracking devices The schedule proposes amendments to:

• permit ASIO to use tracking devices with internal authorisation in certain circumstances, rather than requiring a warrant

• clarify that the surveillance device framework is permissive and does not require ASIO to obtain a warrant where conduct would not otherwise be unlawful and

• update the definition of tracking device.

Commencement details Sections 1 to 3 will commence on Royal Assent.

Parts 1-3 of Schedule 1 will commence on 7 September 2020 or a day to be fixed by proclamation, whichever is earlier.

Items 27 and 28 of Schedule 1 will commence immediately after Parts 1-3 of Schedule 1. However, they will not commence unless the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 commences before Parts 1-3 of Schedule 1.2

Item 29 of Schedule 1 will commence immediately after Parts 1-3 of Schedule 1 or immediately after the commencement of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020, whichever is later. However, it will not commence if Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 does not commence.

Schedule 2 will commence the day after Royal Assent or immediately after Parts 1-3 of Schedule 1, whichever is earlier.

2. The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 was introduced into the House of Representatives on 5 December 2019 and has not yet been debated in either chamber.

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Australian Security Intelligence Organisation Amendment Bill 2020 7

Background ASIO’s special powers relating to terrorism offences were first enacted in 2003.3 They were part of the legislative response to multiple large-scale terrorist attacks that involved many participants and extensive planning, including the 11 September 2001 attack in the United States.4 ASIO’s special powers regime was one of the earliest counter-terrorism measures introduced in Australia’s post-9/11 security context, providing ASIO with new intelligence gathering and preventative tools.5

The purpose of ASIO’s special powers regime is to ensure a person involved in a terrorism offence is ‘discovered … preferably before they perpetrate their crimes’—especially where that person might seek to undermine a counter-terrorism operation through, for example, a lack of cooperation, or subverting evidence.6

Existing ASIO special powers relating to terrorism offences ASIO’s special powers relating to terrorism offences have been characterised as extraordinary since their proposal as a counter-terrorism measure.7 The extraordinary nature of the regime meant that it was originally subject to a three-year sunset clause, which has since been extended several times, most recently to 7 September 2020.8

The application of the special powers regime extends to persons who are not suspected of, or charged with, any offence. This is because the questioning warrants (QWs) and questioning and detention warrants (QDWs) issued under Part III, Division 3 of the Act are intended primarily as intelligence-gathering and preventative (rather than investigative) tools.

Under the current framework, a person may be:

• questioned on the basis that they can provide information about a potential terrorism offence rather than on suspicion of having committed an offence and/or

• detained on the basis of preventing the person from damaging evidence or alerting someone involved in a terrorism offence to the fact it is being investigated.9

A person may actually be detained under either a QW or a QDW; the distinction is when a person may be detained and by whom it is authorised:

3. The special powers regime was first tabled as the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, and laid aside on 12 December 2002 after several rounds of amendment could not be agreed between the Houses. A legislative proposal for the regime was re-introduced on 20 March 2003, and passed in June 2003 in the form of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003.

4. R Gyles, Certain questioning and detention powers in relation to terrorism, Independent National Security Legislation Monitor (INSLM), Canberra, October 2016, p. 5. 5. Ibid., p. 22; C Barker, Counter-terrorism and national security legislation reviews: a comparative overview, Research paper series, 2014-15, Parliamentary Library, Canberra, 7 August 2014, p. 3 6. D Williams, ‘Second reading speech: Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill

2002’, House of Representatives, Debates, 21 March 2002, pp. 1930-32. 7. Williams, ‘Second reading speech: Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002’, op. cit.; Sir Gerard Brennan (former High Court Chief Justice) quoted in Gyles, Certain questioning and detention powers in

relation to terrorism, op. cit., p. 39; PJCIS, ASIO's questioning and detention powers, op. cit., p. 27; Department of Home Affairs (DoHA), Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 25 May 2020, p. 6. 8. Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Act 2019. For information on earlier extensions, see: C Barker and H Portillo-Castro, Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019, Bills digest, 4, 2019-20, Parliamentary Library, Canberra, 15 July 2019, p. 2. 9. Australian Security Intelligence Organisation Act 1979 (ASIO Act), sections 34E, 34G and 34K. See also Explanatory Memorandum, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [2003], p. 1.

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Australian Security Intelligence Organisation Amendment Bill 2020 8

• A QW requires a person to appear before a prescribed authority (a judge or member of the AAT prescribed under section 34B) for questioning either immediately after being notified of the warrant or at a time specified in the warrant.10

• A QDW authorises a person to be taken into custody by a police officer, brought immediately before a prescribed authority for questioning and detained until the relevant statutory time limit expires (the longest period permitted is seven days from when the person was first brought before a prescribed authority).11

Under either type of warrant, a prescribed authority may make a direction for the detention or further detention of a person while the person is before them.12

A person subject to either type of warrant commits an offence if they fail to:

• appear for questioning13

• provide ASIO with information sought through questioning (unless the person does not have the information sought) or14

• produce ‘any record or thing’ in their possession or control requested in accordance with the warrant (unless the person does not have the thing in his or her possession).15

The ability for a person subject to a warrant to communicate with others while being questioned or detained is restricted: other than to make a complaint to an authority listed in the Act, a person may only contact a person identified in the relevant warrant or in a direction given by the prescribed authority, and may be prevented from divulging particular information.16

Number of QWs and QDWs executed As at 29 May 2020, ASIO had executed 16 QWs and no QDWs. The most recent use of a QW was in 2010. ASIO noted that it had considered seeking QWs for specific operations ‘on a small number of occasions’ since.17

No QWs have been issued in relation to persons aged 16 or 17 years.18

Pre-sunset reviews of ASIO’s questioning and detention powers The Independent National Security Legislation Monitor (INSLM) and the PJCIS were required by statute to review the provisions ahead of the 2018 sunset date, to inform a decision on whether to retain them for a further period.19

10. ASIO Act, section 34E. 11. Ibid., section 34G. 12. Ibid., section 34K. 13. Ibid., subsection 34L(1). 14. Ibid., subsections 34L(2) and (3). 15. Ibid., subsection 34L(6) and (7). 16. Ibid., sections 34E, 34G, 34K, 34ZO and 34ZS. 17. Australian Security Intelligence Organisation (ASIO), Submission to PJCIS, Australian Security Intelligence Organisation

Amendment Bill 2020, 29 May 2020, p. 6. Three QWs were used in 2004, 11 in 2005 and one each in 2006 and 2010: PJCIS, ASIO's questioning and detention powers, op. cit., pp. 11-12. 18. PJCIS, ASIO's questioning and detention powers, op. cit., p. 64. 19. This was previously reflected in subsection 6(1B) of the Independent National Security Legislation Monitor Act 2010 (as at 1 December 2014) (review was required by 7 September 2017) and paragraph 29(1)(bb) of the Intelligence Services Act 2001 (as at 10 March 2016) (review was required by 7 March 2018). For a list of earlier reviews, see: Inspector-General of Intelligence and Security (IGIS), Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 3 July 2020, p. 6.

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Australian Security Intelligence Organisation Amendment Bill 2020 9

INSLM recommendations In 2016, the INSLM recommended that:

• QWs should be replaced be a questioning power based ‘as closely as possible’ on the coercive questioning powers of the Australian Criminal Intelligence Commission (ACIC) as set out in the Australian Crime Commission Act 2002 (ACC Act)

• QDWs should no longer be permitted, with the provisions to be repealed or cease at the sunset date and

• the definition of terrorism offence should be expanded to include foreign incursions and recruitment offences in Part 5.5 of the Criminal Code Act 1995 and terrorism financing offences in the Charter of the United Nations Act 1945, and the key threshold for a warrant should be amended to require that the intelligence sought be ‘important in relation to an actual or threatened terrorism offence’ [emphasis added].20

PJCIS recommendations In 2018, the PJCIS also recommended that QDWs be abolished and that ASIO should retain a compulsory questioning power.21 However, it considered that the repeal of QDWs might lead to the need for ‘an alternative apprehension framework, possibly with a separate authorisation process, to ensure attendance at questioning and prevent contact with others or the destruction of information’ (it supported such a framework in principle).22 The PJCIS recommended that the Government develop legislation for a reformed questioning framework, and that the legislation be referred to the PJCIS for inquiry and report.23

Given the PJCIS’s in-principle support for ASIO retaining a compulsory questioning framework, the report also outlined the PJCIS’s findings in relation to aspects of an amended framework, specifically: issuing authorities, scope of questioning, apprehension framework, identified person warrants, emergency authorisations, prescribed authorities, questioning of minors, post-charge questioning, access to lawyers and legal professional privilege, ability to contact third parties, secrecy offences, person searches, accountability arrangements, retention of certain existing provisions, and continuation of a sunset clause and committee review.24

The PJCIS did not come to a definitive position on all aspects on which it made findings (for example, on the scope of questioning, it noted that the matter could be considered by the Government in development of an amended framework). For findings in which the PJCIS did express a clear position, the Bill is largely consistent with the PJCIS’s findings. The main deviations appear to be that:

• minors subject to a warrant will be able to be apprehended

• provisions concerning access to lawyers remain more similar to the current framework than to those in the ACC Act

• the Bill does not make provision for requests to contact specified persons to be made, or for representations to be made on the matter and

20. Gyles, Certain questioning and detention powers in relation to terrorism, op. cit., pp. 42, 52. 21. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 27, 41. 22. Ibid., p. 41. 23. Ibid. 24. Ibid., pp. 74-86.

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Australian Security Intelligence Organisation Amendment Bill 2020 10

• the Bill does not include an amendment to the Intelligence Services Act 2001 to require a PJCIS review of the provisions before they sunset.

Committee consideration

Parliamentary Joint Committee on Intelligence and Security The Bill has been referred to the PJCIS for inquiry and report. Details of the inquiry are at the inquiry homepage. No reporting date has been set.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills first reported on the Bill on 10 June 2020, and requested the Minister’s advice on several matters.25

It considered the Minister’s response in a report published on 6 August 2020, in which it recommended:

• an addendum to the Explanatory Memorandum should be tabled in Parliament as soon as practicable containing the key information provided by the Minister in response to its concerns about the new screening powers in the revised questioning framework and the application of strict liability to elements of the secrecy offences

• the statement of procedures for questioning warrants should be disallowable by Parliament

• provisions regulating lawyers’ access to information for proceedings relating to a questioning warrant should be included in the Act instead of delegated legislation, or alternatively high-level guidance in the Act should set the parameters for permissible regulations

• consideration should be given to including the matters set out in offence-specific defences to offences relating to questioning warrants in the offences themselves

• the Attorney-General’s guidelines about financial assistance relating to appearance for questioning under a questioning warrant should be a legislative instrument subject to parliamentary disallowance

• internal authorisations for the use of tracking devices should only be allowed to be requested and approved orally in circumstances of particular urgency and

• the Bill should be amended to make it clear that ASIO’s annual reports to Parliament must contain statistical information about internal authorisation of tracking devices.26

The Committee’s concerns are incorporated where relevant in the ‘Key issues and provisions’ section of this Digest.

Policy position of non-government parties/independents Independent Andrew Wilkie opposes the Bill. While welcoming the repeal of detention powers, Mr Wilkie was ‘deeply concerned’ about other aspects of the Bill, including the expanded scope of matters on which individuals may be questioned, the lowering of the minimum age, search and seizure powers, and internal authorisations for tracking devices.27

25. Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny digest, 7, 2020, 10 June 2020, pp. 1- 14. 26. Scrutiny of Bills Committee, Scrutiny digest, 9, 2020, 6 August 2020, pp. 7-38. 27. A Wilkie, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 26 June 2020.

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Australian Security Intelligence Organisation Amendment Bill 2020 11

The Greens Justice Spokesperson, Senator Nick McKim, stated that the Government had failed to justify the proposed expansions to ASIO’s powers, including the reduction of the minimum age for questioning warrants.28

Labor members sit on the PJCIS and supported the unanimous recommendations and findings in the PJCIS’s latest review of ASIO’s questioning powers. The Shadow Attorney-General, Mark Dreyfus, noted that the Bill would be examined by the PJCIS and stated that committee would give the Bill ‘the very close scrutiny that it warrants’.29

Labor and Greens members of the Parliamentary Joint Committee on Human Rights (PJCHR) issued a dissenting report in which they raised questions about the compatibility of:

• aspects of the questioning framework with the rights to privacy, liberty, freedom of movement, protection of the family, a fair trial and freedom of expression, and rights relevant to children and

• the amendments relating to tracking devices with the right to privacy.30

Among their concerns with respect to the questioning framework were the issue of questioning warrants by the Attorney-General without judicial approval, the adequacy of safeguards relating to children and to the total duration of questioning, the absence of a ‘derivative use’ immunity for self-incriminating information, and restrictions on legal representation.31

Other non-government parties and independents did not appear to have publicly stated their positions on the Bill as at the date of this Digest.

Position of major interest groups The Department of Home Affairs (DoHA), ASIO, ACIC and the Australian Federal Police made submissions to the PJCIS in support of the Bill.32

The Inspector-General of Intelligence and Security’s (IGIS) submission did not express a view on the policy decisions reflected in the Bill or recommend any amendments. With respect to questioning warrants, the IGIS noted: ‘The provisions to support IGIS oversight are as robust under the amended framework as they are in the existing framework’. She also stated that she expected the practice of the IGIS or a senior staff member ‘attending and closely reviewing the questioning process’ to continue. With respect to tracking devices, the IGIS stated that her office has sufficient powers to oversee the legality and propriety of the proposed internal authorisations.33

Civil society organisations and academics that made submissions to the PJCIS’s inquiry into the Bill tended to welcome the repeal of detention powers, but to call for the repeal of questioning warrants altogether and/or raise concerns about aspects of the Bill.34 An overview of key concerns

28. N McKim, Expansion of ASIO powers unjustified, media release, 13 May 2020. 29. M Dreyfus, Transcript of interview with Matt Doran: ABC Capital Hill, media release, 14 May 2020. 30. PJCHR, Human rights scrutiny report, 9, 2020, 18 August 2020, pp. 190-200. 31. Ibid. 32. DoHA, Submission to PJCIS, op. cit.; ASIO, Submission to PJCIS, Review of the Australian Security Intelligence Organisation

Amendment Bill 2020, 29 May 2020; Australian Federal Police, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 25 June 2020; Australian Criminal Intelligence Commission, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 9 July 2020. 33. IGIS, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, op. cit. 34. G Carne, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 12 June 2020; Australian Lawyers Alliance, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 23 June 2020; International Commission of Jurists (Victoria), Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, n.d.; Civil Liberties Australia, Submission to PJCIS, Review of the Australian

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Australian Security Intelligence Organisation Amendment Bill 2020 12

raised in those stakeholder submissions is set out in Table 1 below. Further detail is included in the ‘Key issues and provisions’ section of this Digest.

Table 1: Key issues raised in civil society and academic submissions to the PJCIS Issue Stakeholder/s

Questioning warrants should be repealed Civil Liberties Australia (CLA)

International Commission of Jurists (Victoria) (ICJV)

Australian Human Rights Commission (AHRC)

Lowering the minimum age from 16 to 14 years, including:

• that justification for the change is lacking

• that the rights of the child will not be required to be the primary consideration and

• limits on access to legal representation and lawyers’ ability to represent subjects during questioning.

Dr Nicola McGarrity and Professor George Williams

ANU Law Reform and Social Justice Research Hub (ANU Hub)

Law Council of Australia (LCA)

Australian Lawyers Alliance (ALA)

Save the Children

All Together Now

Relationships Australia

CLA

ICJV

AHRC

National Legal Aid

GetUp!

Lack of provisions to protect vulnerable adults such as those with a disability Relationships Australia LCA

Powers to apprehend individuals subject to warrants, including:

• that the apprehension and questioning powers amount to detention

• the breadth of the powers (including apprehension other than where authorised by a warrant) and

• the authorisation of apprehension by the Attorney-General instead of a judicial officer.

McGarrity and Williams

AHRC

Associate Professor Greg Carne

LCA

Security Intelligence Organisation Amendment Bill 2020, 22 June 2020; Relationships Australia, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, June 2020; All Together Now, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 25 June 2020; Save the Children, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 26 June 2020; N McGarrity and G Williams, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 26 June 2020; ANU Law Reform and Social Justice Research Hub, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 26 June 2020; National Legal Aid, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 30 June 2020; Digital Rights Watch, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, n.d.; Australian Human Rights Commission, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 1 July 2020; Law Council of Australia, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 3 July 2020; GetUp!, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 1 July 2020.

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Australian Security Intelligence Organisation Amendment Bill 2020 13

Issue Stakeholder/s

Having the Attorney-General issue warrants instead of an independent authority

CLA

ICJV

McGarrity and Williams

AHRC

Carne

ANU Hub

LCA

Expansion of the matters on which individuals may be questioned CLA ICJV

McGarrity and Williams

AHRC

Carne

ANU Hub

GetUp!

Limits on access to legal representation and lawyers’ ability to represent subjects during questioning

All Together Now

ICJV

McGarrity and Williams

AHRC

ALA

Carne

ANU Hub

GetUp!

LCA

Issuing of warrants orally in certain circumstances, including that the threshold is too low

McGarrity and Williams

ALA

Carne

ANU Hub

LCA

Post-charge questioning McGarrity and Williams

AHRC

LCA

Expanding who may be appointed as a prescribed authority McGarrity and Williams AHRC

Carne

LCA

The 10-year sunset period is too long Save the Children

Carne

LCA

Tracking devices, including:

• broadening definitions relevant to the surveillance device framework

• replacement of warrant with internal authorisation process for use of certain tracking devices and

• scope of proposed tracking device recovery warrant.

CLA

Carne

Digital Rights Watch

ANU Hub

GetUp!

LCA

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Australian Security Intelligence Organisation Amendment Bill 2020 14

Financial implications The Explanatory Memorandum states that the Bill has no financial impact.35

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.36

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) first reported on the Bill on 17 June 2020, and requested the Minister’s advice on several matters in order to fully assess the compatibility of aspects of the Bill with relevant rights and freedoms.37

It considered the Minister’s response in a report published on 18 August 2020, in which it outlined some continuing concerns.38 The PJCHR made recommendations for potential amendments that it considered could assist to ensure:

• the compatibility of aspects of the questioning framework with the rights to privacy and a fair trial, rights of persons with disability and rights of children and

• the compatibility of the amendments concerning tracking devices with the right to privacy.39

The Committee’s concerns are incorporated where relevant in the ‘Key issues and provisions’ section of this Digest.

As noted above, Labor and Greens members of the PJCHR issued a dissenting report outlining additional concerns.

Key issues and provisions

Compulsory questioning powers Part 1 of Schedule 1 will repeal and replace Division 3 of Part III of the Act to replace the existing framework for QWs and QDWs with a revised questioning warrant framework, and make related changes to other provisions in the Act.

This section of the digest focuses primarily on key differences between the existing and proposed questioning regimes.

Minimum age for subject of warrant The Bill will lower the minimum age at which a person may be subject to a QW from 16 to 14 years of age.40

35. Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020, p. 4. 36. The Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the Bill. 37. PJCHR, Human rights scrutiny report, 7, 2020, 17 June 2020, pp. 32-68. 38. PJCHR, Human rights scrutiny report, 9, op. cit., pp. 1-114. 39. Ibid., pp. 22-23, 46-47, 69-70, 89-90, 99-100, 114. 40. Proposed sections 34BB and 34BC; ASIO Act, section 34ZE.

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Australian Security Intelligence Organisation Amendment Bill 2020 15

The minimum age at which a person may be subject to a warrant was a matter of considerable debate when the QW and QDW framework was considered by the Parliament in 2002 and 2003. It was initially proposed that warrants be able to made in relation to children as young as ten years old, with alternatives of 14 years and 18 years proposed during the course of debate before a minimum age of 16 years was agreed in the legislation as passed.41

In the course of the PJCIS’s most recent review of the powers, ASIO argued for the minimum age limit to be lowered from 16 to 14 years, on the basis of recent changes in the age profile of individuals involved in terrorism-related activities.42 The PJCIS accepted in principle that lowering the minimum age may be a necessary measure for protecting the community, but only if the change was accompanied by additional oversight and safeguards. Specifically, it found:

 any compulsory questioning of minors must be limited to those who are themselves the subject of investigation. It is not a proportionate response to compulsorily question a 14 year old who is not the subject of suspicion in relation to the unrelated activities of that minor’s friends or family members

 apprehension should not be available in relation to minors

 any minor that is the subject of a questioning warrant must have a legal representative present at all times

 any minor that is the subject of a questioning warrant must have had an assessment conducted prior to the Attorney-General’s approval of the warrant as to whether the interests of the child are appropriately protected, and

 to the greatest extent possible, the interests of the child should be protected. 43

As outlined below under ‘Thresholds for issue of warrant’, ‘Apprehension framework’ and ‘Lawyers and minor’s representatives’, these findings have mainly been implemented in the Bill, with the exception of the proposed apprehension powers being able to be used against minors.

Rationale for lowering the minimum age ASIO pointed to ‘a shift in the security environment since 2003 that has seen younger and younger people involved in extremist activities’, noting that minors were involved in one of the terrorist attacks conducted in Australia, and three of the plots disrupted, since 2014:

In May 2015, a male aged 17 was arrested in Melbourne after he was identified as being in contact with Australian Islamic State of Iraq and the Levant (ISIL) members in Syria, who were encouraging him to undertake terrorist attacks in Australia. He later pleaded guilty to one count of acts in preparation for a terrorism offence.

In October 2015, a 15-year-old male conducted a terrorist attack, murdering New South Wales Police employee Curtis Cheng.

41. N Hancock, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2], Bills digest, 133, 2002-03, Department of the Parliamentary Library, Canberra, 26 March 2003, pp. 4, 10; Revised Supplementary Explanatory Memorandum, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [2003], pp. 9-10; Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003.

42. ASIO, Submission to PJCIS, Review of ASIO’s questioning and detention powers, 9 May 2017, pp. 11-12. 43. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 63-67, 80-81.

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Australian Security Intelligence Organisation Amendment Bill 2020 16

In April 2016, a 16-year-old male was arrested and charged with one count of acts in preparation for a terrorist offence after he sought firearms and explosives to support an intention to conduct an Anzac Day attack.

In October 2016, two 16-year-olds were arrested by counter-terrorism police after they were observed entering a Sydney gun shop and purchasing two bayonets. One of the teens was located with a note linking their anticipated actions to ISIL. Both were charged with acts done in preparation for, or planning, a terrorist act, and membership of a terrorist organisation.

44

The same examples are referenced in DoHA’s submission.45 The fact that three of the four examples provided in support of lowering the minimum age refer to cases where the individuals were 16 years or over somewhat undermines the argument that the change is necessary. The Parliament may wish to seek further justification from government agencies for this change, the need for which the PJCIS considered ‘must be clearly evidenced’.46

In 2015, the then Attorney-General stated that he had signed warrants under the Act in relation to people as young as 14 years of age ‘on more than one occasion’.47 An individual who was 14 years old at the time of the offence pleaded guilty to conspiring to do acts done in preparation for a terrorist act in 2017.48 ASIO stated in July 2020 that it is currently undertaking counter-terrorism investigations involving children as young as 14 years of age.49 Further information on the involvement of 14 and 15 year olds in matters investigated by ASIO may assist Parliament in its deliberations.

Safeguards Most existing safeguards that apply for warrants for persons aged 16-17 years will be retained. A warrant may only be issued if the subject is themselves a person of security interest, and the person may only be questioned for continuous periods of up to two hours at a time.50 Currently, a minor may only be questioned in the presence of a parent, guardian or other person who meets certain requirements.51 Under the Bill, a minor may only be questioned in the presence of a lawyer representing them, but may be questioned without a parent, guardian or other non-lawyer representative present in some circumstances (see further under ‘Lawyers and minor’s representatives’ below).52

As an additional safeguard, when deciding whether to issue a warrant in relation to person 14-17 years of age (referred to in the Bill as a minor questioning warrant), the Attorney-General must consider the best interests of the person. In doing so, the Attorney-General must take account of listed factors such as the person’s age, maturity and physical and mental health (to the extent that

44. ASIO, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, op. cit., p. 5. 45. DoHA, Submission to PJCIS, op. cit., pp. 21-22. 46. PJCIS, ASIO's questioning and detention powers, op. cit., p. 80. 47. G Brandis, ‘Answer to Question without notice: national security’, [Questioner: N McKim], Senate, Debates, 14 October 2015,

p. 7626.

48. J Renwick, Report to the Prime Minister: The prosecution and sentencing of children for terrorism, INSLM, 2018, pp. 125-127 (case study of IM). 49. M Burgess (Director-General of Security) in PJCIS, Official committee Hansard, 10 July 2020, p. 35. 50. ASIO Act, section 34ZE; proposed paragraphs 34BB(1)(b), 34BD(2)(b) and 34DD(2)(f), 51. ASIO Act, subsection 34ZE(8). 52. Proposed section 34FD.

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Australian Security Intelligence Organisation Amendment Bill 2020 17

they are known and relevant) and any other matter he or she considers relevant.53 This appears to have been included to address the PJCIS’s finding that the interests of the child should be protected ‘to the greatest extent possible’,54 though as noted below, the adequacy of this safeguard has been questioned.

Contrary to the PJCIS’s findings, the Bill would allow for apprehension of minors (see further below under ‘Apprehension framework’).

Stakeholder and PJCHR concerns The proposed extension of questioning warrants and associated powers to 14 and 15 year-olds was of significant concern to many stakeholders. Stakeholders questioned whether adequate evidence had been provided of the need for such a change, and argued that even if it could be shown that younger individuals have become involved in terrorism-related activities, the availability of ASIO’s questioning powers may not be a proportionate or appropriate response, 55 as did the PJCHR.56 For example, McGarrity and Williams stated:

… In order to determine whether there are compelling reasons for [lowering the minimum age], three questions would need to be considered. First, whether a Questioning Warrant, if available, would have been effective in significantly reducing the risk of a specific terrorist act by a minor under 16 years of age. Second, whether other measures were, or would have been, available to mitigate any risk of a terrorist attack occurring, whether those measures were taken and how far they were successful. It is relevant to both of these first two questions that in none of the cases referred to by the Department, and which involved a minor aged 16 or 17 years, was a Questioning Warrant sought by the Director-General of Security.

The third, and final, question is how great an impact a Questioning Warrant would have had on the rights of any minor concerned, and whether that would have been proportionate to the reduction of risk that might have been achieved. 57

If the minimum age is nonetheless to be lowered, stakeholders suggested several additional safeguards, including:

• restricting the issue of warrants to instances where the child was intentionally involved in prejudicial activities

• questioning of minors being explicitly limited to the particular matter for which the warrant was issued (not other matters concerning politically motivated violence)

• the rights of the child being required to be the primary consideration in decisions about the issue of warrants

• requiring additional factors, such as developmental status and any form of disability, to be considered in determinations about the best interests of the child

• requiring information relevant to the child’s best interests to be compiled by an independent children’s lawyer

53. Proposed subsections 34BB(2)-(4). The matters to be considered are the same as those that a court must take into account when considering the best interests of a 14-17 year old in relation to whom a control order is sought: Criminal Code Act 1995, paragraph 104.4(1)(d) and subsections 104.4(2) and (2A).

54. PJCIS, ASIO's questioning and detention powers, op. cit., p. 81. 55. See for example: McGarrity and Williams, Submission to PJCIS, op. cit., pp. 23-27; LCA, Submission to PJCIS, op. cit., pp. 21- 22; ANU Hub, Submission to PJCIS, op. cit., pp. 7-8; AHRC, Submission to PJCIS, op. cit., pp. 21-23; Relationships Australia, Submission to PJCIS, op. cit., pp. 2-4.

56. PJCHR, Human rights scrutiny report, 7, op. cit., pp. 48-53. 57. McGarrity and Williams, Submission to PJCIS, op. cit., pp. 25-26.

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Australian Security Intelligence Organisation Amendment Bill 2020 18

• providing that questioning warrants may only be issued in relation to minors as a last resort

• removing proposed powers of apprehension and post-charge questioning for children

• requiring the appointment of an Independent Child Advocate to support and assist the child throughout the process

• giving the child’s non-lawyer representative the right to raise concerns about the child’s welfare during questioning

• requiring those questioning and overseeing the questioning of children to have received relevant training and

• setting a definite limit on the length of time a child may be held for questioning (including both questioning time and other time such as breaks).58

Issuing authority for warrants Currently, QWs and QDWs are issued by Judges appointed by the Attorney-General, and persons declared by the regulations, as issuing authorities. The Attorney-General’s consent is required before ASIO makes an application to an issuing authority.59

Under the new framework, QWs will be issued by the Attorney-General.60

The INSLM considered that there is some force to the argument that having warrants issued by a judge ‘gives a veneer of respectability to the process’, and that there is a real question about the ability of a judge or a minister to determine whether there are reasonable grounds to believe that a warrant will substantially assist the collection of certain intelligence.61 The INSLM and the PJCIS also noted ASIO’s submission that the current two-step approval process is inconsistent with the authorisation of ASIO’s other special powers and with approval of compulsory questioning powers for other agencies including the ACIC.62 While noting that such a proposal did not have the support of all stakeholders, the PJCIS found that warrants should be issued by the Attorney-General, consistent with other warrants under the Act.63

Rationale for proposed change The Government’s justification for changing the issuing authority has focused on the need for efficient and timely execution of questioning warrants in a changing operational environment, and consistency with ASIO’s other special powers under Part III of the ASIO Act. For example, DoHA’s submission to the PJCIS’s inquiry into the Bill states:

Streamlining the authorisation process for issuing a questioning warrant will ensure that the powers are suitably tailored to the current operational environment. Significant changes in Australia’s security environment has seen a rise in low complexity attacks by lone actors or small groups involving the use of weapons that are easy to acquire, such as knives or vehicles. This has significantly changed the pace of ASIO’s investigations, as opportunities to identify and intervene are limited. Removing the multi-step

58. LCA, Submission to PJCIS, op. cit., pp. 23-40; NLA, Submission to PJCIS, op. cit., p. 2; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 25-26; Relationships Australia, Submission to PJCIS, op. cit., p. 4; ANU Hub, Submission to PJCIS, op. cit., pp. 8-9.

59. ASIO Act, sections 34AB, 34D and 34E. 60. Proposed sections 34BA and 34BB. 61. Gyles, Certain questioning and detention powers in relation to terrorism, op. cit., pp. 44-45. 62. Ibid.; PJCIS, ASIO's questioning and detention powers, op. cit., pp. 52-55, 75-76. 63. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 52-55, 75-76.

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Australian Security Intelligence Organisation Amendment Bill 2020 19

authorisation process will ensure that ASIO’s compulsory questioning powers are operationally efficient in a fast-paced, high-threat environment. 64

As outlined in the PJCIS’s 2018 report, similar arguments were advanced for the proposed change in evidence given by ASIO and the Attorney-General’s Department (AGD) to the PJCIS’s review of ASIO’s questioning and detention powers.65

Stakeholder and scrutiny committee concerns Several stakeholders objected to the proposal for the Attorney-General to issue questioning warrants, arguing that the extraordinary nature of the powers available differentiates questioning warrants from ASIO’s other special powers and should require independent authorisation.66 For example, Associate Professor Carne noted that while other special powers are authorised by the Attorney-General, those powers ‘do not involve an obligation of personal attendance’ for questioning:

This differentiation of the warrant issuing authority—having an independent persona designata— signalled the seriousness and intrusiveness of the questioning warrant on individual autonomy, freedom and the obligation to answers questions without derivative use immunity.[emphasis in original]

67

The AHRC stated:

… limitations on human rights cannot be justified only on the basis of administrative efficiency.

The powers under contemplation involve very significant restrictions of a number of human rights. The Commission considers that a requirement that warrants be both issued and supervised by independent persons (who must be current or former judges) is a vital safeguard to ensure that these powers are only authorised where lawful and appropriate. It is likely to ensure applications are well-prepared and documented, and that decisions to issue warrants are made objectively.

68

Some also considered that other changes proposed in the Bill, such as expanded purposes of questioning, a lower minimum age, and new apprehension powers, meant that the need for independent authorisation was now even more important.69

The PJCHR and Scrutiny of Bills Committee also had concerns with the proposed change, with the latter stating that it ‘does not consider that consistency with existing provisions is, of itself, a sufficient justification for allowing warrants or orders relating to the use of intrusive powers to be issued by non-judicial officers’.70

The LCA suggested that if warrants are to be issued by the Attorney-General (contrary to its preference), that judicial involvement in the issue process should be retained by ‘giving the

64. DoHA, Submission to PJCIS, op. cit., p. 14 (see also p. 13). 65. PJCIS, ASIO's questioning and detention powers, op. cit., pp. pp. 52-55. 66. AHRC, Submission to PJCIS, op. cit., pp. 19-21; ANU Hub, Submission to PJCIS, op. cit., pp. 11-13; Carne, Submission to PJCIS, op. cit., p. 5; CLA, Submission to PJCIS, op. cit., p. 2; ICJV, Submission to PJCIS, op. cit., pp. 5-6; LCA, Submission to PJCIS,

op. cit., pp. 41-45; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 4-7. 67. Carne, Submission to PJCIS, op. cit., p. 5. 68. AHRC, Submission to PJCIS, op. cit., pp. 20-21. 69. LCA, Submission to PJCIS, op. cit., pp. 44-45; Carne, Submission to PJCIS, op. cit., p. 5. 70. PJCHR, Human rights scrutiny report, 7, op. cit., pp. 36, 40, 43-44; Scrutiny of Bills Committee, Scrutiny digest, 7, op. cit., p. 3.

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Australian Security Intelligence Organisation Amendment Bill 2020 20

Attorney-General the primary decision-making role on warrant applications, and conferring a statutory role of review on judicial officers’. This would be analogous to the so-called ‘double-lock’ authorisation of certain warrants under the Investigatory Powers Act 2016 (UK).71

Purposes of questioning A key difference between the existing and proposed questioning frameworks is the scope of the purpose for which a warrant may be issued. A QW or QDW may be issued for the purpose of collecting intelligence about a terrorism offence.72 Under the Bill, the scope of permitted questioning will differ for adults and minors, but in both cases will be broader than the current framework.

If the person to be questioned is at least 18 years of age, a warrant may be issued for the purpose of collecting intelligence on a matter that relates to the protection of the Commonwealth, its people and the states and territories from espionage, politically motivated violence or acts of foreign interference, whether directed from or committed within Australia or not (the Bill defines these as adult questioning matters).73

If the person is 14-17 years of age, a warrant may be issued for the purpose of collecting intelligence on a matter that relates to protection from politically motivated violence (the Bill defines this as a minor questioning matter).74

Espionage is not defined in the Act. Politically motivated violence includes acts that constitute certain offences (including terrorism offences), ‘acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere’, and acts that ‘involve violence or are intended or are likely to involve or lead to violence’ and ‘are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory’. Acts of foreign interference means activities relating to Australia that are ‘carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power’, being activities that involve a threat to any person or certain activities that are clandestine or deceptive.75

Rationale for proposed change The expansion from terrorist offences to politically motivated violence is arguably more consistent with ASIO’s role as an intelligence rather than law enforcement agency. AGD has previously suggested that the requirement to identify a terrorism offence has the potential to prevent use of the power if ASIO had not yet identified a specific offence being committed.76 The INSLM’s recommended change concerning an ‘actual or threatened terrorism offence’ was intended to address that concern.77

71. LCA, Submission to PJCIS, op. cit., pp. 42-44. For an overview of the UK legislation, see: UK Home Office, Safeguards governing investigatory powers come into effect, news story, 28 November 2018; UK Government, ‘Investigatory Powers Act’, UK Government website.

72. ASIO Act, subsections 34E(1) and 34G(1). 73. Proposed sections 34A (definition of adult questioning matter) and 34BA. 74. Proposed sections 34A (definition of minor questioning matter) and 34BB. 75. ASIO Act, section 4. 76. Attorney-General’s Department (AGD), Submission to PJCIS, Review of the operation, effectiveness and implications of Division

3 of Part III of the Australian Security Intelligence Organisation Act 1979, [submission no. 7], April 2017, p. 17. 77. Gyles, Certain questioning and detention powers in relation to terrorism, op. cit., pp. 40, 52.

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Australian Security Intelligence Organisation Amendment Bill 2020 21

ASIO has argued for the availability of compulsory questioning powers in relation to espionage and foreign interference on the basis of both the scale and breadth of current threats and the nature of such activities. On the extent of the threat, ASIO stated:

Foreign interference is an enduring and increasingly complex feature of the security landscape in Australia. ASIO investigations have identified foreign interference operations directed at decision-makers in government and industry, the media, members of diaspora communities and commercial investment decision-makers.

The threats posed today by espionage and foreign interference operate at a scale, breadth and ambition that has not previously been seen in Australia. Espionage and foreign interference are affecting parts of the Australian community previously untouched by such threats, even during the Cold War … 78

On the nature of espionage and foreign interference activities and their investigation, AGD stated:

The particular value of ASIO’s compulsory questioning powers is that they enable ASIO to collect intelligence that is peculiar to the mind of the person concerned. This can enable ASIO to collect intelligence in circumstances where, for example, a person has not committed information about their activities into documentary form, which could be seized under a search warrant, or does not communicate such information electronically, which could be intercepted under a telecommunications interception warrant.

ASIO advises that persons involved in espionage, sabotage, attacks on Australia’s defence system or foreign interference, in particular could typically be reasonably expected to take steps to conceal their activities. In particular, such persons could typically be reasonably expected to practice counter-surveillance techniques in an attempt to limit the effectiveness of ASIO’s other special powers (search, computer access, surveillance device, and inspection of postal and delivery articles powers). Accordingly, compulsory questioning powers would be of relatively greater value for such investigations, where critical intelligence may exist only in the minds of persons involved.

79

Stakeholder concerns Several stakeholders were concerned at the proposed expansions to the permitted purposes of questioning warrants, particularly in light of the breadth of the definitions of politically motivated violence and acts of foreign interference.80

The AHRC accepted that espionage and foreign interference may pose significant threats to Australia, but questioned whether that justified the proposed expansion of questioning warrants, stating: ‘It has not been demonstrated that the threats posed to national security by foreign interference and espionage are of the same magnitude as those posed by the kinds of catastrophic terrorist attacks which were said to justify the introduction of the current powers in 2002’.81 On this point, the AHRC pointed to evidence given by the IGIS to the PJCIS’s review of the existing powers. The IGIS stated in a 2017 submission:

78. ASIO, Submission to PJCIS, op. cit, pp. 5-6. 79. Attorney-General’s Department, Supplementary submission to PJCIS, Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, [submission no. 7.3], November 2017, pp. 4-5.

80. AHRC, Submission to PJCIS, op. cit., pp. 17-19; ANU Hub, Submission to PJCIS, op. cit., pp. 10-11; Carne, Submission to PJCIS, op. cit., pp. 3-5; CLA, , Submission to PJCIS, op. cit., p. 2; ICJV, Submission to PJCIS, op. cit., pp. 6-9; McGarrity and Williams, Submission to PJCIS, op. cit., 9-12.

81. AHRC, Submission to PJCIS, op. cit., p. 18-19.

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Australian Security Intelligence Organisation Amendment Bill 2020 22

One of the key things that IGIS considers when looking at the propriety of ASIO operations is that the exercise of a power should be proportionate to the gravity of the threat posed, the probability of its occurrence, as well as the imminence of the threat. The threat of an imminent major terrorist attack in Australia is at the top of the current scale of potential threats and would justify the use of the most intrusive powers. Other threats to Australia, including from espionage and foreign interference, can also be serious but this does not mean that there is no hierarchy of threats.

82

Associate Professor Carne considered that the breadth of politically motivated violence and acts of foreign interference meant that enabling questioning warrants for those purposes ‘requires qualification to prevent abuses of power, ensure rights of peaceable political protest and to properly prioritise and allocate ASIO resources’.83 The ICJV was also concerned that warrants might be available ‘to question political protesters attending rallies at which “unlawful harm” is alleged’.84

Consideration could be given to whether, given the significant expansion of the permitted purposes of warrant, an additional issuing criterion concerning the severity and/or imminence of harm associated with the particular threat may be appropriate.

Post-charge and post-confiscation application questioning The ASIO Act is currently silent on whether a person may be compulsorily questioned after having been charged with an offence. However, recent court decisions have found that post-charge questioning is only permissible where it is specifically authorised by legislation.85

The Bill will permit an adult or minor to be questioned while they are charged with a related offence, or where such a charge is imminent (post-charge questioning), and while they are the subject of a related confiscation proceeding, or where such a proceeding is imminent (post-confiscation application questioning).86 It will explicitly permit questioning (and requirements to produce records or things) on the subject matter of any charge or imminent charge, and of any confiscation proceeding or imminent confiscation proceeding, against the person.87

As is currently the case, individuals will not be excused from giving information or producing a record or other thing on the grounds of self-incrimination, but information provided by the person will not be admissible in most criminal proceedings (that is, a ‘use immunity’ is provided).88 However, such information may still be used to gather other evidence against that person that would be admissible (that is, no ‘derivative use’ immunity applies).

82. IGIS, Supplementary submission to PJCIS, Review of ASIO’s questioning and detention powers, [Submission no. 1.2], 16 October 2017, pp. 2-3. This issue is not raised in the IGIS’s submission to the PJCIS’s inquiry into the Bill. 83. Carne, Submission to PJCIS, op. cit., p. 4. 84. ICJV, Submission to PJCIS, op. cit., p. 7. 85. J Mills and C Barker, Law Enforcement Legislation Amendment (Powers) Bill 2015, Bills digest, 130, 2014-15, Parliamentary

Library, Canberra, 22 June 2015, pp. 7-9. Of particular relevance is X7 v Australian Crime Commission (2013) 248 CLR 92, [2013] HCA 29, a key impetus for amendments to legislation governing the then Australian Crime Commission (now ACIC) and the Australian Commission for Law Enforcement Integrity on which the proposed ASIO Act amendment is modelled. 86. Proposed section 34A (definitions of post-charge and post-confiscation application) and proposed paragraphs 34BA(1)(d) and 34BB(1)(e). 87. Proposed subsection 34BD(4). 88. ASIO Act, subsections 34L(8) and (9); Proposed subsections 34GD(5)-(7).

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Australian Security Intelligence Organisation Amendment Bill 2020 23

PJCIS finding In its review of the existing questioning and detention powers, the PJCIS considered but did not come to a final position on whether post-charge questioning should be permitted.89 It stated:

The Committee considers that the question of whether post-charge questioning should be allowed under the questioning regime requires careful consideration. While it is possible that a person charged with an offence may hold critical information about a security threat that they are unwilling to provide on a voluntary basis, compulsory questioning of such a person may imperil their ability to receive a fair trial.

90

While it declined to make a definitive finding on the matter, the PJCIS considered that if the Government did propose to permit post-charge questioning, the power must be accompanied by adequate safeguards (as a minimum, equivalent to those in the ACC Act).91

Safeguards As noted above, the Bill will abrogate the privilege against self-incrimination, and provide a use immunity, but not derivative use immunity.

The Bill includes provisions equivalent or similar to those in the ACC Act with respect to:

• directions about confidentiality of questioning material and an offence for contravention of

such directions (proposed subsections 34DF(1)-(4) and 34GE(4))92

• issue of certificates by a court before which a person has been charged with an offence,

requiring disclosure of material to the court (proposed subsections 34DF(5) and (6))93

• obtaining derivative material (proposed section 34E) 94

• disclosing questioning material and derivative material to prosecutors of the person (proposed

sections 34EA and 34EB) and proceeds of crime authorities (proposed section 34EF)95

• court’s powers to order disclosure and to ensure a fair trial (proposed section 34EC) 96

• material that may always be disclosed to prosecutors of the person (proposed section 34ED) 97

and

• other matters about prosecutors and subjects (proposed section 34EE). 98

With respect to questioning material and derivative material, see further below under ‘Use and disclosure of questioning material and derivative material’.

89. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 67-69, 81. 90. Ibid., p. 81. 91. Ibid. 92. Questioning material is defined in proposed subsection 34AB(1). The relevant provisions of the Australian Crime Commission

Act 2002 (ACC Act) are subsections 25A(9)-(11) and 25A(14A). 93. ACC Act, subsections 25A(12)-(13). 94. ACC Act, section 25B. 95. ACC Act, sections 25C, 25D and 25H. 96. ACC Act, section 25E. 97. ACC Act, section 25F. 98. ACC Act, section 25G.

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An additional criterion will apply for the issue of a warrant if it is a post-charge or post-confiscation application questioning warrant. The Attorney-General must be satisfied that it is necessary for the collection of intelligence that the warrant be issued even though the person has been charged or the confiscation proceeding has commenced, or that the charge or proceeding is imminent.99

Stakeholder and scrutiny committee concerns The PJCHR, Scrutiny of Bills Committee and some stakeholders were concerned that even with the inclusion of some safeguards, allowing post-charge questioning risks prejudicing the person’s right to a fair trial.100 The LCA, AHRC and McGarrity and Williams considered that the Bill should be amended to require that where someone has been charged with an offence, questioning under a warrant must be deferred until the charge has been disposed of.101 The AHRC and McGarrity and Williams pointed to a 2012 recommendation of the then INSLM to that effect.102

If post-charge questioning is to be permitted under a questioning warrant, the LCA and McGarrity and Williams suggested that additional safeguards apply in such circumstances, such as the issue of relevant warrants by a judicial authority and provision of derivative use immunity.103

Thresholds for issue of warrant The key threshold for the issue of a warrant will remain the same, subject to the proposed expansion of the purposes for which a warrant may be made. The Attorney-General may only issue a warrant if satisfied that there are ‘reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to’ either an adult questioning matter (for a person aged 18 years or older) or a minor questioning matter (for a person aged 14-17 years).104

Matters of which the Attorney-General is currently required to be satisfied before consenting to an application for a QW will now be incorporated into the thresholds for issue; specifically, that having regard to other methods of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances that a warrant be issued, and there is a written statement of procedures in force concerning the exercise of authority under a warrant.105

As noted above under ‘Purposes of questioning’, consideration could be given to whether the issuing threshold should be made more stringent to account for the significant expansion of the matters in relation to which a warrant may be issued.

99. Proposed paragraphs 34BA(1)(d) and 34BB(1)(e). 100. PJCHR, Human rights scrutiny report, 7, op. cit., pp. 54-56; Scrutiny of Bills Committee, Scrutiny digest, 7, op. cit., pp. 5-6; LCA, Submission to PJCIS, op. cit., pp. 52-54; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 13-15; AHRC, Submission to PJCIS, op. cit., pp. 27-29.

101. AHRC, Submission to PJCIS, op. cit., pp. 27-29; LCA, Submission to PJCIS, op. cit., pp. 52-54; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 13-15. 102. See B Walker, Declassified annual report, INSLM, 20 December 2012, pp. 93-96. 103. LCA, Submission to PJCIS, op. cit., pp. 54-57; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 14-15. 104. Proposed paragraphs 34BA(1)(b) and 34BB(1)(c); ASIO Act, paragraphs 34E(1)(b) and 34G(1)(b). 105. Proposed paragraphs 34BA(1)(c) and (e) and 34BB(1)(d) and (f); ASIO Act, subsection 34D(4).

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Additional threshold and considerations for minors If the person in relation to whom a warrant is sought is aged 14-17 years, the Attorney-General may only issue the warrant if satisfied that there are reasonable grounds to believe that the person is themselves a person of security interest.106

Before issuing such a warrant, the Attorney-General must consider the best interests of the person, and take account of certain factors in doing so (see further above under ‘Minimum age for subject of warrant’).107

Additional threshold for post-charge or post-confiscation application questioning If a warrant will permit post-charge questioning or post-confiscation application questioning, the Attorney-General may only issue the warrant if also satisfied that it is necessary, for the purposes of collecting the relevant intelligence, that the warrant be issued even though the person has been charged or the confiscation proceeding has commenced, or that charge or proceeding is imminent.108

Urgent applications, warrants and variations The current regime makes no provision for applications to be made or warrants to be issued other than in writing. Nor does it provide for variations to warrants.

The Bill will provide for variations to warrants by the Attorney-General on request by the Director-General of Security, so long as the period the warrant is in force is not extended beyond the existing limit of 28 days.109

The Bill will allow the Director-General of Security to apply for a warrant or variation orally instead of in writing if he or she reasonably believes that the delay caused by making a written request may be prejudicial to security.110 If a request is made orally, the Director-General must make a written record containing certain matters, including why the delay associated with a written request might be prejudicial to security. The record is to be given to the Attorney-General and the IGIS as soon as practicable, and no later than 48 hours from the time of the request.111 The Director-General must also notify the IGIS of an oral request before or as soon as practicable after it is made.112

Likewise, the Attorney-General may issue a warrant or variation orally if satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written warrant or variation may be prejudicial to security.113 The Director-General is required to make a written

106. Proposed paragraph 34BB(1)(b) (specifically, the Attorney-General must be satisfied that ‘there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not’). This is similar to a current restriction on the Attorney-General’s consent to an application for a warrant concerning a person aged 16-17 years: ASIO Act, section 34ZE(4).

107. Proposed subsections 34BB(2)-(4). 108. Proposed paragraphs 34BA(1)(d) and 34BB(1)(e). 109. Proposed section 34BG. 110. Proposed subsections 34B(2) and 34BG(2). 111. Proposed subsections 34B(6) and 34BG(5). 112. Proposed subsections 34B(5) and 34BG(4). 113. Proposed subsections 34BF(1) and 34BG(6).

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record of the warrant or variation (for warrants, setting out the same matters that a written warrant must contain) as soon as practicable, and no later than 48 hours from the time of issue.114

Stakeholder concerns The ALA and McGarrity and Williams considered that given the extent of powers authorised, all requests and warrants should be required to be made in writing to ensure proper accountability and guard against ‘hasty and ill-considered decision making’.115

Several stakeholders, including the LCA and Associate Professor Carne, suggested that the threshold for oral requests and authorisations—that the delay otherwise caused ‘may be prejudicial to security’—is too low or imprecise.116 For example, the LCA stated:

This would appear to make it legally possible for any degree of possible prejudice to security interests to provide grounds for the requesting and issuing of an oral questioning warrant. Further, the low threshold of ‘prejudice’ is assessed by reference to all heads of security in section 4 of the ASIO Act, not merely the particular questioning matters relevant to the warrant. In addition to the broad concepts of espionage, foreign interference and politically motivated violence, this also covers sabotage, attacks on Australia’s defence system, the promotion of communal violence and serious threats to Australia’s territorial and border integrity. It also covers Australia’s obligations to any other country in relation to the above matters.

117 [emphasis in original]

McGarrity and Williams suggested that the threshold for requesting or issuing a warrant orally should be amended to require satisfaction that ‘security will be, or is likely to be, seriously prejudiced’ [emphasis in original].118 Associate Professor Carne suggested that the threshold be limited to substantial prejudice to the ability to obtain intelligence about a questioning matter (instead of any aspect of security).119

The LCA also suggested that warrants issued orally should only remain in force for 48 hours ‘to enable the immediate exercise of a questioning power for a limited duration that is proportionate to an imminent risk’.120

Apprehension framework In line with INSLM and PJCIS recommendations, another key change will be that the new questioning framework will not authorise detention of the kind currently permitted.121 During the PJCIS’s 2017 review of the QW and QDW framework, ASIO stated that if the current detention powers were repealed, it would still require a mechanism in some instances to ensure that a person subject to a warrant appears for questioning, or is prevented from alerting others to ASIO’s interest or destroying relevant material.122 The PJCIS gave its in-principle support for an alternative

114. Proposed subsection 34BF(3) and 34BG(7). 115. ALA, Submission to PJCIS, op. cit., p. 6; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 7-9 (quote taken from this source). 116. LCA, Submission to PJCIS, op. cit., pp. 49-51; Carne, Submission to PJCIS, op. cit., pp. 5-6; McGarrity and Williams, Submission

to PJCIS, op. cit., p. 9; ANU Hub, Submission to PJCIS, op. cit., pp. 11-12. 117. LCA, Submission to PJCIS, op. cit., p. 49. 118. McGarrity and Williams, Submission to PJCIS, op. cit., p. 9. 119. Carne, Submission to PJCIS, op. cit., p. 6. The LCA also suggested an alternative threshold: LCA, Submission to PJCIS, op. cit.,

p. 51.

120. LCA, Submission to PJCIS, op. cit., pp. 51-52. 121. Gyles, Certain questioning and detention powers in relation to terrorism, op. cit., p. 42; PJCIS, ASIO's questioning and detention powers, op. cit., pp. 41, 77. 122. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 27-29, 60-62.

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apprehension framework, ‘possibly with a separate authorisation framework, to ensure attendance at questioning and prevent contact with others or the destruction of information’, but considered that any such power should be limited to compelling the subject of the warrant to attend questioning.123

Apprehension authorised by the Attorney-General Warrants for adults and minors may include an immediate appearance requirement, requiring the subject of the warrant to appear before a prescribed authority for questioning immediately after being notified of that requirement, if the Attorney-General is satisfied that it is reasonable and necessary in the circumstances.124

If a warrant is to include an immediate appearance requirement, the Attorney-General may also authorise the apprehension of the person by a police officer for the purpose of bringing them immediately before a prescribed authority for questioning. This may only be authorised if the Attorney-General is satisfied that there are reasonable grounds for believing that if the person is not apprehended, he or she is likely to:

(i) alert a person involved in an activity prejudicial to security that the activity is being investigated; or

(ii) not appear before the prescribed authority; or

(iii) destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested under the warrant to produce. 125

The Attorney-General may also vary a warrant to include an immediate appearance requirement and authorise apprehension for that purpose when a person has already appeared for questioning but the maximum questioning time has not been reached.126

Apprehension without prior authorisation If a warrant includes an immediate appearance requirement but does not authorise the subject’s apprehension, a police officer may still apprehend the person for the purpose of bringing them immediately before a prescribed authority for questioning. This will only be permitted if, at the time the subject is given notice of the immediate appearance requirement, the subject makes a representation that he or she intends: to alert a person involved in an activity prejudicial to security that the activity is being investigated, to not appear for questioning, or to cause the destruction, damage or alteration of a record or other thing that he or she has been or may be requested to produce under the warrant.127

As is currently the case, a police officer may also apprehend the subject of a warrant if he or she fails to appear before a prescribed authority as required by the warrant or a direction given by the prescribed authority, in order to bring them immediately before a prescribed authority for questioning.128

123. Ibid., pp. 76-77. 124. Proposed subsection 34BE(1). 125. Proposed subsection 34BE(2). 126. Proposed subsections 34BE(5) and (6) and proposed section 34BG. 127. Proposed subsection 34C(2). Representation is defined broadly in proposed subsection 34C(4) to include an express or

implied representation, a representation that could be inferred from conduct, a representation not intended by its maker to be communicated to or seen by another person and a representation that for any reason is not communicated. 128. ASIO Act, subsection 34K(7). Proposed subsection 34C(3).

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Powers while person is apprehended As is currently the case for the detention powers:

• police will have powers to enter premises and use necessary and reasonable force to apprehend the subject of a warrant129

• the subject will be prevented from contacting most people (under the Bill, anyone other than a lawyer, a minor’s representative (if the person is 14-17 years of age) or another person as allowed in the warrant or a direction given by a prescribed authority) while apprehended and130

• a police officer may search the subject and seize certain things.131

However, while the current provisions allow ordinary searches and more intrusive strip searches, the Bill will provide instead for ordinary searches and less intrusive frisk searches.132

Issue: apprehension of minors The proposed apprehension powers will apply to adults and minors subject to warrants, conflicting with a PJCIS finding that apprehension should not be available in relation to minors.133 As noted above, the PJCIS gave its in-principle support for lowering the minimum age for warrants to 14 years of age, but considered that additional oversight and safeguards were essential if that were to be done. One of the limitations it recommended in that context was that minors not be able to be apprehended.134

Other issues The LCA and AHRC considered that despite the changes in terminology, the significant restrictions on a person’s liberty and freedom of movement associated with compulsory attendance for questioning and the proposed apprehension framework effectively amount to detention.135 The LCA stated that it is:

… concerned that the Bill nonetheless retains an effective power of detention. In particular, the Law Council considers that a person’s attendance under a questioning warrant and their prior apprehension (if authorised) amounts to a form of detention, in substance and effect. This is because a person is under pain of criminal penalty if they fail to attend for questioning, or if they decline to answer questions while in attendance, or if they attempt to leave the place of questioning without permission from the prescribed authority. A person who is apprehended for the purpose of being brought in for questioning is also subject to the use of force by the police officers exercising the power of apprehension, should the person attempt to resist apprehension or search while apprehended. Accordingly, the Law Council does not endorse the suggestion in the Explanatory Memorandum that a person’s attendance for questioning before a prescribed authority, and their prior apprehension, does not amount to detention.[emphasis added]

136

129. ASIO Act, sections 34U and 34V; proposed sections 34CA and 34CD. 130. ASIO Act, subsections 34K(10) and (11); proposed section 34CB. 131. ASIO Act, sections 34ZB-34ZD; proposed sections 34CC-34CE (powers to remove, retain and copy materials in proposed section 34CE also apply to things produced before a prescribed authority).

132. Strip search and frisk search are defined in section 4 of the ASIO Act. 133. PJCIS, ASIO's questioning and detention powers, op. cit., p. 80. 134. Ibid., pp. 63-67, 80-81. 135. LCA, Submission to PJCIS, op. cit., p. 14; AHRC, Submission to PJCIS, op. cit., pp. 15-17. On the question of the apprehension

powers specifically, or aspects of them, amounting to detention see also McGarrity and Williams, Submission to PJCIS, op. cit., p. 27; Carne, Submission to PJCIS, op. cit., p. 11. 136. LCA, Submission to PJCIS, op. cit., p. 14. The LCA and AHRC both refer to the fact that the IGIS took a similar position in 2017 in a submission to the PJCIS’s review of the existing powers: IGIS, Supplementary submission 1.2 to PJCIS, Review of ASIO’s

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The AHRC considered that if the Bill proceeds, the apprehension powers should be removed.137 The LCA and others instead recommended that the apprehension powers be narrowed and/or subject to additional safeguards, such as by:

• only providing for apprehension where it has been authorised by a judicial officer

• only permitting apprehension where there are reasonable grounds to believe that questioning will be ready to commence as soon as the individual arrives for questioning and

• if apprehension is on the basis of a representation by an individual subject to a warrant, including a ‘reasonableness test’ in relation to a police officer’s determination that a relevant representation has been made.138

Authority before whom persons are questioned Currently, three classes of person are eligible for appointment by the Attorney-General as prescribed authorities, subject to their consent—those who:

• have previously served as a judge in one or more superior courts for at least five years

• are currently serving as a judge in a Supreme Court or District Court (or an equivalent) and have been for at least five years (but only if the Attorney-General is of the view that there is an insufficient number of former judges to act as prescribed authorities) and

• are a President or Deputy President of the Administrative Appeals Tribunal (AAT), currently enrolled as a legal practitioner of a federal court or of a Supreme Court, and have been so enrolled for at least five years (but only if the Attorney-General is of the view that there is an insufficient number of former and current judges to act as prescribed authorities).139

Under the new framework, three classes of person will be equally eligible for appointment by the Attorney-General as prescribed authorities, subject to their consent and the application of safeguards—those who:

• have previously served as a judge in one or more superior courts for at least five years

• are a President or Deputy President of the AAT, currently enrolled as a legal practitioner of a federal court or of a Supreme Court, and have been so enrolled for at least five years or

• are currently enrolled as a legal practitioner of a federal court or of a Supreme Court, have engaged in practice as a legal practitioner for at least 10 years and currently hold a practising certificate granted under a state or territory law.140

PJCIS finding The PJCIS accepted that the current provisions ‘may lead to a shortage of persons willing and able to serve’ as prescribed authorities.141 It considered that, at a minimum, a prescribed authority ‘must hold a current practicing certificate or be a retired judicial officer of a State Supreme Court, the Federal Court of Australia or the High Court of Australia’, and noted that it would expect

questioning and detention powers, op. cit., p. 6. This issue is not raised in the IGIS’s submission to the PJCIS’s inquiry into the Bill. 137. AHRC, Submission to PJCIS, op. cit., p. 17. 138. LCA, Submission to PJCIS, op. cit., pp. 63-65; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 30-32; Carne, Submission to PJCIS, op. cit., p. 11. 139. ASIO Act, section 34B. 140. Proposed subsections 34AD(1)-(4). 141. PJCIS, ASIO's questioning and detention powers, op. cit., p. 79.

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anyone appointed ‘should have substantially more than five years’ experience as a legal practitioner and would be a person of some eminence’.142 The PJCIS also considered that appointees’ independence should be protected and consideration given to potential conflicts of interest prior to appointment.143

Safeguards A person must not be appointed if he or she holds certain other appointments (such as employment with an intelligence or law enforcement agency), and may only be appointed if the Attorney-General is satisfied that the person has the knowledge or experience necessary to properly perform the duties of a prescribed authority.144

Before appointing a person, the Attorney-General must have regard to actual or potential conflicts of interest.145 Once appointed, the person must inform the Attorney-General of any material personal interest that relates to the proper performance of duties as a prescribed authority.146 The Attorney-General may terminate a person’s appointment as a prescribed authority on certain grounds, including misbehaviour, bankruptcy, possible conflict of interest or failure to comply with the disclosure requirements.147

These requirements are consistent with the PJCIS’s findings about the need for prescribed authorities to have sufficient experience for the role and to avoid conflicts of interest.148

Degree of independence The PJCIS found that to ensure the independence of the authorities before whom a person may be questioned, it is ‘essential’ that the authority ‘not be subject to directions from, nor have his or her decisions overruled by, the Director-General of Security or the Minister’.149

A prescribed authority will not be subject to direction by the Director-General of Security or the Attorney-General in performing the authority’s functions or exercising the authority’s powers, except that certain directions that are inconsistent with the warrant must be approved by the Attorney-General.150

Directions given by prescribed authorities cannot be varied or revoked by the Director-General of Security or the Attorney-General except that:

• an immediate appearance requirement and apprehension may be authorised by a warrant under proposed subsections 34BE(5) and (6) despite any direction given by a prescribed authority under proposed subsection 34DE(1) and

• a direction given by a prescribed authority about confidentiality under proposed subsection 34DF(1) may be varied or revoked under proposed subsection 34DF(3) by the

142. Ibid. 143. Ibid., pp. 79-80. 144. Proposed subsections 34AD(2) and (3). 145. Proposed subsection 34AD(5). 146. Proposed subsections 34AD(6)-(8). 147. Proposed subsection 34AD(9). 148. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 79-80. 149. Ibid., p. 80. 150. Proposed paragraph 34DE(2)(b) and proposed subsection 34DH(2).

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Director-General of Security if the person to whom questioning material relates has been excused or released from further attendance at questioning.151

Stakeholder and Scrutiny of Bills Committee concerns The Scrutiny of Bills Committee and several stakeholders were concerned about the proposed expansion of eligibility for appointment as a prescribed authority, especially the third category of potential appointees (legal practitioners with 10 years or more experience). They considered that the existing provisions better ensure the expertise and independence of prescribed authorities, and noted the importance of this in light of the significant impact of decisions made and directions given by prescribed authorities on individuals’ rights.152 The AHRC and McGarrity and Williams also questioned whether the Government had provided sufficient evidence of difficulties obtaining enough appointees, given the limited use of these warrants to date.153

Some stakeholders suggested that the proposed expansion of eligibility for appointment be removed from the Bill, or that the tiered approach at least be retained.154 The LCA and Associate Professor Carne also suggested that the conflict of interest provisions should be strengthened, including by excluding additional persons from appointment and requiring consideration of past as well as current employment.155

Screening of persons and restrictions on items at locations where questioning occurs The Bill includes a new prohibition on individuals possessing certain items at a place where questioning is taking place under a warrant, and associated new powers to screen and in some instances, search, persons entering such a place.156 DoHA stated that these provisions are ‘intended to ensure the safety of those involved in questioning, and prevent the communication or recording of information disclosed during the questioning process’.157 The PJCIS considered ASIO’s proposal for additional search or screening powers in its review of the QW and QDW regime, and found that the matter ‘should be brought forward for consideration’ in the context of a revised questioning framework.158

A police officer will be permitted to:

• request the screening of a person (including the subject of a questioning warrant) seeking to enter a place where the subject of a questioning warrant is appearing or is due to appear before a prescribed authority

• ask the person to produce things in their possession for inspection, and

151. Proposed subsection 34DH(3). 152. Scrutiny of Bills Committee, Scrutiny digest, 7, op. cit., pp. 2-3; AHRC, Submission to PJCIS, op. cit., pp. 24-25; Carne, Submission to PJCIS, op. cit., pp. 6-8; LCA, Submission to PJCIS, op. cit., pp. 57-62; McGarrity and Williams, Submission to PJCIS, op. cit., pp. 15-18.

153. AHRC, Submission to PJCIS, op. cit., pp. 24-25; McGarrity and Williams, Submission to PJCIS, op. cit., p. 17. 154. AHRC, Submission to PJCIS, op. cit., p. 25; LCA, Submission to PJCIS, op. cit., pp. 58, 60; McGarrity and Williams, Submission to PJCIS, op. cit., p. 18. 155. LCA, Submission to PJCIS, op. cit., pp. 59-61; Carne, Submission to PJCIS, op. cit., pp. 7-8. 156. The prohibition and powers will not apply in relation to communications devices in the possession of ASIO employees or

affiliates or police officers or to dangerous items in the possession of police officers: proposed subsection 34D(11). 157. DoHA, Submission to PJCIS, op. cit., p. 31. 158. PJCIS, ASIO's questioning and detention powers, op. cit., pp. 62, 83.

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• if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying a dangerous item or a communication device, search the person.159

Police may retain dangerous items and communication devices found, ask reasonable questions about things found, and refuse entry if a person fails to comply with certain requests.160 If the subject of a warrant is refused entry, he or she will be taken to have failed to appear for questioning (an offence under proposed section 34GD).161

Lawyers and minor’s representatives

Overview The Act currently imposes limitations and safeguards on a subject’s legal representation in relation to questioning and detention warrants; particular provisions also apply in the case of children aged 16 and 17 as well as to their non-legal representative.162 The proposed safeguards and limitations which will apply to questioning warrants will now be contained within proposed Subdivision F of Division 3 of Part III of the Act. However, given that questioning and detention warrants are being repealed and an ‘immediate appearance’ requirement has been introduced into the questioning warrant framework, the current and proposed provisions are not necessarily directly comparable.

The primary differences between the current and proposed provisions include:

• the prescribed authority will be empowered to appoint a lawyer in certain circumstances— particularly relevant where an immediate appearance requirement applies, or the person is a minor

• an adult will be able to be questioned in the absence of a lawyer if:

- they voluntarily choose to be questioned without a lawyer - an immediate appearance requirement does not apply and they have been given a reasonable amount of time to obtain a lawyer or - their lawyer has been removed for disrupting questioning and a replacement lawyer is not

present within a reasonable period of time • the current limitations on a person’s ability to contact a lawyer of their choice will be extended

• a child (aged 14 to 17) will not be able to be questioned without a lawyer present—however, the lawyer may be an appointed lawyer and

• a minor may be questioned without a non-legal representative—in which case, their lawyer will also act as their non-legal representative.163

Right to contact lawyer and limit on choice A person may contact a lawyer to obtain legal advice at any time after being given notice of the warrant.164 However, the prescribed authority may prevent the person from contacting a lawyer in certain circumstances.165

159. Proposed section 34D. Dangerous item and communication device are defined in proposed section 34A. 160. Ibid. 161. Proposed subsections 34GD(1) and (2). 162. ASIO Act, sections 34E, 34F, 34ZE, 34ZO, 34ZP, 34ZQ, 34ZR and 34ZS. 163. Proposed subsections 34FB(2) and 34FC(2); proposed subsection 34FA(2); proposed subsections 34F(2)-(4) cf. ASIO Act,

section 34ZO; proposed subsection 34FA(1) cf. ASIO Act, subparagraph 34ZE(8)(a)(iii) and paragraph 34E(3)(a); proposed section 34FD. 164. Proposed subsection 34F(1).

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The prescribed authority may prevent the person from contacting a particular lawyer if they are satisfied, on the basis of circumstances relating to the lawyer, that a person involved in an activity prejudicial to security may be alerted that the activity is being investigated or a record may be destroyed, damaged or altered.166 The person may contact a different lawyer; however, the same restriction applies.

The ALA considers this restriction could be abused by ASIO because the prescribed authority would need to base its decision on information presented to it by ASIO.167 The LCA also objects on the basis that access to the person’s lawyer of choice ‘is integral to the ability of a warrant subject to effectively exercise their right to challenge the legality of the warrant and its execution’.168

Legal representation under a QW: immediate appearance requirement The amendments to the questioning framework introduce warrants for adults and minors which may include an immediate appearance requirement (discussed above under ‘Apprehension framework’). If a warrant contains an immediate appearance requirement, the prescribed authority must give certain directions which affect an adult’s legal representation and, in the case of a child, both their legal and non-legal representation.

Proposed section 34FB sets out requirements in relation to lawyers for adults under QWs—these requirements apply if a lawyer is not present during questioning and the person requests a lawyer be present.169 If a warrant contains an immediate appearance requirement, the prescribed authority must direct that a lawyer be appointed for an adult and that they be questioned in the presence of the lawyer and direct that the adult be given facilities to contact a lawyer other than the appointed lawyer.170

Proposed section 34FC sets out requirements in relation to lawyers for minors under QWs. It is proposed that minors cannot be questioned without a lawyer—accordingly, if a warrant contains an immediate appearance requirement and a lawyer for the minor is not present for questioning under the warrant, the prescribed authority must direct:

• that a lawyer be appointed for the minor and that they be questioned in the presence of the lawyer and

• direct that the minor be given facilities to contact a lawyer other than the appointed lawyer.171

Legal representation under a QW: no immediate appearance requirement If a warrant does not include an immediate appearance requirement, the prescribed authority must give certain directions.

In the case of an adult:

165. Proposed subsections 34F(2) and (3). 166. Proposed subsection 34F(4). 167. ALA, Submission to PJCIS, op. cit., p. 7. 168. LCA, Submission to PJCIS, op. cit., p. 74. See also: McGarrity and Williams, Submission to PJCIS, op. cit., pp. 20-21. 169. Proposed subsection 34FB(1). 170. Proposed subsection 34FB(2). 171. Proposed subsections 34FC(1) and (2).

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1. questioning must be deferred to such a time as the prescribed authority considers reasonable to enable the subject’s lawyer to be present and facilities must be provided to enable contact with their lawyer or

2. if the prescribed authority is satisfied that such time as is reasonable to enable a lawyer to be present during the questioning has passed and a lawyer is not present, the prescribed authority must direct that the person may be questioned in the absence of a lawyer.172

In the case of a minor:

1. questioning must be deferred to such a time as the prescribed authority considers reasonable to enable the subject’s lawyer to be present and facilities must be provided to enable contact with their lawyer or

2. if the prescribed authority is satisfied that such time as is reasonable to enable a lawyer to be present during the questioning has passed and a lawyer is not present, the prescribed authority must direct that the minor be questioned in the presence of an appointed lawyer.173

Reasonable amount of time

The Bill does not provide parameters on what a reasonable amount of time is for a person’s lawyer to attend. The Explanatory Memorandum states:

…the prescribed authority may take into account the time the subject has already had to arrange for a lawyer to be present, for example, where the person has had several days’ notice of the questioning, the prescribed authority may consider that a reasonable time has already been provided. 174

The Explanatory Memorandum considers that questioning an adult without a lawyer (or a minor with an appointed lawyer) may be necessary to prevent questioning being indefinitely deferred by, for example, the person refusing to contact a lawyer, or contacting a lawyer who cannot be present in a reasonable time, for example because they are overseas.175

The LCA is of the view that at least in relation to minors, a reasonable amount of time should commence from the time of appearance under the warrant, as ‘there may be many genuine, developmentally appropriate reasons that a child had not attempted to arrange legal representation prior to their appearance despite having several days’ notice’.176

Appointed lawyers There aren’t any specific provisions which deal with who may be an ‘appointed lawyer’, except that they would appear to be required to be a ‘lawyer’ as defined in proposed section 34A.177 According to the Explanatory Memorandum to the Bill, they are a ‘lawyer of the prescribed authority’s choosing, who is available to appear immediately for the subject’.178 Stakeholders have raised concerns about the appointment of lawyers. For example, McGarrity and Williams consider that questioning be deferred until a person’s lawyer of choice arrives as a person may perceive that an appointed lawyer is not impartial.179 The LCA has expressed concerns that the Bill does not

172. Proposed subsection 34FB(3). 173. Proposed subsection 34FC(3). 174. Explanatory Memorandum, op. cit., pp. 85 and 87. 175. Ibid. 176. LCA, Submission to PJCIS, op. cit., pp. 35-36. 177. ‘Lawyer’ is defined in proposed section 34A of the ASIO Act. 178. Explanatory Memorandum, op. cit., p. 84. 179. McGarrity and Williams, Submission to PJCIS, op. cit., p. 19.

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create a transparent scheme for appointing lawyers and recommends that proposed Subdivision F be amended to include a regulation-making power so that the regulations can specify minimum requirements for appointed lawyers.180

Questioning without a lawyer present

Minors It is proposed that a minor may never be questioned under a questioning warrant without a lawyer, however, as discussed above, the lawyer may be an appointed one.181

The LCA supports the requirements that minors ‘must be given access to a lawyer, can only be questioned in the presence of a lawyer, and must be given an opportunity to contact a lawyer of their choice if they attend for questioning without a legal representative’.182 However, the LCA also recommends that the Bill is amended to make provision for an Independent Child Advocate who can assist the minor with matters such as ‘whether to seek to contact a lawyer of their choice, how to select a lawyer, and to be supported in making contact with that lawyer if required’.183

Adults It is proposed that an adult may be questioned in the absence of a lawyer in the following circumstances:

• they choose to be questioned in the absence of a lawyer

• they have been given reasonable time to contact a lawyer and the prescribed authority directs questioning take place—this only applies if the warrant does not contain an immediate appearance requirement or

• their lawyer has been removed for disrupting questioning and a replacement lawyer is not present within a reasonable period of time.184

It is not clear whether this proposed restriction is comparable to current restrictions in the Act— for example, subsection 34ZP(1) (which is framed as ‘for the avoidance of doubt’), states that a person before a prescribed authority for questioning may be questioned under the warrant in the absence of a lawyer ‘of the person’s choice’. While a questioning warrant must specify that a person can contact a lawyer of their choice, there does not appear to be a prohibition on questioning a person in the absence of their lawyer of choice, or in fact a lawyer, before they arrive.185 At the very least proposed subsection 34FA(2) clarifies when a person can be questioned without a lawyer.

Minors: right to representative Proposed section 34FD sets out requirements in relation to non-legal representation for minors questioning warrants. A minor’s representative is a parent, guardian or another person who is able to represent the minor’s interests. A minor’s representative cannot be a police officer, the

180. LCA, Submission to PJCIS, op. cit., pp. 73-74. 181. Proposed subsection 34FA(1). 182. LCA, Submission to PJCIS, op. cit., p. 33. 183. Ibid. 184. Proposed subsection 34FA(2), proposed paragraphs 34FB(3)(b) and 34FF(7)(c). 185. ASIO Act, subsections 34E(3) and 34ZP(1). A similar issue also appears to arise if the lawyer is removed under subsection

34ZQ(9). See also: McGarrity and Williams, Submission to PJCIS, op. cit., p. 19.

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Director-General of Security, an ASIO employee or affiliate, or a person authorised to exercise authority under a warrant or device recovery provision under the Act.186

Entitlement to a representative who is not also the minor’s lawyer depends on whether there is an immediate appearance requirement or not.187 However, unlike a minor’s lawyer who may be prevented from being contacted on security grounds, this restriction does not appear to apply to contact with a minor’s representative.

Immediate appearance requirement If the questioning warrant contains an immediate appearance requirement and the minor’s representative is not present, the lawyer for the subject (who may be an appointed lawyer) will also be the minor’s representative and the minor must be given the facilities to contact a non-lawyer representative.188 The lawyer will not be the minor’s representative if a non-lawyer representative is present.189

This is a departure from the existing provisions, under which a draft warrant may only authorise questioning of the minor if a parent, guardian or other suitable person is present and, if their presence is requested by the minor, the prescribed authority must direct everyone proposing to question the minor not to do so in the person’s absence.190

The LCA considers that an Independent Child Advocate should be present at the questioning of all minors, because, among other reasons, the LCA ‘does not consider it reasonable to expect or assume that a child’s lawyer will always be equipped to support the entirety of a child’s non-legal needs during questioning, while simultaneously providing legal services’.191

The Human Rights Committee raised a number of issues in relation to the questioning of minors and in particular, the ability to be accompanied by a parent or guardian.192 While the Committee considers that the measures are accompanied by appropriate safeguards, it suggested that the measures would be more proportional if the Bill required that a minor only be questioned in the presence of both a lawyer and a minor’s representative, and if the minor has not themselves provided such a representative, or does not wish to nominate such a person, an independent minor’s representative be appointed for them.193

No immediate appearance requirement If the questioning warrant does not contain an immediate appearance requirement and the minor requests a representative, the prescribed authority must direct:

• that questioning be deferred for such time as the prescribed authority considers reasonable to enable the minor to contact a representative and for them to be present during questioning or

186. Proposed section 34AA; ASIO Act, section 24. 187. Proposed subsection 34FD(1). 188. Proposed subsections 34FD(1) and (2). 189. Proposed paragraph 34FD(1)(b). 190. ASIO Act, paragraphs 34ZE(6)(b), 34ZE(8)(b) and (c). 191. LCA, Submission to PJCIS, op. cit., p. 35. 192. PJCHR, Human rights scrutiny report, 7, op. cit., pp. 51-53. 193. PJCHR, Human rights scrutiny report, 9, op. cit., pp. 69-70.

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Australian Security Intelligence Organisation Amendment Bill 2020 37

• that the minor be questioned if the prescribed authority is satisfied that such time as is reasonable to enable a representative to be present has passed and a lawyer is present (which may be an appointed lawyer).194

In the case of a questioning warrant that does not contain an immediate appearance requirement, the minor can voluntarily choose not to request a representative, in which case, the lawyer for the minor (who may be appointed) will also be their representative.195

Removal of minor’s representative If a prescribed authority considers that the minor’s representative’s conduct is ‘unduly disrupting’ questioning of the subject, the prescribed authority may direct that the minor’s representative be removed.196

If the QW includes an immediate appearance requirement, then the prescribed authority must direct that questioning continue so long as a lawyer is present.197 As noted above, this differs from the current provisions, which require a representative be present in order to question a minor under a QW.198

If the QW does not include an immediate appearance requirement and the minor requests a replacement, the prescribed authority must:

• defer questioning for such time as the prescribed authority considers reasonable to enable the representative to be present during questioning or

• if the prescribed authority is satisfied that such time as is reasonable to enable a representative to be present during the questioning has passed-direct that the minor may be questioned without the representative.199

McGarrity and Williams highlight ‘that a minor may be questioned by ASIO officers in an intimidating setting before a prescribed authority without having any familiar support with them’ and recommend that a minor should never be questioned in the absence of a parent, guardian or other non-legal representative.200 Similarly, the LCA is of the view that a minor’s representative could possibly be removed if they do anything but remain silent during questioning:

Given the importance of the presence of a non-lawyer representative to the best interests of the child, the Law Council considers it necessary for the Bill to provide a clear right for such persons to raise concerns during questioning. Importantly, a child’s parent or guardian will likely have detailed knowledge of the child, and may be able to identify signs of distress, anxiety or illness in the child that may not be evident to others who have only met the child at the place of questioning. The Law Council recommends that there should be a statutory right for non-lawyer representatives to raise concerns with the IGIS or the Ombudsman (as applicable) during questioning; to approach the child’s lawyer; and to liaise with [an] Independent Child Advocate.

201

194. Proposed subsection 34FD(3). 195. Proposed subsection 34FD(4). 196. Proposed subsection 34FG(1) and (2). 197. Proposed subsection 34FG(3) and paragraph 34FG(4)(d). 198. ASIO Act, paragraph 34ZR(3)(b). 199. Proposed subsection 34FG(4). 200. McGarrity and Williams, Submission to PJCIS, op. cit., pp. 26-27. 201. LCA, Submission to PJCIS, op. cit., p. 37.

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Obtaining a copy of a QW A person’s lawyer must be given a copy of the warrant and certain other documents on request. However, the Director-General may make deletions which they consider ‘necessary in order to avoid prejudice to security, the defence of the Commonwealth, the conduct of the Commonwealth’s international affairs or the privacy of individuals’.202 The Explanatory Memorandum states that ‘[i]t is appropriate to limit the lawyer’s ability to see the entirety of these documents given the high likelihood that such documents will contain highly sensitive national security information’.203

The ability to delete such content does not appear to be a feature of the current regime—under subsection 34ZQ(4) of the Act, a person’s lawyer is entitled to received ‘a copy of the warrant’ but no provision appears to be made for redactions.

The LCA recommends that a lawyer be given sufficient information to advise their client on the validity of the questioning warrant and acts done under the purported authority of the warrant. McGarrity and Williams argue that the Director-General’s decision to redact should be reviewable, while lawyers who hold the appropriate security clearance should be able to view the complete warrant.204

Use and disclosure of questioning material and derivative material

PJCIS finding As noted under ‘Post-charge and post-confiscation application questioning’ above, the PJCIS considered that if the Act is amended to allow a person to be questioned on matters related to an offence with which they have been charged, that change must be accompanied by adequate safeguards (as a minimum, equivalent to those in the ACC Act).205

Provisions Proposed subdivision E of Division 3 of Part III of the Act will insert provisions about obtaining derivative material, and the use of derivative material and questioning material. The proposed provisions are modelled on sections 25B-25H of the ACC Act.

Questioning material is defined in the Bill,206 as is derivative material.207 In brief, questioning material is information gained as a direct result of questioning a subject before a prescribed authority, whereas derivative information is further information gained through the use of the information contained in questioning material.

Proposed section 34E sets out the circumstances in which questioning material can be used or disclosed to obtain derivative material. These include both pre-charge and post-charge questioning material; as well as both pre- and post-confiscation action material. There are a number of entities who will be permitted to use the obtained information including the Director-General of Security, investigators, prosecutors and proceeds of crime authorities.

Questioning material and derivative material can lawfully be provided to a prosecutor of the subject of the warrant, by anyone who can lawfully disclose that information more generally.208

202. Proposed subsection 34FE(1) and (4). 203. Explanatory Memorandum, op. cit., p. 89. 204. LCA, Submission to PJCIS, op. cit., pp. 76-77; McGarrity and Williams, Submission to PJCIS, op. cit., p. 23. 205. PJCIS, ASIO's questioning and detention powers, op. cit., p. 81. 206. Proposed section 34AB. 207. Proposed section 34A. 208. Proposed sections 34EA and 34EB.

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Such disclosures may only be made post-charge under a court order.209 For questioning material to be lawfully disclosed to a prosecutor of the subject, there must be a link between the nature of the material and the nature of the offence with which the person is being prosecuted.210

A court may also order that material be disclosed to the prosecutor of a subject in the interests of justice and despite any direction about confidentiality given by a prescribed authority. The court can do this on request or on its own initiative.211 This information may be disclosed where the subject has been charged with an offence, either in a state or federal court.212 The provisions clarify that a person’s trial is not unfair only because the person was the subject of a questioning warrant, even if the person was subject to such a warrant after being charged with the relevant offence.213

The purposes for which material held by a prosecutor of the subject will be permitted to be used include deciding whether to proceed with a prosecution of the subject or not, and as evidence in a prosecution of the subject. This is subject to any other law of the Commonwealth, a state or a territory, including, presumably, Evidence Acts.214

A person who may lawfully disclose material will also be permitted to disclose that material to a proceeds of crime authority. Once in the possession of the proceeds of crime authority, the material can be used for evidentiary purposes, unless it is inadmissible for some other reason.215

Offences Division 3 of Part III of the Act contains three different sets of offences:

• secrecy offences that apply to disclosures other than permitted disclosures, of operational information and/or information relating to a warrant, questioning or detention while the warrant is in force, and certain information in the two years after the warrant expires (maximum penalty: five years imprisonment)

• offences for contravening safeguards, such as conditions or restrictions in a warrant, directions given by a prescribed authority and questioning time limits (maximum penalty: two years imprisonment) and

• offences that apply to individuals in relation to whom a warrant has been sought or made, such as failing to appear for questioning, failure to provide information and leaving Australia without permission after having been informed of the issue of a warrant (maximum penalty: five years imprisonment).

Offences of each type are included in the Bill. They are largely similar to the existing offences and carry the same maximum penalties.216 The main differences are that:

• unlike the current provisions, there is no express exclusion of the secrecy offences to the extent that they would infringe any constitutional doctrine of implied freedom of political communication and217

209. Proposed paragraphs 34EA(1)(b) and 34EB(1)(b) and proposed subsection 34EC(1). 210. This is consistent with the definition of prosecutor of the subject in proposed section 34A, which talks about prosecuting a person for a related offence (defined in the same provision). 211. Proposed section 34EC. 212. Proposed subsection 34EC(2). 213. Proposed paragraph 34EC(4)(d). 214. Proposed section 34EE. 215. Proposed section 34EF. 216. Proposed section 34GF (secrecy; operational information is defined in proposed subsection 34GF(5) and permitted disclosure

is defined in proposed subsections 34GF(5)-(12)); proposed section 34GE (contravening safeguards); proposed subsections 34G-34GD (other offences). 217. ASIO Act, subsection 34ZS(13); proposed section 34GF.

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Australian Security Intelligence Organisation Amendment Bill 2020 40

• offences for contravening safeguards have been updated to reflect changes elsewhere in the Bill, in particular:

- offences for contravening safeguards relating to strip searches are not included in the Bill as strip searches will no longer be permitted - an offence relating to the taking into custody of a person has been replaced by an offence relating to a person’s apprehension, reflecting the shift from detention to apprehension

powers and - a new offence for contravening directions about the confidentiality of questioning material, reflecting the inclusion of the ability to make such directions as a safeguard in the context of

permitting post-charge and post-confiscation application questioning.218

Sunset and review of revised framework The Bill provides that Division 3 of Part III of the Act will cease to have effect on 7 September 2030, a sunset period of approximately 10 years.219 As some stakeholders have suggested:

• a shorter sunset period might be more appropriate given the extraordinary nature of the framework (despite the repeal of the existing detention powers) and the significant re-design and expansion of the framework contained in the Bill and

• it may be desirable to amend the Bill to require the INSLM and PJCIS to complete pre-sunset reviews of the revised framework.220

Other provisions The Bill includes equivalent or similar provisions to the existing framework with respect to:

• the maximum period a warrant may remain in force

• the maximum permitted questioning time, including extensions

• protection of legal professional privilege

• restrictions on contact with third parties

• oversight by the IGIS

• reporting requirements

• availability of judicial review and

• certain other accountability requirements and safeguards, including:

- the requirement for a written statement of procedures on the exercise of authority under warrants - the requirement to treat a person subject to a warrant humanely - the ability to make a complaint to certain bodies and - access to interpreters. For further details, see the comparison table in the Appendix.

218. ASIO Act, 34ZF; proposed section 34GE. 219. Proposed section 34JF. 220. LCA, Submission to PJCIS, op. cit., pp. 98-99; Carne, Submission to PJCIS, op. cit., pp. 16-17; Save the Children, Submission to PJCIS, op. cit., p. 4.

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Australian Security Intelligence Organisation Amendment Bill 2020 41

Tracking devices

Key issues and provisions Schedule 2 provides for proposed amendments in relation to the tracking device framework under the ASIO Act.

Modernising definitions related to surveillance devices Currently, the ASIO Act defines a tracking device as a device or substance that, when installed in or on an object, enables a person to track the object or a person using or wearing the object. To track an object or person is defined as being aware of the movement of the object or person from place to place. A surveillance device is defined to include a tracking device and device is defined to include an ‘instrument, apparatus or equipment’.221

The Government’s intention is to modernise ASIO’s powers and capabilities through updating definitions relevant to the surveillance device framework under the ASIO Act.222 Item 2 of Schedule 2 to the Bill amends the definition of device to include ‘any other thing (whether tangible or intangible)’. The Explanatory Memorandum notes that the intention of the amendment in this item is to ensure that the proposed definition ‘captures all relevant things that could be used to listen, observe or track a person or object’.223 The Explanatory Memorandum further notes:

The new definition is technologically neutral and is intended to capture, among other things, electronic and non-electronic devices, instruments, apparatus, equipment, substances and any other things. The definition is not intended to be exhaustive and will apply to both tangible objects and non-tangible things, for example, remote tracking. This change will apply to the definitions of listening device and optical surveillance device and ensures that ASIO will be able to use the most technologically and operationally appropriate method of surveillance to give effect to a warrant issued under Subdivision D of Division 2 of Part III of the ASIO Act.

224

Item 5 repeals the current definition of tracking device and replaces it with a new definition where tracking device ‘means any device capable of being used (whether alone or in conjunction with any other device) to track a person or an object’. Item 4 repeals and replaces the definition of track, so that to track a person or an object means to determine or monitor the location of the person or object, or the status of the object.

The Explanatory Memorandum argues that these changes will ‘will enable ASIO to maintain the effectiveness of its intelligence gathering techniques and capabilities…with the ability to use any technology it has access to, where appropriate and subject to strict accountability requirements and restrictions.’225 The Explanatory Memorandum also notes that the amendments better align the definitions of different surveillance devices under the ASIO Act with the Surveillance Devices Act 2004. The Government argues that aligning definitions will ‘assist ASIO employees and affiliates in the practical application of the legislation.’226

221. ASIO Act, section 4. 222. Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020, p. 119. 223. Ibid., p. 120. 224. Ibid. 225. Ibid. 226. Ibid.

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Stakeholder views The ANU Law Reform and Social Justice Research Hub noted that technological advances justify a transformation in the conduct of surveillance and acknowledged that updating the definition of tracking device is a sensible step in modernising ASIO’s powers.227 The advocacy group Digital Rights Watch noted that while it appreciated the need to align definitions, it recommends keeping categories of devices explicitly listed under the proposed definition.228 The organisation argues that the proposed broad definition of tracking devices ‘erodes the integrity of existing definitions in other texts and poses a serious threat to the privacy of individuals and the integrity of any such devices’.229

Internal authorisation for use of tracking device The Bill provides for a new authorisation framework whereby ASIO can use tracking devices with internal authorisation. Currently, the Attorney-General may issue a surveillance device warrant in relation to a particular person, particular premises, or an object or class of object; and in respect of more than one kind of surveillance device and more than one surveillance device of any particular kind.230 Such a warrant is needed under the current framework for the use of any type of tracking device by ASIO.

The threshold for this warrant differs depending on whether the warrant relates to a person, premises or object/class of object, but each relates to obtaining intelligence relevant to security where a person is engaged in or reasonably suspected by the Director-General of being engaged in or likely to engage in, activities prejudicial to security.231

The Bill provides for a new regime whereby in certain circumstances less intrusive tracking devices can be used by ASIO without a warrant but instead with an internal authorisation. Item 8 inserts proposed Subdivision DA into Division 2 of Part III of the ASIO Act. The proposed subdivision provides for the requirements around the use of tracking devices by ASIO under internal authorisation.

An ASIO employee or ASIO affiliate can make a request for an authorisation in respect of a matter that is important in respect to security (the security matter) in relation to a particular person or an object or class of object.232 Security is defined in the ASIO Act as the protection of the Commonwealth and its states and territories and its people from:

• espionage

• sabotage

• politically motivated violence

• promotion of communal violence

• attacks on Australia’s defence system or

• acts of foreign interference.233

227. ANU Law Reform and Social Justice Research Hub, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 26 June 2020, p. 14. 228. Digital Rights Watch, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, n.d, p. 3. 229. Ibid. 230. ASIO Act, subsections 26(1) and (2). Warrants may be issued by the Director-General in emergency circumstances: section 29. 231. Ibid., subsections 26(1), (3) and (4). 232. An ASIO affiliate is a person who performs functions or services for ASIO in accordance with a contract, agreement or other

arrangement (see ASIO Act, section 4). 233. ASIO Act, section 4.

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Security also means the protection of Australia’s territorial and border integrity from serious threats and the carrying out of Australia’s responsibilities to a foreign country in relation to any of the above.234

The application must include a statement of the facts on which the applicant considers it necessary that the authorisation be given, the extent to which it would assist the collection of intelligence in respect of the security matter and the period the applicant considers the authorisation should remain in force (not exceeding 90 days).235

The internal authorisation is given by the Director-General of ASIO or an ASIO employee or affiliate holding or acting in a position at the Special Executive Service (SES) level or higher.236 This authorising officer must be satisfied that there are reasonable grounds for believing that:

• if the authorisation is requested in relation to a particular person (whose identity does not have to be known)237 —the use by ASIO of a tracking device in relation to the person will, or is likely to, substantially assist the collection of intelligence in respect of the security matter and

• if the authorisation is requested in relation to an object or class of object—the use by ASIO of a tracking device in or on that object, or an object of that class, will, or is likely to, substantially assist the collection of intelligence in respect of the security matter.238

The internal authorisation can be given in writing or orally in person or over the telephone and must specify the following information:

• the relevant security matter

• the day and time the authorisation is given

• if the authorisation is given in relation to a particular person—the name of the person (if known) or the fact that the person’s identity is unknown

• if the authorisation is given in relation to an object or a class of object—the object or class of object

• the restrictions or conditions (if any) to which the authorisation is subject and

• the period for which the authorisation is to remain in force (being a period that the officer considers reasonable and necessary in the circumstances and which must not exceed 90 days).239

An internal authorisation can be varied by an authorising officer on the request of an ASIO employee or ASIO affiliate.240 The authority conferred by the internal authorisation can also be exercised on behalf of ASIO by an ASIO employee or an ASIO affiliate.241

The Minister’s second reading speech notes that the proposed internal authorisation process will bring ASIO’s use of tracking devices in line with law enforcement agencies as these agencies are

234. Ibid. 235. Proposed subsections 26G(1)-(4). 236. See proposed definition of authorising officer at item 1 of Schedule 2. 237. Proposed subsection 26G(7). 238. Proposed subsection 26G(6). 239. Proposed subsection 26H(2)-(3). If the internal authorisation is given orally, proposed subsection 26H(5) requires that the

specified information is recorded in writing within 48 hours. 240. Proposed section 26N. 241. Proposed section 26M.

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already ‘permitted to internally authorise non-intrusive tracking devices under the Surveillance Devices Act 2004’.242

What is permitted by internal authorisation? An internal authorisation given to an ASIO employee or affiliate can authorise ASIO to do one or more of the following without a warrant in relation to a particular person:

• install, use or maintain one or more tracking devices to track the person

• install, use or maintain one or more tracking devices in or on any object used or worn, or likely to be used or worn, by the person

• install, use or maintain enhancement equipment in relation to the device or devices referred to above

• enter into or onto, or alter, the object that is to be worn or used by the person

• anything reasonably necessary to conceal the fact that anything has been done in accordance with the authorisation and

• any other thing reasonably incidental to any of the above.243

An internal authorisation given to an ASIO employee or affiliate can authorise ASIO to do one or more of the following without warrant in relation to an object or class of object:

• install, use or maintain one or more tracking devices in or on the specified object, or an object of the specified class

• install, use or maintain enhancement equipment in relation to the device or devices

• enter into or onto, or alter, the specified object, or an object of the specified class

• anything reasonably necessary to conceal the fact that anything has been done in accordance with the authorisation and

• any other thing reasonably incidental to any of the above.244

Safeguards Importantly, despite the above, an internal authorisation cannot authorise the following activities:

• the doing of anything that would involve either or both of the following

- entering premises without permission from the owner or occupier of the premises - interference with the interior of a vehicle without permission of the person having lawful possession or control of the vehicle • the remote installation of a tracking device or enhancement equipment in relation to the device

• the installation, use or maintenance of a tracking device, or enhancement equipment in relation to the device, to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person

• the doing of any act by ASIO that would need to be authorised by a computer access warrant under the Act.245

242. P Dutton, ‘Second reading speech: Australian Security Intelligence Organisation Amendment Bill 2020’, House of Representatives, Debates, 13 May 2020, p. 3231. 243. Proposed subsection 26J(1). 244. Proposed subsection 26J(2). 245. Proposed section 26K.

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In effect this means that internal authorisations can only be used for less intrusive tracking devices, such as for example a device placed on a person’s bag.246

Additional safeguards provided for by the Bill are as follows:

• an authorising officer is required to take necessary steps to ensure that action under the internal authorisation is discontinued if the officer is satisfied that the grounds on which an internal authorisation was given have ceased to exist247

• the creation of a register of internal authorisations that contains detailed information in relation to each request for an internal authorisation248

• the Director-General must give a report to the Attorney-General with specified information within three months from when a granted internal authorisation ceases to be in force249 and

• ASIO’s annual report must include a statement of the total number of requests for internal authorisations and the number of internal authorisations given.250

Stakeholder concerns The Law Council of Australia considers that the ‘proposed internal authorisation framework represents a significant devolution of responsibility for the authorisation of ASIO’s use of intrusive, covert surveillance.’251 While acknowledging that the proposed framework contains certain safeguards, the Law Council expressed concern in relation to the following:

 the operational necessity of an internal authorisation framework;

 the appropriateness of aligning ASIO’s authorisation framework for the use of an intrusive intelligence-collection power with that of the AFP;

 the overbreadth of several provisions of the proposed scheme;

 limitations in ministerial visibility and accountability;

 the absence of an unclassified annual reporting requirement on ASIO’s use of the internal authorisation framework (comprising aggregated statistics); and

 the urgent need for updates to, and periodic reviews of, ASIO’s Guidelines to reflect this major devolution of authority (among other pressing matters). 252

GetUp! flagged the proposed changes to tracking and surveillance powers as an area of concern under the Bill, arguing that it would give ASIO ‘the power to slip a “non-intrusive” tracking device into, for example, an open handbag, without external authority or a warrant in some circumstances’.253

246. P Dutton, ‘Second reading speech: Australian Security Intelligence Organisation Amendment Bill 2020’, House of Representatives, Debates, 13 May 2020, p. 3231. 247. Proposed section 26P. 248. Proposed section 26Q. 249. Proposed section 34AAB, at item 17 of Schedule 2 to the Bill. 250. Proposed subsection 94(2BD), at item 21 of Schedule 2. 251. Law Council of Australia, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill

2020, 3 July 2020, p. 104. 252. Ibid. 253. GetUp!, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 1 July 2020, p.

3.

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The advocacy group Civil Liberties Australia strongly opposes the proposed amendments to the surveillance device framework and notes that the current system which requires external authorisation remains appropriate where the use of such devices is needed.254 The ANU Law Reform and Social Justice Research Hub has noted that internal authorisation ‘considerably undermines the role of judicial review which ensures the accountability of executive government’ and argues that this expansion of power is not proportionate to the security threats currently facing ASIO.255

Associate Professor Greg Carne of the University of New England School of Law argues that there are valid reasons as to why an Attorney-General warrant is required for the use of tracking devices - namely the intrusive nature of the devices and the need for procedural checks and balances.256 Professor Carne further contends that the proposed amendments that broaden the definition of tracking devices in the ASIO Act reinforce the need to retain the warrant framework.257 Similarly, Digital Rights Watch argues that internal authorisation is not a satisfactory substitute for a warrant.258

PJCHR and scrutiny committee concerns The PJCHR noted that internal authorisation engages and limits the human right to privacy, but that this right is subject to permissible limitations if they are shown to be reasonable, necessary and proportionate. The PJCHR noted that the proposed amendments seek to achieve the legitimate objective of protecting the Australian community from threats to national security. The Committee sought further information from the Minister in order to assess the proportionality of the proposed amendments.259

After receiving advice from the Minister and relevant legal advice, the PJCHR subsequently recommended the following in order to assist the proportionality of the proposed framework:

• the Bill be amended to provide that an internal authorisation may only be issued orally in circumstances where there is a particular urgency

• the Bill be amended to provide that the use of a tracking device pursuant to an internal authorisation must be reviewed by the Director-General within a specified timeframe and

• the ASIO Guidelines should be revised to provide more specific guidance as to the use of any internal authorisation powers.260

The Scrutiny of Bills Committee noted that the ability to obtain internal authorisation for the use of tracking devices may significantly ‘trespass on a person’s rights and liberties.’261 After receiving advice from the Minister on the Bill, the Committee subsequently recommended the following (given the trespass on a person’s rights and liberties):

254. Civil Liberties Australia, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 22 June 2020, pp. 2-3. 255. ANU Law Reform and Social Justice Research Hub, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 26 June 2020, p. 15. 256. G Carne, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020, 12 June 2020,

pp. 18-19. 257. Ibid., p. 19. 258. Digital Rights Watch, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill 2020,

n.d, p. 3.

259. PJCHR, Human rights scrutiny report, 7, op. cit., pp. 67-68. 260. PJCHR, Human rights scrutiny report, 9, op. cit., p. 114. For the Minister’s response to the PJCHR’s original report, see: Letter from C Porter (Acting Minister for Home Affairs) to S Henderson (Chair of PJCHR) in PJCHR, Responses from legislation proponents, Report 9 of 2020, pp. 3-41.

261. Scrutiny of Bills Committee), Scrutiny digest, 7, op. cit., p. 12.

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• proposed sections 26G and 26H (the key internal authorisation provisions) should be amended to provide that an internal authorisation may only be requested and approved orally in circumstances of particular urgency and

• item 21 of Schedule 2 to the Bill (information to be provided in the annual report) should be amended to make it clear that statistical information in relation to the total number of requests for internal authorisations made and the total number of authorisations given must be included in ASIO's unclassified annual report which is tabled in both Houses of the Parliament.262

Recovery of tracking devices under authorisation If a tracking device is installed, used or maintained under an internal authorisation, ASIO is also authorised to do any of the following:

• recover the tracking device or any enhancement equipment in relation to the device

• anything reasonably necessary to conceal the fact that anything has been done under proposed subsection 26L(1) to recover the tracking device and

• any other thing reasonably incidental to any of the above.263

These actions can be conducted:

• at any time while the authorisation is in force or within 28 days after it ceases to be in force

• or if the device or equipment is not recovered within this period—at the earliest time, after the 28 days, at which it is reasonably practicable to do the things concerned.264

In addition, if a tracking device or enhancement equipment in relation to the device is not recovered while the authorisation is in force, ASIO is also authorised to use the device or equipment solely for the purposes of the location and recovery of the device or equipment.265

The authority conferred by proposed section 26L can be exercised on behalf of ASIO by an ASIO employee or an ASIO affiliate.266

The actions that an internal authorisation cannot authorise discussed above, apply equally to the recovery of tracking devices.267 This means that for example, ASIO cannot enter private premises or the interior of a vehicle to recover a tracking device under the granted internal authorisation.268

Warrants for recovery of tracking devices The ASIO Act currently provides for the recovery of surveillance devices installed or used under a surveillance device warrant.269 As noted above, where a tracking device is used under an internal authorisation, proposed section 26L also authorises the device’s recovery. Intrusive actions however, such as the entering of premises without consent, cannot be taken to retrieve the device under authorisation (proposed section 26K).

The Bill therefore creates a new warrant framework to allow for the recovery of tracking devices used under internal authorisation in circumstances such as these. Under the new framework, the

262. Scrutiny of Bills Committee), Scrutiny digest, 9, op. cit., pp. 37-38. For the Minister’s response to the Scrutiny of Bills Committee’s original report, see: Letter from P Dutton (Minister for Home Affairs) to H Polley (Chair of the Scrutiny of Bills Committee) in Scrutiny of Bills Committee, Ministerial responses, Report 7 of 2020, pp. 1-18 (letter dated 21 July 2020).

263. Proposed paragraphs 26L(1)(a)-(c). 264. Proposed paragraphs 26L(1)(d)-(e). 265. Proposed subsection 26L(2). 266. Proposed section 26M. 267. Proposed section 26K. 268. Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020, p. 125. 269. See subsection 26B(5) of the ASIO Act.

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Director-General of ASIO can request the Attorney-General to issue a warrant for the recovery of a device where the recovery may involve:

• entering premises without permission from the owner or occupier of the premises

• interference with the interior of a vehicle without permission of the person having lawful possession or control of the vehicle.270

The warrant applies to devices or equipment installed in or on an object by ASIO, used by ASIO, or maintained by ASIO that were not installed, used or maintained under:

• a surveillance device warrant

• a warrant issued under section 27A of the ASIO Act (the obtaining of foreign intelligence) or

• an identified person warrant.271

The Attorney-General may issue a warrant in respect of the relevant devices or relevant equipment if they are satisfied that failure to recover the relevant equipment would be prejudicial to security.272 The Attorney-General must also have regard to the risk that information relating to the operations, capabilities or technologies of, or methods or sources used by ASIO will be communicated or made available to the public without the authority of the Commonwealth if the warrant is not issued.273

The warrant, which is signed by the Attorney-General, must specify certain details including the relevant devices or equipment, the date of issue, the period for which the warrant is in force (not exceeding 90 days) and any other restrictions or conditions.274

The warrant must also:

• authorise the use of any force against persons and things that is necessary and reasonable to do the things authorised by the warrant and

• state whether entry to premises is authorised to be made at any time of the day or night or during stated hours of the day or night.275

The Bill also makes consequential amendments to existing provisions under the ASIO Act, so that those requirements equally apply to the proposed recovery warrant. These include:

• the ability of the Director-General to issue a recovery warrant in an emergency276

• allowing a recovery warrant to be varied or extended277 and

• a requirement to inform the Attorney-General and discontinue action under a recovery warrant where the grounds on which the warrant was issued have ceased to exist.278

What is permitted by the warrant? Warrants issued under this new framework authorise ASIO to recover the devices or equipment and do any of the following:

270. Proposed paragraph 26R(1)(c). 271. Proposed paragraphs 26R(1)(a)-(b). 272. Proposed subsection 26R(2). 273. Proposed subsection 26R(3). 274. Proposed paragraphs 26R(4)(a)-(b). 275. Proposed paragraphs 26R(4)(c)-(d). 276. Paragraph 29(1)(a) as amended by item 10. 277. Paragraph 29A(3)(a) as amended by item 11. 278. Proposed subsection 30(2), inserted by item 12.

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• use the devices or equipment solely for the purposes of locating the devices or equipment

• enter any premises where the devices or equipment are reasonably believed to be, for the purpose of recovering the devices or equipment

• enter any other premises for the purpose of gaining entry to or exiting the premises where the devices or equipment are or believed to be

• enter into or onto, or alter, an object for the purpose of recovering the devices or equipment

• replace an object with an equivalent object for the purpose of recovering the devices or equipment

• break open anything for the purpose of recovering the devices or equipment

• if the devices or equipment are installed in or on an object—temporarily remove the object from any place where it is situated for the purpose of recovering the devices or equipment and returning the object to that place

• use a nominal amount of electricity from any source to power the devices or equipment

• anything reasonably necessary to conceal the fact that anything has been done under the warrant

• use any force against persons and things that is necessary and reasonable to do any of the above

• any other thing reasonably incidental to any of the above.279

It is not clear on the language of the Bill what would constitute ‘any other thing reasonably incidental’ (proposed subparagraph 26R(6)(b)(xi)) to the other actions that are permitted under the warrant. The Explanatory Memorandum provides the example that this provision would allow ASIO to disable security measures in order to gain entry onto premises.280

Safeguards Section 31A of the ASIO Act requires the Director-General of ASIO to notify the Attorney-General and the Inspector-General of Intelligence and Security where a warrant authorises the use of force and such force is used against a person in the execution of the warrant. As the proposed warrant framework allows for the use of force, the existing requirements for notification in circumstances where force is used would apply. The Government notes that section 31A therefore provides an additional safeguard in relation to recovery warrants issued under proposed section 26R.281

Stakeholder concerns The Law Council of Australia expressed some concerns around the broad scope of the proposed recovery warrant provisions, noting that an unintended consequence of the proposal could be that ‘these recovery warrants may be available in respect of unauthorised and potentially unlawful surveillance activities undertaken by ASIO’.282 The Law Council recommends that proposed section 26R be amended to clarify that a recovery warrant can only be issued if the original use of the device was lawful (for example under an internal authorisation) . Alternatively, the Law Council recommends that if recovery warrants do need to be issued to recover unlawful or unauthorised

279. Proposed subsection 26R(6). 280. Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020, p. 130. 281. Ibid. 282. Law Council of Australia, Submission to PJCIS, Review of the Australian Security Intelligence Organisation Amendment Bill

2020, 3 July 2020, p. 118.

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tracking devices - then this should be done only if the Attorney-General is satisfied that there are exceptional circumstances involved.283

Lawfulness of ASIO’s surveillance device framework The Explanatory Memorandum notes that one of the purposes of the amendments in Schedule 2 of the Bill is:

clarifying that the surveillance device framework is permissive and does not require ASIO to obtain a warrant where conduct would not otherwise be unlawful. 284

That is, while the ASIO Act and the amendments made by the Bill create a framework whereby surveillance devices can be used under warrant or internal authorisations, this permission is not required if ASIO can otherwise conduct its surveillance activities lawfully.

This clarification is achieved by proposed subsection 33(4) inserted by item 16. The amendment stipulates that nothing in Division 2 of Part III of the ASIO Act makes the use, installation, maintenance or recovery by ASIO of a surveillance device unlawful if these activities would otherwise not be illegal under any other applicable law of the Commonwealth, state or territory (including the common law). Division 2 of Part III, as proposed to be amended by the Bill, otherwise provides for the warrant and internal authorisation framework for the use of such devices lawfully.

Subsection 33(3) of the ASIO Act relates to the relationship between the surveillance device provisions in the ASIO Act and other Australian laws and provides that a person acting under certain warrants does not act unlawfully despite any other Australian law. Item 14 amends paragraph 33(3)(a) so that this will include persons acting in accordance with the proposed recovery of tracking device warrants. Item 13 makes a consequential amendment to cover the recovery of tracking devices under subsection 33(3) (in addition to the installation, use or maintenance of such devices).

In addition, item 15 inserts proposed paragraph 33(3)(aa) so that a person acting under the proposed internal authorisation provisions for use of tracking devices also does not act unlawfully despite any other law of the Commonwealth, state or territory (including the common law).

283. Ibid., p. 120 (Recommendation 75). 284. Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020, p. 4.

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Appendix: Compulsory questioning powers: comparison of the Bill and current ASIO Act The table below provides an overview of key aspects of the current and proposed compulsory questioning framework for ASIO. Where the ASIO Act has separate provisions for questioning warrants and questioning and detention warrants, only those relating to questioning warrants have been included.

Current ASIO powers Bill

Issuing authority for warrants/ summons

Judges appointed by the Attorney-General, and persons declared by the regulations, as issuing authorities (sections 34AB and 34E).

The Attorney-General’s consent is required before ASIO makes an application to an issuing authority (subsections 34D(4) and (5)).

Attorney-General (proposed sections 34BA and 34BB)

Purposes of questioning

Collecting intelligence about a terrorism offence (subsection 34E(1)). Questioning warrant means an adult questioning warrant or a minor questioning warrant.285

Adult questioning warrants: collecting intelligence on a matter that relates to the protection of the Commonwealth, its people and the states and territories from espionage, politically motivated violence or acts of foreign interference, whether directed from or committed within Australia or not (proposed sections 34A and 34BA).286

Minor questioning warrants: collecting intelligence on a matter that relates to the protection of the Commonwealth, its people and the states and territories from politically motivated violence, whether directed from or committed within Australia or not (proposed

285. The three terms are defined in proposed section 34A. 286. Espionage is not defined in the ASIO Act. Politically motivated violence and acts of foreign interference are defined in section 4 of the ASIO Act.

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sections 34A and 34BB).

Key threshold for issue of warrant

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 (subsection 34E(1)).

Satisfied that ‘there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to’ an adult questioning matter or a minor questioning matter (proposed subsections 34BA(1) and 34BB(1); on relevant questioning matters, see above under ‘Purposes of questioning’).

As noted below, additional criteria apply for a minor questioning warrant (see under ‘Questioning of minors’) and for post-charge questioning warrants and post-confiscation application questioning warrants (see under ‘Post-charge questioning’).

Period warrant remains in force Maximum of 28 days (subsection 34E(5)). Maximum of 28 days (proposed subsections 34BF(4) and 34BG(8)).

Apprehension/ detention framework

Detention may be permitted under a questioning warrant or a questioning and detention warrant for certain purposes (subsections 34G(3) and 34K(1)-(5)).

The new questioning framework will not authorise detention of the kind currently permitted.

Warrants may require a person to appear immediately for questioning and, if the Attorney-General is satisfied that there are reasonable grounds for believing certain matters, may authorise the apprehension of the person by a police officer to facilitate that immediate appearance (whether for a first or subsequent appearance under the warrant) (proposed subsections 34BE(1), (2), (5) and (6) and 34C(1)).

A police officer may also apprehend a person in order to immediately bring the person before a prescribed authority if:

• a questioning warrant requires a person to appear immediately and does not authorise apprehension, but the person subject to

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the warrant makes certain representations when given notice of the requirement to appear for questioning (proposed subsections 34C(2) and (4)) or

• the person subject to the warrant fails to appear for questioning as required by the warrant or a direction given by a prescribed authority (proposed subsection 34C(3)).

As is currently the case, a person subject to a questioning warrant is not free to leave while being questioned (see under ‘Other offences’) and is subject to secrecy offences (see under ‘Secrecy offences’) and limitations on contact with third parties (see under ‘Ability to contact third parties’).

Maximum questioning time

If an interpreter is not present, a person may initially be questioned for up to 8 hours, with 8-hour extensions permitted up to a total of 24 hours (subsections 34R(1)-(6)).

If an interpreter is present at any time during questioning, the total permitted questioning time is increased to 48 hours (subsections 34R(8)-(12)).

The following times do not count as questioning time:

 the time taken by a prescribed authority to inform the person of required matters

 any time during which a prescribed authority has deferred questioning of the person under the warrant to allow:

o a change of recording equipment

o the person to make a complaint

o the person to give certain information

o the person to contact a lawyer or another person

If an interpreter is not present, a person may initially be questioned for up to 8 hours, with 8-hour extensions permitted up to a total of 24 hours (proposed section 34DJ).

If an interpreter is present at any time during questioning, additional questioning time of up to 40 hours is permitted (proposed section 34DK). However, it is somewhat unclear under the Bill what the total permitted questioning time is.

The following times do not count as questioning time:

 the time taken by a prescribed authority to inform the person of required matters

 any time during which a prescribed authority has deferred questioning of the person under the warrant to allow:

o a change of recording equipment

o the person to make a complaint

o the person to give certain information

o the person to contact a lawyer or another person

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o the person to receive medical attention

o the person to engage in religious practices as required by the person’s religion

o the person to rest or recuperate

 any time during which a prescribed authority has suspended questioning so a concern raised by the IGIS can be addressed and

 any other time determined by a prescribed authority before whom the person appears for questioning (subsection 34R(13)).

Minors may only be questioned for continuous periods of up to two hours at a time (paragraphs 34ZE(6)(b) and (8)(e)).

o a lawyer to be present in accordance with certain directions

o the person to receive medical attention

o the person to engage in religious practices as required by the person’s religion

o the person to rest or recuperate

 any time during which a prescribed authority has suspended questioning so a concern raised by the IGIS can be addressed and

 any other time determined by a prescribed authority before whom the person appears for questioning (proposed section 34DL).

Minors may only be questioned for continuous periods of up to two hours at a time (proposed paragraphs 34BD(2)(b) and 34DD(2)(f)).

Variations No provisions for variations to warrants. The Attorney-General may vary a warrant on request by the Director-General of Security, so long as the period the warrant is in force is not extended beyond the existing limit of 28 days (proposed section 34BG).

Emergency authorisations No provision for emergency applications for, or issue of, questioning or questioning and detention warrants.

Applications for warrants and variations may be made orally if the Director-General of Security reasonably believes that the delay caused by making a written request may be prejudicial to security (proposed paragraphs 34B(2)(b) and 34BG(2)(b)).

Warrants and variations may be issued orally if the Attorney-General is satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written warrant or variation may be prejudicial to security (proposed paragraphs 34BF(1)(b) and 34BG(6(b)).

In both cases, written records must be kept (subsections 34B(6), 34BF(3), and 34BG(5) and (7)).

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Appointment of authority before whom person is questioned

Three classes of person are eligible for appointment by the Attorney-General as prescribed authorities, subject to their consent—those who:

• have previously served as a judge in one or more superior courts for at least five years

• are currently serving as a judge in a Supreme Court or District Court (or an equivalent) and have been for at least five years (but only if the Attorney-General is of the view that there is an insufficient number of former judges to act as prescribed authorities) and

• are a President or Deputy President of the Administrative Appeals Tribunal (AAT), currently enrolled as a legal practitioner of a federal court or of a Supreme Court, and have been so enrolled for at least five years (but only if the Attorney-General is of the view that there is an insufficient number of former and current judges to act as prescribed authorities) (section 34B).

Appointments must be made in writing but are not legislative instruments (sections 34B and 34ZY).

Three classes of person are equally eligible for appointment by the Attorney-General as prescribed authorities, subject to their consent and the application of safeguards (see under ‘Prescribed authority’ in the separate table on PJCIS recommendations)—those who:

• have previously served as a judge in one or more superior courts for at least five years

• are a President or Deputy President of the AAT, currently enrolled as a legal practitioner of a federal court or of a Supreme Court, and have been so enrolled for at least five years or

• are currently enrolled as a legal practitioner of a federal court or of a Supreme Court, have engaged in practice as a legal practitioner for at least 10 years and currently hold a practising certificate granted under a state or territory law (proposed subsections 34AD(1)-(4)).

Appointments must be made in writing.

Questioning of minors Warrants may be issued in relation to persons aged 16 years or older (subsection 34ZE(1)).

The Attorney-General may only consent to a request

Warrants may be issued in relation to persons aged 14 years or older (proposed sections 34BB and 34BC (see also proposed section 34DG)).287

287. ‘In all Australian jurisdictions the statutory minimum age of criminal responsibility is now 10 years. Between the ages of 10 and 14 years, a further rebuttable presumption (known in common law as doli incapax) operates to deem a child between the ages of 10 and 14 incapable of committing a criminal act. Only if the prosecution can rebut this presumption, by showing that the accused child was able at the relevant time adequately to distinguish between right and wrong, can a contested trial result in conviction. From 14 to either 17 or 18 years (depending on

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for a warrant in relation to a person aged 16 or 17 years if satisfied on reasonable grounds that it is likely that the person will commit, is committing or has committed a terrorism offence and that the draft warrant meets certain requirements (34ZE(4)).

A person aged 16 or 17 years may request that a parent, guardian or other person be present during questioning, and may contact that person at any time while in custody or detention in connection with the warrant. The person must only be questioned in the presence of a parent, guardian or other person who meets certain requirements, and only for continuous periods of up to two hours at a time (subsections 34ZE(6)-(8)).

A minor questioning warrant may only be issued if the Attorney-General is satisfied that there are ‘reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not’ (proposed paragraph 34BB(1)(b)).

Before issuing a minor questioning warrant, the Attorney-General must consider the best interests of the person. In doing so, the Attorney-General must take account of listed factors (to the extent that they are known and relevant) and any other matter he or she considers relevant (proposed subsections 34BB(2)-(4)).

Questioning may only take place under a minor questioning warrant in the presence of the minor’s lawyer (proposed subsection 34FA(1) and proposed paragraph 34DD(2)(b)). The minor may also request a non-lawyer representative (proposed paragraphs 34DD(2)(c)-(e) and proposed section 34FD) and may contact that representative, including while apprehended (proposed paragraphs 34CB(2)(a) and 34F(1)(b)).

Minors may only be questioned for continuous periods of up to two hours at a time (proposed paragraphs 34BD(2)(b) and 34DD(2)(f)).

jurisdiction), young offenders may be held fully responsible for their criminal acts but are subject to a different range of criminal sanctions than adults committing the same offences. Even without criminal liability, children may still be subject to court-ordered welfare measures such as “care and control” orders, along with a range of other orders in relation to residence, contact, supervision and assessment.’ G Urbas, ‘The age of criminal responsibility’, Trends and Issues in Crime and Criminal Justice, 181, November 2000.

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Post-charge questioning No provisions addressing this issue. Post-charge and post-confiscation application questioning are permitted under a questioning warrant (which includes both adult

questioning warrants and minor questioning warrants) (proposed section 34A, proposed paragraphs 34BA(1)(d) and 34BB(1)(e) and proposed subsection 34DB(1)).288

Use immunity applies (proposed subsection 34GD(6)) and the Bill includes provisions equivalent or similar to those in the ACC Act with respect to:

• directions about confidentiality and an offence for contravention of such directions (proposed subsections 34DF(1)-(4) and 34GE(4))

• issue of certificates by a court before which a person has been charged with an offence, requiring disclosure of material to the court (proposed subsections 34DF(5) and (6))

• obtaining derivative material (proposed section 34E)

• disclosing questioning material and derivative material to prosecutors of the person (proposed sections 34EA and 34EB) and proceeds of crime authorities (proposed section 34EF)

• court’s powers to order disclosure and to ensure a fair trial (proposed section 34EC)

• material that may always be disclosed to prosecutors of the person (proposed section 34ED) and

• other matters about prosecutors and subjects (proposed section 34EE).

An additional criterion applies for the issue of a warrant if it is a post-

288. Post-charge and post-confiscation application are defined in proposed section 34A.

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charge or post-confiscation application questioning warrant. The Attorney-General must be satisfied that it is necessary for the collection of intelligence that the warrant be issued even though the person has been charged or the confiscation proceeding has commenced, or that the charge or proceeding is imminent (proposed paragraphs 34BA(1)(d) and 34BB(1)(e).

Use immunity A person may not fail to give information or produce a record or thing on the grounds of self-incrimination. However, things said and records and things produced are not admissible in evidence against the person in criminal proceedings, other than proceedings for an offence against section 34L (concerning giving information and producing records and things)(subsections 34L(8) and (9)).

The Bill retains a direct use immunity for self-incriminating information, but it contains additional exceptions to that immunity.

Things said and records and things produced are only admissible in:

• a confiscation proceeding, ‘if the thing was said, or the record or thing was produced, at a time when the proceeding had not commenced and was not imminent’

• proceedings for an offence against section 34GD (concerning giving information and producing records and things)

• proceedings for an offence against section 34GF (secrecy offences) or

• proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (concerning provision of false or misleading information and documents) that relates to section 34GD (subsections 34GD(5)-(7)).

Access to lawyers (general)

A person must be permitted to contact a single lawyer of their choice at any time during questioning and, subject to section 34ZO, while the person is detained (subsections 34D(5) and 34E(3)).

Section 34ZO permits the prescribed authority to prevent a person from contacting a particular lawyer in certain circumstances.

A person may contact a lawyer to obtain legal advice at any time after being given notice of the warrant (proposed subsection 34F(1)).

However, if a lawyer for the person is present at questioning, the prescribed authority may prevent the person from contacting another lawyer in certain circumstances (proposed subsection 34F(2)).

A prescribed authority may allow questioning to proceed in the absence of an adult’s lawyer, and may prevent the person from

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A person may be questioned in the absence of the lawyer of that person’s choice (section 34ZP).

The person’s contact with a lawyer must generally be able to be monitored by a person exercising authority under the warrant (subsections 34ZQ(2) and (3)).

The lawyer must be given a copy of the warrant (subsection 34ZQ(4)).

The lawyer must be given a reasonable opportunity to advise the person during breaks in questioning (subsection 34ZQ(5)).

The lawyer may only intervene in questioning to request clarification of an ambiguous question (subsection 34ZQ(6)).

The lawyer may request to address the prescribed authority on a matter during a break in questioning (subsections 34ZQ(7) and (8)).

The lawyer may be removed if the prescribed authority considers the lawyer’s conduct is unduly disrupting the questioning, in which case the person must be allowed to contact another lawyer (subsections 34ZQ(9) and (10)).

The regulations may prohibit or regulate access to information, access to which is otherwise controlled or limited on security grounds, by lawyers acting for a person in connection with proceedings for a remedy relating to a warrant in relation to the person or the

contacting a lawyer if the authority is satisfied that the adult has had reasonable opportunity to contact a lawyer (proposed subsection 34F(3) and proposed section 34FA). This is not permitted in relation to minors.

Proposed subsections 34F(4) and (5) permit the prescribed authority to prevent a person from contacting a particular lawyer in certain circumstances.

A person appearing for questioning in the absence of a lawyer must be given reasonable opportunity to contact a lawyer and have that lawyer attend the questioning on request (proposed sections 34FB and 34FC).

An adult may be questioned in the absence of a lawyer if the person is given reasonable time and a lawyer is still not present (proposed subsection 34FB(3)).

For a minor, the prescribed authority must instead direct that a specified person be appointed as the lawyer for the person and be present during questioning (proposed subsection 34FC(3)).

The lawyer must be given a copy of the warrant and certain other documents on request (proposed section 34FE).

The lawyer must be given a reasonable opportunity to advise the person during breaks in questioning (proposed subsection 34FF(2)).

The lawyer may only intervene in questioning to request clarification of an ambiguous question or request a break in questioning to provide advice (proposed subsection 34FF(3)).

The lawyer may request to address the prescribed authority on a matter during a break in questioning (proposed subsections 34FF(4)

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treatment of the person in connection with such a warrant (section 34ZT). and (5)). The lawyer may be removed if the prescribed authority considers the

lawyer’s conduct is unduly disrupting the questioning, in which case the person must be allowed to contact another lawyer (proposed subsections 34FF(6)-(7)).

The regulations may prohibit or regulate access to information, access to which is otherwise controlled or limited on security grounds, by lawyers acting for a person in connection with proceedings for a remedy relating to a warrant in relation to the person or the treatment of the person in connection with such a warrant (proposed section 34FH).

Access to lawyers while in custody/ detention/ apprehended

A person taken into custody or detained is generally prohibited from contacting anyone, but is allowed to contact a person that the warrant or a direction permits them to contact (this would include a lawyer, as the warrant must permit the person to contact a lawyer) (subsections 34K(10) and (11)).

A person who has been apprehended is generally prohibited from contacting anyone, but is allowed to contact certain persons, including a lawyer (proposed section 34CB).

Legal professional privilege

The provisions expressly preserve the law relating to legal professional privilege (section 34ZV). The provisions expressly preserve the law relating to legal professional privilege (proposed section 34FI).

Ability to contact third parties

A prescribed authority may give a direction permitting a person to ‘contact an identified person (including a person identified by reference to the fact that the person has a particular legal or familial relationship with the subject) or any person, and to disclose information other than specified information while in contact with that person’ (subsection 34K(1)).

A prescribed authority may give directions permitting a person to:

• disclose specified information to a specified person and/or

• ‘contact an identified person (including a person identified by reference to the fact that the person has a particular legal or familial relationship with the subject) or any person, and to disclose information other than specified information while in contact with that person’ (proposed subsection 34DE(1)).

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However, such a direction must either be consistent with the warrant or be approved by the Attorney-General (subsection 34K(2)).

Such a direction may not be overridden by the Director-General of Security or the Attorney-General (proposed sections 34DE and 34DH).

However, such a direction must either be consistent with the warrant, or be approved by the Attorney-General or necessary to address a concern raised by the IGIS (proposed subsection 34DE(2)).

Secrecy offences

The first secrecy offence applies to disclosures (other than permitted disclosures) of operational information and/or information relating to a warrant, questioning or detention, while the warrant is in force (maximum penalty five years imprisonment; subsection 34ZS(1)).289

The second secrecy offence applies to disclosures (other than permitted disclosures) of certain operational information obtained as a result of the issue of a warrant or certain things done under a warrant, in the two years after the warrant expires (maximum penalty five years imprisonment; subsection 34ZS(2)).

The offences do not apply to the extent (if any) that they ‘would infringe any constitutional doctrine of implied freedom of political communication’ (subsection 34ZS(13)).

The first secrecy offence applies to disclosures (other than permitted disclosures) of operational information and/or information relating to a warrant, questioning or apprehension, while the warrant is in force (maximum penalty five years imprisonment; subsection 34GF(1)).290

The second secrecy offence applies to disclosures (other than permitted disclosures) of certain operational information obtained as a result of the issue of a warrant or certain things done under a warrant, in the two years after the warrant expires (maximum penalty five years imprisonment; subsection 34GF(2)).

There is no express exclusion of the offences to the extent that they would infringe any constitutional doctrine of implied freedom of political communication.

289. Operational information is defined in subsection 34ZS(5) and permitted disclosure is defined in subsections 34ZS(5)-(10). 290. Operational information is defined in proposed subsection 34GF(5) and permitted disclosure is defined in proposed subsections 34GF(5)-(12).

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Offences for contravening safeguards

Offences exist for contravention of:

• conditions or restrictions in a warrant

• directions given by a prescribed authority

• safeguards concerning the ability to make a complaint or obtain an interpreter, and humane treatment of persons subject to warrants

• questioning time limits

• safeguards concerning strip searches and

• the requirement to make arrangements to bring a person taken into custody before a prescribed authority immediately (section 34ZF).

Each of these offences carries a maximum penalty of two years imprisonment.

Offences are included for contravention of:

• conditions or restrictions in a warrant

• directions given by a prescribed authority

• safeguards concerning the ability to make a complaint or obtain an interpreter, and humane treatment of persons subject to warrants

• questioning time limits

• directions about the use or disclosure of questioning material and

• provisions about apprehending a person (proposed section 34GE).

The new offence concerning directions about disclosure of questioning material is modelled on subsection 25A(14A) of the ACC Act.

Each of these offences carries a maximum penalty of two years imprisonment.

[Strip searches are no longer permitted.]

Other offences Offences apply for:

• failing to appear for questioning in accordance with a warrant or a direction issued under it (subsection 34L(1))

• failing to give information requested in accordance with a warrant (subsections 34L(2) and (3))

• providing false or misleading information (subsections 34L(4) and (5))

• failing to produce a record or thing in accordance with a warrant (subsections 34L(6) and (7))

• engaging in conduct that means a record or thing

Offences are included for:

• failing to appear for questioning in accordance with a warrant or a direction issued under it (proposed subsections 34GD(1) and (2))

• failing to give information or produce a record or thing requested in accordance with the warrant (proposed subsections 34GD(3) and (4))

• providing false or misleading information (proposed subsections 34GD(8) and (9))

• engaging in conduct that means a record or thing the person was requested to produce in accordance with a warrant is unable to be produced, or unable to be produced in wholly legible or usable

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the person was requested to produce in accordance with a warrant is unable to be produced, or unable to be produced in wholly legible or usable form (subsection 34L(10))

• an individual in relation to whom a warrant is sought leaving Australia after having been informed that a warrant has been sought (section 34X)

• failing to surrender travel documents once notified of the request for or issue of a warrant (sections 34W and 34Y) and

• leaving Australia without permission after having been informed of the issue of a warrant (section 34Z).

Each of these offences carries a maximum penalty of five years imprisonment.

form (proposed subsection 34GD(10))

• an individual in relation to whom a warrant is sought leaving Australia after having been informed that a warrant has been sought (proposed section 34GA)

• failing to surrender travel documents once notified of the request for or issue of a warrant (proposed sections 34G and 34GB) and

• leaving Australia without permission after having been informed of the issue of a warrant (proposed section 34GC).

Each of these offences carries a maximum penalty of five years imprisonment.

Person searches and screening powers

A police officer may conduct an ordinary search and in some circumstances a strip search of a person who has been detained (34ZB-34ZD).

The Act does not provide for screening or searching persons seeking to enter places of questioning or detention.

A police officer may conduct a frisk search or an ordinary search of a person who is the subject of a questioning warrant and who has been apprehended (and seize certain items), using such force as is reasonable and necessary (proposed sections 34CC-34CE).

A police officer will be permitted to:

• ask a person (including the subject of a questioning warrant) to be screened if they are seeking to enter a place where the subject of a questioning warrant is appearing or is due to appear before a prescribed authority

• ask the person to produce things in their possession for inspection, and

• if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying a

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dangerous item or a communication device, search the person (section 34D).291

Police may retain certain items found, ask reasonable questions about things found, and refuse entry if a person fails to comply with certain requests (proposed section 34D).

Oversight by the IGIS or similar body

Provisions in the ASIO Act facilitate IGIS oversight of the use of warrants and the associated exercise of functions and powers. Key provisions include:

• subsection 34C(2), which requires ASIO to consult the IGIS on a written statement of procedures on the exercise of authority under warrants

• section 34P, which provides that the IGIS or an IGIS official may be present at the questioning or taking into custody of a person under a warrant

• section 34Q, under which the IGIS may raise a concern about impropriety or illegality of actions under a warrant with a prescribed authority (and the authority may suspend questioning until satisfied that the concern is addressed) and

• section 34ZI, under which ASIO must provide certain things to the IGIS as soon as practicable, including copies of draft requests, warrants and any video recordings made of questioning.

Further to the general powers it contains, the Inspector-General of Intelligence and Security Act 1986

The Bill reproduces existing provisions relating to IGIS oversight. Key provisions include:

• proposed subsection 34AF(2) (consultation with IGIS on written statement of procedures)

• proposed section 34JB (IGIS official may be present at questioning or apprehension)

• proposed section 34DM (IGIS may raise concerns; questioning may be suspended) and

• proposed section 34HB (providing information to the IGIS).

The Bill will expand the existing specific provisions in the IGIS Act to provide powers to enter any place where a person is being questioned or apprehended under a questioning warrant for the purposes of an inspection or an inquiry (items 25 and 26 of Schedule 1 to the Bill).

The Director-General of Security will be required to notify the IGIS of an oral request for a warrant before or as soon as practicable after it is made (proposed subsection 34B(5)), and provide the IGIS with the written record of a warrant issued orally as soon as practicable (proposed paragraph 34HB(b)).

291. Dangerous item and communication device are defined in proposed section 34A.

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(IGIS Act) specifically provides that the IGIS may enter a place where a person is being detained under a questioning warrant or a questioning and detention warrant for the purposes of an inspection or an inquiry (sections 9B and 19A).

Reporting requirements The Director-General of Security must give the Attorney-General a written report on the extent to

which action under each warrant has assisted ASIO to carry out its functions (section 34ZH).

ASIO’s annual reports to the Minister must include certain statistical information about questioning warrants and questioning and detention warrants and requests for such warrants (subsection 94(1)).

The Director-General of Security must give the Attorney-General a written report on the extent to which action under each warrant has assisted ASIO to carry out its functions. These reports are required to include additional matters relevant to other amendments in the Bill and are required to be made within three months of expiry of the warrant (proposed section 34HA).

ASIO’s annual reports to the Minister must include certain statistical information about questioning warrants and requests for such warrants (items 11 and 12 of Schedule 1). This includes the number of requests made and warrants issued orally and the number of times persons were apprehended.

Judicial review Decisions under the ASIO Act are excluded from the operation of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) (section 3 and Schedule 1).

However, a person may be able to apply to the Federal Court (under subsection 39B(1) of the Judiciary Act 1903) or to the High Court (under paragraph 75(v) of the Constitution) for a legal remedy in relation to a warrant or the person’s treatment in connection with a warrant.

A prescribed authority must explain ‘the fact that the person may seek from a federal court a remedy relating

Decisions under the ASIO Act continue to be excluded from the operation of the ADJR Act and possible avenues for judicial review remain the same.

The Bill includes provisions equivalent to those currently in the ASIO Act in relation to:

• the prescribed authority explaining certain matters (proposed subsections 34DC(1) and (3))

• the definition of permitted disclosure for the purposes of secrecy offences (proposed subsection 34GF(5))

• regulations limiting lawyers’ access to certain information (proposed section 34FH)

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to the warrant or the treatment of the person in connection with the warrant’ when a person first appears for questioning, and at least once in every 24-hour period during which questioning of the person occurs (subsections 34J(1) and (5)). Other provisions relevant to the availability of a legal remedy include:

• subsection 34ZS(5) (definition of permitted disclosure for the purposes of secrecy offences)

• section 34ZT (regulations may limit lawyers’ access to certain information)

• section 34ZU (rules of court about proceedings connected with warrants)

• section 34ZW (jurisdiction of state and territory courts excluded) and

• subsection 34ZX(5) (limits on financial assistance).

• the rules of court about proceedings connected with warrants (proposed section 34JC)

• jurisdiction of state and territory courts being excluded (proposed section 34JD) and

• limits on financial assistance (proposed subsection 34JE(7)).

Sunset clause and review The provisions are subject to a sunset clause (section 34ZZ) and were subject to review by the

Independent National Security Legislation Monitor (INSLM) and the PJCIS before the expiry of a previous sunset clause (Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, in amendments to the Independent National Security Legislation Monitor Act 2010 and Intelligence Services Act 2001 that have since been repealed).

The provisions will be subject to a ten-year sunset clause (proposed 34JF) but the Bill contains no requirements for INSLM or PJCIS review.

Other accountability requirements

Other key provisions include:

• the requirement for a written statement of procedures on the exercise of authority under

Other key provisions include:

• the requirement for a written statement of procedures on the exercise of authority under warrants (proposed section 34AF)

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and safeguards warrants (section 34C) • the ability to make a complaint to certain bodies (subsection 34K(9) and section 34ZG; see also paragraph 34J(1)(e) and subsections 34K(11),

34R(13), 34ZA(2) and 34ZS(5)(definition of permitted disclosure))

• access to an interpreter (sections 34M and 34N)

• the requirement to treat a person subject to a warrant humanely (section 34T)

• the requirement to ensure video recordings are made of the appearance of persons before prescribed authorities and any other matter or thing in relation to the warrant that the prescribed authority directs is to be video recorded (subsection 34ZA(1)) and

• the ability to apply for financial assistance in respect of a person’s appearance before a prescribed authority for questioning (section 34ZX).

• the ability to make a complaint to certain bodies (proposed sections 34DI and 34H; see also proposed paragraphs 34BH(2)(g), 34CB(2)(b) and (c), 34DC(1)(i) and 34DL(b), and proposed subsections 34DP(2) and 34GF(5)(definition of permitted disclosure))

• access to an interpreter (proposed sections 34DN and 34DO)

• the requirement to treat a person subject to a warrant humanely (proposed section 34AG)

• the requirement to ensure video recordings are made of the appearance of persons before prescribed authorities and any other matter or thing in relation to the warrant that the prescribed authority directs is to be video recorded (proposed subsection 34DP(1)) and

• the ability to apply for financial assistance in respect of a person’s appearance before a prescribed authority for questioning (proposed section 34JE).

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