First Reading
2002-2003
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002
No. , 2003
(Attorney-General)
A Bill for an Act to amend legislation relating to the Australian Security Intelligence Organisation to enhance the Commonwealth's ability to combat terrorism, and for related purposes
Contents
Australian Security Intelligence Organisation Act 1979 3
Intelligence Services Act 2001 38
Telecommunications (Interception) Act 1979 39
A Bill for an Act to amend legislation relating to the Australian Security Intelligence Organisation to enhance the Commonwealth's ability to combat terrorism, and for related purposes
The Parliament of Australia enacts:
| Commencement
information
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| Column
1
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Column
2
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Column
3
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| Provision(s)
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Commencement
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Date/Details
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| 1.
Sections 1 to 3 and anything in this Act not elsewhere covered by this
table
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The
day on which this Act receives the Royal Assent
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| 2.
Schedule 1, items 1 to 8
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The
day after this Act receives the Royal Assent
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| 3.
Schedule 1, items 10 and 11
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Immediately
after the commencement of Division 72 of the Criminal Code
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| 4.
Schedule 1, items 15 to 29
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The
day after this Act receives the Royal Assent
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(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
Australian Security Intelligence Organisation Act 1979
1 Section 4
Insert:
frisk search means:
(a) a search of a person conducted by quickly running the hands over the person's outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
2 Section 4
Insert:
ordinary search means a search of a person or of articles on his or her person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
3 Section 4 (at the end of paragraphs (a) and (b) of the definition of politically motivated violence)
Add "or".
4 Section 4 (after paragraph (b) of the definition of politically motivated violence)
Insert:
(ba) acts that are terrorism offences; or
5 Application
The amendments of the definition of politically motivated violence in section 4 of the Australian Security Intelligence Organisation Act 1979 made by this Schedule apply in relation to an act, matter or thing done, existing or happening after the commencement of the amendments (including an act under a warrant or other instrument issued under that Act before that commencement).
6 Section 4
Insert:
seizable item means anything that could present a danger to a person or that could be used to assist a person to escape from lawful custody.
7 Section 4
Insert:
strip search means a search of a person or of articles on his or her person that may include:
(a) requiring the person to remove all of his or her garments; and
(b) an examination of the person's body (but not of the person's body cavities) and of those garments.
8 Section 4
Insert:
terrorism offence means an offence against Part 5.3 of the Criminal Code.
Note: A person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorist act (as defined in that Part) occurs.
10 Section 4 (definition of terrorism offence)
After "against", insert "Division 72 or".
11 Application
The amendment of the definition of terrorism offence in section 4 of the Australian Security Intelligence Organisation Act 1979 made by this Schedule applies in relation to an act, matter or thing done, existing or happening after the commencement of the amendment (including an act under a warrant or other instrument issued under that Act before that commencement).
15 Subsection 18(1)
Omit "an officer of the Organisation", substitute "a person".
16 Subsection 18(1)
Omit "officer" (second occurring), substitute "person".
17 Paragraph 18(2)(b)
Repeal the paragraph, substitute:
(b) by a person acting within the limits of authority conferred on the person by the Director-General; or
18 Subsection 18(3)
Omit "an officer" (first occurring), substitute "a person".
19 Paragraph 18(3)(b)
Omit "the officer", substitute "the person".
20 Saving of authority and authorisations
(1) For the purposes of subsections 18(1) and (2) of the Australian Security Intelligence Organisation Act 1979 as amended by this Schedule, the authority conferred on an officer of the Organisation by the Director-General is not affected by the amendment of those subsections by this Schedule.
(2) An officer of the Organisation who was authorised for the purpose of subsection 18(3) of the Australian Security Intelligence Organisation Act 1979 immediately before the commencement of this item is taken to be, immediately after the commencement of this item, a person authorised for that purpose.
21 Section 23
Repeal the section.
22 Subsection 24(3) (definition of relevant warrant)
Omit "or 29", substitute ", 29 or 34D".
23 After subsection 25(4)
Insert:
Personal searches may be specified
(4A) The Minister may also specify any of the following things if he or she considers it appropriate in the circumstances:
(a) conducting an ordinary search or a frisk search of a person if:
(i) the person is at or near the subject premises when the warrant is executed; and
(ii) there is reasonable cause to believe that the person has on his or her person records or other things relevant to the security matter;
(b) inspecting or otherwise examining any records or other things so found, and making copies or transcripts of any such record or other thing that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act;
(c) removing and retaining for such time as is reasonable any record or other thing so found, for the purposes of:
(i) inspecting or examining it; and
(ii) in the case of a record--making copies or transcripts of it, in accordance with the warrant.
Certain personal searches not authorised
(4B) Subsection (4A) does not authorise a strip search or a search of a person's body cavities.
23A After section 25
24 At the end of Part III
approved lawyer means a legal practitioner whom the Minister has approved under section 34AA.
Federal Magistrate has the same meaning as in the Federal Magistrates Act 1999.
issuing authority means:
(a) a person appointed under section 34AB; or
(b) a member of a class of persons declared by regulations made for the purposes of that section to be issuing authorities.
police officer means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
prescribed authority means a person appointed under section 34B.
record has the same meaning as in Division 2.
superior court means the High Court, Federal Court, Family Court, the Supreme Court of a State or Territory or a District Court of a State or a Territory or an equivalent.
(2) The Minister must not approve a legal practitioner unless:
(a) the practitioner is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years; and
(b) the practitioner has, by writing, consented to being approved and the consent is in force; and
(c) the Minister has considered:
(i) a security assessment (as defined in Part IV) in respect of the practitioner; and
(ii) any other material that the Minister considers is relevant to the question whether to approve the practitioner.
(a) a Federal Magistrate; or
(b) a Judge.
(2) The Minister must not appoint a person unless:
(a) the person has, by writing, consented to being appointed; and
(b) the consent is in force.
(3) The regulations may declare that persons in a specified class are issuing authorities.
(4) The regulations may specify a class of persons partly by reference to the facts that the persons have consented to being issuing authorities and their consents are in force.
(2) If the Minister is of the view that there is an insufficient number of people to act as a prescribed authority under subsection (1), the Minister may, by writing, appoint as a prescribed authority a person who is currently serving as a judge in a State or Territory Supreme Court or District Court (or an equivalent) and has done so for a period of at least 5 years.
(3) If the Minister is of the view that there are insufficient persons available under subsections (1) and (2), the Minister may, by writing, appoint as a prescribed authority, a person who holds an appointment to the Administrative Appeals Tribunal as President or Deputy President and who is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.
(4) The Minister must not appoint a person under subsection (1), (2) or (3) unless the person:
(a) has by writing consented to being appointed; and
(b) the consent is in force.
(5) A person can only be appointed as a prescribed authority for a single three-year term.
(6) The Minister must cause to be kept a list of names of persons who have consented to being appointed as prescribed authorities.
(7) If a person whose name is included in the list requests the Minister to have his or her name removed from the list, the Minister must cause the list to be amended to give effect to the request.
(8) The Minister may, on his or her own initiative, cause the name of a person to be removed from the list.
(9) A person appointed as a prescribed authority in accordance with this section shall be paid such remuneration as is determined by the Remuneration Tribunal, but until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed.
(1A) To avoid doubt, this section operates in relation to a request for the issue of a warrant under section 34D in relation to a person, even if such a request has previously been made in relation to the person.
(2) In seeking the Minister's consent, the Director-General must give the Minister a draft request that includes:
(a) a draft of the warrant to be requested; and
(b) a statement of the facts and other grounds on which the Director-General considers it necessary that the warrant should be issued; and
(c) a statement of the particulars and outcomes of all previous requests for the issue of a warrant under section 34D relating to the person.
(3) The Minister may, by writing, consent to the making of the request, but only if the Minister is satisfied:
(a) that there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and
(b) that relying on other methods of collecting that intelligence would be ineffective; and
(ba) that all of the acts (the adopting acts) described in subsection (3A) in relation to a written statement of procedures to be followed in the exercise of authority under warrants issued under section 34D have been done; and
(c) if the warrant to be requested is to authorise the person to be taken into custody immediately, brought before a prescribed authority immediately for questioning and detained--that there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained, the person:
(i) may alert a person involved in a terrorism offence that the offence is being investigated; or
(ii) may not appear before the prescribed authority; or
(iii) may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce; and
(d) if the person has been detained under this Division--that the warrant to be requested would not authorise the person to be detained under this Division for a period that would result in the person being detained under this Division for a continuous period of more than 168 hours.
The Minister may make his or her consent subject to changes being made to the draft request.
(3A) The adopting acts in relation to a written statement of procedures to be followed in the exercise of authority under warrants issued under section 34D are as follows:
(a) consultation of the following persons by the Director-General about making such a statement:
(i) the Inspector-General of Intelligence and Security;
(ii) the Commissioner of Police appointed under the Australian Federal Police Act 1979;
(b) making of the statement by the Director-General after that consultation;
(c) approval of the statement by the Minister;
(d) presentation of the statement to each House of the Parliament;
(e) briefing (in writing or orally) the Parliamentary Joint Committee on ASIO, ASIS and DSD (whether before or after presentation of the statement to each House of the Parliament).
(3B) In consenting to the making of a request to issue a warrant authorising the person to be taken into custody immediately, brought before a prescribed authority immediately for questioning and detained, the Minister must ensure that the warrant to be requested is to permit the person to contact an approved lawyer at any time when the person is in custody or detention under this Division in connection with the warrant.
(3C) However, subsection (3B) does not apply if the Minister is satisfied on reasonable grounds that:
(a) the person is 18 or older; and
(b) it is likely that a terrorism offence is being committed, or is about to be committed, and may have serious consequences; and
(c) it is appropriate in all the circumstances that the person not be permitted to contact a legal adviser; and
(d) the warrant to be requested either:
(i) is not to authorise, in conjunction with one or more other warrants issued under section 34D earlier, detention of the person under this Division for a continuous period of more than 48 hours; or
(ii) is to permit the person to contact an approved lawyer at any time when the person is in custody or detention under this Division in connection with the warrant after the end of such a continuous period or after a specified time that is before the end of such a continuous period.
(4) If the Minister has consented under subsection (3), the Director-General may request the warrant by giving an issuing authority:
(a) a request that is the same as the draft request except for the changes (if any) required by the Minister; and
(b) a copy of the Minister's consent.
(5) The Director-General may request the warrant only by giving the material described in subsection (4) to an issuing authority who is a Judge or a member of a class specified by the regulations for the purposes of section 34AB if the person could be detained for a continuous period of more than 96 hours under this Division in connection with the warrant requested and warrants issued earlier.
Note: Subsection (5) can apply only if, before the request is made, at least 2 warrants have been issued in relation to the person under this Division.
(a) the Director-General has requested it in accordance with subsection 34C(4), and with subsection 34C(5) if relevant; and
(b) the issuing authority is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and
(c) the issuing authority is satisfied that there are reasonable grounds for believing that the warrant does not authorise the person to be detained under this Division for a period that would result in the person being detained under this Division for a continuous period of more than 168 hours.
(2) The warrant must, in the same terms as the draft warrant given to the issuing authority as part of the request, either:
(a) require a specified person to appear before a prescribed authority for questioning under the warrant immediately after the person is notified of the issue of the warrant, or at a time specified in the warrant; or
(b) do both of the following:
(i) authorise a specified person to be taken into custody immediately by a police officer, brought before a prescribed authority immediately for questioning under the warrant and detained under arrangements made by a police officer for a specified period of not more than 48 hours starting when the person is brought before the authority;
(ii) permit the person to contact identified persons at specified times when the person is in custody or detention authorised by the warrant.
(3) For the purposes of subparagraph (2)(b)(i), the warrant may specify the end of the period for which the person is to be detained by reference to the opinion of a person exercising authority under the warrant that the Organisation does not have any further request described in paragraph (5)(a) to make of the person. This does not limit the ways in which the warrant may specify the end of the period.
(4) The warrant may identify someone whom the person is permitted to contact by reference to the fact that he or she is an approved lawyer or has a particular legal or familial relationship with the person. This does not limit the ways in which the warrant may identify persons whom the person is permitted to contact.
Note 1: The warrant may identify persons by reference to a class. See subsection 46(2) of the Acts Interpretation Act 1901.
Note 2: Section 34F permits the person to contact the Inspector-General of Intelligence and Security and the Ombudsman while the person is in custody or detention, so the warrant must identify them.
(5) Also, the warrant must, in the same terms as the draft warrant given to the issuing authority as part of the request:
(a) authorise the Organisation, subject to any restrictions or conditions, to question the person before a prescribed authority by requesting the person to do either or both of the following:
(i) give information that is or may be relevant to intelligence that is important in relation to a terrorism offence;
(ii) produce records or things that are or may be relevant to intelligence that is important in relation to a terrorism offence; and
(b) authorise the Organisation, subject to any restrictions or conditions, to make copies and/or transcripts of a record produced by the person before a prescribed authority in response to a request in accordance with the warrant.
(6) Also, the warrant must:
(a) be signed by the issuing authority who issues it; and
(b) specify the period during which the warrant is to be in force, which must not be more than 28 days.
(a) whether the warrant authorises detention of the person by a police officer and, if it does, the period for which the warrant authorises detention of the person;
(b) what the warrant authorises the Organisation to do;
(c) the effect of section 34G (including the fact that the section creates offences);
(d) the period for which the warrant is in force;
(e) the person's right to make a complaint orally or in writing:
(i) to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986 in relation to the Organisation; or
(ii) to the Ombudsman under the Complaints (Australian Federal Police) Act 1981 in relation to the Australian Federal Police;
(f) the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant;
(g) whether there is any limit on the person contacting others and, if the warrant permits the person to contact identified persons at specified times when the person is in custody or detention authorised by the warrant, who the identified persons are and what the specified times are.
(2) To avoid doubt, subsection (1) does not apply to a prescribed authority if the person has previously appeared before another prescribed authority for questioning under the warrant.
(2A) The prescribed authority before whom the person appears for questioning must inform the person of the role of the prescribed authority, and the reason for the presence of each other person who is present at any time during the questioning. However:
(a) the prescribed authority must not name any person except with the consent of the person to be named; and
(b) the obligation to inform the person being questioned about a particular person's reason for presence need only be complied with once (even if that particular person subsequently returns to the questioning).
(3) At least once in every 24-hour period during which questioning of the person under the warrant occurs, the prescribed authority before whom the person appears for questioning must inform the person of the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant.
(1) At any time when a person is before a prescribed authority for questioning under a warrant, the authority may give any of the following directions:
(a) a direction to detain the person;
(b) a direction for the further detention of the person;
(c) a direction about any arrangements for the person's detention;
(d) a direction permitting the person to contact an identified person (including someone identified by reference to the fact that he or she is an approved lawyer or has a particular legal or familial relationship with the person) or any person;
(e) a direction for the person's further appearance before the prescribed authority for questioning under the warrant;
(f) a direction that the person be released from detention.
(2) The prescribed authority is only to give a direction that:
(a) is consistent with the warrant; or
(b) has been approved in writing by the Minister.
However, the prescribed authority may give a direction that is not covered by paragraph (a) or (b) if he or she has been informed under section 34HA of a concern of the Inspector-General of Intelligence and Security and is satisfied that giving the direction is necessary to address the concern satisfactorily.
(3) The prescribed authority is only to give a direction described in paragraph (1)(a) or (b) if he or she is satisfied that there are reasonable grounds for believing that, if the person is not detained, the person:
(a) may alert a person involved in a terrorism offence that the offence is being investigated; or
(b) may not continue to appear, or may not appear again, before a prescribed authority; or
(c) may destroy, damage or alter a record or thing the person has been requested, or may be requested, in accordance with the warrant, to produce.
(4) A direction under subsection (1) must not result in:
(a) a person being detained at a time more than 48 hours after the person first appears before a prescribed authority for questioning under the warrant; or
(aa) a person being detained for a continuous period of more than 168 hours starting when the person first appeared before a prescribed authority for questioning under another warrant that was issued under section 34D earlier; or
(b) a person's detention being arranged by a person who is not a police officer.
Giving effect to directions
(5) Directions given by a prescribed authority have effect, and may be implemented or enforced, according to their terms.
(6) A police officer may take a person into custody and bring him or her before a prescribed authority for questioning under a warrant issued under section 34D if the person fails to appear before a prescribed authority as required by the warrant or a direction given by a prescribed authority under this section.
Direction has no effect on further warrant
(7) This section does not prevent any of the following occurring in relation to a person who has been released after having been detained under this Division in connection with a warrant issued under section 34D:
(a) an issuing authority issuing a further warrant under that section;
(b) the person being detained under this Division in connection with the further warrant.
Communications while in custody or detention
(8) A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.
(9) However:
(a) the person may contact anyone whom the warrant under which he or she is detained, or a direction described in paragraph (1)(d), permits the person to contact; and
(b) subsection (8) does not affect the following provisions in relation to contact between the person and the Inspector-General of Intelligence and Security or the Ombudsman:
(i) sections 10 and 13 of the Inspector-General of Intelligence and Security Act 1986;
(ii) section 22 of the Complaints (Australian Federal Police) Act 1981; and
(c) anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector-General of Intelligence and Security or the Ombudsman to make a complaint orally under a section mentioned in paragraph (b) if the person requests them.
Note: The sections mentioned in paragraph (9)(b) give the person an entitlement to facilities for making a written complaint.
Penalty: Imprisonment for 5 years.
(2) Strict liability applies to the circumstance of an offence against subsection (1) that:
(a) the warrant was issued under section 34D; or
(b) the direction was given under section 34F.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person who is before a prescribed authority for questioning under a warrant must not fail to give any information requested in accordance with the warrant.
Penalty: Imprisonment for 5 years.
(4) Subsection (3) does not apply if the person does not have the information.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) If:
(a) a person is before a prescribed authority for questioning under a warrant; and
(b) the person makes a statement that is, to the person's knowledge, false or misleading in a material particular; and
(c) the statement is made in purported compliance with a request for information made in accordance with the warrant;
the person is guilty of an offence.
Penalty: Imprisonment for 5 years.
(6) A person who is before a prescribed authority for questioning under a warrant must not fail to produce any record or thing that the person is requested in accordance with the warrant to produce.
Penalty: Imprisonment for 5 years.
(7) Subsection (6) does not apply if the person does not have possession or control of the record or thing.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
(8) For the purposes of subsections (3) and (6), the person may not fail:
(a) to give information; or
(b) to produce a record or thing;
in accordance with a request made of the person in accordance with the warrant, on the ground that the information, or production of the record or thing, might tend to incriminate the person or make the person liable to a penalty.
(9) However, the following are not admissible in evidence against the person in criminal proceedings other than proceedings for an offence against this section:
(a) anything said by the person, while before a prescribed authority for questioning under a warrant, in response to a request made in accordance with the warrant for the person to give information;
(b) the production of a record or thing by the person, while before a prescribed authority for questioning under a warrant, in response to a request made in accordance with the warrant for the person to produce a record or thing.
(2) A person exercising authority under the warrant must arrange for the presence of an interpreter.
(3) The prescribed authority must defer informing under section 34E the person to be questioned under the warrant until the interpreter is present.
(4) A person exercising authority under the warrant must defer the questioning under the warrant until the interpreter is present.
(2) A person exercising authority under the warrant must arrange for the presence of an interpreter, unless the prescribed authority believes on reasonable grounds that the person who made the request has an adequate knowledge of the English language, or is physically able, to communicate with reasonable fluency in that language.
(3) If questioning under the warrant has not commenced and the prescribed authority determines that an interpreter is to be present:
(a) the prescribed authority must defer informing under section 34E the person to be questioned under the warrant until the interpreter is present; and
(b) a person exercising authority under the warrant must defer the questioning until the interpreter is present.
(4) If questioning under the warrant commences before the person being questioned requests the presence of an interpreter and the prescribed authority determines that an interpreter is to be present:
(a) a person exercising authority under the warrant must defer any further questioning until the interpreter is present; and
(b) when the interpreter is present, the prescribed authority must again inform the person of anything of which he or she was previously informed under section 34E.
Note: For example, the Inspector-General may be concerned because he or she has been present at a questioning under section 34HAB.
(2) When the person is appearing before a prescribed authority for questioning under the warrant, the Inspector-General may inform the prescribed authority of the Inspector-General's concern. If the Inspector-General does so, he or she must also inform the Director-General of the concern as soon as practicable afterwards.
(3) The prescribed authority must consider the Inspector-General's concern.
(4) The prescribed authority may give a direction deferring:
(a) questioning of the person under the warrant; or
(b) the exercise of another power under this Division that is specified in the direction;
until the prescribed authority is satisfied that the Inspector-General's concern has been satisfactorily addressed.
Note: The prescribed authority may give directions under section 34F instead or as well. These could:
(a) deal with the Inspector-General's concern in a way satisfactory to the prescribed authority; or
(b) deal with treatment of the person while questioning is deferred; or
(c) provide for release of the person from detention if the prescribed authority is satisfied that the Inspector-General's concern cannot be satisfactorily addressed within the remainder of the period for which the person may be detained under the warrant.
(2) The person must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the warrant or implementing or enforcing the direction.
(a) a person's appearance before a prescribed authority for questioning under a warrant;
(b) any other matter or thing that the prescribed authority directs is to be video recorded.
(2) The Director-General must ensure that, if practicable, video recordings are made of any complaint by a person specified in a warrant issued under section 34D when he or she is not appearing before a prescribed authority for questioning under the warrant.
(a) conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(1A) An ordinary search of the person under this section must, if practicable, be conducted by a police officer of the same sex as the person being searched.
(2) A strip search may be conducted if:
(a) a police officer suspects on reasonable grounds that the person has a seizable item on his or her person; and
(b) the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item; and
(c) a prescribed authority has approved the conduct of the search.
(3) The prescribed authority's approval may be obtained by telephone, fax or other electronic means.
(4) A strip search may also be conducted if the person consents in writing.
(5) A medical practitioner may be present when a strip search is conducted, and he or she may assist in the search.
(6) If a prescribed authority gives or refuses to give an approval for the purposes of paragraph (2)(c), the prescribed authority must make a record of the decision and of the reasons for the decision.
(7) Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (1).
(8) Any item:
(a) of a kind mentioned in paragraph (2)(a); or
(b) that is relevant to collection of intelligence that is important in relation to a terrorism offence;
that is found during a search under this section may be seized.
(a) must be conducted in a private area; and
(b) must be conducted by a police officer who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (3A), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 14; and
(f) if, in a prescribed authority's opinion, the person being searched is at least 14 but under 18, or is incapable of managing his or her affairs:
(i) may only be conducted if a prescribed authority orders that it be conducted; and
(ii) must be conducted in the presence of a parent or guardian of the person or, if that is not acceptable to the person, in the presence of someone else who can represent the person's interests and who, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person's body cavities; and
(h) must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has a seizable item on his or her person; and
(i) must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to determine whether the person has a seizable item on his or her person.
(2) For the purposes of subparagraph (1)(f)(ii), none of the following can represent the person's interests:
(a) a police officer;
(b) the Director-General;
(c) an officer or employee of the Organisation;
(d) a person approved under subsection 24(1).
(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(3A) Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(4) If any of a person's garments are seized as a result of a strip search, the person must be provided with adequate clothing.
(a) to remove and retain for such time as is reasonable any record or other thing produced before a prescribed authority in response to a request in accordance with the warrant, for the purposes of:
(i) inspecting or examining it; and
(ii) in the case of a record--making copies or transcripts of it, in accordance with the warrant; and
(b) subject to section 34M, to examine any items or things removed from a person during a search of the person under this Division; and
(c) to retain for such time as is reasonable, and make copies of, any item seized under paragraph 34L(8)(b); and
(d) to do any other thing reasonably incidental to:
(i) paragraph (a), (b) or (c); or
(ii) any of the things that the Organisation is authorised to do that are specified in the warrant.
(2) A police officer may retain for such time as is reasonable any seizable item seized by the officer under paragraph 34L(8)(a).
(1) A warrant issued under section 34D has no effect if the person specified in it is under 14.
(2) If a person appears before a prescribed authority for questioning as a result of the issue of a warrant under section 34D and the prescribed authority is satisfied on reasonable grounds that the person is under 14, the prescribed authority must, as soon as practicable:
(a) give a direction that the person is not to be questioned; and
(b) if the person is in detention--give a direction under paragraph 34F(1)(f) that the person be released from detention.
(3) Subsection 34F(2) does not prevent the prescribed authority from giving a direction in accordance with paragraph (2)(b) of this section.
Rules for persons who are at least 14 but under 18
(4) If the Director-General seeks the Minister's consent to request the issue of a warrant under section 34D in relation to a person and the Minister is satisfied on reasonable grounds that the person is at least 14 but under 18, the Minister may consent only if he or she is satisfied on reasonable grounds that:
(a) it is likely that the person will commit, is committing or has committed a terrorism offence; and
(b) the draft warrant to be included in the request will meet the requirements in subsection (6).
(5) An issuing authority may issue a warrant under section 34D relating to a person whom the authority is satisfied on reasonable grounds is at least 14 but under 18 only if the draft warrant included in the request for the warrant meets the requirements in subsection (6).
Note: Section 34D requires that a warrant issued under that section be in the same form as the draft warrant included in the request.
(6) If subsection (4) or (5) applies, the draft warrant must:
(a) if the warrant authorises the person to be taken into custody and detained--permit the person to contact, at any time when the person is in custody or detention authorised by the warrant:
(i) a parent or guardian of the person; and
(ii) if it is not acceptable to the person to be questioned in the presence of one of his or her parents or guardians--another person who meets the requirements in subsection (7); and
(iii) an approved lawyer; and
(b) authorise the Organisation to question the person before a prescribed authority:
(i) only in the presence of a parent or guardian of the person or, if that is not acceptable to the person, of another person who meets the requirements in subsection (7); and
(ii) only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.
Note: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34F(1)(e) for the person's further appearance before the prescribed authority for questioning.
(7) The other person must:
(a) be able to represent the person's interests; and
(b) as far as practicable in the circumstances, be acceptable to the person and to the prescribed authority; and
(c) not be one of the following:
(i) a police officer;
(ii) the Director-General;
(iii) an officer or employee of the Organisation;
(iv) a person approved under subsection 24(1).
(8) If a person appears before a prescribed authority for questioning under a warrant issued under section 34D and the prescribed authority is satisfied on reasonable grounds that the person is at least 14 but under 18, the prescribed authority must, as soon as practicable:
(a) inform the person that the person:
(i) may request that one of the person's parents or guardians or one other person who meets the requirements in subsection (7) be present during the questioning; and
(ii) may contact the person's parents or guardians and another person who meets the requirements in subsection (7), at any time when the person is in custody or detention authorised by the warrant; and
(iii) may contact an approved lawyer at any time when the person is in custody or detention authorised by the warrant; and
(b) if the person requests that one of the person's parents or guardians be present during the questioning--direct everyone proposing to question the person under the warrant not to do so in the absence of the parent or guardian; and
(c) if the person does not request that one of the person's parents or guardians be present during the questioning--direct everyone proposing to question the person under the warrant not to do so in the absence of another person (other than the prescribed authority) who meets the requirements in subsection (7); and
(d) direct under paragraph 34F(1)(d) that the person may contact someone described in subparagraph (a)(ii) or (iii) of this subsection at any time described in that subparagraph; and
(e) direct everyone proposing to question the person under the warrant that questioning is to occur only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.
Note: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34F(1)(e) for the person's further appearance before the prescribed authority for questioning.
(9) Subsection 34F(2) does not prevent the prescribed authority from giving a direction in accordance with paragraph (8)(d) of this section.
(a) the person has been approved under section 24 to exercise authority conferred by a warrant issued under section 34D; and
(b) the person exercises, or purports to exercise, the authority; and
(c) the exercise or purported exercise contravenes a condition or restriction in the warrant on the authority; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is a police officer; and
(b) the person engages in conduct; and
(c) the conduct contravenes section 34DA; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
(a) the person is identified (whether by name, reference to a class that includes the person or some other means) in a direction given by a prescribed authority under paragraph 34F(1)(c), (d), (e) or (f) or subsection 34HA(4), 34NA(2) or (8) or 34V(3) as a person who is to implement the direction; and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes paragraph 34F(9)(c), subsection 34H(4), paragraph 34HAA(3)(b) or (4)(a) or subsection 34J(2); and
(c) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(5) A person (the searcher) commits an offence if:
(a) the searcher is a police officer; and
(b) the searcher conducts a strip search of a person detained under this Division; and
(c) the search is conducted:
(i) without either the approval of a prescribed authority or the consent of the detained person; or
(ii) in a way that contravenes subsection 34M(1); and
(d) the searcher knows of the lack of approval and consent or of the contravention.
Penalty: Imprisonment for 2 years.
(6) A person (the searcher) commits an offence if:
(a) the searcher is a police officer who is conducting or has conducted a strip search of a person detained under this Division; and
(b) the searcher engages in conduct; and
(c) the conduct contravenes subsection 34M(4); and
(d) the searcher knows of the contravention.
Penalty: Imprisonment for 2 years.
(7) In this section:
engage in conduct means:
(a) do an act; or
(a) to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986; or
(b) to the Ombudsman under Part III of the Complaints (Australian Federal Police) Act 1981.
(2) This section does not limit the subjects of complaint under the Inspector-General of Intelligence and Security Act 1986 or Part III of the Complaints (Australian Federal Police) Act 1981.
(aa) a copy of any draft request given to the Minister under subsection 34C(2) in seeking the Minister's consent to request the issue of a warrant under section 34D;
(a) a copy of any warrant issued under section 34D;
(b) a copy of any video recording made under section 34K;
(c) a statement containing details of any seizure, taking into custody, or detention under this Division;
(d) a statement describing any action the Director-General has taken as a result of being informed of the Inspector-General's concern under section 34HA.
(a) inform the Minister, and the issuing authority who issued the warrant, accordingly; and
(b) take such steps as are necessary to ensure that action under the warrant is discontinued.
(a) the record or copy was made because of a warrant issued under section 34D; and
(b) the record or copy is in the possession or custody, or under the control, of the Organisation; and
(c) the Director-General is satisfied that the record or copy is not required for the purposes of the performance of functions or exercise of powers under this Act.
(2) If a person who is a member of a court created by the Parliament has under this Division a function, power or duty that is neither judicial nor incidental to a judicial function or power, the person has the function, power or duty in a personal capacity and not as a court or a member of a court.
(2) This Division does not affect a function or power of the Ombudsman under the Complaints (Australian Federal Police) Act 1981.
Contact to be able to be monitored
(2) The contact must be made in a way that can be monitored by a person exercising authority under the warrant.
Breaks in questioning to give legal advice
(3) The prescribed authority before whom the subject is being questioned must provide a reasonable opportunity for the legal adviser to advise the subject during breaks in the questioning.
Note: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34F(1)(e) for the person's further appearance before the prescribed authority for questioning.
(4) The legal adviser may not intervene in questioning of the subject or address the prescribed authority before whom the subject is being questioned, except to request clarification of an ambiguous question.
Removal of legal adviser for disrupting questioning
(5) If the prescribed authority considers the legal adviser's conduct is unduly disrupting the questioning, the authority may direct a person exercising authority under the warrant to remove the legal adviser from the place where the questioning is occurring.
(6) If the prescribed authority directs the removal of the legal adviser, the prescribed authority must also direct under paragraph 34F(1)(d) that the subject may contact an approved lawyer other than the legal adviser. Subsection 34F(2) does not prevent the prescribed authority from giving the direction under paragraph 34F(1)(d) in accordance with this subsection.
Communications by legal adviser
(7) The legal adviser commits an offence if:
(a) while the subject is being detained under this Division (whether in connection with the warrant or another warrant issued under section 34D), the adviser communicates to a third person information relating to the questioning or detention of the subject under this Division in connection with any of those warrants; and
(b) the communication is not authorised:
(i) by a prescribed authority under subsection (8); or
(ii) by a provision of the regulations (if any) made for the purposes of subsection (10); and
(c) the third person is not:
(i) a prescribed authority; or
(ii) a person exercising authority under any of those warrants; or
(iii) the Inspector-General of Intelligence and Security; or
(iv) the Ombudsman.
Penalty: Imprisonment for 2 years.
(8) The prescribed authority may authorise the legal adviser to communicate to another person specified by the authority specified information relating to the questioning or detention of the subject in connection with the warrant. An authorisation must not be inconsistent with the regulations (if any) made for the purposes of subsection (10).
(9) The prescribed authority must not refuse to authorise the legal adviser to communicate to a member or Registrar (however described) of a federal court, for the purposes of seeking a remedy relating to the warrant or the treatment of the subject in connection with the warrant, information relating to the questioning or detention of the subject in connection with the warrant.
(10) The regulations may make provision in relation to communications by legal advisers of persons specified in warrants issued under section 34D of information relating to their questioning or detention under this Division in connection with the warrants.
(11) The regulations must not prevent a legal adviser from communicating to a member or Registrar (however described) of a federal court, for the purposes of seeking a remedy relating to the warrant or the treatment of a person in connection with such a warrant, information relating to the questioning or detention of the person in connection with the warrant.
If legal adviser also represents young person
(12) If section 34V also applies to the legal adviser in another capacity in relation to the subject, this section does not apply to conduct of the legal adviser in that other capacity.
(a) is either:
(i) the parent or guardian of a person (the subject) specified in a warrant issued under section 34D; or
(ii) another person who meets the requirements in subsection 34NA(7) in relation to the subject; and
(b) either:
(i) is or has been contacted by the subject as permitted by the warrant or a direction under paragraph 34F(1)(d); or
(ii) is or has been present when the subject was before a prescribed authority for questioning under the warrant.
(2) If a prescribed authority considers the representative's conduct is unduly disrupting questioning of the subject, the authority may direct a person exercising authority under the warrant to remove the representative from the place where the questioning is occurring.
(3) If the prescribed authority directs the removal of the representative, the prescribed authority must also:
(a) inform the subject that the subject:
(i) may request that one of the subject's parents or guardians or one other person who meets the requirements in subsection 34NA(7), other than the representative, be present during the questioning; and
(ii) may contact a person covered by subparagraph (i) to request the person to be present during the questioning; and
(b) if the subject requests that one of the subject's parents or guardians, other than the representative, be present during the questioning--direct everyone proposing to question the subject under the warrant not to do so in the absence of the parent or guardian; and
(c) if the subject does not request that one of the subject's parents or guardians, other than the representative, be present during the questioning--direct everyone proposing to question the subject under the warrant not to do so in the absence of another person (other than the prescribed authority) who meets the requirements in subsection 34NA(7); and
(d) direct under paragraph 34F(1)(d) that the subject may contact a person covered by subparagraph (a)(i) of this subsection to request the person to be present during the questioning.
Subsection 34F(2) does not prevent the prescribed authority from giving the direction under paragraph 34F(1)(d) in accordance with this subsection.
(4) The prescribed authority may permit the representative to communicate to another person specified by the authority specified information relating to the questioning or detention of the subject in connection with the warrant.
(5) The representative commits an offence if:
(a) while the subject is being detained under this Division (whether in connection with the warrant or another warrant issued under section 34D), the representative communicates to a third person information relating to the questioning or detention of the subject under this Division in connection with any of those warrants; and
(b) a prescribed authority has not given permission for the communication; and
(c) the third person is not:
(i) a parent, guardian or sibling of the subject; or
(ii) a prescribed authority; or
(iii) a person exercising authority under any of those warrants; or
(iv) the Inspector-General of Intelligence and Security; or
(v) the Ombudsman.
Penalty: Imprisonment for 2 years.
(6) A person commits an offence if:
(a) the representative, or a parent, guardian or sibling of the subject, communicated to the person information relating to the questioning or detention of the subject under this Division in connection with a warrant issued under section 34D; and
(b) the person is a parent, guardian or sibling of the subject; and
(c) while the subject is being detained under this Division (whether in connection with the warrant mentioned in paragraph (a) or another warrant issued under section 34D), the person communicates the information to another person; and
(d) the other person is not:
(i) a parent, guardian or sibling of the subject; or
(ii) the representative; or
(iii) a prescribed authority; or
(iv) a person exercising authority under any of those warrants; or
(v) the Inspector-General of Intelligence and Security; or
(vi) the Ombudsman.
Penalty: Imprisonment for 2 years.
(a) the remedy relates to a warrant issued under section 34D or the treatment of a person in connection with such a warrant; and
(b) the proceedings are commenced while the warrant is in force.
(2) This section has effect despite any other law of the Commonwealth (whether passed or made before or after the commencement of this section).
25 Section 35 (definition of year 2000 Games matters)
Repeal the definition.
26 Paragraph 40(1)(b)
Repeal the paragraph, substitute:
(b) if the prescribed administrative action would affect security in connection with an event designated in writing by the Minister as a special event--to furnish a security assessment in respect of that person to the State or the authority of a State for use in considering that prescribed administrative action.
27 At the end of section 40
Add:
(3) For the purposes of paragraph 40(1)(b), the Minister must notify the Director-General in writing of an event designated as a special event.
27A After subsection 94(1)
Insert:
(1A) The report must include a statement of:
(a) the total number of requests made under section 34C to issuing authorities during the year for the issue of warrants under section 34D; and
(b) the total number of warrants issued during the year under section 34D; and
(c) the total number of warrants issued during the year that meet the requirement in paragraph 34D(2)(a) (about requiring a person to appear before a prescribed authority); and
(d) the number of hours each person appeared before a prescribed authority for questioning under a warrant issued during the year that meets the requirement in paragraph 34D(2)(a) and the total of all those hours for all those persons; and
(e) the total number of warrants issued during the year that meet the requirement in paragraph 34D(2)(b) (about authorising a person to be taken into custody, brought before a prescribed authority and detained); and
(f) the following numbers:
(i) the number of hours each person appeared before a prescribed authority for questioning under a warrant issued during the year that meets the requirement in paragraph 34D(2)(b);
(ii) the number of hours each person spent in detention under such a warrant;
(iii) the total of all those hours for all those persons; and
(g) the number of times each prescribed authority had persons appear for questioning before him or her under warrants issued during the year.
(1B) A statement included under subsection (1A) in a report must not name, or otherwise specifically identify, any person to whom information provided in the report relates.
Note: Subsection (4) lets the Minister delete information described in subsection (1A) from the copy of the report laid before each House of the Parliament under subsection (3), if the Minister considers it necessary to avoid prejudice to security, the defence of the Commonwealth, the conduct of the Commonwealth's international affairs or the privacy of individuals.
27B At the end of section 94
Add:
(5) The Minister may not delete from a report a statement described in subsection (1A).
27C Application of amendments of section 94
The amendments of section 94 of the Australian Security Intelligence Organisation Act 1979 made by this Schedule apply to each report for a year ending after the commencement of this item.
Intelligence Services Act 2001
27D Before paragraph 29(1)(c)
Insert:
(bb) to review, as soon as possible after the third anniversary of the day on which the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 receives the Royal Assent, the operation, effectiveness and implications of amendments made by that Act; and
Telecommunications (Interception) Act 1979
28 Subsection 65(1)
Omit "an officer", substitute "a person".
29 Saving of authorisations
An officer who was authorised by the Director-General of Security for the purpose of subsection 65(1) of the Telecommunications (Interception) Act 1979 immediately before the commencement of this item is taken to be, immediately after the commencement of this item, a person authorised for that purpose.