An Act relating to the Australian Security Intelligence
Organisation
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Australian
Security Intelligence Organisation Act 1979.
2
Commencement [see
Note 1]
This Act shall come into operation on a
date to be fixed by Proclamation.
3
Repeal
The Australian Security Intelligence
Organisation Act 1956 and the Australian Security Intelligence
Organisation Act 1976 are repealed.
4
Definitions
In this Act, unless the contrary
intention appears:
activities prejudicial to security includes
any activities concerning which Australia has responsibilities to a foreign
country as referred to in paragraph (b) of the definition of security
in this section.
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:
(a) are clandestine or deceptive and:
(i) are carried on for
intelligence purposes;
(ii) are carried on for the
purpose of affecting political or governmental processes; or
(iii) are otherwise
detrimental to the interests of Australia; or
(b) involve a threat to any person.
ASIS has the meaning given by the Intelligence
Services Act 2001.
attacks on Australia’s defence system means
activities that are intended to, and are likely to, obstruct, hinder or
interfere with the performance by the Defence Force of its functions or with
the carrying out of other activities by or for the Commonwealth for the
purposes of the defence or safety of the Commonwealth.
Australia, when used in a geographical sense,
includes the external Territories.
authority of a State:
(a) in Part IV—has the meaning
given by subsection 35(1); and
(b) otherwise—includes:
(i) a Department of State
of a State, or a Department of the Public Service of a State; and
(ii) a body, whether
incorporated or not, established for public purposes by or under a law of a
State; and
(iii) a body corporate in
which a State or a body referred to in subparagraph (ii) has a controlling
interest.
authority of the Commonwealth includes:
(a) a Department of State or an Agency
within the meaning of the Public Service Act 1999;
(aa) a Department within the meaning of
the Parliamentary Service Act 1999;
(b) the Defence Force;
(c) a body, whether incorporated or
not, established for public purposes by or under a law of the Commonwealth or
of a Territory;
(d) the holder of an office
established for public purposes by or under a law of the Commonwealth or of a
Territory;
(e) a prescribed body established in
relation to public purposes that are of concern to the Commonwealth and any
State or States; and
(f) a body corporate in which the
Commonwealth or a body referred to in paragraph (c) has a controlling
interest.
carriage service provider has the same
meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications
Act 1997.
certified copy, in relation to a warrant or
an instrument revoking a warrant, means a copy of the warrant or instrument
that has been certified in writing by the Director‑General or a Deputy Director‑General
to be a true copy of the warrant or instrument.
Committee on Intelligence and Security means
the Parliamentary Joint Committee on Intelligence and Security established
under the Intelligence Services Act 2001.
data storage device means a thing (for
example, a disk or file server) containing (whether temporarily or
permanently), or designed to contain (whether temporarily or permanently), data
for use by a computer.
Defence Department means the Department of
State that deals with defence and that is administered by the Minister
administering section 1 of the Defence Act 1903.
Deputy Director‑General means an officer of
the Organisation who holds office as Deputy Director‑General of Security.
DIGO has the meaning given by the Intelligence
Services Act 2001.
Director‑General means the Director‑General
of Security holding office under this Act.
DSD has the meaning given by the Intelligence
Services Act 2001.
foreign intelligence means intelligence
relating to the capabilities, intentions or activities of a foreign power.
foreign power means:
(a) a foreign government;
(b) an entity that is directed or
controlled by a foreign government or governments; or
(c) a foreign political organisation.
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.
intelligence or security agency means any of
the following:
(a) the Australian Secret Intelligence
Service;
(b) the Office of National
Assessments;
(c) that part of the Defence
Department known as the Defence Imagery and Geospatial Organisation;
(d) that part of the Defence
Department known as the Defence Intelligence Organisation;
(e) that part of the Defence
Department known as the Defence Signals Directorate.
Judge means a Judge of a court created by the
Parliament.
law enforcement agency means an authority of
the Commonwealth, or an authority of a State, that has functions relating to
law enforcement.
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.
Organisation means the Australian Security
Intelligence Organisation.
permanent resident means
a person:
(a) in the case of a natural person:
(i) who is not an
Australian citizen;
(ii) whose normal place of
residence is situated in Australia;
(iii) whose presence in Australia is not subject to any limitation as to time imposed by law; and
(iv) who is not an unlawful
non‑citizen within the meaning of the Migration Act 1958; or
(b) in the case of a body corporate:
(i) which is incorporated
under a law in force in a State or Territory; and
(ii) the activities of
which are not controlled (whether directly or indirectly) by a foreign power.
politically motivated violence means:
(a) acts or threats of violence or
unlawful harm that are intended or likely to achieve a political objective,
whether in Australia or elsewhere, including acts or threats carried on for the
purpose of influencing the policy or acts of a government, whether in Australia
or elsewhere; or
(b) acts that:
(i) involve violence or
are intended or are likely to involve or lead to violence (whether by the persons
who carry on those acts or by other persons); and
(ii) 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; or
(ba) acts that are terrorism offences;
or
(c) acts that are offences punishable
under the Crimes (Foreign Incursions and Recruitment) Act 1978, the Crimes
(Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of
the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1
or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
(d) acts that:
(i) are offences
punishable under the Crimes (Internationally Protected Persons) Act 1976;
or
(ii) threaten
or endanger any person or class of persons specified by the Minister for the
purposes of this subparagraph by notice in writing given to the Director‑General.
promotion of communal violence means
activities that are directed to promoting violence between different groups of
persons in the Australian community so as to endanger the peace, order or good
government of the Commonwealth.
security means:
(a) the
protection of, and of the people of, the Commonwealth and the several States
and Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated
violence;
(iv) promotion of communal
violence;
(v) attacks on Australia’s defence system; or
(vi) acts of foreign
interference;
whether directed from, or
committed within, Australia or not; and
(aa) the
protection of Australia’s territorial and border integrity from serious
threats; and
(b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in
any of the subparagraphs of paragraph (a) or the matter mentioned in
paragraph (aa).
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.
serious crime means conduct that, if engaged
in within, or in connection with, Australia, would constitute an offence
against the law of the Commonwealth, a State or a Territory punishable by
imprisonment for a period exceeding 12 months.
staff member of a body (however described)
includes:
(a) the head (however described) of
the body, or another person who holds an office or appointment in relation to
the body; and
(b) a person who is otherwise a member
of the staff of the body (whether an employee of the body, a consultant or
contractor to the body, or a person who is made available by an authority of
the Commonwealth, an authority of a State, or other person, to perform services
for the body).
State includes the Australian Capital
Territory and the Northern Territory.
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.
Territory does not include the Australian
Capital Territory or the Northern Territory.
terrorism offence means:
(a) an offence against Subdivision A
of Division 72 of the Criminal Code; or
(b) 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.
violence includes the kidnapping or detention
of a person.
4A
Application of the Criminal Code
Chapter 2 of the Criminal Code
(except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
5
Extension of Act to external Territories
This Act extends to every external
Territory.
5A
Copies of certain notices to be given to Inspector‑General
Where the Minister gives a notice in
writing to the Director‑General for the purposes of subparagraph (d)(ii)
of the definition of politically motivated violence in section 4,
the Minister shall give a copy of the notice to the Inspector‑General of
Intelligence and Security.
Part II—The Organisation and the Director‑General
6
Continuance of Organisation
The Australian Security Intelligence
Organisation, being the Organisation that was continued in existence by the
Acts repealed by this Act, is continued in existence.
7 Director‑General
(1) There shall be a Director‑General of
Security, who shall be appointed by the Governor‑General and shall hold office,
subject to this Act, on such terms and conditions as the Governor‑General
determines.
(2) Before a recommendation is made to the
Governor‑General for the appointment of a person as Director‑General, the Prime
Minister shall consult with the Leader of the Opposition in the House of
Representatives.
8
Control of Organisation
(1) The Organisation shall be under the
control of the Director‑General.
(2) Subject to subsections (4) and (5),
in the performance of the Director‑General’s functions under this Act, the
Director‑General is subject to the directions of the Minister.
(3) If the Director‑General requests that a
direction of the Minister be put in writing, the Minister shall comply with the
request.
(4) The Minister is not empowered to override
the opinion of the Director‑General concerning the nature of the advice that
should be given by the Organisation.
(5) The Minister is not empowered to override
the opinion of the Director‑General:
(a) on the question whether the
collection of intelligence by the Organisation concerning a particular
individual would, or would not, be justified by reason of its relevance to
security; or
(b) on the question whether a
communication of intelligence concerning a particular individual would be for a
purpose relevant to security;
except by a direction contained in an instrument in
writing that sets out the Minister’s reasons for overriding the opinion of the
Director‑General.
(6) The Minister shall, as soon as
practicable after giving a direction in writing to the Director‑General, cause
a copy of the direction to be given to the Inspector‑General of Intelligence
and Security and, if the direction relates to a question referred to in subsection (5),
to the Prime Minister.
(7) Where intelligence is collected or
communicated pursuant to a direction referred to in subsection (5), the
Director‑General shall cause a record in writing to be kept of the intelligence
so collected or communicated.
8A
Guidelines
(1) The Minister may, from time to time, by
written notice given to the Director‑General, give to the Director‑General
guidelines to be observed:
(a) in the performance by the
Organisation of its functions or the exercise of its powers; or
(b) in the exercise by the Director‑General
of his or her powers under sections 85 and 86.
(2) The Minister shall, as soon as
practicable after the commencement of this section, by notice in writing given
to the Director‑General, give to the Director‑General guidelines to be observed
in relation to the performance of that part of the Organisation’s functions
that relates to politically motivated violence, and may, from time to time,
vary or replace guidelines so given.
(3) Subject to subsection (4), the
Minister shall cause a copy of any guidelines given under subsection (1)
or (2) to be laid before each House of the Parliament within 15 sitting days of
that House after the guidelines were given.
(4) Where the laying of a copy of guidelines
before the Parliament in accordance with subsection (3) would result in
the disclosure of information that would, in the opinion of the Minister, be
contrary to the public interest by reason that it would prejudice security, the
defence of the Commonwealth, the conduct of the Commonwealth’s international
affairs or the privacy of individuals, the Minister may cause a copy of the
guidelines to be laid before each House of the Parliament with such deletions
as the Minister thinks necessary to avoid that result or decline to cause a
copy to be laid before each House of the Parliament.
(5) The Minister shall, in accordance with
arrangements made between the Minister and the Leader of the Opposition in the
House of Representatives, make available to the Leader of the Opposition a copy
of any guidelines given under subsection (1) or (2), but it is the duty of
the Leader of the Opposition to treat as secret any part of those guidelines
that has not been laid before a House of the Parliament.
(6) The Minister shall, as soon as
practicable after guidelines under subsection (1) or (2) are given to the
Director‑General, give a copy of the guidelines to the Inspector‑General of
Intelligence and Security and, unless the Minister considers it inappropriate
to do so, to the Committee on Intelligence and Security.
9 Term
of office of Director‑General
(1) Subject to sections 12 and 13, the
Director‑General holds office for such period, not exceeding 7 years, as is
specified in his or her instrument of appointment, but is eligible for re‑appointment.
10
Remuneration and allowances of Director‑General
(1) The Director‑General shall be paid such
remuneration as is determined by the Remuneration Tribunal but, if no
determination of that remuneration by the Tribunal is in operation, he or she
shall be paid such remuneration as is prescribed.
(2) The Director‑General shall be paid such
allowances as are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973 and to section 15.
11
Leave of absence
(1) The Director‑General has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Director‑General
leave of absence, other than recreation leave, on such terms and conditions as
to remuneration or otherwise as the Minister determines.
12
Resignation
The Director‑General may resign from
office by writing signed by the Director‑General and delivered to the Governor‑General.
13
Termination of appointment
(1) The Governor‑General may terminate the
appointment of the Director‑General by reason of physical or mental incapacity,
misbehaviour or failure to comply with a provision of this Act.
(2) If the Director‑General:
(a) is absent from duty, except with
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(b) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit;
the Governor‑General shall terminate his or her
appointment.
14
Acting Director‑General
(1) The Minister may appoint a person to act
as Director‑General:
(a) during a vacancy in the office of
Director‑General; or
(b) during any period, or during all
periods, when the Director‑General is absent from duty or from Australia or is, for any reason, unable to perform the functions of his or her office;
but a person appointed to act during a vacancy shall not
continue so to act for more than 12 months.
(2) Before a recommendation is made to the
Minister for the appointment of a person, under subsection (1), to act as
Director‑General, the Prime Minister shall consult with the Leader of the
Opposition in the House of Representatives, unless it is impracticable to do
so.
(3) An appointment of a person under subsection (1)
may be expressed to have effect only in such circumstances as are specified in
the instrument of appointment.
(4) The Minister may:
(a) determine the terms and conditions
of appointment, including remuneration and allowances, of a person acting as
Director‑General; and
(b) at any time terminate such an
appointment.
(5) Where a person is acting as Director‑General
in accordance with paragraph (1)(b) and the office of Director‑General
becomes vacant while that person is so acting, that person may continue so to
act until the Minister otherwise directs, the vacancy is filled or a period of
12 months from the date on which the vacancy occurred expires, whichever first
happens.
(6) The appointment of a person to act as
Director‑General ceases to have effect if the person resigns the appointment by
writing signed by the person and delivered to the Minister.
(7) While a person is acting as Director‑General,
he or she has, and may exercise, all the powers and shall perform all the
functions of the Director‑General.
15
Appointment of a Judge as Director‑General
(1) The appointment of a Judge as Director‑General,
or service of a Judge as Director‑General, does not affect the tenure of his or
her office as a Judge or his or her rank, title, status, precedence, salary,
annual or other allowances or other rights or privileges as the holder of his
or her office as a Judge and, for all purposes, his or her service as Director‑General
shall be taken to be service as the holder of his or her office as a Judge.
(2) Subject to subsection (3), if the
Director‑General is a Judge, he or she shall be paid salary at such rate (if
any), and an annual allowance at such rate (if any), as are fixed from time to
time by the Parliament.
(3) If the Director‑General is a Judge, he or
she is not, while he or she receives salary or annual allowance as a Judge,
entitled to salary or annual allowance, as the case may be, under this Act, except
to the extent (if any) that the salary or annual allowance that would be
payable to him or her under this Act apart from this subsection exceeds the
salary or annual allowance payable to him or her as a Judge.
16
Delegation
(1) The Director‑General may, either
generally or as otherwise provided by the instrument of delegation, by writing
signed by the Director‑General, delegate to an officer of the Organisation all
or any of the powers of the Director‑General that relate to the management of
the staff of the Organisation or the financial management of the Organisation.
(2) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act and the regulations, be
deemed to have been exercised by the Director‑General.
(3) A delegation under this section does not
prevent the exercise of a power by the Director‑General.
Part III—Functions and powers of Organisation
Division 1—General
17
Functions of Organisation
(1) The functions of the Organisation are:
(a) to obtain, correlate and evaluate
intelligence relevant to security;
(b) for purposes relevant to security,
to communicate any such intelligence to such persons, and in such manner, as
are appropriate to those purposes;
(c) to advise Ministers and
authorities of the Commonwealth in respect of matters relating to security, in
so far as those matters are relevant to their functions and responsibilities.
(ca) to furnish security assessments to
a State or an authority of a State in accordance with paragraph 40(1)(b);
(d) to advise Ministers, authorities
of the Commonwealth and such other persons as the Minister, by notice in
writing given to the Director‑General, determines on matters relating to
protective security; and
(e) to obtain within Australia foreign
intelligence pursuant to section 27A or 27B of this Act or section 11A,
11B or 11C of the Telecommunications (Interception and Access) Act 1979,
and to communicate any such intelligence in accordance with this Act or the Telecommunications
(Interception and Access) Act 1979; and
(f) to co‑operate with and assist
bodies referred to in section 19A in accordance with that section.
(2) It is not a function of the Organisation
to carry out or enforce measures for security within an authority of the
Commonwealth.
17AA
Fees for advice and other services
(1) The Director‑General may determine in
writing that fees are payable by persons for the giving of advice or the
provision of services by the Organisation to the persons at their request.
(2) Unless the Director‑General determines
otherwise, the Organisation may refuse to give the advice, or provide the
service, to a person until the fee is paid in whole or part. If the whole or
part of the fee is not paid before the advice is given or the service is
provided, the amount concerned is a debt due to the Commonwealth and may be
recovered by the Commonwealth in a court of competent jurisdiction.
(3) The amount of the fee must not exceed the
reasonable costs to the Organisation of giving the advice or providing the
service.
(4) The Director‑General may, on application
in writing by a person who is or will be required to pay a fee, if the Director‑General
considers it appropriate in the circumstances:
(a) not require the person to pay any
of the fee; or
(b) require the person to pay only a
specified part of the fee.
17A
Act not concerned with lawful dissent etc.
This Act shall not limit the right of
persons to engage in lawful advocacy, protest or dissent and the exercise of
that right shall not, by itself, be regarded as prejudicial to security, and
the functions of the Organisation shall be construed accordingly.
18
Communication of intelligence etc.
Who may communicate intelligence
(1) The communication of intelligence on
behalf of the Organisation shall be made only by the Director‑General or by a
person acting within the limits of authority conferred on the person by the
Director‑General.
Offence for unauthorised communication of information
(2) If a person makes a communication of any
information or matter that has come to the knowledge or into the possession of
the person by reason of his or her being, or having been, an officer or
employee of the Organisation or his or her having entered into any contract,
agreement or arrangement with the Organisation, being information or matter
that was acquired or prepared by or on behalf of the Organisation in connection
with its functions or relates to the performance by the Organisation of its
functions, other than a communication made:
(a) to the Director‑General or an
officer or employee of the Organisation:
(i) by an officer or
employee of the Organisation—in the course of the duties of the officer or
employee; or
(ii) by a person who has
entered into any such contract, agreement or arrangement—in accordance with the
contract, agreement or arrangement;
(b) by a person acting within the
limits of authority conferred on the person by the Director‑General; or
(c) with the approval of the Director‑General
or of an officer of the Organisation having the authority of the Director‑General
to give such an approval;
the first‑mentioned person is guilty of an offence.
Penalty: Imprisonment for 2 years.
Communicating information to appropriate authorities of
the Commonwealth or a State
(3) A person referred to in
subsection (1) may communicate information to a person referred to in
subsection (4) if:
(a) the information has come into the
possession of the Organisation in the course of performing the Organisation’s
functions under section 17; and
(b) either:
(i) the information relates,
or appears to relate, to the commission, or intended commission, of a serious
crime; or
(ii) the Director‑General,
or a person authorised for the purpose by the Director‑General, is satisfied
that the national interest requires the communication; and
(c) the information relates, or
appears to relate, to the performance of the functions, responsibilities or
duties of the person referred to in subsection (4).
Note: There are additional restrictions, in the Telecommunications
(Interception and Access) Act 1979, on communicating telecommunications
information.
(4) The persons to whom information may be
communicated under subsection (3) are the following:
(a) a Minister;
(b) a staff member of an authority of
the Commonwealth;
(c) a staff member of an authority of
a State.
Communicating information to ASIS, DSD and DIGO
(4A) A person referred to in subsection (1)
may communicate information to a staff member of ASIS, DSD or DIGO if:
(a) the information has come into the
possession of the Organisation in the course of performing the Organisation’s
functions under section 17; and
(b) the information relates, or
appears to relate, to the performance of ASIS, DSD or DIGO’s functions (as the
case requires).
Communicating information in relation to emergency
declarations
(4B) A person referred to in subsection (1)
may communicate information, in accordance with Part VIA of the Privacy
Act 1988, if:
(a) the information has come into the
possession of the Organisation in the course of performing its functions under
section 17; and
(b) an emergency declaration (within
the meaning of section 80G of that Act) is in force.
Attorney‑General’s consent required for prosecution of
offence
(5) A prosecution for an offence against subsection (2)
shall be instituted only by or with the consent of the Attorney‑General.
19 Co‑operation
with other authorities in connection with performance of Organisation’s
functions
(1) So far as necessary for, or conducive to,
the performance of the Organisation’s functions, the Organisation may, subject
to any arrangements made or directions given by the Minister, co‑operate with:
(a) authorities of the Commonwealth;
(b) Departments, Police Forces and
authorities of the States; and
(c) authorities of other countries
approved by the Minister as being capable of assisting the Organisation in the
performance of its functions.
(2) A person referred to in subsection 18(1)
may, where the Organisation is co‑operating with an authority of another
country in accordance with paragraph (1)(c), communicate to an officer of
that authority information that has come into the possession of the
Organisation in the course of performing its functions under section 17,
being information that is relevant to the security of that other country and
that could not, apart from this subsection, be communicated to that officer.
Note: There are additional restrictions, in the Telecommunications
(Interception and Access) Act 1979, on communicating telecommunications
information.
19A Co‑operation
with intelligence and law enforcement agencies etc. in connection with
performance of their functions
(1) The Organisation may co‑operate with and
assist the following bodies in the performance of their functions:
(a) ASIS;
(b) DSD;
(c) DIGO;
(d) a law enforcement agency;
(e) an authority of the Commonwealth,
or an authority of a State, that is prescribed by the regulations for the
purposes of this paragraph.
(2) However, the Organisation may only do so:
(a) subject to any arrangements made
or directions given by the Minister; and
(b) on request by the head (however
described) of the body referred to in subsection (1).
(3) Without limiting subsection (1), in
co‑operating with and assisting a body in accordance with this section, the
Organisation may make the services of officers and employees, and other
resources, of the Organisation available to the body.
Communicating information
(4) A person referred to in subsection 18(1)
may communicate information to a staff member of a body referred to in
paragraph (1)(d) or (e) if:
(a) the information has come into the
possession of the Organisation in the course of performing the Organisation’s
functions under section 17; and
(b) the information is communicated
for the purposes of co‑operating with or assisting the body under this section.
Note 1: For communication of information to ASIS, DSD
and DIGO, see subsection 18(4A).
Note 2: There are additional restrictions, in the Telecommunications
(Interception and Access) Act 1979, on communicating telecommunications
information.
20
Special responsibility of Director‑General in relation to functions of
Organisation
The
Director‑General shall take all reasonable steps to ensure that:
(a) the work of the Organisation is
limited to what is necessary for the purposes of the discharge of its
functions; and
(b) the Organisation is kept free from
any influences or considerations not relevant to its functions and nothing is
done that might lend colour to any suggestion that it is concerned to further
or protect the interests of any particular section of the community, or with
any matters other than the discharge of its functions.
21
Leader of Opposition to be kept informed on security matters
The Director‑General shall consult
regularly with the Leader of the Opposition in the House of Representatives for
the purpose of keeping him or her informed on matters relating to security.
Division 2—Special powers
22
Interpretation
In this Division, unless the contrary
intention appears:
carrier means:
(a) a carrier within the meaning of
the Telecommunications Act 1997; or
(b) a carriage service provider within
the meaning of that Act.
communicate includes cause to be
communicated.
computer means a computer, a computer system
or part of a computer system.
data includes information, a computer program
or part of a computer program.
examination includes any act or process for
the purpose of producing sounds, images or information from a record, and examine
has a corresponding meaning.
listening device means any instrument, device
or equipment capable of being used, whether alone or in conjunction with any
other instrument, device or equipment, to record or listen to words, images,
sounds or signals.
premises includes any land, place, vehicle,
vessel or aircraft.
record when used as a noun, means:
(a) a document (including any written
or printed material); or
(b) an object (including a sound
recording, magnetic tape or disc, microform, photograph or film) by which
words, images, sounds or signals are recorded or stored or from which information
can be obtained.
signals includes light emissions and
electromagnetic emissions.
telecommunications facility means a facility
within the meaning of section 7 of the Telecommunications Act 1997.
23
Requesting information or documents from operators of aircraft or vessels
(1) For the purposes of carrying out the
Organisation’s functions, an authorised officer or employee may:
(a) ask an operator of an aircraft or
vessel questions relating to the aircraft or vessel, or its cargo, crew,
passengers, stores or voyage; or
(b) request an operator of an aircraft
or vessel to produce documents relating to the aircraft or vessel, or its
cargo, crew, passengers, stores or voyage, that are in the possession or under
the control of the operator.
(2) A person who is asked a question or
requested to produce a document under subsection (1) must answer the
question or produce the document as soon as practicable.
Offence
(3) A person commits an offence if:
(a) the person is an operator of an
aircraft or vessel; and
(b) the person is asked a question or
requested to produce a document under subsection (1); and
(c) the person fails to answer the
question or produce the document.
Penalty: 60 penalty units.
(4) Subsection (3) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(5) It is a defence to a prosecution for an
offence against subsection (3) if the person charged had a reasonable
excuse for:
(a) failing to answer the question; or
(b) failing to produce the document.
(6) The Director‑General, or a senior officer
of the Organisation appointed by the Director‑General in writing to be an
authorising officer for the purposes of this subsection, may authorise, in
writing, an officer or employee of the Organisation, or a class of such
officers or employees, for the purposes of this section.
(7) In this
section:
authorised officer or employee means an
officer or employee who is authorised under subsection (6) for the
purposes of this section.
operator has the meaning given by section 4
of the Customs Act 1901.
senior officer of the Organisation means an
officer of the Organisation who holds or performs the duties of an office that
is:
(a) equivalent to a position occupied
by an SES employee; or
(b) designated as an office of
Coordinator by the Director‑General under section 85.
24
Exercise of authority under warrants etc.
(1) The Director‑General, or a senior officer
of the Organisation appointed by the Director‑General in writing to be an
authorising officer for the purposes of this subsection, may, by signed
writing, approve officers and employees of the Organisation, and other people,
as people authorised to exercise, on behalf of the Organisation, the authority
conferred by relevant warrants or relevant device recovery provisions.
(2) The authority conferred by a relevant
warrant or relevant device recovery provision may be exercised on behalf of the
Organisation only by the Director‑General or an officer, employee or other
person approved under subsection (1).
(3) In this section:
relevant device recovery provision means
subsection 26(6A), 26B(7), 26C(7), 27A(3A) or (3B).
relevant warrant means a warrant issued under
section 25, 25A, 26, 26B, 26C, 27, 27A, 27AA or 29 or under Division 3.
senior officer of the Organisation means an
officer of the Organisation who holds or performs the duties of an office that
is:
(a) equivalent to a position occupied
by an SES employee; or
(b) designated as an office of
Coordinator by the Director‑General under section 85.
25
Search warrants
Issue of search warrant
(1) If the Director‑General requests the
Minister to do so, and the Minister is satisfied as mentioned in subsection (2),
the Minister may issue a warrant in accordance with this section.
Test for issue of warrant
(2) The Minister is only to issue the warrant
if he or she is satisfied that there are reasonable grounds for believing that
access by the Organisation to records or other things on particular premises
(the subject premises) will substantially assist the collection
of intelligence in accordance with this Act in respect of a matter (the security
matter) that is important in relation to security.
Authorisation in warrant
(3) The warrant must be signed by the
Minister and must authorise the Organisation to do specified things, subject to
any restrictions or conditions specified in the warrant, in relation to the
subject premises, which must also be specified in the warrant.
Things that may be specified in warrant
(4) The things that may be specified are any
of the following that the Minister considers appropriate in the circumstances:
(a) entering the subject premises;
(b) searching the subject premises for
the purpose of finding records or other things relevant to the security matter
and, for that purpose, opening any safe, box, drawer, parcel, envelope or other
container in which there is reasonable cause to believe that any such records
or other things may be found;
(c) 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;
(d) removing and retaining 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;
(e) any thing reasonably necessary to
conceal the fact that any thing has been done under the warrant;
(f) any other thing reasonably
incidental to any of the above.
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 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.
Time period for retaining records and other things
(4C) A record or other thing retained as
mentioned in paragraph (4)(d) or (4A)(c) may be retained:
(a) if returning the record or thing
would be prejudicial to security—only until returning the record or thing would
no longer be prejudicial to security; and
(b) otherwise—for only such time as is
reasonable.
Other things that may be specified
(5) The Minister may also specify any of the
following things if he or she considers it appropriate in the circumstances:
(a) where there is reasonable cause to
believe that data relevant to the security matter may be accessible by using a
computer or other electronic equipment, or a data storage device, brought to or
found on the subject premises—using the computer, equipment or device for the
purpose of obtaining access to any such data and, if necessary to achieve that
purpose, adding, deleting or altering other data in the computer, equipment or
device;
(b) using the computer, equipment or
device to do any of the following:
(i) inspecting and
examining any data to which access has been obtained;
(ii) converting any data to
which access has been obtained, that appears to be relevant to the collection
of intelligence by the Organisation in accordance with this Act, into
documentary form and removing any such document;
(iii) copying any data to
which access has been obtained, that appears to be relevant to the collection
of intelligence by the Organisation in accordance with this Act, to any data
storage device and removing the device;
(c) any thing reasonably necessary to
conceal the fact that any thing has been done under the warrant;
(d) any other thing reasonably
incidental to any of the above.
Certain acts not authorised
(6) Subsection (5) does not authorise
the addition, deletion or alteration of data, or the doing of any thing, that
interferes with, interrupts or obstructs the lawful use by other persons of a
computer or other electronic equipment, or a data storage device, found on the
subject premises, or that causes any loss or damage to other persons lawfully
using the computer, equipment or device.
Authorisation of entry measures
(7) The
warrant must:
(a) authorise the use of any force
that is necessary and reasonable to do the things specified in the warrant; and
(b) state whether entry is authorised
to be made at any time of the day or night or during stated hours of the day or
night.
Statement about warrant coming into force
(8) The warrant may state that it comes into
force on a specified day (after the day of issue) or when a specified event
happens. The day must not begin nor the event happen more than 28 days after
the end of the day on which the warrant is issued.
When warrant comes into force
(9) If the warrant includes such a statement,
it comes into force at the beginning of the specified day or when the specified
event happens. Otherwise, it comes into force when it is issued.
Duration of warrant
(10) The warrant must specify the period during
which it is to be in force. The period must not be more than 90 days, although
the Minister may revoke the warrant before the period has expired.
Issue of further warrants not prevented
(11) Subsection (10) does not prevent the
issue of any further warrant.
25AA
Conduct of ordinary or frisk search under search warrant
An ordinary search or frisk search of a
person that is authorised under paragraph 25(4A)(a) must, if practicable, be
conducted by a person of the same sex as the person being searched.
25A
Computer access warrant
Issue of computer access warrant
(1) If the Director‑General requests the
Minister to do so, and the Minister is satisfied as mentioned in subsection (2),
the Minister may issue a warrant in accordance with this section.
Test for issue of warrant
(2) The Minister is only to issue the warrant
if he or she is satisfied that there are reasonable grounds for believing that
access by the Organisation to data held in a particular computer (the target
computer) will substantially assist the collection of intelligence in
accordance with this Act in respect of a matter (the security matter)
that is important in relation to security.
Authorisation in warrant
(3) The warrant must be signed by the Minister
and must authorise the Organisation to do specified things, subject to any
restrictions or conditions specified in the warrant, in relation to the target
computer, which must also be specified in the warrant.
Things that may be authorised in warrant
(4) The things that may be specified are any
of the following that the Minister considers appropriate in the circumstances:
(aa) entering specified premises for
the purposes of doing the things mentioned in this subsection;
(a) using:
(i) a computer; or
(ii) a telecommunications
facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic
equipment; or
(iv) a data storage device;
for the purpose of obtaining
access to data that is relevant to the security matter and is stored in the
target computer and, if necessary to achieve that purpose, adding, deleting or
altering other data in the target computer;
(b) copying any data to which access
has been obtained, that appears to be relevant to the collection of intelligence
by the Organisation in accordance with this Act;
(c) any thing reasonably necessary to
conceal the fact that any thing has been done under the warrant;
(d) any other thing reasonably
incidental to any of the above.
Note: As a result of the warrant, an ASIO officer
who, by means of a telecommunications facility, obtains access to data stored
in the target computer etc. will not commit an offence under Part 10‑7 of
the Criminal Code or equivalent State or Territory laws (provided that
the ASIO officer acts within the authority of the warrant).
Certain acts not authorised
(5) Subsection (4) does not authorise
the addition, deletion or alteration of data, or the doing of any thing, that
interferes with, interrupts or obstructs the lawful use of the target computer
by other persons, or that causes any loss or damage to other persons lawfully
using the target computer.
Authorisation of entry measures
(5A) The warrant must:
(a) authorise the use of any force
that is necessary and reasonable to do the things specified in the warrant; and
(b) state whether entry is authorised
to be made at any time of the day or night or during stated hours of the day or
night.
Duration of warrant
(6) The warrant must specify the period
during which it is to remain in force. The period must not be more than 6
months, although the Minister may revoke the warrant before the period has
expired.
Issue of further warrants not prevented
(7) Subsection (6) does not prevent the
issue of any further warrant.
26 Use
of listening devices
(1) It is unlawful for an officer, employee
or agent of the Organisation, for the purposes of the Organisation, to use a
listening device for the purpose of listening to or recording words, images,
sounds or signals being communicated by another person (in this subsection
referred to as the communicator) unless:
(a) the communicator intends, or
should reasonably expect, those words, images, sounds or signals to be
communicated to the first‑mentioned person or to a class or group of persons in
which the first‑mentioned person is included;
(b) the first‑mentioned person does so
with the consent of the communicator; or
(c) the first‑mentioned person does so
in accordance with a warrant issued under this Division;
and it is the duty of the Director‑General to take all
reasonable steps to ensure that this subsection is not contravened.
(2) Notwithstanding any law of a State or
Territory, an officer, employee or agent of the Organisation, acting on behalf
of the Organisation, does not act unlawfully by reason only of using a
listening device as referred to in subsection (1) in circumstances in
which paragraph (a), (b) or (c) of that subsection is applicable.
(3) Where, upon receipt by the Minister of a
request by the Director‑General for the issue of a warrant under this section
authorizing the use of a listening device in relation to a particular person,
the Minister is satisfied that:
(a) that person is engaged in, or is
reasonably suspected by the Director‑General of being engaged in, or of being
likely to engage in, activities prejudicial to security; and
(b) the use by the Organisation of a
listening device to listen to or record words, images, sounds or signals
communicated by or to that person will, or is likely to, assist the
Organisation in carrying out its function of obtaining intelligence relevant to
security;
the Minister may, by warrant signed by the Minister,
authorize the Organisation, subject to any conditions or restrictions that are
specified in the warrant, to use a listening device for the purpose of
listening to or recording words, images, sounds or signals communicated by or
to that person and such a warrant may authorize the Organisation to enter any
premises in which that person is, or is likely to be, or any other premises
specified in the warrant from which words, images, sounds or signals
communicated by or to that person while that person is in those first‑mentioned
premises can be listened to or recorded with the use of a listening device, for
the purpose of installing, maintaining or using a listening device.
(4) Where, upon receipt by the Minister of a
request by the Director‑General for the issue of a warrant under this section
authorizing the use of a listening device to listen to or record words, images,
sounds or signals communicated from or to particular premises, the Minister is
satisfied that:
(a) those premises are used, likely to
be used or frequented by a person engaged in, or reasonably suspected by the
Director‑General of being engaged in or of being likely to engage in,
activities prejudicial to security; and
(b) the use on behalf of the
Organisation of a listening device to listen to or record words, images, sounds
or signals communicated by or to persons in those premises will, or is likely
to, assist the Organisation in carrying out its function of obtaining
intelligence relevant to security;
the Minister may, by warrant signed by the Minister,
authorize the Organisation, subject to any conditions or restrictions that are
specified in the warrant, to use a listening device for the purpose of
listening to or recording words, images, sounds or signals communicated by or
to any person while the person is in those premises and such a warrant may
authorize the Organisation to enter those premises, or any other premises
specified in the warrant from which words, images, sounds or signals
communicated by or to any person while the person is in those first‑mentioned
premises can be listened to or recorded with the use of a listening device, for
the purpose of installing, maintaining or using a listening device.
(5) The warrant must:
(a) authorise the use of any force
that is necessary and reasonable to do the things mentioned in subsections (3)
and (4); and
(b) state whether entry is authorised
to be made at any time of the day or night or during stated hours of the day or
night.
(6) A warrant under this section shall
specify the period for which it is to remain in force, being a period not
exceeding 6 months, but may be revoked by the Minister at any time before the expiration
of the period so specified.
(6A) If a listening device is installed in
accordance with the warrant, the Organisation is authorised to do any of the
following:
(a) enter any premises for the purpose
of recovering the listening device;
(b) recover the listening device;
(c) use any force that is necessary
and reasonable to do either of the above;
at the following time:
(d) at any time while the warrant is
in force or within 28 days after it ceases to be in force;
(e) if the listening device is not
recovered at a time mentioned in paragraph (d)—at the earliest time, after
the 28 days mentioned in that paragraph, at which it is reasonably practicable
to do the things concerned.
(7) Subsection (6) shall not be
construed as preventing the issue of any further warrant.
(8) Nothing in this section, or in a warrant
under this section, applies to or in relation to the use of a listening device
for a purpose that would, for the purposes of the Telecommunications
(Interception and Access) Act 1979, constitute the interception of a
communication passing over a telecommunications system operated by a carrier or
a carriage service provider.
26A
Unlawful and lawful uses of tracking devices
Unlawful use of tracking devices
(1) Subject to subsection (2), it is
unlawful for an officer, employee or agent of the Organisation to use a
tracking device for the purpose of tracking a person or an object. It is the
duty of the Director‑General to take all reasonable steps to ensure that this
subsection is not contravened.
Note: Tracking device, track
and object are defined in subsection (3).
Lawful use of tracking device
(2) Despite any law of a State or Territory,
an officer, employee or agent of the Organisation does not act unlawfully, by
using, for the purposes of the Organisation, a tracking device for the purpose
of tracking a person or an object if:
(a) the person, or the person using
the object, consents to it being done; or
(b) the officer, employee or agent of
the Organisation does so in accordance with a warrant issued under section 26B
or 26C.
Definitions
(3) In this
section:
apply includes attach to or place on or in.
object means:
(a) a vehicle, aircraft, vessel or
other means of transportation; or
(b) clothing or any other thing worn;
or
(c) any other thing.
track an object or person means be aware of
the movement of the object or person from place to place.
tracking device means a device or substance
that, when applied to an object, enables a person to track the object or a
person using or wearing the object.
26B
Tracking device warrants relating to persons
Issue of warrant
(1) If the Director‑General requests the
Minister to do so, and the Minister is satisfied as mentioned in subsection (2),
the Minister may issue a warrant in accordance with this section.
Test for issue of warrant
(2) The Minister is only to issue the warrant
if he or she is satisfied that:
(a) a person (the subject)
is engaged in, or reasonably suspected by the Director‑General of being engaged
in or of being likely to engage in, activities prejudicial to security; and
(b) the use by the Organisation of a
tracking device applied to any object (a target object) used
or worn, or likely to be used or worn, by the subject to enable the
Organisation to track the subject will, or is likely to, assist the
Organisation in carrying out its function of obtaining intelligence relevant to
security.
Note: Tracking device, track,
object and apply are defined in subsection 26A(3).
Authorisation in warrant
(3) The warrant:
(a) must be signed by the Minister;
and
(b) must authorise the Organisation,
subject to any restrictions or conditions specified in the warrant, to use a
tracking device applied to a target object for the purpose of tracking the
subject, who must be specified in the warrant; and
(c) may authorise the Organisation to:
(i) enter any premises in
which a target object is or is likely to be found, for the purpose of applying
a tracking device to the target object, or using or maintaining a tracking
device so applied; and
(ii) enter or alter a
target object, for the purpose of applying, using or maintaining a tracking
device; and
(iii) apply a tracking
device to a target object; and
(iv) maintain a tracking
device applied to a target object; and
(v) any other thing
reasonably incidental to any of the above.
Authorisation of entry measures
(4) The warrant must:
(a) authorise the use of any force
that is necessary and reasonable to do the things specified in the warrant; and
(b) state whether entry is authorised
to be made at any time of the day or night or during stated hours of the day or
night.
Duration of warrant
(5) The warrant must specify the period
during which it is to remain in force. The period must not be more than 6
months, although the Minister may revoke the warrant before the period has
expired.
Issue of further warrants not prevented
(6) Subsection (5) does not prevent the
issue of any further warrant.
Tracking device may be recovered
(7) If a tracking device is applied to a
target object in accordance with the warrant, the Organisation is authorised to
do any of the following:
(a) enter any premises in which the
target object is or is likely to be found, for the purpose of recovering the
tracking device;
(b) enter or alter the target object
for the purpose of recovering the tracking device;
(c) recover the tracking device;
(d) use any force that is necessary
and reasonable to do any of the above;
at the following time:
(e) at any time while the warrant is
in force or within 28 days after it ceases to be in force;
(f) if the tracking device is not
recovered at a time mentioned in paragraph (e)—at the earliest time, after
the 28 days mentioned in that paragraph, at which it is reasonably practicable
to do the things concerned.
Interpretation
(8) Expressions used in this section that are
also used in section 26A have the same meanings as in that section.
26C
Tracking device warrants relating to objects
Issue of warrant
(1) If the Director‑General requests the
Minister to do so, and the Minister is satisfied as mentioned in subsection (2),
the Minister may issue a warrant in accordance with this section.
Test for issue of warrant
(2) The Minister is only to issue the warrant
if he or she is satisfied that:
(a) an object (the target object)
is used or worn, or likely to be used or worn by a person (whether or
not his or her identity is known) engaged in or reasonably suspected by the
Director‑General of being engaged in or of being likely to engage in,
activities prejudicial to security; and
(b) the use by the Organisation of a
tracking device applied to the target object to enable the Organisation to
track the target object will, or is likely to, assist the Organisation in
carrying out its function of obtaining intelligence relevant to security.
Note: Tracking device, track,
object and apply are defined in subsection 26A(3).
Authorisation in warrant
(3) The warrant:
(a) must be signed by the Minister;
and
(b) must authorise the Organisation,
subject to any restrictions or conditions specified in the warrant, to use
a tracking device applied to the target object for the purpose of tracking the
target object which must be specified in the warrant; and
(c) may authorise the Organisation to:
(i) enter any premises
specified in the warrant in which the target object is, or is likely to be,
found, for the purpose of applying a tracking device to the target object, or
maintaining or using a tracking device so applied; and
(ii) enter or alter the
target object, for the purpose of applying, maintaining or using a tracking
device; and
(iii) apply a tracking
device to the target object; and
(iv) maintain a tracking
device applied to the target object; and
(v) any other thing
reasonably incidental to any of the above.
Authorisation of entry measures
(4) The warrant must:
(a) authorise the use of any force
that is necessary and reasonable to do the things specified in the warrant; and
(b) state whether entry is authorised
to be made at any time of the day or night or during stated hours of the day or
night.
Duration of warrant
(5) The warrant must specify the period
during which it is to remain in force. The period must not be more than 6
months, although the Minister may revoke the warrant before the period has
expired.
Issue of further warrants not prevented
(6) Subsection (5) does not prevent the
issue of any further warrant.
Tracking device may be recovered
(7) If a tracking device is applied to a
target object in accordance with the warrant, the Organisation is authorised to
do any of the following:
(a) enter any premises in which the
target object is or is likely to be found, for the purpose of recovering the
tracking device;
(b) enter or alter the target object
for the purpose of recovering the tracking device;
(c) recover the tracking device;
(d) use any force that is necessary
and reasonable to do any of the above;
at the following time:
(e) at any time while the warrant is
in force or within 28 days after it ceases to be in force;
(f) if the tracking device is not
recovered at a time mentioned in paragraph (e)—at the earliest time, after
the 28 days mentioned in that paragraph, at which it is reasonably practicable
to do the things concerned.
Interpretation
(8) Expressions used in this section that are
also used in section 26A have the same meanings as in that section.
27
Inspection of postal articles
(1) It is unlawful:
(a) for a person, being an officer,
employee or agent of the Organisation acting in his or her capacity as such, to
seek from the Australian Postal Corporation or from an employee or agent of
that Corporation; or
(b) for that Corporation or an
employee or agent of that Corporation to provide to such a person;
access to a postal article that is in the course of the
post or information concerning the contents or cover of any postal article
except in pursuance of, or for the purposes of, a warrant under this section or
section 27A, and it is the duty of the Director‑General to take all
reasonable steps to ensure that this subsection is not contravened.
(2) Where, upon receipt by the Minister of a
request by the Director‑General for the issue of a warrant under this section
in relation to a person, the Minister is satisfied that:
(a) that person is engaged in or is
reasonably suspected by the Director‑General of being engaged in, or of being
likely to engage in, activities prejudicial to security; and
(b) access by the Organisation to
postal articles posted by or on behalf of, addressed to or intended to be
received by, that person, while the articles are in the course of the post,
will, or is likely to, assist the Organisation in carrying out its function of
obtaining intelligence relevant to security;
the Minister may, by warrant under his or her hand,
authorize the Organisation to do such of the following acts and things as the Minister
considers appropriate in the circumstances, namely, with respect to postal
articles in the course of the post that were posted by or on behalf of, or are
addressed to, that person or are reasonably suspected by a person authorized to
exercise the authority of the Organisation under the warrant to be intended to
be received by that person, to inspect, and make copies of, or of the covers
of, the articles, and to open the articles and inspect and make copies of the
contents of any such article.
(3) Where, upon receipt by the Minister of a
request by the Director‑General for the issue of a warrant under this section
in relation to an address, the Minister is satisfied that:
(a) some or all of the postal articles
that are being, or are likely to be, sent by post to that address are or will
be intended to be received by a person (whether of known identity or not)
engaged in, or reasonably suspected by the Director‑General of being engaged
in, or of being likely to engage in, activities prejudicial to security; and
(b) access by the Organisation to
postal articles posted to that address and intended to be received by the
person referred to in paragraph (a) will, or is likely to, assist the
Organisation in carrying out its function of obtaining intelligence relevant to
security;
the Minister may, by warrant under his or her hand,
authorize the Organisation to do such of the following acts and things as the
Minister considers appropriate in the circumstances, namely, with respect to
postal articles in the course of the post that are addressed to that address
and appear on their face to be, or are reasonably suspected by a person
authorized to exercise the authority of the Organisation under the warrant to
be, intended to be received by the person referred to in paragraph (a), to
inspect, and make copies of, or of the covers of, the articles and to open the
articles and inspect and make copies of the contents of any such article.
(4) A warrant under this section shall
specify the period for which it is to remain in force, being a period not
exceeding 6 months, but may be revoked by the Minister at any time before the
expiration of the period so specified.
(5) Subsection (4) shall not be
construed as preventing the issue of any further warrant.
(6) Where the Director‑General is informed
under section 32 of the issue of a warrant under this section, the
Director‑General must:
(a) cause the Australian Postal
Corporation to be informed of the issue of the warrant without delay; and
(b) where, under section 32, the
Director‑General receives the warrant—cause a certified copy of the warrant to
be given to the Australian Postal Corporation as soon as practicable.
(6A) Where:
(a) the Director‑General has been
informed under section 32 of the issue of a warrant under this section;
and
(b) the Director‑General is informed
under that section that the warrant has been revoked;
the Director‑General must:
(c) cause the Australian Postal
Corporation to be informed of the revocation without delay; and
(d) where, under section 32, the
Director‑General receives the instrument of revocation—cause a certified copy
of the instrument of revocation to be given to the Australian Postal
Corporation as soon as practicable.
(7) The Australian Postal Corporation shall
give to a person acting in pursuance of a warrant under this section all
reasonable assistance.
(8) Nothing in
Part VIIA of the Crimes Act 1914 or the Australian Postal
Corporation Act 1989 shall be taken to prohibit the doing of anything in
pursuance of, or for the purposes of, a warrant under this section.
(9) Nothing in subsection (1) applies in
relation to a postal article addressed to, or appearing to be intended to be
received by or on behalf of, the Organisation.
(10) In this
section:
address means any premises or place
(including a post office box or bag service) to which postal articles may be
addressed.
agent, in relation to the Australian Postal
Corporation, includes any person performing services for that Corporation
otherwise than under a contract of service and an employee of such a person.
27AA
Inspection of delivery service articles
Unlawful access to delivery service articles
(1) It is unlawful for:
(a) an officer, employee or agent of
the Organisation, for the purposes of the Organisation, to seek from a delivery
service provider or from an employee or agent of a delivery service provider;
or
(b) a delivery service provider or an
employee or agent of a delivery service provider to give an officer, employee
or agent of the Organisation, for the purposes of the Organisation;
access to:
(c) an article that is being delivered
by the delivery service provider; or
(d) information concerning the
contents or cover of any such article;
except in accordance with, or for the purposes of, a
warrant under this Division. It is the duty of the Director‑General to take all
reasonable steps to ensure that this subsection is not contravened.
Note: Delivery service provider, agent
and article are defined in subsection (12).
Issue of delivery services warrant
(2) If the Director‑General requests the
Minister to do so, and the Minister is satisfied as mentioned in subsection (3)
or (6), the Minister may issue a warrant in accordance with this section.
Test 1 for issue of warrant
(3) The Minister may issue a warrant if he or
she is satisfied that:
(a) a person (the subject)
is engaged in or is reasonably suspected by the Director‑General of
being engaged in, or of being likely to engage in, activities prejudicial to
security; and
(b) access by the Organisation to articles
sent by or on behalf of, addressed to or intended to be received by, the
subject while the articles are being delivered by a delivery service provider,
will, or is likely to, assist the Organisation in carrying out its function of
obtaining intelligence relevant to security.
Authorisation in warrant
(4) The warrant must be signed by the
Minister and must authorise the Organisation to do specified things, subject
to any restrictions or conditions specified in the warrant, in relation to
articles that:
(a) are being delivered by the
delivery service provider; and
(b) in respect of which any of the
following are satisfied:
(i) the articles have been
sent by or on behalf of the subject, who must be specified in the
warrant, or addressed to the subject; or
(ii) the articles are
reasonably suspected, by a person authorised to exercise the authority of the
Organisation under the warrant, of having been so sent or addressed; or
(iii) the articles are
intended to be received by the subject, who must be specified in the warrant,
or are reasonably suspected, by a person authorised to exercise the authority
of the Organisation under the warrant, of being intended to be received by the
subject.
Things that may be specified for a warrant issued under
subsection (3)
(5) The things that may be specified are any
of the following that the Minister considers appropriate in the circumstances:
(a) inspecting or making copies of the
articles or the covers of the articles;
(b) opening the articles;
(c) inspecting and making copies of
the contents of the articles;
(d) any other thing reasonably
incidental to any of the above.
Test 2 for issue of warrant
(6) The Minister may issue a warrant if he or
she is satisfied that:
(a) some or all of the articles that
are being, or are likely to be, sent by a delivery service provider to an
address (the subject address) are, or will be intended to be,
received by a person (the subject) (whether of
known identity or not) engaged in, or reasonably suspected by the Director‑General
of being engaged in, or of being likely to engage in, activities prejudicial to
security; and
(b) access by the Organisation to
articles sent to, or intended to be received by, the subject while the articles
are being delivered by a delivery service provider will, or is likely to,
assist the Organisation in carrying out its function of obtaining intelligence
relevant to security.
Authorisation in warrant
(7) The warrant must be signed by the
Minister and must authorise the Organisation to do specified things, subject to
any restrictions or conditions specified in the warrant, in relation to
articles that:
(a) are being delivered by the
delivery service provider; and
(b) are addressed to the subject
address, which must be specified in the warrant; and
(c) appear on their face to be, or are
reasonably suspected by a person authorised to exercise the authority of the
Organisation under the warrant to be, intended to be received by the subject.
Things that may be specified for warrant issued under subsection (6)
(8) The things that may be specified are any
of the following that the Minister considers appropriate in the circumstances:
(a) inspecting or making copies of any
of the articles or the covers of the articles;
(b) opening any of the articles;
(c) inspecting and making copies of
the contents of any of the articles;
(d) any other thing reasonably
incidental to any of the above.
Duration of warrant
(9) A warrant issued under this section must
specify the period during which it is to remain in force. The period must not
be more than 6 months, although the Minister may revoke the warrant before the
period has expired.
Issue of further warrants not prevented
(10) Subsection (9) does not prevent the
issue of any further warrant.
Definitions
(11) To avoid doubt, the expression deliver
an article includes any thing done by the deliverer, for the purpose of
delivering the article, from the time when the article is given to the
deliverer by the sender until it is given by the deliverer to the recipient.
(12) In this section:
agent, in relation to a delivery service
provider, includes:
(a) any person performing services for
the delivery service provider otherwise than under a contract of service; and
(b) an employee of the person
mentioned in paragraph (a).
article means any object reasonably capable
of being sent through the post.
delivery service provider means a person
whose business is or includes delivering articles.
27A
Warrants for the performance of functions under paragraph 17(1)(e)
(1) Where:
(a) the Director‑General gives a
notice in writing to the Minister requesting the Minister to issue a warrant
under this section in relation to premises, a person, a computer or a thing
identified in the notice authorising the Organisation to do acts or things
referred to in whichever of subsections 25(4) or (5), 25A(4), 26(3) or (4),
26B(3), 26C(3), 27(2) or (3) or 27AA(5) or (8) is or are specified in the
notice for the purpose of obtaining foreign intelligence relating to a matter
specified in the notice; and
(b) the Minister is satisfied, on the
basis of advice received from the relevant Minister, that the collection of
foreign intelligence relating to that matter is important in relation to the
defence of the Commonwealth or to the conduct of the Commonwealth’s
international affairs;
the Minister may, by warrant under his or her hand,
authorise the Organisation, subject to any conditions or restrictions that are
specified in the warrant, to do such of those acts or things in relation to
those premises, that person, that computer or those things as the Minister
considers appropriate in the circumstances and are specified in the warrant for
the purpose of obtaining that intelligence.
(2) The warrant must:
(a) authorise the use of any force
that is necessary and reasonable to do the things mentioned in subsection (1);
and
(b) state whether entry is authorised
to be made at any time of the day or night or during stated hours of the day or
night.
(3) A warrant under this section shall
specify the period for which it is to remain in force, being a period not
exceeding:
(a) in a case where the warrant
authorises the doing of acts or things referred to in subsection 25(4) or (5)—90
days;
(b) in a case where the warrant
authorises the doing of acts or things referred to in subsection 25A(4), 26(3)
or (4), 26B(3), 26C(3), 27(2) or (3) or 27AA(5) or (8)—6 months;
but may be revoked by the Minister at any time before the
end of the period so specified.
(3A) If a listening device is installed in
accordance with a warrant under this section authorising the doing of acts
referred to in subsection 26(3) or (4), the Organisation is authorised to do
any of the following:
(a) enter any premises for the purpose
of recovering the listening device;
(b) recover the listening device;
(c) use any force that is necessary
and reasonable to do either of the above;
at the following time:
(d) at any time while the warrant is
in force or within 28 days after it ceases to be in force;
(e) if the listening device is not
recovered at a time mentioned in paragraph (d)—at the earliest time, after
the 28 days mentioned in that paragraph, at which it is reasonably practicable
to do the things concerned.
(3B) If a tracking device is applied to a target
object in accordance with a warrant under this section authorising the doing of
acts referred to in subsection 26B(3) or 26C(3), the Organisation is authorised
to do any of the following:
(a) enter any premises in which the
target object is or is likely to be found, for the purpose of recovering the
tracking device;
(b) enter or alter the target object
for the purpose of recovering the tracking device;
(c) recover the tracking device;
(d) use any force that is necessary
and reasonable to do any of the above;
at the following time:
(e) at any time while the warrant is
in force or within 28 days after it ceases to be in force;
(f) if the tracking device is not
recovered at a time mentioned in paragraph (e)—at the earliest time, after
the 28 days mentioned in that paragraph, at which it is reasonably practicable
to do the things concerned.
(4) Subsection (3) shall not be
construed as preventing the issue of any further warrant.
(5) Nothing in this section, or in a warrant
under this section, applies to or in relation to the use of a listening device
for a purpose that would, for the purposes of the Telecommunications
(Interception and Access) Act 1979, constitute the interception of a
communication passing over a telecommunications system operated by a carrier or
a carriage service provider.
(6) Where the Director‑General is informed
under section 32 of the issue of a warrant under this section authorising
the doing of acts or things referred to in subsection 27(2) or (3), the
Director‑General must:
(a) cause the Australian Postal Corporation
to be informed of the issue of the warrant without delay; and
(b) where, under section 32, the
Director‑General receives the warrant—cause a certified copy of the warrant to
be given to the Australian Postal Corporation as soon as practicable.
(6A) Where:
(a) the Director‑General has been
informed under section 32 of the issue of a warrant under this section
authorising the doing of acts or things referred to in subsection 27(2) or (3);
and
(b) the Director‑General is informed
under section 32 that the warrant has been revoked;
the Director‑General must:
(c) cause the Australian Postal
Corporation to be informed of the revocation without delay; and
(d) where, under section 32, the
Director‑General receives the instrument of revocation—cause a certified copy
of the instrument of revocation to be given to the Australian Postal
Corporation as soon as practicable.
(7) The Australian Postal Corporation shall
give to a person acting pursuant to a warrant under this section authorising
the doing of acts or things referred to in subsection 27(2) or (3) all
reasonable assistance.
(8) Nothing in Part VIIA of the Crimes
Act 1914 or the Australian Postal Corporation Act 1989 shall be
taken to prohibit the doing of anything pursuant to, or for the purposes of, a
warrant under this section.
(9) The Director‑General shall not request
the issue of a warrant under this section for the purpose of collecting
information concerning an Australian citizen or a permanent resident.
(10) The reference in subsection (1) to
conditions or restrictions includes a reference to conditions or restrictions
designed to minimise the obtaining by the Organisation, pursuant to a warrant
issued under that subsection, of information that is not publicly available
concerning Australian citizens or permanent residents, or to minimise the
retention of information of that kind.
27B
Performance of other functions under paragraph 17(1)(e)
If:
(a) the Director‑General gives a
notice in writing to the Minister requesting the Minister to authorise the
Organisation to obtain foreign intelligence in relation to a matter specified
in the notice; and
(b) the Minister is satisfied, on the
basis of advice received from the relevant Minister, that the collection of
foreign intelligence relating to that matter is important in relation to the
defence of the Commonwealth or to the conduct of the Commonwealth’s
international affairs;
the Minister may, by writing signed by the Minister,
authorise the Organisation to obtain the intelligence in relation to the
matter.
28
Request for warrant to specify grounds
A request by the Director‑General for
the issue of a warrant under this Division shall specify the facts and other
grounds on which the Director‑General considers it necessary that the warrant
should be issued and (where appropriate) the grounds on which the Director‑General
suspects a person of being engaged in, or of being likely to engage in,
activities prejudicial to security.
29
Issue of certain warrants by Director‑General in emergency
(1) Where:
(a) the Director‑General has forwarded
or made a request to the Minister for the issue of a warrant under section 25,
25A, 26, 26B, 26C, 27 or 27AA;
(b) the Minister has not, to the
knowledge of the Director‑General, issued, or refused to issue, a warrant as a
result of the request and has not, within the preceding period of 3 months,
refused to issue a substantially similar warrant;
(c) the Director‑General has not,
within the preceding period of 3 months, issued a substantially similar
warrant; and
(d) the Director‑General is satisfied:
(i) that the facts of the
case would justify the issue of a warrant by the Minister; and
(ii) that, if the action to
be authorized by the warrant does not commence before a warrant can be issued
and made available by the Minister, security will be, or is likely to be,
seriously prejudiced;
the Director‑General may issue a warrant signed by the
Director‑General of the kind that could be issued by the Minister in pursuance
of the request.
(2) A warrant under this section shall
specify the period for which it is to remain in force, being a period that does
not exceed 48 hours, but may be revoked by the Minister at any time before the
expiration of the period so specified.
(3) Where the Director‑General issues a warrant
under this section, the Director‑General shall forthwith furnish to the
Minister:
(a) a copy of the warrant; and
(b) a statement of the grounds on
which the Director‑General is satisfied as to the matter referred to in subparagraph (1)(d)(ii).
(4) The Director‑General must, within 3
working days after issuing a warrant under this section, give a copy of the
warrant to the Inspector‑General of Intelligence and Security.
30
Discontinuance of action before expiration of warrant
Where, before a warrant under this
Division ceases to be in force, the Director‑General is satisfied that the
grounds on which the warrant was issued have ceased to exist, the Director‑General
shall forthwith inform the Minister accordingly and take such steps as are
necessary to ensure that action in pursuance of the warrant (other than the
recovery of a listening device or tracking device) is discontinued.
31
Certain records obtained under a warrant to be destroyed
Where:
(a) by virtue of a warrant under this
Division, a record or copy has been made;
(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;
the Director‑General shall cause the record or copy to be
destroyed.
32
Certain action in relation to requests and warrants
(1) Where the Director‑General makes a
request, otherwise than in writing, for the issue of a warrant under this
Division, the Director‑General shall forthwith forward to the Minister a
request in writing for the issue of a warrant.
(2) Where the Minister issues or revokes a
warrant under this Division, the Minister shall:
(a) cause the Director‑General to be
informed forthwith of the issue of the warrant or of the revocation, as the
case may be; and
(b) cause the warrant or the
instrument of revocation, as the case may be, to be forwarded as soon as
practicable to the Director‑General.
(3) The Minister shall record on each request
in writing for the issue of a warrant under this Division received by the
Minister from the Director‑General the Minister’s decision with respect to the
request and shall cause the request to be returned to the Director‑General.
(4) The Director‑General shall cause to be
retained in the records of the Organisation all warrants issued by the Director‑General
under this Division and all warrants and instruments of revocation received by
the Director‑General from, and all requests and other documents returned to the
Director‑General by, the Minister under this Division.
34
Director‑General to report to Minister
The Director‑General shall furnish to
the Minister in respect of each warrant issued under this Division a report in
writing on the extent to which the action taken under the warrant has assisted
the Organisation in carrying out its functions.
Division 3—Special powers relating to terrorism offences
Subdivision A—Preliminary
34A
Definitions
In this Division:
complaints agency means an Ombudsman, agency
or body:
(a) that is appointed or established
by a law of a State or Territory; and
(b) that is permitted or required to
investigate complaints about the police force or police service of the State or
Territory;
other than an agency or body prescribed by the regulations
for the purposes of this definition.
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.
lawyer means a person enrolled as a legal
practitioner of a federal court or the Supreme Court of a State or Territory.
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:
(a) the High Court; or
(b) the Federal Court of Australia; or
(c) the Family Court of Australia or of a State; or
(d) the Supreme Court of a State or
Territory; or
(e) the District Court (or equivalent)
of a State or Territory.
34AB Issuing authorities
(1) The Minister may, by writing, appoint as
an issuing authority a person who is:
(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.
34B
Prescribed authorities
(1) The Minister may, by writing, appoint as
a prescribed authority a person who has served as a judge in one or more
superior courts for a period of 5 years and no longer holds a commission as a
judge of a superior court.
(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:
(a) the person has by writing
consented to being appointed; and
(b) the consent is in force.
34C
Written statement of procedures
(1) The
Director‑General may prepare a written statement of procedures to be followed
in the exercise of authority under warrants issued under this Division.
Consultation
(2) The
Director‑General must consult the following persons about the preparation of
the statement:
(a) the Inspector‑General of
Intelligence and Security;
(b) the Commissioner of Police
appointed under the Australian Federal Police Act 1979.
Approval by Minister
(3) The Director‑General must give the
statement to the Minister for approval.
(4) The Minister must approve or refuse to
approve the statement.
Approved statement is a legislative instrument
(5) A statement prepared by the Director‑General
and approved by the Minister is a legislative instrument made by the Minister
on the day on which the statement is approved, but neither section 42 nor
Part 6 of the Legislative Instruments Act 2003 applies to the
statement.
Briefing of Parliamentary
Joint Committee on Intelligence and Security
(6) The Director‑General must brief the Parliamentary Joint Committee on Intelligence
and Security on the statement after it is approved by the Minister. The
briefing may be done orally or in writing.
Subdivision B—Questioning warrants
34D
Request for questioning warrant
Seeking of Minister’s consent to request for warrant
(1) The Director‑General may seek the
Minister’s consent to request the issue of a warrant under section 34E in
relation to a person.
(2) To
avoid doubt, this section operates in relation to a request for the issue of a
warrant under section 34E in relation to a person, even if a request for
the issue of a warrant under this Division has previously been made in relation
to the person.
(3) 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 this
Division relating to the person; and
(d) if one or more warrants were
issued under this Division as a result of the previous requests—a statement of:
(i) the period for which
the person has been questioned under each of those warrants before the draft
request is given to the Minister; and
(ii) if any of those
warrants authorised the detention of the person—the period for which the person
has been detained in connection with each such warrant before the draft request
is given to the Minister.
Minister’s consent to making of request
(4) 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
(c) that there is in force under
section 34C a written statement of
procedures to be followed in the exercise of authority under warrants issued
under this Division.
The Minister may make his or her consent subject to
changes being made to the draft request.
(5) In consenting to the making of a request,
the Minister must ensure that the warrant to be requested is to:
(a) permit the person to contact a
single lawyer of the person’s choice at any time the person is appearing before
a prescribed authority for questioning under the warrant; and
(b) permit the person to contact a
single lawyer of the person’s choice (subject to section 34ZO) at any time
that is a time the person is in detention in connection with the warrant and a
time after:
(i) the person has
informed the prescribed authority concerned, in the presence of a person
exercising authority under the warrant, of the identity of the lawyer whom the
person proposes to contact; and
(ii) a person exercising
authority under the warrant has had an opportunity to request the prescribed
authority to direct under section 34ZO that the person be prevented from
contacting the lawyer.
Note: Section 34K allows for detention in
connection with a warrant issued under section 34E.
Form of request
(6) If the Minister has consented under subsection (4), 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.
34E
Issue of questioning warrant
Issue of warrant
(1) An
issuing authority may issue a warrant under this section relating to a
person, but only if:
(a) the Director‑General has requested
it in accordance with subsection 34D(6); 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.
What the warrant authorises
(2) The warrant must, in the same terms as
the draft warrant given to the issuing authority as part of the request,
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.
Contacting a lawyer
(3) The warrant must specify that the person
is:
(a) permitted to contact a single
lawyer of the person’s choice at any time the person is appearing before a
prescribed authority for questioning under the warrant; and
(b) permitted to contact a single
lawyer of the person’s choice (subject to section 34ZO) at any time that
is a time the person is in detention in connection with the warrant and a time
after:
(i) the person has
informed the prescribed authority concerned, in the presence of a person
exercising authority under the warrant, of the identity of the lawyer whom the
person proposes to contact; and
(ii) a person exercising
authority under the warrant has had an opportunity to request the prescribed
authority to direct under section 34ZO that the person be prevented from
contacting the lawyer.
Note: Section 34K allows for detention in
connection with a warrant issued under this section.
Warrant must authorise certain actions by the
Organisation
(4) 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.
Warrant to be signed and to specify the period it is in
force
(5) 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.
Subdivision C—Questioning and detention warrants
34F
Request for questioning and detention warrant
Seeking of Minister’s consent to request for warrant
(1) The Director‑General may seek the
Minister’s consent to request the issue of a warrant under section 34G in
relation to a person.
(2) To
avoid doubt, this section operates in relation to a request for the issue of a
warrant under section 34G in relation to a person, even if a request for
the issue of a warrant under this Division has previously been made in relation
to the person.
(3) 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 this
Division relating to the person; and
(d) if one or more warrants were
issued under this Division as a result of the previous requests—a statement of:
(i) the period for which
the person has been questioned under each of those warrants before the draft
request is given to the Minister; and
(ii) if any of those
warrants authorised the detention of the person—the period for which the person
has been detained in connection with each such warrant before the draft request
is given to the Minister.
Minister’s consent to making of request
(4) 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
(c) that there is in force under
section 34C a written statement of
procedures to be followed in the exercise of authority under warrants issued
under this Division; and
(d) 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.
The Minister may make his or her consent subject to
changes being made to the draft request.
(5) In consenting to the making of a request,
the Minister must ensure that the warrant to be requested is to permit the
person to contact a single lawyer of the person’s choice (subject to section 34ZO)
at any time that:
(a) is a time while the person is in
detention in connection with the warrant; and
(b) is after:
(i) the person has been
brought before a prescribed authority for questioning; and
(ii) the person has
informed the prescribed authority, in the presence of a person exercising
authority under the warrant, of the identity of the lawyer whom the person
proposes to contact; and
(iii) a person exercising
authority under the warrant has had an opportunity to request the prescribed
authority to direct under section 34ZO that the person be prevented from
contacting the lawyer.
(6) If, before the Director‑General seeks the
Minister’s consent to the request (the proposed request), the
person has been detained under this Division in connection with one or more
warrants (the earlier warrants) issued under this Division:
(a) the Minister must take account of
those facts in deciding whether to consent; and
(b) the Minister may consent only if
the Minister is satisfied that the issue of the warrant to be requested is
justified by information that is additional to or materially different from
that known to the Director‑General at the time the Director‑General sought the
Minister’s consent to request the issue of the last of the earlier warrants
issued before the seeking of the Minister’s consent to the proposed request.
This subsection has effect in addition to subsection (4).
Form of request
(7) If the Minister has consented under subsection (4), 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.
34G
Issue of questioning and detention warrant
Issue of warrant
(1) An
issuing authority may issue a warrant under this section relating to a
person, but only if:
(a) the Director‑General has requested
it in accordance with subsection 34F(7); 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.
Previous detention
(2) If the person has already been detained
under this Division in connection with one or more warrants (the earlier
warrants) issued under this Division:
(a) the issuing authority must take
account of those facts in deciding whether to issue the warrant requested; and
(b) the issuing authority may issue
the warrant requested only if the authority is satisfied that:
(i) the issue of that
warrant is justified by information additional to or materially different from
that known to the Director‑General at the time the Director‑General sought the
Minister’s consent to request the issue of the last of the earlier warrants
issued before the seeking of the Minister’s consent to the request for the
issue of the warrant requested; and
(ii) the person is not
being detained under this Division in connection with one of the earlier
warrants.
This subsection has effect in addition to subsection (1).
What the warrant authorises
(3) The warrant must, in the same terms as
the draft warrant given to the issuing authority as part of the request, do the
following:
(a) authorise a specified person to
be:
(i) taken into custody
immediately by a police officer; and
(ii) brought before a
prescribed authority immediately for questioning under the warrant; and
(iii) detained under arrangements
made by a police officer for the period described in subsection (4);
(b) permit the person to contact
identified persons at specified times when the person is in custody or
detention authorised by the warrant.
(4) The period starts when the person is
first brought before a prescribed authority under the warrant and ends at the
first time one of the following events happens:
(a) someone exercising authority under
the warrant informs the prescribed authority before whom the person is
appearing for questioning that the Organisation does not have any further
request described in paragraph (7)(a) to make of the person;
(b) section 34R prohibits anyone
exercising authority under the warrant from questioning the person under the
warrant;
(c) the passage of 168 hours starting
when the person was first brought before a prescribed authority under the
warrant.
Contacting persons
(5) The
warrant may identify someone whom the person is permitted to contact by
reference to the fact that he or she is a lawyer of the person’s choice 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(3) of the Acts
Interpretation Act 1901.
Note 2: Section 34K
permits the person to contact the Inspector‑General of Intelligence and
Security, the Ombudsman and a person referred to in paragraph 40SB(3)(b)
of the Australian Federal Police Act 1979 while the person is in custody or detention, so the warrant must
identify them.
Note 3: A warrant issued under this section must permit
the person to contact a single lawyer of the person’s choice, so the warrant
must identify such a lawyer.
(6) The warrant may specify times when the
person is permitted to contact someone identified as a lawyer of the person’s
choice by reference to the fact that the times are:
(a) while the person is in detention
in connection with the warrant; and
(b) after:
(i) the person has been
brought before a prescribed authority for questioning; and
(ii) the person has
informed the prescribed authority, in the presence of a person exercising
authority under the warrant, of the identity of the lawyer whom the person
proposes to contact; and
(iii) a person exercising
authority under the warrant has had an opportunity to request the prescribed
authority to direct under section 34ZO that the person be prevented from
contacting the lawyer.
Warrant must authorise certain actions by the
Organisation
(7) 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.
Warrant to be signed and to specify the period it is in
force
(8) 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.
34H Person taken into custody under warrant to be
immediately brought before prescribed authority
If the person is taken into custody by a
police officer exercising authority under the warrant, the officer must make
arrangements for the person to be immediately brought before a prescribed
authority for questioning.
Subdivision D—Certain obligations and protections relating to a warrant
issued under Subdivision B or C
Note: Subdivision E sets out other obligations and
protections relating to a warrant issued under Subdivision B or C (as well as
dealing with other matters).
34J
Prescribed authority must explain warrant
(1) When a person first appears before a
prescribed authority for questioning under a warrant issued under this
Division, the prescribed authority must inform the person of the following:
(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 34L
(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 Ombudsman Act 1976 in relation to the Australian Federal Police;
(iii) to a complaints agency
in relation to the police force or police service of the State or Territory
concerned;
(ea) the person’s right to give
information orally or in writing, under Division 2 of Part V of the Australian
Federal Police Act 1979, to a person referred to in subsection
40SA(1) of that Act 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.
(3) The prescribed authority before whom the
person appears for questioning must inform the person of the role of the
prescribed authority. In particular, the prescribed authority must inform the
person that the role of the prescribed authority includes:
(a) supervising the questioning of the
person; and
(b) giving appropriate directions
under section 34K in relation to the person.
(4) The prescribed authority before whom the
person appears for questioning must inform the person of 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).
(5) 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.
Note: For example, the person may be able to apply
to the Federal Court of Australia under subsection 39B(1) of the Judiciary
Act 1903, or the High Court of Australia under paragraph 75(v) of the
Constitution, for a remedy in relation to the warrant or the treatment of the
person in connection with the warrant.
34K
Directions by prescribed authority etc.
Directions relating to detention or further appearance
(1) At any time when a person is before a
prescribed authority for questioning under a warrant issued under this
Division, 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 has a particular
legal or familial relationship with the person) or any person and to
disclose information other than specified information while in contact;
(e) a direction to defer questioning
of the person under the warrant;
(f) a direction for the person’s
further appearance before the prescribed authority for questioning under the
warrant;
(g) 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 34Q 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) To avoid doubt, the mere fact that the
warrant is issued under section 34E does not prevent a direction under subsection (1)
of this section from being consistent with the warrant for the purposes of subsection (2)
of this section.
Note: A warrant issued under section 34E
requires a person to appear before a prescribed authority for questioning under
the warrant (rather than authorising the person to be taken into custody,
brought before a prescribed authority and detained).
(4) 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.
(5) A direction under subsection (1)
must not result in:
(a) a person being detained after the
first time when either of the following events happens:
(i) someone exercising
authority under the warrant informs the prescribed authority before whom the person
is appearing for questioning that the Organisation does not have any further
request described in paragraph 34E(4)(a) or 34G(7)(a) to make of the person;
(ii) section 34R
prohibits anyone exercising authority under the warrant from questioning the person
under the warrant; or
(b) a person’s detention being
arranged by a person who is not a police officer.
Note: Section 34S also provides that this
Division does not authorise a person to be detained for a continuous period of
more than 168 hours.
Giving effect to directions
(6) Directions given by a prescribed
authority have effect, and may be implemented or enforced, according to their
terms.
(7) 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 this Division 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
(8) 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
this Division:
(a) an issuing authority issuing a
further warrant under this Division;
(b) the person being detained under
this Division in connection with the further warrant.
Complaints while appearing before a prescribed
authority for questioning
(9) If:
(a) a person is appearing before a
prescribed authority for questioning under a warrant issued under this
Division; and
(b) the person informs the prescribed
authority that the person wants:
(i) to make an oral or
written complaint of the kind referred to in paragraph 34J(1)(e); or
(ii) to give oral or written
information of the kind referred to in paragraph 34J(1)(ea); and
(c) the person requests facilities to
make the complaint or give the information; and
(d) the prescribed authority gives a
direction under subsection (1) deferring questioning of the person under
the warrant;
then anyone exercising authority under the warrant must
give the person facilities for making the complaint or giving the information.
Communications while in custody or detention
(10) 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.
(11) 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 (10) does not
affect the operation of sections 10 and 13 of the Inspector‑General of
Intelligence and Security Act 1986 in relation to contact between the
person and the Inspector‑General of Intelligence and Security; 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 to make a
complaint orally under section 10 of the Inspector‑General of
Intelligence and Security Act 1986 if the person requests them; and
(d) subsection (10) does not
affect the operation of section 7 of the Ombudsman Act 1976 in
relation to contact between the person and the Ombudsman in respect of a
complaint, or proposed complaint, about the Australian Federal Police; and
(e) anyone holding the person in
custody or detention under this Division must give the person facilities for
contacting the Ombudsman to make a complaint orally under section 7 of the
Ombudsman Act 1976 if the person requests them; and
(f) subsection (10) does not
affect the operation of section 40SB of the Australian Federal Police
Act 1979 in relation to contact between the person and a person referred to
in paragraph 40SB(3)(b) of that Act; and
(g) anyone holding the person in
custody or detention under this Division must give the person facilities for
contacting the Commissioner of the Australian Federal Police to give
information orally under section 40SA of the Australian Federal Police
Act 1979 if the person requests them; and
(h) subsection (10) does not
affect the person’s right to make a complaint to a complaints agency in
relation to the police force or police service of the State or Territory concerned;
and
(i) anyone holding the person in
custody or detention under this Division must give the person facilities for
contacting a complaints agency to make an oral or written complaint of the kind
mentioned in paragraph (h) if the person requests them.
Note: The sections mentioned in paragraphs (11)(b),
(d) and (f) give the person an entitlement to facilities for making a written
complaint or for giving written information.
34L
Giving information and producing things etc.
(1) A person must appear before a prescribed
authority for questioning, in accordance with a warrant issued under this
Division or a direction given under section 34K.
Penalty: Imprisonment for 5 years.
(2) A person who is before a prescribed
authority for questioning under a warrant issued under this Division must not
fail to give any information requested in accordance with the warrant.
Penalty: Imprisonment for 5 years.
(3) Subsection (2) 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 (3) (see subsection 13.3(3) of the Criminal
Code).
(4) A person commits an offence if:
(a) the person is before a prescribed
authority for questioning under a warrant issued under this Division; and
(b) the person makes a statement that
is, to the person’s knowledge, false or misleading; and
(c) the statement is made in purported
compliance with a request for information made in accordance with the warrant.
Penalty: Imprisonment for 5 years.
(5) Subsection (4) does not apply if the
statement is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) A person who is before a prescribed
authority for questioning under a warrant issued under this Division 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 (2)
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.
34M
Interpreter provided at request of prescribed authority
(1) This section applies if the prescribed
authority before whom a person first appears for questioning under a warrant
issued under this Division believes on reasonable grounds that the person is
unable, because of inadequate knowledge of the English language or a physical
disability, to communicate with reasonable fluency in that language.
(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 34J 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.
34N
Interpreter provided at request of person being questioned
(1) This section applies if a person
appearing before a prescribed authority under a warrant issued under this
Division requests the presence of an interpreter.
(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 34J 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 34J.
34P
Inspector‑General of Intelligence and Security may be present at questioning or
taking into custody
To avoid doubt, for the purposes of
performing functions under the Inspector‑General of Intelligence and
Security Act 1986, the Inspector‑General of Intelligence and Security, or
an APS employee assisting the Inspector‑General, may be present at the
questioning or taking into custody of a person under this Division.
34Q Suspension of questioning etc. in response to
concern of Inspector‑General of Intelligence and Security
(1) This section applies if the Inspector‑General
of Intelligence and Security is concerned about impropriety or illegality in connection
with the exercise or purported exercise of powers under this Division in
relation to a person specified in a warrant issued under this Division.
Note: For example, the Inspector‑General may be
concerned because he or she has been present at a questioning under section 34P.
(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 suspending:
(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 34K 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.
34R
End of questioning under warrant
(1) Anyone exercising authority under a
warrant issued under this Division must not question a person under the warrant
if the person has been questioned under the warrant for a total of 8 hours,
unless the prescribed authority before whom the person was being questioned
just before the end of that 8 hours permits the questioning to continue for the
purposes of this subsection.
(2) Anyone exercising authority under a
warrant issued under this Division must not question a person under the warrant
if the person has been questioned under the warrant for a total of 16 hours,
unless the prescribed authority before whom the person was being questioned
just before the end of that 16 hours permits the questioning to continue for
the purposes of this subsection.
(3) Anyone exercising authority under the
warrant may request the prescribed authority to permit the questioning to
continue for the purposes of subsection (1) or (2). The request may be
made in the absence of:
(a) the person being questioned; and
(b) a legal adviser to that person;
and
(c) a parent of that person; and
(d) a guardian of that person; and
(e) another person who meets the
requirements of subsection 34ZE(7) in relation to that person; and
(f) anyone the person being
questioned is permitted by a direction under section 34K to contact.
(4) The prescribed authority may permit the
questioning to continue for the purposes of subsection (1) or (2), but
only if he or she is satisfied that:
(a) there are reasonable grounds for
believing that permitting the continuation will substantially assist the
collection of intelligence that is important in relation to a terrorism
offence; and
(b) persons exercising authority under
the warrant conducted the questioning of the person properly and without delay
in the period mentioned in that subsection.
(5) The prescribed authority may revoke the
permission. Revocation of the permission does not affect the legality of
anything done in relation to the person under the warrant before the
revocation.
(6) Anyone exercising authority under a
warrant issued under this Division must not question a person under the warrant
if the person has been questioned under the warrant for a total of 24 hours.
Release from detention when further questioning is
prohibited
(7) If the warrant is issued under section 34G,
the prescribed authority must, at whichever one of the following times is
relevant, direct under paragraph 34K(1)(g) that the person be released
immediately from detention:
(a) at the end of the period mentioned
in subsection (1) or (2), if the prescribed authority does not permit, for
the purposes of that subsection, the continuation of questioning;
(b) immediately after revoking the
permission, if the permission was given but later revoked;
(c) at the end of the period described
in subsection (6).
Subsection 34K(2) does not prevent the prescribed
authority from giving a direction in accordance with this subsection.
Extra time for questioning with interpreter present
(8) Subsections (9), (10), (11) and (12)
apply if, because of section 34M or 34N, an interpreter is present at any
time while a person is questioned under a warrant issued under this Division.
(9) Anyone exercising authority under the
warrant must not question the person under the warrant if the person has been
questioned under the warrant for a total of 24, 32 or 40 hours, unless the
prescribed authority before whom the person was being questioned just before
the duration of that questioning reached that total permits the questioning to
continue beyond that total for the purposes of this subsection.
(10) Subsections (3), (4) and (5) and paragraph (7)(b)
apply in relation to permitting, for the purposes of subsection (9), the
questioning to continue beyond a total mentioned in subsection (9) in the
same way as they apply in relation to permitting the questioning to continue
for the purposes of subsection (1) or (2).
(11) Subsection (6) and paragraph (7)(c)
apply as if that subsection referred to a total of 48 hours (instead of 24
hours).
(12) Paragraph (7)(a) applies as if it
referred to the time at which the duration of questioning reached the total
mentioned in subsection (1), (2) or (9) beyond which the questioning is
not permitted to continue.
Time that is not questioning time
(13) For the purposes of working out the time
that a person has been questioned under a warrant, disregard the following
times:
(a) the time taken by a prescribed
authority to inform the person of the matters referred to in section 34J;
(b) any time during which a prescribed
authority has deferred questioning of the person under the warrant to allow:
(i) the change of a thing
in equipment being used to record the questioning of the person; or
(ii) the person to make a
complaint of the kind referred to in paragraph 34J(1)(e); or
(iia) the person to give
information of the kind referred to in paragraph 34J(1)(ea); or
(iii) the person to contact
a lawyer or another person as provided by this Division; or
(iv) the person to receive
medical attention; or
(v) the person to engage in
religious practices as required by the person’s religion; or
(vi) the person to rest or
recuperate;
(c) any time during which a prescribed
authority has suspended questioning of the person under the warrant as
mentioned in subsection 34Q(4);
(d) any other time determined by a
prescribed authority before whom the person appears for questioning.
34S
Person not to be detained for more than 168 hours continuously
This Division does not authorise a
person to be detained for a continuous period of more than 168 hours.
Subdivision E—Other provisions
34T
Humane treatment of person specified in warrant
(1) This section applies to a person
specified in a warrant issued under this Division while anything is being done
in relation to the person under the warrant or a direction given under section 34K.
(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.
34U Entering premises to take person into custody
(1) If:
(a) either
a warrant issued under section 34G, or subsection 34K(7), authorises a
person to be taken into custody; and
(b) a
police officer believes on reasonable grounds that the person is on any
premises;
the officer may enter
the premises, using such force as is necessary and reasonable in the
circumstances, at any time of the day or night for the purpose of searching the
premises for the person or taking the person into custody.
(2) However,
if subsection 34K(7) authorises a person to be taken into custody, a police
officer must not enter a dwelling house under subsection (1) of this
section at any time during the period:
(a) commencing
at 9 pm on a day; and
(b) ending
at 6 am on the following day;
unless the officer
believes on reasonable grounds that it would not be practicable to take the
person into custody under subsection 34K(7), either at the dwelling house or
elsewhere, at another time.
(3) In this section:
dwelling house includes an aircraft, vehicle or vessel, and a
room in a hotel, motel, boarding house or club, in which people ordinarily
retire for the night.
premises includes any land, place, vehicle, vessel or
aircraft.
34V Use of force in taking person into custody and
detaining person
(1) A police officer may use such force as is
necessary and reasonable in:
(a) taking a person into custody
under:
(i) a warrant issued under
section 34G; or
(ii) subsection 34K(7); or
(b) preventing the escape of a person
from such custody; or
(c) bringing a person before a
prescribed authority for questioning under a warrant issued under this
Division; or
(d) detaining a person in connection
with a warrant issued under this Division.
(2) However, a police officer must not, in
the course of an act described in subsection (1) in relation to a person,
use more force, or subject the person to greater indignity, than is necessary
and reasonable to do the act.
(3) Without limiting the operation of subsection (2),
a police officer must not, in the course of an act described in subsection (1)
in relation to a person:
(a) do anything that is likely to
cause the death of, or grievous bodily harm to, the person unless the officer
believes on reasonable grounds that doing that thing is necessary to protect
life or to prevent serious injury to another person (including the officer); or
(b) if the person is attempting to
escape being taken into custody by fleeing—do such a thing unless:
(i) the officer believes
on reasonable grounds that doing that thing is necessary to protect life or to
prevent serious injury to another person (including the officer); and
(ii) the person has, if
practicable, been called on to surrender and the officer believes on reasonable
grounds that the person cannot be taken into custody in any other manner.
34W
Surrender of passport by person in relation to whom warrant is sought
(1) If the Director‑General has sought the
Minister’s consent to request the issue of a warrant under this Division in
relation to a person, then, as soon as practicable after that person is
notified of that action and of the effect of this subsection, the person must
deliver to an enforcement officer every passport that:
(a) is an Australian passport (as
defined in the Australian Passports Act 2005), or a foreign passport,
that has been issued to the person; and
(b) the person has in his or her
possession or control.
Penalty: Imprisonment for 5 years.
(2) The Director‑General must cause a
passport delivered under subsection (1) to be returned to the person to
whom it was issued, as soon as practicable after the first of the following
events:
(a) the Minister refuses to consent to
request the issue of a warrant under this Division in relation to the person;
(b) an issuing authority refuses to
issue a warrant under this Division in relation to the person;
(c) if a warrant under this Division
is issued in relation to the person—the end of the period specified in the warrant
as the period during which the warrant is to be in force;
but the Director‑General may cause the passport to be
returned to that person earlier.
(3) Subsection (2) does not require:
(a) the return of a passport during
the period specified in another warrant, issued in relation to the person under
this Division, as the period during which the other warrant is to be in force;
or
(b) the return of a passport that has
been cancelled.
(4) If a warrant under this Division is
issued in relation to the person, a person approved under subsection 24(1) in
relation to the warrant may, after a passport of the first‑mentioned person is
delivered under subsection (1) and before it is returned under subsection (2):
(a) inspect or examine the passport;
and
(b) make copies or transcripts of it.
(5) In this section:
enforcement officer means any of the
following:
(a) a member of the Australian Federal
Police;
(b) an officer of the police force of
a State or Territory;
(c) an officer of Customs (within the
meaning of the Customs Act 1901).
34X
Person in relation to whom warrant is sought must not leave Australia without permission
(1) A person commits an offence if:
(a) the person has been notified:
(i) that the Director‑General
has sought the Minister’s consent to request the issue of a warrant under this
Division in relation to the person; and
(ii) of the effect of this
subsection in connection with that action; and
(b) the person leaves Australia; and
(c) the leaving occurs after the
person has been notified that the Director‑General has sought the Minister’s
consent and of the effect of this subsection in connection with that action,
and before the first of the following events:
(i) if the Minister
refuses to consent to request the issue of a warrant under this Division in
relation to the person—that refusal;
(ii) if an issuing
authority refuses to issue a warrant under this Division in relation to the
person—that refusal;
(iii) if a warrant under
this Division is issued in relation to the person—the end of the period
specified in the warrant as the period during which the warrant is to be in
force; and
(d) the person does not have written
permission from the Director‑General to leave Australia at the time the person
leaves Australia.
Penalty: Imprisonment for 5 years.
(2) The Director‑General may give written
permission for a person to leave Australia at a specified time. The permission
may be given either unconditionally or subject to specified conditions.
Note 1: The Director‑General may revoke or amend the
permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition
and the condition is not met, the permission is not in force.
34Y
Surrender of passport by person specified in warrant
(1) As soon as practicable after the person
specified in a warrant issued under this Division is notified of the issue of
the warrant and of the effect of this subsection, the person must deliver to
someone exercising authority under the warrant every passport that:
(a) is an Australian passport (as
defined in the Australian Passports Act 2005), or a foreign passport,
that has been issued to the person; and
(b) the person has in his or her
possession or control.
Penalty: Imprisonment for 5 years.
(2) The Director‑General must cause a
passport delivered under subsection (1) to be returned to the person to
whom it was issued, as soon as practicable after the end of the period
specified in the warrant as the period during which the warrant is to be in
force, but may cause the passport to be returned to that person earlier.
(3) Subsection (2) does not require:
(a) the return of a passport during
the period specified in another warrant, issued in relation to the person under
this Division, as the period during which the other warrant is to be in force;
or
(b) the return of a passport that has
been cancelled.
(4) After a passport is delivered under subsection (1)
and before it is returned under subsection (2), a person approved under
subsection 24(1) in relation to the warrant mentioned in subsection (1) of
this section may:
(a) inspect or examine the passport;
and
(b) make copies or transcripts of it.
34Z
Person specified in warrant must not leave Australia without permission
(1) A person commits an offence if:
(a) the person has been notified of:
(i) the issue of a warrant
under this Division that specifies the person; and
(ii) the effect of this
subsection in connection with the warrant; and
(b) the person leaves Australia; and
(c) the leaving occurs:
(i) after the person has
been notified of the issue of the warrant and of the effect of this subsection
in connection with the warrant; and
(ii) before the end of the
period specified in the warrant as the period during which the warrant is to be
in force; and
(d) the person does not have written
permission from the Director‑General to leave Australia at the time the person
leaves Australia.
Penalty: Imprisonment for 5 years.
(2) The Director‑General may give written
permission for a person to leave Australia at a specified time. The permission
may be given either unconditionally or subject to specified conditions.
Note 1: The Director‑General may revoke or amend the
permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition
and the condition is not met, the permission is not in force.
34ZA
Video recording of procedures
(1) The Director‑General must ensure that
video recordings are made of the following:
(a) a person’s appearance before a
prescribed authority for questioning under a warrant issued under this
Division;
(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 this Division when he or she is not appearing before
a prescribed authority for questioning under the warrant.
34ZB
Power to conduct an ordinary search or a strip search
(1) If a person has been detained under this
Division, a police officer may:
(a) conduct an ordinary search of the
person; or
(b) subject to this section, conduct a
strip search of the person.
(2) 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.
(3) 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.
(4) The prescribed authority’s approval may
be obtained by telephone, fax or other electronic means.
(5) A strip search may also be conducted if
the person consents in writing.
(6) A medical practitioner may be present
when a strip search is conducted, and he or she may assist in the search.
(7) If a prescribed authority gives or
refuses to give an approval for the purposes of paragraph (3)(c), the
prescribed authority must make a record of the decision and of the reasons for
the decision.
(8) Such force as is necessary and reasonable
in the circumstances may be used to conduct a strip search under subsection (1).
(9) Any item:
(a) of a kind mentioned in paragraph (3)(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.
34ZC
Rules for conduct of strip search
(1) A strip
search under section 34ZB:
(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 (4), 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 16; and
(f) if, in a prescribed authority’s
opinion, the person being searched is at least 16 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.
(4) 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.
(5) If any of a person’s garments are seized
as a result of a strip search, the person must be provided with adequate
clothing.
34ZD
Power to remove, retain and copy materials etc.
(1) In addition to the things that the
Organisation is authorised to do that are specified in a warrant issued under
this Division, the Organisation is also authorised:
(a) to remove and retain 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 34ZC, to
examine any items or things removed from a person during a search of the person
under this Division; and
(c) to retain, and make copies of, any
item seized under paragraph 34ZB(9)(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
34ZB(9)(a).
(3) A record or other thing, or an item,
retained as mentioned in paragraph (1)(a) or (c) may be retained:
(a) if returning the record, thing or
item would be prejudicial to security—only until returning the record, thing or
item would no longer be prejudicial to security; and
(b) otherwise—for only such time as is
reasonable.
34ZE Special rules for young people
Rules for persons under 16
(1) A warrant issued under this Division has
no effect if the person specified in it is under 16.
(2) If a person appears before a prescribed
authority for questioning as a result of the issue of a warrant under this
Division and the prescribed authority is satisfied on reasonable grounds that
the person is under 16, 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 34K(1)(g) that the person be released from
detention.
(3) Subsection 34K(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 16 but under 18
(4) If the Director‑General seeks the
Minister’s consent to request the issue of a warrant under this Division in
relation to a person and the Minister is satisfied on reasonable grounds that
the person is at least 16 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 this Division relating to a person whom the authority is satisfied on
reasonable grounds is at least 16 but under 18 only if the draft warrant
included in the request for the warrant meets the requirements in subsection (6).
Note: Section 34E or 34G 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
(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
34K(1)(f) 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 this Division and the
prescribed authority is satisfied on reasonable grounds that the person is at
least 16 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 in connection with the
warrant; and
(iii) may contact a single
lawyer of the person’s choice when the person is in detention in connection
with 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 34K(1)(d)
that the person may contact someone described in subparagraph (a)(ii) 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
34K(1)(f) for the person’s further appearance before the prescribed authority
for questioning.
(9) Subsection 34K(2) does not prevent the
prescribed authority from giving a direction in accordance with paragraph (8)(d)
of this section.
(10) To avoid doubt, paragraphs (6)(b) and
(8)(e) do not affect the operation of section 34R.
34ZF Offences of contravening safeguards
(1) A person commits an offence if:
(a) the person has been approved under
section 24 to exercise authority conferred by a warrant issued under this
Division; 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 34H;
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 34K(1)(c), (d), (e),
(f) or (g) or subsection 34Q(4), 34ZE(2) or (8) or 34ZR(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 subsection
34K(9), paragraph 34K(11)(c), (e), (g) or (i), subsection 34M(4), paragraph
34N(3)(b) or (4)(a) or subsection 34T(2); and
(c) the person knows of the
contravention.
Penalty: Imprisonment for 2 years.
(5) A person commits an offence if:
(a) the person has been approved under
section 24 to exercise authority conferred by a warrant issued under this
Division; and
(b) the person exercises, or purports
to exercise, the authority by questioning another person; and
(c) the questioning contravenes
section 34R; and
(d) the person knows of the
contravention.
Penalty: Imprisonment for 2 years.
(6) 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 34ZC(1); and
(d) the searcher knows of the lack of
approval and consent or of the contravention.
Penalty: Imprisonment for 2 years.
(7) 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
34ZC(5); and
(d) the searcher knows of the
contravention.
Penalty: Imprisonment for 2 years.
(8) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
34ZG
Complaints and information about contravention of procedural statement
(1) Contravention of the written statement of
procedures in force under section 34C may be the subject of:
(a) a complaint to the Inspector‑General
of Intelligence and Security under the Inspector‑General of Intelligence and
Security Act 1986; or
(b) a complaint to the Ombudsman under
the Ombudsman Act 1976; or
(c) information given under Division 2
of Part V of the Australian Federal Police Act 1979 to a person
referred to in subsection 40SA(1) of that Act.
(2) This section does not limit:
(a) the subjects of complaint under:
(i) the Inspector‑General
of Intelligence and Security Act 1986; or
(ii) the Ombudsman Act
1976; or
(b) the subject of information given
under Division 2 of Part V of the Australian Federal Police Act
1979.
34ZH
Providing reports to the Minister
The Director‑General must give the
Minister, for each warrant issued under this Division, a written report on the
extent to which the action taken under the warrant has assisted the
Organisation in carrying out its functions.
34ZI
Providing information to the Inspector‑General
The Director‑General must, as soon as
practicable, give the following to the Inspector‑General of Intelligence and
Security:
(a) a
copy of any draft request given to the Minister under subsection 34D(3) or
34F(3) in seeking the Minister’s consent to request the issue of a warrant
under this Division;
(b) a copy of any warrant issued under
this Division;
(c) a copy of any video recording made
under section 34ZA;
(d) a statement containing details of
any seizure, taking into custody, or detention under this Division;
(e) a
statement describing any action the Director‑General has taken as a
result of being informed of the Inspector‑General’s concern under section 34Q.
34ZJ
Reporting by Inspector‑General on multiple warrants
(1) This section imposes requirements on the
Inspector‑General of Intelligence and Security if:
(a) a person is detained under this
Division in connection with a warrant issued under this Division; and
(b) one or more other warrants (the later
warrants) are issued later under section 34G in relation to the
person.
(2) The Inspector‑General must inspect a copy
of the draft request given to the Minister under subsection 34D(3) or 34F(3)
for each of the warrants, to determine whether the draft request for each of
the later warrants included information described in paragraph 34F(6)(b).
Note: Paragraph 34F(6)(b) describes information
additional to or materially different from that known to the Director‑General
at the time the Director‑General sought the Minister’s consent to request the
issue of the last warrant that:
(a) was issued under this Division before the
seeking of the Minister’s consent to the request proposed in the draft request;
and
(b) was a warrant in connection with which the
person was detained under this Division.
(3) The Inspector‑General must report on the
outcome of the inspection in his or her annual report for the year in which he
or she carries out the examination. For this purpose, annual report
means a report under section 35 of the Inspector‑General of
Intelligence and Security Act 1986.
34ZK
Discontinuing action before warrants expire
If, before a warrant issued under this
Division ceases to be in force, the Director‑General is satisfied that the
grounds on which the warrant was issued have ceased to exist, the Director‑General
must:
(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.
34ZL
Certain records obtained under warrant to be destroyed
The Director‑General must cause a record
or copy to be destroyed if:
(a) the record or copy was made
because of a warrant issued under this Division; 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.
34ZM Status of issuing authorities and prescribed
authorities
(1) An issuing authority or prescribed
authority has, in the performance of his or her duties under this Division, the
same protection and immunity as a Justice of the High Court.
(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.
34ZN
Certain functions and powers not affected
(1) This Division does not affect a function
or power of the Inspector‑General of Intelligence and Security under the Inspector‑General
of Intelligence and Security Act 1986.
(2) This Division does not affect a function
or power of the Ombudsman under the Ombudsman Act 1976 in relation to
the Australian Federal Police.
(3) This Division does not affect a function
or power of a person under Part V of the Australian Federal Police Act
1979.
34ZO
Limit on contact of lawyer of choice
(1) If:
(a) a person (the subject)
is specified in a warrant issued under section 34E and the person is in
detention in connection with the warrant; or
(b) a person (the subject)
is specified in a warrant issued under section 34G;
the subject may be prevented from contacting a particular
lawyer of the subject’s choice if the prescribed authority concerned so
directs.
(2) The prescribed authority may so direct
only if the authority is satisfied, on the basis of circumstances relating to
that lawyer, that, if the subject is permitted to contact the lawyer:
(a) a person involved in a terrorism
offence may be alerted that the offence is being investigated; or
(b) a record or thing that the person
may be requested in accordance with the warrant to produce may be destroyed,
damaged or altered.
(3) This section has effect despite paragraph
34K(11)(a).
(4) To avoid doubt, subsection (1) does
not prevent the subject from choosing another lawyer to contact, but the
subject may be prevented from contacting that other lawyer under another
application of that subsection.
34ZP
Questioning person in absence of lawyer of person’s choice
(1) To avoid doubt, a person before a
prescribed authority for questioning under a warrant issued under this Division
may be questioned under the warrant in the absence of a lawyer of the person’s
choice.
Note: As the warrant authorises questioning of the
person only while the person is before a prescribed authority, the prescribed
authority can control whether questioning occurs by controlling whether the
person is present before the prescribed authority.
(2) This section does not permit questioning
of the person by a person exercising authority under the warrant at a time when
a person exercising authority under the warrant is required by another section
of this Division not to question the person.
Example: This section does not permit the person to be
questioned when a person exercising authority under the warrant is required by
section 34M or section 34N to defer questioning because an interpreter
is not present.
34ZQ Involvement of lawyers
(1) This section applies if the person (the subject)
specified in a warrant issued under this Division contacts another person as a
legal adviser as permitted by the warrant or a direction under paragraph 34K(1)(d).
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.
(3) Subsection (2) does not apply in
relation to a warrant issued under section 34E if the contact is in
circumstances covered by paragraph 34E(3)(a).
Legal adviser to be given copy of the warrant
(4) A person exercising authority under the
warrant must give the legal adviser a copy of the warrant. This subsection does
not:
(a) require more than one person to
give the legal adviser a copy of the warrant; or
(b) entitle the legal adviser to be
given a copy of, or see, a document other than the warrant.
Breaks in questioning to give legal advice
(5) 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 breaks
between periods of questioning by giving directions under section 34K.
Paragraphs 34R(13)(b) to (d) also contain examples of procedural breaks in
questioning.
(6) The legal adviser must 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.
Breaks in questioning to address prescribed authority
(7) During a break in the questioning of the
subject, the legal adviser may request the prescribed authority for an
opportunity to address the prescribed authority on a matter.
Note: The prescribed authority may set breaks
between periods of questioning by giving directions under section 34K.
Paragraphs 34R(13)(b) to (d) also contain examples of procedural breaks in
questioning.
(8) The
prescribed authority must approve or refuse a request under subsection (7).
Removal of legal adviser for disrupting questioning
(9) 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.
(10) If the prescribed authority directs the
removal of the legal adviser, the prescribed authority must also direct under
paragraph 34K(1)(d) that the subject may contact someone else as a legal
adviser. Subsection 34K(2) does not prevent the prescribed authority from
giving the direction under paragraph 34K(1)(d) in accordance with this
subsection.
If legal adviser also represents young person
(11) If section 34ZR 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.
34ZR
Conduct of parents etc.
(1) This section applies in relation to a person
(the representative) who:
(a) is either:
(i) the parent or guardian
of a person (the subject) specified in a warrant issued under
this Division; or
(ii) another person who
meets the requirements in subsection 34ZE(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 34K(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 34ZE(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
34ZE(7); and
(d) direct under paragraph 34K(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 34K(2) does not prevent the prescribed
authority from giving the direction under paragraph 34K(1)(d) in accordance
with this subsection.
34ZS
Secrecy relating to warrants and questioning
Before the expiry of the warrant
(1) A person (the discloser)
commits an offence if:
(a) a warrant has been issued under
this Division; and
(b) the discloser discloses
information; and
(c) either or both of the following
apply:
(i) the information
indicates the fact that the warrant has been issued or a fact relating to the
content of the warrant or to the questioning or detention of a person in
connection with the warrant;
(ii) the information is
operational information; and
(d) if subparagraph (c)(ii)
applies but subparagraph (c)(i) does not—the discloser has the information
as a direct or indirect result of:
(i) the issue of the
warrant; or
(ii) the doing of anything
authorised by the warrant, by a direction given under subsection 34K(1) in
connection with the warrant or by another provision of this Division in
connection with the warrant; and
(e) the disclosure occurs before the
end of the period specified in the warrant as the period for which the warrant
is to be in force; and
(f) the disclosure is not a permitted
disclosure.
Penalty: Imprisonment for 5 years.
In the 2 years after the expiry of the warrant
(2) A person (the discloser)
commits an offence if:
(a) a warrant has been issued under
this Division; and
(b) the discloser discloses
information; and
(c) the information is operational
information; and
(d) the discloser has the information
as a direct or indirect result of:
(i) the issue of the
warrant; or
(ii) the doing of anything
authorised by the warrant, by a direction given under subsection 34K(1) in
connection with the warrant or by another provision of this Division in
connection with the warrant; and
(e) the disclosure occurs before the
end of the 2 years starting at the end of the period specified in the warrant
as the period during which the warrant is to be in force; and
(f) the disclosure is not a permitted
disclosure.
Penalty: Imprisonment for 5 years.
Strict liability
(3) Strict liability applies to paragraphs (1)(c)
and (2)(c) if the discloser is:
(a) the person (the subject)
specified in the warrant; or
(b) a lawyer who has at any time been:
(i) present, as the
subject’s legal adviser, at the questioning of the subject under the warrant;
or
(ii) contacted for the
purpose of the subject obtaining legal advice in connection with the warrant;
or
(iii) contacted for the
purpose of the subject obtaining representation in legal proceedings seeking a
remedy relating to the warrant or the treatment of the subject in connection
with the warrant.
Otherwise, the fault element applying to paragraphs (1)(c)
and (2)(c) is recklessness.
Note: For strict liability, see
section 6.1 of the Criminal Code. For recklessness,
see section 5.4 of the Criminal Code.
Extended geographical jurisdiction—category D
(4) Section 15.4 of the Criminal Code
(extended geographical jurisdiction—category D) applies to an offence against subsection (1)
or (2).
Definitions
(5) In this section:
operational information means information
indicating one or more of the following:
(a) information that the Organisation
has or had;
(b) a source of information (other
than the person specified in the warrant mentioned in subsection (1) or
(2)) that the Organisation has or had;
(c) an operational capability, method
or plan of the Organisation.
permitted disclosure means any of the
following:
(a) a disclosure made by a person in
the course of any of the following:
(i) exercising a power, or
performing a function or duty, under this Act;
(ii) doing anything the
person is authorised to do by a warrant issued under this Act;
(iii) doing anything the person
is required or permitted to do by a direction under subsection 34K(1);
(iv) exercising a power
(including a power to make a complaint or to give information), or performing a
function or duty, under the Inspector‑General of Intelligence and Security Act
1986, the Ombudsman Act 1976 or Part V of the Australian
Federal Police Act 1979;
(v) exercising a power
(including a power to make a complaint), or performing a function or duty,
under a law of a State or Territory appointing or establishing a complaints
agency;
(b) a disclosure that is:
(i) made in the course of
the questioning of a person under a warrant issued under this Division; and
(ii) made by a person who
is present at the questioning when making the disclosure;
(c) a disclosure to a lawyer for the
purpose of:
(i) obtaining legal advice
in connection with a warrant issued under this Division; or
(ii) obtaining
representation in legal proceedings seeking a remedy relating to such a warrant
or the treatment of a person in connection with such a warrant;
(d) a disclosure for the purpose of
the initiation, conduct or conclusion (by judgment or settlement) of legal
proceedings relating to such a remedy;
(e) a disclosure that is permitted by
a prescribed authority to be made;
(f) a disclosure to one or more of
the following persons, by the representative mentioned in subsection 34ZR(1),
by the subject mentioned in that subsection or by a parent, guardian or sibling
of the subject mentioned in that subsection, of information described in paragraph (1)(c)
or (2)(c) of this section in relation to the warrant mentioned in that
subsection:
(i) a parent, guardian or
sibling of the subject;
(ii) the representative;
(iii) the subject;
(iv) a prescribed authority;
(v) a person exercising
authority under the warrant;
(vi) the Inspector‑General
of Intelligence and Security;
(vii) the Commonwealth
Ombudsman;
(viii) a complaints agency;
(g) a disclosure permitted by the
Director‑General;
(h) a disclosure permitted by the
Minister;
(i) a disclosure prescribed by the
regulations.
(6) For the purposes of paragraph (e) of
the definition of permitted disclosure in subsection (5), a
prescribed authority may give written permission, not inconsistent with the
regulations (if any), for:
(a) a person contacted as described in
subsection 34ZQ(1); or
(b) the representative mentioned in
subsection 34ZR(1);
to disclose specified information to a specified person.
The permission may be given either unconditionally or subject to specified
conditions.
Note 1: The prescribed authority may revoke or amend
the permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition
and the condition is not met, the permission is not in force.
(7) For the purposes of paragraph (g) of
the definition of permitted disclosure in subsection (5),
the Director‑General may give written permission for a disclosure. The
permission may be given either unconditionally or subject to specified
conditions.
Note 1: The Director‑General may revoke or amend the
permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition
and the condition is not met, the permission is not in force.
(8) For the purposes of paragraph (h) of
the definition of permitted disclosure in subsection (5),
the Minister may, after obtaining advice from the Director‑General, give
written permission for a disclosure. The permission may be given either
unconditionally or subject to specified conditions.
Note 1: The Minister may, after obtaining advice from
the Director‑General, revoke or amend the permission. See subsection 33(3) of
the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition
and the condition is not met, the permission is not in force.
(9) In deciding whether to give permission to
a person under subsection (6), (7) or (8), the prescribed authority, the
Director‑General or the Minister must take into account:
(a) the person’s family and employment
interests to the extent that the prescribed authority, the Director‑General or
the Minister is aware of those interests; and
(b) the public interest; and
(c) the risk to security if the
permission were given.
This subsection does not limit the matters that may be
taken into account.
(10) Regulations made for the purposes of paragraph (i)
of the definition of permitted disclosure in subsection (5)
may prescribe a disclosure by reference to one or more of the following:
(a) the person making the disclosure;
(b) the person to whom the disclosure
is made;
(c) the circumstances in which the
disclosure is made;
(d) the purpose of the disclosure;
(e) the nature of information
disclosed;
(f) an opinion of a specified person
about the possible or likely effect of the disclosure.
This subsection does not limit the way in which such
regulations may prescribe a disclosure.
Offences apply to original and previously disclosed
information
(11) To avoid doubt, subsections (1) and
(2) apply whether or not the discloser has the information that he or she
discloses as a result of a disclosure by someone else.
Relationship with other laws prohibiting disclosure
(12) This section has effect in addition to,
and does not limit, other laws of the Commonwealth that prohibit the disclosure
of information.
Implied freedom of political communication
(13) This section does not apply to the extent
(if any) that it would infringe any constitutional doctrine of implied freedom
of political communication.
34ZT
Lawyers’ access to information for proceedings relating to warrant
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) a warrant issued under this
Division in relation to the person; or
(b) the treatment of the person in
connection with such a warrant.
34ZU
Rules of Court about proceedings connected with warrants
Rules of Court of the High Court or the
Federal Court of Australia may make special provision in relation to
proceedings for a remedy relating to a
warrant issued this Division or the treatment of a person in connection with
such a warrant.
34ZV
Law relating to legal professional privilege not affected
To avoid doubt, this Division does not
affect the law relating to legal professional privilege.
34ZW Jurisdiction of State and Territory courts
excluded
(1) A court of a State or Territory does not
have jurisdiction in proceedings for a remedy if:
(a) the remedy relates to a warrant issued under this Division 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).
34ZX
Financial assistance
Application for assistance
(1) At any time after a person specified in a
warrant issued under this Division is notified of the issue of the warrant, the
person may apply to the Minister for the provision of assistance under this
section in respect of the person’s appearance before a prescribed authority for
questioning under the warrant.
Authorisation of assistance
(2) The Minister may authorise the provision
by the Commonwealth to the person of such financial assistance as the Minister
determines.
(3) The Minister may authorise the provision
of assistance on such conditions (if any) as the Minister determines.
Guidelines
(4) The Minister may, in writing, determine
guidelines that are to be applied in authorising the provision of assistance
under this section.
Limit on assistance
(5) This section does not apply in relation
to:
(a) any complaint the person makes
that is of the kind mentioned in paragraph 34J(1)(e); or
(aa) any information the person gives
that is of a kind mentioned in paragraph 34J(1)(ea); or
(b) any remedy the person seeks that
is of the kind mentioned in paragraph 34J(1)(f).
34ZY
Instruments are not legislative instruments
An instrument made under this Division
(other than an instrument made by the Minister under section 34C) is not a
legislative instrument.
34ZZ
Cessation of effect of Division
This Division ceases to have effect on 22 July 2016.
Part IV—Security assessments
Division 1—Preliminary
35
Interpretation
(1) In this Part, unless the contrary
intention appears:
adverse security assessment means a security
assessment in respect of a person that contains:
(a) any opinion or advice, or any
qualification of any opinion or advice, or any information, that is or could be
prejudicial to the interests of the person; and
(b) a recommendation that prescribed
administrative action be taken or not be taken in respect of the person, being
a recommendation the implementation of which would be prejudicial to the
interests of the person.
applicant means a person who has applied to
the Tribunal for a review of a security assessment.
authority of a State includes a State
Minister, Department or Police Force.
Commonwealth agency means a Minister or an
authority of the Commonwealth.
Commonwealth contractor means a person
performing work or rendering services, otherwise than as an employee, for the
purposes of the Commonwealth or an authority of the Commonwealth, including a
person performing such work or rendering such services as a sub‑contractor or
as an adviser or consultant.
prescribed administrative action means:
(a) action that relates to or affects:
(i) access by a person to
any information or place access to which is controlled or limited on security
grounds; or
(ii) a person’s ability to
perform an activity in relation to, or involving, a thing (other than
information or a place), if that ability is controlled or limited on security
grounds;
including action affecting the
occupancy of any office or position under the Commonwealth or an authority of
the Commonwealth or under a State or an authority of a State, or in the service
of a Commonwealth contractor, the occupant of which has or may have any such
access or ability;
(b) the exercise of any power, or the
performance of any function, in relation to a person under the Migration Act
1958 or the regulations under that Act; or
(c) the exercise of any power, or the
performance of any function, in relation to a person under the Australian
Citizenship Act 2007, the Australian Passports Act 2005 or the
regulations under either of those Acts; or
(d) the exercise of a power under
section 58A, or subsection 581(3), of the Telecommunications Act 1997.
Note: An obligation, prohibition or restriction
imposed by a control order is not prescribed administrative action (see subsection (2)).
qualified security assessment means a
security assessment in respect of a person that:
(a) contains any opinion or advice, or
any qualification of any opinion or advice, or any information, that is or
could be prejudicial to the interests of the person; and
(b) does not contain a recommendation
of the kind referred to in paragraph (b) of the definition of adverse
security assessment;
whether or not the matters contained in the assessment
would, by themselves, justify prescribed administrative action being taken or
not being taken in respect of the person to the prejudice of the interests of
the person.
security assessment or assessment means
a statement in writing furnished by the Organisation to a Commonwealth agency
expressing any recommendation, opinion or advice on, or otherwise referring to,
the question whether it would be consistent with the requirements of security
for prescribed administrative action to be taken in respect of a person or the
question whether the requirements of security make it necessary or desirable
for prescribed administrative action to be taken in respect of a person, and
includes any qualification or comment expressed in connection with any such
recommendation, opinion or advice, being a qualification or comment that
relates or that could relate to that question.
Tribunal means the Administrative Appeals
Tribunal.
(2) To avoid doubt, an obligation,
prohibition or restriction imposed on a person by a control order made under
Division 104 of the Criminal Code is not prescribed administrative
action.
36
Part not to apply to certain assessments
This Part (other than subsections 37(1),
(3) and (4)) does not apply to or in relation to:
(a) a security assessment in relation
to the employment, by engagement outside Australia for duties outside Australia, of a person who is not an Australian citizen or is not normally resident in Australia; or
(b) a security assessment in relation
to action of a kind referred to in paragraph (b) of the definition of prescribed
administrative action in section 35 (other than an assessment made
for the purposes of subsection 202(1) of the Migration Act 1958) in
respect of a person who is not:
(i) an Australian citizen;
(ii) a person who is,
within the meaning of the Migration Act 1958, the holder of a valid
permanent visa; or
(iii) a person who holds a
special category visa or is taken by subsection 33(2) of the Migration Act
1958 to have been granted a special purpose visa.
Division 2—Furnishing of security assessments
37
Security assessments
(1) The functions of the Organisation
referred to in paragraph 17(1)(c) include the furnishing to Commonwealth
agencies of security assessments relevant to their functions and
responsibilities.
(2) An adverse or qualified security
assessment shall be accompanied by a statement of the grounds for the
assessment, and that statement:
(a) shall contain all information that
has been relied on by the Organisation in making the assessment, other than
information the inclusion of which would, in the opinion of the Director‑General,
be contrary to the requirements of security; and
(b) shall, for the purposes of this
Part, be deemed to be part of the assessment.
(3) The regulations may prescribe matters
that are to be taken into account, the manner in which those matters are to be
taken into account, and matters that are not to be taken into account, in the
making of assessments, or of assessments of a particular class, and any such
regulations are binding on the Organisation and on the Tribunal.
(4) Subject to any regulations made in
accordance with subsection (3), the Director‑General shall, in
consultation with the Minister, determine matters of a kind referred to in subsection (3),
but nothing in this subsection affects the powers of the Tribunal.
(5) No proceedings, other than an application
to the Tribunal under section 54, shall be brought in any court or
tribunal in respect of the making of an assessment or anything done in respect
of an assessment in accordance with this Act.
38
Person to be notified of assessment
(1) Subject to this section, where, after the
commencement of this Act, an adverse or qualified security assessment in
respect of a person is furnished by the Organisation to a Commonwealth agency
or a State or an authority of a State, the Commonwealth agency, the State or
the authority of the State shall, within 14 days after the day on which the
assessment is so furnished, give to that person a notice in writing, to which a
copy of the assessment is attached, informing him or her of the making of the
assessment and containing information, in the prescribed form, concerning his
or her right to apply to the Tribunal under this Part.
(1A) This section does not apply to a security
assessment if section 38A applies to the assessment.
(2) The Attorney‑General may, by writing
signed by the Attorney‑General delivered to the Director‑General, certify that
the Attorney‑General is satisfied that:
(a) the withholding of notice to a
person of the making of a security assessment in respect of the person is
essential to the security of the nation; or
(b) the disclosure to a person of the
statement of grounds contained in a security assessment in respect of the
person, or of a particular part of that statement, would be prejudicial to the
interests of security.
(3) Where the Attorney‑General issues a
certificate under subsection (2), he or she shall cause a copy of the
certificate to be delivered to the Commonwealth agency to which the assessment
was furnished.
(4) Subsection (1) does not require a
notice to be given in relation to a security assessment to which a certificate
in accordance with paragraph (2)(a) applies.
(5) In the case of a security assessment in
relation to which a certificate certifying in accordance with paragraph (2)(b)
has been given, the copy of the assessment to be attached to a notice under subsection (1)
shall not contain any matter to which the certificate applies.
(6) A notice under subsection (1) may be
given to a person by delivering it to him or her personally or by sending it to
the person by registered post at his or her address last known to the
Commonwealth agency.
38A
Notification where assessment relates to Telecommunications Act
(1) This section applies to an adverse or
qualified security assessment in respect of a person (the assessed person)
if the assessment is given to the Attorney‑General in connection with section 58A,
or subsection 581(3), of the Telecommunications Act 1997.
(2) Within 14 days after receiving the
assessment, the Attorney‑General must give to the assessed person a notice in
writing, to which a copy of the assessment is attached, informing the assessed
person of the making of the assessment and containing information, in the form
prescribed for the purposes of subsection 38(1), concerning his or her right to
apply to the Tribunal under this Part.
(3) If the Attorney‑General is satisfied that
the assessment contains any matter the disclosure of which would be prejudicial
to the interests of security, then the Attorney‑General must exclude that
matter from the copy provided under subsection (2).
39
Effect of preliminary advice by Organisation
(1) Subject to subsection (2), a
Commonwealth agency shall not take, refuse to take or refrain from taking
prescribed administrative action on the basis of any communication in relation
to a person made by the Organisation not amounting to a security assessment or
on the basis of an adverse or qualified security assessment made by the
Organisation before the commencement of this Act.
(2) Subsection (1) does not prevent a
Commonwealth agency from taking action of a temporary nature to prevent:
(a) access by a person to any
information or place access to which is controlled or limited on security
grounds; or
(b) a person from performing an
activity in relation to, or involving, a thing (other than information or a
place), if the person’s ability to perform that activity is controlled or
limited on security grounds;
if, on the basis of a preliminary communication by the
Organisation, the Commonwealth agency is satisfied that the requirements of
security make it necessary to take that action as a matter of urgency pending
the furnishing of an assessment by the Organisation.
40
Assessments for State purposes
(1) If any prescribed administrative action
in respect of a person by a State or an authority of a State would affect
security in connection with matters within the functions and responsibilities
of a Commonwealth agency, it is within the functions of the Organisation:
(a) in any case—to furnish a security
assessment in respect of that person to the Commonwealth agency, for the
purpose of its transmission to the State or the authority of the State for use
in considering that prescribed administrative action; or
(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.
(2) The Organisation shall not:
(a) subject to paragraph (1)(b),
communicate directly to a State or an authority of a State, whether in the form
of an assessment or otherwise, any information, recommendation, opinion or
advice concerning a person which the Organisation knows is intended or likely
to be used by the State or an authority of the State in considering prescribed
administrative action in relation to that person; or
(b) furnish to a Commonwealth agency
otherwise than in the form of an assessment any information, recommendation,
opinion or advice concerning a person if the Organisation knows that the
Commonwealth agency intends to communicate it to a State or an authority of a
State for use in considering prescribed administrative action in relation to
that person.
(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.
Division 4—Review of security assessments
54
Applications to Tribunal
(1) An application may be made to the
Tribunal for a review of an adverse or qualified security assessment.
(2) At any time after the completion of a
review by the Tribunal of a security assessment (other than a review of a
security assessment made for the purposes of subsection 202(1) of the Migration
Act 1958), an application may be made for a review of the findings of the
Tribunal on the ground that the applicant has fresh evidence of material
significance that was not available at the time of the previous review.
61
Effect of findings
Where an assessment has been reviewed by
the Tribunal, every Commonwealth agency concerned with prescribed administrative
action to which the assessment is relevant, and any tribunal, person or
authority having power to hear appeals from, or to review, a decision with
respect to any prescribed administrative action to which the assessment is
relevant, shall treat the findings of the Tribunal, to the extent that they do
not confirm the assessment, as superseding that assessment.
64
Restriction on further assessments after review
Where the Tribunal has made findings
upon a review of an assessment, the Organisation shall not make a further
assessment in respect of the person concerned that is not in accordance with
those findings except on the basis of matters occurring after the review or of
which evidence was not available at the time of the review.
65
Reference of certain matters to Tribunal by Minister
(1) Where:
(a) before the commencement of this
Act, the Organisation furnished, or is alleged to have furnished, to a
Commonwealth agency a security assessment, or a communication of a similar
nature, concerning a person; or
(b) after the commencement of this
Act, the Organisation has furnished, or is alleged to have furnished, to a
Commonwealth agency a security assessment, or a communication of a similar
nature, concerning a person, other than a security assessment of which a copy
has been delivered to that person in accordance with this Part;
the Minister may, if satisfied that it is desirable to do
so by reason of special circumstances, require the Tribunal to inquire and
report to the Minister upon any question concerning that action or alleged
action of the Organisation, and may require the Tribunal to review any such
assessment or communication and any information or matter on which any such
assessment or communication was based, and the Tribunal shall comply with the
requirement and report its findings to the Minister.
(1A) For the purposes of determining whether it
is desirable to make a requirement of the Tribunal under subsection (1) in
relation to a matter, the Minister may request the Inspector‑General of Intelligence
and Security to inquire into the matter or into a specified aspect of the
matter and to report to the Minister the results of the inquiry, and the
Inspector‑General shall comply with any such request.
(2) The constitution and procedure of the
Tribunal under this section shall be as determined by the President.
(3) Sections 43 and 43AAA of the Administrative
Appeals Tribunal Act 1975 and section 61 of this Act do not apply in
relation to a review under this section but, when the Tribunal has made findings
under this section, the Minister shall, subject to the requirements of
security, take or cause to be taken such action in relation to those findings,
by way of communication or publication of the findings or alteration of
records, as the Minister considers appropriate in the interests of justice.
81
Secrecy
(1) A person
who is or has been a member or an officer of the Tribunal shall not, either
directly or indirectly, except for the purposes of this Act:
(a) make a record of, or divulge or
communicate to any person, any information acquired by him or her by reason of
his or her office or employment under or for the purposes of this Act; or
(b) produce to any person a document
furnished for the purposes of this Act.
Penalty: Imprisonment for 2 years.
(2) A person who is or has been a member or
an officer of the Tribunal shall not be required to produce in a court any
document of which the person has custody, or to which the person has access, by
virtue of his or her office or employment under or for the purposes of this
Act, or to divulge or to communicate to a court any information obtained by him
or her by reason of such an office or employment, except when it is necessary
to do so for the purposes of this Act.
(3) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
produce includes permit access to, and production
has a corresponding meaning;
and a reference in this section to information or a document
shall be read as a reference to information or a document supplied to the
Tribunal for the purposes of this Part or otherwise related to proceedings
under this Part.
Part V—Staff of Organisation
84
Employment of officers and employees
(1) Subject to this Act, the Director‑General
may, on behalf of the Commonwealth:
(a) employ, under agreements in
writing, such officers of the Organisation as the Director‑General thinks
necessary for the purposes of this Act; and
(b) employ such temporary employees
and casual employees of the Organisation as the Director‑General thinks
necessary for those purposes.
(2) The Director‑General shall not employ a
person as an officer except:
(a) in an office the designation and
salary or salary range of which have been determined, or are deemed to have
been determined, under subsection 85(1); and
(b) upon the terms and conditions of
employment that are in force under section 86 in relation to the
employment of persons as officers at the date on which that person is so
employed.
(3) An agreement under this section may be
varied from time to time by further agreement.
85
Designation of offices etc.
(1) The designations of offices in the
Organisation, other than the office of Director‑General, and the salaries or
salary ranges applicable to those offices, shall be such as are determined from
time to time by the Director‑General.
(2) The designations of offices in the
Organisation immediately before the date of commencement of this Act, and the
salaries or salary ranges applicable to those offices immediately before that
date, shall be deemed to have been determined under subsection (1).
86
Conditions of employment
Officers and employees of the
Organisation are not subject to the Public Service Act 1999 but, subject
to this Act, the terms and conditions upon which the Director‑General shall
employ persons as officers, and the terms and conditions of employment
applicable to temporary and casual employees, shall be such as are determined
from time to time by the Director‑General.
87
Special provisions relating to existing employees
(1) A person who, immediately before the date
of commencement of this Act, was employed in the Organisation under an
agreement in writing with the Commonwealth shall, unless and until he or she
agrees to accept other terms and conditions, continue to be employed upon the
terms and conditions specified in that agreement.
(2) A person, not being a person to whom subsection (1)
applies, who was, immediately before the date of commencement of this Act,
employed in the Organisation shall, until other terms and conditions applicable
to him or her are determined under section 86, continue to be employed
upon the terms and conditions applicable to him or her immediately before that
date.
89
Termination of employment of officers
The employment of an officer of the
Organisation shall not be terminated except in accordance with a term or
condition of his or her employment.
90
Regulations relating to staff
(1) The regulations may make provision for the
employment of officers otherwise than under agreements in writing and may, in
respect of officers so employed, make provision from time to time for their
terms and conditions of employment (including salaries).
(2) The regulations may make provision for
the terms and conditions of employment applicable to temporary and casual
employees.
(2A) The regulations may make provision for the
establishment of a body, or for a person, to review actions of the Organisation
affecting persons who are or have been officers or temporary or casual
employees, and for the immunity from civil proceedings of any such body or
person in relation to their review of such actions.
(3) Regulations made in accordance with this
section have effect notwithstanding sections 84, 85 and 86.
(4) Regulations made in accordance with this
section shall not apply to the employment of an officer employed under an
agreement made before the commencement of the first regulations so made in
relation to officers except to the extent agreed in writing between the officer
and the Director‑General.
91
Application of Crimes Act
The Director‑General and officers and
employees of the Organisation shall be deemed to be Commonwealth officers for
the purposes of the Crimes Act 1914.
92
Publication of identity of officer of Organisation
(1) A person (other than a member of the
Committee on Intelligence and Security) shall not, except with the consent in
writing of the Minister or of the Director‑General, publish or cause to be
published in a newspaper or other publication, or by radio broadcast or
television, or otherwise make public, any matter stating, or from which it
could reasonably be inferred, that a person having a particular name or
otherwise identified, or a person residing at a particular address, is an
officer (not including the Director‑General), employee or agent of the
Organisation or is in any way connected with such an officer, employee or agent
or, subject to subsection (1B), is a former officer (not including a
former Director‑General), employee or agent of the Organisation or is in any
way connected with such a former officer, employee or agent.
Penalty: Imprisonment for one year.
(1A) A member of the Committee referred to in subsection (1)
shall not, except with the consent in writing of the Minister or of the
Director‑General, make public or authorise the publication of, any information
acquired by the person by reason of being such a member, being information from
which it could reasonably be inferred that a person having a particular name or
otherwise identified, or a person residing at a particular address, is an
officer (not including the Director‑General), employee or agent or is in any
way connected with such an officer, employee or agent or, subject to subsection (1B),
is a former officer (not including a former Director‑General), employee or
agent of the Organisation or is in any way connected with such a former
officer, employee or agent.
Penalty: Imprisonment for one year.
(1B) Subsections (1) and (1A) do not apply
in relation to action taken in respect of a former officer, employee or agent
of the Organisation:
(a) who has consented in writing to
the taking of that action; or
(b) who has caused or permitted the
fact that the person is a former officer, employee or agent of the Organisation
to be made public.
(2) Nothing in this section applies to the
broadcasting, datacasting or reporting of proceedings in the Parliament (other
than proceedings of the Committee referred to in subsection (1)).
(3) A prosecution for an offence against this
section shall be instituted only by or with the consent of the Attorney‑General.
Part VI—Miscellaneous
93
Offences
(5) Where, in proceedings for an offence
against this Act in respect of any conduct engaged in by a body corporate, it
is necessary to establish the state of mind of the body corporate, it is
sufficient to show that a director, servant or agent of the body corporate,
being a director, servant or agent by whom the conduct was engaged in within
the scope of his or her actual or apparent authority, had that state of mind.
(6) Any conduct engaged in on behalf of a
body corporate:
(a) by a director, servant or agent of
the body corporate within the scope of his or her actual or apparent authority;
or
(b) by any other person at the
direction or with the consent or agreement (whether express or implied) of a
director, servant or agent of the body corporate, where the giving of the
direction, consent or agreement is within the scope of the actual or apparent
authority of the director, servant or agent;
shall be deemed, for the purposes of this Act, to have
been engaged in by the body corporate.
(7) A reference in subsection (5) to the
state of mind of a person includes a reference to the knowledge, intention,
opinion, belief or purpose of the person and the person’s reasons for his or
her intention, opinion, belief or purpose.
94
Annual report
(1) The Director‑General shall, as soon as
practicable after each year ending on 30 June, furnish to the Minister a
report on the activities of the Organisation during that year.
(1A) The report must include a statement of:
(a) the total number of requests made
under Division 3 of Part III to issuing authorities during the year
for the issue of warrants under that Division; and
(b) the total number of warrants
issued during the year under that Division; and
(c) the total number of warrants
issued during the year under section 34E; and
(d) the number of hours each person
appeared before a prescribed authority for questioning under a warrant issued
during the year under section 34E and the total of all those hours for all
those persons; and
(e) the total number of warrants
issued during the year under section 34G; 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 under section 34G;
(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.
(2) A copy of a report furnished under subsection (1)
shall be given to the Leader of the Opposition in the House of Representatives,
but it is the duty of the Leader of the Opposition to treat as secret any part
of the report that is not tabled in a House of the Parliament.
(3) Subject to subsection (4), the
Minister shall cause a copy of a report furnished under subsection (1) to
be laid before each House of the Parliament within 20 sitting days of that
House after the report is received by the Minister.
(4) For the purposes of subsection (3),
the Minister may make such deletions from a report furnished under subsection (1)
as the Minister, after obtaining advice from the Director‑General, considers
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.
(5) The Minister may not delete from a report
a statement described in subsection (1A).
95
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters required
or permitted by this Act to be prescribed, or necessary or convenient to be
prescribed for carrying out or giving effect to this Act.