Editors --- "Two Sets of Amendments to the Australian Security Intelligence Organisation Act" [2004] AdminRw 38; (2004) 56 Admin Review 81

• Two sets of amendments to the Australian Security Intelligence Organisation Act

---

Two sets of amendments to the Australian Security Intelligence Organisation Act

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, which commenced on 23 July 2003, amended the Australian Security Intelligence Organisation Act 1979 to empower ASIO to obtain a warrant to question or, in limited circumstances, detain a person who might have information relevant to a terrorism offence. The draft amending legislation was described in Admin Review no. 55, but the amendments changed significantly during their passage through Parliament.

Division 3 of Part III of the Act provides that the Director-General of Security may seek the Attorney-General’s consent to request the issue of a warrant in relation to a person. An ‘issuing authority’—a federal magistrate or a federal judge—may issue a warrant after the Attorney-General’s consent has been obtained.

Before a warrant can be issued, both the issuing authority and the Attorney‑General must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence. The Attorney‑General must also be satisfied that relying on other methods of collecting that intelligence would be ineffective. Further, if the warrant is to authorise a person’s detention, the Attorney-General must be satisfied of other requirements about the need for the person to be brought into custody immediately.

At all times questioning takes place before a ‘prescribed authority’. Depending on the circumstances, a prescribed authority can be a former judge of a superior court, a current judge of a state or territory Supreme or District Court, or a president or deputy president of the Administrative Appeals Tribunal who has been admitted as a legal practitioner for at least five years.

A warrant allows for questioning in eight-hour blocks, with initial questioning for eight hours. The prescribed authority may extend questioning for two further blocks of eight hours. The prescribed authority may only permit an extension of the questioning period if he or she is satisfied that there are reasonable grounds to believe that continuing the questioning would substantially assist the collection of intelligence and that the questioning is being conducted appropriately. The prescribed authority can revoke this permission at any time.

Two types of warrant can be issued to authorise the questioning of a person. The first only authorises the questioning of a person for up to 24 hours during the term of the warrant (28 days) after the person is first brought before the prescribed authority. The second type of warrant also authorises a person to be questioned for up to 24 hours but while being detained. The subject of either type of warrant must be released immediately after the questioning or detention period expires or after the prescribed authority revokes or does not provide permission for questioning to continue. The Act expressly provides that a person may not be detained for more than 168 hours.

A person under the age of 16 years cannot be the subject of a warrant. Young people between the ages of 16 and 18 may be subject to a warrant only if the Attorney-General is satisfied it is likely the young person will commit, is committing or has committed a terrorism offence. Young people are entitled to have a parent or guardian present at all times when questioned and may contact a lawyer of their choice. They may not be questioned for longer than two hours without a break.

All detained people will be able to contact a lawyer of their choice at any stage of the proceedings, subject to the direction of the prescribed authority on a case being made out by ASIO for the exclusion of a particular lawyer. If this exclusion occurs, the subject may choose another lawyer—although that choice of lawyer can also be challenged by ASIO. In certain circumstances, questioning may begin in the absence of a lawyer, but this does not interfere with a subject’s right to have a lawyer of their choice at all times.

The Act contains safeguards to ensure that the powers are exercised appropriately. Offences are included for officials who contravene these safeguards. Failing to comply with a direction of the prescribed authority or failing to afford a person their rights under the Act will be punishable by a maximum of two years’ imprisonment.

The subject of a warrant can contact the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman at any time. If the Inspector-General is concerned about an illegal act or an impropriety occurring during questioning, he or she may advise the prescribed authority. The prescribed authority may suspend questioning until the Inspector-General’s concerns are allayed.

The Act also provides that the prescribed authority must advise a person of their right to seek a remedy from a federal court in relation to the warrant or the person’s treatment under the warrant at least once every 24 hours when questioned.

The ASIO Legislation Amendment Act 2003, which commenced on 18 December 2003, made further amendments to the Act to accommodate practical considerations identified in the context of implementing ASIO’s new powers relating to terrorism offences.

The December 2003 amendments extended the maximum time available for questioning the subject of a warrant from 24 to 48 hours in cases where an interpreter is used, in recognition of the additional time involved in using an interpreter. They also reduced the risk of the subject of a warrant fleeing the country to avoid questioning by creating offences punishable by a maximum of five years’ imprisonment if the subject of a warrant fails to surrender any passports issued to them or leaves or attempts to leave the country after being notified of the issuing of a warrant.

Strict non-disclosure provisions were also introduced in the December 2003 amendments. While a warrant is in force it is an offence for a person to disclose information that relates to the warrant, the questioning or the detention of a person under the warrant or operational information obtained as a direct or indirect result of the warrant. For two years after the warrant ceases to be in force it is also an offence for a person to disclose such operational information. For the purposes of these provisions, operational information is information indicating, first, information ASIO has or had or, second, a source of information ASIO has or had or, third, an operational capability, method or plan of ASIO. These secrecy obligations apply to primary and all subsequent disclosures of information.

Provision is made for a range of permitted disclosures that are not offences. This includes disclosures authorised under a warrant or by a direction or permission given by the prescribed authority. A disclosure may also be made to a lawyer to bring court proceedings for a remedy relating to the warrant or the treatment of a person under the warrant. A disclosure may be permitted by the Director-General or the Attorney-General or as prescribed by regulations. Additional disclosures are permitted if a young person is questioned or detained.