Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 [F2020l01714] [2021] AUPJCHR 21 (24 February 2021)

• Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 [F2020L01714]1
• ASIO compulsory questioning framework
• International human rights legal advice
• Multiple rights
• Committee view

---

Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 [F2020L01714]^[1]

Purpose	This instrument sets out procedures to be followed relating to questioning and apprehension of persons under Part III of the Australian Security Intelligence Organisation Act 1979 warrant
Portfolio	Attorney-General
Authorising legislation	Australian Security Intelligence Organisation Act 1979
Last day to disallow	Exempt from disallowance pursuant to subsection 34AF(5) of the Australian Security Intelligence Organisation Act 1979
Rights	Multiple rights

ASIO compulsory questioning framework

1.112 This instrument sets out the procedures to be followed in the exercise of authority under an Australian Security Intelligence Organisation (ASIO) compulsory questioning warrant.^[2] This includes requirements relating to: the types of information which ASIO must provide to the Attorney-General when requesting a warrant (including information relating to any known vulnerabilities or sensitivities of a warrant subject to the extent that they are relevant to the questioning);^[3] the conduct of questioning (including the provision of healthcare, food, breaks, the ability for a warrant subject to leave the place of questioning during a break);^[4] the conduct of searches and any use of force;^[5] and rules relating to video recording of questioning, and complaints mechanisms.^[6]

International human rights legal advice

Multiple rights

1.113 The procedures outlined in this instrument, which are required to be followed in the exercise of authority under an ASIO compulsory questioning warrant, have safeguard value for warrant subjects who are required to comply with compulsory questioning. For example, it is important that questioning may only be conducted where a warrant subject has access to fresh water, clean sanitary facilities, and appropriate food. It also helps to safeguard rights that a warrant subject must be provided with eight hours of continuous and undisturbed sleep (or 10 hours in the case of a minor) and may leave the questioning place during a break. Further, requiring that a statement of any known vulnerabilities about a warrant subject (including a physical, sensory, intellectual or psychiatric disability) that are relevant to questioning be provided when requesting a warrant, may help to safeguard the human rights of such warrant subjects.

1.114 However, the compulsory questioning warrant scheme itself raises numerous other complex human rights concerns. These issues were considered in detail in relation to the bill that became the Australian Security Intelligence Organisation Amendment Act 2020.^[7] As such, the advice provided in relation to that bill in Report 7 of 2020^[8] and Report 9 of 2020^[9] is reiterated in relation to this instrument.

Committee view

1.115 The committee notes this instrument sets out the procedures to be followed in the exercise of authority under an Australian Security Intelligence Organisation (ASIO) compulsory questioning warrant.

1.116 The committee notes that many of these compulsory questioning warrant procedures in this instrument address specific concerns raised by the committee in its earlier consideration of the bill that became the Australian Security Intelligence Organisation Amendment Act 2020, including in relation to questioning conditions, and additional safeguards for warrant subjects with disability. The committee considers, therefore, that this instrument will likely assist the human rights compatibility of the compulsory questioning scheme in those areas.

1.117 However, the committee notes that the compulsory questioning warrant scheme overall raises numerous other complex human rights concerns, which were considered in detail in relation to the bill that became the Australian Security Intelligence Organisation Amendment Act 2020.^[10] The committee assessed the human rights compatibility of that bill in Report 9 of 2020.^[11]

1.118 As such, the committee refers the minister and the Parliament to that report in relation to the assessment of the human rights compatibility of this instrument.

---

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 [F2020L01714], Report 2 of 2021; [2021] AUPJCHR 21.

[2] The instrument is made pursuant to section 34AF of the Australian Security Intelligence Organisation Act 1979.

[3] Section 6.

[4] Sections 9 and 13.

[5] Sections 11–12.

[6] Sections 14–15.

[7] The bill passed both houses of Parliament on 10 December 2020.

[8] Parliamentary Joint Committee on Human Rights, Report 7 of 2020 (17 June 2020),

pp. 32–68.

[9] Parliamentary Joint Committee on Human Rights, Report 9 of 2020 (18 August 2020),

pp. 1–114.

[10] The bill passed both houses of Parliament on 10 December 2020.

[11] Parliamentary Joint Committee on Human Rights, Report 9 of 2020 (18 August 2020),

pp. 1–114.