(b) material is pre‑confiscation application questioning material if the material becomes questioning material at a time when: (c) questioning under a questioning warrant is pre‑confiscation application questioning if the questioning commences at a time when: (i) a related confiscation proceeding has not commenced against the subject of the warrant, and such a proceeding is not imminent; or. Home Affairs Minister Peter Dutton has recently introduced legislation to expand the surveillance powers available to Australia’s domestic spy agency. Prohibition on possessing certain things during questioning, Prescribed authority must explain certain matters. All tranches of the 2014-2015 national security amendment bills enacted provisions that limit freedom of the media, and require review by the Monitor It is a bill, introduced by the Minister for Home Affairs, to amend the legislation governing the powers of arrest, questioning, search and seizure exercised by ASIO. (2) A confiscation proceeding is resolved in relation to a person at the later of the following times: (a) when the proceeding is discontinued; (b) if an appeal relating to the proceeding is not lodged within the period for lodging such an appeal—when that period ends; (c) if an appeal relating to the proceeding is lodged—when the appeal lapses or is finally determined. The ASIO Powers Amendment Bill is currently before the House of Representatives. INQUIRY INTO THE ASIO AMENDMENT BILL 2020 5 UNCLASSIFIED. (ii) any of the things that the Organisation is authorised to do that are specified in the warrant. (a) is appointed as a prescribed authority; and. CANBERRA ACT 2600 Dear Chair On I I November 2020, the Inspector-General of Intelligence and Security (IGIS) was invited to make a supplementary submission to the Parliamentary Joint Committee on Intelligence and Security (the Committee)'s inquiry into the Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill). (b) a record or other thing is found during the search that the officer reasonably believes is relevant to the collection of intelligence that is important in relation to: (i) if the warrant is an adult questioning warrant—an adult questioning matter; or. (a) an authorisation under this section; (b) a written record referred to in subsection (5). (b) a minor’s representative (a non‑lawyer representative) for the subject, who is not also a lawyer for the subject, is not present. Among the 28 bills introduced to parliament on May 13 was the Australian Security Intelligence Organisation Amendment Bill 2020 which amends the Australian Security Intelligence and Organisation Act (1979). Burgess admitted ASIO had used it within 10 days of the Act being passed in parliament. (ii) are in the person’s possession or control. questioning material has the meaning given by subsection 34AB(1). Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. Jurisdiction of State and Territory courts excluded, a questioning warrant or the treatment of a person in connection with such a warrant; and, (1) The annual report prepared by the Director‑General and given to the Minister under section 46 of the. About this compilation. (1) This section applies in relation to the subject of a minor questioning warrant if a lawyer for the subject is not present while the subject is appearing before a prescribed authority for questioning under the warrant. However, Dutton has also drafted a suite of provisions that enhances ASIO’s existing questioning regime. (4) A police officer may, for the purposes of subsection (2), request the person to remove a thing in the person’s possession, including anything worn or carried by the person that can be conveniently removed by the person. means a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not. enforcement officer means any of the following: (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). (2) A prescribed authority may give a direction under subsection (1) in relation to questioning material at any time when the subject for the material has not been excused or released from further attendance at questioning. (8) For the purposes of paragraph (h) of the definition of permitted disclosure in subsection (5), the Director‑General may give written permission for a disclosure. permitted questioning period has the meaning given by subsection 34DJ(3). (6) If a questioning warrant is issued in relation to the person, a person approved under section 24 in relation to the warrant may, after a document of the first‑mentioned person is delivered under subsection (2) of this section and before it is returned under subsection (4) of this section: (a) inspect or examine the document; and. 34FH Lawyers’ access to information for proceedings relating to warrant. 2 February 2016 On 21 October 2015 the former INSLM, the Hon. No. (2) The subject of a questioning warrant must not be questioned under the warrant by a person exercising authority under the warrant for longer than the permitted questioning period. Note 1: Also, the subject of a minor questioning warrant may be questioned only in the presence of a lawyer for the subject: see subsection 34FA(1). Schedules............................................................................................ 3, Schedule 1—Amendments relating to compulsory questioning powers 4, Part 1—Amendments 4, Australian Security Intelligence Organisation Act 1979 4, Part 2—Application and saving provisions 95, Part 3—Consequential amendments 98, Crimes Act 1914 98, Criminal Code Act 1995 98, Foreign Evidence Act 1994 99, Inspector‑General of Intelligence and Security Act 1986 99, Intelligence Services Act 2001 100, Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 101, Australian Security Intelligence Organisation Act 1979 101, Schedule 2—Amendments relating to tracking devices 102, Australian Security Intelligence Organisation Act 1979 102. Warrant may require immediate further appearance etc. Under the proposed amendments to the Australian Security and Intelligence Act, ASIO … (d) the prescribed authority gives a direction under paragraph 34DE(1)(d) deferring questioning of the subject under the warrant; a person exercising authority under the warrant must give the subject facilities for making the complaint or giving the information. (1) This section applies to the subject of a questioning warrant while anything is being done in relation to the subject under: (b) a direction given by a prescribed authority in relation to the warrant. (2) A prescribed authority is not subject to direction by the Director‑General or the Attorney‑General in relation to the performance of the prescribed authority’s functions or the exercise of the prescribed authority’s powers (including the making of a direction), other than in relation to the approval of a direction by the Attorney‑General under paragraph 34DE(2)(b). (c) the subject voluntarily chooses not to request that a replacement representative (other than the lawyer) be present during the questioning; the prescribed authority must give a direction that the subject may be questioned under the warrant in the absence of the replacement representative. Amendments to Practice Direction 5 affect paragraphs [6] and [8]. Amendments to ASIO’s compulsory questioning powers 2.1 Background The existing framework for compulsory questioning powers is contained in Division 3 of Part III of the ASIO Act. Omit “26D or 26E”, substitute “26D, 26E or 26G”. (a) the subject has been questioned under the warrant for a total of more than 24 hours and less than 32 hours; and. Australia’s domestic spy agency would be allowed to question children as young as 14 and have easier access to tracking devices under a new bill to beef up Asio’s powers. (11) If a permission under subsection (6), (8) or (9) is given subject to a condition and the condition is not met, the permission is not in force. (i) the Inspector‑General of Intelligence and Security Act 1986; or. (4) During a break in the questioning of the subject, the lawyer may request the prescribed authority for an opportunity to address the prescribed authority on a matter. (b) if the Attorney‑General is satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written variation may be prejudicial to security—orally in person, or by telephone or other means of communication. (5) If a request under subsection (1) is made orally, the Director‑General must: (iii) the matter mentioned in subsection (3); and, (iv) whether the request is to vary the warrant to include an immediate appearance requirement; and, (v) whether the request is to vary the warrant to authorise the apprehension of the subject of the warrant; and, (vi) any other matter the Director‑General considers relevant; and. 18 of 2020 I assent, (SIR COLVILLE N. YOUNG) Governor-General 7th August, 2020. Note: For example, the subject may be able to apply to the Federal Court of Australia under subsection 39B(1) of the Judiciary Act 1903, or the High Court under paragraph 75(v) of the Constitution, for a remedy in relation to the warrant or the treatment of the subject in connection with the warrant. (4) This section has effect subject to any other law of the Commonwealth, or a law of a State or a Territory. Use of tracking devices under internal authorisation, (1) An ASIO employee or ASIO affiliate (the, What an internal authorisation authorises, Exercise of authority under internal authorisations, (b) the extent to which the applicant considers that the authorisation, as varied, will substantially assist the collection of intelligence in respect of the matter (the, Discontinuance of action before expiration of internal authorisation, Issue of warrants for recovery of tracking devices, (1) The Director‑General may request the Attorney‑General to issue a warrant under this section in respect of one or more tracking devices (the. in response to concern of Inspector‑General of Intelligence and Security, Interpreter provided at request of prescribed authority, Interpreter provided at request of subject, Particular uses or disclosures of questioning material and derivative material, Disclosing questioning material to prosecutors of the subject, Disclosing derivative material to prosecutors of the subject, Court’s powers to order disclosure and to ensure a fair trial, (b) an offence against a law of a State that has a federal aspect (within the meaning of the, Certain material may always be disclosed to prosecutors of the subject, (b) an offence against section 137.1 or 137.2 of the, Other matters about prosecutors and subjects, Proceeds of crime authorities and questioning under a questioning warrant, Person specified in warrant may contact lawyer or minor’s representative, (c) the lawyer for the subject is not a person (an, Questioning in absence of lawyer for subject, Directions in relation to lawyers for subjects of adult questioning warrants, (b) give a direction that a person exercising authority under the warrant give the subject facilities for contacting a lawyer (a, Directions in relation to lawyers for subjects of minor questioning warrants, Directions in relation to minor’s representatives, (i) the subject may request that another minor’s representative (a, (ii) the subject may contact a replacement representative, Lawyers’ access to information for proceedings relating to warrant, Law relating to legal professional privilege not affected, Surrender of travel documents by person in relation to whom questioning warrant is sought, (c) an officer of Customs (within the meaning of the, Person in relation to whom questioning warrant is requested must not leave Australia without permission, Note: The Director‑General may revoke or amend the permission: see subsection 33(3) of the, Surrender of travel documents by subject of questioning warrant, Subject of questioning warrant must not leave Australia without permission. (5) Subparagraph (4)(b)(iii) does not prevent the issuing of further warrants in relation to the same devices or equipment. (2) For the purposes of paragraph (1)(b), action under a warrant: (a) if the warrant is issued under section 26R—includes the recovery of a tracking device or any enhancement equipment in relation to the device; or, (i) includes action under an authorisation given under an identified person warrant; but. The ASIO Amendment Act vested ASIO with the type of coercive questioning and detention powers that have historically been bestowed only upon law enforcement agencies. 34EE Other matters about prosecutors and subjects, (a) a person lawfully possesses questioning material or derivative material; and. It includes provisions for: • questioning warrants (QWs) – (b) a lawyer for the subject is present during the questioning; the prescribed authority may direct that the subject be prevented from contacting another lawyer if: (c) the lawyer for the subject is not a person (an appointed lawyer) specified in a direction given under paragraph 34FB(2)(a) or 34FC(2)(a) or (3)(b); or. For the purposes of an inspection under section 9A, the Inspector‑General may, after notifying the Director‑General of Security: (a) enter any place where a person is being questioned or apprehended in relation to a warrant issued under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979; and, 19A Power to enter places relating to questioning warrants. 34BC Warrant has no effect if person under 14. 30 Oct 2020: Canberra10 Jul 2020: Canberra. (b) the subject of the warrant is apprehended under this Division in connection with the warrant. (d) the subject’s right to contact a lawyer in relation to the warrant at any time. (b) the prescribed authority before whom the subject is being questioned is satisfied of the matters in subsection (7); the prescribed authority may, just before the end of the 8 hours, extend the permitted questioning period to 16 hours. This subsection does not limit the matters that may be taken into account. Note: Section 34DK applies if an interpreter is present at any time during the questioning. (a) the person is notified in accordance with subsection (1); and. (b) the person is a prosecutor of the subject for the material; the person may use that material for purposes that include: (c) making a decision whether to prosecute the subject; and. (1) A court may, on application or on its own initiative, order that questioning material or derivative material may be disclosed to prosecutors of the subject for the material if the court is satisfied that the disclosure is required: (b) despite any direction given under subsection 34DF(1). He said the agency had used the Assistance and Access Act within 10 … 1. Moreover, the justifications for all three pieces of legislation have been riddled with serious misrepresentations. The Media, Entertainment & Arts Alliance (MEAA), the trade union and industry advocate for Australia’s journalists, says the recommendations by the Independent National Security Legislation Monitor for amendments to section 35P of the Asio Act still mean Australian journalists face jail terms for legitimate public interest journalism. (7) This section does not apply in relation to: (a) any complaint the subject makes that is of the kind mentioned in paragraph 34DC(1)(i); or, (b) any information the subject gives that is of a kind mentioned in paragraph 34DC(1)(j); or. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has commenced a review into the effectiveness of the Australian Security Intelligence Organisation Amendment Bill 2020.The bill review was requested by the Minister for Home Affairs in a letter to the Committee available here.. On 13 May 2020, the Bill was introduced to the Australian Parliament. 34JC Rules of Court about proceedings connected with warrants. (c) in accordance with subsection 26B(5) or (6), section 26C, 26D or 26E, or subsection 27A(3A) or (3B) or 27F(5). Despite paragraph (b), if an appeal relating to the proceeding is lodged after that period ends, the proceeding ceases to be resolved until that appeal lapses or is finally determined. (b) a specified class of record or other thing; if the Attorney‑General is satisfied that the record or thing, or class of record or thing, is, or may be, relevant to intelligence that is important in relation to: (c) if the warrant is an adult questioning warrant—an adult questioning matter; or.
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