Australian Security Intelligence Organisation Amendment Act 2020 (Cth)
Australian Security Intelligence Organisation Amendment Act 2020
No. 134, 2020
Compilation No. 1
Compilation date: 23 September 2021
Registered: 23 September 2021
This compilation only includes editorial changes
About this compilation
This compilation
This is a compilation of the Australian Security Intelligence Organisation Amendment Act 2020 that shows the text of the law as amended and in force on 23 September 2021 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 1
3............ Schedules............................................................................................ 2
Schedule 1—Amendments relating to compulsory questioning powers 3
Part 1—Amendments 3
Australian Security Intelligence Organisation Act 1979 3
Part 2—Application and saving provisions 99
Part 3—Consequential amendments 102
Crimes Act 1914 102
Criminal Code Act 1995 103
Foreign Evidence Act 1994 103
Inspector‑General of Intelligence and Security Act 1986 104
Intelligence Services Act 2001 104
Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 106
Australian Security Intelligence Organisation Act 1979 106
Schedule 2—Amendments relating to tracking devices 107
Australian Security Intelligence Organisation Act 1979 107
Endnotes122
Endnote 1—About the endnotes 122
Endnote 2—Abbreviation key 124
Endnote 3—Legislation history 125
Endnote 4—Amendment history 126
Endnote 5—Editorial changes 127
An Act to amend the Australian Security Intelligence Organisation Act 1979, and for related purposes
1 Short title
This Act is the Australian Security Intelligence Organisation Amendment Act 2020.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 17 December 2020 |
| 2. Schedule 1, Parts 1 to 3 | The earlier of: (a) a single day to be fixed by Proclamation; and (b) 7 September 2020. | 7 September 2020 (paragraph (b) applies) |
| 3. Schedule 1, items 27 and 28 | Immediately after the commencement of the provisions covered by table item 2. However, the provisions do not commence at all unless Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 commences before the commencement of the provisions covered by table item 2. | Never commenced |
| 4. Schedule 1, item 29 | The later of: (a) immediately after the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021. However, the provision does not commence at all if the event mentioned in paragraph (b) does not occur. | 1 September 2021 (paragraph (b) applies) |
| 5. Schedule 2 | The earlier of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately before the commencement of the provisions covered by table item 2. | 7 September 2020 (paragraph (b) applies) |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments relating to compulsory questioning powers
Part 1—Amendments
Australian Security Intelligence Organisation Act 1979
1 Section 4
Insert:
computer means all or part of:
(a) one or more computers; or
(b) one or more computer systems; or
(c) one or more computer networks; or
(d) any combination of the above.
2 Section 4 (paragraph (ba) of the definition of politically motivated violence)
Repeal the paragraph, substitute:
(ba) acts that are offences punishable under Subdivision A of Division 72, or Part 5.3, of the Criminal Code; or
3 Section 4 (definition of terrorism offence)
Repeal the definition.
4 Section 22 (definition of computer)
Repeal the definition.
5 Subsection 25A(2) (note)
Omit “section 22”, substitute “section 4”.
6 Subsection 34(1A)
Omit “subsection 34AAA(2)”, substitute “subsection 34AAD(2)”.
7 Section 34A (first occurring) (heading)
Repeal the heading, substitute:
34AAA Director‑General to report to Attorney‑General—concealment of access
8 Section 34AA (heading)
Repeal the heading, substitute:
34AAC Evidentiary certificates
9 Section 34AAA (heading)
Repeal the heading, substitute:
34AAD Person with knowledge of a computer or a data storage device to assist access to data
9A Subparagraph 34AAA(1)(a)(ix)
Omit “section 34ZB”, substitute “subsection 34CC(5)”.
10 Division 3 of Part III
Repeal the Division, substitute:
Division 3—Compulsory questioning powers
Subdivision A—General provisions
34A Definitions
In this Division:
adult questioning matter means a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from any of the following:
(a) espionage;
(b) politically motivated violence;
(c) acts of foreign interference;
whether directed from, or committed within, Australia or not.
adult questioning warrant means a warrant issued under section 34BA (including such a warrant as varied under section 34BG).
against: a confiscation proceeding is against a person if:
(a) for a proceeding under the Proceeds of Crime Act 2002—the person is a suspect (within the meaning of that Act) for the proceeding; or
(b) for a proceeding under a law of a State or Territory—the person is in a corresponding category for that law.
charged: a person is charged with an offence if a process for prosecuting the person for the offence commences.
communication device means:
(a) a device that a person may use to communicate information to another person; or
(b) a surveillance device (within the meaning of Division 2).
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.
confiscation proceeding means a proceeding under:
(a) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; or
(b) a corresponding law within the meaning of either of those Acts;
but does not include a criminal prosecution for an offence under either of those Acts or a corresponding law.
criminal proceeding means:
(a) a prosecution for an offence against a law of the Commonwealth or of a State or Territory; or
(b) a confiscation proceeding.
dangerous item means:
(a) a weapon; or
(b) any other thing that is or could be used in a dangerous or threatening way.
derivative material means any evidence, information, record or other thing obtained directly or indirectly from questioning material.
disclose, for questioning material or derivative material, includes:
(a) to make available; and
(b) to disclose copies, contents or descriptions of that material.
extra permitted questioning period has the meaning given by subsection 34DK(3).
immediate appearance requirement: a questioning warrant includes an immediate appearance requirement if it requires the subject of the warrant to appear before a prescribed authority for questioning under the warrant immediately after the subject is given notice of the requirement in accordance with section 34BH.
imminent:
(a) a charge against a person is imminent if:
(i) the person is under arrest for an offence, but has not been charged with the offence; or
(ii) a person with authority to commence a process for prosecuting the person for an offence has decided to commence, but not yet commenced, the process; or
(b) a confiscation proceeding against a person is imminent if a person with authority to commence the proceeding has decided to commence, but not yet commenced, the proceeding.
Note: Subparagraph (a)(ii) applies, for example, if a person with authority to lay the charge has decided to lay, but not yet laid, the charge.
lawyer means a person who:
(a) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and
(b) holds a practising certificate granted under a law of a State or Territory.
minor questioning matter 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.
minor questioning warrant means a warrant issued under section 34BB (including such a warrant as varied under section 34BG).
minor’s representative, for the subject of a minor questioning warrant, has the meaning given by section 34AA.
permitted questioning period has the meaning given by subsection 34DJ(3).
police officer means any of the following:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979);
(b) a special member of the Australian Federal Police (within the meaning of that Act);
(c) a member of the police force or police service of a State or Territory.
post‑charge:
(a) a use or disclosure of questioning material or derivative material is a post‑charge use or disclosure if the use or disclosure happens at a time when:
(i) the subject for the material has been charged with a related offence and that charge is still to be resolved; or
(ii) such a charge is imminent; or
(b) material is post‑charge questioning material if the material becomes questioning material at a time when:
(i) the subject for the material has been charged with a related offence and that charge is still to be resolved; or
(ii) such a charge is imminent; or
(c) questioning under a questioning warrant is post‑charge questioning if the questioning commences at a time when:
(i) the subject of the warrant has been charged with a related offence and that charge is still to be resolved; or
(ii) such a charge is imminent; or
(d) a questioning warrant is a post‑charge questioning warrant if the warrant is issued at a time when:
(i) the subject of the warrant has been charged with a related offence and that charge is still to be resolved; or
(ii) such a charge is imminent.
post‑confiscation application:
(a) a use or disclosure of questioning material or derivative material is a post‑confiscation application use or disclosure if the use or disclosure happens at a time when:
(i) a related confiscation proceeding has commenced against the subject for the material and that proceeding is still to be resolved; or
(ii) such a proceeding is imminent; or
(b) material is post‑confiscation application questioning material if the material becomes questioning material at a time when:
(i) a related confiscation proceeding has commenced against the subject for the material and that proceeding is still to be resolved; or
(ii) such a proceeding is imminent; or
(c) questioning under a questioning warrant is post‑confiscation application questioning if the questioning commences at a time when:
(i) a related confiscation proceeding has commenced against the subject of the warrant and that proceeding is still to be resolved; or
(ii) such a proceeding is imminent; or
(d) a questioning warrant is a post‑confiscation application questioning warrant if the warrant is issued at a time when:
(i) a related confiscation proceeding has commenced against the subject of the warrant and that proceeding is still to be resolved; or
(ii) such a proceeding is imminent.
pre‑charge:
(a) a use or disclosure of questioning material or derivative material is a pre‑charge use or disclosure if the use or disclosure happens at a time when:
(i) the subject for the material has not been charged with a related offence, and such a charge is not imminent; or
(ii) all such charges have been resolved; or
(b) material is pre‑charge questioning material if the material becomes questioning material at a time when:
(i) the subject for the material has not been charged with a related offence, and such a charge is not imminent; or
(ii) all such charges have been resolved; or
(c) questioning under a questioning warrant is pre‑charge questioning if the questioning commences at a time when:
(i) the subject of the warrant has not been charged with a related offence, and such a charge is not imminent; or
(ii) all such charges have been resolved.
pre‑confiscation application:
(a) a use or disclosure of questioning material or derivative material is a pre‑confiscation application use or disclosure if the use or disclosure happens at a time when:
(i) a related confiscation proceeding has not commenced against the subject for the material, and such a proceeding is not imminent; or
(ii) all such proceedings have been resolved; or
(b) material is pre‑confiscation application questioning material if the material becomes questioning material at a time when:
(i) a related confiscation proceeding has not commenced against the subject for the material, and such a proceeding is not imminent; or
(ii) all such proceedings have been resolved; or
(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
(ii) all such proceedings have been resolved.
prescribed authority means a person appointed under subsection 34AD(1).
proceeds of crime authority means:
(a) a proceeds of crime authority within the meaning of the Proceeds of Crime Act 2002; or
(b) an authority of a State or Territory responsible for conducting a confiscation proceeding under a corresponding law (within the meaning of the Proceeds of Crime Act 2002).
prosecuting authority means an individual, or authority, authorised by or under a law of the Commonwealth or of a State or Territory to prosecute an offence.
prosecutor, of the subject of a questioning warrant, means an individual:
(a) who is a prosecuting authority or is employed or engaged by a prosecuting authority; and
(b) who:
(i) makes, or is involved in the making of, a decision whether to prosecute the subject for a related offence; or
(ii) is one of the individuals engaging in such a prosecution of the subject.
questioning material has the meaning given by subsection 34AB(1).
questioning warrant means:
(a) an adult questioning warrant; or
(b) a minor questioning warrant.
record has the same meaning as in Division 2.
related confiscation proceeding, for questioning material, derivative material or the subject of a questioning warrant, means a confiscation proceeding if the subject matter of the relevant questioning relates to the subject matter of the proceeding.
related offence, for questioning material, derivative material or the subject of a questioning warrant, means an offence if the subject matter of the relevant questioning relates to the subject matter of the offence.
resolved, in relation to a charge or a confiscation proceeding, has the meaning given by section 34AC.
screening equipment means a metal detector or a device for detecting objects or particular substances.
subject:
(a) in relation to a questioning warrant—means the person specified in the warrant; or
(b) for questioning material or derivative material—has the meaning given by subsection 34AB(3).
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.
undergo a screening procedure: a person undergoes a screening procedure at a place if:
(a) the person walks, or is moved, through screening equipment at the place; or
(b) handheld screening equipment is passed over or around the person or around things that are at the place and in the person’s possession or control; or
(c) things that are at the place and in the person’s possession or control are passed through screening equipment or examined by X‑ray.
use, for questioning material or derivative material, includes use of copies, contents or descriptions of that material.
34AA Meaning of minor’s representative
(1) A person is a minor’s representative for the subject of a minor questioning warrant if the person is:
(a) a parent of the subject; or
(b) a guardian of the subject; or
(c) another person who meets the requirements in subsection (2).
(2) A person meets the requirements of this subsection if the person:
(a) is able to represent the subject’s interests; and
(b) is, as far as practicable in the circumstances, acceptable to the subject and, if applicable, to the prescribed authority; and
(c) is not one of the following:
(i) a police officer;
(ii) the Director‑General;
(iii) an ASIO employee or an ASIO affiliate;
(iv) a person approved under section 24.
Note: A lawyer for the subject of a minor questioning warrant, including a lawyer appointed under paragraph 34FC(2)(a) or (3)(b), may also be a minor’s representative for the subject if the lawyer meets the requirements of this subsection.
34AB Meaning of questioning material and subject
(1) Questioning material is:
(a) any information given by a person while before a prescribed authority for questioning under a questioning warrant; or
(b) a record or other thing produced by a person while before a prescribed authority for questioning under a questioning warrant; or
(c) any information that might enable a person, who has appeared before a prescribed authority for questioning under a questioning warrant, to be identified; or
(d) the fact that a person has appeared, or is required to appear, before a prescribed authority for questioning under a questioning warrant.
(2) To avoid doubt, information, a record or a thing is not covered by paragraph (1)(a) or (b) to the extent that it is obtained otherwise than before a prescribed authority under a questioning warrant.
Example: Before a record is produced before a prescribed authority, a copy of the record is obtained when executing a search warrant. The copy obtained under the search warrant is not questioning material.
(3) The subject is:
(a) for questioning material—the person referred to in paragraph (1)(a), (b), (c) or (d); or
(b) for derivative material—the person who is the subject for the questioning material from which the derivative material was obtained.
34AC Meaning of resolved
(1) A charge for an offence is resolved in relation to a person at the later of the following times:
(a) when:
(i) the charge is withdrawn; or
(ii) the charge is dismissed; or
(iii) the person is not committed on the charge following a committal hearing; or
(iv) the person is acquitted of the offence; or
(v) the person is sentenced for the offence; or
(vi) the person is dealt with by being the subject of a court order made as a consequence of a finding of guilt; or
(vii) the charge is otherwise finally dealt with;
(b) if an appeal relating to the charge is not lodged within the period for lodging such an appeal—when that period ends;
(c) if an appeal relating to the charge is lodged—when the appeal lapses or is finally determined.
Despite paragraph (b), if an appeal relating to the charge is lodged after that period ends, the charge ceases to be resolved until that appeal lapses or is finally determined.
(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.
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.
34AD Prescribed authorities
Appointment of prescribed authority
(1) The Attorney‑General may, in writing, appoint as a prescribed authority:
(a) a person who:
(i) has served as a judge in one or more superior courts for a period of at least 5 years; and
(ii) no longer holds a commission as a judge of a superior court; or
(b) a person who:
(i) holds an appointment to the Administrative Appeals Tribunal as President or Deputy President; and
(ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and
(iii) has been enrolled for at least 5 years; or
(c) a person who:
(i) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and
(ii) has engaged in practice as a legal practitioner for at least 10 years; and
(iii) holds a practising certificate granted under a law of a State or Territory; and
(iv) is a Queen’s Counsel or a Senior Counsel.
(2) A person is not eligible for appointment under subsection (1) if the person is:
(a) an ASIO employee or an ASIO affiliate; or
(b) the Director‑General; or
(c) an AGS lawyer (within the meaning of the Judiciary Act 1903); or
(d) an IGIS official; or
(e) a person referred to in subsection 6(1) of the Australian Federal Police Act 1979; or
(f) a staff member of a law enforcement agency (other than the Australian Federal Police); or
(g) a staff member of an intelligence or security agency.
(3) The Attorney‑General must not appoint a person to whom paragraph (1)(c) applies unless the Attorney‑General is satisfied that the person has the knowledge or experience necessary to properly perform the duties of a prescribed authority.
(4) The Attorney‑General must not appoint a person unless:
(a) the person has, in writing, consented to being appointed; and
(b) the consent is in force.
(5) Before appointing a person as a prescribed authority, the Attorney‑General must have regard to:
(a) whether the person engages in any paid or unpaid work that conflicts, or could conflict, with the proper performance of the person’s duties as a prescribed authority; and
(b) whether the person has any interests, pecuniary or otherwise, that conflict, or could conflict, with the proper performance of the person’s duties as a prescribed authority.
Duty to disclose interests
(6) A person who:
(a) is appointed as a prescribed authority; and
(b) has a material personal interest that relates to the proper performance of the person’s duties as a prescribed authority;
must disclose that interest, in writing, to the Attorney‑General.
(7) The disclosure must include details of:
(a) the nature and extent of the interest; and
(b) how the interest relates to the proper performance of the person’s duties as a prescribed authority.
(8) The person must make the disclosure:
(a) as soon as practicable after the person becomes aware of the interest; and
(b) if there is a change in the nature or extent of the interest after the person has disclosed the interest under this section—as soon as practicable after the person becomes aware of that change.
Termination of appointment
(9) The Attorney‑General may terminate the appointment of a prescribed authority:
(a) for misbehaviour; or
(b) if the prescribed authority is unable to perform the duties of a prescribed authority because of physical or mental incapacity; or
(c) if the prescribed authority becomes bankrupt; or
(d) if the prescribed authority fails, without reasonable excuse, to comply with subsection (6), (7) or (8); or
(e) if the prescribed authority engages in paid or unpaid work, or has an interest, pecuniary or otherwise, that, in the Attorney‑General’s opinion, conflicts or could conflict with the proper performance of the prescribed authority’s duties.
Definitions
(10) In this section:
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
unpaid work means work that is not paid work.
34AE Status of prescribed authorities
A prescribed authority has, in the performance of the prescribed authority’s duties under this Division, the same protection and immunity as a Justice of the High Court.
34AF Written statement of procedures
(1) The Director‑General may prepare a written statement of procedures to be followed in the exercise of authority under a questioning warrant.
Consultation
(2) The Director‑General must consult the following about the preparation of the statement:
(a) the Inspector‑General of Intelligence and Security;
(b) the Commissioner of the Australian Federal Police.
Approval by Attorney‑General
(3) The Director‑General must give the statement to the Attorney‑General for approval.
(4) The Attorney‑General must approve or refuse to approve the statement.
Approved statement is a legislative instrument
(5) A statement approved by the Attorney‑General is a legislative instrument made by the Attorney‑General on the day on which the statement is approved, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the statement.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the statement: see regulations made for the purposes of paragraph 54(2)(b) of that Act.
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 Attorney‑General. The briefing may be done orally or in writing.
34AG Humane treatment of subject of questioning warrant
(1) This section applies to the subject of a questioning warrant while anything is being done in relation to the subject under:
(a) the warrant; or
(b) a direction given by a prescribed authority in relation to the warrant.
(2) The subject must be treated with humanity and with respect for human dignity, and must not be subjected to torture or to cruel, inhuman or degrading treatment, by any person exercising authority under the warrant or implementing or enforcing the direction.
Subdivision B—Questioning warrants
34B Request for questioning warrant
Request for warrant
(1) The Director‑General may request the Attorney‑General to issue, in relation to a person:
(a) an adult questioning warrant; or
(b) a minor questioning warrant.
(2) The request may be made:
(a) in writing; or
(b) if the Director‑General reasonably believes that the delay caused by making a written request may be prejudicial to security—orally in person, or by telephone or other means of communication.
(3) To avoid doubt, this section operates in relation to a request for the issue of a questioning warrant in relation to a person, even if a request (a previous request) for the issue of a questioning warrant has previously been made under this section in relation to the person.
Requirements for requests
(4) A request under subsection (1) must include:
(a) a statement of the facts and other grounds on which the Director‑General considers it necessary that the warrant should be issued; and
(b) a statement of the particulars and outcomes of any previous requests for the issue of a questioning warrant in relation to the person; and
(c) if one or more warrants were issued as a result of the previous requests—a statement of:
(i) the period for which the person was questioned under each of those warrants; and
(ii) whether the person was apprehended in connection with any of those warrants; and
(d) whether the request is for a warrant that includes an immediate appearance requirement; and
(e) if the request is for a warrant that includes an immediate appearance requirement—whether the request is also for a questioning warrant that authorises the apprehension of the person; and
(f) if the request is for a minor questioning warrant—all information known to the Director‑General, at the time of the making of the request, about the matters mentioned in subsection 34BB(3).
Additional requirements for oral requests
(5) If a request under subsection (1) is to be made orally, the Director‑General must, before or as soon as practicable after the request is made, cause the Inspector‑General of Intelligence and Security to be notified that the request will be or has been made.
(6) If a request under subsection (1) is made orally, the Director‑General must:
(a) make a written record of the request that includes:
(i) the day and time the request is made; and
(ii) the reasons why the Director‑General believes that the delay caused by making a written request may be prejudicial to security; and
(iii) the matters mentioned in subsection (4); and
(b) as soon as practicable, and no later than 48 hours after the request is made, provide the written record to:
(i) the Attorney‑General; and
(ii) the Inspector‑General of Intelligence and Security.
34BA Test for issue of questioning warrant—persons who are at least 18
(1) If the Director‑General requests the Attorney‑General to do so, the Attorney‑General may issue a warrant in relation to a person under this section if the Attorney‑General is satisfied that:
(a) the person is at least 18 years old; and
(b) there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to an adult questioning matter; and
(c) having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued; and
(d) if the warrant is a post‑charge, or post‑confiscation application, questioning warrant—it is necessary, for the purposes of collecting the intelligence, for the warrant to be issued even though:
(i) the person has been charged or the confiscation proceeding has commenced; or
(ii) that charge or proceeding is imminent; and
(e) there is in force under section 34AF a written statement of procedures to be followed in the exercise of authority under a questioning warrant.
(2) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) paragraph (1)(d) had not been enacted; or
(b) paragraph (1)(d) were, by express provision, confined to dealing with a charge against the person or such a charge that is imminent; or
(c) paragraph (1)(d) were, by express provision, confined to dealing with a confiscation proceeding against the person that has commenced or is imminent.
34BB Test for issue of questioning warrant—persons who are at least 14
(1) If the Director‑General requests the Attorney‑General to do so, the Attorney‑General may issue a warrant in relation to a person under this section if the Attorney‑General is satisfied that:
(a) the person is at least 14 years old; and
(b) there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial 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; and
(c) there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a minor questioning matter; and
(d) having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued; and
(e) if the warrant is a post‑charge, or post‑confiscation application, questioning warrant—it is necessary, for the purposes of collecting the intelligence, for the warrant to be issued even though:
(i) the person has been charged or the confiscation proceeding has commenced; or
(ii) that charge or proceeding is imminent; and
(f) there is in force under section 34AF a written statement of procedures to be followed in the exercise of authority under a questioning warrant.
(2) In deciding whether to issue the warrant, the Attorney‑General must consider the best interests of the person as a primary consideration.
(3) In considering the best interests of a person for the purposes of subsection (2), the Attorney‑General must take into account the following matters:
(a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
(b) the physical and mental health of the person;
(c) the benefit to the person of having a meaningful relationship with the person’s family and friends;
(d) the right of the person to receive an education;
(e) the right of the person to practise the person’s religion;
(f) any other matter the Attorney‑General considers relevant.
(4) The Attorney‑General must take into account the matters in subsection (3) only to the extent that:
(a) the matters are known to the Attorney‑General; and
(b) the matters are relevant.
Note: Information about the matters in subsection (3) is provided to the Attorney‑General as part of the request for the warrant: see paragraph 34B(4)(f).
(5) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) paragraph (1)(e) had not been enacted; or
(b) paragraph (1)(e) were, by express provision, confined to dealing with a charge against the person or such a charge that is imminent; or
(c) paragraph (1)(e) were, by express provision, confined to dealing with a confiscation proceeding against the person that has commenced or is imminent.
34BC Warrant has no effect if person under 14
A questioning warrant has no effect if the subject of the warrant is under 14 years old.
34BD What a questioning warrant authorises
(1) A questioning warrant must, subject to any restrictions or conditions specified in the warrant:
(a) require the subject of the warrant to appear before a prescribed authority for questioning under the warrant either:
(i) if the warrant includes an immediate appearance requirement—immediately after the subject is given notice of the requirement in accordance with section 34BH; or
(ii) at a day and time specified in the warrant; and
(b) subject to subsection (2), authorise the Organisation to question the subject of the warrant before a prescribed authority by requesting the subject to:
(i) if the warrant is an adult questioning warrant—give information, or produce a record or other thing, that is, or may be, relevant to intelligence that is important in relation to an adult questioning matter; or
(ii) if the warrant is a minor questioning warrant—give information, or produce a record or other thing, that is, or may be, relevant to intelligence that is important in relation to a minor questioning matter; and
(c) authorise the Organisation to make copies or transcripts of a record produced by the subject while before a prescribed authority for questioning under the warrant.
Additional requirements for minors
(2) For the purposes of paragraph (1)(b), if the warrant is a minor questioning warrant, the warrant authorises the Organisation to question the subject of the warrant before a prescribed authority:
(a) only in the presence of a minor’s representative for the subject; and
(b) only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.
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).
Note 2: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34DE(1)(e) for the subject’s further appearance before the prescribed authority for questioning.
(3) To avoid doubt, subsection (2) does not affect the operation of section 34DJ (permitted questioning time) or 34DK (extra permitted questioning time if interpreter present).
Matters in relation to which the Organisation may request information etc.
(4) For the purposes of paragraph (1)(b), the matters in relation to which the Organisation may request the subject to give information, or produce records or things, may include:
(a) the subject matter of any charge, or imminent charge, against the subject; and
(b) the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the subject.
Severability
(5) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) subsection (4) had not been enacted; or
(b) subsection (4) were, by express provision, confined to dealing with a charge against the subject or such a charge that is imminent; or
(c) subsection (4) were, by express provision, confined to dealing with a confiscation proceeding against the subject that has commenced or is imminent.
34BE Other things that may be authorised in questioning warrant
Warrant may require immediate appearance
(1) A questioning warrant may include an immediate appearance requirement if the Attorney‑General is satisfied that it is reasonable and necessary in the circumstances.
Note: For the definition of immediate appearance requirement, see section 34A.
Warrant may authorise apprehension
(2) If:
(a) a questioning warrant is to include an immediate appearance requirement under subsection (1); and
(b) the Attorney‑General is satisfied that there are reasonable grounds for believing that, if the subject of the warrant is not apprehended, the subject is likely to:
(i) alert a person involved in an activity prejudicial to security that the activity is being investigated; or
(ii) not appear before the prescribed authority; or
(iii) destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested under the warrant to produce;
the warrant may also authorise the apprehension of the subject by a police officer in order to immediately bring the subject before the prescribed authority for questioning under the warrant.
Note: A police officer may also apprehend the subject of a questioning warrant if the subject makes certain representations: see subsection 34C(2).
Warrant may authorise seizure of certain records or other things found during search
(3) If the Attorney‑General is satisfied that it is reasonable and necessary in the circumstances, a questioning warrant may provide that if:
(a) a police officer conducts a search of the subject of the warrant under section 34CC; and
(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
(ii) if the warrant is a minor questioning warrant—a minor questioning matter;
the officer is authorised to seize the record or other thing.
Note: A police officer may only conduct a search of the subject of a questioning warrant under section 34CC if the subject is apprehended in connection with the warrant.
Warrant may request production of records or things
(4) A questioning warrant may request the subject of the warrant to produce, before a prescribed authority:
(a) a specified record or other thing; or
(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
(d) if the warrant is a minor questioning warrant—a minor questioning matter.
Warrant may require immediate further appearance etc.
(5) If:
(a) a questioning warrant is in force; and
(b) the subject of the warrant has appeared before a prescribed authority for questioning under the warrant; and
(c) the subject has not been questioned under the warrant for longer than the permitted questioning period or, if applicable, the extra permitted questioning period; and
(d) the Attorney‑General is satisfied that it is reasonable and necessary in the circumstances;
the warrant may, despite any direction given under subsection 34DE(1) to the contrary:
(e) require the subject’s further appearance before a prescribed authority for questioning under the warrant; and
(f) include an immediate appearance requirement under subsection (1) in relation to the further appearance.
Note: This subsection only applies if a questioning warrant that is in force is varied under section 34BG.
(6) If:
(a) a questioning warrant is to include the requirements mentioned in paragraphs (5)(e) and (f); and
(b) the Attorney‑General is satisfied that there are reasonable grounds for believing that, if the subject of the warrant is not apprehended:
(i) the subject is likely to alert a person involved in an activity prejudicial to security that the activity is being investigated; or
(ii) the subject is likely to not comply with the requirements mentioned in paragraphs (5)(e) and (f); or
(iii) the subject is likely to destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested under the warrant to produce;
the warrant may also authorise the apprehension of the subject by a police officer in order to immediately bring the subject before the prescribed authority for further questioning under the warrant.
34BF Requirements for questioning warrant
(1) A questioning warrant may be issued:
(a) by means of a written document signed by the Attorney‑General; or
(b) if the Attorney‑General is satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written warrant may be prejudicial to security—orally in person, or by telephone or other means of communication.
Requirements for written warrants
(2) If a questioning warrant is issued by means of a written document, the warrant must specify:
(a) that the warrant authorises the things mentioned in subsection 34BD(1); and
(b) which of the things mentioned in section 34BE are authorised by the warrant (if any); and
(c) the period during which the warrant is to be in force.
Requirements for oral warrants
(3) If a questioning warrant is issued orally, the Director‑General must cause a written record of the warrant, that includes the matters mentioned in subsection (2), to be made as soon as practicable, and no later than 48 hours after the warrant is issued.
Duration of warrant
(4) A questioning warrant may remain in force for a period of no more than 28 days, although the Attorney‑General may revoke the warrant before the period has expired.
Issue of further warrants not prevented
(5) Subsection (4) does not prevent the issue of any further warrant.
Written warrants and records not legislative instruments
(6) The following are not legislative instruments:
(a) a document referred to in paragraph (1)(a);
(b) a written record referred to in subsection (3).
34BG Variation of questioning warrant
Request for variation
(1) The Attorney‑General may, on request by the Director‑General, vary a questioning warrant.
(2) The request may be made:
(a) in writing; or
(b) if the Director‑General reasonably believes that the delay caused by making a written request may be prejudicial to security—orally in person, or by telephone or other means of communication.
(3) The request must include the facts and other grounds on which the Director‑General considers it necessary that the warrant should be varied.
Requirements for oral requests
(4) If a request under subsection (1) is to be made orally, the Director‑General must, before or as soon as practicable after the request is made, notify the Inspector‑General of Intelligence and Security that the request will be or has been made.
(5) If a request under subsection (1) is made orally, the Director‑General must:
(a) make a written record of the request that includes:
(i) the day and time the request is made; and
(ii) the reasons why the Director‑General believes that the delay caused by making a written request may be prejudicial to security; and
(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
(b) as soon as practicable, and no later than 48 hours after the request is made, provide the written record to:
(i) the Attorney‑General; and
(ii) the Inspector‑General of Intelligence and Security.
Issue of variation
(6) The variation may be issued:
(a) by means of a written document signed by the Attorney‑General; or
(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.
(7) If the variation is issued orally, the Director‑General must cause a written record of the variation to be made as soon as practicable, and no later than 48 hours after the variation is issued.
Limits on variation
(8) If the variation extends, or further extends, the period during which the warrant is in force, the total period during which the warrant is in force must not exceed 28 days.
Warrant may be varied more than once
(9) A questioning warrant may be varied more than once under this section.
Written variations and records not legislative instruments
(10) The following are not legislative instruments:
(a) a document referred to in paragraph (6)(a);
(b) a written record referred to in subsection (7).
34BH Notification requirements in relation to questioning warrant
(1) This section applies if the Attorney‑General issues a questioning warrant.
(2) The Director‑General must cause the subject of the warrant to be given written notice of:
(a) the warrant; and
(b) the place where the subject is required to appear before a prescribed authority for questioning under the warrant; and
(c) either:
(i) if the warrant includes an immediate appearance requirement—the fact that the subject must appear before the prescribed authority for questioning under the warrant immediately after the subject is given notice of the requirement under this section; or
(ii) otherwise—the day and time when the subject is required to appear before the prescribed authority for questioning under the warrant; and
(d) the fact that the subject is able to contact a lawyer in accordance with section 34F; and
(e) if the warrant is a minor questioning warrant—the fact that:
(i) the subject may request that a minor’s representative for the subject be present during the questioning; and
(ii) the subject may be questioned only in the presence of a minor’s representative for the subject; and
(f) the subject’s obligations under sections 34GD and 34GF; and
(g) the subject’s right to make a complaint orally or in writing to:
(i) in relation to the Organisation—the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986; or
(ii) in relation to the Australian Federal Police—the Ombudsman under the Ombudsman Act 1976; or
(iii) in relation to the police force or police service of a State or Territory—a complaints agency of the State or Territory concerned; and
(h) the fact that the subject may seek from a federal court a remedy relating to the warrant or the treatment of the subject in connection with the warrant.
(3) If the warrant is varied before the subject is given notice of the warrant in accordance with this section, the Director‑General must cause the subject to be given written notice of:
(a) the warrant as varied; and
(b) the matters mentioned in paragraphs (2)(b) to (h).
(4) If:
(a) the warrant is varied after the subject is given notice of the warrant in accordance with this section; and
(b) the variation may affect the subject’s obligations under the warrant or the information provided in the notice;
the Director‑General must, as soon as practicable, cause the subject to be given written notice of:
(c) the variation; and
(d) the effect of the variation on the subject’s obligations under the warrant.
Note: For example, if the warrant is varied to include an immediate appearance requirement, the Director‑General must cause the subject to be given written notice of the fact that the subject must appear before the prescribed authority immediately after the notice is given.
(5) If the warrant is revoked after the subject is given notice of the warrant in accordance with this section, the Director‑General must, as soon as practicable, cause the subject to be given written notice of:
(a) the revocation; and
(b) the fact that the subject is no longer required to appear before a prescribed authority for questioning under the warrant; and
(c) the effect of section 34GF; and
(d) the subject’s right to contact a lawyer in relation to the warrant at any time.
Subdivision C—Apprehension and search powers etc.
34C Police officer may apprehend subject of questioning warrant in certain circumstances
Apprehension where authorised by warrant
(1) If a questioning warrant authorises the apprehension of the subject of the warrant, a police officer may apprehend the subject in order to immediately bring the subject before a prescribed authority for questioning under the warrant.
Note 1: The Attorney‑General may only issue a questioning warrant that authorises the apprehension of the subject of the warrant if:
(a) the warrant includes an immediate appearance requirement; and
(b) the Attorney‑General is satisfied of certain matters.
See subsection 34BE(2).
Note 2: A police officer’s power to apprehend the subject of a questioning warrant under this subsection ends when the subject appears before a prescribed authority for questioning under the warrant.
Apprehension where certain representations made
(2) If:
(a) a questioning warrant includes an immediate appearance requirement; and
(b) the warrant does not authorise the apprehension of the subject of the warrant; and
(c) at the time the subject is given notice of the requirement in accordance with section 34BH, the subject makes a representation that the subject intends to:
(i) alert a person involved in an activity prejudicial to security that the activity is being investigated; or
(ii) not appear before the prescribed authority; or
(iii) destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested in accordance with the warrant to produce;
a police officer may apprehend the subject in order to immediately bring the subject before a prescribed authority for questioning under the warrant.
Note: A police officer’s power to apprehend the subject of a questioning warrant under this subsection ends when the subject appears before a prescribed authority for questioning under the warrant.
Apprehension where subject fails to appear
(3) If the subject of a questioning warrant fails to appear before a prescribed authority as required by:
(a) the warrant; or
(b) a direction given by the prescribed authority under subsection 34DE(1);
a police officer may apprehend the subject in order to immediately bring the subject before the prescribed authority for questioning under the warrant.
Note: A police officer’s power to apprehend the subject of a questioning warrant under this subsection ends when the subject appears before a prescribed authority for questioning under the warrant.
Definitions
(4) In this section, representation includes:
(a) an express or implied representation (whether oral or in writing); and
(b) a representation that could be inferred from conduct; and
(c) a representation not intended by its maker to be communicated to or seen by another person; and
(d) a representation that for any reason is not communicated.
34CA Entering premises to apprehend subject
If:
(a) a police officer is authorised under section 34C to apprehend the subject of a questioning warrant; and
(b) the officer believes on reasonable grounds that the subject is on particular 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 subject or apprehending the subject.
34CB Communications while apprehended
(1) The subject of a questioning warrant who is apprehended under this Division is not permitted to contact, and may be prevented from contacting, any person at any time during the period:
(a) beginning when the subject is apprehended; and
(b) ending when the subject appears before a prescribed authority for questioning under the warrant.
(2) However:
(a) the subject may contact any or all of the following:
(i) a lawyer;
(ii) if the warrant is a minor questioning warrant—a minor’s representative for the subject;
(iii) any other person the subject is permitted to contact by the warrant, or by a direction given under paragraph 34DE(1)(b); and
(b) subsection (1) does not affect the following:
(i) the operation of the Inspector‑General of Intelligence and Security Act 1986 in relation to contact between the subject and the Inspector‑General of Intelligence and Security;
(ii) the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the subject and the Ombudsman in respect of a complaint, or proposed complaint, about the Australian Federal Police;
(iii) the subject’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
(c) any person apprehending the subject under this Division must, if requested by the subject, give the subject facilities for the following:
(i) contacting a person mentioned in paragraph (a);
(ii) contacting the Inspector‑General of Intelligence and Security;
(iii) contacting the Ombudsman to make a complaint under section 7 of the Ombudsman Act 1976;
(iv) contacting the Commissioner of the Australian Federal Police to give information under section 40SA of the Australian Federal Police Act 1979;
(v) contacting a complaints agency to make a complaint of the kind mentioned in subparagraph (b)(iii).
Note: For the purposes of paragraph (a), section 34F provides for the subject of a questioning warrant to contact a lawyer for the purpose of obtaining legal advice in relation to the warrant and, if the warrant is a minor questioning warrant, to also contact a minor’s representative.
34CC Power to conduct search of apprehended subject of questioning warrant
(1) This section applies if:
(a) a questioning warrant is in force; and
(b) the subject of the warrant is apprehended under this Division in connection with the warrant.
Power to conduct search
(2) A police officer may conduct an ordinary search or a frisk search of the subject at any time during the period:
(a) beginning when the subject is apprehended; and
(b) ending when the subject appears before a prescribed authority for questioning under the warrant.
(3) An ordinary search or a frisk search of the subject must, if practicable, be conducted by a police officer of the same sex as the subject.
Records or other things found during search
(4) If:
(a) a record or other thing is found during a search of the subject of a questioning warrant under this section; and
(b) the record or other thing is:
(i) a seizable item; or
(ii) a communication device;
the record or other thing may be seized under this subsection by the police officer conducting the search.
(5) If:
(a) a record or other thing is found during a search of the subject of a questioning warrant under this section; and
(b) the police officer conducting the search reasonably believes that the record or other thing 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
(ii) if the warrant is a minor questioning warrant—a minor questioning matter; and
(c) the warrant authorises the seizure of such a record or other thing;
the record or other thing may be seized under this subsection by the officer.
(6) Despite subsection (4), a seizable item or a communication device is taken to have been seized under subsection (5) if:
(a) the item or device is found during a search of the subject of a questioning warrant under this section; and
(b) the item or device is seized by the police officer conducting the search; and
(c) the requirements of paragraphs (5)(b) and (c) are met in relation to the item or device.
34CD Use of force in apprehending or searching subject
A police officer may use such force as is necessary and reasonable in:
(a) apprehending the subject of a questioning warrant in accordance with section 34C, or preventing the escape of the subject from such apprehension; or
(b) conducting an ordinary search or a frisk search of the subject of a questioning warrant under subsection 34CC(2).
34CE Power to remove, retain and copy materials etc.
Powers of the Organisation
(1) In addition to the things that the Organisation is authorised to do that are specified in a questioning warrant, the Organisation is also authorised:
(a) to remove and retain any record or other thing produced by the subject of the warrant while before a prescribed authority for questioning under the warrant, or to retain any record or other thing seized under subsection 34CC(5), for the purposes of:
(i) inspecting or examining the record or thing; and
(ii) in the case of a record—making copies or transcripts of the record; and
(b) to do any other thing reasonably incidental to:
(i) the things mentioned in paragraph (a); or
(ii) any of the things that the Organisation is authorised to do that are specified in the warrant.
(2) A record or other thing retained as mentioned in paragraph (1)(a) may be retained:
(a) if returning the record or other thing would be prejudicial to security—only until returning the record or other thing would no longer be prejudicial to security; and
(b) otherwise—for only such time as is reasonable.
Powers of police officers
(3) A seizable item seized by a police officer under subsection 34CC(4) may be retained for such time as is reasonable.
(4) A communication device seized by a police officer under subsection 34CC(4) may be retained:
(a) if returning the device would be prejudicial to security—only until returning the device would no longer be prejudicial to security; and
(b) otherwise—for only such time as the prescribed authority before whom the subject is appearing for questioning under the warrant considers reasonable.
Subdivision D—Matters relating to questioning under questioning warrants
34D Screening of persons
(1) This section applies in relation to a person who is seeking to enter a place (the questioning place) where the subject of a questioning warrant is appearing, or is due to appear, before a prescribed authority for questioning under the warrant.
Note: This section applies in relation to any person who is seeking to enter a questioning place, including the subject.
Persons may be screened or searched
(2) A police officer may request the person to do any of the following:
(a) undergo a screening procedure at a place;
(b) produce a thing in the person’s possession for inspection or examination, including anything worn or carried by the person that can be conveniently removed by the person;
(c) undergo an ordinary search or a frisk search, if the officer suspects on reasonable grounds that it is prudent to conduct an ordinary search or a frisk search of the person in order to ascertain whether the person is carrying a dangerous item or a communication device.
(3) An ordinary search or a frisk search under paragraph (2)(c) must, if practicable, be conducted by a police officer of the same sex as the person.
(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.
Certain items may be retained
(5) A police officer may request the person to give a dangerous item or a communication device to the officer for safekeeping while the questioning is being conducted.
(6) A dangerous item given to a police officer under subsection (5) may be retained by the officer for such time as is reasonable.
(7) A communication device given to a police officer under subsection (5) by the subject may be retained by the officer:
(a) if returning the device would be prejudicial to security—only until returning the device would no longer be prejudicial to security; and
(b) otherwise—for only such time as the prescribed authority before whom the subject is appearing for questioning under the warrant considers reasonable.
(8) A communication device given to a police officer under subsection (5) by a person other than the subject must be returned to the person if:
(a) the person requests the officer to return the device; and
(b) at the time of the request, the person has left the questioning place.
Person may be requested to answer questions about certain things
(9) If a thing is:
(a) in the possession or control of a person while the person undergoes a screening procedure in accordance with paragraph (2)(a); or
(b) produced by a person for inspection or examination in accordance with paragraph (2)(b); or
(c) removed by a person in accordance with subsection (4); or
(d) given by a person to a police officer for safekeeping in accordance with subsection (5);
a police officer may request the person to answer reasonable questions about the thing.
Power to refuse entry
(10) A police officer may refuse a person (other than an IGIS official) entry to a questioning place if:
(a) a police officer makes a request of the person under this section; and
(b) the person does not comply with the request.
Note: If:
(a) a person is the subject of a questioning warrant; and
(b) the person is refused entry under this subsection to the questioning place;
the person will be taken to have failed to appear for questioning under the warrant: see subsection 34GD(2).
Exceptions
(11) This section does not apply in relation to:
(a) a communication device that is in the possession of, or being used lawfully by:
(i) an ASIO employee; or
(ii) an ASIO affiliate; or
(iii) an IGIS official; or
(iv) a police officer; or
(b) a dangerous item that is in the lawful possession of a police officer.
34DA Prohibition on possessing certain things during questioning
(1) This section applies in relation to a person who is at a place where the subject of a questioning warrant is appearing before a prescribed authority for questioning under the warrant.
Note: This section applies in relation to any person who is at the place, including the subject.
(2) The person must not possess either of the following while the subject is appearing for questioning:
(a) a communication device;
(b) a dangerous item.
(3) However, this section does not apply in relation to:
(a) a communication device that is in the possession of:
(i) an ASIO employee; or
(ii) an ASIO affiliate; or
(iii) an IGIS official; or
(iv) a police officer; or
(b) a dangerous item that is in the lawful possession of a police officer; or
(c) a communication device or a dangerous item that is in the possession of the subject, if:
(i) the device or item is seized under section 34CC, or retained under section 34CE or 34D; and
(ii) the device or item is returned to the subject for the purpose of complying with a request made by the Organisation in accordance with the warrant; and
(iii) the possession is solely for that purpose.
34DB Questioning under a questioning warrant
(1) The questioning of a person under a questioning warrant may be:
(a) pre‑charge questioning or post‑charge questioning; or
(b) pre‑confiscation application questioning or post‑confiscation application questioning.
(2) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) paragraph (1)(a) were, by express provision, confined to pre‑charge questioning; or
(b) paragraph (1)(b) were, by express provision, confined to pre‑confiscation application questioning.
34DC Prescribed authority must explain certain matters
(1) When the subject of a questioning warrant first appears before a prescribed authority for questioning under the warrant, the prescribed authority must inform the subject of the following:
(a) what the warrant authorises the Organisation to do;
(b) the period for which the warrant is in force;
(c) the circumstances in which the subject may be apprehended during the period in which the warrant is in force;
(d) the role of the prescribed authority, and in particular that the role includes:
(i) supervising the questioning of the subject; and
(ii) giving appropriate directions in relation to the subject;
(e) that the subject is able to contact a lawyer in accordance with section 34F;
(f) the effect of section 34GD (including the fact that the section creates offences);
(g) the effect of section 34GF (including the fact that the section creates offences and allows the prescribed authority to permit certain disclosures to be made);
(h) the subject’s right to apply to the Attorney‑General for the provision of financial assistance under section 34JE;
(i) the subject’s right to make a complaint orally or in writing to:
(i) in relation to the Organisation—the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986; or
(ii) in relation to the Australian Federal Police—the Ombudsman under the Ombudsman Act 1976; or
(iii) in relation to the police force or police service of a State or Territory—a complaints agency of the State or Territory concerned;
(j) the subject’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;
(k) the fact that the subject may seek from a federal court a remedy relating to the warrant or the treatment of the subject in connection with the warrant.
Note: Under sections 34DN and 34DO, if an interpreter is required, the prescribed authority must defer informing the subject under this section until the interpreter is present.
(2) To avoid doubt, subsection (1) does not apply to a prescribed authority if the subject has previously appeared before another prescribed authority for questioning under the warrant.
(3) The prescribed authority must also:
(a) inform the subject of the reason for the presence of each person who is present at any time during the questioning; and
(b) at least once in every 24 hour period during which questioning of the subject under the warrant occurs, inform the subject of the fact that the subject may seek from a federal court a remedy relating to the warrant or the treatment of the subject in connection with the warrant.
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) Despite paragraph (3)(a):
(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 subject about the reason for a particular person’s presence need only be complied with once (even if that particular person subsequently returns to the questioning).
34DD Additional requirements for prescribed authorities in relation to minor questioning warrants
(1) This section applies if the subject of a minor questioning warrant appears before a prescribed authority for questioning under the warrant.
(2) In addition to the requirements of section 34DC, the prescribed authority must, as soon as practicable:
(a) inform the subject that a lawyer for the subject must be present during the questioning; and
(b) direct any person proposing to question the subject under the warrant that questioning is to occur only when the lawyer is present; and
(c) inform the subject that the subject may request that a minor’s representative (a non‑lawyer representative) for the subject who is not also a lawyer for the subject be present during the questioning; and
(d) if the subject requests that a non‑lawyer representative be present during the questioning:
(i) if the warrant includes an immediate appearance requirement—give a direction under paragraphs 34FD(2)(c) and (d); or
(ii) if the warrant does not include an immediate appearance requirement—give a direction under paragraph 34FD(3)(c) or (d); and
(e) if the subject voluntarily chooses not to request that a non‑lawyer representative be present during the questioning—give a direction under paragraph 34FD(2)(c) or subsection 34FD(4), as the case requires; and
(f) direct any person proposing to question the subject 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 1: The prescribed authority may set breaks between periods of questioning by giving appropriate directions under paragraph 34DE(1)(e) for the subject’s further appearance before the prescribed authority for questioning.
Note 2: Under sections 34DN and 34DO, if an interpreter is required, the prescribed authority must defer informing the subject under this section until the interpreter is present.
(3) To avoid doubt, paragraph (2)(f) does not affect the operation of section 34DJ (permitted questioning time) or 34DK (extra permitted questioning time if interpreter present).
34DE Directions while subject is before prescribed authority for questioning
(1) At any time when the subject of a questioning warrant is appearing before a prescribed authority for questioning under the warrant, the prescribed authority may, either orally or in writing, give any of the following directions:
(a) a direction in accordance with subsection 34GF(6) permitting the subject to disclose specified information to a specified person;
(b) a direction permitting the subject to contact an identified person (including a person identified by reference to the fact that the person has a particular legal or familial relationship with the subject) or any person, and to disclose information other than specified information while in contact with that person;
(c) a direction under paragraph 34FB(2)(a), 34FC(2)(a) or (3)(b) that a specified lawyer must be present during the questioning;
(d) a direction to defer questioning of the subject under the warrant;
(e) a direction for the subject’s further appearance before the prescribed authority for questioning under the warrant, or for the subject to be excused or released from further attendance at questioning.
Note: A questioning warrant may be varied to require the subject’s further appearance before a prescribed authority at an earlier day and time than that specified in a direction given under this subsection: see subsection 34BE(5).
(2) However, the prescribed authority must not give a direction that is inconsistent with the warrant unless:
(a) the prescribed authority:
(i) has been informed under section 34DM of a concern of the Inspector‑General of Intelligence and Security; and
(ii) is satisfied that giving the direction is necessary to address the concern satisfactorily; or
(b) the direction has been approved, in writing, by the Attorney‑General.
(3) If, at any time when the subject of a questioning warrant is appearing before a prescribed authority for questioning under the warrant:
(a) a record or other thing is in the possession or control of a police officer because of the operation of section 34CC, 34CE or 34D; and
(b) a person exercising authority under the warrant requests that the record or thing be returned to the subject for the purpose of enabling the subject to comply with a request (the warrant request) made by the Organisation in accordance with the warrant;
the prescribed authority must give a direction that the record or thing be given to the subject for only such time as the prescribed authority considers reasonable to enable the subject to comply with the warrant request.
(4) If a prescribed authority gives a direction under subsection (1) or (3), the prescribed authority may vary or revoke the direction.
34DF Directions in relation to confidentiality
Prohibition or limitation on use or disclosure
(1) A prescribed authority must, in writing, give a direction that questioning material:
(a) must not be used or disclosed; or
(b) may only be used by, or disclosed to, specified persons in specified ways or on specified conditions;
if the prescribed authority is satisfied that the failure to give such a direction:
(c) might prejudice a person’s safety; or
(d) would reasonably be expected to prejudice the fair trial of the subject for the material, if the subject has been charged with a related offence or such a charge is imminent.
(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.
(3) A direction given under subsection (1) by a prescribed authority in relation to questioning material may be varied or revoked, in writing, by:
(a) the prescribed authority; or
(b) if the subject for the material has been excused or released from further attendance at questioning—the Director‑General.
(4) However, the direction cannot be varied or revoked if the prescribed authority or the Director‑General (as the case requires) is satisfied that the variation or revocation:
(a) might prejudice a person’s safety; or
(b) would reasonably be expected to prejudice the fair trial of the subject for the material, if the subject has been charged with a related offence or such a charge is imminent.
Court certificate in relation to questioning material in respect of which a direction has been given
(5) If:
(a) a person has been charged with an offence before a federal court or a court of a State or Territory; and
(b) the court considers that it may be desirable in the interests of justice that particular questioning material, in respect of which a prescribed authority has given a direction under subsection (1), be made available to the person or to a lawyer representing the person;
the court may give to the Director‑General a certificate to that effect. If the court does so, the Director‑General must make the questioning material available to the court.
(6) If:
(a) the Director‑General makes questioning material available to a court under subsection (5); and
(b) the court, after examining the questioning material, is satisfied that the interests of justice so require;
the court may make the questioning material available to the person charged with the offence concerned or to a lawyer representing the person.
34DG Direction that persons under 14 not be questioned
If:
(a) the subject of a questioning warrant appears before a prescribed authority for questioning under the warrant; and
(b) the prescribed authority is satisfied on reasonable grounds that the subject is under 14 years old;
the prescribed authority must, as soon as practicable, give a direction that the person is not to be questioned.
34DH Other matters relating to the functions and powers of prescribed authorities
(1) A direction given by a prescribed authority has effect, and may be implemented or enforced, according to its terms.
Note: A prescribed authority must not give a direction that is inconsistent with a questioning warrant, except in limited circumstances: see subsection 34DE(2).
(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).
(2) Regulations made for the purposes of section 34ZT of the old law that were in force immediately before the commencement day have effect, on and after that day, as if they had been made for the purposes of section 34FH of the new law.
17 Requests for warrants made under old law
(1) For the purposes of subsections 34B(3) and (4) of the new law, a request made under section 34D or 34F of the old law in relation to a person is taken to be a previous request for a questioning warrant made under section 34B of the new law in relation to the person.
(2) For the purposes of subparagraph 34B(4)(c)(ii) of the new law, a reference to whether a person was apprehended is taken to include a reference to whether the person was detained and, if so, the period for which the person was detained.
18 Annual reports
(1) Section 94 of the new law applies in relation to annual reports prepared on or after the commencement of this item.
(2) For the purposes of section 94 of the new law:
(a) a reference to a request made during the period under Division 3 of Part III to the Attorney‑General is taken to include a reference to a request made during that period under Division 3 of Part III of the old law to an issuing authority; and
(b) a reference to a warrant issued during the period under Division 3 of Part III is taken to include a reference to a warrant issued during that period under Division 3 of Part III of the old law; and
(c) a reference to the number of times persons were apprehended during the period under Division 3 of Part III is taken to include a reference to the number of hours persons spent in detention under a warrant issued during that period under section 34G of the old law.
Part 3—Consequential amendments
Crimes Act 1914
19 Paragraph 15YU(1)(a)
Repeal the paragraph, substitute:
(a) an offence against subsection 34GD(8) of the Australian Security Intelligence Organisation Act 1979, if the questioning warrant to which the offence relates is a PMV‑related questioning warrant; or
20 Subsection 15YU(1) (note)
Repeal the note, substitute:
Note 1: For the definitions of PMV‑related questioning warrant and questioning warrant, see subsection (5).
Note 2: For other ancillary offences, see section 11.6 of the Criminal Code.
21 At the end of section 15YU
Add:
Definitions
(5) In this section:
PMV‑related questioning warrant means a questioning warrant that is issued in relation to politically motivated violence (within the meaning of the Australian Security Intelligence Organisation Act 1979).
questioning warrant has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
Criminal Code Act 1995
22 Subsection 105.25(4) of the Criminal Code
Repeal the subsection (including the note), substitute:
(4) To avoid doubt, the fact that the person is released from detention under the preventative detention order so that the person may be questioned before a prescribed authority under the warrant does not extend the period for which the preventative detention order remains in force in relation to the person.
Note: See paragraph 105.26(7)(a).
Foreign Evidence Act 1994
23 Subsection 3(1) (paragraph (a) of the definition of designated offence)
Repeal the paragraph, substitute:
(a) an offence against subsection 34GD(8) of the Australian Security Intelligence Organisation Act 1979, if the questioning warrant to which the offence relates is a PMV‑related questioning warrant; or
24 Subsection 3(1)
Insert:
PMV‑related questioning warrant means a questioning warrant that is issued in relation to politically motivated violence (within the meaning of the Australian Security Intelligence Organisation Act 1979).
questioning warrant has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
Inspector‑General of Intelligence and Security Act 1986
25 Section 9B
Repeal the section, substitute:
9B Power to enter places relating to questioning warrants
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
(b) do so at any reasonable time.
26 Section 19A
Repeal the section, substitute:
19A Power to enter places relating to questioning warrants
For the purposes of an inquiry under this Act, 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
(b) do so at any reasonable time.
Intelligence Services Act 2001
26A After paragraph 29(1)(cd)
Insert:
(ce) if the Committee resolves to do so—to commence, by 7 September 2023, a review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979; and
Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021
Australian Security Intelligence Organisation Act 1979
27 Section 34A (paragraph (c) of the definition of superior court)
Repeal the paragraph, substitute:
(c) the Federal Circuit and Family Court of Australia (Division 1); or
28 Section 34A (after paragraph (d) of the definition of superior court)
Insert:
(da) a State Family Court (being a court to which section 41 of the Family Law Act 1975 applies); or
29 Paragraph 34EC(2)(b)
Omit “(other than the Family Court of Australia)”, substitute “(other than the Federal Circuit and Family Court of Australia (Division 1))”.
Schedule 2—Amendments relating to tracking devices
Australian Security Intelligence Organisation Act 1979
1 Section 22
Insert:
authorising officer means:
(a) the Director‑General; or
(b) an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee.
2 Section 22 (definition of device)
Omit “and equipment”, substitute “, equipment and any other thing (whether tangible or intangible)”.
3 Section 22
Insert:
internal authorisation means an authorisation given under section 26G.
4 Section 22 (definition of track)
Repeal the definition, substitute:
track a person or an object means determine or monitor:
(a) the location of the person or object; or
(b) the status of the object.
5 Section 22 (definition of tracking device)
Repeal the definition, substitute:
tracking device means any device capable of being used (whether alone or in conjunction with any other device) to track a person or an object.
6 Section 26E (at the end of the heading)
Add “or internal authorisation”.
7 Subsections 26E(1) and (2)
After “without warrant”, insert “or internal authorisation”.
8 After Subdivision D of Division 2 of Part III
Insert:
Subdivision DA—Use of tracking devices under internal authorisation
26G Use of tracking devices under internal authorisation
Request for authorisation
(1) An ASIO employee or ASIO affiliate (the applicant) may request an authorising officer to give an authorisation under this section in respect of a matter (the security matter) that is important in relation to security.
Note: An authorisation given under this section cannot authorise certain things, including the following:
(a) entering premises or interfering with the interior of a vehicle without permission;
(b) remotely installing a tracking device;
(c) installing a tracking device to listen to a person;
(d) any other thing that the Organisation would otherwise need a warrant under section 25A to do.
See section 26K.
(2) The request must be made in relation to one or both of the following:
(a) a particular person;
(b) an object or a class of object.
(3) The request may be made:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(4) A request under subsection (1) must include a statement of:
(a) the facts and other grounds on which the applicant considers it necessary that the authorisation should be given; and
(b) the extent to which the applicant considers that the authorisation will substantially assist the collection of intelligence in respect of the security matter; and
(c) the period for which the applicant considers the authorisation should remain in force, which must not exceed 90 days.
(5) If the request is made orally, a written record of the request that meets the requirements of subsection (4) must be made within 48 hours after the request is made.
Test for giving of authorisation
(6) The authorising officer may give the authorisation only if the authorising officer is satisfied that there are reasonable grounds for believing that:
(a) if the authorisation is requested in relation to a particular person—the use by the Organisation of a tracking device in relation to the person will, or is likely to, substantially assist the collection of intelligence in respect of the security matter; and
(b) if the authorisation is requested in relation to an object or class of object—the use by the Organisation of a tracking device in or on that object, or an object of that class, will, or is likely to, substantially assist the collection of intelligence in respect of the security matter.
(7) To avoid doubt, the identity of the person referred to in paragraph (6)(a) need not be known.
Authorisation may be subject to restrictions or conditions
(8) The authorisation is subject to any restrictions or conditions specified in it.
26H Requirements for internal authorisations
(1) An internal authorisation may be given:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(2) The authorisation must specify:
(a) the matter (the security matter) that is important in relation to security in respect of which the authorisation is given; and
(b) the day and time the authorisation is given; and
(c) if the authorisation is given in relation to a particular person—the name of the person (if known) or the fact that the person’s identity is unknown; and
(d) if the authorisation is given in relation to an object or a class of object—the object or class of object; and
(e) the restrictions or conditions (if any) to which the authorisation is subject.
(3) The authorisation must also specify the period for which the authorisation is to remain in force, being a period that:
(a) the authorising officer considers reasonable and necessary in the circumstances; and
(b) does not exceed 90 days;
but the authorising officer may revoke the authorisation before the period has expired.
(4) Subsection (3) does not prevent the giving of further internal authorisations in relation to the same security matter.
(5) If an internal authorisation is given orally, a written record of the authorisation that meets the requirements of subsections (2) and (3) must be made within 48 hours after the authorisation is given.
(6) The following are not legislative instruments:
(a) an authorisation under this section;
(b) a written record referred to in subsection (5).
26J What an internal authorisation authorises
Things that may be authorised—particular person
(1) If an internal authorisation is given in relation to a particular person, the authorisation may authorise the Organisation to do, without warrant, one or more of the following:
(a) install, use or maintain one or more tracking devices to track the person;
(b) install, use or maintain one or more tracking devices in or on any object used or worn, or likely to be used or worn, by the person;
(c) install, use or maintain enhancement equipment in relation to the device or devices referred to in paragraph (a) or (b);
(d) enter into or onto, or alter, the object referred to in paragraph (b);
(e) any thing reasonably necessary to conceal the fact that any thing has been done in accordance with the authorisation;
(f) any other thing reasonably incidental to any of the above.
Note: However, an internal authorisation cannot authorise the doing of certain things: see section 26K.
Things that may be authorised—object or class of object
(2) If an internal authorisation is given in relation to an object or a class of object, the authorisation may authorise the Organisation to do, without warrant, one or more of the following:
(a) install, use or maintain one or more tracking devices in or on the specified object, or an object of the specified class;
(b) install, use or maintain enhancement equipment in relation to the device or devices;
(c) enter into or onto, or alter, the specified object, or an object of the specified class;
(d) any thing reasonably necessary to conceal the fact that any thing has been done in accordance with the authorisation;
(e) any other thing reasonably incidental to any of the above.
Note: However, an internal authorisation cannot authorise the doing of certain things: see section 26K.
26K Certain acts not authorised
Neither an internal authorisation nor section 26L authorises any of the following:
(a) the doing of any thing that would involve either or both of the following:
(i) entering premises without permission from the owner or occupier of the premises;
(ii) interference with the interior of a vehicle without permission of the person having lawful possession or control of the vehicle;
(b) the remote installation of a tracking device or enhancement equipment in relation to the device;
(c) the installation, use or maintenance of a tracking device, or enhancement equipment in relation to the device, to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person;
(d) the doing of any thing by the Organisation if, apart from section 26G, the Organisation could not do the thing without it being authorised by a warrant issued under section 25A.
Note: Section 26L deals with the recovery of tracking devices.
26L Recovery of tracking devices
(1) If a tracking device is installed, used or maintained under an internal authorisation, the Organisation is also authorised to do any of the following:
(a) recover the tracking device or any enhancement equipment in relation to the device;
(b) any thing reasonably necessary to conceal the fact that any thing has been done under this subsection;
(c) any other thing reasonably incidental to any of the above;
at the following time:
(d) at any time while the authorisation is in force or within 28 days after it ceases to be in force;
(e) if the device or equipment 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.
(2) If, for the purposes of subsection (1), a tracking device or enhancement equipment in relation to the device is not recovered while the authorisation is in force, the Organisation is also authorised to use the device or equipment solely for the purposes of the location and recovery of the device or equipment.
Note: However, subsections (1) and (2) do not authorise the doing of a thing that would involve a thing specified in section 26K.
26M Exercise of authority under internal authorisations
The authority conferred by an internal authorisation or by section 26L may be exercised on behalf of the Organisation by:
(a) an ASIO employee; or
(b) an ASIO affiliate.
26N Variation of internal authorisations
Request for variation
(1) An ASIO employee or ASIO affiliate (the applicant) may request an authorising officer to vary an internal authorisation.
(2) The request may be made:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(3) A request under subsection (1) must include a statement of:
(a) the facts and other grounds on which the applicant considers it necessary that the authorisation should be varied; and
(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 security matter) that is important in relation to security in respect of which the authorisation is given.
(4) If the request is made orally, a written record of the request that meets the requirements of subsection (3) must be made within 48 hours after the request is made.
Giving of variation
(5) The authorising officer may vary the authorisation only if the authorising officer is satisfied that there are reasonable grounds for believing that the authorisation, as varied, will substantially assist the collection of intelligence in respect of the security matter.
(6) If the variation extends, or further extends, the period during which the authorisation is in force, the total period during which the authorisation is in force must not exceed 90 days.
(7) An internal authorisation may be varied more than once under this section.
Requirements for variations
(8) A variation under this section may be given:
(a) in writing; or
(b) orally in person, or by telephone or other means of communication.
(9) If the variation is given orally, a written record of the variation must be made within 48 hours after the variation is given.
Written variations and records not legislative instruments
(10) The following are not legislative instruments:
(a) a variation under this section;
(b) a written record referred to in subsection (9).
26P Discontinuance of action before expiration of internal authorisation
(1) Subject to subsections (3) and (4), if an authorising officer is satisfied that the grounds on which an internal authorisation was given have ceased to exist, the authorising officer must, as soon as practicable, take such steps as are necessary to ensure that action under the internal authorisation is discontinued.
(2) For the purposes of subsection (1), action under an internal authorisation does not include the recovery of a tracking device or any enhancement equipment in relation to the device.
(3) If:
(a) an internal authorisation was given in relation to more than one of the matters mentioned in subsection 26G(2); and
(b) the grounds on which the internal authorisation was given continue to exist for at least one of those matters;
subsection (1) applies only in relation to the matters for which the grounds have ceased to exist.
(4) Subsection (1) does not apply to an authorising officer if another authorising officer has already taken, or started to take, such steps as are necessary to ensure that action under the internal authorisation is discontinued.
26Q Register of internal authorisations
(1) The Director‑General must establish and maintain a register of requests for internal authorisations.
(2) The register may be kept by electronic means.
(3) The register must include, for each request for an internal authorisation:
(a) the name of the person who made the request; and
(b) the matter that is important in relation to security in respect of which the authorisation was requested; and
(c) the day on which the authorisation was given or refused; and
(d) the name of the authorising officer who gave or refused to give the authorisation; and
(e) if the authorisation was given:
(i) the day on which the authorisation ceased to be in force; and
(ii) whether action under the authorisation was discontinued in accordance with section 26P, and, if so, the day on which the action was discontinued; and
(f) the location at which any record relating to the request (including the request) is kept by the Organisation.
Note: For the purposes of paragraph (f), the location may be a physical location or an electronic location.
(4) The register is not a legislative instrument.
26R Issue of warrants for recovery of tracking devices
Request for warrant
(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 relevant devices), or enhancement equipment in relation to the device or devices (the relevant equipment), if:
(a) the relevant devices, or relevant equipment, were:
(i) installed in or on an object by the Organisation; or
(ii) used by the Organisation; or
(iii) maintained by the Organisation; and
(b) the installation, use or maintenance was not under:
(i) a surveillance device warrant; or
(ii) a warrant issued under section 27A; or
(iii) an identified person warrant; and
(c) recovery of the device or devices or equipment may involve either or both of the following:
(i) entering premises without permission from the owner or occupier of the premises;
(ii) interference with the interior of a vehicle without permission of the person having lawful possession or control of the vehicle.
Issue of warrant
(2) The Attorney‑General may issue a warrant in respect of the relevant devices or relevant equipment if the Attorney‑General is satisfied that failure to recover the relevant devices or relevant equipment would be prejudicial to security.
(3) In determining whether the warrant should be issued, the Attorney‑General must have regard to the risk that information relating to the operations, capabilities or technologies of, or methods or sources used by, the Organisation will be communicated or made available to the public without the authority of the Commonwealth if the warrant is not issued.
Requirements for warrant
(4) A warrant issued under this section must:
(a) be signed by the Attorney‑General; and
(b) specify:
(i) details of the relevant devices or relevant equipment; and
(ii) the day the warrant is issued; and
(iii) the period during which the warrant is in force, which must not be more than 90 days; and
(iv) any restrictions or conditions that the Attorney‑General considers appropriate in the circumstances; and
(c) authorise the use of any force against persons and things that is necessary and reasonable to do the things authorised by the warrant; and
(d) state whether entry to premises is authorised to be made at any time of the day or night or during stated hours of the day or night.
(5) Subparagraph (4)(b)(iii) does not prevent the issuing of further warrants in relation to the same devices or equipment.
Authorisation in warrant
(6) A warrant issued under this section in respect of relevant devices or relevant equipment authorises the Organisation to:
(a) recover the devices or equipment; and
(b) do any of the following:
(i) use the devices or equipment solely for the purposes of locating the devices or equipment;
(ii) enter any premises where the devices or equipment are reasonably believed to be, for the purpose of recovering the devices or equipment;
(iii) enter any other premises for the purpose of gaining entry to or exiting the premises referred to in subparagraph (ii);
(iv) enter into or onto, or alter, an object for the purpose of recovering the devices or equipment;
(v) replace an object with an equivalent object for the purpose of recovering the devices or equipment;
(vi) break open any thing for the purpose of recovering the devices or equipment;
(vii) if the devices or equipment are installed in or on an object—temporarily remove the object from any place where it is situated for the purpose of recovering the devices or equipment and returning the object to that place;
(viii) use a nominal amount of electricity from any source to power the devices or equipment;
(ix) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant;
(x) use any force against persons and things that is necessary and reasonable to do any of the above;
(xi) any other thing reasonably incidental to any of the above.
9 Subdivision H of Division 2 of Part III (at the end of the heading)
Add “and authorisations”.
10 Paragraph 29(1)(a)
Omit “26, 27”, substitute “26, 26R, 27”.
11 Paragraph 29A(3)(a)
After “section 25”, insert “or 26R”.
12 Subsection 30(2)
Repeal the subsection, substitute:
(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
(b) otherwise:
(i) includes action under an authorisation given under an identified person warrant; but
(ii) does not include the recovery of a surveillance device or any enhancement equipment in relation to the device.
13 Subsection 33(3)
Omit “or maintaining”, substitute “, maintaining or recovering”.
14 Paragraph 33(3)(a)
Omit “section 26, 27A or 27C”, substitute “section 26, 26R, 27A or 27C”.
15 After paragraph 33(3)(a)
Insert:
(aa) in accordance with an authorisation given under section 26G; or
16 At the end of section 33
Add:
(4) Nothing in this Division makes the use, installation, maintenance or recovery by the Organisation of a surveillance device lawful if the use, installation, maintenance or recovery would be prohibited under an applicable law of the Commonwealth, a State or a Territory (including the common law), unless the Organisation does so:
(a) in accordance with a warrant issued under section 26, 27A or 27C; or
(b) in accordance with an authorisation given under section 26G; or
(c) in accordance with subsection 26B(5) or (6), section 26C, 26D or 26E, or subsection 27A(3A) or (3B) or 27F(5).
17 After section 34A (first occurring)
Insert:
34AAB Director‑General to report to Attorney‑General—internal authorisations to use tracking devices
(1) If an internal authorisation is given, the Director‑General must:
(a) give the Attorney‑General a written report that meets the requirements of subsection (2); and
(b) do so within 3 months of the day on which the internal authorisation ceases to be in force.
(2) The report must state whether the authorisation was executed, and, if so:
(a) give details of the extent to which any thing done in accordance with the authorisation has assisted the Organisation in carrying out its functions; and
(b) give details of the matter (the security matter) that is important in relation to security in respect of which the authorisation is given; and
(c) state the name, if known, of any person whose location was determined by the use of a tracking device in accordance with the authorisation; and
(d) state the period during which a tracking device was used in accordance with the authorisation; and
(e) give details of:
(i) any object in or on which a tracking device was installed in accordance with the authorisation; and
(ii) the premises where the object was located when the device was installed; and
(f) give details of the compliance with the restrictions or conditions (if any) to which the authorisation was subject; and
(g) state whether the authorisation was varied, and, if so:
(i) the number of variations; and
(ii) the reasons for each variation.
18 After paragraph 34AA(3)(c)
Insert:
(ca) if the authorising provision is section 26G—the matters required to be specified under subsection 26H(2);
(cb) if the warrant is issued under section 26R—the matters required to be specified under subsection 26R(4) for the warrant;
19 Subsection 34AA(5) (definition of relevant authorising provision)
Omit “26D or 26E”, substitute “26D, 26E or 26G”.
20 Subsection 34AA(5) (definition of relevant warrant)
Omit “26, 27A”, substitute “26, 26R, 27A”.
21 After subsection 94(2BC)
Insert:
(2BD) A report under subsection (1) must also include a statement of:
(a) the total number of requests made under subsection 26G(1) during the period; and
(b) the total number of authorisations given under section 26G during the period.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Endnote 2—Abbreviation key
| ad = added or inserted | o = order(s) |
| am = amended | Ord = Ordinance |
| amdt = amendment | orig = original |
| c = clause(s) | par = paragraph(s)/subparagraph(s) |
| C[x] = Compilation No. x | /sub‑subparagraph(s) |
| Ch = Chapter(s) | pres = present |
| def = definition(s) | prev = previous |
| Dict = Dictionary | (prev…) = previously |
| disallowed = disallowed by Parliament | Pt = Part(s) |
| Div = Division(s) | r = regulation(s)/rule(s) |
| ed = editorial change | reloc = relocated |
| exp = expires/expired or ceases/ceased to have | renum = renumbered |
| effect | rep = repealed |
| F = Federal Register of Legislation | rs = repealed and substituted |
| gaz = gazette | s = section(s)/subsection(s) |
| LA = Legislation Act 2003 | Sch = Schedule(s) |
| LIA = Legislative Instruments Act 2003 | Sdiv = Subdivision(s) |
| (md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
| effect | SR = Statutory Rules |
| (md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
| cannot be given effect | SubPt = Subpart(s) |
| mod = modified/modification | underlining = whole or part not |
| No. = Number(s) | commenced or to be commenced |
Endnote 3—Legislation history
| Act | Number and year | Assent | Commencement | Application, saving and transitional provisions |
| Australian Security Intelligence Organisation Amendment Act 2020 | 134, 2020 | 17 Dec 2020 | Sch 1 (items 1–26A) and Sch 2: 7 Sept 2020 (s 2(1) items 2, 5) Sch 1 (items 27, 28): never commenced (s 2(1) item 3) Sch 1 (item 29): 1 Sept 2021 (s 2(1) item 4) Remainder: 17 Dec 2020 (s 2(1) item 1) |
Endnote 4—Amendment history
| Provision affected | How affected |
| s 2........................................ | ed C1 |
| Schedule 1 | |
| Part 4 | |
| Part 4 heading...................... | ed C1 |
Endnote 5—Editorial changes
In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.
Kind of editorial change
Updates to references of a law or a provision
Details of editorial change
This compilation was editorially changed to update references from the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (wherever occurring).
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