EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Australian Security Intelligence Organisation Act 1979
Statement of Procedures –warrants issued under Division 3 of Part III
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 inserted Division 3 into Part III of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) to provide ASIO with the ability to seek a warrant to question, and in limited circumstances detain, a person who may have information relevant to a terrorism offence. This Act required the development of a written Statement of Procedures (Protocol) to be followed in the exercise of authority under the new questioning and detention warrants. It also provided (in sections 34C(3)(ba) and 34C(3A)) that no warrant could be issued until the Protocol was made.
In accordance with the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 the Attorney-General approved a Protocol, which was developed by the Director-General of Security in consultation with the Australian Federal Police (AFP) and the Inspector-General of Intelligence and Security (IGIS). This Protocol was tabled in Parliament on 12 August 2003.
The Act contained a sunset clause providing that Division 3 would cease to be in force three years after commencement (23 July 2006). It also required the Parliamentary Joint Committee on Intelligence and Security (PJC) to review by 22 January 2006, the operation, effectiveness and implications of the new regime in Division 3.
The PJC tabled its report in November 2005. Following the PJC’s findings that the powers were effective and should continue to operate beyond the original sunset period of July 2006, the Australian Security Intelligence Organisation Amendment Act 2006 (Amendment Act) was enacted to continue the powers for a further 10 years, at which time they will be subject to further review.
The Amendment Act also responded to other recommendations of the PJC by clarifying and separating the requirements for the two separate (questioning, and questioning and detention) warrant regimes, and strengthening and clarifying various rights under the regime. The amendments included:
- better facilitation of the subject’s ability to make complaints to the Inspector‑General of Intelligence and Security, the Commonwealth Ombudsman, or a State or Territory complaints agency
- simplification, restructuring, correction and language changes, as well as renumbering, to Division 3, and
- insertion of a new section 34C in the ASIO Act, which changed the provisions governing the Protocol, to recognise that a Protocol was already in place and enabling a revised Protocol (or Statement of Procedures) to be made as appropriate.
To reflect the amendments made by the Amendment Act, the Protocol (Statement of Procedures) has been amended by the Director-General of Security in consultation with the AFP, IGIS and the Attorney-General’s Department. In accordance with the Act, the Attorney-General has approved the new Statement of Procedures.
As for the earlier Protocol, the Statement of Procedures is designed to be read in conjunction with the Act. It sets out the basic standards that will apply in the questioning and detention of persons under a Division 3 warrant and deals with operational matters to guide the questioning and detention process. It addresses issues such as:
- transportation of a person under a warrant;
- treatment of a person being questioned, eg the conditions applicable during questioning such as access to fresh drinking water and sanitary facilities at all time during questioning;
- supervision of detention under a warrant, such as accommodation facilities and food and sleep requirements;
- health and welfare of a person subject to a warrant, such as the accommodation facilities and food and sleep requirements;
- video recording of procedures;
- contact with other persons and a complaint mechanism; and
- arrangements for liaison with other persons such as the IGIS and the Commissioner of the relevant police service.
The main changes from the earlier Protocol relate to restructuring, changes to section number references and adding to the complaints mechanisms in line with the amendments made by the Amendment Act.
The Statement of Procedures is a legislative instrument for the purpose of the Legislative Instruments Act 2003 (LIA). However the disallowance provisions in section 42 of the LIA do not apply to the Statement, and it is exempt from the sunset requirements in Part 6 of the LIA. The Amendment Act inserted section 34ZZ into the ASIO Act, providing that Division 3 will cease to have effect on 22 July 2016, as well as amending paragraph 29(1)(bb) of the Intelligence Services Act 2001 to require the PJC to conduct another review of the Division before that sunset date. This review and sunset mechanism may involve making significant changes to the Protocol at that time. Accordingly it is not necessary for the LIA default sunset provisions to apply.
The ASIO Act (section 34C) requires the Director-General to consult the IGIS and AFP Commissioner, and the Minister to approve the Statement, before the Statement can be made as a legislative instrument. These requirements have been satisfied.
The Statement commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 was introduced to enhance the capabilities of the Australian Security Intelligence Organisation (ASIO) in countering terrorism by enabling the agency to seek warrants to question and, in limited circumstances, detain individuals who may possess information relevant to terrorism offences. This Act aimed to address a critical gap in ASIO's authority to more effectively prevent and investigate acts of terrorism. The Australian Parliament enacted this legislation to bolster national security by equipping ASIO with necessary tools to gather crucial intelligence. The subsequent Australian Security Intelligence Organisation Amendment Act 2006 further refined these provisions, extending their operation for another ten years and incorporating recommendations from a review conducted by the Parliamentary Joint Committee on Intelligence and Security. This review affirmed the effectiveness of the powers while advocating for improvements in operational clarity and individual rights protection.
Scope and Application
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 introduced significant powers to the Australian Security Intelligence Organisation (ASIO) enabling it to seek warrants for questioning and, in certain circumstances, detaining individuals suspected of having information relevant to terrorism offences. These powers are outlined in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979. The legislation mandates the creation of a written Statement of Procedures, or Protocol, which must be followed when exercising these authorities. This Statement, developed by the Director-General of Security in consultation with the Australian Federal Police and the Inspector-General of Intelligence and Security, was approved by the Attorney-General and tabled in Parliament. The original regime had a sunset clause set to expire in July 2006, but it was extended for another decade through the Australian Security Intelligence Organisation Amendment Act 2006, following a review by the Parliamentary Joint Committee on Intelligence and Security that found the powers to be effective. The Statement of Procedures is designed to address operational matters and set standards for the questioning and detention of individuals under a warrant, covering aspects such as transportation, treatment, health and welfare, video recording, and complaint mechanisms. The legislation exempts the Statement from certain legislative instruments act provisions, and its continuation is subject to future reviews and potential modifications before the next sunset date in July 2016.
Key Provisions
The main operative sections of this legislation (Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003) concern the ability of the Australian Security Intelligence Organisation (ASIO) to seek a warrant to question and, in limited circumstances, detain individuals who may have information relevant to a terrorism offence (section 34C(3)(ba) and 34C(3A)). This was implemented by inserting Division 3 into Part III of the ASIO Act. Importantly, no warrant could be issued until the development of a Statement of Procedures (section 34C(3)(ba) and 34C(3A)), which was approved by the Attorney-General and tabled in Parliament on 12 August 2003. This Statement of Procedures was developed by the Director-General of Security in consultation with the Australian Federal Police (AFP) and the Inspector-General of Intelligence and Security (IGIS). The procedures set out in this document are designed to be read in conjunction with the Act and cover various aspects such as transportation, treatment, supervision, health and welfare, video recording, and complaint mechanisms, among others.
The Act imposes several obligations and requirements on the parties it governs. The Director-General of Security is required to consult with the IGIS and the AFP Commissioner, and the Minister must approve the Statement of Procedures before it can be made as a legislative instrument (section 34C). The provisions within the Statement of Procedures must ensure that the transportation, treatment, and health and welfare of a person being questioned or detained are adequately managed. This includes ensuring access to fresh drinking water, sanitary facilities, appropriate accommodation, and food and sleep requirements during questioning and detention. Furthermore, the Statement of Procedures must establish a mechanism for complaints and ensure that there is proper liaison with other relevant persons such as the IGIS and the Commissioner of the relevant police service.
Breach of the provisions outlined in the Statement of Procedures could result in various civil and criminal consequences. While specific offences and penalties are not detailed in the explanatory statement, it is implied that non-compliance with the outlined standards and requirements could lead to legal action against ASIO or its officers. The Australian Security Intelligence Organisation Amendment Act 2006 extended the operation of these powers for another 10 years, until 22 July 2016, at which time the Parliamentary Joint Committee on Intelligence and Security (PJC) is required to conduct another review. This review and sunset mechanism may involve making significant changes to the Statement of Procedures at that time, which could include amendments to the penalties and consequences for non-compliance.