Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)Schedule 2 - Passports and ASIO Questioning Warrants
This item will insert two new provisions in the ASIO Act that apply to people in relation to whom a questioning warrant has been sought.
Section 34JC of the ASIO Act currently provides that the subject of a questioning warrant issued under section 34D, who is notified of the issue of the warrant, is required to surrender all passports (both Australian and foreign) in that person's possession or control. That provision prevents persons who are the subject of such a warrant from departing Australia to avoid questioning. A warrant issued under section 34D requires a person to appear before a prescribed authority for questioning and, in limited circumstances, can also authorise a police officer to take the person into custody immediately for the purpose of that questioning. It is an offence to refuse to surrender the passports when required to do so by a person exercising authority under a questioning warrant. The offence carries a penalty of 5 years imprisonment. This provision is comparable with the new powers under new Part 2 of the Passports Act. However, it is more appropriate that these provisions are contained in the ASIO Act because they parallel existing provisions and only relate to ASIO and security matters.
New section 34JBA will minimise the risk that a person who may have information that would substantially assist the collection of intelligence that is important in relation to a terrorism offence could depart Australia before a questioning warrant can be issued.
New subsection 34JBA(1) will require a person who is the subject of a request for the issue of a section 34D warrant to surrender, on demand, all Australian and foreign passports in his or her possession or control. The new subsection is based on existing subsection 34JC(1) so that, where a person attempts to leave Australia or there is a risk the person will leave the country, the power will be activated, and the person can be required to surrender all passports in the person's possession or control. A person's passports can only be retained until a questioning warrant is refused or issued. Following the issue of a questioning warrant, section 34JC of the ASIO Act would come into operation.
Such a power will be exercised in circumstances, where, for example, ASIO receives information about a planned terrorist act, and discovers that a person who could provide vital information is about to leave the country. Once the Director-General makes a request for a questioning warrant in relation to that person, the person's passports could be seized.
The person's passports could be retained only for a limited time. New subsection 34JBA(2) will provide that ASIO may retain the passports until one of a number of specified event occurs. Those events are that the Minister refuses consent to apply for a questioning warrant, an issuing authority refuses to issue a questioning warrant, or, if a questioning warrant is issued, until the time specified in the warrant under paragraph 34D(6)(b) ends. This is consistent with section 34JC.
Subsection 34JD(1) of the ASIO Act currently provides that it is an offence for a person who is the subject of a questioning warrant to leave Australia without the written permission of the Director-General. This offence also carries a penalty of 5 years imprisonment.
New section 34JBB creates a parallel offence to subsection 34JD(1) making it an offence for a person who is specified in a request to the Minister to leave Australia without the written permission of the Director-General. Before demanding the surrender of a person's passports, the provision requires the person to be notified that a request has been made in relation to that person and that they are required to surrender their passports and not leave the country.
This item will ensure that new sections 34JBA and 34JBB will not apply to a person in relation to whom consent to request the issue of a questioning warrant was sought before the new sections commenced.