House of Representatives

Addendum to the Explanatory Memorandum

(Circulated by the authority of the Minister for Home Affairs, the Honourable Peter Dutton MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Human rights implications

On page 6, in paragraph 16, after the bullet point commencing with "the right to freedom of association" insert the following new bullet point:

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the right to respect for the family under Article 23 of the ICCPR;

Freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR and the right of the child to liberty and security of person and the freedom from arbitrary arrest, detention or imprisonment under Article 37 of the CRC

On page 8, in paragraph 21, at the end of the paragraph, insert "In addition, the requirement for the subject of a questioning warrant to appear for questioning, or otherwise commit a criminal offence, also engages these rights in the ICCPR and CRC."

On page 8, after paragraph 24, insert the following new paragraphs:

"The requirement for a person who is subject to a questioning warrant to appear before a prescribed authority for questioning, either immediately upon notification of the issuing of the warrant or at a time specified by the warrant, is a permissible limitation on the right to freedom of movement. These measures are directed at the legitimate objective of enabling ASIO to conduct questioning that will substantially assist in the collection of intelligence that is important in relation to the protection of people and protection of the Commonwealth and the States and Territories from espionage, politically motivated violence, or acts of foreign interference.

The ability to question a person for the purpose of obtaining intelligence in relation to these matters is necessary to ensure that ASIO has the capability to collect intelligence in relation to serious threats to Australia's security. Without this ability, and in circumstances in which ASIO's other intelligence collection powers may be less effective, ASIO would be dependent upon the goodwill of a person to provide necessary information about significant national security threats to Australia. If a person were to voluntarily cooperate with ASIO, there would be no need to utilise a questioning warrant.

The measures proposed in the Bill contain extensive safeguards to ensure that any limitation on the right to freedom of movement is proportionate to achieving the legitimate objective noted above. In order for a questioning warrant to be issued, the Attorney-General must be satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a questioning matter, and that, 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.

In addition, in requesting questioning warrants, ASIO must comply with the requirements in the Minister's Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions and the exercise of its powers (the ASIO Guidelines) issued under section 8A of the ASIO Act. The ASIO Guidelines relevantly provide that any means used for obtaining information must be proportionate to the gravity of the threat posed and the likelihood of its occurrence. The ASIO Guidelines further provide that, where possible, the least intrusive techniques for collecting information should be used before more intrusive techniques, and that where a threat is assessed as likely to develop quickly, a greater degree of intrusion may be justified. ASIO's compliance with the ASIO Guidelines, including in the making of requests for questioning warrants, is subject to the independent oversight of the IGIS.

Once a questioning warrant is issued, a number of safeguards apply to ensure that restrictions on the individual's right to freedom of movement are limited only to the extent necessary to achieve the legitimate objective noted above. A person can only be questioned for a cumulative maximum of 24 hours (approved by the prescribed authority in eight hour extendable increments up to the 24 hour maximum). Where an interpreter is present, the maximum permitted cumulative questioning time is 40 hours.

If the warrant is a minor questioning warrant, the minor may only be questioned for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority. Under the Statement of Procedures made under section 34AF of the ASIO Act, additional protections will apply to the conduct of questioning.

As a person who is subject to a questioning warrant is not in detention, that person is free to move as they choose when questioning is not taking place (subject to any directions of the prescribed authority, and limitations on leaving Australia).

In addition to the supervision of ASIO's questioning by an independent prescribed authority, the IGIS may also be present at questioning and has the ability to raise concerns about any impropriety or illegality. The person who is the subject of a warrant has the right to contact the IGIS at any time to make a complaint, and also has the right to contact a lawyer and have a lawyer present during questioning.

These oversight mechanisms are proportionate to the limitations on the freedom of movement and ensure that questioning is carried out for the purpose for which it is approved, within a fixed maximum time limit, and that the person is afforded opportunities (via the IGIS and their lawyer) to make representations or raise concerns if he or she considers that there is impropriety or illegality."

On page 8, in paragraph 25, at the beginning of the paragraph insert "The power to apprehend a person is a permissible limitation on the right to freedom of movement."

Freedom of movement in Article 12 of the ICCPR

On page 10, in the heading commencing with "Freedom of movement" insert at the end of the heading "and right to the protection of the family in Article 23 of the ICCPR"

On page 10, in paragraph 31, at the end of the paragraph, insert "Similarly, the requirements for the warrant subject to surrender their travel documents and not leave Australia, restricts the right to freedom of movement."

On page 10, delete paragraph 33 and replace it with the following paragraph:

"The limitation on the right to freedom of movement is reasonable, necessary and proportionate. This is based on the safeguards already built into the questioning warrant framework. There are also specific guidelines - the ASIO Guidelines - which are issued to the Director-General of Security under subsections 8A(1) and 8A(2) of the ASIO Act that provide a safeguard for the appropriate use of ASIO's powers, including its Division 3, Part III powers. The ASIO Guidelines require ASIO to consider the intrusiveness and proportionality of its avenues for obtaining information and provide that:

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any means for obtaining and analysing information must be proportionate to the gravity of the threat posed and the likelihood of its occurrence;

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inquiries and investigations into individuals and groups should be undertaken using as little intrusion into the privacy of affected individuals as is reasonably required, consistent with the performance of ASIO's functions; and

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where possible, the least intrusive techniques for collecting information should be used before more intrusive techniques (where a threat is assessed as likely to develop quickly, a greater degree of intrusion may be justified)."

On page 11, after paragraph 34, insert the following new paragraphs:

"The requirements for a subject to surrender their travel documents and not leave Australia, or commit an offence, are necessary to ensure that warrants are not frustrated. As it is likely that a questioning warrant would be issued in relation to a person who is not voluntarily cooperating with ASIO, the flight risk of such a person is high, warranting the specific travel documents surrender and travel prohibition provisions in the Bill. Given that warrants are directed to the collection of intelligence relevant to politically motivated violence, espionage and foreign interference, there may also be significant security risks in enabling a person who is believed to have information relevant to such a security threat from leaving Australia.

These provisions are particularly significant given that questioning warrants may be issued to investigate threats of espionage and foreign interference. The maximum penalty of five years' imprisonment for committing the offence provides a strong deterrent to such behaviour, and is commensurate to the significance of ASIO's operations and the potential security risk presented by the departure of a person who is the subject of a warrant or warrant request. Further, the prohibition on leaving Australia is subject to an exception, where the person has obtained the Director-General's written consent, which allows for exceptional circumstances in which there is a legitimate need for the person to travel, and the Director-General is of the view that any flight risk is capable of being managed. The Director-General's decision-making in this regard is subject to the independent oversight of the IGIS.

The limitations on the right to freedom of movement is proportionate to the legitimate objective of ensuring that a questioning warrant is not frustrated by the subject leaving Australia, because they are enlivened only where a warrant is issued (and, in some instances, where a warrant application is on foot). In order to require the surrender of travel documents, the Director-General must believe on reasonable grounds that the person may leave Australia, and the person's leaving would be likely to impact on the person's ability to comply with the questioning warrant. Travel documents are only surrendered for the duration of the warrant (or the duration of the warrant application if a request is refused).

The Director-General is under a statutory obligation to cause the return of the travel documents to the person as soon as practicable after the earlier of the refusal by the Attorney-General of a warrant request, or the end of the duration of a warrant if issued (the Director-General can also cause the travel documents to be returned earlier). Therefore, travel documents can only be confiscated for a finite duration that is specifically linked to a legitimate intelligence.

Article 23(1) of the ICCPR states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. In some circumstances, travel or prohibition on travel may result in the separation of family members as a direct consequence of action taken by the Commonwealth. In other circumstances, separation of family member will be a consequence of the choices made by the particular person.

To the extent that family members are separated as a direct consequence of action taken by the Commonwealth, it will not impermissibly limit Article 23. These rights can be subject to proportionate and reasonable limitations that are aimed at legitimate objectives. In the case of these measures, these objectives include the protection of Australia's security."

Right to protection against arbitrary and unlawful interferences with one's privacy or home in Article 17 of the ICCPR and non-interference with privacy in Article 16 of the CRC

On page 12, after paragraph 43, insert the following new paragraphs:

"Section 34CC would enable a police officer to conduct a frisk or ordinary search of a subject who has been apprehended. While this search is primarily to ensure the safety of officers and ensure the integrity of a questioning warrant, police may also seize records or other things of intelligence value as part of the search if authorised by the Attorney-General in the warrant.

Section 34D would enable a police officer to request that a person seeking to enter the place of questioning undergo a screening procedure at the place of questioning. The officer may also request that a person 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.

This limitation on the right to privacy is necessary and proportionate to achieve the legitimate objective of ensuring that a person is not a danger to themselves or others while being apprehended or attending questioning. These powers will also ensure that a person does not alert others involved in security relevant activities, communicate sensitive information during or after, or destroy, damage or alter records or other things relevant to the questioning warrant.

There are a number of safeguards to protect an individual's right to privacy in the conduct of any search or screening procedure. 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. In conducting an ordinary search or frisk search of the subject of a questioning warrant who is being apprehended, a police officer may only use such force as is necessary and reasonable. The IGIS may also be present at any search or screening of an individual, and the subject of a questioning warrant may make a complaint to the Commonwealth Ombudsman, or a State or Territory complaints agency in relation to the conduct of any search or screening procedure.

These safeguards aim to ensure that any search or screening of a person is proportionate and necessary to ensure the safety of officers involved in questioning and the integrity of the questioning process, and therefore Australia's national security."

On page 13, delete paragraphs 44 and 45 and in their place, insert the following new paragraphs:

"Where a police officer is authorised under section 34C to apprehend the subject of a questioning warrant, and the officer believes on reasonable grounds that the subject is on a particular premises, section 34CA would provide the officer with the power to enter premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night, only for the purpose of searching the premises for the subject or apprehending the subject. This power is necessary and proportionate to ensure a questioning warrant is able to be executed.

Where a questioning warrant authorises an immediate appearance requirement, in order to also authorise the apprehension of the subject of the warrant, the Attorney-General must be satisfied that there are reasonable grounds for believing that, if the subject is not apprehended, the subject is likely to:

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alert a person involved in an activity prejudicial to security that the activity is being investigated, or

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not appear before the prescribed authority, or

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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.

If police officers were not afforded the power to enter any premises, they would not be able to enforce a questioning warrant while the person is on the premises. Execution of the warrant would rely on the person voluntarily leaving the premises, which could hold up the process of enforcing the warrant and potentially jeopardise ASIO's investigation and Australia's national security. The imminence of some security threats requires ASIO to be able to respond quickly to ensure the preservation of information that may be important in relation to the particular security matter.

The power to enter any premises under section 34CA is a reasonable measure which is proportionate to the legitimate security concerns it aims to address. In enforcing a warrant, a police officer is confined to using force which is necessary (essential) and reasonable (objectively proportionate) in the circumstances. The police are also subject to their own guidelines in relation to the use of force. For example, the AFP are bound by the Commissioner's Order on Operational Safety (the Order), which provides guidelines as to what is considered reasonable or excessive force while emphasising principles of negotiation and conflict de-escalation as primary considerations prior to the use of physical force.

The Order is designed to ensure that AFP appointees effectively manage the response to conflict or potential conflict situations using the AFP use of force model and operational safety principles stipulated within the Order. For example, under these principles any application of force must be reasonable, necessary and proportionate to the threat or resistance offered, the primary consideration must be the safety of all persons involved and negotiation is the preferred means of confrontation management wherever possible.

Once a person is apprehended by a police officer, that officer is required to bring the person immediately before a prescribed authority, who must inform the person of their rights and obligations. If the subject of a warrant wishes to make a complaint about the police entering their premises, they may contact the Ombudsman at any time to make this complaint. The person must be provided with facilities to make such a complaint. The subject of a warrant also has the right to contact a lawyer and may seek judicial remedy in relation to any improper entrance to premises. These safeguards provide for a proportionate limitation on the right to privacy."

NOTES ON CLAUSES

Schedule 1-Amendments relating to compulsory questioning powers

Item 10 - Division 3 of Part III

Section 34F - Person specified in warrant may contact lawyer or minor's representative

Limit on choice of lawyer

On page 83, after paragraph 435, insert the following new paragraphs:

"The prescribed authority is not required to provide the subject with an opportunity to respond to any information in relation to which a direction to prevent contact with a lawyer would be made. Such a requirement could frustrate the questioning process and ASIO's ability to obtain time-sensitive intelligence in relation to security. It would also not be appropriate to make a subject privy to any intelligence on which a direction would be made.

New subsection 34F(4) does not affect the subject's right to make a complaint to the IGIS under the Inspector-General of Intelligence and Security Act 1986."

Section 34GD - Giving information and producing things etc

Failure to appear

On page 99, after paragraph 535, insert the following new paragraphs:

"Given the fault element of the offence is intention, a person who fails to comply with a request from a police officer must have intentionally done so. It is unlikely that a person who has not understood the request, due to an intellectual disability or inability to speak English with reasonable fluency, could be proven to have intentionally refused the request.

There is no explicit requirement for a police officer's request to be reasonable. This is because it is prima facie reasonable for a police officer to make requests of a person before entering the place of questioning to ensure the safety of those involved and to prevent the communication or recording of information disclosed during the questioning process."

Section 34GF - Secrecy relating to warrants and questioning

Before warrant ceases to be in force

On page 105, after paragraph 564, insert the following new paragraph:

"The prosecution has the burden of establishing each of the elements of the offence beyond reasonable doubt. In establishing the element that the disclosure was not a permitted disclosure, there may be secrecy provisions applying to particular agencies which prevent officials from those agencies from being called to provide certain evidence before a court (for example, section 34 of the Inspector-General of Intelligence and Security Act 1986).

Strict liability

On page 105, after paragraph 567, insert the following new paragraphs:

"The person's culpability must be established for the remaining elements of the offence provided in subsections 34GF(1) and (2). In particular, the act of disclosing information is the substantive element of the offence and carries the fault element of intent. Therefore, to establish the offence, the prosecution must prove that the person intended to disclose information.

The application of strict liability under subsection 34GF(3) to the elements in paragraphs 34GF(1)(c) and (2)(c) is necessary to ensure that a person cannot avoid criminal responsibility because they did not turn their mind to whether the information was operational information or information about the warrant. Requiring intention to be proved for these elements would undermine deterrence of the offence.

There are legitimate grounds for penalising a person lacking 'fault' in knowing or being reckless to the nature of operational information because the person engaged in conduct which may prejudice a security intelligence operation, and cause harm to Australia's national security.

Notwithstanding the strict liability of elements in section 34GF, the defence of mistake of fact is available under section 6.1 of the Criminal Code. That section provides that a person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

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at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts, and

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had those facts existed, the conduct would not have constituted an offence."

Schedule 2 - Tracking Device Framework

Item 1 - Section 22 (definition of authorising officer)

On page 120, in paragraph 645 replace "The Attorney-General's Guidelines" with "The ASIO Guidelines" and update the footnote to read "Minister's Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions and the exercise of its powers, made under section 8A of the ASIO Act."