Senate

Revised Explanatory Memorandum

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

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2020

1. The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill) amends the Australian Security Intelligence Organisation's (ASIO's) compulsory questioning and surveillance device powers under the Australian Security Intelligence Organisation Act 1979 (ASIO Act). In doing so, the Bill implements the Government's response to the report by the Parliamentary Joint Committee on Intelligence and Security into the operation, effectiveness and implications of the ASIO Act's existing compulsory questioning framework. ^[1]

2. The Bill amends the compulsory questioning framework in the ASIO Act by:

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enabling ASIO's continued use of questioning warrants, but removing its ability to use questioning and detention warrants;

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replacing the existing detention framework with a more limited apprehension framework to ensure attendance during questioning and to prevent contact with others or the destruction of information;

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enabling the use of questioning warrants in relation to espionage, politically motivated violence (including terrorism) and acts of foreign interference, as defined in section 4 of the ASIO Act, rather than only in relation to terrorism offences;

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streamlining the process for requesting and issuing a questioning warrant by enabling the Attorney-General to issue questioning warrants directly, removing the role of the issuing authority;

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enabling ASIO to request, and the Attorney-General to issue, questioning warrants orally in an emergency;

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amending the eligibility requirements for appointment of prescribed authorities, to enable a broader pool of qualified persons to be appointed to this role;

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providing the power for a police officer to conduct a search of a person who is apprehended in connection with a questioning warrant, and the ability to seize dangerous items and items that could be used to communicate the existence of the warrant or escape from custody, with an additional ability to seize items of intelligence relevant to the questioning matter, when authorised by the Attorney-General;

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introducing screening measures and person searches for people attending questioning, either as the subject of the questioning warrant or others involved in the questioning process such as parents, and the ability of a police officer to retain any dangerous items and communications devices found in order to ensure the safety of those involved in questioning, and the integrity of the questioning;

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subject to a number of safeguards - permitting ASIO to seek a questioning warrant in relation to minors aged 14 to 18 years old, but only where the minor is themselves the target of an ASIO investigation in relation to politically motivated violence;

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strengthening the right to legal representation during questioning while retaining the ability to prevent contact with specific lawyers due to security concerns, and to remove a lawyer who is unduly disruptive during questioning;

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introducing the ability of the independent prescribed authority to appoint a lawyer for the subject of a questioning warrant in certain circumstances; and

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enabling a questioning warrant to be executed following the laying of charges against the person who is the subject of a questioning warrant, or where charges against that person are likely, and allow for the questioning to cover matters that are the subject of those charges with appropriate protections in relation to the person's fair trial.

3. To support this new framework, the Bill also retains existing provisions in relation to the exercise of a questioning warrant, including:

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oversight, including the presence of the Inspector-General of Intelligence and Security at questioning;

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the existing 28 day limit for a questioning warrant to be in force;

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the prescribed authority's obligation to explain that the subject of a questioning warrant may seek a remedy from a federal court relating to their treatment in connection with the warrant;

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the immunities from criminal liability in providing information, records or other things during questioning;

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offences for non-compliance with the questioning warrant;

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secrecy obligations and related offences;

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access to interpreters where required; and

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the humane treatment of the subject of a questioning warrant.

4. The Bill also amends the surveillance device framework in the ASIO Act to promote increased operational agility, mitigate the risk to ASIO surveillance operatives engaging in physical surveillance and to help resolve the current disadvantage faced by ASIO when engaging in joint operations with law enforcement. The Bill amends the ASIO Act in this regard by:

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enabling ASIO to use tracking devices with internal authorisation in certain circumstances, rather than requiring a warrant;

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clarifying that the surveillance device framework requires ASIO to obtain a warrant or authorisation where conduct would be unlawful; and

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updating the definition of 'tracking device' and effectively modernising ASIO's capabilities.

5. The Bill also makes consequential technical amendments to the Crimes Act 1914, the Criminal Code Act 1995, the Foreign Evidence Act 1994 and the Inspector-General of Intelligence and Security Act 1986.

FINANCIAL IMPACT

6. This Bill does not have a financial impact.