House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 10 - ASIO powers etc.

This Schedule amends the ASIO Act to:

(a)

strengthen ASIO's special powers warrant regime, by:

•

clarifying the scope of computer access warrants;

•

extending the time period for the validity of search warrants and inspection of postal and delivery service warrants, and extending the equivalent periods for the purpose of foreign intelligence gathering warrants;

•

allowing for the removal and retention (for a reasonable period unless return would be prejudicial to security) of material found during execution of a search warrant; and

•

extending computer access warrants to allow entry on premises;

(b)

provide ASIO with enhanced access to aircraft and vessel information for the purpose of carrying out ASIO's functions;

(c)

strengthen the offence for providing false or misleading information under an ASIO questioning warrant; and

(d)

make it clear that obligations, prohibitions or restrictions imposed by control orders will not be 'prescribed administrative action' for the purposes of Part IV of the ASIO Act.

This Schedule also amends the Customs Act 1901 and the Customs Administration Act 1985 to broaden the powers of Customs officers in relation to security and intelligence, and the Migration Act 1958 to clarify the power to deport non-citizens on security grounds.

Australian Security Intelligence Organisation Act 1979

Item 1

This item inserts a definition of data storage device into section 4 of the ASIO Act , for the purposes of ASIO's special powers in relation to search warrants and computer access warrants under sections 25 and 25A respectively. The new definition, which is consistent with the definition in the Criminal Code , defines a data storage device to mean a thing containing, or designed to contain, data for use by a computer.

Sections 25 and 25A currently authorise the use of a computer 'or other electronic equipment', although electronic equipment is not defined in the ASIO Act . This definition will put beyond doubt that the equipment or things that can be used to access data under sections 25 and 25A include data storage devices (which would include, for example, compact discs and similar things).

By framing the amendment in language that is technology neutral, this definition is designed to cover future technological advancements, which affords ASIO the required flexibility to conduct lawful operations in the face of changing technologies, and resolve any possible ambiguities surrounding what constitutes electronic equipment.

Item 2

This item inserts new section 23 into Division 2 of Part III of the ASIO Act to provide enhanced access to aircraft and vessel information for ASIO. This access is consistent with the new access given to the AFP under new section 3ZQM in the Crimes Act , inserted by item 1 of Schedule 6.

New section 23 gives authorised ASIO officers and employees power to request assistance from the operators of aircrafts or vessels, and imposes obligations on these operators to answer questions and produce documents. It is designed to ensure that ASIO's investigations of persons of security concern are not hampered by airline or ship operators refusing to provide, or refusing to provide promptly, information relevant to the investigations (for example, information relating to their passengers, crew or voyage).

New subsection 23(1) provides that an authorised ASIO officer or employee may, for the purposes of carrying out ASIO's functions, ask an operator of an aircraft or vessel questions relating to the aircraft or vessel, or its cargo, crew, passengers, stores or voyage, or request the operator to produce documents relating to the aircraft or vessel, or its cargo, crew, passengers, stores or voyage, that are in the possession or under the control of the operator.

New subsection 23(2) provides that a person who is asked a question or requested to produce a document under new subsection (1) must answer the question or produce the document as soon as practicable.

New subsection 23(3) provides that a person commits an offence if the person is an operator of an aircraft or vessel who is asked a question or requested to produce a document under new subsection (1) and fails to answer the question or produce the document. An offence against this new subsection is punishable by a maximum fine of 60 penalty units, which under section 4AA of the Crimes Act is equivalent to $6600.

New subsection 23(4) provides that strict liability applies to the offence under new subsection (3). This means that the prosecution does not need to prove fault for this offence, but that the defence of mistake of fact under section 9.2 of the Criminal Code is available.

New subsection 23(5) creates a defence to the offence under new subsection (3) if the person charged had a reasonable excuse for failing to answer the question or produce the document. What is regarded as a reasonable excuse will depend not only on the circumstances of the individual cases but also the purpose of the provision to which the defence is an exception.

New subsection 23(6) provides that the Director-General, or a senior officer of the Organisation authorised by the Director-General for the purposes of this subsection, may authorise, in writing, an officer, employee or class of officers or employees of ASIO for the purposes of this section. This authorisation provision is consistent with the current regime for authorising persons to exercise authority under warrants in section 24 of the ASIO Act . New subsection 23(7) defines persons so authorised as authorised officers and employees for the purposes of this section.

New subsection 23(7) also defines operator and senior officer of the Organisation for the purposes of this section, to have the same meanings as in section 4 of the Customs Act 1901 and section 24 of the ASIO Act respectively.

Items 3 and 4

These items amend section 25 of the ASIO Act to clarify the period of time for which material seized under a search warrant may be retained. It covers material (any record or thing) seized during search of premises under warrant or during ordinary or frisk searches of persons at or near the subject premises when the search warrant is executed.

The current situation is that such material may be retained for such time as is reasonable for the purposes set out in paragraphs 25(4)(d) and (4A)(c), being to inspect or examine, and in the case of a record, make a copy or transcript. Item 3 removes the phrase 'for such time as is reasonable' from paragraphs 25(4)(d) and (4A)(c).

Item 4 inserts new subsection 25(4C) which provides that the material may only be retained for a reasonable time for those purposes listed above, but it allows ASIO to continue to retain the material if it is assessed that the return of the material would be prejudicial to security.

Items 5 to 11

These items make a number of amendments to section 25 of the ASIO Act as a consequence of the new definition of data storage device inserted by item 1. This ensures that these devices are an extra thing (additional to a computer or other electronic equipment) that can be used on premises that are the subject of a search warrant for the purpose of obtaining access to data relevant to the security matter. These amendments also ensure that a computer, data storage device or other electronic equipment need not only be found on a person's premises, but could also be brought to the premises for the purpose of obtaining access to data relevant to the security matter.

Item 12

This item amends subsection 25(10) of the ASIO Act to extend the maximum period for which a search warrant can be in force from 28 days to 90 days. This will reduce the need for fresh warrants to be sought in unavoidable situations where it has not been practicable or possible to execute the warrant within 28 days. The Minister will continue to be able to revoke the warrant before the period has expired and the Director-General will continue to be able to cause action under the warrant to be discontinued under section 30.

Item 13

This item inserts new paragraph (4)(aa) into section 25A of the ASIO Act to ensure that the entering of specified premises may be authorised by a computer access warrant.

Section 25A currently enables computer access warrants to authorise certain activity relating to computers, but it does not enable the warrants to authorise entry on premises in order to carry out these activities. If entry onto premises is needed, separate (search) warrants are required to be obtained for this purpose. The new paragraph will mean that separate search warrants will no longer be required, which will make section 25A consistent with section 26, which authorises the entry onto premises for the purposes of installing a listening device.

The new paragraph will enable the Minister to authorise entry by ASIO onto identified premises for the purposes of doing the things permitted under a computer access warrant in subsection 25A(4). The only new authorisation is to allow access to the premises for the purpose of executing a computer access warrant. Any of the other activities undertaken under a search warrant (in section 25) would still need authorisation by way of a separate search warrant.

Item 14

This item inserts new subparagraph (a)(iv) into subsection 25A(4) of the ASIO Act to ensure that a computer access warrant issued under section 25A may authorise the use of a data storage device for the purpose of obtaining access to data that is relevant to the security matter and that is stored in the target computer.

Item 15

This item inserts new subsection (5A) into section 25A of the ASIO Act as a consequence of the power for a computer access warrant to authorise entry onto premises inserted by item 13. The new subsection requires the warrant to authorise the use of any necessary and reasonable force and specify the time at which entry may occur, which are identical to measures applying to search warrants under subsection 25(7).

Items 16 and 17

These items amend subsections 27(4) and 27AA(9) of the ASIO Act to extend the maximum period for which inspection of postal articles warrants and inspection of delivery service articles warrants respectively can be in force, from 90 days to six months. The extension of these periods to six months will harmonise these warrant periods with the time periods of other special power warrants, such as those for listening devices and telecommunications interception warrants. The Minister will continue to be able to revoke the warrants at any time before the specified period has expired and the Director-General will continue to be able to cause action under the warrant to be discontinued under section 30.

Items 18 to 20

These items amend paragraphs 27(A)(3)(a), (b) and (c) of the ASIO Act to extend the maximum time periods for foreign intelligence gathering warrants so that the periods are consistent with the general warrant period applying to the relevant activity.

Item 18 ensures that the foreign intelligence gathering search warrant period reflects the general search warrant period, extended by item 12 from 28 days to 90 days. Items 19 and 20 ensure that the foreign intelligence gathering inspection of postal and delivery service articles warrant period reflects the general inspection of postal and delivery service articles warrant period, extended by items 16 and 17 from 90 days to six months.

Items 21 and 22

These items amend section 34G of the ASIO Act to align the offence of giving false or misleading information during questioning under a warrant issued under Division 3 of Part III of the ASIO Act with the formulation used in similar offences in the Criminal Code .

The current formulation of the offence provision in subsection 34G(5) requires the prosecution to prove that the defendant made a statement that is 'to the person's knowledge false or misleading in a material particular'. These amendments will put beyond doubt that the prosecution is not required to prove that the defendant knew a false or misleading statement was false or misleading in a material particular, but materiality will still be taken into account.

Item 21 ensures that the requirement for the statement to be false or misleading in a material particular is no longer an element of the offence, while item 22 ensures that the offence does not apply if the statement is not false or misleading in a material particular. The effect of this, as indicated by the note to new subsection (5A), is that a defendant will bear the evidential burden in relation to the matter of whether the statement was false or misleading in a material particular, under subsection 13.3(3) of the Criminal Code .

Items 23 and 24

These items amend section 34N of the ASIO Act to clarify the period of time for which material seized under a questioning, or questioning and detention, warrant or through an ordinary or strip search of a detained person under Division 3 of Part III of the ASIO Act , may be retained. These amendments are consistent with the clarification of the period of time for which material seized under a search warrant may be retained, under items 3 and 4 of this Schedule.

The current situation is that such material may be retained for such time as is reasonable. Item 23 removes this phrase 'for such time as is reasonable' from paragraphs 34N(1)(a) and (c).

Item 24 inserts new subsection 34N(3) which provides that the material may only be retained for a reasonable time, but it allows ASIO to continue to retain the material if it is assessed that the return of the material would be prejudicial to security.

Item 25

This item is an application provision. Subitem 23(1) provides that all the amendments relating to warrants, being items 1, 3 to 20, 23 and 24, apply to warrants issued after this item commences.

Subitem 23(2) provides that the amendments made to the offence of providing a false or misleading statement , being items 21 and 22, apply to statements made after this item commences.

These are standard application clauses which ensure that these new provisions do not have any retrospective operation.

Items 26 to 28

These items amend section 35 of the ASIO Act to put beyond doubt that an obligation, prohibition or restriction imposed on a person by a control order under proposed new Division 104 of the Criminal Code (inserted by Schedule 4 to this Bill) is not prescribed administrative action for the purpose of Part IV of the ASIO Act . This purpose is achieved by item 27 inserting a note to the definitions in subsection 35(1) and item 28 inserting a new subsection 35(2), which operates as an avoidance of doubt provision.

These amendments mean that ASIO would not pass relevant information to the AFP for the purpose of the control order provisions in the form of security assessments under Part IV of that Act. However, subject to the requirements of the Act, the information could be communicated under other provisions of the Act.

Customs Act 1901

Item 29

This item amends section 186A of the Customs Act 1901 by broadening the purposes for which Customs officers can copy documents to include a 'security or intelligence' purpose.

Currently, Customs officers have general powers of examination of goods subject to Customs control under section 186 of the Customs Act 1901 . Section 186A provides Customs officers with the power to make copies of, and take extracts from, documents in certain circumstances.

Currently this power may only be exercised where the officer is satisfied that information contained in the document is relevant to the importation or exportation of prohibited goods, or certain criminal offences. When examining goods of arriving and departing passengers under section 186, Customs officers from time to time locate documents, written notes, diaries, electronic media or other goods which, based on the officer's assessment of the passenger, or other information available to them at the time of the examination, may relate to matters of security or intelligence.

Currently these documents cannot be copied, as they do not relate to the import or export of prohibited goods or the commission or attempted commission of certain offences under the Customs Act 1901 or other prescribed Acts.

The amendment will ensure that information that an officer is satisfied may be of significant national interest, being information that is relevant to the performance of ASIO's functions under section 17 of the ASIO Act , to the performance of functions under section 6 of the Intelligence Services Act 2001 , or to security within the meaning of security in section 4 of the ASIO Act , may be copied.

Customs Administration Act 1985

Item 30

This item amends section 16 of the Customs Administration Act 1985 to broaden Customs powers for 'security or intelligence' purposes.

Currently, section 16 permits the CEO of Customs, a delegate or authorised person to disclose protected information to certain persons. In particular, subsection 16(3A) permits the CEO to authorise disclosure of certain information to Commonwealth agencies for the purposes of those agencies' functions subject to conditions on the use of the information. Under this provision, the security and intelligence agencies may be provided with protected information. However, subsection 16(8) restricts personal information from being passed on subject to certain permissible purposes set out in subsection 16(9). Two relevant permissible purposes are for the administration or enforcement of a law relating to criminal law, or a law imposing a pecuniary penalty or for the forfeiture of property.

From time to time Customs may obtain information that it believes is relevant to agencies on security or intelligence grounds, but which does not relate to a criminal or pecuniary offence. It is considered appropriate that the permissible purposes also include security and intelligence purposes, in order to permit Customs officers to lawfully disclose such information to relevant agencies.

This item inserts new paragraphs 16(9)(ia) and (ib) into subsection 16(9) to include as permissible purposes those purposes relating to the performance of ASIO's functions under section 17 of the ASIO Act , and the performance of functions under section 6 of the Intelligence Services Act 2001 .

Migration Act 1958

Items 31 and 32

These items amend section 202 of the Migration Act 1958 which provides for deportation from Australia of non-citizens. Section 202 currently enables the Minister to order the deportation of a non-citizen where ASIO furnishes an adverse security assessment and the person 'constitutes, or has constituted, a threat to the security of the Commonwealth, of a State or of an internal or external Territory'.

Item 31 substitutes the word 'security' for the phrase 'the security of the Commonwealth, of a State or of an internal or external Territory' in paragraph 202(1)(a), and item 32 inserts a definition of security for the purposes of this section in subsection 202(6) which has the same meaning as in section 4 of the ASIO Act .

This reflects the fact that ASIO conducts security assessments on 'security' grounds. 'Security' is defined in section 4 of the ASIO Act to mean the protection of the Commonwealth, the States and the Territories from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system, and acts of foreign interference. It also includes the carrying out of Australia's responsibilities to foreign countries in relation to any of these matters. The scope for an assessment as a threat to security, under this definition, is not therefore restricted to the security of the Commonwealth, of a State or of an internal or external Territory, but may also extend to the carrying out of Australia's responsibilities to foreign countries in security-related matters.

The amendments are part of broader efforts to similarly align the meaning of 'security' as used in provisions for other related purposes (including citizenship applications, and visa refusals and cancellations on security grounds) with the definition of 'security' in the ASIO Act .