Commonwealth Numbered Acts Commonwealth Numbered Acts
Australian Security Intelligence Organisation Act 1979
1 Subparagraph 25A(4)(a)(iii)
Repeal the subparagraph, substitute:
(iii) any other electronic equipment; or
(iv) a data storage device;
2 Paragraph 25A(4)(a)
Omit “target computer; or”, substitute “target computer;”.
3 Subparagraph 25A(4)(a)(iv)
Repeal the subparagraph.
4 Section 34A
Insert:
"complaints agency" means an Ombudsman, agency or body:
(a) that is appointed or established by a law of a State or Territory; and
(b) that is permitted or required to investigate complaints about the police force or police service of the State or Territory;
other than an agency or body prescribed by the regulations for the purposes of this definition.
5 After subsection 34D(4)
Insert:
(5) In consenting to the making of a request, the Minister must ensure that the warrant to be requested is to:
(a) permit the person to contact a single lawyer of the person’s choice at any time the person is appearing before a prescribed authority for questioning under the warrant; and
(b) permit the person to contact a single lawyer of the person’s choice (subject to section 34ZO) at any time that is a time the person is in detention in connection with the warrant and a time after:
(i) the person has informed the prescribed authority concerned, in the presence of a person exercising authority under the warrant, of the identity of the lawyer whom the person proposes to contact; and
(ii) a person exercising authority under the warrant has had an opportunity to request the prescribed authority to direct under section 34ZO that the person be prevented from contacting the lawyer.
Note: Section 34K allows for detention in connection with a warrant issued under section 34E.
6 After subsection 34E(2)
Insert:
Contacting a lawyer
(3) The warrant must specify that the person is:
(a) permitted to contact a single lawyer of the person’s choice at any time the person is appearing before a prescribed authority for questioning under the warrant; and
(b) permitted to contact a single lawyer of the person’s choice (subject to section 34ZO) at any time that is a time the person is in detention in connection with the warrant and a time after:
(i) the person has informed the prescribed authority concerned, in the presence of a person exercising authority under the warrant, of the identity of the lawyer whom the person proposes to contact; and
(ii) a person exercising authority under the warrant has had an opportunity to request the prescribed authority to direct under section 34ZO that the person be prevented from contacting the lawyer.
Note: Section 34K allows for detention in connection with a warrant issued under this section.
7 Subparagraph 34G(3)(a)(iii)
Omit “(the questioning period )”.
8 Subsection 34G(4)
Omit “questioning period”, substitute “period”.
9 At the end of paragraph 34J(1)(e)
Add:
or (iii) to a complaints agency in relation to the police force or police service of the State or Territory concerned;
10 Subsection 34J(3)
Repeal the subsection, substitute:
(3) The prescribed authority before whom the person appears for questioning must inform the person of the role of the prescribed authority. In particular, the prescribed authority must inform the person that the role of the prescribed authority includes:
(a) supervising the questioning of the person; and
(b) giving appropriate directions under section 34K in relation to the person.
(4) The prescribed authority before whom the person appears for questioning must inform the person of the reason for the presence of each other person who is present at any time during the questioning. However:
(a) the prescribed authority must not name any person except with the consent of the person to be named; and
(b) the obligation to inform the person being questioned about a particular person’s reason for presence need only be complied with once (even if that particular person subsequently returns to the questioning).
11 At the end of section 34J
Add:
Note: For example, the person may be able to apply to the Federal Court of Australia under subsection 39B(1) of the Judiciary Act 1903 , or the High Court of Australia under paragraph 75(v) of the Constitution, for a remedy in relation to the warrant or the treatment of the person in connection with the warrant.
12 After paragraph 34K(1)(d)
Insert:
(e) a direction to defer questioning of the person under the warrant;
13 After subsection 34K(8)
Insert:
Complaints while appearing before a prescribed authority for questioning
(9) If:
(a) a person is appearing before a prescribed authority for questioning under a warrant issued under this Division; and
(b) the person informs the prescribed authority that the person wants to make an oral or written complaint of the kind referred to in paragraph 34J(1)(e); and
(c) the person requests facilities to make the complaint; and
(d) the prescribed authority gives a direction under subsection (1) deferring questioning of the person under the warrant;
then anyone exercising authority under the warrant must give the person facilities for making the complaint.
14 Paragraph 34K(11)(c)
Repeal the paragraph, substitute:
(c) subsection (10) does not affect the person’s right to make a complaint to a complaints agency in relation to the police force or police service of the State or Territory concerned; and
(d) anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector‑General of Intelligence and Security or the Commonwealth Ombudsman to make a complaint orally under a section mentioned in paragraph (b) if the person requests them; and
Note: The sections mentioned in paragraph (b) give the person an entitlement to facilities for making a written complaint.
(e) anyone holding the person in custody or detention under this Division must give the person facilities for contacting a complaints agency to make an oral or written complaint of the kind mentioned in paragraph (c) if the person requests them.
15 Subsection 34K(11) (note)
Repeal the note.
16 Subsection 34Q(4)
Omit “deferring”, substitute “suspending”.
17 At the end of section 34R
Add:
Time that is not questioning time
(13) For the purposes of working out the time that a person has been questioned under a warrant, disregard the following times:
(a) the time taken by a prescribed authority to inform the person of the matters referred to in section 34J;
(b) any time during which a prescribed authority has deferred questioning of the person under the warrant to allow:
(i) the change of a thing in equipment being used to record the questioning of the person; or
(ii) the person to make a complaint of the kind referred to in paragraph 34J(1)(e); or
(iii) the person to contact a lawyer or another person as provided by this Division; or
(iv) the person to receive medical attention; or
(v) the person to engage in religious practices as required by the person’s religion; or
(vi) the person to rest or recuperate;
(c) any time during which a prescribed authority has suspended questioning of the person under the warrant as mentioned in subsection 34Q(4);
(d) any other time determined by a prescribed authority before whom the person appears for questioning.
18 Subparagraphs 34ZE(8)(a)(ii) and (iii)
Omit “authorised by”, substitute “in connection with”.
19 Paragraph 34ZF(3)(a)
After “34K(1)(c), (d),”, insert “(e),”.
20 Paragraph 34ZF(4)(b)
Omit “paragraph 34K(11)(c),”, substitute “subsection 34K(9), paragraph 34K(11)(d) or (e),”.
21 Subsection 34ZO(1)
Repeal the subsection, substitute:
(1) If:
(a) a person (the subject ) is specified in a warrant issued under section 34E and the person is in detention in connection with the warrant; or
(b) a person (the subject ) is specified in a warrant issued under section 34G;
the subject may be prevented from contacting a particular lawyer of the subject’s choice if the prescribed authority concerned so directs.
22 After subsection 34ZQ(2)
Insert:
(3) Subsection (2) does not apply in relation to a warrant issued under section 34E if the contact is in circumstances covered by paragraph 34E(3)(a).
23 Subsection 34ZQ(5) (note)
Repeal the note, substitute:
Note: The prescribed authority may set breaks between periods of questioning by giving directions under section 34K. Paragraphs 34R(13)(b) to (d) also contain examples of procedural breaks in questioning.
24 After subsection 34ZQ(6)
Insert:
Breaks in questioning to address prescribed authority
(7) During a break in the questioning of the subject, the legal adviser may request the prescribed authority for an opportunity to address the prescribed authority on a matter.
Note: The prescribed authority may set breaks between periods of questioning by giving directions under section 34K. Paragraphs 34R(13)(b) to (d) also contain examples of procedural breaks in questioning.
(8) The prescribed authority must approve or refuse a request under subsection (7).
25 Subsection 34ZS(5) (at the end of paragraph (a) of the definition of permitted disclosure )
Add:
(v) exercising a power (including a power to make a complaint), or performing a function or duty, under a law of a State or Territory appointing or establishing a complaints agency;
26 Subsection 34ZS(5) (paragraph (f) of the definition of permitted disclosure )
After “subsection 34ZR(1)”, insert “, by the subject mentioned in that subsection”.
27 Subsection 34ZS(5) (after subparagraph (f)(ii) of the definition of permitted disclosure )
Insert:
(iii) the subject;
28 Subsection 34ZS(5) (at the end of paragraph (f) of the definition of permitted disclosure )
Add:
(viii) a complaints agency;
29 After subsection 34ZS(8)
Insert:
(9) In deciding whether to give permission to a person under subsection (6), (7) or (8), the prescribed authority, the Director‑General or the Minister must take into account:
(a) the person’s family and employment interests to the extent that the prescribed authority, the Director‑General or the Minister is aware of those interests; and
(b) the public interest; and
(c) the risk to security if the permission were given.
This subsection does not limit the matters that may be taken into account.
30 After section 34ZW
Insert:
Application for assistance
(1) At any time after a person specified in a warrant issued under this Division is notified of the issue of the warrant, the person may apply to the Minister for the provision of assistance under this section in respect of the person’s appearance before a prescribed authority for questioning under the warrant.
Authorisation of assistance
(2) The Minister may authorise the provision by the Commonwealth to the person of such financial assistance as the Minister determines.
(3) The Minister may authorise the provision of assistance on such conditions (if any) as the Minister determines.
Guidelines
(4) The Minister may, in writing, determine guidelines that are to be applied in authorising the provision of assistance under this section.
Limit on assistance
(5) This section does not apply in relation to:
(a) any complaint the person makes that is of the kind mentioned in paragraph 34J(1)(e); or
(b) any remedy the person seeks that is of the kind mentioned in paragraph 34J(1)(f).
31 Before section 34ZZ
Insert:
34ZY Instruments are not legislative instruments
An instrument made under this Division (other than an instrument made by the Minister under section 34C) is not a legislative instrument.
32 Section 34ZZ
Omit “3 years after it commences”, substitute “on 22 July 2016”.
Intelligence Services Act 2001
33 Paragraph 29(1)(bb)
Repeal the paragraph, substitute:
(bb) to review, by 22 January 2016, the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 ; and
Minister’s second reading speech made in—
House of Representatives on 29 March 2006
Senate on 13 June 2006
| (41/06) |