AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2020

2019-2020

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Australian Security Intelligence

Organisation Amendment Bill 2020

No. , 2020

(Home Affairs)

A Bill for an Act to amend the

Australian Security

Intelligence Organisation Act 1979

, and for related

purposes

No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1--Amendments relating to compulsory questioning

powers

Part 1--Amendments

Australian Security Intelligence Organisation Act 1979

Part 2--Application and saving provisions

Part 3--Consequential amendments

Crimes Act 1914

Criminal Code Act 1995

Foreign Evidence Act 1994

Inspector-General of Intelligence and Security Act 1986

Part 4--Amendments contingent on the commencement of the

Federal Circuit and Family Court of Australia

(Consequential Amendments and Transitional

Provisions) Act 2020

101

Australian Security Intelligence Organisation Act 1979

101

Schedule 2--Amendments relating to tracking devices

102

Australian Security Intelligence Organisation Act 1979

102

No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

A Bill for an Act to amend the

Australian Security

Intelligence Organisation Act 1979

, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Australian Security Intelligence Organisation

Amendment

Act 2020

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Australian Security Intelligence Organisation Amendment Bill 2020

No. , 2020

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Parts 1 to 3

The earlier of:

(a) a single day to be fixed by Proclamation;

and

(b) 7 September 2020.

3. Schedule 1,

items 27 and 28

Immediately after the commencement of the

provisions covered by table item 2.

However, the provisions do not commence

at all unless Schedule 2 to the

Federal

Circuit and Family Court of Australia

(Consequential Amendments and

Transitional Provisions) Act 2020

commences before the commencement of

the provisions covered by table item 2.

4. Schedule 1,

item 29

The later of:

(a) immediately after the commencement of

the provisions covered by table item 2;

and

(b) immediately after the commencement of

Schedule 2 to the

Federal Circuit and

Family Court of Australia

(Consequential Amendments and

Transitional Provisions) Act 2020

However, the provision does not commence

at all if the event mentioned in paragraph (b)

does not occur.

5. Schedule 2

The earlier of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately before the commencement

of the provisions covered by table item 2.

No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

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Schedule 1--Amendments relating to

compulsory questioning powers

Part 1--Amendments

Australian Security Intelligence Organisation Act 1979

1 Section 4

Insert:

computer

means all or part of:

(a) one or more computers; or

(b) one or more computer systems; or

(d) any combination of the above.

2 Section 4 (paragraph (ba) of the definition of

politically

motivated violence

)

Repeal the paragraph, substitute:

(ba) acts that are offences punishable under Subdivision A of

Division 72, or Part 5.3, of the

Criminal Code

; or

3 Section 4 (definition of

terrorism offence

)

Repeal the definition.

4 Section 22 (definition of

computer

)

Repeal the definition.

5 Subsection 25A(2) (note)

Omit "section 22", substitute "section 4".

6 Subsection 34(1A)

Omit "subsection 34AAA(2)", substitute "subsection 34AAD(2)".

7 Section 34A (first occurring) (heading)

Repeal the heading, substitute:

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34AAA Director-General to report to Attorney-General--

concealment of access

8 Section 34AA (heading)

Repeal the heading, substitute:

34AAC Evidentiary certificates

9 Section 34AAA (heading)

Repeal the heading, substitute:

34AAD Person with knowledge of a computer or a data storage

device to assist access to data

10 Division 3 of Part III

Repeal the Division, substitute:

Division 3--Compulsory questioning powers

Subdivision A--General provisions

34A Definitions

In this Division:

adult questioning matter

means a matter that relates to the

protection of, and of the people of, the Commonwealth and the

several States and Territories from any of the following:

(a) espionage;

(b) politically motivated violence;

whether directed from, or committed within, Australia or not.

adult questioning warrant

means a warrant issued under

section 34BA (including such a warrant as varied under

section 34BG).

against

: a confiscation proceeding is

against

a person if:

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(a) for a proceeding under the

Proceeds of Crime Act 2002

--the

person is a suspect (within the meaning of that Act) for the

proceeding; or

(b) for a proceeding under a law of a State or Territory--the

person is in a corresponding category for that law.

charged

: a person is

charged

with an offence if a process for

prosecuting the person for the offence commences.

communication device

means:

(a) a device that a person may use to communicate information

to another person; or

(b) a surveillance device (within the meaning of Division 2).

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.

confiscation proceeding

means a proceeding under:

(a) the

Proceeds of Crime Act 1987

or the

Proceeds of Crime Act

2002

; or

(b) a corresponding law within the meaning of either of those

Acts;

but does not include a criminal prosecution for an offence under

either of those Acts or a corresponding law.

criminal proceeding

means:

(a) a prosecution for an offence against a law of the

Commonwealth or of a State or Territory; or

(b) a confiscation proceeding.

dangerous item

means:

(a) a weapon; or

(b) any other thing that is or could be used in a dangerous or

threatening way.

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derivative material

means any evidence, information, record or

other thing obtained directly or indirectly from questioning

material.

disclose

, for questioning material or derivative material, includes:

(a) to make available; and

(b) to disclose copies, contents or descriptions of that material.

extra permitted questioning period

has the meaning given by

subsection 34DK(3).

immediate appearance requirement

: a questioning warrant

includes an

immediate appearance requirement

if it requires the

subject of the warrant to appear before a prescribed authority for

questioning under the warrant immediately after the subject is

given notice of the requirement in accordance with section 34BH.

imminent

(a) a charge against a person is

imminent

if:

(i) the person is under arrest for an offence, but has not

been charged with the offence; or

(ii) a person with authority to commence a process for

prosecuting the person for an offence has decided to

commence, but not yet commenced, the process; or

(b) a confiscation proceeding against a person is

imminent

if a

person with authority to commence the proceeding has

decided to commence, but not yet commenced, the

proceeding.

Note:

Subparagraph (a)(ii) applies, for example, if a person with authority to

lay the charge has decided to lay, but not yet laid, the charge.

lawyer

means a person who:

(a) is enrolled as a legal practitioner of a federal court or of the

Supreme Court of a State or Territory; and

(b) holds a practising certificate granted under a law of a State or

Territory.

minor questioning matter

means a matter that relates to the

protection of, and of the people of, the Commonwealth and the

several States and Territories from politically motivated violence,

whether directed from, or committed within, Australia or not.

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minor questioning warrant

means a warrant issued under

section 34BB (including such a warrant as varied under

section 34BG).

minor's representative

, for the subject of a minor questioning

warrant, has the meaning given by section 34AA.

permitted questioning period

has the meaning given by

subsection 34DJ(3).

police officer

means any of the following:

(a) a member of the Australian Federal Police (within the

meaning of the

Australian Federal Police Act 1979

);

(b) a special member of the Australian Federal Police (within the

meaning of that Act);

Territory.

post-charge

(a) a use or disclosure of questioning material or derivative

material is a

post-charge

use or disclosure if the use or

disclosure happens at a time when:

(i) the subject for the material has been charged with a

related offence and that charge is still to be resolved; or

(ii) such a charge is imminent; or

(b) material is

post-charge

questioning material if the material

becomes questioning material at a time when:

(i) the subject for the material has been charged with a

related offence and that charge is still to be resolved; or

(ii) such a charge is imminent; or

post-charge

questioning if the questioning commences at a time when:

(i) the subject of the warrant has been charged with a

related offence and that charge is still to be resolved; or

(ii) such a charge is imminent; or

(d) a questioning warrant is a

post-charge

questioning warrant if

the warrant is issued at a time when:

(i) the subject of the warrant has been charged with a

related offence and that charge is still to be resolved; or

(ii) such a charge is imminent.

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post-confiscation application

(a) a use or disclosure of questioning material or derivative

material is a

post-confiscation application

use or disclosure

if the use or disclosure happens at a time when:

(i) a related confiscation proceeding has commenced

against the subject for the material and that proceeding

is still to be resolved; or

(ii) such a proceeding is imminent; or

(b) material is

post-confiscation application

questioning

material if the material becomes questioning material at a

time when:

(i) a related confiscation proceeding has commenced

against the subject for the material and that proceeding

is still to be resolved; or

(ii) such a proceeding is imminent; or

post-confiscation

application

questioning if the questioning commences at a

time when:

(i) a related confiscation proceeding has commenced

against the subject of the warrant and that proceeding is

still to be resolved; or

(ii) such a proceeding is imminent; or

(d) a questioning warrant is a

post-confiscation application

questioning warrant if the warrant is issued at a time when:

(i) a related confiscation proceeding has commenced

against the subject of the warrant and that proceeding is

still to be resolved; or

(ii) such a proceeding is imminent.

pre-charge

(a) a use or disclosure of questioning material or derivative

material is a

pre-charge

use or disclosure if the use or

disclosure happens at a time when:

(i) the subject for the material has not been charged with a

related offence, and such a charge is not imminent; or

(ii) all such charges have been resolved; or

(b) material is

pre-charge

questioning material if the material

becomes questioning material at a time when:

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(i) the subject for the material has not been charged with a

related offence, and such a charge is not imminent; or

(ii) all such charges have been resolved; or

pre-charge

questioning if the questioning commences at a time when:

(i) the subject of the warrant has not been charged with a

related offence, and such a charge is not imminent; or

(ii) all such charges have been resolved.

pre-confiscation application

(a) a use or disclosure of questioning material or derivative

material is a

pre-confiscation application

use or disclosure if

the use or disclosure happens at a time when:

(i) a related confiscation proceeding has not commenced

against the subject for the material, and such a

proceeding is not imminent; or

(ii) all such proceedings have been resolved; or

(b) material is

pre-confiscation application

questioning material

if the material becomes questioning material at a time when:

(i) a related confiscation proceeding has not commenced

against the subject for the material, and such a

proceeding is not imminent; or

(ii) all such proceedings have been resolved; or

pre-confiscation

application

questioning if the questioning commences at a

time when:

(i) a related confiscation proceeding has not commenced

against the subject of the warrant, and such a proceeding

is not imminent; or

(ii) all such proceedings have been resolved.

prescribed authority

means a person appointed under

subsection 34AD(1).

proceeds of crime authority

means:

(a) a proceeds of crime authority within the meaning of the

Proceeds of Crime Act 2002

; or

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(b) an authority of a State or Territory responsible for conducting

a confiscation proceeding under a corresponding law (within

the meaning of the

Proceeds of Crime Act 2002

prosecuting authority

means an individual, or authority, authorised

by or under a law of the Commonwealth or of a State or Territory

to prosecute an offence.

prosecutor

, of the subject of a questioning warrant, means an

individual:

(a) who is a prosecuting authority or is employed or engaged by

a prosecuting authority; and

(b) who:

(i) makes, or is involved in the making of, a decision

whether to prosecute the subject for a related offence; or

(ii) is one of the individuals engaging in such a prosecution

of the subject.

questioning material

has the meaning given by

subsection 34AB(1).

questioning warrant

means:

(a) an adult questioning warrant; or

(b) a minor questioning warrant.

record

has the same meaning as in Division 2.

related confiscation proceeding

, for questioning material,

derivative material or the subject of a questioning warrant, means a

confiscation proceeding if the subject matter of the relevant

questioning relates to the subject matter of the proceeding.

related offence

, for questioning material, derivative material or the

subject of a questioning warrant, means an offence if the subject

matter of the relevant questioning relates to the subject matter of

the offence.

resolved

, in relation to a charge or a confiscation proceeding, has

the meaning given by section 34AC.

screening equipment

means a metal detector or a device for

detecting objects or particular substances.

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subject

(a) in relation to a questioning warrant--means the person

specified in the warrant; or

(b) for questioning material or derivative material--has the

meaning given by subsection 34AB(3).

superior court

means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(d) the Supreme Court of a State or Territory; or

(e) the District Court (or equivalent) of a State or Territory.

undergo a screening procedure

: a person

undergoes a screening

procedure

at a place if:

(a) the person walks, or is moved, through screening equipment

at the place; or

(b) handheld screening equipment is passed over or around the

person or around things that are at the place and in the

person's possession or control; or

control are passed through screening equipment or examined

by X-ray.

use

, for questioning material or derivative material, includes use of

copies, contents or descriptions of that material.

34AA Meaning of

minor's representative

(1) A person is a

minor's representative

for the subject of a minor

questioning warrant if the person is:

(a) a parent of the subject; or

(b) a guardian of the subject; or

(2) A person meets the requirements of this subsection if the person:

(a) is able to represent the subject's interests; and

(b) is, as far as practicable in the circumstances, acceptable to the

subject and, if applicable, to the prescribed authority; and

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(i) a police officer;

(ii) the Director-General;

(iii) an ASIO employee or an ASIO affiliate;

(iv) a person approved under section 24.

Note:

A lawyer for the subject of a minor questioning warrant, including a

lawyer appointed under paragraph 34FC(2)(a) or (3)(b), may also be a

minor's representative for the subject if the lawyer meets the

requirements of this subsection.

34AB Meaning of

questioning material

and

subject

(1)

Questioning material

is:

(a) any information given by a person while before a prescribed

authority for questioning under a questioning warrant; or

(b) a record or other thing produced by a person while before a

prescribed authority for questioning under a questioning

warrant; or

appeared before a prescribed authority for questioning under

a questioning warrant, to be identified; or

(d) the fact that a person has appeared, or is required to appear,

before a prescribed authority for questioning under a

questioning warrant.

(2) To avoid doubt, information, a record or a thing is not covered by

paragraph (1)(a) or (b) to the extent that it is obtained otherwise

than before a prescribed authority under a questioning warrant.

Example: Before a record is produced before a prescribed authority, a copy of

the record is obtained when executing a search warrant. The copy

obtained under the search warrant is not questioning material.

(3) The

subject

is:

(a) for questioning material--the person referred to in

paragraph (1)(a), (b), (c) or (d); or

(b) for derivative material--the person who is the subject for the

questioning material from which the derivative material was

obtained.

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34AC Meaning of

resolved

(1) A charge for an offence is

resolved

in relation to a person at the

later of the following times:

(a) when:

(i) the charge is withdrawn; or

(ii) the charge is dismissed; or

(iii) the person is not committed on the charge following a

committal hearing; or

(iv) the person is acquitted of the offence; or

(v) the person is sentenced for the offence; or

(vi) the person is dealt with by being the subject of a court

order made as a consequence of a finding of guilt; or

(vii) the charge is otherwise finally dealt with;

(b) if an appeal relating to the charge is not lodged within the

period for lodging such an appeal--when that period ends;

appeal lapses or is finally determined.

Despite paragraph (b), if an appeal relating to the charge is lodged

after that period ends, the charge ceases to be

resolved

until that

appeal lapses or is finally determined.

(2) A confiscation proceeding is

resolved

in relation to a person at the

later of the following times:

(a) when the proceeding is discontinued;

(b) if an appeal relating to the proceeding is not lodged within

the period for lodging such an appeal--when that period

ends;

appeal lapses or is finally determined.

Despite paragraph (b), if an appeal relating to the proceeding is

lodged after that period ends, the proceeding ceases to be

resolved

until that appeal lapses or is finally determined.

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34AD Prescribed authorities

Appointment of prescribed authority

(1) The Attorney-General may, in writing, appoint as a prescribed

authority:

(a) a person who:

(i) has served as a judge in one or more superior courts for

a period of at least 5 years; and

(ii) no longer holds a commission as a judge of a superior

court; or

(b) a person who:

(i) holds an appointment to the Administrative Appeals

Tribunal as President or Deputy President; and

(ii) is enrolled as a legal practitioner of a federal court or of

the Supreme Court of a State or Territory; and

(iii) has been enrolled for at least 5 years; or

(i) is enrolled as a legal practitioner of a federal court or of

the Supreme Court of a State or Territory; and

(ii) has engaged in practice as a legal practitioner for at least

10 years; and

(iii) holds a practising certificate granted under a law of a

State or Territory.

(2) A person is not eligible for appointment under subsection (1) if the

person is:

(a) an ASIO employee or an ASIO affiliate; or

(b) the Director-General; or

Judiciary Act

1903

); or

(d) an IGIS official; or

(e) a person referred to in subsection 6(1) of the

Australian

Federal Police Act 1979

; or

(f) a staff member of a law enforcement agency (other than the

Australian Federal Police); or

(g) a staff member of an intelligence or security agency.

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(3) The Attorney-General must not appoint a person to whom

paragraph (1)(c) applies unless the Attorney-General is satisfied

that the person has the knowledge or experience necessary to

properly perform the duties of a prescribed authority.

(4) The Attorney-General must not appoint a person unless:

(a) the person has, in writing, consented to being appointed; and

(b) the consent is in force.

(5) Before appointing a person as a prescribed authority, the

Attorney-General must have regard to:

(a) whether the person engages in any paid or unpaid work that

conflicts, or could conflict, with the proper performance of

the person's duties as a prescribed authority; and

(b) whether the person has any interests, pecuniary or otherwise,

that conflict, or could conflict, with the proper performance

of the person's duties as a prescribed authority.

Duty to disclose interests

(6) A person who:

(a) is appointed as a prescribed authority; and

(b) has a material personal interest that relates to the proper

performance of the person's duties as a prescribed authority;

must disclose that interest, in writing, to the Attorney-General.

(7) The disclosure must include details of:

(a) the nature and extent of the interest; and

(b) how the interest relates to the proper performance of the

person's duties as a prescribed authority.

(8) The person must make the disclosure:

(a) as soon as practicable after the person becomes aware of the

interest; and

(b) if there is a change in the nature or extent of the interest after

the person has disclosed the interest under this section--as

soon as practicable after the person becomes aware of that

change.

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Termination of appointment

(9) The Attorney-General may terminate the appointment of a

prescribed authority:

(a) for misbehaviour; or

(b) if the prescribed authority is unable to perform the duties of a

prescribed authority because of physical or mental

incapacity; or

(d) if the prescribed authority fails, without reasonable excuse, to

comply with subsection (6), (7) or (8); or

(e) if the prescribed authority engages in paid or unpaid work, or

has an interest, pecuniary or otherwise, that, in the

Attorney-General's opinion, conflicts or could conflict with

the proper performance of the prescribed authority's duties.

Definitions

(10) In this section:

paid work

means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise).

unpaid work

means work that is not paid work.

34AE Status of prescribed authorities

A prescribed authority has, in the performance of the prescribed

authority's duties under this Division, the same protection and

immunity as a Justice of the High Court.

34AF Written statement of procedures

(1) The Director-General may prepare a written statement of

procedures to be followed in the exercise of authority under a

questioning warrant.

Consultation

(2) The Director-General must consult the following about the

preparation of the statement:

(a) the Inspector-General of Intelligence and Security;

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(b) the Commissioner of the Australian Federal Police.

Approval by Attorney-General

(3) The Director-General must give the statement to the

Attorney-General for approval.

(4) The Attorney-General must approve or refuse to approve the

statement.

Approved statement is a legislative instrument

(5) A statement approved by the Attorney-General is a legislative

instrument made by the Attorney-General on the day on which the

statement is approved, but section 42 (disallowance) of the

Legislation Act 2003

does not apply to the statement.

Note:

Part 4 of Chapter 3 (sunsetting) of the

Legislation Act 2003

does not

apply to the statement: see regulations made for the purposes of

paragraph 54(2)(b) of that Act.

Briefing of Parliamentary Joint Committee on Intelligence and

Security

(6) The Director-General must brief the Parliamentary Joint

Committee on Intelligence and Security on the statement after it is

approved by the Attorney-General. The briefing may be done

orally or in writing.

34AG Humane treatment of subject of questioning warrant

(1) This section applies to the subject of a questioning warrant while

anything is being done in relation to the subject under:

(a) the warrant; or

(b) a direction given by a prescribed authority in relation to the

warrant.

(2) The subject must be treated with humanity and with respect for

human dignity, and must not be subjected to torture or to cruel,

inhuman or degrading treatment, by any person exercising

authority under the warrant or implementing or enforcing the

direction.

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Subdivision B--Questioning warrants

34B Request for questioning warrant

Request for warrant

(1) The Director-General may request the Attorney-General to issue,

in relation to a person:

(a) an adult questioning warrant; or

(b) a minor questioning warrant.

(2) The request may be made:

(a) in writing; or

(b) if the Director-General reasonably believes that the delay

caused by making a written request may be prejudicial to

security--orally in person, or by telephone or other means of

communication.

(3) To avoid doubt, this section operates in relation to a request for the

issue of a questioning warrant in relation to a person, even if a

request (a

previous request

) for the issue of a questioning warrant

has previously been made under this section in relation to the

person.

Requirements for requests

(4) A request under subsection (1) must include:

(a) a statement of the facts and other grounds on which the

Director-General considers it necessary that the warrant

should be issued; and

(b) a statement of the particulars and outcomes of any previous

requests for the issue of a questioning warrant in relation to

the person; and

previous requests--a statement of:

(i) the period for which the person was questioned under

each of those warrants; and

(ii) whether the person was apprehended in connection with

any of those warrants; and

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(d) whether the request is for a warrant that includes an

immediate appearance requirement; and

(e) if the request is for a warrant that includes an immediate

appearance requirement--whether the request is also for a

questioning warrant that authorises the apprehension of the

person; and

(f) if the request is for a minor questioning warrant--all

information known to the Director-General, at the time of the

making of the request, about the matters mentioned in

subsection 34BB(3).

Additional requirements for oral requests

(5) If a request under subsection (1) is to be made orally, the

Director-General must, before or as soon as practicable after the

request is made, cause the Inspector-General of Intelligence and

Security to be notified that the request will be or has been made.

(6) If a request under subsection (1) is made orally, the

Director-General must:

(a) make a written record of the request that includes:

(i) the day and time the request is made; and

(ii) the reasons why the Director-General believes that the

delay caused by making a written request may be

prejudicial to security; and

(iii) the matters mentioned in subsection (4); and

(b) as soon as practicable, and no later than 48 hours after the

request is made, provide the written record to:

(i) the Attorney-General; and

(ii) the Inspector-General of Intelligence and Security.

34BA Test for issue of questioning warrant--persons who are at

least 18

(1) If the Director-General requests the Attorney-General to do so, the

Attorney-General may issue a warrant in relation to a person under

this section if the Attorney-General is satisfied that:

(a) the person is at least 18 years old; and

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(b) there are reasonable grounds for believing that the warrant

will substantially assist the collection of intelligence that is

important in relation to an adult questioning matter; and

intelligence that are likely to be as effective, it is reasonable

in all the circumstances for the warrant to be issued; and

(d) if the warrant is a post-charge, or post-confiscation

application, questioning warrant--it is necessary, for the

purposes of collecting the intelligence, for the warrant to be

issued even though:

(i) the person has been charged or the confiscation

proceeding has commenced; or

(ii) that charge or proceeding is imminent; and

(e) there is in force under section 34AF a written statement of

procedures to be followed in the exercise of authority under a

questioning warrant.

(2) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if:

(a) paragraph (1)(d) had not been enacted; or

(b) paragraph (1)(d) were, by express provision, confined to

dealing with a charge against the person or such a charge that

is imminent; or

dealing with a confiscation proceeding against the person that

has commenced or is imminent.

34BB Test for issue of questioning warrant--persons who are at

least 14

(1) If the Director-General requests the Attorney-General to do so, the

Attorney-General may issue a warrant in relation to a person under

this section if the Attorney-General is satisfied that:

(a) the person is at least 14 years old; and

(b) there are reasonable grounds for believing that the person has

likely engaged in, is likely engaged in, or is likely to engage

in activities prejudicial to the protection of, and of the people

of, the Commonwealth and the several States and Territories

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from politically motivated violence, whether directed from,

or committed within, Australia or not; and

will substantially assist the collection of intelligence that is

important in relation to a minor questioning matter; and

(d) 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; and

(e) if the warrant is a post-charge, or post-confiscation

application, questioning warrant--it is necessary, for the

purposes of collecting the intelligence, for the warrant to be

issued even though:

(i) the person has been charged or the confiscation

proceeding has commenced; or

(ii) that charge or proceeding is imminent; and

(f) there is in force under section 34AF a written statement of

procedures to be followed in the exercise of authority under a

questioning warrant.

(2) In deciding whether to issue the warrant, the Attorney-General

must consider the best interests of the person.

(3) In considering the best interests of a person for the purposes of

subsection (2), the Attorney-General must take into account the

following matters:

(a) the age, maturity, sex and background (including lifestyle,

culture and traditions) of the person;

(b) the physical and mental health of the person;

with the person's family and friends;

(d) the right of the person to receive an education;

(e) the right of the person to practise the person's religion;

(f) any other matter the Attorney-General considers relevant.

(4) The Attorney-General must take into account the matters in

subsection (3) only to the extent that:

(a) the matters are known to the Attorney-General; and

(b) the matters are relevant.

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Note:

Information about the matters in subsection (3) is provided to the

Attorney-General as part of the request for the warrant: see

paragraph 34B(4)(f).

(5) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if:

(a) paragraph (1)(e) had not been enacted; or

(b) paragraph (1)(e) were, by express provision, confined to

dealing with a charge against the person or such a charge that

is imminent; or

dealing with a confiscation proceeding against the person that

has commenced or is imminent.

34BC Warrant has no effect if person under 14

A questioning warrant has no effect if the subject of the warrant is

under 14 years old.

34BD What a questioning warrant authorises

(1) A questioning warrant must, subject to any restrictions or

conditions specified in the warrant:

(a) require the subject of the warrant to appear before a

prescribed authority for questioning under the warrant either:

(i) if the warrant includes an immediate appearance

requirement--immediately after the subject is given

notice of the requirement in accordance with

section 34BH; or

(ii) at a day and time specified in the warrant; and

(b) subject to subsection (2), authorise the Organisation to

question the subject of the warrant before a prescribed

authority by requesting the subject to:

(i) if the warrant is an adult questioning warrant--give

information, or produce a record or other thing, that is,

or may be, relevant to intelligence that is important in

relation to an adult questioning matter; or

(ii) if the warrant is a minor questioning warrant--give

information, or produce a record or other thing, that is,

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or may be, relevant to intelligence that is important in

relation to a minor questioning matter; and

record produced by the subject while before a prescribed

authority for questioning under the warrant.

Additional requirements for minors

(2) For the purposes of paragraph (1)(b), if the warrant is a minor

questioning warrant, the warrant authorises the Organisation to

question the subject of the warrant before a prescribed authority:

(a) only in the presence of a minor's representative for the

subject; and

(b) only for continuous periods of 2 hours or less, separated by

breaks directed by the prescribed authority.

Note 1:

Also, the subject of a minor questioning warrant may be questioned

only in the presence of a lawyer for the subject: see

subsection 34FA(1).

Note 2:

The prescribed authority may set the breaks between periods of

questioning by giving appropriate directions under

paragraph 34DE(1)(e) for the subject's further appearance before the

prescribed authority for questioning.

(3) To avoid doubt, subsection (2) does not affect the operation of

section 34DJ (permitted questioning time) or 34DK (extra

permitted questioning time if interpreter present).

Matters in relation to which the Organisation may request

information etc.

(4) For the purposes of paragraph (1)(b), the matters in relation to

which the Organisation may request the subject to give

information, or produce records or things, may include:

(a) the subject matter of any charge, or imminent charge, against

the subject; and

(b) the subject matter of any confiscation proceeding, or

imminent confiscation proceeding, against the subject.

Severability

(5) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if:

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(a) subsection (4) had not been enacted; or

(b) subsection (4) were, by express provision, confined to

dealing with a charge against the subject or such a charge that

is imminent; or

dealing with a confiscation proceeding against the subject

that has commenced or is imminent.

34BE Other things that may be authorised in questioning warrant

Warrant may require immediate appearance

(1) A questioning warrant may include an immediate appearance

requirement if the Attorney-General is satisfied that it is reasonable

and necessary in the circumstances.

Note:

For the definition of

immediate appearance requirement

, see

section 34A.

Warrant may authorise apprehension

(2) If:

(a) a questioning warrant is to include an immediate appearance

requirement under subsection (1); and

(b) the Attorney-General is satisfied that there are reasonable

grounds for believing that, if the subject of the warrant is not

apprehended, the subject is likely to:

(i) alert a person involved in an activity prejudicial to

security that the activity is being investigated; or

(ii) not appear before the prescribed authority; or

(iii) 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;

the warrant may also authorise the apprehension of the subject by a

police officer in order to immediately bring the subject before the

prescribed authority for questioning under the warrant.

Note:

A police officer may also apprehend the subject of a questioning

warrant if the subject makes certain representations: see

subsection 34C(2).

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Warrant may authorise seizure of certain records or other things

found during search

(3) If the Attorney-General is satisfied that it is reasonable and

necessary in the circumstances, a questioning warrant may provide

that if:

(a) a police officer conducts a search of the subject of the

warrant under section 34CC; and

(b) a record or other thing is found during the search that the

officer reasonably believes is relevant to the collection of

intelligence that is important in relation to:

(i) if the warrant is an adult questioning warrant--an adult

questioning matter; or

(ii) if the warrant is a minor questioning warrant--a minor

questioning matter;

the officer is authorised to seize the record or other thing.

Note:

A police officer may only conduct a search of the subject of a

questioning warrant under section 34CC if the subject is apprehended

in connection with the warrant.

Warrant may request production of records or things

(4) A questioning warrant may request the subject of the warrant to

produce, before a prescribed authority:

(a) a specified record or other thing; or

(b) a specified class of record or other thing;

if the Attorney-General is satisfied that the record or thing, or class

of record or thing, is, or may be, relevant to intelligence that is

important in relation to:

questioning matter; or

(d) if the warrant is a minor questioning warrant--a minor

questioning matter.

Warrant may require immediate further appearance etc.

(5) If:

(a) a questioning warrant is in force; and

(b) the subject of the warrant has appeared before a prescribed

authority for questioning under the warrant; and

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longer than the permitted questioning period or, if applicable,

the extra permitted questioning period; and

(d) the Attorney-General is satisfied that it is reasonable and

necessary in the circumstances;

the warrant may, despite any direction given under

subsection 34DE(1) to the contrary:

(e) require the subject's further appearance before a prescribed

authority for questioning under the warrant; and

(f) include an immediate appearance requirement under

subsection (1) in relation to the further appearance.

Note:

This subsection only applies if a questioning warrant that is in force is

varied under section 34BG.

(6) If:

(a) a questioning warrant is to include the requirements

mentioned in paragraphs (5)(e) and (f); and

(b) the Attorney-General is satisfied that there are reasonable

grounds for believing that, if the subject of the warrant is not

apprehended:

(i) the subject is likely to alert a person involved in an

activity prejudicial to security that the activity is being

investigated; or

(ii) the subject is likely to not comply with the requirements

mentioned in paragraphs (5)(e) and (f); or

(iii) the subject is likely to 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;

the warrant may also authorise the apprehension of the subject by a

police officer in order to immediately bring the subject before the

prescribed authority for further questioning under the warrant.

34BF Requirements for questioning warrant

(1) A questioning warrant may be issued:

(a) by means of a written document signed by the

Attorney-General; or

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(b) if the Attorney-General is satisfied that there are reasonable

grounds on which to believe that the delay caused by issuing

a written warrant may be prejudicial to security--orally in

person, or by telephone or other means of communication.

Requirements for written warrants

(2) If a questioning warrant is issued by means of a written document,

the warrant must specify:

(a) that the warrant authorises the things mentioned in

subsection 34BD(1); and

(b) which of the things mentioned in section 34BE are authorised

by the warrant (if any); and

Requirements for oral warrants

(3) If a questioning warrant is issued orally, the Director-General must

cause a written record of the warrant, that includes the matters

mentioned in subsection (2), to be made as soon as practicable, and

no later than 48 hours after the warrant is issued.

Duration of warrant

(4) A questioning warrant may remain in force for a period of no more

than 28 days, although the Attorney-General may revoke the

warrant before the period has expired.

Issue of further warrants not prevented

(5) Subsection (4) does not prevent the issue of any further warrant.

Written warrants and records not legislative instruments

(6) The following are not legislative instruments:

(a) a document referred to in paragraph (1)(a);

(b) a written record referred to in subsection (3).

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34BG Variation of questioning warrant

Request for variation

(1) The Attorney-General may, on request by the Director-General,

vary a questioning warrant.

(2) The request may be made:

(a) in writing; or

(b) if the Director-General reasonably believes that the delay

caused by making a written request may be prejudicial to

security--orally in person, or by telephone or other means of

communication.

(3) The request must include the facts and other grounds on which the

Director-General considers it necessary that the warrant should be

varied.

Requirements for oral requests

(4) If a request under subsection (1) is to be made orally, the

Director-General must, before or as soon as practicable after the

request is made, notify the Inspector-General of Intelligence and

Security that the request will be or has been made.

(5) If a request under subsection (1) is made orally, the

Director-General must:

(a) make a written record of the request that includes:

(i) the day and time the request is made; and

(ii) the reasons why the Director-General believes that the

delay caused by making a written request may be

prejudicial to security; and

(iii) the matter mentioned in subsection (3); and

(iv) whether the request is to vary the warrant to include an

immediate appearance requirement; and

(v) whether the request is to vary the warrant to authorise

the apprehension of the subject of the warrant; and

(vi) any other matter the Director-General considers

relevant; and

(b) as soon as practicable, and no later than 48 hours after the

request is made, provide the written record to:

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(i) the Attorney-General; and

(ii) the Inspector-General of Intelligence and Security.

Issue of variation

(6) The variation may be issued:

(a) by means of a written document signed by the

Attorney-General; or

(b) if the Attorney-General is satisfied that there are reasonable

grounds on which to believe that the delay caused by issuing

a written variation may be prejudicial to security--orally in

person, or by telephone or other means of communication.

(7) If the variation is issued orally, the Director-General must cause a

written record of the variation to be made as soon as practicable,

and no later than 48 hours after the variation is issued.

Limits on variation

(8) If the variation extends, or further extends, the period during which

the warrant is in force, the total period during which the warrant is

in force must not exceed 28 days.

Warrant may be varied more than once

(9) A questioning warrant may be varied more than once under this

section.

Written variations and records not legislative instruments

(10) The following are not legislative instruments:

(a) a document referred to in paragraph (6)(a);

(b) a written record referred to in subsection (7).

34BH Notification requirements in relation to questioning warrant

(1) This section applies if the Attorney-General issues a questioning

warrant.

(2) The Director-General must cause the subject of the warrant to be

given written notice of:

(a) the warrant; and

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(b) the place where the subject is required to appear before a

prescribed authority for questioning under the warrant; and

(i) if the warrant includes an immediate appearance

requirement--the fact that the subject must appear

before the prescribed authority for questioning under the

warrant immediately after the subject is given notice of

the requirement under this section; or

(ii) otherwise--the day and time when the subject is

required to appear before the prescribed authority for

questioning under the warrant; and

(d) the fact that the subject is able to contact a lawyer in

accordance with section 34F; and

(e) if the warrant is a minor questioning warrant--the fact that:

(i) the subject may request that a minor's representative for

the subject be present during the questioning; and

(ii) the subject may be questioned only in the presence of a

minor's representative for the subject; and

(f) the subject's obligations under sections 34GD and 34GF; and

(g) the subject's right to make a complaint orally or in writing to:

(i) in relation to the Organisation--the Inspector-General

of Intelligence and Security under the

Inspector-General of Intelligence and Security Act

1986

; or

(ii) in relation to the Australian Federal Police--the

Ombudsman under the

Ombudsman Act 1976

; or

(iii) in relation to the police force or police service of a State

or Territory--a complaints agency of the State or

Territory concerned; and

(h) the fact that the subject may seek from a federal court a

remedy relating to the warrant or the treatment of the subject

in connection with the warrant.

(3) If the warrant is varied before the subject is given notice of the

warrant in accordance with this section, the Director-General must

cause the subject to be given written notice of:

(a) the warrant as varied; and

(b) the matters mentioned in paragraphs (2)(b) to (h).

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(4) If:

(a) the warrant is varied after the subject is given notice of the

warrant in accordance with this section; and

(b) the variation may affect the subject's obligations under the

warrant or the information provided in the notice;

the Director-General must, as soon as practicable, cause the subject

to be given written notice of:

(d) the effect of the variation on the subject's obligations under

the warrant.

Note:

For example, if the warrant is varied to include an immediate

appearance requirement, the Director-General must cause the subject

to be given written notice of the fact that the subject must appear

before the prescribed authority immediately after the notice is given.

(5) If the warrant is revoked after the subject is given notice of the

warrant in accordance with this section, the Director-General must,

as soon as practicable, cause the subject to be given written notice

of:

(a) the revocation; and

(b) the fact that the subject is no longer required to appear before

a prescribed authority for questioning under the warrant; and

(d) the subject's right to contact a lawyer in relation to the

warrant at any time.

Subdivision C--Apprehension and search powers etc.

34C Police officer may apprehend subject of questioning warrant in

certain circumstances

Apprehension where authorised by warrant

(1) If a questioning warrant authorises the apprehension of the subject

of the warrant, a police officer may apprehend the subject in order

to immediately bring the subject before a prescribed authority for

questioning under the warrant.

Note 1:

The Attorney-General may only issue a questioning warrant that

authorises the apprehension of the subject of the warrant if:

(a) the warrant includes an immediate appearance requirement; and

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(b) the Attorney-General is satisfied of certain matters.

See subsection 34BE(2).

Note 2:

A police officer's power to apprehend the subject of a questioning

warrant under this subsection ends when the subject appears before a

prescribed authority for questioning under the warrant.

Apprehension where certain representations made

(2) If:

(a) a questioning warrant includes an immediate appearance

requirement; and

(b) the warrant does not authorise the apprehension of the

subject of the warrant; and

accordance with section 34BH, the subject makes a

representation that the subject intends to:

(i) alert a person involved in an activity prejudicial to

security that the activity is being investigated; or

(ii) not appear before the prescribed authority; or

(iii) 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 in accordance

with the warrant to produce;

a police officer may apprehend the subject in order to immediately

bring the subject before a prescribed authority for questioning

under the warrant.

Note:

A police officer's power to apprehend the subject of a questioning

warrant under this subsection ends when the subject appears before a

prescribed authority for questioning under the warrant.

Apprehension where subject fails to appear

(3) If the subject of a questioning warrant fails to appear before a

prescribed authority as required by:

(a) the warrant; or

(b) a direction given by the prescribed authority under

subsection 34DE(1);

a police officer may apprehend the subject in order to immediately

bring the subject before the prescribed authority for questioning

under the warrant.

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Note:

A police officer's power to apprehend the subject of a questioning

warrant under this subsection ends when the subject appears before a

prescribed authority for questioning under the warrant.

Definitions

(4) In this section,

representation

includes:

(a) an express or implied representation (whether oral or in

writing); and

(b) a representation that could be inferred from conduct; and

communicated to or seen by another person; and

(d) a representation that for any reason is not communicated.

34CA Entering premises to apprehend subject

If:

(a) a police officer is authorised under section 34C to apprehend

the subject of a questioning warrant; and

(b) the officer believes on reasonable grounds that the subject is

on particular premises;

the officer may enter the premises, using such force as is necessary

and reasonable in the circumstances, at any time of the day or

night, for the purpose of searching the premises for the subject or

apprehending the subject.

34CB Communications while apprehended

(1) The subject of a questioning warrant who is apprehended under

this Division is not permitted to contact, and may be prevented

from contacting, any person at any time during the period:

(a) beginning when the subject is apprehended; and

(b) ending when the subject appears before a prescribed

authority for questioning under the warrant.

(2) However:

(a) the subject may contact any or all of the following:

(i) a lawyer;

(ii) if the warrant is a minor questioning warrant--a minor's

representative for the subject;

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(iii) any other person the subject is permitted to contact by

the warrant, or by a direction given under

paragraph 34DE(1)(b); and

(b) subsection (1) does not affect the following:

(i) the operation of the

Inspector-General of Intelligence

and Security Act 1986

in relation to contact between the

subject and the Inspector-General of Intelligence and

Security;

(ii) the operation of section 7 of the

Ombudsman Act 1976

in relation to contact between the subject and the

Ombudsman in respect of a complaint, or proposed

complaint, about the Australian Federal Police;

(iii) the subject'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

must, if requested by the subject, give the subject facilities

for the following:

(i) contacting a person mentioned in paragraph (a);

(ii) contacting the Inspector-General of Intelligence and

Security;

(iii) contacting the Ombudsman to make a complaint under

section 7 of the

Ombudsman Act 1976

;

(iv) contacting the Commissioner of the Australian Federal

Police to give information under section 40SA of the

Australian Federal Police Act 1979

;

(v) contacting a complaints agency to make a complaint of

the kind mentioned in subparagraph (b)(iii).

Note:

For the purposes of paragraph (a), section 34F provides for the subject

of a questioning warrant to contact a lawyer for the purpose of

obtaining legal advice in relation to the warrant and, if the warrant is a

minor questioning warrant, to also contact a minor's representative.

34CC Power to conduct search of apprehended subject of

questioning warrant

(1) This section applies if:

(a) a questioning warrant is in force; and

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(b) the subject of the warrant is apprehended under this Division

in connection with the warrant.

Power to conduct search

(2) A police officer may conduct an ordinary search or a frisk search

of the subject at any time during the period:

(a) beginning when the subject is apprehended; and

(b) ending when the subject appears before a prescribed

authority for questioning under the warrant.

(3) 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.

Records or other things found during search

(4) If:

(a) a record or other thing is found during a search of the subject

of a questioning warrant under this section; and

(b) the record or other thing is:

(i) a seizable item; or

(ii) a communication device;

the record or other thing may be seized under this subsection by the

police officer conducting the search.

(5) If:

(a) a record or other thing is found during a search of the subject

of a questioning warrant under this section; and

(b) the police officer conducting the search reasonably believes

that the record or other thing is relevant to the collection of

intelligence that is important in relation to:

(i) if the warrant is an adult questioning warrant--an adult

questioning matter; or

(ii) if the warrant is a minor questioning warrant--a minor

questioning matter; and

thing;

the record or other thing may be seized under this subsection by the

officer.

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(6) Despite subsection (4), a seizable item or a communication device

is taken to have been seized under subsection (5) if:

(a) the item or device is found during a search of the subject of a

questioning warrant under this section; and

(b) the item or device is seized by the police officer conducting

the search; and

relation to the item or device.

34CD Use of force in apprehending or searching subject

A police officer may use such force as is necessary and reasonable

in:

(a) apprehending the subject of a questioning warrant in

accordance with section 34C, or preventing the escape of the

subject from such apprehension; or

(b) conducting an ordinary search or a frisk search of the subject

of a questioning warrant under subsection 34CC(2).

34CE Power to remove, retain and copy materials etc.

Powers of the Organisation

(1) In addition to the things that the Organisation is authorised to do

that are specified in a questioning warrant, the Organisation is also

authorised:

(a) to remove and retain any record or other thing produced by

the subject of the warrant while before a prescribed authority

for questioning under the warrant, or to retain any record or

other thing seized under subsection 34CC(5), for the

purposes of:

(i) inspecting or examining the record or thing; and

(ii) in the case of a record--making copies or transcripts of

the record; and

(b) to do any other thing reasonably incidental to:

(i) the things mentioned in paragraph (a); or

(ii) any of the things that the Organisation is authorised to

do that are specified in the warrant.

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(2) A record or other thing retained as mentioned in paragraph (1)(a)

may be retained:

(a) if returning the record or other thing would be prejudicial to

security--only until returning the record or other thing would

no longer be prejudicial to security; and

(b) otherwise--for only such time as is reasonable.

Powers of police officers

(3) A seizable item seized by a police officer under

subsection 34CC(4) may be retained for such time as is reasonable.

(4) A communication device seized by a police officer under

subsection 34CC(4) may be retained:

(a) if returning the device would be prejudicial to security--only

until returning the device would no longer be prejudicial to

security; and

(b) otherwise--for only such time as the prescribed authority

before whom the subject is appearing for questioning under

the warrant considers reasonable.

Subdivision D--Matters relating to questioning under

questioning warrants

34D Screening of persons

(1) This section applies in relation to a person who is seeking to enter

a place (the

questioning place

) where the subject of a questioning

warrant is appearing, or is due to appear, before a prescribed

authority for questioning under the warrant.

Note:

This section applies in relation to any person who is seeking to enter a

questioning place, including the subject.

Persons may be screened or searched

(2) A police officer may request the person to do any of the following:

(a) undergo a screening procedure at a place;

(b) produce a thing in the person's possession for inspection or

examination, including anything worn or carried by the

person that can be conveniently removed by the person;

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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.

(3) An ordinary search or a frisk search under paragraph (2)(c) must, if

practicable, be conducted by a police officer of the same sex as the

person.

(4) A police officer may, for the purposes of subsection (2), request

the person to remove a thing in the person's possession, including

anything worn or carried by the person that can be conveniently

removed by the person.

Certain items may be retained

(5) A police officer may request the person to give a dangerous item or

a communication device to the officer for safekeeping while the

questioning is being conducted.

(6) A dangerous item given to a police officer under subsection (5)

may be retained by the officer for such time as is reasonable.

(7) A communication device given to a police officer under

subsection (5) by the subject may be retained by the officer:

(a) if returning the device would be prejudicial to security--only

until returning the device would no longer be prejudicial to

security; and

(b) otherwise--for only such time as the prescribed authority

before whom the subject is appearing for questioning under

the warrant considers reasonable.

(8) A communication device given to a police officer under

subsection (5) by a person other than the subject must be returned

to the person if:

(a) the person requests the officer to return the device; and

(b) at the time of the request, the person has left the questioning

place.

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Person may be requested to answer questions about certain things

(9) If a thing is:

(a) in the possession or control of a person while the person

undergoes a screening procedure in accordance with

paragraph (2)(a); or

(b) produced by a person for inspection or examination in

accordance with paragraph (2)(b); or

(d) given by a person to a police officer for safekeeping in

accordance with subsection (5);

a police officer may request the person to answer reasonable

questions about the thing.

Power to refuse entry

(10) A police officer may refuse a person entry to a questioning place if:

(a) a police officer makes a request of the person under this

section; and

(b) the person does not comply with the request.

Note:

If:

(a) a person is the subject of a questioning warrant; and

(b) the person is refused entry under this subsection to the

questioning place;

the person will be taken to have failed to appear for questioning under

the warrant: see subsection 34GD(2).

Exceptions

(11) This section does not apply in relation to:

(a) a communication device that is in the possession of, or being

used lawfully by:

(i) an ASIO employee; or

(ii) an ASIO affiliate; or

(iii) a police officer; or

(b) a dangerous item that is in the lawful possession of a police

officer.

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34DA Prohibition on possessing certain things during questioning

(1) This section applies in relation to a person who is at a place where

the subject of a questioning warrant is appearing before a

prescribed authority for questioning under the warrant.

Note:

This section applies in relation to any person who is at the place,

including the subject.

(2) The person must not possess either of the following while the

subject is appearing for questioning:

(a) a communication device;

(b) a dangerous item.

(3) However, this section does not apply in relation to:

(a) a communication device that is in the possession of:

(i) an ASIO employee; or

(ii) an ASIO affiliate; or

(iii) a police officer; or

(b) a dangerous item that is in the lawful possession of a police

officer; or

possession of the subject, if:

(i) the device or item is seized under section 34CC, or

retained under section 34CE or 34D; and

(ii) the device or item is returned to the subject for the

purpose of complying with a request made by the

Organisation in accordance with the warrant; and

(iii) the possession is solely for that purpose.

34DB Questioning under a questioning warrant

(1) The questioning of a person under a questioning warrant may be:

(a) pre-charge questioning or post-charge questioning; or

(b) pre-confiscation application questioning or post-confiscation

application questioning.

(2) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if:

(a) paragraph (1)(a) were, by express provision, confined to

pre-charge questioning; or

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(b) paragraph (1)(b) were, by express provision, confined to

pre-confiscation application questioning.

34DC Prescribed authority must explain certain matters

(1) When the subject of a questioning warrant first appears before a

prescribed authority for questioning under the warrant, the

prescribed authority must inform the subject of the following:

(a) what the warrant authorises the Organisation to do;

(b) the period for which the warrant is in force;

during the period in which the warrant is in force;

(d) the role of the prescribed authority, and in particular that the

role includes:

(i) supervising the questioning of the subject; and

(ii) giving appropriate directions in relation to the subject;

(e) that the subject is able to contact a lawyer in accordance with

section 34F;

(f) the effect of section 34GD (including the fact that the section

creates offences);

(g) the effect of section 34GF (including the fact that the section

creates offences and allows the prescribed authority to permit

certain disclosures to be made);

(h) the subject's right to apply to the Attorney-General for the

provision of financial assistance under section 34JE;

(i) the subject's right to make a complaint orally or in writing to:

(i) in relation to the Organisation--the Inspector-General

of Intelligence and Security under the

Inspector-General of Intelligence and Security Act

1986

; or

(ii) in relation to the Australian Federal Police--the

Ombudsman under the

Ombudsman Act 1976

; or

(iii) in relation to the police force or police service of a State

or Territory--a complaints agency of the State or

Territory concerned;

(j) the subject's right to give information orally or in writing,

under Division 2 of Part V of the

Australian Federal Police

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Act 1979

, to a person referred to in subsection 40SA(1) of

that Act in relation to the Australian Federal Police;

(k) the fact that the subject may seek from a federal court a

remedy relating to the warrant or the treatment of the subject

in connection with the warrant.

Note:

Under sections 34DN and 34DO, if an interpreter is required, the

prescribed authority must defer informing the subject under this

section until the interpreter is present.

(2) To avoid doubt, subsection (1) does not apply to a prescribed

authority if the subject has previously appeared before another

prescribed authority for questioning under the warrant.

(3) The prescribed authority must also:

(a) inform the subject of the reason for the presence of each

person who is present at any time during the questioning; and

(b) at least once in every 24 hour period during which

questioning of the subject under the warrant occurs, inform

the subject of the fact that the subject may seek from a

federal court a remedy relating to the warrant or the treatment

of the subject in connection with the warrant.

Note:

For example, the subject may be able to apply to the Federal Court of

Australia under subsection 39B(1) of the

Judiciary Act 1903

, or the

High Court under paragraph 75(v) of the Constitution, for a remedy in

relation to the warrant or the treatment of the subject in connection

with the warrant.

(4) Despite paragraph (3)(a):

(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 subject about the reason for a

particular person's presence need only be complied with once

(even if that particular person subsequently returns to the

questioning).

34DD Additional requirements for prescribed authorities in relation

to minor questioning warrants

(1) This section applies if the subject of a minor questioning warrant

appears before a prescribed authority for questioning under the

warrant.

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(2) In addition to the requirements of section 34DC, the prescribed

authority must, as soon as practicable:

(a) inform the subject that a lawyer for the subject must be

present during the questioning; and

(b) direct any person proposing to question the subject under the

warrant that questioning is to occur only when the lawyer is

present; and

representative (a

non-lawyer representative

) for the subject

who is not also a lawyer for the subject be present during the

questioning; and

(d) if the subject requests that a non-lawyer representative be

present during the questioning:

(i) if the warrant includes an immediate appearance

requirement--give a direction under paragraphs

34FD(2)(c) and (d); or

(ii) if the warrant does not include an immediate appearance

requirement--give a direction under

paragraph 34FD(3)(c) or (d); and

(e) if the subject voluntarily chooses not to request that a

non-lawyer representative be present during the

questioning--give a direction under paragraph 34FD(2)(c) or

subsection 34FD(4), as the case requires; and

(f) direct any person proposing to question the subject under the

warrant that questioning is to occur only for continuous

periods of 2 hours or less, separated by breaks directed by the

prescribed authority.

Note 1:

The prescribed authority may set breaks between periods of

questioning by giving appropriate directions under

paragraph 34DE(1)(e) for the subject's further appearance before the

prescribed authority for questioning.

Note 2:

Under sections 34DN and 34DO, if an interpreter is required, the

prescribed authority must defer informing the subject under this

section until the interpreter is present.

(3) To avoid doubt, paragraph (2)(f) does not affect the operation of

section 34DJ (permitted questioning time) or 34DK (extra

permitted questioning time if interpreter present).

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34DE Directions while subject is before prescribed authority for

questioning

(1) At any time when the subject of a questioning warrant is appearing

before a prescribed authority for questioning under the warrant, the

prescribed authority may, either orally or in writing, give any of

the following directions:

(a) a direction in accordance with subsection 34GF(6) permitting

the subject to disclose specified information to a specified

person;

(b) a direction permitting the subject to contact an identified

person (including a person identified by reference to the fact

that the person has a particular legal or familial relationship

with the subject) or any person, and to disclose information

other than specified information while in contact with that

person;

that a specified lawyer must be present during the

questioning;

(d) a direction to defer questioning of the subject under the

warrant;

(e) a direction for the subject's further appearance before the

prescribed authority for questioning under the warrant, or for

the subject to be excused or released from further attendance

at questioning.

Note:

A questioning warrant may be varied to require the subject's further

appearance before a prescribed authority at an earlier day and time

than that specified in a direction given under this subsection: see

subsection 34BE(5).

(2) However, the prescribed authority must not give a direction that is

inconsistent with the warrant unless:

(a) the prescribed authority:

(i) has been informed under section 34DM of a concern of

the Inspector-General of Intelligence and Security; and

(ii) is satisfied that giving the direction is necessary to

address the concern satisfactorily; or

(b) the direction has been approved, in writing, by the

Attorney-General.

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(3) If, at any time when the subject of a questioning warrant is

appearing before a prescribed authority for questioning under the

warrant:

(a) a record or other thing is in the possession or control of a

police officer because of the operation of section 34CC,

34CE or 34D; and

(b) a person exercising authority under the warrant requests that

the record or thing be returned to the subject for the purpose

of enabling the subject to comply with a request (the

warrant

request

) made by the Organisation in accordance with the

warrant;

the prescribed authority must give a direction that the record or

thing be given to the subject for only such time as the prescribed

authority considers reasonable to enable the subject to comply with

the warrant request.

(4) If a prescribed authority gives a direction under subsection (1) or

(3), the prescribed authority may vary or revoke the direction.

34DF Directions in relation to confidentiality

Prohibition or limitation on use or disclosure

(1) A prescribed authority must, in writing, give a direction that

questioning material:

(a) must not be used or disclosed; or

(b) may only be used by, or disclosed to, specified persons in

specified ways or on specified conditions;

if the prescribed authority is satisfied that the failure to give such a

direction:

(d) would reasonably be expected to prejudice the fair trial of the

subject for the material, if the subject has been charged with

a related offence or such a charge is imminent.

(2) A prescribed authority may give a direction under subsection (1) in

relation to questioning material at any time when the subject for

the material has not been excused or released from further

attendance at questioning.

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(3) A direction given under subsection (1) by a prescribed authority in

relation to questioning material may be varied or revoked, in

writing, by:

(a) the prescribed authority; or

(b) if the subject for the material has been excused or released

from further attendance at questioning--the

Director-General.

(4) However, the direction cannot be varied or revoked if the

prescribed authority or the Director-General (as the case requires)

is satisfied that the variation or revocation:

(a) might prejudice a person's safety; or

(b) would reasonably be expected to prejudice the fair trial of the

subject for the material, if the subject has been charged with

a related offence or such a charge is imminent.

Court certificate in relation to questioning material in respect of

which a direction has been given

(5) If:

(a) a person has been charged with an offence before a federal

court or a court of a State or Territory; and

(b) the court considers that it may be desirable in the interests of

justice that particular questioning material, in respect of

which a prescribed authority has given a direction under

subsection (1), be made available to the person or to a lawyer

representing the person;

the court may give to the Director-General a certificate to that

effect. If the court does so, the Director-General must make the

questioning material available to the court.

(6) If:

(a) the Director-General makes questioning material available to

a court under subsection (5); and

(b) the court, after examining the questioning material, is

satisfied that the interests of justice so require;

the court may make the questioning material available to the

person charged with the offence concerned or to a lawyer

representing the person.

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34DG Direction that persons under 14 not be questioned

If:

(a) the subject of a questioning warrant appears before a

prescribed authority for questioning under the warrant; and

(b) the prescribed authority is satisfied on reasonable grounds

that the subject is under 14 years old;

the prescribed authority must, as soon as practicable, give a

direction that the person is not to be questioned.

34DH Other matters relating to the functions and powers of

prescribed authorities

(1) A direction given by a prescribed authority has effect, and may be

implemented or enforced, according to its terms.

Note:

A prescribed authority must not give a direction that is inconsistent

with a questioning warrant, except in limited circumstances: see

subsection 34DE(2).

(2) A prescribed authority is not subject to direction by the

Director-General or the Attorney-General in relation to the

performance of the prescribed authority's functions or the exercise

of the prescribed authority's powers (including the making of a

direction), other than in relation to the approval of a direction by

the Attorney-General under paragraph 34DE(2)(b).

Note:

A prescribed authority must not give a direction that is inconsistent

with a questioning warrant, except in limited circumstances: see

subsection 34DE(2).

(3) To avoid doubt, a direction given by a prescribed authority cannot

be varied or revoked by the Director-General or the

Attorney-General, other than in accordance with

subsection 34BE(5) or 34DF(3).

34DI Complaints while appearing before prescribed authority for

questioning

If:

(a) the subject of a questioning warrant is appearing before a

prescribed authority for questioning under the warrant; and

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(b) the subject informs the prescribed authority that the subject

wants:

(i) to make a complaint of a kind referred to in

paragraph 34DC(1)(i); or

(ii) to give information of the kind referred to in

paragraph 34DC(1)(j); and

the information; and

(d) the prescribed authority gives a direction under

paragraph 34DE(1)(d) deferring questioning of the subject

under the warrant;

a person exercising authority under the warrant must give the

subject facilities for making the complaint or giving the

information.

34DJ Permitted questioning time

(1) This section applies if an interpreter is not present in accordance

with section 34DN or 34DO while the subject of a questioning

warrant is appearing before a prescribed authority for questioning

under the warrant.

Note:

Section 34DK applies if an interpreter is present at any time during the

questioning.

Time for questioning

(2) The subject of a questioning warrant must not be questioned under

the warrant by a person exercising authority under the warrant for

longer than the permitted questioning period.

(3) For the purposes of subsection (2), the

permitted questioning

period

is:

(a) 8 hours; or

(b) if a prescribed authority before whom the subject is being

questioned has extended the period in accordance with

subsection (4) or (5)--that longer period.

Note:

The subject of a questioning warrant may be questioned for a longer

period of time if an interpreter is required: see section 34DK.

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Extension of time for questioning

(4) If:

(a) the subject has been questioned under the warrant for a total

of less than 8 hours; and

(b) the prescribed authority before whom the subject is being

questioned is satisfied of the matters in subsection (7);

the prescribed authority may, just before the end of the 8 hours,

extend the permitted questioning period to 16 hours.

(5) If:

(a) the subject has been questioned under the warrant for a total

of more than 8 hours and less than 16 hours; and

(b) the prescribed authority before whom the subject is being

questioned is satisfied of the matters in subsection (7);

the prescribed authority may, just before the end of the 16 hours,

extend the permitted questioning period to 24 hours.

(6) A person exercising authority under a questioning warrant may

request the prescribed authority to extend the permitted questioning

period. The request may be made in the absence of:

(a) the subject of the warrant; and

(b) a lawyer for the subject; and

representative for the subject; and

(d) any person the subject is permitted to contact.

(7) The prescribed authority may extend the permitted questioning

period only if the prescribed authority is satisfied that:

(a) the questioning of the subject was conducted properly and

without delay; and

(b) there are reasonable grounds for believing that the extension

will substantially assist the collection of intelligence that is

important in relation to:

(i) if the warrant is an adult questioning warrant--an adult

questioning matter; or

(ii) if the warrant is a minor questioning warrant--a minor

questioning matter.

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(8) The prescribed authority may revoke the extension of the permitted

questioning period. Revocation of the extension does not affect the

legality of anything done in relation to the subject under the

warrant before the revocation.

34DK Extra permitted questioning time if interpreter present

(1) This section applies if, in accordance with section 34DN or 34DO,

an interpreter is present at any time while the subject of a

questioning warrant is appearing before a prescribed authority for

questioning under the warrant.

(2) The subject must not be questioned under the warrant by a person

exercising authority under the warrant for longer than the extra

permitted questioning period.

(3) For the purposes of subsection (2), the

extra permitted questioning

period

is:

(a) 24 hours; or

(b) if a prescribed authority before whom the subject is being

questioned has extended the period in accordance with

subsection (4) or (5)--that longer period.

Extension of extra time for questioning

(4) If:

(a) the subject has been questioned under the warrant for a total

of less than 24 hours; and

(b) the prescribed authority before whom the subject is being

questioned is satisfied of the matters in subsection (7);

the prescribed authority may, just before the end of the 24 hours,

extend the extra permitted questioning period to 32 hours.

(5) If:

(a) the subject has been questioned under the warrant for a total

of more than 24 hours and less than 32 hours; and

(b) the prescribed authority before whom the subject is being

questioned is satisfied of the matters in subsection (7);

the prescribed authority may, just before the end of the 32 hours,

extend the extra permitted questioning period to 40 hours.

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(6) A person exercising authority under a questioning warrant may

request the prescribed authority to extend the extra permitted

questioning period. The request may be made in the absence of:

(a) the subject of the warrant; and

(b) a lawyer for the subject; and

representative for the subject; and

(d) any person the subject is permitted to contact.

(7) The prescribed authority may extend the extra permitted

questioning period only if the prescribed authority is satisfied that:

(a) the questioning of the subject was conducted properly and

without delay; and

(b) there are reasonable grounds for believing that the extension

will substantially assist the collection of intelligence that is

important in relation to:

(i) if the warrant is an adult questioning warrant--an adult

questioning matter; or

(ii) if the warrant is a minor questioning warrant--a minor

questioning matter.

(8) The prescribed authority may revoke the extension of the extra

permitted questioning period. Revocation of the extension does not

affect the legality of anything done in relation to the subject under

the warrant before the revocation.

34DL Time that is not questioning time

For the purposes of working out the time that the subject of a

questioning warrant has been questioned under the warrant,

disregard the following times:

(a) the time taken by a prescribed authority to inform the subject

of the matters referred to in section 34DC and, if applicable,

section 34DD;

(b) any time during which a prescribed authority has deferred

questioning of the subject under the warrant to allow:

(i) the change of a thing in equipment being used to record

the questioning of the subject; or

(ii) the subject to make a complaint of the kind referred to

in paragraph 34DC(1)(i); or

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(iii) the subject to give information of the kind referred to in

paragraph 34DC(1)(j); or

(iv) the subject to contact a lawyer or another person as

provided by this Division; or

(v) a lawyer to be present in accordance with a direction

given under paragraph 34FB(2)(a) or 34FC(2)(a) or

(3)(b); or

(vi) the subject to receive medical attention; or

(vii) the subject to engage in religious practices in

accordance with the subject's religion; or

(viii) the subject to rest or recuperate;

questioning of the subject under the warrant as mentioned in

paragraph 34DM(4)(a);

(d) any other time determined by a prescribed authority before

whom the subject appears for questioning.

34DM Suspension of questioning etc. in response to concern of

Inspector-General of Intelligence and Security

(1) This section applies if the Inspector-General of Intelligence and

Security is concerned about impropriety or illegality in connection

with the exercise or purported exercise of powers under this

Division in relation to the subject of a questioning warrant.

Note:

For example, the Inspector-General may be concerned because the

Inspector-General has been present at a questioning in accordance

with section 34JB.

(2) When the subject is appearing before a prescribed authority for

questioning under the warrant, the Inspector-General:

(a) may inform the prescribed authority of the

Inspector-General's concern; and

(b) must, as soon as practicable after informing the prescribed

authority, inform the Director-General of the concern.

(3) The prescribed authority must consider the Inspector-General's

concern.

(4) The prescribed authority may give a direction suspending:

(a) questioning of the subject under the warrant; or

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(b) the exercise of another power under this Division that is

specified in the direction;

until the prescribed authority is satisfied that the

Inspector-General's concern has been satisfactorily addressed.

34DN Interpreter provided at request of prescribed authority

(1) This section applies if:

(a) the subject of a questioning warrant appears before a

prescribed authority for questioning under the warrant; and

(b) the prescribed authority believes on reasonable grounds that

the subject is unable, because of inadequate knowledge of the

English language or a physical disability, to communicate

with reasonable fluency in that language.

(2) A person exercising authority under the warrant must arrange for

the presence of an interpreter.

(3) The prescribed authority must:

(a) defer informing the subject under section 34DC and, if

applicable, section 34DD until the interpreter is present; and

(b) give a direction under paragraph 34DE(1)(d) deferring

questioning of the subject under the warrant until the

interpreter is present.

34DO Interpreter provided at request of subject

(1) This section applies if the subject of a questioning warrant

appearing before a prescribed authority under the warrant requests

the presence of an interpreter.

(2) The prescribed authority must determine that an interpreter is to be

present unless the prescribed authority believes on reasonable

grounds that the subject:

(a) has an adequate knowledge of the English language to

communicate with reasonable fluency in that language; or

(b) is physically able to communicate with reasonable fluency in

that language.

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(3) A person exercising authority under the warrant must arrange for

the presence of an interpreter if the prescribed authority makes a

determination under subsection (2).

(4) If questioning under the warrant has not commenced and the

prescribed authority makes a determination under subsection (2):

(a) the prescribed authority must defer informing the subject

under section 34DC and, if applicable, section 34DD until an

interpreter is present; and

(b) a person exercising authority under the warrant must defer

the questioning until an interpreter is present.

(5) If questioning under the warrant commences before the subject

requests the presence of an interpreter and the prescribed authority

makes a determination under subsection (2):

(a) a person exercising authority under the warrant must defer

any further questioning until an interpreter is present; and

(b) when an interpreter is present, the prescribed authority must

again inform the subject of anything of which the subject was

previously informed under section 34DC or 34DD.

34DP Video recording of procedures

(1) The Director-General must ensure that video recordings are made

of the following:

(a) the appearance of the subject of a questioning warrant before

a prescribed authority for questioning under the warrant;

(b) any other matter or thing in relation to the warrant that the

prescribed authority directs is to be video recorded.

(2) The Director-General must ensure that, if practicable, video

recordings are made of any complaint made by the subject of a

questioning warrant when the subject is not appearing before a

prescribed authority for questioning under the warrant.

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Subdivision E--Particular uses or disclosures of questioning

material and derivative material

34E Obtaining derivative material

(1) An entity mentioned in subsection (3), that may lawfully use or

disclose questioning material, may lawfully use or disclose the

material for the purpose of obtaining derivative material if the use

or disclosure is:

(a) a pre-charge use or disclosure of the material; or

(b) a post-charge use or disclosure of pre-charge questioning

material; or

(d) a pre-confiscation application use or disclosure of the

material; or

(e) a post-confiscation application use or disclosure of

pre-confiscation application questioning material; or

(f) a post-confiscation application use or disclosure of

post-confiscation application questioning material.

(2) Subsection (1) has effect subject to:

(a) any direction given under subsection 34DF(1); and

(b) paragraph 34EA(1)(b), in the case of a disclosure to a

prosecutor of the subject for the material.

Subsection (1) does not, by implication, limit the use or disclosure

of the questioning material for any other purpose.

(3) The entities are as follows:

(a) the Director-General;

(b) an entrusted person;

material committed an offence against a law of the

Commonwealth or of a State or Territory;

(d) a prosecutor of the subject for the material;

(e) a prosecuting authority;

(f) a proceeds of crime authority;

(g) any other person or body lawfully in possession of the

questioning material.

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(4) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if:

(a) one or more of paragraphs (1)(b), (c), (e) and (f) had not been

enacted; or

(b) subsection (3) were, by express provision, confined to

persons or bodies other than either or both of the following:

(i) prosecutors of the subject for the material;

(ii) proceeds of crime authorities.

34EA Disclosing questioning material to prosecutors of the subject

(1) A person or body, that may lawfully disclose questioning material,

may lawfully disclose the material to a prosecutor of the subject for

the material if the disclosure is:

(a) a pre-charge disclosure of the material; or

(b) a post-charge disclosure of:

(i) pre-charge questioning material; or

(ii) post-charge questioning material;

under an order made under subsection 34EC(1).

(2) Subsection (1) has effect subject to any direction given under

subsection 34DF(1), in the case of a pre-charge disclosure of the

material.

Note:

In the case of a post-charge disclosure, the court may have regard to

any direction given under subsection 34DF(1) in deciding whether to

make an order under subsection 34EC(1).

(3) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if paragraph (1)(b), or either of its

subparagraphs, had not been enacted.

34EB Disclosing derivative material to prosecutors of the subject

(1) A person or body, that may lawfully disclose derivative material,

may lawfully disclose the material to a prosecutor of the subject for

the material if the disclosure is:

(a) a pre-charge disclosure of the material; or

(b) a post-charge disclosure of derivative material obtained from

pre-charge questioning material (whether from a pre-charge

use of that questioning material or otherwise); or

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post-charge questioning material, and the disclosure is under

an order made under subsection 34EC(1).

(2) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if paragraph (1)(b) or (c), or both, had

not been enacted.

34EC Court's powers to order disclosure and to ensure a fair trial

Court may order that material may be disclosed

(1) A court may, on application or on its own initiative, order that

questioning material or derivative material may be disclosed to

prosecutors of the subject for the material if the court is satisfied

that the disclosure is required:

(a) in the interests of justice; and

(b) despite any direction given under subsection 34DF(1).

The order may specify the prosecutors (by any means), and the

uses to which the prosecutors may put the material.

(2) Subsection (1) applies to:

(a) if the subject has been charged with a related offence before a

federal court or a court of a State or Territory--that court; or

(b) otherwise--a federal court (other than the Family Court of

Australia) or a court of a State or Territory.

Court's powers to ensure the subject's fair trial

(3) This Subdivision does not, by implication, restrict a court's power

to make any orders necessary to ensure that the fair trial of a

subject for questioning material or derivative material is not

prejudiced by the possession or use of the material by a prosecutor

of the subject.

(4) However, a person's trial for:

(a) an offence against a law of the Commonwealth or of a

Territory; or

(b) an offence against a law of a State that has a federal aspect

(within the meaning of the

Australian Crime Commission Act

2002

);

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is not unfair merely because the person has been the subject of a

questioning warrant. This applies whether the person became the

subject:

charge was imminent; or

(d) after being charged with the offence or after such a charge

was imminent.

(5) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if subsection (4), or paragraph (4)(d),

had not been enacted.

34ED Certain material may always be disclosed to prosecutors of

the subject

(1) A person or body, that may lawfully disclose questioning material

of a kind covered by paragraph 34AB(1)(c) or (d), may lawfully

disclose the material to a prosecutor of the subject for the material.

(2) A person or body, that may lawfully disclose questioning material

or derivative material, may lawfully disclose the material to a

prosecutor of the subject for the material if the subject is suspected

of, or has been charged with:

(a) an offence against this Division in relation to the relevant

questioning warrant; or

(b) an offence against section 137.1 or 137.2 of the

Criminal

Code

(about false or misleading information or documents)

in relation to the relevant questioning warrant.

(3) Subsection (1) or (2) has effect subject to any direction given under

subsection 34DF(1).

(4) Subsection (1) or (2) applies whether the disclosure is:

(a) a pre-charge disclosure of the material; or

(b) a post-charge disclosure of:

(i) pre-charge questioning material; or

(ii) derivative material obtained from pre-charge

questioning material (whether from a pre-charge use of

the questioning material or otherwise); or

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(i) post-charge questioning material; or

(ii) derivative material obtained from post-charge

questioning material;

and whether or not an order has been made under

subsection 34EC(1).

(5) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if paragraph (4)(b) or (c), or both, had

not been enacted.

34EE Other matters about prosecutors and subjects

(1) If:

(a) a person lawfully possesses questioning material or

derivative material; and

(b) the person is a prosecutor of the subject for the material;

the person may use that material for purposes that include:

(d) prosecuting the subject.

This use of the questioning material is subject to

subsection 34GD(6) and any direction given under

subsection 34DF(1).

(2) If material is lawfully in the possession of a prosecutor of the

subject for the material, the fact that the material is questioning

material or derivative material does not prevent it from being

admissible in evidence against the subject in a criminal proceeding.

Note:

The material may be inadmissible for other reasons (for example,

because of subsection 34GD(6)).

(3) This Subdivision does not, by implication, restrict the use of

questioning material or derivative material by, or the disclosure of

that material to:

(a) a prosecuting authority; or

(b) an individual employed or engaged by a prosecuting

authority;

who is not a prosecutor of the subject for the material.

(4) This section has effect subject to any other law of the

Commonwealth, or a law of a State or a Territory.

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34EF Proceeds of crime authorities and questioning under a

questioning warrant

(1) A person or body, that may lawfully disclose questioning material

or derivative material, may lawfully disclose the material to a

proceeds of crime authority if the disclosure is:

(a) a pre-confiscation application disclosure of the material; or

(b) a post-confiscation application disclosure of:

(i) pre-confiscation application questioning material; or

(ii) derivative material obtained from pre-confiscation

application questioning material (whether from a

pre-confiscation application use of the questioning

material or otherwise); or

(i) post-confiscation application questioning material; or

(ii) derivative material obtained from post-confiscation

application questioning material.

(2) Subsection (1) has effect subject to any direction given under

subsection 34DF(1).

(3) If material is lawfully in the possession of a proceeds of crime

authority, the fact that the material is questioning material or

derivative material does not prevent it from being admissible in

evidence against the subject for the material in a confiscation

proceeding.

Note:

The material may be inadmissible for other reasons (for example,

because of subsection 34GD(6)).

(4) Subsection (3) of this section and subsection 34GD(6) do not, by

implication, restrict a court's power to make any orders necessary

to prevent prejudice to the proper administration of justice.

(5) Without limiting its effect apart from this subsection, this Act also

has the effect it would have if paragraph (1)(b) or (c), or both, had

not been enacted.

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Subdivision F----Lawyers and minor's representatives

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

representative

Right to contact lawyer or minor's representative

(1) At any time after the subject of a questioning warrant is given

notice of the warrant in accordance with subsection 34BH(2) or

(3), the subject may:

(a) contact a lawyer for the purpose of obtaining legal advice in

relation to the warrant; and

(b) if the warrant is a minor questioning warrant--contact a

minor's representative for the subject.

Limit on contacting lawyers

(2) If:

(a) the subject of a questioning warrant is appearing before a

prescribed authority for questioning under the warrant; and

(b) a lawyer for the subject is present during the questioning;

the prescribed authority may direct that the subject be prevented

from contacting another lawyer if:

appointed

lawyer

) specified in a direction given under

paragraph 34FB(2)(a) or 34FC(2)(a) or (3)(b); or

(d) the lawyer for the subject is an appointed lawyer and the

prescribed authority is satisfied that the subject has had

reasonable opportunity to contact another lawyer.

(3) If:

(a) the subject of an adult questioning warrant is appearing

before a prescribed authority for questioning under the

warrant; and

(b) a lawyer for the subject is not present during the questioning;

the prescribed authority may direct that the subject be prevented

from contacting a lawyer if the prescribed authority is satisfied that

the subject has had reasonable opportunity to contact a lawyer.

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Limit on choice of lawyer

(4) A prescribed authority may direct that the subject of a questioning

warrant be prevented from contacting a particular lawyer if the

prescribed authority is satisfied, on the basis of circumstances

relating to the lawyer, that, if the subject is permitted to contact the

lawyer:

(a) a person involved in an activity prejudicial to security may be

alerted that the activity is being investigated; or

(b) a record or other thing that the subject has been or may be

requested, in accordance with the warrant, to produce may be

destroyed, damaged or altered.

(5) To avoid doubt, subsection (4) does not prevent the subject from

choosing another lawyer to contact, but the subject may be

prevented from contacting that other lawyer under another

application of that subsection.

Effect of section

(6) This section has effect despite paragraph 34CB(2)(a).

34FA Questioning in absence of lawyer for subject

(1) The subject of a minor questioning warrant must not be questioned

under the warrant in the absence of a lawyer for the subject.

(2) The subject of an adult questioning warrant may be questioned

under the warrant in the absence of a lawyer for the subject if:

(a) the subject voluntarily chooses to be questioned in the

absence of a lawyer; or

(b) a prescribed authority gives a direction under

paragraph 34FB(3)(b) or subparagraph 34FF(7)(c)(i) in

relation to the subject.

(3) This section does not permit questioning of the subject of a

questioning warrant by a person exercising authority under the

warrant at a time when a person exercising authority under the

warrant is required by another section of this Division not to

question the subject.

Example: This section does not permit the subject of a questioning warrant to be

questioned when a person exercising authority under the warrant is

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required by section 34DN or 34DO to defer questioning because an

interpreter is not present.

34FB Directions in relation to lawyers for subjects of adult

questioning warrants

(1) This section applies in relation to the subject of an adult

questioning warrant if:

(a) a lawyer for the subject is not present while the subject is

appearing before a prescribed authority for questioning under

the warrant; and

(b) the subject requests at any time that a lawyer for the subject

be present during the questioning.

If warrant includes immediate appearance requirement

(2) If the warrant includes an immediate appearance requirement, the

prescribed authority must, either orally or in writing:

(a) give a direction that:

(i) a specified person (the

appointed lawyer

) be appointed

as the lawyer for the subject; and

(ii) the appointed lawyer be present during the questioning;

and

(iii) the subject be questioned in the presence of the

appointed lawyer; and

(b) give a direction that a person exercising authority under the

warrant give the subject facilities for contacting a lawyer (a

lawyer of choice

) other than the appointed lawyer.

If warrant does not include immediate appearance requirement

(3) If the warrant does not include an immediate appearance

requirement, the prescribed authority must, either orally or in

writing:

(a) both:

(i) give a direction under paragraph 34DE(1)(d) deferring

questioning of the subject for such time as the

prescribed authority considers reasonable to enable a

lawyer for the subject to be present during the

questioning; and

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(ii) give a direction that a person exercising authority under

the warrant give the subject facilities for contacting a

lawyer of choice; or

(b) give a direction that the subject may be questioned in the

absence of a lawyer for the subject, if:

(i) the prescribed authority is satisfied that such time as is

reasonable to enable a lawyer for the subject to be

present during the questioning has passed; and

(ii) a lawyer for the subject is not present during the

questioning.

When lawyer of choice is present

(4) If:

(a) a direction under paragraph (2)(a) is in force in relation to the

appointed lawyer for the subject of an adult questioning

warrant; and

(b) both the appointed lawyer and a lawyer of choice are present

during the questioning;

the prescribed authority must, either orally or in writing:

questioning of the subject for such time as the prescribed

authority considers reasonable to enable:

(i) the appointed lawyer to brief the lawyer of choice; and

(ii) the lawyer of choice to provide advice to the subject;

and

(d) revoke the direction under paragraph (2)(a).

If subject chooses to be questioned in absence of lawyer

(5) If a direction under paragraph (2)(a) is in force in relation to the

appointed lawyer for the subject of an adult questioning warrant,

the direction is revoked if the subject voluntarily chooses to be

questioned under the warrant in the absence of a lawyer.

34FC Directions in relation to lawyers for subjects of minor

questioning warrants

(1) This section applies in relation to the subject of a minor

questioning warrant if a lawyer for the subject is not present while

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the subject is appearing before a prescribed authority for

questioning under the warrant.

If warrant includes immediate appearance requirement

(2) If the warrant includes an immediate appearance requirement, the

prescribed authority must, either orally or in writing:

(a) give a direction that:

(i) a specified person (the

appointed lawyer

) be appointed

as the lawyer for the subject; and

(ii) the appointed lawyer be present during the questioning;

and

(iii) the subject be questioned in the presence of the

appointed lawyer; and

(b) give a direction that a person exercising authority under the

warrant give the subject facilities for contacting a lawyer (a

lawyer of choice

) other than the appointed lawyer.

If warrant does not include immediate appearance requirement

(3) If the warrant does not include an immediate appearance

requirement, the prescribed authority must, either orally or in

writing:

(a) both:

(i) give a direction under paragraph 34DE(1)(d) deferring

questioning of the subject for such time as the

prescribed authority considers reasonable to enable a

lawyer for the subject to be present during the

questioning; and

(ii) give a direction that a person exercising authority under

the warrant give the subject facilities for contacting a

lawyer; or

(b) if the prescribed authority is satisfied that such time as is

reasonable to enable a lawyer for the subject to be present

during the questioning has passed--give a direction that:

(i) a specified person (the

appointed lawyer

) be appointed

as the lawyer for the subject; and

(ii) the appointed lawyer be present during the questioning;

and

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(iii) the subject be questioned in the presence of the

appointed lawyer.

When lawyer of choice is present

(4) If:

(a) a direction under paragraph (2)(a) or (3)(b) is in force in

relation to the appointed lawyer for the subject of a minor

questioning warrant; and

(b) both the appointed lawyer and a lawyer of choice are present

during the questioning;

the prescribed authority must, either orally or in writing:

questioning of the subject for such time as the prescribed

authority considers reasonable to enable:

(i) the appointed lawyer to brief the lawyer of choice; and

(ii) the lawyer of choice to provide advice to the subject;

and

(d) revoke the direction under paragraph (2)(a) or (3)(b) (as the

case requires).

34FD Directions in relation to minor's representatives

(1) This section applies if:

(a) the subject of a minor questioning warrant is appearing

before a prescribed authority for questioning under the

warrant; and

(b) a minor's representative (a

non-lawyer representative

) for

the subject, who is not also a lawyer for the subject, is not

present.

If warrant includes immediate appearance requirement

(2) If:

(a) the warrant includes an immediate appearance requirement;

and

(b) a lawyer for the subject is present during the questioning;

the prescribed authority must, either orally or in writing:

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warrant in the absence of a non-lawyer representative; and

(d) if the subject requests that a non-lawyer representative be

present during the questioning--give a direction that the

subject must be permitted to contact a non-lawyer

representative.

Note 1:

The subject of a minor questioning warrant may only be questioned if

a lawyer for the subject is present: see subsection 34FA(1).

Note 2:

In the absence of a non-lawyer representative, the lawyer for the

subject is also the minor's representative for the subject.

If warrant does not include immediate appearance requirement

(3) If:

(a) the warrant does not include an immediate appearance

requirement; and

(b) the subject requests that a non-lawyer representative be

present during the questioning;

the prescribed authority must, either orally or in writing:

questioning of the subject for such time as the prescribed

authority considers reasonable to enable:

(i) the subject to contact a non-lawyer representative; and

(ii) a non-lawyer representative to be present during the

questioning; or

(d) give a direction that the subject may be questioned under the

warrant in the absence of a non-lawyer representative, if:

(i) the prescribed authority is satisfied that such time as is

reasonable to enable a non-lawyer representative to be

present during the questioning has passed; and

(ii) a lawyer for the subject is present during the

questioning.

Note:

In the absence of a non-lawyer representative, the lawyer for the

subject is also the minor's representative for the subject.

(4) If:

(a) the warrant does not include an immediate appearance

requirement; and

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(b) the subject voluntarily chooses not to request that a

non-lawyer representative be present during the questioning;

and

the prescribed authority must, either orally or in writing, give a

direction that the subject may be questioned under the warrant in

the absence of a non-lawyer representative.

Note:

In the absence of a non-lawyer representative, the lawyer for the

subject is also the minor's representative for the subject.

When non-lawyer representative is present

(5) A direction under paragraph (2)(c) or (3)(d) or subsection (4) in

relation to the subject of a minor questioning warrant ceases to

have effect if:

(a) the subject contacts a non-lawyer representative; and

(b) the non-lawyer representative is present during the

questioning.

34FE Lawyer may request copy of warrant

(1) This section applies in relation to a lawyer who is acting for the

subject of a questioning warrant in connection with the warrant.

(2) Subject to subsection (4), a person exercising authority under the

warrant must, if requested to do so by the lawyer, give the lawyer:

(a) if the warrant is issued in writing--a copy of the warrant; or

(b) if the warrant is issued orally--a copy of the written record

of the warrant made in accordance with subsection 34BF(3).

(3) Subject to subsection (4), if the warrant is varied, a person

exercising authority under the warrant must, if requested to do so

by the lawyer, give the lawyer:

(a) if the variation is issued in writing--a copy of the variation;

(b) if the variation is issued orally--a copy of the written record

of the variation made in accordance with

subsection 34BG(7).

(4) For the purposes of subsections (2) and (3), the Director-General

may make such deletions from a document mentioned in

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subsection (5) as the Director-General considers necessary in order

to avoid prejudice to security, the defence of the Commonwealth,

the conduct of the Commonwealth's international affairs or the

privacy of individuals.

(5) The documents covered by this subsection are as follows:

(a) a questioning warrant;

(b) a written record of a questioning warrant;

(d) a written record of a variation of a questioning warrant.

(6) Subsections (2) and (3) do not:

(a) require more than one person to give the lawyer a copy of the

warrant, the written record of the warrant, the variation or the

written record of the variation (as the case requires); or

(b) entitle the lawyer to be given a copy of, or see, a document

other than the warrant, the written record of the warrant, the

variation or the written record of the variation (as the case

requires).

34FF Involvement of lawyers

(1) This section applies if:

(a) the subject of a questioning warrant is appearing before a

prescribed authority for questioning under the warrant; and

(b) a lawyer for the subject is present during the questioning.

Breaks in questioning

(2) The prescribed authority must provide a reasonable opportunity for

the lawyer to advise the subject during breaks in the questioning.

Note:

The prescribed authority may set breaks between periods of

questioning by giving directions under paragraph 34DE(1)(e) for the

subject's further appearance before the prescribed authority for

questioning. Paragraphs 34DL(b) to (d) also contain examples of

procedural breaks in questioning.

(3) The lawyer must not intervene in the questioning of the subject or

address the prescribed authority before whom the subject is being

questioned, except:

(a) to request clarification of an ambiguous question; or

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(b) to request a break in the questioning of the subject in order to

provide advice to the subject.

(4) During a break in the questioning of the subject, the lawyer 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 paragraph 34DE(1)(e) for the

subject's further appearance before the prescribed authority for

questioning. Paragraphs 34DL(b) to (d) also contain examples of

procedural breaks in questioning.

(5) The prescribed authority must approve or refuse a request under

subsection (3) or (4).

Removal of lawyer for disrupting questioning

(6) If the prescribed authority considers the lawyer's conduct is unduly

disrupting the questioning of the subject, the prescribed authority

may direct a person exercising authority under the warrant to

remove the lawyer from the place where the questioning is

occurring.

(7) If the prescribed authority directs the removal of the lawyer:

(a) the prescribed authority must also direct that the subject may

contact another lawyer; and

(b) if the subject chooses to contact another lawyer, the

prescribed authority must give a direction under

paragraph 34DE(1)(d) deferring questioning of the subject

for such time as the prescribed authority considers reasonable

to enable a lawyer for the subject to be present; and

(i) the time mentioned in paragraph (b) has passed and a

lawyer for the subject is not present; or

(ii) the subject chooses not to contact another lawyer;

the prescribed authority must:

(iii) if the warrant is an adult questioning warrant--give a

direction that the subject may be questioned in the

absence of a lawyer for the subject; and

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(iv) if the warrant is minor questioning warrant--give a

direction under paragraph 34FC(2)(a) or (3)(b) (as the

case requires).

If lawyer is also a minor's representative for the subject

(8) If section 34FG also applies to the lawyer in another capacity in

relation to the subject, this section does not apply to conduct of the

lawyer in that other capacity.

34FG Conduct of minor's representatives

(1) This section applies in relation to a minor's representative for the

subject of a minor questioning warrant who either:

(a) is, or has been, contacted by the subject as permitted by the

warrant or a direction given by a prescribed authority; or

(b) is, or has been, present when the subject was before a

prescribed authority for questioning under the warrant.

(2) If a prescribed authority considers that the minor's representative's

conduct is unduly disrupting questioning of the subject, the

prescribed authority may, subject to subsection (3), direct a person

exercising authority under the warrant to remove the minor's

representative from the place where the questioning is occurring.

(3) If the prescribed authority directs the removal of the minor's

representative:

(a) the prescribed authority must inform the subject that:

(i) the subject may request that another minor's

representative (a

replacement representative

) for the

subject be present during the questioning; and

(ii) the subject may contact a replacement representative

request that the replacement representative be present

during the questioning; and

(b) the prescribed authority must direct that:

(i) the subject may contact a replacement representative to

request that the replacement representative be present

during the questioning; and

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(ii) a person exercising authority under the warrant must

give the subject facilities for contacting a replacement

representative.

(4) If:

(a) the prescribed authority informs the subject under

subsection (3); and

(b) a lawyer for the subject is present during the questioning; and

than the lawyer) be present during the questioning;

the prescribed authority must:

(d) if the warrant includes an immediate appearance

requirement--give a direction that the subject may be

questioned under the warrant in the absence of the

replacement representative; and

(e) if the warrant does not include an immediate appearance

requirement--do either or both of the following:

(i) give a direction under paragraph 34DE(1)(d) deferring

questioning of the subject for such time as the

prescribed authority considers reasonable to enable the

replacement representative to be present during the

questioning;

(ii) if the prescribed authority is satisfied that such time as

is reasonable to enable the replacement representative to

be present during the questioning has passed--give a

direction that the subject may be questioned under the

warrant in the absence of the replacement

representative.

Note:

If a prescribed authority gives a direction under this subsection that

the subject of a minor questioning warrant be questioned in the

absence of a replacement representative, the lawyer for the subject is

also the minor's representative for the subject until the replacement

representative is present.

(5) If:

(a) the prescribed authority informs the subject under

subsection (3); and

(b) a lawyer for the subject is present during the questioning; and

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replacement representative (other than the lawyer) be present

during the questioning;

the prescribed authority must give a direction that the subject may

be questioned under the warrant in the absence of the replacement

representative.

Note:

If a prescribed authority gives a direction under this subsection that

the subject of a minor questioning warrant be questioned in the

absence of a replacement representative, the lawyer for the subject is

also the minor's representative for the subject.

34FH Lawyers' access to information for proceedings relating to

warrant

The regulations may prohibit or regulate access to information,

access to which is otherwise controlled or limited on security

grounds, by lawyers acting for a person in connection with

proceedings for a remedy relating to:

(a) a questioning warrant in relation to the person; or

(b) the treatment of the person in connection with such a

warrant.

34FI Law relating to legal professional privilege not affected

To avoid doubt, this Division does not affect the law relating to

legal professional privilege.

Subdivision G--Offences

34G Surrender of travel documents by person in relation to whom

questioning warrant is sought

(1) If:

(a) the Director-General has requested the Attorney-General to

issue a questioning warrant in relation to a person; and

(b) the Director-General believes on reasonable grounds that:

(i) the person may leave Australia; and

(ii) the person's leaving would be likely to impact on the

person's ability to comply with the questioning warrant;

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the Director-General may cause the person to be notified of the

request and of the effect of subsection (2).

(2) The person must, as soon as practicable after being notified in

accordance with subsection (1), deliver to an enforcement officer:

(a) all Australian travel documents that:

(i) have been issued to the person; and

(ii) are in the person's possession or control; and

(b) all passports or other travel documents that:

(i) have been issued to the person by or on behalf of the

government of a foreign country; and

(ii) are in the person's possession or control.

(3) A person commits an offence if:

(a) the person is notified in accordance with subsection (1); and

(b) the person fails to comply with subsection (2).

Penalty: Imprisonment for 5 years.

(4) The Director-General must cause any document delivered under

subsection (2) to be returned to the person to whom it was issued

as soon as practicable after:

(a) if the Attorney-General refuses to issue a questioning warrant

in relation to the person--that refusal; or

(b) if a questioning warrant is issued in relation to the person--

the end of the period specified in the warrant as the period

during which the warrant is to be in force;

but the Director-General may cause the document to be returned to

that person earlier.

(5) Subsection (4) does not require:

(a) the return of a document during the period specified in

another warrant, issued in relation to the person under this

Division, as the period during which the other warrant is to

be in force; or

(b) the return of a document that has been cancelled.

(6) If a questioning warrant is issued in relation to the person, a person

approved under section 24 in relation to the warrant may, after a

document of the first-mentioned person is delivered under

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subsection (2) of this section and before it is returned under

subsection (4) of this section:

(a) inspect or examine the document; and

(b) make copies or transcripts of it.

(7) In this section:

enforcement officer

means any of the following:

(a) a member of the Australian Federal Police (within the

meaning of the

Australian Federal Police Act 1979

);

(b) an officer of the police force of a State or Territory;

Customs

Act 1901

34GA Person in relation to whom questioning warrant is requested

must not leave Australia without permission

(1) A person commits an offence if:

(a) the person has been notified of:

(i) the making of a request by the Director-General for a

questioning warrant in relation to the person; and

(ii) the effect of this subsection in connection with that

request; and

(b) the person leaves Australia; and

mentioned in paragraph (a), and before:

(i) if the Attorney-General refuses to issue a questioning

warrant in relation to the person--that refusal; or

(ii) if a questioning warrant is issued in relation to the

person--the end of the period specified in the warrant

as the period during which the warrant is to be in force;

and

(d) the person does not have written permission from the

Director-General to leave Australia at the time the person

leaves Australia.

Penalty: Imprisonment for 5 years.

(2) The Director-General may give written permission for a person in

relation to whom a questioning warrant is requested to leave

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Australia at a specified time. The permission may be given either

unconditionally or subject to specified conditions.

Note:

The Director-General may revoke or amend the permission: see

subsection 33(3) of the

Acts Interpretation Act 1901

(3) If a permission under subsection (2) is given subject to a condition

and the condition is not met, the permission is not in force.

34GB Surrender of travel documents by subject of questioning

warrant

(1) If:

(a) a questioning warrant is issued; and

(b) the Director-General believes on reasonable grounds that:

(i) the subject of the warrant may leave Australia; and

(ii) the subject's leaving would be likely to impact on the

subject's ability to comply with the warrant;

the Director-General may cause the subject to be notified of the

issue of the warrant and of the effect of subsection (2).

Note:

A notice of the issue of a questioning warrant under this subsection

may be given under section 34BH or otherwise.

(2) As soon as practicable after the subject is notified in accordance

with subsection (1), the subject must deliver to a person exercising

authority under the warrant:

(a) all Australian travel documents that:

(i) have been issued to the subject; and

(ii) are in the subject's possession or control; and

(b) all passports or other travel documents that:

(i) have been issued to the subject by or on behalf of the

government of a foreign country; and

(ii) are in the subject's possession or control.

(3) The subject of a questioning warrant commits an offence if:

(a) the subject is notified in accordance with subsection (1); and

(b) the subject fails to comply with subsection (2).

Penalty: Imprisonment for 5 years.

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(4) The Director-General must cause any document delivered under

subsection (2) to be returned to the subject as soon as practicable

after the end of the period specified in the warrant as the period

during which the warrant is to be in force, but may cause the

document to be returned to the subject earlier.

(5) Subsection (4) does not require:

(a) the return of a document during the period specified in

another warrant, issued in relation to the subject under this

Division, as the period during which the other warrant is to

be in force; or

(b) the return of a document that has been cancelled.

(6) After the subject of a questioning warrant delivers a document

under subsection (2) and before the document is returned under

subsection (4), a person approved under section 24 in relation to

the warrant may:

(a) inspect or examine the document; and

(b) make copies or transcripts of it.

34GC Subject of questioning warrant must not leave Australia

without permission

(1) The subject of a questioning warrant commits an offence if:

(a) the subject is notified of:

(i) the issue of the warrant; and

(ii) the effect of this subsection; and

(b) the subject leaves Australia; and

(i) after the subject is notified as mentioned in

paragraph (a); and

(ii) before the end of the period specified in the warrant as

the period during which the warrant is to be in force;

and

(d) the subject does not have written permission from the

Director-General to leave Australia at the time the subject

leaves Australia.

Note:

A notice of the issue of a questioning warrant under

subparagraph (a)(i) may be given under section 34BH or otherwise.

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Penalty: Imprisonment for 5 years.

(2) The Director-General may give written permission for the subject

of a questioning warrant to leave Australia at a specified time. The

permission may be given either unconditionally or subject to

specified conditions.

Note:

The Director-General may revoke or amend the permission: see

subsection 33(3) of the

Acts Interpretation Act 1901

(3) If a permission under subsection (2) is given subject to a condition

and the condition is not met, the permission is not in force.

34GD Giving information and producing things etc.

Failure to appear

(1) The subject of a questioning warrant commits an offence if the

subject fails to appear before a prescribed authority for questioning

in accordance with:

(a) the warrant; or

(b) a direction given under subsection 34DE(1).

Penalty: Imprisonment for 5 years.

(2) For the purposes of subsection (1), the subject of a questioning

warrant is taken to fail to appear before a prescribed authority for

questioning if, under subsection 34D(10), the subject is refused

entry to the place where the questioning is to occur.

Note:

Subsection 34D(10) provides for a police officer to refuse entry to a

person if the person does not comply with a request made by the

officer under section 34D.

Failure to give information etc.

(3) The subject of a questioning warrant commits an offence if:

(a) the subject is appearing before a prescribed authority for

questioning under the warrant; and

(b) the Organisation requests, in accordance with the warrant, the

subject to:

(i) give any information; or

(ii) produce any record or other thing; and

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Penalty: Imprisonment for 5 years.

(4) Subsection (3) does not apply if the subject:

(a) does not have the information; or

(b) does not have possession or control of the record or thing.

Note:

A defendant bears an evidential burden in relation to a matter in this

subsection: see subsection 13.3(3) of the

Criminal Code

Self-incrimination etc.

(5) The subject of a questioning warrant is not excused from:

(a) giving information; or

(b) producing a record or other thing;

that the Organisation requests, in accordance with the warrant, the

subject to give or produce, on the ground that the information, or

production of the record or thing, might tend to incriminate the

subject in relation to an offence.

(6) However:

(a) anything said by the subject, while appearing before a

prescribed authority for questioning under the warrant, to

comply with the request; and

(b) the production of a record or other thing by the subject, while

appearing before a prescribed authority for questioning under

the warrant, to comply with the request;

are not admissible in evidence against the subject in a criminal

proceeding, other than:

or thing was produced, at a time when the proceeding had not

commenced and was not imminent; or

(d) proceedings for an offence against this section; or

(e) proceedings for an offence against section 34GF; or

(f) proceedings for an offence against section 137.1 or 137.2 of

the

Criminal Code

that relates to this section.

(7) If, at general law, the subject of a questioning warrant would

otherwise be able to claim the privilege against self-exposure to a

penalty (other than an offence) in relation to giving information or

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producing a record or other thing in connection with the warrant,

the subject is not excused from giving the information or producing

the record or thing on that ground.

False or misleading statements

(8) The subject of a questioning warrant commits an offence if:

(a) the subject is appearing before a prescribed authority for

questioning under the warrant; and

(b) the Organisation requests, in accordance with the warrant, the

subject to give information; and

knowledge, false or misleading; and

(d) the statement is made in purported compliance with the

request.

Penalty: Imprisonment for 5 years.

(9) Subsection (8) does not apply if the statement is not false or

misleading in a material particular.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the

Criminal Code

Rendering records or things illegible etc.

(10) The subject of a questioning warrant commits an offence if:

(a) the subject is requested, in connection with a questioning

warrant, to produce a record or other thing; and

(b) the subject engages in conduct; and

produced, or to be produced in wholly legible or usable form.

Penalty: Imprisonment for 5 years.

34GE Offences of contravening safeguards

(1) A person commits an offence if:

(a) the person has been approved under section 24 to exercise

authority conferred by a questioning warrant; and

(b) the person exercises, or purports to exercise, the authority;

and

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or restriction in the warrant on the authority; and

(d) the person knows of the contravention.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person is a police officer; and

(b) the person engages in conduct in the exercise of, or the

purported exercise of, authority conferred by this Division;

and

(d) the person knows of the contravention.

Note:

If a police officer engaged in the conduct in the exercise of a power

otherwise than under this Division, paragraph (b) would not apply and

the officer would not commit an offence against this subsection.

Penalty: Imprisonment for 2 years.

(3) A person commits an offence if:

(a) a prescribed authority gives a direction under:

(i) subsection 34DD(2); or

(ii) paragraph 34DE(1)(b), (d) or (e); or

(iii) section 34DG; or

(iv) subsection 34DM(4); and

(b) the person is identified (whether by name, reference to a class

that includes the person or some other means) in the direction

as a person who is to implement the direction; and

(d) the conduct contravenes the direction; and

(e) the person knows of the contravention.

Penalty: Imprisonment for 2 years.

(4) A person commits an offence if:

(a) the person uses or discloses questioning material (whether or

not the person is the first to do so); and

(b) the use or disclosure contravenes a direction given under

subsection 34DF(1) about the questioning material; and

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(d) the use or disclosure is not under subsection 34DF(5) or (6)

or paragraph 34EA(1)(b).

Penalty: Imprisonment for 2 years.

(5) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes:

(i) subsection 34AG(2); or

(ii) paragraph 34CB(2)(c); or

(iii) section 34DI; or

(iv) paragraph 34DN(3)(b); or

(v) paragraph 34DO(4)(b) or (5)(a); and

Penalty: Imprisonment for 2 years.

(6) A person commits an offence if:

(a) the person has been approved under section 24 to exercise

authority conferred by a questioning warrant; and

(b) the person exercises, or purports to exercise, the authority by

questioning the subject of the warrant; and

(d) the person knows of the contravention.

Penalty: Imprisonment for 2 years.

34GF Secrecy relating to warrants and questioning

Before warrant ceases to be in force

(1) A person (the

discloser

) commits an offence if:

(a) a questioning warrant is issued; and

(b) the discloser discloses information; and

(i) the information indicates the fact that the warrant has

been issued, or a fact relating to the content of the

warrant or to the questioning or apprehension of a

person in connection with the warrant;

(ii) the information is operational information; and

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(d) if subparagraph (c)(ii) applies but subparagraph (c)(i) does

not--the discloser has the information as a direct or indirect

result of:

(i) the issue of the warrant; or

(ii) the doing of anything authorised by the warrant, by a

direction given by a prescribed authority in connection

with the warrant or by another provision of this Division

in connection with the warrant; and

(e) the disclosure occurs before the end of the period specified in

the warrant as the period for which the warrant is to be in

force; and

(f) the disclosure is not a permitted disclosure.

Penalty: Imprisonment for 5 years.

In the 2 years after warrant ceases to be in force

(2) A person (the

discloser

) commits an offence if:

(a) a questioning warrant is issued; and

(b) the discloser discloses information; and

(d) the discloser has the information as a direct or indirect result

of:

(i) the issue of the warrant; or

(ii) the doing of anything authorised by the warrant, by a

direction given by a prescribed authority in connection

with the warrant or by another provision of this Division

in connection with the warrant; and

(e) the disclosure occurs before the end of the 2 years starting at

the end of the period specified in the warrant as the period

during which the warrant is to be in force; and

(f) the disclosure is not a permitted disclosure.

Penalty: Imprisonment for 5 years.

Strict liability

(3) Strict liability applies to paragraphs (1)(c) and (2)(c) if the

discloser is:

(a) the subject of the warrant; or

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(b) a lawyer who has at any time been:

(i) present, as the lawyer for the subject of the warrant,

during the questioning of the subject under the warrant;

(ii) contacted for the purpose of the subject obtaining legal

advice in connection with the warrant; or

(iii) contacted for the purpose of the subject obtaining

representation in legal proceedings seeking a remedy

relating to the warrant or the treatment of the subject in

connection with the warrant.

Otherwise, the fault element applying to paragraphs (1)(c) and

(2)(c) is recklessness.

Note:

For strict liability, see section 6.1 of the

Criminal Code

. For

recklessness, see section 5.4 of the

Criminal Code

Extended geographical jurisdiction--category D

(4) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction--category D) applies to an offence against

subsection (1) or (2) of this section.

Definitions

(5) In this section:

operational information

means information indicating one or more

of the following:

(a) information that the Organisation has or had;

(b) a source of information (other than the subject of the warrant

mentioned in subsection (1) or (2)) that the Organisation has

or had;

permitted disclosure

means any of the following:

(a) a disclosure made by a person in the course of any of the

following:

(i) exercising a power, or performing a function or duty,

under this Act;

(ii) doing anything the person is authorised to do by a

warrant issued under this Act;

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(iii) doing anything the person is required or permitted to do

by a direction given by a prescribed authority;

(iv) exercising a power (including a power to make a

complaint or to give information), or performing a

function or duty, under the

Inspector-General of

Intelligence and Security Act 1986

, the

Ombudsman Act

1976

or Part V of the

Australian Federal Police Act

1979

;

(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;

(b) a disclosure that is:

(i) made in the course of the questioning of the subject of a

questioning warrant under the warrant; and

(ii) made by a person who is present during the questioning

when making the disclosure;

(i) obtaining legal advice in connection with a questioning

warrant; or

(ii) obtaining representation in legal proceedings seeking a

remedy relating to such a warrant or the treatment of a

person in connection with such a warrant;

(d) a disclosure for the purpose of the initiation, conduct or

conclusion (by judgment or settlement) of legal proceedings

relating to a remedy relating to a questioning warrant or the

treatment of a person in connection with such a warrant;

(e) a disclosure that is permitted by a prescribed authority to be

made;

(f) a disclosure to one or more of the following by the subject of

a minor questioning warrant, or by a minor's representative

for the subject, of information described in paragraph (1)(c)

or (2)(c) of this section in relation to the warrant:

(i) the subject;

(ii) a minor's representative for the subject;

(iii) a sibling of the subject;

(iv) a prescribed authority;

(v) a person exercising authority under the warrant;

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(vi) the Inspector-General of Intelligence and Security;

(vii) the Commonwealth Ombudsman;

(viii) a complaints agency;

(g) a disclosure for the purpose of making an application for

assistance under subsection 34JE(1);

(h) a disclosure that is permitted by the Director-General to be

made;

(i) a disclosure that is permitted by the Attorney-General to be

made;

(j) a disclosure that is prescribed by the regulations.

(6) For the purposes of paragraph (e) of the definition of

permitted

disclosure

in subsection (5), a prescribed authority may give a

direction, not inconsistent with the regulations (if any), permitting:

(a) the subject of a questioning warrant; or

(b) a lawyer for the subject of a questioning warrant; or

to disclose specified information to a specified person. The

direction may be given either unconditionally or subject to

specified conditions.

Note:

The prescribed authority may revoke or amend the direction: see

subsection 33(3) of the

Acts Interpretation Act 1901

(7) A prescribed authority may give written permission under

subsection (6):

(a) on the prescribed authority's own initiative; or

(b) on application by, or on behalf of, the person to whom the

permission relates.

(8) For the purposes of paragraph (h) of the definition of

permitted

disclosure

in subsection (5), the Director-General may give written

permission for a disclosure. The permission may be given either

unconditionally or subject to specified conditions.

Note:

The Director-General may revoke or amend the permission: see

subsection 33(3) of the

Acts Interpretation Act 1901

(9) For the purposes of paragraph (i) of the definition of

permitted

disclosure

in subsection (5), the Attorney-General may, after

obtaining advice from the Director-General, give written

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permission for a disclosure. The permission may be given either

unconditionally or subject to specified conditions.

Note:

The Attorney-General may, after obtaining advice from the

Director-General, revoke or amend the permission: see

subsection 33(3) of the

Acts Interpretation Act 1901

(10) In deciding whether to give permission to a person under

subsection (6), (8) or (9), the prescribed authority, the

Director-General or the Attorney-General (as the case requires)

must take into account:

(a) the person's family and employment interests, to the extent

that the prescribed authority, the Director-General or the

Attorney-General (as the case requires) is aware of those

interests; and

(b) the public interest; and

(d) any submissions made by the person, the person's lawyer or

the Organisation.

This subsection does not limit the matters that may be taken into

account.

(11) If a permission under subsection (6), (8) or (9) is given subject to a

condition and the condition is not met, the permission is not in

force.

(12) Regulations made for the purposes of paragraph (j) of the

definition of

permitted disclosure

in subsection (5) may prescribe a

disclosure by reference to one or more of the following:

(a) the person making the disclosure;

(b) the person to whom the disclosure is made;

(d) the purpose of the disclosure;

(e) the nature of information disclosed;

(f) an opinion of a specified person about the possible or likely

effect of the disclosure.

This subsection does not limit the way in which such regulations

may prescribe a disclosure.

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Offences apply to original and previously disclosed information

(13) To avoid doubt, subsections (1) and (2) apply whether or not the

discloser has the information that the discloser discloses as a result

of a disclosure by another person.

Relationship with other laws prohibiting disclosure

(14) This section has effect in addition to, and does not limit, other laws

of the Commonwealth that prohibit the disclosure of information.

Subdivision H--Complaints, reporting and records

34H Complaints and information about contravention of procedural

statement

(1) Contravention of the written statement of procedures in force under

section 34AF may be the subject of:

(a) a complaint to the Inspector-General of Intelligence and

Security under the

Inspector-General of Intelligence and

Security Act 1986

; or

(b) a complaint to the Ombudsman under the

Ombudsman Act

1976

; or

Australian Federal Police Act 1979

to a person referred to in

subsection 40SA(1) of that Act; or

(d) a complaint to a complaints agency in relation to the police

force or police service of the State or Territory concerned.

(2) This section does not limit:

(a) the subjects of complaint under:

(i) the

Inspector-General of Intelligence and Security Act

1986

; or

(ii) the

Ombudsman Act 1976

; or

(b) the subject of information given under Division 2 of Part V

of the

Australian Federal Police Act 1979

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34HA Providing reports to the Attorney-General

(1) The Director-General must, for each questioning warrant, give the

Attorney-General a written report that includes:

(a) details of the extent to which the action taken under the

warrant has assisted the Organisation in carrying out its

functions; and

(b) if the subject of the warrant was apprehended--details of the

apprehension, including whether any force was used in

apprehending the subject; and

was seized--details of the seizure; and

(d) if an order was made under subsection 34AAD(2) in relation

to accessing data that was held in, or accessible from, a

computer or data storage device that was seized under

subsection 34CC(4) or (5)--details of the extent to which

compliance with the order has assisted the Organisation in

carrying out its functions.

(2) The Director-General must give the report within 3 months of the

day on which the warrant ceases to be in force.

34HB Providing information to the Inspector-General

The Director-General must, as soon as practicable, give each of the

following to the Inspector-General of Intelligence and Security:

(a) for each request for a questioning warrant--a copy of the

request;

(b) for each questioning warrant--a copy of the warrant, or of

the written record of the warrant made in accordance with

subsection 34BF(3), as the case requires;

request;

(d) for each variation to a questioning warrant--a copy of the

variation, or of the written record of the variation made in

accordance with subsection 34BG(7), as the case requires;

(e) a statement containing details of any seizure or apprehension

under this Division;

(f) if the Director-General is informed of a concern of the

Inspector-General under section 34DM--a statement

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describing any action the Director-General has taken as a

result;

(g) a copy of any video recording made under section 34DP.

Note 1:

If a request for a questioning warrant is made orally, the

Director-General is also required to provide the written record of the

request as soon as practicable, and no later than 48 hours after the

request is made, to the Inspector-General: see paragraph 34B(6)(b).

Note 2:

If a request to vary a questioning warrant is made orally, the

Director-General is also required to provide the written record of the

request as soon as practicable, and no later than 48 hours after the

request is made, to the Inspector-General: see paragraph 34BG(5)(b).

34HC Destruction of certain records obtained under warrant

The Director-General must cause a record or copy to be destroyed

if:

(a) the record or copy was made because of a questioning

warrant; and

(b) the record or copy is in the possession or custody, or under

the control, of the Organisation; and

required for the purposes of the performance of functions or

exercise of powers under this Act.

Subdivision I--Miscellaneous

34J Discontinuance of action before cessation of warrant

If, before a questioning warrant ceases to be in force, the

Director-General is satisfied that the grounds on which the warrant

was issued have ceased to exist, the Director-General must:

(a) inform the Attorney-General and the Inspector-General of

Intelligence and Security accordingly; and

(b) take such steps as are necessary to ensure that action under

the warrant is discontinued.

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34JA Certain functions and powers not affected

(1) This Division does not affect a function or power of the

Inspector-General of Intelligence and Security under the

Inspector-General of Intelligence and Security Act 1986

(2) This Division does not affect a function or power of the

Ombudsman under the

Ombudsman Act 1976

in relation to the

Australian Federal Police.

(3) This Division does not affect a function or power of a person under

Part V of the

Australian Federal Police Act 1979

34JB IGIS official may be present at questioning or apprehension

To avoid doubt, for the purposes of exercising a power or

performing a function or duty as an IGIS official, an IGIS official

may be present at the questioning or apprehension of a person

under this Division.

34JC Rules of Court about proceedings connected with warrants

Rules of Court of the High Court or the Federal Court of Australia

may make special provision in relation to proceedings for a remedy

relating to a questioning warrant or the treatment of a person in

connection with such a warrant.

34JD Jurisdiction of State and Territory courts excluded

(1) A court of a State or Territory does not have jurisdiction in

proceedings for a remedy if:

(a) the remedy relates to a questioning warrant or the treatment

of a person in connection with such a warrant; and

(b) the proceedings are commenced while the warrant is in force.

(2) This section has effect despite any other law of the Commonwealth

(whether passed or made before or after the commencement of this

section).

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Schedule 1

Amendments

Part 1

No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

34JE Financial assistance

Application for assistance

(1) An application for financial assistance may be made to the

Attorney-General in respect of the subject of a questioning

warrant's appearance before a prescribed authority for questioning

under the warrant.

(2) An application under subsection (1) may be made by, or on behalf

of, the subject.

Authorisation of assistance

(3) The Attorney-General may authorise the Commonwealth to

provide the subject with financial assistance, determined by the

Attorney-General, in respect of the subject's appearance before a

prescribed authority for questioning under the warrant.

(4) Financial assistance may be given subject to such conditions (if

any) as the Attorney-General determines.

Guidelines

(5) The Attorney-General may, in writing, determine guidelines that

are to be applied in authorising the provision of assistance under

this section.

(6) Guidelines under subsection (5) are not legislative instruments.

Limit on assistance

(7) This section does not apply in relation to:

(a) any complaint the subject makes that is of the kind

mentioned in paragraph 34DC(1)(i); or

(b) any information the subject gives that is of a kind mentioned

in paragraph 34DC(1)(j); or

paragraph 34DC(1)(k).

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No. , 2020

34JF Cessation of effect of Division

This Division ceases to have effect on 7 September 2030.

11 Subsection 94(1)

Repeal the subsection, substitute:

(1) The annual report prepared by the Director-General and given to

the Minister under section 46 of the

Public Governance,

Performance and Accountability Act 2013

for a period must

include a statement of:

(a) the total number of requests made during the period under

Division 3 of Part III to the Attorney-General for the issue of

warrants under that Division (including the number of

requests made orally); and

(b) the total number of warrants issued during the period under

that Division (including the number of warrants issued

orally); and

period under that Division; and

(d) the number of hours each person appeared before a

prescribed authority for questioning under a warrant issued

during the period under that Division and the total of all

those hours for all those persons; and

(e) the number of times each prescribed authority had persons

appear for questioning before the prescribed authority under

warrants issued during the period under that Division.

12 Paragraph 94(2BC)(b)

Omit "subsection 34AAA(2)", substitute "subsection 34AAD(2)".

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Application and saving provisions

Part 2

No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

Part 2--Application and saving provisions

13 Interpretation

In this Part:

commencement day

means the day on which Part 1 of this Schedule

commences.

new law

means the

Australian Security Intelligence Organisation Act

1979

, as amended by Part 1 of this Schedule.

old law

means the

Australian Security Intelligence Organisation Act

1979

, and any instruments made under that Act (including a statement

made under section 34C of that Act), as in force immediately before the

commencement day.

14 Saving of warrants and requests under old law

Despite the repeal of Division 3 of Part III of the old law by Part 1 of

this Schedule, that Division continues to apply, as if that repeal had not

happened, in relation to:

(a) a request under section 34D or 34F of the old law that was

made, but not finally determined, before the commencement

day; and

(b) a warrant that was in force under section 34E or 34G of the

old law immediately before the commencement day.

15 Saving of appointment of prescribed authorities

(1)

This item applies to a person who was, immediately before the

commencement day, a prescribed authority under section 34B of the old

law.

(2)

The person is taken, after the commencement day, to be a prescribed

authority under section 34AD of the new law.

(3)

If:

(a) the person is a member of a court; and

(b) the person has a function, power or duty as a prescribed

authority that is neither judicial nor incidental to a judicial

function or power;

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the person has the function, power or duty in a personal capacity and

not as a court or a member of a court.

16 Saving of regulations

(1)

Regulations made for the purposes of subsection 34ZS(6) of the old law

that were in force immediately before the commencement day have

effect, on and after that day, as if they had been made for the purposes

of subsection 34GF(6) of the new law.

(2)

Regulations made for the purposes of section 34ZT of the old law that

were in force immediately before the commencement day have effect,

on and after that day, as if they had been made for the purposes of

section 34FH of the new law.

17 Requests for warrants made under old law

(1)

For the purposes of subsections 34B(3) and (4) of the new law, a

request made under section 34D or 34F of the old law in relation to a

person is taken to be a previous request for a questioning warrant made

under section 34B of the new law in relation to the person.

(2)

For the purposes of subparagraph 34B(4)(c)(ii) of the new law, a

reference to whether a person was apprehended is taken to include a

reference to whether the person was detained and, if so, the period for

which the person was detained.

18 Annual reports

(1)

Section 94 of the new law applies in relation to annual reports prepared

on or after the commencement of this item.

(2)

For the purposes of section 94 of the new law:

(a) a reference to a request made during the period under

Division 3 of Part III to the Attorney-General is taken to

include a reference to a request made during that period

under Division 3 of Part III of the old law to an issuing

authority; and

(b) a reference to a warrant issued during the period under

Division 3 of Part III is taken to include a reference to a

warrant issued during that period under Division 3 of Part III

of the old law; and

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No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

during the period under Division 3 of Part III is taken to

include a reference to the number of hours persons spent in

detention under a warrant issued during that period under

section 34G of the old law.

Schedule 1

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Part 3

Consequential amendments

Australian Security Intelligence Organisation Amendment Bill 2020

No. , 2020

Part 3--Consequential amendments

Crimes Act 1914

19 Paragraph 15YU(1)(a)

Repeal the paragraph, substitute:

(a) an offence against subsection 34GD(8) of the

Australian

Security Intelligence Organisation Act 1979

, if the

questioning warrant to which the offence relates is a

PMV-related questioning warrant; or

20 Subsection 15YU(1) (note)

Repeal the note, substitute:

Note 1:

For the definitions of

PMV-related questioning warrant

and

questioning warrant

, see subsection (5).

Note 2:

For other ancillary offences, see section 11.6 of the

Criminal Code

21 At the end of section 15YU

Add:

Definitions

(5) In this section:

PMV-related questioning warrant

means a questioning warrant

that is issued in relation to politically motivated violence (within

the meaning of the

Australian Security Intelligence Organisation

Act 1979

questioning warrant

has the same meaning as in Division 3 of

Part III of the

Australian Security Intelligence Organisation Act

1979

Criminal Code Act 1995

22 Subsection 105.25(4) of the

Criminal Code

Repeal the subsection (including the note), substitute:

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Schedule 1

Consequential amendments

Part 3

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(4) To avoid doubt, the fact that the person is released from detention

under the preventative detention order so that the person may be

questioned before a prescribed authority under the warrant does not

extend the period for which the preventative detention order

remains in force in relation to the person.

Note:

See paragraph 105.26(7)(a).

Foreign Evidence Act 1994

23 Subsection 3(1) (paragraph (a) of the definition of

designated offence

)

Repeal the paragraph, substitute:

(a) an offence against subsection 34GD(8) of the

Australian

Security Intelligence Organisation Act 1979

, if the

questioning warrant to which the offence relates is a

PMV-related questioning warrant; or

24 Subsection 3(1)

Insert:

PMV-related questioning warrant

means a questioning warrant

that is issued in relation to politically motivated violence (within

the meaning of the

Australian Security Intelligence Organisation

Act 1979

questioning warrant

has the same meaning as in Division 3 of

Part III of the

Australian Security Intelligence Organisation Act

1979

Inspector-General of Intelligence and Security Act 1986

25 Section 9B

Repeal the section, substitute:

9B Power to enter places relating to questioning warrants

For the purposes of an inspection under section 9A, the

Inspector-General may, after notifying the Director-General of

Security:

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(a) enter any place where a person is being questioned or

apprehended in relation to a warrant issued under Division 3

of Part III of the

Australian Security Intelligence

Organisation Act 1979

; and

(b) do so at any reasonable time.

26 Section 19A

Repeal the section, substitute:

19A Power to enter places relating to questioning warrants

For the purposes of an inquiry under this Act, the

Inspector-General may, after notifying the Director-General of

Security:

(a) enter any place where a person is being questioned or

apprehended in relation to a warrant issued under Division 3

of Part III of the

Australian Security Intelligence

Organisation Act 1979

; and

(b) do so at any reasonable time.

Amendments relating to compulsory questioning powers

Schedule 1

Amendments contingent on the commencement of the Federal Circuit and Family Court

of Australia (Consequential Amendments and Transitional Provisions) Act 2020

Part 4

No. , 2020

Australian Security Intelligence Organisation Amendment Bill 2020

101

Part 4--Amendments contingent on the

commencement of the Federal Circuit and

Family Court of Australia (Consequential

Amendments and Transitional Provisions)

Act 2020

Australian Security Intelligence Organisation Act 1979

27 Section 34A (paragraph (c) of the definition of

superior

court

)

Repeal the paragraph, substitute:

(Division 1); or

28 Section 34A (after paragraph (d) of the definition of

superior court

)

Insert:

(da) a State Family Court (being a court to which section 41 of the

Family Law Act 1975

applies); or

29 Paragraph 34EC(2)(b)

Omit "(other than the Family Court of Australia)", substitute "(other

than the Federal Circuit and Family Court of Australia (Division 1))".

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Schedule 2--Amendments relating to tracking

devices

Australian Security Intelligence Organisation Act 1979

1 Section 22

Insert:

authorising officer

means:

(a) the Director-General; or

(b) an ASIO employee, or an ASIO affiliate, who holds, or is

acting in, a position in the Organisation that is equivalent to

or higher than a position occupied by an SES employee.

2 Section 22 (definition of

device

)

Omit "and equipment", substitute ", equipment and any other thing

(whether tangible or intangible)".

3 Section 22

Insert:

internal authorisation

means an authorisation given under

section 26G.

4 Section 22 (definition of

track

)

Repeal the definition, substitute:

track

a person or an object means determine or monitor:

(a) the location of the person or object; or

(b) the status of the object.

5 Section 22 (definition of

tracking device

)

Repeal the definition, substitute:

tracking device

means any device capable of being used (whether

alone or in conjunction with any other device) to track a person or

an object.

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6 Section 26E (at the end of the heading)

Add "

or internal authorisation

7 Subsections 26E(1) and (2)

After "without warrant", insert "or internal authorisation".

8 After Subdivision D of Division 2 of Part III

Insert:

Subdivision DA--Use of tracking devices under internal

authorisation

26G Use of tracking devices under internal authorisation

Request for authorisation

(1) An ASIO employee or ASIO affiliate (the

applicant

) may request

an authorising officer to give an authorisation under this section in

respect of a matter (the

security matter

) that is important in

relation to security.

Note:

An authorisation given under this section cannot authorise certain

things, including the following:

(a) entering premises or interfering with the interior of a vehicle

without permission;

(b) remotely installing a tracking device;

(d) any other thing that the Organisation would otherwise need a

warrant under section 25A to do.

See section 26K.

(2) The request must be made in relation to one or both of the

following:

(a) a particular person;

(b) an object or a class of object.

(3) The request may be made:

(a) in writing; or

(b) orally in person, or by telephone or other means of

communication.

(4) A request under subsection (1) must include a statement of:

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(a) the facts and other grounds on which the applicant considers

it necessary that the authorisation should be given; and

(b) the extent to which the applicant considers that the

authorisation will substantially assist the collection of

intelligence in respect of the security matter; and

should remain in force, which must not exceed 90 days.

(5) If the request is made orally, a written record of the request that

meets the requirements of subsection (4) must be made within 48

hours after the request is made.

Test for giving of authorisation

(6) The authorising officer may give the authorisation only if the

authorising officer is satisfied that there are reasonable grounds for

believing that:

(a) if the authorisation is requested in relation to a particular

person--the use by the Organisation of a tracking device in

relation to the person will, or is likely to, substantially assist

the collection of intelligence in respect of the security matter;

and

(b) if the authorisation is requested in relation to an object or

class of object--the use by the Organisation of a tracking

device in or on that object, or an object of that class, will, or

is likely to, substantially assist the collection of intelligence

in respect of the security matter.

(7) To avoid doubt, the identity of the person referred to in

paragraph (6)(a) need not be known.

Authorisation may be subject to restrictions or conditions

(8) The authorisation is subject to any restrictions or conditions

specified in it.

26H Requirements for internal authorisations

(1) An internal authorisation may be given:

(a) in writing; or

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105

(b) orally in person, or by telephone or other means of

communication.

(2) The authorisation must specify:

(a) the matter (the

security matter

) that is important in relation to

security in respect of which the authorisation is given; and

(b) the day and time the authorisation is given; and

person--the name of the person (if known) or the fact that

the person's identity is unknown; and

(d) if the authorisation is given in relation to an object or a class

of object--the object or class of object; and

(e) the restrictions or conditions (if any) to which the

authorisation is subject.

(3) The authorisation must also specify the period for which the

authorisation is to remain in force, being a period that:

(a) the authorising officer considers reasonable and necessary in

the circumstances; and

(b) does not exceed 90 days;

but the authorising officer may revoke the authorisation before the

period has expired.

(4) Subsection (3) does not prevent the giving of further internal

authorisations in relation to the same security matter.

(5) If an internal authorisation is given orally, a written record of the

authorisation that meets the requirements of subsections (2) and (3)

must be made within 48 hours after the authorisation is given.

(6) The following are not legislative instruments:

(a) an authorisation under this section;

(b) a written record referred to in subsection (5).

26J What an internal authorisation authorises

Things that may be authorised--particular person

(1) If an internal authorisation is given in relation to a particular

person, the authorisation may authorise the Organisation to do,

without warrant, one or more of the following:

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(a) install, use or maintain one or more tracking devices to track

the person;

(b) install, use or maintain one or more tracking devices in or on

any object used or worn, or likely to be used or worn, by the

person;

the device or devices referred to in paragraph (a) or (b);

(d) enter into or onto, or alter, the object referred to in

paragraph (b);

(e) any thing reasonably necessary to conceal the fact that any

thing has been done in accordance with the authorisation;

(f) any other thing reasonably incidental to any of the above.

Note:

However, an internal authorisation cannot authorise the doing of

certain things: see section 26K.

Things that may be authorised--object or class of object

(2) If an internal authorisation is given in relation to an object or a

class of object, the authorisation may authorise the Organisation to

do, without warrant, one or more of the following:

(a) install, use or maintain one or more tracking devices in or on

the specified object, or an object of the specified class;

(b) install, use or maintain enhancement equipment in relation to

the device or devices;

of the specified class;

(d) any thing reasonably necessary to conceal the fact that any

thing has been done in accordance with the authorisation;

(e) any other thing reasonably incidental to any of the above.

Note:

However, an internal authorisation cannot authorise the doing of

certain things: see section 26K.

26K Certain acts not authorised

Neither an internal authorisation nor section 26L authorises any of

the following:

(a) the doing of any thing that would involve either or both of

the following:

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(i) entering premises without permission from the owner or

occupier of the premises;

(ii) interference with the interior of a vehicle without

permission of the person having lawful possession or

control of the vehicle;

(b) the remote installation of a tracking device or enhancement

equipment in relation to the device;

enhancement equipment in relation to the device, to listen to,

record, observe or monitor the words, sounds or signals

communicated to or by a person;

(d) the doing of any thing by the Organisation if, apart from

section 26G, the Organisation could not do the thing without

it being authorised by a warrant issued under section 25A.

Note:

Section 26L deals with the recovery of tracking devices.

26L Recovery of tracking devices

(1) If a tracking device is installed, used or maintained under an

internal authorisation, the Organisation is also authorised to do any

of the following:

(a) recover the tracking device or any enhancement equipment in

relation to the device;

(b) any thing reasonably necessary to conceal the fact that any

thing has been done under this subsection;

at the following time:

(d) at any time while the authorisation is in force or within 28

days after it ceases to be in force;

(e) if the device or equipment is not recovered at a time

mentioned in paragraph (d)--at the earliest time, after the 28

days mentioned in that paragraph, at which it is reasonably

practicable to do the things concerned.

(2) If, for the purposes of subsection (1), a tracking device or

enhancement equipment in relation to the device is not recovered

while the authorisation is in force, the Organisation is also

authorised to use the device or equipment solely for the purposes

of the location and recovery of the device or equipment.

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Note:

However, subsections (1) and (2) do not authorise the doing of a thing

that would involve a thing specified in section 26K.

26M Exercise of authority under internal authorisations

The authority conferred by an internal authorisation or by

section 26L may be exercised on behalf of the Organisation by:

(a) an ASIO employee; or

(b) an ASIO affiliate.

26N Variation of internal authorisations

Request for variation

(1) An ASIO employee or ASIO affiliate (the

applicant

) may request

an authorising officer to vary an internal authorisation.

(2) The request may be made:

(a) in writing; or

(b) orally in person, or by telephone or other means of

communication.

(3) A request under subsection (1) must include a statement of:

(a) the facts and other grounds on which the applicant considers

it necessary that the authorisation should be varied; and

(b) the extent to which the applicant considers that the

authorisation, as varied, will substantially assist the

collection of intelligence in respect of the matter (the

security

matter

) that is important in relation to security in respect of

which the authorisation is given.

(4) If the request is made orally, a written record of the request that

meets the requirements of subsection (3) must be made within 48

hours after the request is made.

Giving of variation

(5) The authorising officer may vary the authorisation only if the

authorising officer is satisfied that there are reasonable grounds for

believing that the authorisation, as varied, will substantially assist

the collection of intelligence in respect of the security matter.

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(6) If the variation extends, or further extends, the period during which

the authorisation is in force, the total period during which the

authorisation is in force must not exceed 90 days.

(7) An internal authorisation may be varied more than once under this

section.

Requirements for variations

(8) A variation under this section may be given:

(a) in writing; or

(b) orally in person, or by telephone or other means of

communication.

(9) If the variation is given orally, a written record of the variation

must be made within 48 hours after the variation is given.

Written variations and records not legislative instruments

(10) The following are not legislative instruments:

(a) a variation under this section;

(b) a written record referred to in subsection (9).

26P Discontinuance of action before expiration of internal

authorisation

(1) Subject to subsections (3) and (4), if an authorising officer is

satisfied that the grounds on which an internal authorisation was

given have ceased to exist, the authorising officer must, as soon as

practicable, take such steps as are necessary to ensure that action

under the internal authorisation is discontinued.

(2) For the purposes of subsection (1),

action under an internal

authorisation

does not include the recovery of a tracking device or

any enhancement equipment in relation to the device.

(3) If:

(a) an internal authorisation was given in relation to more than

one of the matters mentioned in subsection 26G(2); and

(b) the grounds on which the internal authorisation was given

continue to exist for at least one of those matters;

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subsection (1) applies only in relation to the matters for which the

grounds have ceased to exist.

(4) Subsection (1) does not apply to an authorising officer if another

authorising officer has already taken, or started to take, such steps

as are necessary to ensure that action under the internal

authorisation is discontinued.

26Q Register of internal authorisations

(1) The Director-General must establish and maintain a register of

requests for internal authorisations.

(2) The register may be kept by electronic means.

(3) The register must include, for each request for an internal

authorisation:

(a) the name of the person who made the request; and

(b) the matter that is important in relation to security in respect

of which the authorisation was requested; and

(d) the name of the authorising officer who gave or refused to

give the authorisation; and

(e) if the authorisation was given:

(i) the day on which the authorisation ceased to be in force;

and

(ii) whether action under the authorisation was discontinued

in accordance with section 26P, and, if so, the day on

which the action was discontinued; and

(f) the location at which any record relating to the request

(including the request) is kept by the Organisation.

Note:

For the purposes of paragraph (f), the location may be a physical

location or an electronic location.

(4) The register is not a legislative instrument.

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26R Issue of warrants for recovery of tracking devices

Request for warrant

(1) The Director-General may request the Attorney-General to issue a

warrant under this section in respect of one or more tracking

devices (the

relevant devices

), or enhancement equipment in

relation to the device or devices (the

relevant equipment

), if:

(a) the relevant devices, or relevant equipment, were:

(i) installed in or on an object by the Organisation; or

(ii) used by the Organisation; or

(iii) maintained by the Organisation; and

(b) the installation, use or maintenance was not under:

(i) a surveillance device warrant; or

(ii) a warrant issued under section 27A; or

(iii) an identified person warrant; and

either or both of the following:

(i) entering premises without permission from the owner or

occupier of the premises;

(ii) interference with the interior of a vehicle without

permission of the person having lawful possession or

control of the vehicle.

Issue of warrant

(2) The Attorney-General may issue a warrant in respect of the

relevant devices or relevant equipment if the Attorney-General is

satisfied that failure to recover the relevant devices or relevant

equipment would be prejudicial to security.

(3) In determining whether the warrant should be issued, the

Attorney-General must have regard to the risk that information

relating to the operations, capabilities or technologies of, or

methods or sources used by, the Organisation will be

communicated or made available to the public without the

authority of the Commonwealth if the warrant is not issued.

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Requirements for warrant

(4) A warrant issued under this section must:

(a) be signed by the Attorney-General; and

(b) specify:

(i) details of the relevant devices or relevant equipment;

and

(ii) the day the warrant is issued; and

(iii) the period during which the warrant is in force, which

must not be more than 90 days; and

(iv) any restrictions or conditions that the Attorney-General

considers appropriate in the circumstances; and

is necessary and reasonable to do the things authorised by the

warrant; and

(d) state whether entry to premises is authorised to be made at

any time of the day or night or during stated hours of the day

or night.

(5) Subparagraph (4)(b)(iii) does not prevent the issuing of further

warrants in relation to the same devices or equipment.

Authorisation in warrant

(6) A warrant issued under this section in respect of relevant devices

or relevant equipment authorises the Organisation to:

(a) recover the devices or equipment; and

(b) do any of the following:

(i) use the devices or equipment solely for the purposes of

locating the devices or equipment;

(ii) enter any premises where the devices or equipment are

reasonably believed to be, for the purpose of recovering

the devices or equipment;

(iii) enter any other premises for the purpose of gaining

entry to or exiting the premises referred to in

subparagraph (ii);

(iv) enter into or onto, or alter, an object for the purpose of

recovering the devices or equipment;

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(v) replace an object with an equivalent object for the

purpose of recovering the devices or equipment;

(vi) break open any thing for the purpose of recovering the

devices or equipment;

(vii) if the devices or equipment are installed in or on an

object--temporarily remove the object from any place

where it is situated for the purpose of recovering the

devices or equipment and returning the object to that

place;

(viii) use a nominal amount of electricity from any source to

power the devices or equipment;

(ix) any thing reasonably necessary to conceal the fact that

any thing has been done under the warrant;

(x) use any force against persons and things that is

necessary and reasonable to do any of the above;

(xi) any other thing reasonably incidental to any of the

above.

9 Subdivision H of Division 2 of Part III (at the end of the

heading)

Add "

and authorisations

10 Paragraph 29(1)(a)

Omit "26, 27", substitute "26, 26R, 27".

11 Paragraph 29A(3)(a)

After "section 25", insert "or 26R".

12 Subsection 30(2)

Repeal the subsection, substitute:

(2) For the purposes of paragraph (1)(b),

action under a warrant

(a) if the warrant is issued under section 26R--includes the

recovery of a tracking device or any enhancement equipment

in relation to the device; or

(b) otherwise:

(i) includes action under an authorisation given under an

identified person warrant; but

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(ii) does not include the recovery of a surveillance device or

any enhancement equipment in relation to the device.

13 Subsection 33(3)

Omit "or maintaining", substitute ", maintaining or recovering".

14 Paragraph 33(3)(a)

Omit "section 26, 27A or 27C", substitute "section 26, 26R, 27A or

27C".

15 After paragraph 33(3)(a)

Insert:

(aa) in accordance with an authorisation given under section 26G;

16 At the end of section 33

Add:

(4) Nothing in this Division makes the use, installation, maintenance

or recovery by the Organisation of a surveillance device unlawful

if the use, installation, maintenance or recovery would not

otherwise be unlawful under any other applicable law of the

Commonwealth, a State or a Territory (including the common

law).

17 After section 34A (first occurring)

Insert:

34AAB Director-General to report to Attorney-General--internal

authorisations to use tracking devices

(1) If an internal authorisation is given, the Director-General must:

(a) give the Attorney-General a written report that meets the

requirements of subsection (2); and

(b) do so within 3 months of the day on which the internal

authorisation ceases to be in force.

(2) The report must state whether the authorisation was executed, and,

if so:

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(a) give details of the extent to which any thing done in

accordance with the authorisation has assisted the

Organisation in carrying out its functions; and

(b) give details of the matter (the

security matter

) that is

important in relation to security in respect of which the

authorisation is given; and

determined by the use of a tracking device in accordance

with the authorisation; and

(d) state the period during which a tracking device was used in

accordance with the authorisation; and

(e) give details of:

(i) any object in or on which a tracking device was

installed in accordance with the authorisation; and

(ii) the premises where the object was located when the

device was installed; and

(f) give details of the compliance with the restrictions or

conditions (if any) to which the authorisation was subject;

and

(g) state whether the authorisation was varied, and, if so:

(i) the number of variations; and

(ii) the reasons for each variation.

18 After paragraph 34AA(3)(c)

Insert:

(ca) if the authorising provision is section 26G--the matters

required to be specified under subsection 26H(2);

(cb) if the warrant is issued under section 26R--the matters

required to be specified under subsection 26R(4) for the

warrant;

19 Subsection 34AA(5) (definition of

relevant authorising

provision

)

Omit "26D or 26E", substitute "26D, 26E or 26G".

20 Subsection 34AA(5) (definition of

relevant warrant

)

Omit "26, 27A", substitute "26, 26R, 27A".

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21 After subsection 94(2BC)

Insert:

(2BD) A report under subsection (1) must also include a statement of:

(a) the total number of requests made under subsection 26G(1)

during the period; and

(b) the total number of authorisations given under section 26G

during the period.

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AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2020