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AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT 1979 - SECT 34K

Directions by prescribed authority etc.

Directions relating to detention or further appearance

             (1)  At any time when a person is before a prescribed authority for questioning under a warrant issued under this Division, the authority may give any of the following directions:

                     (a)  a direction to detain the person;

                     (b)  a direction for the further detention of the person;

                     (c)  a direction about any arrangements for the person's detention;

                     (d)  a direction permitting the person to contact an identified person (including someone identified by reference to the fact that he or she has a particular legal or familial relationship with the person) or any person and to disclose information other than specified information while in contact ;

                     (e)  a direction to defer questioning of the person under the warrant;

                      (f)  a direction for the person's further appearance before the prescribed authority for questioning under the warrant;

                     (g)  a direction that the person be released from detention.

             (2)  The prescribed authority is only to give a direction that:

                     (a)  is consistent with the warrant; or

                     (b)  has been approved in writing by the Attorney-General.

However, the prescribed authority may give a direction that is not covered by paragraph (a) or (b) if he or she has been informed under section 34Q of a concern of the Inspector-General of Intelligence and Security and is satisfied that giving the direction is necessary to address the concern satisfactorily.

             (3)  To avoid doubt, the mere fact that the warrant is issued under section 34E does not prevent a direction under subsection (1) of this section from being consistent with the warrant for the purposes of subsection (2) of this section.

Note:          A warrant issued under section 34E requires a person to appear before a prescribed authority for questioning under the warrant (rather than authorising the person to be taken into custody, brought before a prescribed authority and detained).

             (4)  The prescribed authority is only to give a direction described in paragraph (1)(a) or (b) if he or she is satisfied that there are reasonable grounds for believing that, if the person is not detained, the person:

                     (a)  may alert a person involved in a terrorism offence that the offence is being investigated; or

                     (b)  may not continue to appear, or may not appear again, before a prescribed authority; or

                     (c)  may destroy, damage or alter a record or thing the person has been requested, or may be requested, in accordance with the warrant, to produce.

             (5)  A direction under subsection (1) must not result in:

                     (a)  a person being detained after the first time when either of the following events happens:

                              (i)  someone exercising authority under the warrant informs the prescribed authority before whom the person is appearing for questioning that the Organisation does not have any further request described in paragraph 34E(4)(a) or 34G(7)(a) to make of the person;

                             (ii)  section 34R prohibits anyone exercising authority under the warrant from questioning the person under the warrant; or

                     (b)  a person's detention being arranged by a person who is not a police officer.

Note:          Section 34S also provides that this Division does not authorise a person to be detained for a continuous period of more than 168 hours.

Giving effect to directions

             (6)  Directions given by a prescribed authority have effect, and may be implemented or enforced, according to their terms.

             (7)  A police officer may take a person into custody and bring him or her before a prescribed authority for questioning under a warrant issued under this Division if the person fails to appear before a prescribed authority as required by the warrant or a direction given by a prescribed authority under this section.

Direction has no effect on further warrant

             (8)  This section does not prevent any of the following occurring in relation to a person who has been released after having been detained under this Division in connection with a warrant issued under this Division:

                     (a)  an issuing authority issuing a further warrant under this Division;

                     (b)  the person being detained under this Division in connection with the further warrant.

Complaints while appearing before a prescribed authority for questioning

             (9)  If:

                     (a)  a person is appearing before a prescribed authority for questioning under a warrant issued under this Division; and

                     (b)  the person informs the prescribed authority that the person wants:

                              (i)  to make an oral or written complaint of the kind referred to in paragraph 34J(1)(e); or

                             (ii)  to give oral or written information of the kind referred to in paragraph 34J(1)(ea); and

                     (c)  the person requests facilities to make the complaint or give the information; and

                     (d)  the prescribed authority gives a direction under subsection (1) deferring questioning of the person under the warrant;

then anyone exercising authority under the warrant must give the person facilities for making the complaint or giving the information.

Communications while in custody or detention

           (10)  A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.

           (11)  However:

                     (a)  the person may contact anyone whom the warrant under which he or she is detained, or a direction described in paragraph (1)(d), permits the person to contact; and

                     (b)  subsection (10) does not affect the operation of sections 10 and 13 of the Inspector-General of Intelligence and Security Act 1986 in relation to contact between the person and the Inspector-General of Intelligence and Security; and

                     (c)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Inspector-General of Intelligence and Security to make a complaint orally under section 10 of the Inspector-General of Intelligence and Security Act 1986 if the person requests them; and

                     (d)  subsection (10) does not affect the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the person and the Ombudsman in respect of a complaint, or proposed complaint, about the Australian Federal Police; and

                     (e)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Ombudsman to make a complaint orally under section 7 of the Ombudsman Act 1976 if the person requests them; and

                      (f)  subsection (10) does not affect the operation of section 40SB of the Australian Federal Police Act 1979 in relation to contact between the person and a person referred to in paragraph 40SB(3)(b) of that Act; and

                     (g)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting the Commissioner of the Australian Federal Police to give information orally under section 40SA of the Australian Federal Police Act 1979 if the person requests them; and

                     (h)  subsection (10) does not affect the person's right to make a complaint to a complaints agency in relation to the police force or police service of the State or Territory concerned; and

                      (i)  anyone holding the person in custody or detention under this Division must give the person facilities for contacting a complaints agency to make an oral or written complaint of the kind mentioned in paragraph (h) if the person requests them.

Note:          The sections mentioned in paragraphs (11)(b), (d) and (f) give the person an entitlement to facilities for making a written complaint or for giving written information.



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