Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 233

The Australian Security Intelligence Organisation Act 1979 (the Act) establishes the Australian Security Intelligence Organisation (ASIO) as Australia's domestic intelligence agency.

Section 95 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The regulations relate to the ASIO Act as recently amended by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (the Amendment Act). The Amendment Act enhances the capacity of ASIO to combat terrorism by requiring a person, under a warrant issued by an issuing authority, to appear before a prescribed authority to provide information or produce records or things.

Division 3 of the Act gives ASIO powers with regard to the collection of intelligence that may substantially assist in the investigation of terrorism offences. Section 34D provides that ASIO may seek a warrant to question people for the purposes of investigating terrorism offences.

Subsection 34U(10) of the Act provides that the Regulations may provide for communication of information by legal advisers about the questioning or detention of persons specified in warrants issued under section 340.

Section 34VA of the Act provides that the Regulations may prohibit or regulate access to information by lawyers acting for a person in connection with proceedings for a remedy in relation to a warrant or treatment of a person in connection with a warrant issued under section 34D of the Act.

The purpose of the Regulations is to amend the Australian Security Intelligence Organization Regulations (the Principal Regulations) to provide limitations on the communication of information by legal advisers and to regulate lawyers' access to information during proceedings for a remedy relating to warrants under section 34D of the Act.

The Regulations also update the citation of the Principal Regulations by adding the year, italicising and correcting the spelling of 'Organisation'.

The Act does not specify conditions that need to be met before the power to make the Regulations may be exercised.

Details of the Regulations are set out in Attachment A.

The Regulations commence on gazettal.

Authority:        Section 95 of the Australian Security Intelligence Organisation Act 1979

Attachment A

The details of the Australian Security Intelligence Organization Amendment Regulations 2003 (No. 1) follow.

Regulation 1 cites the name of the regulations as the Australian Security Intelligence Organisation Amendment Regulations 2003 (No. 1)

Regulation 2 provides that the regulations commence on gazettal.

Regulation 3 provides that Schedule 1 amends the Australian Security Intelligence Organization Regulations.

Item 1 of Schedule 1 substitutes the name of the regulations to the Australian Security Intelligence Organisation Regulations 1980.

Item 2 of Schedule 1 inserts regulations 3A and 3B.

Regulation 3A of the Regulations prevents the prescribed authority from authorising a legal adviser to communicate information obtained during the questioning or detention of a subject where that relates to the sources or holdings of intelligence or ASIO's methods of operation.

Regulation 3A is read in conjunction with subsection 34U(7) of the Act. Under subsection 34U(7), a legal adviser commits an offence if he or she communicates information to an unauthorised third party about the subject of a warrant for questioning or detention. However, subsection 34U(9) provides that a legal adviser may communicate information to a member or Registrar of a federal court to seek a remedy relating to a warrant or the treatment of a subject under the warrant.

Regulation 3B of the Regulations controls lawyers' access to security information for proceedings for a remedy relating to a warrant or the treatment of a person in connection with a warrant. Regulation 3B provides that lawyers must not be given access to security information except where:

•       the Attorney-General's Department issues a security clearance to the lawyer; or

•       the Secretary of the Attorney-General's Department is satisfied that giving the lawyer access to the information would not be prejudicial to the interests of security.

Regulation 3B also provides that the Secretary of the Attorney-General's Department may impose conditions upon access to security information by a lawyer.