Bills Digest no. 114 2005–06
ASIO Legislation Amendment Bill 2006
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Legislation Amendment Bill 2006
Date introduced: 29 March 2006
House: House of
Commencement: The Bill's formal provisions commence on Royal
Assent. The remainder commence on the day after Royal Assent.
To respond to recommendations
made by the Parliamentary Joint Committee on ASIO, ASIS and DSD (
the PJC ).(1) The PJC recently reviewed ASIO s
terrorism-related questioning and detention powers. These powers
are found in Division 3, Part III of the Australian Security
Intelligence Organisation Act 1979 ( the ASIO Act ).
Division 3, Part III was inserted into the ASIO Act by the
Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Act 2003. The division adds to the suite
of exceptional powers that Parliament has entrusted to
A Bill to add Division 3, Part III to the ASIO Act the
Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Bill 2002 ( the 2002 Bill ) was first introduced into
the House of Representatives on 21 March 2002 as part of a package
of anti-terrorism legislation.(3) As introduced, the
2002 Bill enabled incommunicado detention of non-suspects (both
adults and children) for up to 48 hours, with potential for
indefinite renewal of the warrants under which they were held.
Detention warrants were to be issued by the Executive not a
judicial officer. Contact with a lawyer was not guaranteed. There
was no provision for the legislation to be subject to review or
sunsetting. In 2002, the PJC described the Bill as the most
controversial piece of legislation ever reviewed by the Committee.
The 2002 Bill was referred to the PJC. Together with the other
anti-terrorism bills, it was also referred to the Senate Committee
on Legal and Constitutional Affairs. Numerous legislative
amendments were recommended by both committees.(5) An
amended 2002 Bill passed the House of Representatives and was
further amended in the Senate. The House of Representatives
accepted some of the Senate s amendments but negatived others that
the Senate continued to press. As a result the Bill was laid aside
(becoming one of a number of potential double dissolution triggers
at that time).
A second Bill the Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Bill 2002 [No. 2] was introduced
into the House of Representatives on 20 March 2003.(6)
This Bill was finally passed after further amendment on 26 June
2003 and commenced operation on 23 July 2003.
During the course of its passage through Parliament, amendments
were made that, to an extent, refined and clarified the legislation
and ameliorated some of its more draconian aspects. Among other
things, amendments were made affecting the legislation s
application to children. The maximum period of detention was set at
168 hours;(7) provision was made for protocols to govern
the custody, detention and interview process; criminal penalties
were introduced for officials who breach safeguards; ASIO was
required to include warrant statistics in its annual report;
warrants are issued by judicial officers;(8) the PJC was
tasked with reviewing the legislation and Division 3, Part III was
sunsetted 3 years after its commencement. A requirement that a
subject s lawyer be approved by the Attorney-General and security
cleared was also removed.
Division 3, Part III has been amended five times since the
passage of the Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Act 2003.(9)
Major amendments were effected by the ASIO Legislation
Amendment Act 2003. This Act extended the maximum period of
questioning when a subject uses an interpreter from 24 hours to 48
hours and inserted new non-disclosure offences that operate during
the currency of a Division 3 warrant and for two years after the
warrant has expired.
With the above provisions in mind, Division 3, Part III can be
summarised as follows. It enables ASIO to obtain a warrant from an
issuing authority(10) that allows adults who are not
suspected of a terrorism offence but may have information about
terrorist activities to be questioned for extended
periods. They can be detained if there are reasonable
grounds for believing that they may alert someone involved in a
terrorism offence, may not appear for questioning or may destroy or
damage evidence. The statutory regime also applies to children aged
between 16 and 18 years if they are suspected of involvement in a
terrorism offence. Questioning takes place before a prescribed
authority who oversees the process.(11)
The regime is unprecedented in Australia and, arguably, in the
common law democracies with which Australia is often compared (the
United Kingdom, Canada, New Zealand and the United
Division 3, Part III contains oversight, complaint and other
provisions designed to protect the subjects of Division 3 warrants.
Of particular importance are provisions relating to prescribed
authorities, the Inspector-General of Intelligence and Security
(IGIS) and the Commonwealth Ombudsman. The prescribed authority
oversees questioning and the IGIS may be present at questioning and
communicate any concerns about impropriety or illegality to the
prescribed authority. Both the IGIS and the Ombudsman can
investigate complaints from the subjects of warrants. Further
details about the roles of the prescribed authority, IGIS and
Ombudsman can be found in the Main Provisions section of this
However, some Division 3, Part III protections have significant
limitations. For instance, while undergoing questioning or when in
detention a person is not assured of being able to contact a
lawyer. And even if present when questioning occurs, a lawyer is
unable to represent his or her client in any meaningful way.
Further, the subject of a warrant is liable to criminal penalties
for failing to answer questions or produce documents; neither
derivative use immunity or immunity from civil proceedings apply to
information they are compelled to give;(13) and they
face criminal penalties if they breach the non-disclosure
provisions of the legislation (for instance, if they disclose that
they are the subject of a Division 3 warrant while that warrant is
still in force).
The PJC is established under the Intelligence Services Act
2001. Its functions are set out in section 29 of that Act.
They include reviewing the administration and expenditure of
Australia s intelligence agencies,(14) reporting on
matters relating to the intelligence agencies that are referred by
the responsible Minister or either House of Parliament, reviewing
the 2002 package of anti-terrorism legislation and reviewing
Division 3, Part III. The PJC s functions do not include reviewing
the operations or operational methods of the intelligence agencies
or inquiring into individual complaints about those agencies.
At the time of its inquiry into Division 3, Part III the PJC had
seven members appointed by the Prime Minister.(15) Three
of these members came from the Senate and four from the House of
Representatives. Four members were appointed from Government ranks
and three from the Opposition. Opposition members are appointed on
the advice of the Leader of the Opposition. PJC staff are
security-cleared to Australian Secret Intelligence Service officer
The Australian Security Organisation Legislation
Amendment (Terrorism) Act 2003 requires the PJC to review the
operations, effectiveness and implications of Division 3, Part III
by 22 January 2006 and report its findings to the Attorney-General
In the course of its review, the PJC held four public hearings,
five in camera hearings and considered 113 submissions. Six of the
submissions are labelled secret, confidential or
security-in-confidence. ASIO, the Attorney-General s Department,
the Australian Federal Police (AFP) appeared at both public and in
camera hearings. Lawyers for the subjects of warrants, one issuing
authority and one prescribed authority attended in camera hearings.
The Committee did not hear evidence from any subjects of Division 3
warrants. However, it was provided with copies of video tapes and
transcripts of questioning for the first eight Division 3
warrants. The PJC s report notes that its request to see tapes
and transcripts of a further six warrants was refused.
The Committee s report was completed in November 2005. It was
tabled in the Senate on 30 November 2005 and in the House of
Representatives on 5 December 2005.
In brief, the PJC concluded that the Division 3, Part III has
been useful in monitoring people who might be inclined or induced
to participate in terrorist activities. It found that Division 3,
Part III powers had been used lawfully and administered
professionally. However, it considered that these extraordinary
powers should not be regarded as a permanent part of the Australian
legal landscape. (17) And it recommended a range of
additional measures [set out in 19 recommendations] if Division 3
of Part III of the ASIO Act is to continue to have effect beyond 23
July 2006. (18)
The Government s response to the PJC s recommendations was
tabled on 29 March 2005 during the first reading stage of the ASIO
Legislation Amendment Bill 2006. It agreed to six recommendations,
agreed in part to a further six recommendations and rejected seven
recommendations. PJC recommendations and Government responses to
them can also be broken down according to their classification in
the PJC s report:
- recommendations relating to the questioning and detention
regime 3 recommendations 1 rejected; 2 accepted
- legal representation and access to complaints
mechanisms 11 recommendations 4 accepted, 5 accepted in part,
- implications for democratic and liberal processes 4
recommendations none accepted
- continuation of the legislation 1 recommendation
accepted in part.
Given the criminal penalties that apply to breaches of the
secrecy provisions of Division 3, Part III, it is not surprising
that there is little publicly available information about how the
regime operates. Non-disclosure offences and legislation governing
the PJC s operations raised a number of issues for the Committee,
its inquiry and its reporting processes. These included:
- the dearth of publicly available information about the regime s
- whether the secrecy provisions restricted or inhibited the
evidence that could be presented to the PJC
- what information could be published by the PJC.
A Background Paper issued by the PJC listed a number of matters
the committee might wish to examine. These included how the
legislation operates, who has been subjected to ASIO s special
powers and what was achieved through their questioning, what
problems have been encountered with the legislation, what aspects
of the legislation have not been used, and what complaints have
been made about the legislation. In his submission to the PJC, Dr
Greg Carne from the University of Tasmania wrote that the effect of
the non-disclosure offences is that:
literacy about case and policy issues is
diminished and information not threatening national security is
withheld from public and professional groups necessary to make
comprehensive submissions to this inquiry.(19)
Some statistical information about warrants is published in ASIO
s annual report. Subject to the non-disclosure requirements of
Division 3, Part III comments about the operation of the regime can
be found in annual reports and other public commentary made by the
IGIS. On occasion, leaks appear to have alerted the media to
planned ASIO raids.(20)
Concerned that the non-disclosure offences in Division 3, Part
III might inhibit or prevent the subjects of warrants and their
lawyers making submissions to the Committee, the PJC sought legal
advice. That legal opinion concluded that witnesses could give
evidence to the inquiry without contravening Division 3 s secrecy
provisions and that such witnesses are protected by the
Parliamentary Privileges Act 1987.(21) As
stated above, the PJC obtained evidence from one prescribed
authority, one issuing authority and three lawyers for the subjects
of warrants as well as from ASIO, the IGIS, AFP and
Attorney-General s Department. It viewed tapes and transcripts of
questioning for the first eight Division 3 warrants.
Nevertheless, there are limits on the information that can be
made publicly available by the PJC. Subsection 20(2) of
the Intelligence Services Act 2001 requires the
Attorney-General to approve the holding of any public hearings.
Clause 6 of Schedule 1 of the Intelligence Services Act provides
that evidence or documents produced in private session cannot be
disclosed without the permission of the agency head (where the
evidence is given by a staff member of an intelligence agency) or,
in any other case, without the permission of the person who gave
the evidence or produced the document.
Further, clause 7 sets out restrictions on disclosures to
Parliament. Its effect is that PJC reports must be cleared by the
responsible Minister before they are tabled in Parliament. In the
case of the PJC s report, there were two instances where agreement
could not be reached about whether material should be omitted or
included. As a result, one sentence in the report was removed under
protest from the Committee and a table was also deleted. In the PJC
s view neither constituted a national security concern.
Aside from ASIO statistics and reporting by the IGIS, what can
be disclosed about the operation of the regime is described in
Chapter 1 of the PJC s report. At the time of the PJC s inquiry,
no-one had been detained under a Division 3 warrant and no children
aged between 16 and 18 years had been the subject of warrants. As
at August 2005, 14 questioning warrants had been issued applying to
13 subjects (one of whom was the subject of two warrants), the
total questioning time for the 14 warrants being 137 hours and 38
In all, more than 10 people may be present during questioning.
This includes ASIO officers and/or officers from the Australian
Government Solicitor s Office who conduct questioning, the
prescribed authority, IGIS, police, ASIO advisers, the subject and
their lawyer, and transcription and audio-visual service
At the time the PJC s report was written 25 people, all former
judges, had been appointed as prescribed authorities. Six issuing
authorities had been appointed. The Attorney-General had not
rejected any request that an application be made for a warrant and
no issuing authority had refused to issue a warrant.
Division 3, Part III enables the IGIS or his staff to be present
when a person is being questioned or taken into custody. The
practice of the IGIS appears to be that either he or one of his
senior staff attends on the first day of questioning. A decision is
then made about whether to attend on subsequent days. In his
submission to the PJC, the IGIS suggested a number of amendments to
Division 3, Part III but emphasised that he did not wish to convey
a negative impression of its use to date. In relation to what he
and his officers witnessed, the IGIS has said:
The subjects of the warrants have, in the
experience of this office to date, all been treated humanely (as
required by section 34J). The questioning has been conducted in an
appropriate manner and the individuals who have been the subject of
questioning have been accorded dignity and respect. On some
occasions this has been in the face of abusive or evasive comments
nonetheless professionalism was maintained by ASIO and Australian
Government Solicitor staff involved.(23)
While not disputing that their clients were treated
appropriately, lawyers who gave evidence to the PJC said they
doubted that questioning was directed at determining whether their
clients had information relevant to a terrorism offence or planned
attacks. Rather, they believed that the Division 3, Part III regime
is being used to supplement police powers made possible by the lack
of a derivative use immunity and by the presence at the questioning
of police who seemed to be investigating police, on one occasion
State police apparently concerned with a non-terrorist related
matter. (24) Other complaints made by lawyers related to
the length of questioning (despite the fact that it was within
legal limits) and inability to object to questions and adequately
represent or advise their clients. There were also some complaints
of requests for interpreters being refused.(25)
Commenting on the outcomes and usefulness of the Division 3,
Part III regime, the PJC revealed that at the time of writing 15
charges had been laid in relation to 4 people as a result of
questioning warrants being issued.(26) As stated
earlier, a table of charges laid was removed from the PJC s report
at the request of ASIO, although the PJC did not accept that the
information contained in the table constituted a national security
concern or was prejudicial to prospective trials.
This Digest examines the ASIO
Legislation Amendment Bill 2006 in the light of the PJC s
recommendations. The Main Provisions section includes commentary on
PJC recommendations that were wholly or partly accepted by the
Government. Recommendations that were rejected by the Government
are described in the Concluding Comments section.
The expression, Division 3 warrant , is used to describe
warrants issued under Division 3, Part III of the ASIO Act. The
term, section 34D warrant , is also used in the PJC s report and
submissions to the PJC inquiry.
Schedule 1 restructures most of existing
Division 3, Part III of the ASIO Act and re-numbers some
provisions. The restructure is designed to give effect to a PJC
recommendation that a clear distinction should be made between
questioning-only warrants and warrants that allow
for both questioning and detention (recommendation 2).
There appear to be few differences between existing Division 3,
Part III and Schedule 1. Some minor changes are as
- current legislation provides for a statement of procedures (or
Protocol ) that sets conditions for the treatment of
detainees.(28) The Bill makes the statement of
procedures a legislative instrument. It must be registered and
tabled in Parliament.(29) However, it is not subject to
disallowance or sunsetting (new section 34C).
- current legislation provides that the PJC must be briefed
orally or in writing about the statement of procedures whether
before or after presentation of the statement to each House of
Parliament . The Bill provides that the Director-General must brief
the PJC on the statement after it is approved by the Minister
(new subsection 34C(6)). However, it is silent
about whether the briefing needs to occur before or after the
statement is tabled in Parliament.
- Schedule 1 clarifies that a person cannot be
detained after someone exercising authority under the warrant
informs the prescribed authority that ASIO does not have any
further questions (new paragraph 34K(5)(i)).
Part 2 of Schedule 1 amends relevant references
in the ASIO Act, Crimes Act 1914 and Foreign Evidence
Act 1994 so that they reflect the changes in numbering and
terminology effected by Part 1.
Item 16 provides that Division 3, Part III as
it currently exists will continue to apply in specified
circumstances. Examples include where a request for a warrant has
been made to an issuing authority or a warrant has been issued
before the commencement of the Bill as an Act.
Items 17-20 are transitional items and provide
that existing ASIO regulations, relevant rules of court, approvals
for people to exercise authority under Division 3 warrants, and the
Protocol will continue in force when the ASIO Legislation Amendment
Bill 2006 is enacted. Item 21 is also a
transitional item. It applies to ASIO annual reports.
Schedule 2 contains the Government s responses
to the PJC s recommendations. The PJC s recommendations and the
Government s responses to them are described below.
Division 3, Part III of the ASIO Act gives a number of powers to
the police (federal, State and Territory). These powers
- power to conduct an ordinary search or a strip search of a
person detained under a warrant(30)
- the use of necessary and reasonable force when taking a person
into custody under a warrant, preventing their escape and detaining
such a person(31)
- entering premises in order to take a person into custody under
a warrant,(32) and
- making arrangements for a person taken into custody under a
warrant to be immediately brought before a prescribed authority for
Division 3, Part III allows complaints to be made to the
Commonwealth Ombudsman in relation to the actions of the AFP.
Additionally, it requires a person to be told of their right to
complain to the Commonwealth Ombudsman.(34) It also
provides that the general prohibition on contacting anyone while in
custody or detention does not apply to contact with the
In practice, roles performed by State and Territory police under
Division 3, Part III include the provision of watchhouse or
custodial services. (36) State police may also be
present during questioning.(37) However, despite the
roles that State and Territory police can and do play, there is no
statutory right of complaint to State and Territory bodies that
investigate complaints against State and Territory police.
The PJC recommended that:
an explicit right of access to the State
Ombudsman, or other relevant State body, with jurisdiction to
receive and investigate complaints against individuals about the
conduct of State police officers be provided.
The Government accepted this recommendation.
Recommendation 12 is implemented by items 4 and 14 of
Schedule 10.(39) Additionally:
- item 9 requires a prescribed authority to
inform the subject of a warrant of their right to complain to a
State or Territory agency that deals with complaints against the
- item 25 adds to the list of permitted
disclosures under Division 3. Permitted disclosures are exceptions
to the regime s secrecy obligations. The effect of item
25 is that making a complaint to a State or Territory
complaints agency and investigating that complaint will be
- item 28 makes an amendment similar to
item 25 in relation to complaints by children to
State or Territory complaints agencies and the investigation of
The PJC recommended that Division 3 be amended to achieve a
clearer understanding of the connection between the period of
detention and the allowable period of questioning
The Government accepted recommendation 3, agreeing to
amend the legislation to clarify how the time periods under each of
the warrants operate to remove any confusion between periods of
detention and questioning, and to set out how time involving
questioning or detention under the warrant is recorded.
Items 7 and 8 give effect to the Government s
As the Attorney-General s Department s submission points
The main role of the prescribed authority is to
supervise the questioning of the subject of a warrant, inform the
person of their rights, and ensure that the terms of the warrant,
the ASIO Act and the Protocol are complied with.(42)
Examples of the prescribed authority s functions and powers
- explaining the warrant to the subject of the warrant, informing
them of what the warrant authorises ASIO to do, their avenues of
complaint and judicial review, and who they are permitted to
- directing that a person be detained
- deciding that an interpreter should be provided to a person who
is appearing for questioning(44)
- deciding whether questioning is to continue under the
warrant(45) and setting breaks between periods of
- directing that a person be released from detention once further
questioning is statutorily prohibited(47)
- authorising the police to conduct a strip search on a
- providing a reasonable opportunity for a person s lawyer to
advise them during breaks in questioning,(49) and
- directing that a person s lawyer be removed if they are
The PJC recommended that:
- the supervisory role of the prescribed authority be clearly
expressed , and
- ASIO be required to provide a copy of the statement of facts
and grounds on which the warrant was issued to the prescribed
authority before questioning commences (recommendation
The Government accepted recommendation 10 in
Item 10 of Schedule
2 gives effect to the first part of
recommendation 10 by providing that the prescribed authority must
tell the person that their role includes:
- supervising the questioning of the person, and
- giving appropriate directions under new section
The second part of recommendation 10 arose from the PJC
s view that access to ASIO s statement of facts and grounds
supporting the issuing of a warrant would assist the prescribed
authority to exercise their statutory responsibilities. This
information is already made available to the issuing
authority when ASIO requests a Division 3 warrant. However,
the Government rejected the second part of recommendation
10 as inappropriate. It said that prescribed authorities have
sufficient information to fulfil their role in supervising
proceedings because they are provided with a copy of the
As stated above, the prescribed authority has general oversight
of the questioning process. Division 3, Part III also provides
additional layers of oversight and complaint mechanisms through the
IGIS and the Commonwealth Ombudsman.
The IGIS is an independent statutory authority whose
mandate includes ensuring that Australia s intelligence agencies
(including ASIO) comply with the law and Ministerial guidelines,
and act with propriety and respect for human rights.
The IGIS plays a particularly important role under Division 3,
Part III of the ASIO Act because he or she can attend questioning
sessions, communicate any concerns about impropriety or illegality
to the prescribed authority, and investigate complaints from the
subjects of warrants. Further, ASIO must provide the IGIS with
draft requests for warrants, any warrants issued, copies of any
video recordings of questioning and statements detailing any
seizures, taking into custody or detention.
As stated earlier, police (including the AFP) have a variety of
powers and functions under Division 3, Part III. A person who wants
to make a complaint about the conduct of the AFP (as distinct from
ASIO) can go to the Commonwealth Ombudsman.
Division 3, Part III currently provides that a person who is
detained under a warrant must be given facilities for
contacting the IGIS or the Ombudsman should they wish to do
so.(54) A person who is subject to a
questioning-only warrant can contact the IGIS or Ombudsman
outside the questioning procedure.
Evidence was given to the PJC that a person who had been the
subject of a questioning-only warrant had requested that
questioning cease so they could contact the IGIS but this request
was denied, as was their request for a telephone. As a result, the
PJC recommended that:
- subjects of questioning-only warrants have a clear right of
access to the IGIS or Ombudsman and be provided with reasonable
facilities to do so
- there be explicit provision for a prescribed authority to
suspend questioning to facilitate access to the IGIS or Ombudsman
The Government accepted recommendation 11. It
While there are already clear provisions in the
legislation relating to the making of complaints in the case of
detention, the Government considers that provisions could be
inserted into the ASIO Act to further clarify the ability to make
complaints. These provisions would enhance the requirements to
inform a subject of their capacity to make, and facilitate the
making of, complaints particularly in the questioning-only warrant
Item 13 of Schedule 2 provides that if a person
who is appearing for questioning before a prescribed authority
under a Division 3 warrant indicates that they want to make a
complaint to the IGIS or the Commonwealth Ombudsman and requests
facilities for making the complaint, then the prescribed authority
can defer questioning and the person must be given facilities for
making the complaint.
As things stand, a person held under a detention
warrant must be allowed to contact their lawyer of choice,
unless such contact would alert a person involved in a
terrorism offence that the offence is being investigated or would
result in records being destroyed. If a person is denied contact
with their first lawyer of choice, they must be permitted to
contact another lawyer of choice, who can be excluded on the same
grounds. If a person does not identify a lawyer of choice, there is
no requirement that one be provided for them.
If a person is the subject of a questioning-only
warrant or is the subject of a questioning-only warrant
but is later detained by order of a prescribed authority,
there is no statutory right to contact a lawyer of choice.
In its report on the 2002 Bill, the PJC
recommended that a person s lawyers should be entitled to be
present throughout questioning proceedings.(56) The PJC
considered this issue again during its 2005 review. It found no
evidence that the current practice of permitting contact with a
lawyer had resulted in difficulties or frustrated the questioning
process. The Committee also pointed to the examination regime in
the Australian Crime Commission Act 2002, which provides
that a person s lawyer cannot be excluded from proceedings. The PJC
remarked that it was not aware of ACC proceedings being frustrated
as a result. In this regard, Parliament may also wish to note the
Law Enforcement Integrity Commissioner Bill 2006, which is
currently before the House of Representatives. Like the Australian
Crime Commission, the Integrity Commissioner will be able to
exercise coercive powers. The Commissioner must allow the lawyer
for a person giving evidence to be present when evidence is
The PJC recommended that:
- a person who is the subject of a questioning-only
warrant have a statutory right to consult a lawyer of
- a lawyer be entitled to be present during the questioning
process and only be excluded where there are substantial reasons to
believe that the person or their conduct may pose a threat to
national security (recommendation 4).
The Government accepted recommendation 4 in part,
- the limitations that apply to contacting a
lawyer under a detention warrant should not apply
to a person who is the subject of a questioning-only
- imitations on contact should
apply where a person is detained or where a
person originally subject to a questioning-only warrant is
later detained by order of a prescribed authority
- there should not be any requirement for a lawyer to be
present during questioning because it might delay questioning in
the face of an imminent terrorist attack and because not all
subjects might want a lawyer present.
Item 5 of Schedule 2 provides that the
Attorney-General must ensure that a request for a
questioning-only warrant permits the person to contact a
single lawyer of choice at any time that the person is appearing
for questioning and at any time that the person is in detention. In
relation to a person in detention, contact can only occur after the
person has told the prescribed authority the identity of the lawyer
they wish to contact and a person exercising authority under the
warrant has had an opportunity to object (new subsection
Item 6 similarly amends new section
34E in relation to questioning-only warrants that are
The amendments made by items 5 and 6 are
subject to new section 34ZO (existing section
34TA) under which a person can be denied contact with their lawyer
of choice if that might alert a person involved in a terrorism
offence or result in evidence being destroyed.
Item 21 provides the prescribed authority may
prevent the lawyer for the subject of a detention warrant attending
questioning if satisfied that a person involved in terrorism may be
alerted or evidence may be destroyed.
Division 3, Part III enables lawyers to advise their clients
during breaks in questioning but prevents them taking an active
part in the questioning process except to ask for clarification of
an ambiguous question. Lawyers can be removed for unduly disrupting
the questioning procedure by order of the prescribed authority.
The PJC heard evidence that lawyers and the subjects of warrants
have been excluded when the prescribed authority is considering a
request for an extension of questioning time. The IGIS s submission
to the PJC also commented on the effects of current restrictions on
The subjects of section 34D warrants, as opposed
to their legal representatives, are able to raise questions
directly with the Prescribed Authority, but not surprisingly can
sometimes have difficulty in fully expressing their
The IGIS concluded:
I would suggest that there should be clearer
authority in the ASIO Act for legal representatives to address the
Prescribed Authority, at least on some matters: and that in
conjunction with another change [the separation of questioning time
and procedural time ] this would not risk disruption to the
The PJC recommended that the Act be amended so that individuals
can make representations through their lawyer to the prescribed
authority (recommendation 5).
The Government accepted recommendation 5 in part. It
agreed that a lawyer should be entitled to address the prescribed
authority during procedural time. However, it took the
view that lawyers should not be able to intervene during
questioning. This, said the Government, would prevent the
process becoming adversarial and ensure that questioning achieves
its aim of gathering information.
Item 24 of Schedule 2 provides
that, during breaks in questioning, a lawyer may ask to address the
prescribed authority. It is then up to the prescribed authority to
approve or refuse a request.
In general, a person who is the subject of a Division 3, Part
III warrant cannot be questioned for more than a total of 24 hours.
An exception exists if the person has an interpreter. In this case,
questioning cannot exceed a total of 48 hours. Within these limits,
questioning time can occur in blocks of up to eight hours in the
case of adults and two hours in the case of children.
The PJC recommended an amendment to clearly distinguish
procedural time from questioning time. Such an amendment, said the
- clarify that certain things eg explaining the warrant, changing
audio or video tapes or meeting the subject s religious, personal
or medical needs do not form part of questioning time
- ensure greater opportunity for lawyers to raise procedural and
substantive issues during procedural time (recommendation
The Government accepted recommendation
6. Item 17 of Schedule 2 provides
for the calculation of procedural time . This time includes time
taken to explain the warrant to the subject, any time during which
the prescribed authority has deferred questioning to enable
recording equipment to be changed or a complaint to be made; and
time that enables the subject to contact a lawyer, receive medical
attention, engage in religious practices, rest or recuperate. It
will also include any other time determined by the prescribed
A number of submissions to the PJC criticised
provisions in Division 3, Part III that enable ASIO and the AFP to
monitor a detainee s contact with their lawyer. This, it was said,
undermines lawyer-client confidentiality and affects lawyers
abilities to represent their clients.(59)
The PJC recommended that communications between
lawyers and their clients be recognised as confidential and that
adequate facilities be provided to ensure confidentiality in all
places of questioning and detention (recommendation
The Government agreed to recommendation 7 in
- agreed that the legislation should be amended to
clarify that communications between the subjects of
questioning-only warrants and their lawyers are not
required to be made in a way that can be monitored
- did not agree the amendment should apply to
communications between subjects of detention warrants and
their lawyers or to communications between lawyers and the
subjects of questioning-only warrants who are later
detained by order of a prescribed authority: This is because
there is a serious potential that disclosure of any information
could undermine the gathering of intelligence for a terrorism
Item 22 of Schedule 2 gives
effect to the Government s response.
In its submission to the PJC inquiry, the Law Institute of
Victoria commented on the importance of access to judicial review
by the subjects of Division 3 warrants:
In cases of preventive detention where detention
is ordered by the Executive and a decision rests solely with
administrative or ministerial authority alone, the most important
right is for a person to be able to challenge the lawfulness of
At present, Division 3, Part III simply requires a prescribed
authority to inform the subject of a Division 3 warrant that they
may seek from a federal court a remedy relating to the warrant or
the treatment of the person in connection with the warrant.
(62) The Law Institute of Victoria suggested that a
specific reference to a person s legal remedies be included in
Division 3, Part III and that it apply both to questioning and to
The PJC recommended that:
in the absence of separate statutory right of
judicial review, a note to s34E be adopted as a signpost to
existing legal bases for judicial review [recommendation
The Government accepted the recommendation.
Item 11 of Schedule 2 inserts a note at the end of
new section 34J of the ASIO Act.(64)
The note says that a person may be able to apply to the Federal
Court or the High Court for a remedy in relation to a warrant or
The PJC agreed with comments made by the IGIS that it is
important for the subjects of Division 3 warrants to be legally
represented because of the complexity of proceedings and the
potentially serious consequences of failure to comply with
statutory requirements. It recommended that reasonable financial
assistance for legal representation be provided automatically to
all subjects of Division 3 warrants (recommendation
The Government agreed in part. It responded:
At present all persons questioned or detained are
automatically eligible to apply for financial assistance under the
Special Circumstances Scheme of financial assistance. The
Government does not agree to automatic provision of assistance, but
is prepared to put forward an amendment to the Act to include a
statutory right for a person who is questioned under a warrant to
apply for financial assistance.(65)
Item 30, Schedule 2 enables a
person who is the subject of a warrant to apply to the Minister for
financial assistance. However, such a person will not automatically
be given reasonable financial assistance for legal
Division 3, Part III ceases operation on 23 July
2006. Provisions for review and sunsetting were inserted into
Division 3, Part III as a result of the PJC s inquiry into the
Australian 2002 Bill. In proposing a sunset clause in 2002, the PJC
It will be up to the Government of the day to
argue for the continuation of proposed Part III, Division 3 of the
ASIO Act which will be inserted by the Bill. The timing of the
Committee s review will ensure that the Government could, if
necessary, prepare and introduce a replacement Bill when the
relevant part of the Act expires.(66)
In evidence given the PJC in 2005, ASIO, the
Attorney-General s Department and the AFP argued against any
further sunsetting and recommended that the questioning and
detention regime become a permanent part of Australia s
counter-terrorism laws. According to these agencies, concerns about
how the powers would be used have proved to be unfounded, valuable
information has been obtained and concerns about terrorism are
unlikely to abate.
The Attorney-General s Department also raised
questions about a sunset clause based review . It regarded such a
review as resource intensive and as having the potential to
distract resources from protecting the Australian
community.(67) Its preference was to omit the sunset
clause and instead rely on ongoing reviews [for example, by the
PJC] and reports to Parliament. (68)
On the other hand, many submissions argued
against renewing the questioning and detention regime. For
instance, it was said that the threat level to Australia does not
justify the regime, existing powers of law enforcement agencies and
existing criminal laws are sufficient, and that the legislation is
inconsistent with democratic rights. Most agreed, however, that if
Division 3, Part III is to be re-enacted, it must be sunsetted and
provide for PJC review.
On balance, the IGIS supported further
sunsetting. In a paper delivered in July 2005, he said:
The IGIS has also supported retention of a sunset
clause - having regard to the role detention has played
historically in oppression but suggested that a six or even nine
year point (with periodic reviews by the [PJC] in the meantime)
would be appropriate. It is the view of the IGIS that current
threats are not transitory, it can be very difficult to collect
intelligence on terrorist planning by more conventional means and
ASIO has been responsible in its use of the warrants to
The PJC recommended the insertion of a new sunset
clause to come into effect on 22 November 2011. It also recommended
that the legislation be amended to require it to review the
operations, effectiveness and implications of Division 3, Part III
and report to the Parliament by 22 June 2011
(recommendation 19). This is a longer cycle of
review (5 years) than the present cycle (3 years).
The Government accepted the
recommendation in part. It agreed that there should be a
sunset clause and further review by the PJC. However, it rejected
the PJC s recommendation of 2011 and opted instead for a date of
Item 32 of Schedule 2 provides
that Division 3, Part III ceases to have effect on 22 July 2016.
Item 33 requires the PJC to review the operation,
effectiveness and implications of Division 3, Part III by 22
January 2016. The Committee must report its findings to the
Minister and, once cleared, to Parliament.
The Concluding Comments section of this Digest deals with PJC
recommendations that were rejected by the Government. It also
revisits some of the PJC recommendations that were accepted in part
by the Government and briefly describes some other suggestions for
amendment that emerged during the course of the PJC s inquiry.
Before agreeing that the Director-General of
Security can seek a Division 3 warrant from an issuing authority,
the Attorney-General must have reasonable grounds for
believing that the warrant will substantially assist the collection
of intelligence that is important in relation to a terrorism
offence and that relying on other methods of
intelligence collection would be ineffective.
In contrast, the issuing authority need
only check that certain formalities have been satisfied and have
reasonable grounds to believe that the warrant will substantially
assist the collection of intelligence that is important in relation
to a terrorism offence. In practice, the issuing authority is
provided with the same draft warrant material as the
Having considered the evidence before it, the PJC
there is a persuasive argument that, in the
context of extraordinary and coercive powers that are to be used as
a measure of last resort, the issuing authority should be
independently satisfied that other methods of collection would not
be effective. This will require ASIO to provide a factual basis to
their claim that other methods of intelligence gathering would not
be effective. It will also act as a strong safeguard against misuse
of coercive questioning powers (71)
The PJC recommended that the issuing authority be
required to be satisfied that other methods of intelligence
gathering would not be effective before issuing a warrant
The Government rejected the
recommendation. It said that issuing authorities are not in a
position to make such an assessment. This role, the Government
said, is best fulfilled by the Attorney-General who is briefed by
the intelligence agencies. The Government said that existing
requirements for issuing a warrant were sufficient.
Parliament may wish to note that two Commonwealth statutes,
which authorise covert and intrusive activities require the issuing
officer to make the sort of assessment contemplated by the PJC. The
Telecommunications (Interception) Act 1979 permits law
enforcement agencies to obtain a telecommunications
interception warrant from a judge or AAT member. Among the things
that the issuing officer needs to be satisfied of before issuing
the warrant is whether the information sought could be obtained by
alternative methods.(72) Under the Surveillance
Devices Act 2004, when deciding an application for a
surveillance device warrant from a law enforcement
officer, the judge or AAT member must have regard to the
existence of any alternative means of obtaining the evidence or
information sought to be obtained. (73)
Further, ASIO has a range of covert and other methods of
obtaining information. Under Division 2 of the ASIO Act it can
obtain warrants to use tracking devices in relation to persons and
objects, use listening devices, remotely access computers, inspect
postal articles and execute search warrants on premises and
computers. Under the Crimes Act 1914, ASIO officers can be
authorised to use assumed (ie false) identities. Under the
Telecommunications (Interception) Act, ASIO can obtain
telecommunications interception warrants, warrants for the
collection of foreign intelligence, and can access stored
communications.(74) ASIO is also able to obtain warrants
to tap the phones of B-parties (ie
The IGIS s submission to the PJC raised the issue
of expenses that can be incurred by the subject of a Division 3
warrant. The IGIS drew attention to the fact that the subjects of
warrants may have difficulties in obtaining leave from their
employment given secrecy requirements in the Act and because they
will not know how long they will be absent. He added that this
situation may be compounded where a subject does not have leave
entitlements. The PJC identified other financial costs that may
flow to the subject of a warrant such as loss of leave
entitlements, and costs associated with travel, child care etc.
The PJC recommended that the Commonwealth
establish a scheme for the payment of reasonable witness expenses
The Government rejected the
recommendation at this stage .(76) It said that there
was limited evidence of any significant practical impact of
questioning to date and noted the existence of ex gratia
Division 3, Part III contains two categories of
- while a warrant is in force, it is an offence to
disclose information indicating that a warrant has been issued or
to disclose a fact relating to the content of the warrant or the
questioning or detention of a person under the warrant. It is also
an offence to disclose operational information.
- in the two years following the expiry of a warrant, it
is an offence to disclose operational information.
These offences will not be committed if the
disclosure is a permitted disclosure. The maximum penalty for
committing a non-disclosure offence is 5 years imprisonment.
Division 3, Part III also contains criminal sanctions for
officials who contravene statutory safeguards (section 34NB). For
instance, it is an offence to refuse a detainee facilities for
contacting the IGIS or Ombudsman when the detainee requests them.
Refusal to defer questioning, as required, until an interpreter is
present is also an offence, as is refusal to release a person aged
under 16 when ordered to do so by a prescribed authority. The
maximum penalty for these offences is 2 years imprisonment.
Some submissions to the PJC noted discrepancies
in penalties that apply to officials breaking statutory safeguards
and others (like journalists) who disclose operational information
up to 2 years imprisonment for the former and up to 5 years
imprisonment in the case of the latter.
The PJC recommended that the penalty for
disclosure of operational information be similar to the maximum
penalty for an official who contravenes safeguards
The Government rejected this
recommendation. It stated:
it would not be appropriate to arbitrarily equate
the penalties for officials and subjects questioned under a warrant
(and other persons who disclosed information in contravention of
the non-disclosure obligations). The provisions are directed at
entirely different circumstances.
A key element in the disclosure offences is that
the information is operational information. Operational information
is defined as:
(a) information that [ASIO] has or had;
(b) a source of information that [ASIO] has or
(c) an operational capability, method or plan of
Fairfax Holdings and the Media, Entertainment and
Arts Alliance (MEAA) argued that the definition of operational
information is too broad. In its submission, the MEAA suggested
that the definition encompasses:
almost anything that ASIO has done or is doing, or
has known or knows. It is hard to see what information or plans
that ASIO has that would not fall under this definition of
operational information . Thus this section effectively gags any
debate about ASIO s activities.(77)
The PJC recommended that consideration be given
to redefining operational information to reflect more clearly the
operational concerns and needs of ASIO (recommendation
The Government rejected the
recommendation. Among other things, the Government said that
Redrafting for greater specificity in the definition may adversely
complicate and alter the scope of the secrecy provision, while
providing little more guidance to make a disclosure.
A person will not commit a disclosure offence if
the disclosure is a permitted disclosure. Permitted disclosures
include disclosures that occur in the course making or
investigating a complaint to the IGIS or Commonwealth Ombudsman and
disclosures made to a lawyer for the purpose of obtaining legal
advice in connection with a warrant. Permitted disclosures also
include disclosures permitted by the Director-General of Security
or the Attorney-General and certain disclosures permitted by a
The PJC heard evidence that the disclosure
offences shield ASIO s operations from public scrutiny and
accountability and intrude into freedom of speech and the press.
Evidence was also given to the PJC of the subjects of ASIO warrants
being unable to tell their employers and family where they were and
of support organisations being unable to provide counselling or
other assistance to the subject of ASIO warrants because of
prohibitions on the subject disclosing the existence of a warrant
or their treatment (while the warrant is in existence) or
operational information (during the term of the warrant and for
another two years).
The PJC accepted that in some circumstances,
strict prohibitions on disclosure are necessary. However, it
recommended the following changes to the secrecy regime:
- that disclosures be permitted about the existence of
questioning warrants, and
- consideration be given to shifting the determination of the
need for greater non-disclosure to the prescribed authority
The Government rejected recommendation
17. It considers that existing legislation is sufficiently flexible
and that strict secrecy needs to be observed when a warrant is in
force so ASIO can carry out its investigations effectively. It
conceded, however, that in some situations disclosure of the
existence of a warrant before it expires would not harm national
security. It said that the ASIO Act could be amended so that under
the existing permitted disclosure regime, relevant decision-makers
are permitted to take certain factors into account (like a person s
family and employment interests and the public interest) when
deciding whether to permit a particular disclosure.
Item 29 of Schedule 2 provides
that, in deciding whether to give permission for a disclosure, the
prescribed authority, Minister or Director-General must take into
account a person s family and employment interests (to the extent
that these are known), the public interest and the risk to security
if permission is given.
Section 94 of the ASIO Act places a number of reporting
obligations on ASIO. For example, the Director-General must report
annually to the Minister on the number of requests made for
Division 3 warrants, the number of warrants issued, the total
number of questioning warrants, the total number of detention
warrants, the total number of hours each person appeared for
questioning before a prescribed authority, the total number of
hours each detainee spent in detention and the number of times each
prescribed authority had persons appearing before him or her for
The PJC reported community concern about ASIO s lack of
accountability. It considered that with increased powers,
especially powers which infringe significantly on individual
liberties, there are increased responsibilities for public
accounting. And it recommended that ASIO include in its Annual
Report information about
- the number and length of questioning sessions within any total
questioning time for each warrant
- the number of formal complaints made to the IGIS, the Ombudsman
or appeals made to the Federal Court, and
- the number (if any) of charges laid as a result of warrants
issued and the nature of those charges (recommendation
The PJC considered that this information should be readily
available without additional administrative burdens falling on
ASIO. Indeed, examples of the number and length of questioning
sessions for two warrants are provided on pages 17 and 18 of the
PJC s report. They provide important information about the
operation of the regime and whether the requirements of Division 3
and the Protocol are being observed.
The Government rejected recommendation 18. In relation
- the number and length of questioning sessions, the
Government considered that the reporting requirements in section 94
already provide ample information
- complaints to the IGIS and Ombudsman and appeals to the
Federal Court, the Government said it was appropriate for
those agencies, rather than ASIO to report, and
- charges laid under the ASIO Act, the Government
responded that the purpose of Division 3, Part III is to gather
intelligence not prosecute offences so it would be inappropriate
and unnecessary to include this information in ASIO s Annual
Regulation 3B of the ASIO Regulations 1980
prohibits the disclosure of security information to a lawyer in
relation to legal proceedings connected with a warrant unless
a lawyer has been security cleared or the Secretary of the
Attorney-General s Department is satisfied that giving access to
the information would not prejudice national security
During questioning under a Division 3 warrant,
lawyers for the subjects of warrants are given a copy of the
warrant but do not have access to material supporting the warrant.
The PJC received evidence that lack of access to this material
makes it difficult to assess the relevance of questions or test the
reasonableness of directions given by the prescribed authority.
The PJC recommended that regulation 3B be amended
to allow the Secretary to consider disclosing information that is
not prejudicial to national security to a lawyer during the
questioning procedure (recommendation 9).
The Government rejected this
The Government considers that there is no need to
extend the Regulations to this situation. The Regulations assist in
protecting sensitive material in court proceedings relating to a
warrant. In the case of the questioning proceedings, if ASIO is
requested to provide a document to the subject or their lawyer
because it may be relevant to questioning, ASIO can already do so
subject to national security considerations. Involvement in another
decision-making process would unnecessarily slow and complicate the
Many submissions to the PJC inquiry contained suggestions for
amending Division 3, Part III. Not all found favour with the
Committee. It is not possible for this Digest to analyse or even
describe all of them. However, Parliament may be interested in the
Professor George Williams and Dr Ben Saul from the University of
New South Wales argued that detention can only be justified when it
is part of a fair and independent judicial process resulting from
allegations of criminal conduct. As well as being inconsistent with
democratic and judicial principles, they also regarded the
detention provisions as constitutionally insecure. And, in their
view, the purposes of the detention regime (such as preventing a
person alerting others) could be achieved by less drastic
The Human Rights and Equal Opportunity Commission (HREOC)
recommended that the use of Division 3 warrants should be limited
to serious terrorism offences. HREOC identified lesser terrorism
offences as offences that do not involve direct harm or threats to
life or property. As an example, it pointed to the association
offence in section 102.8 of the Commonwealth Criminal
Code.(82) Being a member of a proscribed organisation is
another status offence found in the Criminal Code.(83)
New offences of contravening control orders and preventative
detention orders are also terrorism offences .
However, the PJC took the view that it would be difficult to
define serious terrorism offence. And the Attorney-General s
Department commented that there is no such thing as a non-serious
terrorism offence , that all the offences are indictable and all
carry heavy penalties.(84)
On the other hand, as some submissions pointed out, many new
terrorism offences have been added to the Criminal Code since the
passage of the Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Act 2003. As a result, the
potential reach of Division 3, Part III has been significantly
expanded.(85) Parliament may also wish to note that a
number of Commonwealth statutes use the expression serious offence
. For instance, section 477.1 of the Criminal Code defines serious
offence as an offence that is punishable by imprisonment for life
or a period of 5 or more years. More relevantly, the Crimes Act
uses and defines the expression, serious terrorism offence , in
relation to certain special powers found in Part 4B of that Act.
Serious terrorism offences include a terrorism offence (other
than offence against section 102.8, Division 104 or Division 105 of
the Criminal Code). Section 102.8 is the association offence.
Division 104 and 105 contain offences relating to control orders
and preventative detention orders.(86)
The Public Interest Advocacy Centre suggested a requirement for
applying for or issuing a Division 3 warrant should be a reasonable
suspicion of an imminent terrorism offence involving material risk
of serious physical injury or serious property
In relation to this recommendation, the Attorney-General s
such suggestions miss the point of the regime.
ASIO needs to use the powers not just when it knows there is an
imminent threat but also where it has reached a point where its
capacity to penetrate has been foiled.(88)
The PJC s recommendations for review and sunsetting in 2011 were
rejected by the Government. Instead, the PJC is required to report
by 22 January 2016. The legislation will cease operation on 22 July
This leaves a considerable period during which ASIO s use of its
exceptional and secret powers under Division 3, Part III may
largely be beyond the reach of public scrutiny and systematic
review of the sort that the PJC carries out. If the non-disclosure
offences in Division 3 remain in their current form, it is true
that they are time-limited. However, warrant action within two
years of the next PJC inquiry will not be in the public domain. And
while the PJC has access to a wide range of classified and other
material, even its review is circumscribed as a result of statutory
restrictions on the Committee s inquiry, hearing and reporting
powers. Additionally, the PJC relies on the willingness of
intelligence agencies like ASIO to co-operate with it. A
potentially worrying development in the course of its inquiry into
Division 3, Part III was the denial of the Committee s request to
access video tapes and transcripts of eight Division 3 warrant
It is also arguable that a sunset date of 2016 makes a fixture
of legislation that the PJC says should not be seen as a permanent
part of the Australian legal landscape. Parliament may also wish to
consider whether, if the sunset date of 2016 is to be retained, the
PJC should be required to review the legislation more often than
once in the period before sunsetting occurs for example, at 5 year
intervals. Review at five yearly intervals may also allay any
concerns that ASIO s extraordinary and secret powers might slip, in
practice, into investigative and policing powers to be simply part
of ongoing policing operations. (89) It would also take
account of the fact that not all Division 3 powers in particular
the power to detain had not been used at the time of the PJC s 2005
review and that Division 3 had only been in operation for two years
prior to that review.
A fundamental issue raised by submissions to the PJC was whether
Division 3, Part III should be re-enacted at all.(90)
Intelligence and law enforcement agencies and the Attorney-General
s Department argued that Division 3 powers were a valuable part of
Australia s counter-terrorism armoury and had been used judiciously
The Australian Federal Police commented that the questioning and
detention powers have been used appropriately by ASIO, that the
powers have worked well in practice and that ASIO still needs these
powers to assist in the collection of intelligence that is
important to terrorism offences. (91)
In evidence to the PJC, Dennis Richardson, the former
Director-General of Security, commented on the nature of the threat
faced by Australia, the usefulness of Division 3, Part III and the
quality of the legislation particularly in terms of the balance
between the powers conferred and individual rights and freedoms;
and the usefulness of the legislation. He drew the Committee s
attention to the lengthy Parliamentary scrutiny that Division 3,
Part III had undergone, the fact that warrants are issued by an
independent judicial officer, and to the safeguards that were built
into the regime. In relation to safeguards, Mr Richardson pointed
to subjects access to lawyers, the use of an independent prescribed
authority to supervise questioning, the existence of complaints
mechanisms and requirements that questioning be videotaped. He
described the terrorist threat to Australia as a long-term,
generational threat , which requires legislation to be in place to
deal with situations as they emerge and not to be reactive.
On the other hand, Parliament may wish to note the PJC s
statement that it recommended a range of additional measures if
Division 3 of Part III of the ASIO Act is to continue to have
effect beyond 23 July 2006. (93) The Government did not
accept PJC recommendations relating to democratic and liberal
processes. Nor did it accept all of the recommendations for
additional safeguards for the subjects of Division 3 warrants.
Should the re-enactment of Division 3, Part III be contingent on
the acceptance of all the PJC s recommendations, should the
continuation of the legislation be contingent on the acceptance of
particular recommendations and if, so, which recommendations?
Those who opposed the retention of Division 3 argued that it is
disproportionate to Australia s security environment (there is no
threat to the life of the nation), that it violates the principle
that non-suspects should not be subject to detention or placed in
coercive circumstances , and that detention without trial is,
arguably, unconstitutional. It was also suggested that Division 3
contains inadequate safeguards for the protection of fundamental
liberties and inappropriately vests power in ASIO (a secret and
largely unaccountable organisation). Concerns about the potential
ramifications of anti-terrorism laws have also been expressed. Such
concerns were succinctly reflected in a recent paper by Justice
Michael Kirby. Writing in general terms about the response to
terrorism in a number of democracies, His Honour commented:
Responses to terrorism there must be. But those
responses should adhere to the rule of law and respect for
fundamental human rights and freedoms. Otherwise the terrorists win
in their attempts to change our societies. And that must not
- On 2 December 2005, the Parliamentary Joint Committee on ASIO,
ASIS and DSD became the Parliamentary Joint Committee on
Intelligence and Security.
- ASIO also has special powers under Division 2 of the ASIO
- Other Bills in the package were the Security Legislation
Amendment (Terrorism) Bill 2002, the Suppression of the Financing
of Terrorism Bill 2002, the Border Security Legislation Amendment
Bill 2002, the Criminal Code Amendment (Anti-hoax and Other
Measures) Bill 2002 and the Criminal Code Amendment (Suppression of
Terrorist Bombings) Bill 2002.
- Parliamentary Joint Committee on ASIO, ASIS and DSD, An
Advisory Report on the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002, 5
June 2002, p. 1.
- Parliamentary Joint Committee on ASIO, ASIS and DSD:
Interim Report on the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002, 3
May 2002 at
An Advisory Report on the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002, 5
June 2002 at
Senate Legal and Constitutional Legislation Committee:
Inquiry into the Provisions of the Australian Security
Intelligence Organisation Legislation Amendment (Terrorism) Bill
2002, 18 June 2002
Senate Legal and Constitutional References Committee:
Inquiry into the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002, 3
December 2002 at:
- For a discussion of the features of each Bill and the matters
of disagreement between the Houses see:
- New warrants can be obtained if they meet the conditions set
out in subsection 34C(3D) and subsection 34D(1A) (new
subsections 34F(6) and 34G(2)). A further warrant cannot
be issued if the person is still being detained under an
- However, there is no guarantee that issuing authorities must be
drawn from the ranks of the judiciary. See endnote 10.
- The Australian Passports (Transitionals and Consequentials)
Act 2005 and the Intelligence Services Legislation Act
2005 made minor changes. The Anti-terrorism Act (No. 3)
2004 requires a person who is the subject of a request for a
Division 3 warrant to surrender all their passports (Australian and
foreign) and makes it an offence for such a person to leave
Australia without the permission of the Director-General of
Security. The Anti-terrorism Act (No. 2) 2005 provides
that material seized under a Division 3 warrant or as the result of
a detainee being strip-searched may be retained for a reasonable
time and can be kept if returning the material would be prejudicial
to national security. This Act also changes the wording of the
offence in section 34G of the ASIO Act. Section 34G creates an
offence of knowingly providing information that is false or
misleading in a material particular during questioning under a
Division 3 warrant. As a result of the 2005 amendments, this will
not constitute an element of the offence, which must be proved by
the prosecution. Instead, the defendant now bears an evidential
burden in relation to whether the information is false or
misleading in a material particular.
- Issuing authorities are appointed from the ranks of consenting
Federal Magistrates and judges. Other classes of issuing authority
may be prescribed by regulation. See section 34AB, ASIO Act.
- Prescribed authorities are appointed from the ranks of former
superior court judges. If insufficient numbers are available,
appointments are made from the ranks of serving Supreme or District
Court judges. If there are still insufficient numbers, AAT
Presidents and Deputy Presidents can be appointed, so long as they
are legally qualified. In all cases, consent to appointment is
required. See section 34B, ASIO Act.
- Division 3, Part III is not subject to statutory or
constitutional Bills of Rights, which exist in those other
nations). For a contrary view on whether the powers are
unprecedented, see Submission No. 102 (Attorney-General s
- A person compelled to answer questions or produce documents
under Division 3, Part III has use immunity . This means that their
evidence cannot be used in any future prosecution against them.
However, they do not have derivative use immunity. This means that
any evidence derived from answers they are compelled to
give or documents they are compelled to provide can be used to
- At the time this Digest was written those agencies were ASIO,
ASIS, the Defence Imagery and Geospatial Organisation, the Defence
Intelligence Organisation, the Defence Signals Directorate and the
Office of National Assessments.
- The Committee now has nine members.
- Margaret Swieringa, Intelligence oversight and the War on
Terrorism , Paper presented to the 2005 Australasian Study of
Parliament Group Conference. TSPV means Top Secret Positively
- Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO s
Questioning and Detention Powers. Review of the Operation,
Effectiveness and Implications of Division 3 of Part III of the
Australian Security Intelligence Organisation Act 1979,
November 2005, p. 107.
- PJC (2005), op. cit., p. ix.
- Submission No. 67 (Greg Carne), p. 3. See also Submission No.
90 (Public Interest Advocacy Centre).
- See PJC (2005), op. cit., pp. 90-92.
- Bret Walker SC, Opinion, 29 April 2005 at:
- PJC (2005), op. cit., p. 13.
- See Ian Carnell (IGIS) & Neville Bryan (Office of the
IGIS), Watching the watchers. How the Inspector-General of
Intelligence and Security helps safeguard the rule of law ,
modified version of a paper given at the Safeguarding Australia
2005 Conference, Canberra, July 2005, pp. 12-13. See also
Submission No. 75, (Inspector-General of Intelligence and
Security), paras. 66 and 67.
- PJC (2005), op. cit., p. 14.
- In relation to the first eight questioning warrants, an
interpreter was requested on four occasions and granted on one. PJC
(2005), op. cit., p. 19.
- Three of these people were the subject of questioning warrants.
The fourth person was not.
- PJC (2005), op. cit., p. 24.
- A copy of the Protocol can be found at:
- Legislative instruments must be registered on the Federal
Register of Legislative Instruments, a publicly accessible online
- Section 34L, ASIO Act (new section 34ZB).
Strip searches can only be carried out with the permission of the
prescribed authority and in accordance with the rules set out in
section 34M (new section 34ZC).
- Section 34JB, ASIO Act (new section 34V).
- Section 34JA, ASIO Act (new section 34U).
- Section 34DA, ASIO Act (new section 34H).
- Sub-paragraph 34E(1)(e)(ii).
- Paragraph 34F(9)(e).
- See submission no. 49 (Commonwealth Ombudsman), p. 3.
- Evidence to the PJC. See PJC (2005), op. cit., p. 14.
- PJC (2005), op. cit., p. 63.
- em 4 of Schedule 2 enables a person to
complain to a complaints agency in relation to the police force of
the State or Territory. Item 14 defines a
complaints agency as an Ombudsman, agency or body established under
State or Territory law that can investigate complaints against
State or Territory police.
- PJC (2005), op. cit, p. 42.
- Government Response, op. cit., p. 1.
- Submission No. 84 (Attorney-General s Department) p. 13.
- Subsection 34J, ASIO Act. See section 34ZE, ASIO Act in
relation to the prescribed authority s role in relation to
- Sections 34M and 34N, ASIO Act.
- Section 34R, ASIO Act.
- Paragraph 34K(1)(f), ASIO Act.
- Section 34R, ASIO Act.
- Section 34ZB, ASIO Act.
- Subsection 34ZQ(5), ASIO Act.
- Subsection 34ZQ(9), ASIO Act.
- PJC (2005), op. cit., p. 60.
- New section 34K deals with directions made by the prescribed
authority in relation to detention or further appearance and
directions about communications while in custody or detention.
- Government Response to the Parliamentary Joint Committee on
Intelligence and Security, Report on the Operation,
Effectiveness and Implications of Division 3 of Part III of the
Australian Security Intelligence Organisation Act 1979, March
- Paragraph 34F(9)(c), ASIO Act.
- Government Response, op. cit., p. 4.
- PJC (2002) op. cit., recommendation 6.
- Paragraph 86(2)(a), Law Enforcement Integrity Commissioner Bill
- Submission No. 75 (Inspector-General of Intelligence and
Security), paras. 33 and 35.
- See, for example, Submission No. 35 (Joo-Cheong Tham &
Stephen Sempill); Submission No. 55 (Gilbert + Tobin Centre of
Public Law); Submission No. 67 (Greg Carne).
- Government Response, op. cit., p. 3.
- Submission No. 82 (Law Institute of Victoria), p. 15.
- The prescribed authority must so inform the subject of the
warrant when they first appear for questioning and then at least
once in every 24-hour period during which questioning occurs.
- PJC (2005), op. cit., p. 57.
- New section 34J sets out the information the prescribed
authority must give to a person when they first appear for
- Government Response, op. cit., p. 5.
- PJC (2002), op. cit., p. 59.
- Submission No. 102 (Attorney-General s Department), p. 10.
- ibid, p. 11.
- Carnell & Bryan, op. cit., p. 13.
- Submission No. 102 (Attorney-General s Department), p. 20.
- PJC (2005), op. cit., p. 37.
- For example, paragraph 45(e), Telecommunications
(Interception) Act 1979.
- Paragraph 16(2)(d), Surveillance Devices Act
- Such as emails, text messages and voicemail.
- See Telecommunications (Interception) Amendment Act
2006, which received Royal Assent on 3 May 2006. Schedule 2
(B-party intercepts) commenced on 4 May 2006.
- Government Response, op. cit., p. 5.
- Submission No. 65 (Media, Entertainment and Arts Alliance), p.
- Government Response, op. cit., p. 6.
- The disclosures that can be permitted by a prescribed authority
are specified in subsection 34VAA(6) (new subsection 34ZS(6)).
- Section 34VA of the ASIO Act provides that regulations can
prohibit or regulate access to security information by lawyers
acting for the subject of a Division 3 warrant in legal proceedings
(such as proceedings for a remedy relating to a warrant or the
treatment of a person in connection with a warrant). Section 34VA
is re-numbered as section 34ZT by the Bill).
- Government Response, op. cit., p. 4.
- This offence carries a maximum penalty of three years
- This offence carries a maximum penalty of 10 years
- Submission No. 102 (Attorney-General s Department), p. 12.
- See Submission No. 67 (Greg Carne), pp. 2-3.
- These provisions were inserted by the Anti-terrorism Act
(No. 2) 2005 and post-date the Attorney-General s Department
- Submission No. 90 (Public Interest Advocacy Centre).
- Submission No. 102 (Attorney-General s Department), pp.
- PJC (2005), op. cit., p. 25.
- See Submission No. 35 (Joo-Cheong Tham & Stephen Sempill);
Submission No. 42 (National Human Rights Network, National
Association of Community Legal Centres); Submission No. 47
(Victoria Legal Aid); Submission No. 55 (Gilbert + Tobin Centre of
Public Law recommending that if Division 3, Part III is re-enacted,
the detention provision should not be included); Submission No. 65
(Media, Entertainment and Arts Alliance); Submission No. 79
(Liberty Victoria); Submission No. 81 (Amnesty International
Australia); Submission No. 86 (Patrick Emerton); Submission No. 88
(Australian Muslim Civil Rights Advocacy Network); Submission No.
89 (Islamic Council of New South Wales); Submission No. 90 (Public
Interest Advocacy Centre).
- Submission No. 83 (Australian Federal Police), p. 2.
- PJC, Public Hearing, 19 May 2005, pp. 2-3. Evidence given by
Dennis Richardson (former Director-General of Security).
- PJC, op. cit., p. ix.
- Michael Kirby AC CMG, Terrorism and the democratic response
2004 , (2005) 28(1) University of New South
Wales Law Journal, pp. 221-244 at p. 244.
5 May 2006
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