ASIO Act 1979
(Division 3 of Part III)
Questioning and Detention Warrants
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Anti-Terrorism Bill (No.2) 2005
(Schedule 4)
Preventative Detention Orders
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(a) Written statement of procedures issued before
any warrants could be sought (s.34C (3A)).
This is in addition to a general requirement for humane treatment of
the subjects of a warrant (s.34J).
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(b) Item 105.33 has the same general
requirement for humane treatment, but nothing specific beyond that. Consideration should be given to including
a similar statement of procedures requirement.
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(a) Detailed explanation to subject of
warrant by prescribed authority of rights and obligations, including the
right to complain to Ombudsman and/or Inspector-General (s34E).
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(b) Explanation to subject of order by
police officer, including of right to make representations to a nominated
senior AFP member or complain to Ombudsman (Items 105.19, 105.28 and
105.29). Some matters could be added
to what must be explained (eg Item 105.51 (5) on right to appeal to the AAT,
and Item 105.42 on limits on questioning).
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(a) Contact with Ombudsman or
Inspector-General – subject’s rights preserved and must be provided with
facilities to do so (s34F(9), 34NC and 34VAA(5)).
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(b) The person being detained is entitled
to contact the Ombudsman or a State or Territory police ombudsman where such
a body exists (Item 105.36)
(c) Section 22 of Complaints (AFP) Act 1981
gives detained persons who wish to complain to the Ombudsman, a right to have
facilities to do so (Should this at least be a note to Item 105.36?).
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(a) Subject’s legal adviser has right to a
copy of warrant (s34U(2A)).
(b) ASIO must provide the IGIS with a copy of any draft request for a
warrant given to the Attorney-General, any warrant issued, a copy of the
video recordings which must be made, and a statement containing details of
any seizure, taking into custody or detention or action taken in response to
IGIS concerns (s.34Q).
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(c) Copies of orders provided to subject
and if requested their legal representative (Item 105.32).
(d) A summary of grounds for order (but not
including information likely to prejudice national security) must also be
given to subject and if requested their legal representative (Item 105.32).
(e)
Suggest a copy of order and grounds for order must be provided to the
Ombudsman, where subject does not have a legal representative.
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(a) IGIS can be present at questioning and
can raise a concern with the prescribed authority who must consider it (s.34
HAB, s.34 HA).
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(b) Questioning by AFP only to extent
necessary to give effect to order (Item 105.42); ASIO not to question (Item
105.42(2)) although can obtain a questioning and detention warrant (Item
105.25).
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(a) Inspector-General must report on
examinations when multiple detention warrants are issued (s.34QA). ASIO must report to Attorney-General on
outcomes of each warrant (s.34P).
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(b) Item 105.47 requires annual report by
Attorney-General to Parliament.
[Note: issue of whether the required
contents of the report should be expanded eg orders voided by federal court
or AAT.]
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(a) With effect from 2/12/05,
Inspector-General has right of access to any place being used for detention
(new s.9B and 19B in IGIS Act).
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(b) No equivalent, although a nominated
senior AFP member must oversee exercise of powers under, and performance of
obligations in relation to, orders (Item 105.19(5) – (9)). This could be expressed to include that
conditions of detention meet standards (and perhaps that breaches should be
advised to issuing authority and/or Ombudsman).
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(a) General preservation of functions and
powers of Ombudsman and Inspector-General (s.34T).
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(b) General preservation of functions and
powers of Ombudsman (Item 105.48).
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(a) No access to AAT.
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(b) Right of appeal to AAT on merits after
order no longer in force, AAT can determine compensation payable (Item
105.51).
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(a) Subject can seek a remedy from a
federal court. No access to
State/Territory courts while warrant in force (s.34X).
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(b)
Access to courts for remedies after order no longer in force. (Items 105.51 and 105.52).
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1.
(a) Attorney-General must consent to request
for warrant (by Director-General of Security to Issuing Authority) (s.34C).
(b) Attorney-General must be satisfied that several requirements are
met (s.34C (3)).
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1.
(c) No similar requirement but these will be
time critical situations.
(d) Note that control orders (which will not be as time critical) do
require consent of Attorney-General, although not satisfaction on the
specific requirements akin to 11 (b) – see Item 104.2 – perhaps this should
be added to control order provisions.
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This document was
provided to the Committee by the Inspector General of Intelligence and Security
during the Public Hearings.