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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT
(SUNSETTING OF SPECIAL POWERS RELATING TO TERRORISM OFFENCES)
BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Home Affairs, the Honourable Peter Dutton MP)
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT
(SUNSETTING OF SPECIAL POWERS RELATING TO TERRORISM OFFENCES)
BILL 2019
1. The Australian Security Intelligence Organisation Amendment (Sunsetting of Special
Powers Relating to Terrorism Offences) Bill 2019 (the Bill) amends the Australian Security
Intelligence Organisation Act 1979 (ASIO Act) to extend the operation of the Australian
Security Intelligence Organisation's (ASIO) questioning, and questioning and detention
powers in Division 3 of Part III of the ASIO Act, for a further 12 months. This ensures that
ASIO continues to have access to these powers to respond to the ongoing threat of terrorist
activities in Australia.
FINANCIAL IMPACT
2. This Bill does not have a financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
3. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
4. The Bill amends the ASIO Act to extend the operation of Division 3 of Part III to
provide for the continuation of the questioning warrant, and questioning and detention
warrant regimes (ASIO's questioning and detention powers) for a further 12 months.
5. Subdivision B of Division 3 sets out the process by which ASIO can obtain a
questioning warrant. A questioning warrant requires a specified person to appear before a
prescribed authority for questioning under the warrant immediately after the person is
notified of the issue of the warrant, or at a time specified in the warrant.
6. Subdivision C of Division 3 sets out the process by which ASIO can obtain a
questioning and detention warrant. This warrant authorises a person to be taken into custody
immediately by a police officer and be brought before a prescribed authority immediately for
questioning under the warrant for a period of time specified in subsection 34G(4).
7. Currently, section 34ZZ provides that Division 3 of Part III will cease to have effect
on 7 September 2019. The Bill amends this section to provide for the continuation of the
Division for a further 12 months, until 7 September 2020.
8. The Division 3 powers support the legitimate objective of countering serious threats
to Australia's national security interests and, in particular, preventing terrorist acts.
Extending the operation of the Division 3 powers ensures Australia's counter-terrorism
capabilities are maintained pending passage of legislation to implement recommendations of
the report of the Parliamentary Joint Committee on Intelligence and Security on the
operation, effectiveness and implications of Division 3 of Part III of the Australian Security
Intelligence Organisation Act 1979 (PJCIS report).
9. ASIO's questioning and detention powers were originally introduced following the
11 September 2001 terrorist attacks in the United States to improve the capacity of
intelligence agencies to identify and counter threats of terrorism in Australia. The current
threat environment has evolved considerably since 11 September 2001 and is steadily
worsening. Accordingly, it is critical that these powers remain available to ASIO, beyond
7 September 2019, while appropriate reforms to the powers are developed and progressed
through Parliament.
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Human rights implications
10. The Bill engages the following human rights:
the right to freedom from cruel, inhuman or degrading treatment or punishment in
Article 7 of the ICCPR and Articles 2 and 16 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and
right to human treatment in detention in Article 10 of the International Covenant
on Civil and Political Rights (ICCPR)
the right to freedom from arbitrary detention and arrest, and the right to liberty
and security of the person in Article 9 of the ICCPR
the right to freedom of movement in Article 12 of the ICCPR
the right to protection against arbitrary and unlawful interferences with one's
privacy or home in Article 17 of the ICCPR
the right to freedom of expression in Article 19 of the ICCPR
the right to freedom of association in Article 22 of the ICCPR
the right of the child to have their best interests as a primary consideration by
courts of law, administrative authorities or legislative bodies in Article 3 of the
Convention on the Rights of the Child (CRC).
Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the
ICCPR and Articles 2 and 16 of the CAT and right to humane treatment in detention in
Article 10 of the ICCPR
11. Article 7 of the ICCPR and Articles 2 and 16 of the CAT provide that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 10 of
the ICCPR provides that all people who are deprived of their liberty shall be treated with
humanity and respect for the inherent dignity of the human person. Division 3 engages
humane treatment obligations under Article 10, because people who are the subject of
warrants issued under that Division are deprived of their liberty for the duration of their
custody or detention under a warrant.
12. Division 3 provides for an extensive range of safeguards to ensure the humane
treatment of people who are subject to warrants issued under that Division. This includes an
express obligation on people exercising authority under a warrant (or implementing or
enforcing a direction given by a prescribed authority) to treat the subject with humanity and
respect for human dignity, and a prohibition on subjecting them to cruel, inhuman or
degrading treatment (section 34T). Criminal offences, carrying maximum penalties of
two years' imprisonment, also apply to people who knowingly contravene safeguards,
including directions given by prescribed authorities.
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13. In addition, the Statement of Procedures issued under section 34C sets out a number
of requirements in relation to the humane treatment of people subject to questioning and
questioning and detention warrants. These include requirements to ensure the health and
welfare of people while in detention or custody (including while being transported), to ensure
that the manner of questioning is humane and courteous, and that people are offered
appropriate breaks in questioning (30 minute breaks after every four hours of continuous
questioning).
14. A person who is the subject of a warrant is permitted to contact the IGIS or the
Ombudsman, and has the opportunity to make complaints about his or her treatment.
Freedom from arbitrary detention and arrest, and the right to liberty and security of the
person in Article 9 of the ICCPR
15. Article 9 of the ICCPR provides that no one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedure as are established by law.
16. Article 9 regulates, rather than prohibits, detention. Only detention that is 'arbitrary'
is prohibited. The United Nations Human Rights Committee has stated that 'arbitrariness'
includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or
detention must be reasonable and necessary in all circumstances with reference to the
recurrence of crime, interference with evidence or the prevention of flight. Detention is not
considered arbitrary where it is reasonable, necessary and proportionate to achieving a
legitimate objective. The legitimate objective of the questioning warrant regime is to protect
Australia's national security interests, in particular, preventing terrorist acts.
17. The power to detain a person under ASIO's questioning and detention warrant
provisions is justified to ensure that ASIO can collect intelligence that is important in relation
to a terrorism offence, in circumstances where:
there are reasonable grounds for believing that issuing the warrant will
substantially assist the collection of intelligence that is important in relation to a
terrorism offence
relying on other intelligence collection methods would be ineffective; and
there are reasonable grounds for believing that, if the person is not immediately
taken into custody and detained, the person may:
o alert a person involved in a terrorism offence that the offence is being
investigated
o fail to appear before the prescribed authority; or
o destroy, damage or alter a record or thing the person may be requested to
produce under the warrant.
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18. An issuing authority (a federal court judge) may then issue a warrant if satisfied there
are reasonable grounds for believing that questioning the person who is the subject of a
warrant will substantially assist in the collection of intelligence that is important in relation to
a terrorism offence.
19. Division 3 remains consistent with Article 9 as it is reasonable, necessary and
proportionate to achieving the legitimate objective of maintaining national security.
Freedom of movement in Article 12 of the ICCPR
20. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State
shall, within the territory, have the right to liberty of movement. A questioning warrant
restricts this right to the extent that the issuing of such a warrant requires a specified person
to appear before a prescribed authority for questioning immediately after the person is
notified of the issue of the warrant or at a time specified by the warrant.
21. The limitation on the right to freedom of movement achieves the legitimate objective
of protecting Australia's national security interests, in particular, preventing terrorist acts.
The legitimate objective is reflected in the threshold that the Attorney-General must be
satisfied that the warrant will 'substantially assist in the collection of intelligence that is
important in relation to a terrorism offence' (paragraph 34E(1)(b)) in consenting to a request
for the issuing of a warrant.
22. The limitation on the right to freedom of movement is reasonable, necessary and
proportionate. This is based on the safeguards already built into the questioning warrant
framework. The Guidelines issued to the Director-General of ASIO under subsections 8A(1)
and 8A(2) of the ASIO Act provide a safeguard for the appropriate use of ASIO's powers,
including its Division 3 powers. The Attorney-General's Guidelines in relation to the
performance by the Australian Security Intelligence Organisation of its function of obtaining,
correlating, evaluating and communicating intelligence relevant to security (including politically
motivated violence) (the ASIO Guidelines) require ASIO to consider the intrusiveness and
proportionality of its avenues for obtaining information:
any method for obtaining information must be proportionate to the gravity of the
threat posed and the probability of its occurrence
inquiries and investigations should be undertaken using as little intrusion into a
person's privacy as is possible; and
wherever possible the least intrusive techniques of information gathering should
be used before resort to the more intrusive techniques (where a threat is assessed
as likely to develop quickly, a greater degree of intrusion may be justified).
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23. To the extent that questioning warrants restrict the right to freedom of movement, the
restriction is reasonable, necessary and proportionate to achieving the legitimate objective of
gathering important intelligence in relation to terrorism offences.
Right to protection against arbitrary and unlawful interferences with one's privacy or home
in Article 17 of the ICCPR
24. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy or home. The use of the term 'arbitrary' means that
any interference with privacy must be in accordance with the provisions, aims and objectives
of the ICCPR and should be reasonable in the particular circumstances. The United Nations
Human Rights Committee interpreted 'reasonableness' to imply that any limitation must be
proportionate and necessary in the circumstances.
25. Section 34U provides a police officer with a limited power to enter a dwelling in
order to take a subject into custody under a questioning and detention warrant, or where a
subject has failed to appear before the prescribed authority for questioning, only where the
police officer believes on reasonable grounds that the subject is at the premises. In
circumstances where a person has failed to appear, a police officer must not enter the
dwelling between the hours of 9pm and 6am unless the police office believes on reasonable
grounds that it would not be practicable to take the person into custody at another dwelling or
time.
26. This power is necessary and proportionate to achieve the legitimate objective of
ensuring a subject does not alert a person involved in a terrorism offence that the offence is
being investigated, fail to appear before the prescribed authority, or destroy, damage or alter a
record or thing the person may be requested to produce under the warrant. The legitimate
objective aims to protect the community by preventing the commission of a terrorist attack.
The imminence of a terrorist threat requires ASIO to be able to respond quickly to ensure the
preservation of information that may be important in relation to a terrorism offence.
27. A questioning warrant or a questioning and detention warrant compels subjects to
provide information which would otherwise be private. These powers are reasonable and
proportionate measures which are necessary to ensure the gathering of information which is
important in relation to a terrorism offence.
28. There are a number of safeguards which protect an individual's private information.
In carrying out questioning, ASIO is bound by the ASIO Guidelines, which relevantly
provide that information must be obtained by ASIO using as little intrusion into individual
privacy as possible, consistent with the performance of ASIO's functions. ASIO's functions
dictate that the organisation must only collect information which is relevant to security,
meaning that ASIO will be precluded from collecting personal information which is not
connected to a national security issue. The ASIO Guidelines also provide that the means
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used for obtaining information must be proportionate to the gravity of the threat and the
probability of its occurrence.
29. If private information is obtained, specific safeguards exist which prevent it from
being unlawfully disclosed. Under section 34ZL, if the Director-General is satisfied that
private information obtained under a warrant is not required for the purposes of ASIO's
functions, ASIO must cause any record or copy of this information to be destroyed.
30. The IGIS may be present at the questioning of an individual and it remains open to the
IGIS to raise any concern about the impropriety or illegality of any exercise of the powers
under Division 3. If such a concern is raised, the prescribed authority may give a direction to
suspend questioning under the warrant.
Right to freedom of expression in Article 19 of the ICCPR
31. Article 19 of the ICCPR provides that everyone has the right to freedom of
expression, including the freedom to impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art or through any other media.
Division 3 engages this right through its compulsory questioning powers, secrecy provisions
and the limitations it places on contacting family members or legal representatives. Article 19
however, also provides that the right to freedom of expression may be limited on grounds of
national security, provided that any limitation has been prescribed by legislation and is
reasonable, necessary and proportionate to achieve the desired purpose.
32. Division 3 contains secrecy provisions which engage the right to freedom of
expression by restricting the disclosure of information. These secrecy provisions are
necessary to ensure the effectiveness of intelligence gathering operations which are
conducted in relation to terrorist offences. While a warrant is in force, subsection 34ZS(1)
prevents the disclosure of information that could have significant implications for the
integrity of the questioning process under the warrant and the effectiveness of related
investigations. The additional protections provided under subsection 34ZS(2) operate to
protect ASIO's sources, holdings of intelligence and its method of operations, as the release
of this information could seriously affect ongoing and related investigations which can be
long-running.
33. These secrecy laws also contain a number of safeguards which allow them to function
in a reasonable and proportionate manner. Persons who are subject to a warrant may disclose
information which would ordinarily be subject to secrecy laws if authorised to do so by the
Director-General or the Attorney-General. A person may also disclose information to a
lawyer for the purpose of seeking legal advice, to a court for the purpose of seeking a remedy
in connection to a warrant or to the IGIS or the Commonwealth Ombudsman in relation to a
warrant under Division 3. These permitted disclosures ensure that the rights of the subject of
a warrant are maintained while appropriately protecting sensitive information.
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Right to freedom of association in Article 22 of the ICCPR
34. Article 22 of the ICCPR protects the right of all persons to group together voluntarily
for a common goal and to form and join an organisation. Article 22(2) provides that this right
may be limited for the purpose of national security.
35. As established above, Division 3 contains a multitude of safeguards to ensure that
any limitation on the right to freedom of association is reasonably adapted, necessary and
proportionate.
36. Under a questioning and detention warrant, the subject of the warrant is limited in
their ability to freely associate with others for the duration of the detention. The limitation on
the right to freedom of association achieves the legitimate objective of protecting Australia's
national security interests, in particular, preventing terrorist acts. This is inherent in the
requirement for issuing a questioning warrant. In consenting to a request for the issuing of a
warrant, the Attorney-General must be satisfied that the warrant will substantially assist in the
collection of intelligence that is important in relation to a terrorism offence. The Attorney-
General may only consent to a request for a warrant if he or she is satisfied that relying on
other methods of collecting that intelligence would be ineffective and there are reasonable
grounds for believing that, if the person is not immediately taken into custody and detained,
the person may alert others involved in a terrorism offence that the offence is being
investigated.
37. By ensuring that the Attorney-General is satisfied of these requirements, the
framework ensures that any limitation on the right to the freedom of association is
appropriate to the threat and necessity of the situation. The right is only limited for the
duration of detention, and only when the above criteria have been satisfied. During detention
a person retains the rights previously stated (such as the ability to make a complaint or
contact the IGIS). Any contravention of these safeguards may constitute an offence under
section 34ZF, which is punishable by imprisonment for two years.
Right of the child to have their best interests as a primary consideration by courts of law,
administrative authorities or legislative bodies in Article 3 of the Convention on the Rights of
the Child (CRC)
38. Australia's obligations with respect to children arise principally under the Convention
on the Rights of the Child. Article 3 of the CRC requires that the best interests of the child
shall be a primary consideration in all actions concerning social welfare institutions, courts of
law, administrative authorities or legislative bodies.
39. The ability to detain a person who is 16 or 17 years under a questioning and detention
warrant engages the rights under Article 37(b), in relation to the prohibition of the arbitrary
detention of children, and the right that detention should only occur as a measure of last
resort, and for the shortest appropriate period of time, and the humane treatment obligations
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in Article 37(c). The ability to detain a young person under such a warrant further engages
the right to legal assistance and a right to challenge that detention under Article 37(d).
40. There can be a legitimate need to issue a warrant in relation to a child - namely,
where that person will commit, is committing, or has committed, a terrorism offence. The
exclusion of people under the age of 18 years from questioning and detention warrants would
leave a significant gap in ASIO's ability to collect crucial intelligence on real terrorism
threats.
41. However, significant safeguards apply to the detention of people who are 16 or 17
years or age, ensuring that detention is not arbitrary, is a measure of last resort, and adheres to
the specific humane treatment obligations in relation to children in detention.
42. The additional requirements in subsection 34ZE(4) apply to questioning and detention
warrants issued in relation to people who are 16 or 17 years of age. That is, the
Attorney-General must be satisfied on reasonable grounds that it is likely that the person will
commit, is committing or has committed a terrorism offence, and the warrant will meet all of
the special requirements for young people in subsection (6) of section 34ZE. The further
requirements in subsection 34ZE(6) (permission to contact a parent, guardian or other
appropriate person) and subsection 34ZC(1)(f) (any search to happen in the presence of a
parent, guardian to other appropriate person) apply to questioning and detention warrants
issued in relation to people who are 16 or 17 years of age.
43. In addition, people who are 16 or 17 years of age who are subject to a questioning
warrant or a questioning and detention warrant have the same rights as people 18 years and
over to access a lawyer, to seek a judicial remedy in relation to their detention, make a
complaint to the IGIS or the Ombudsman, and to be informed by the prescribed authority of
their rights.
Conclusion
44. While the Bill engages a range of human rights, it is compatible with human rights
because to the extent that it limits any rights, those limitations are reasonable, necessary and
proportionate to achieving a legitimate objective.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Australian Security
Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism
Offences) Act 2019.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table.
3. Table item 1 in subclause 2(1) provides that the whole of the Act will commence on
the day after the Act receives the Royal Assent.
Clause 3 - Schedules
4. This clause specifies that each Act specified in a Schedule to this Act is amended or
repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to
this Act has effect according to its terms.
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Schedule 1 - Amendments
Item 1 - Section 34ZZ
5. Item 1 amends section 34ZZ of the Australian Security Intelligence Organisation Act
1979, which provides that Division 3 of Part III ceases to have effect on 7 September 2019.
The effect of this item will be to extend the operation of Division 3 of Part III by 12 months
to 7 September 2020.
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