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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
AUSTRALIAN SECURITY INTELLIGENCE
ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL
2002
FURTHER REVISED SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Attorney-General, the Honourable Daryl Williams
AM QC MP)
AMENDMENTS TO THE AUSTRALIAN SECURITY INTELLIGENCE
ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002
OUTLINE
The Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Bill 2002, as introduced into the House of
Representatives, amends the Australian Security Intelligence Organisation Act
1979 (‘ASIO Act’) to enhance the capacity of the Australian
Security Intelligence Organisation (‘ASIO’) to combat terrorism. It
achieves this by giving ASIO powers with regard to the collection of
intelligence that may substantially assist in the investigation of terrorism
offences.The Government amendments to the Bill will clarify that:
• in
deciding whether to consent to the making of a request for a subsequent warrant,
the Minister must (1) take into account the fact of the issue of the previous
warrant and (2) only consent to the making of the request if the Minister is
satisfied that the issue of the warrant to be requested would be justified by
information additional to that known to the Director-General of ASIO at the time
of the request for consent to the issue of the previous warrant;
and
• in considering a request for a subsequent warrant, the
issuing authority must (1) take into account the fact of the issue of the
previous warrant and (2) be satisfied that issuing the requested warrant is
justified by information additional to that known to the Director-General of
ASIO at the time of the request for consent to the issue of the previous
warrant; and
• a request for consent to issue a warrant must
include, in addition to a statement of particulars and outcomes of all previous
requests for the issue of a warrant under section 34D, details of the duration
of detention and questioning under those warrants.
The amendments also
provide that a person may not be detained for a continuous period of more that
168 hours, and that the Parliamentary Joint Committee on ASIO, ASIS and DSD
review of the Bill will occur at least six months prior to the Bill’s
sunset provision coming into effect.
The amendments will have no financial impact.
NOTES ON ITEMS
Item 1
This item amends item 24 of Schedule 1 to the Bill
as introduced. The amendment is technical, and is consequential on item 2,
which inserts a new paragraph (d) into subsection 34C(2).
Item 2
This item amends item 24 of Schedule 1 to the Bill as introduced to
insert a new paragraph (d) into subsection 34C(2). Proposed subsection 34C(2)
sets out the matters which must be addressed by the Director-General in seeking
the Minister’s consent to requesting the issue of a warrant under section
34D.
The effect of this item is to require that, in addition to including
details of the particulars and outcomes of all previous warrants under section
34D in relation to the person, the request must include details of the periods
for which the person was questioned under those warrants, and, if a previous
warrant authorised the detention of the person, the period for which the person
was detained under the warrant.
Item 3
This item amends
item 24 of Schedule 1 to the Bill as introduced to insert a new subsection
34C(3D).
New proposed subsection 34C(3D) requires that, in
circumstances where a warrant has previously been issued under section 34D in
relation to the person, the Minister must take account of that fact in deciding
whether to consent to the request for a further warrant. In addition, the
Minister may only consent if the Minister is satisfied that the issue of the
warrant is justified by additional information which was not known to the
Director-General at the time the Director-General sought the Minister’s
consent to request the issue of the previous warrant.
This amendment
makes it clear that due consideration must be given to the existence of the
previous warrant and that the Minister must take account of the fact that a
previous warrant has been issued in relation to the person in determining
whether the issue of a further warrant is justified on the basis of additional
information not previously known to the Director-General at the time the
Director-General sought the Minister’s consent to request the issue of the
previous warrant. This requirement is in addition to the matters set out in
section 34C(3) of the Bill that the Minister must be satisfied of before
consenting to the making of a request for a warrant.
Item 4
This item amends item 24 of Schedule 1 to the Bill as introduced to
insert a new subsection 34D(1A).
New proposed subsection 34D(1A)
requires that, in circumstances where a warrant has previously been issued under
section 34D in relation to the person, the issuing authority must take account
of that fact in deciding whether to issue the warrant requested. In addition,
the issuing authority may only issue the warrant if the authority is satisfied
that the issue of the warrant would be justified by information additional to
that known to the Director-General at the time the Director-General sought the
Minister’s consent to request the issue of the previous
warrant.
This amendment makes it clear that due consideration must be
given to the existence of the previous warrant and that the issuing authority
must take account of the fact that a previous warrant has been issued in
relation to the person in determining whether the issue of a further warrant is
justified by information additional to that known to the Director-General at the
time the Director-General sought the Minister’s consent to request the
issue of the previous warrant. This requirement is in addition to the matters
set out in section 34D(1) of the Bill that the issuing authority must be
satisfied of before issuing a warrant.
Item 5
This item
amends item 24 of Schedule 1 to the Bill as introduced to include a new proposed
section 34HC. The effect of this amendment is to provide that a person may not
be detained under proposed Division 3 of the Act for a continuous period of more
than 168 hours.
Item 6
This item amends item 27D of
Schedule 1 to the Bill as introduced to replace the reference to ‘as soon
as possible after the third anniversary’ with a reference to ‘within
30 months’.
Item 27D requires that the Parliamentary Joint
Committee on ASIO, ASIS and DSD to review the operation, effectiveness and
implications of amendments made by the Bill as soon as possible after the third
anniversary of the receipt of Royal Assent of the Bill. This amendment will
replace that requirement with a requirement to review the operation,
effectiveness and implications of the Bill within 30 months of the receipt of
Royal Assent.
This amendment is consequential upon an amendment to item 3
of the Bill as introduced to provide for sunsetting of proposed Division 3 three
years after Royal Assent to the Bill. Under the review clause as amended by
this item the Committee will be required to review the Bill within 30 months of
its commencement, allowing the review to commence prior to sunsetting of the
detention and questioning regime.