Commonwealth: Australian Security Intelligence Organisation Amendment Act 2020 (Cth)

Australian Security Intelligence Organisation Amendment Act 2020 No. 134, 2020 Compilation No. 1 Compilation date: 23 September 2021 Registered: 23 September 2021 This compilation only includes editorial changes About this compilation This compilation This is a compilation of the Australian Security Intelligence Organisation Amendment Act 2020 that shows the text of the law as amended and in force on 23 September 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments relating to compulsory questioning powers Part 1—Amendments Australian Security Intelligence Organisation Act 1979 Part 2—Application and saving provisions Part 3—Consequential amendments Crimes Act 1914 Criminal Code Act 1995 Foreign Evidence Act 1994 Inspector‑General of Intelligence and Security Act 1986 Intelligence Services Act 2001 Part 4—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 Australian Security Intelligence Organisation Act 1979 Schedule 2—Amendments relating to tracking devices Australian Security Intelligence Organisation Act 1979 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Editorial changes An Act to amend the Australian Security Intelligence Organisation Act 1979, and for related purposes 1 Short title This Act is the Australian Security Intelligence Organisation Amendment Act 2020. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 17 December 2020 2. Schedule 1, Parts 1 to 3 The earlier of: 7 September 2020 (a) a single day to be fixed by Proclamation; and (paragraph (b) applies) (b) 7 September 2020. 3. Schedule 1, items 27 and 28 Immediately after the commencement of the provisions covered by table item 2. Never commenced However, the provisions do not commence at all unless Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 commences before the commencement of the provisions covered by table item 2. 4. Schedule 1, item 29 The later of: 1 September 2021 (a) immediately after the commencement of the provisions covered by table item 2; and (paragraph (b) applies) (b) immediately after the commencement of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021. However, the provision does not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 2 The earlier of: 7 September 2020 (a) the start of the day after this Act receives the Royal Assent; and (paragraph (b) applies) (b) immediately before the commencement of the provisions covered by table item 2. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to compulsory questioning powers Part 1—Amendments Australian Security Intelligence Organisation Act 1979 1 Section 4 Insert: computer means all or part of: (a) one or more computers; or (b) one or more computer systems; or (c) one or more computer networks; or (d) any combination of the above. 2 Section 4 (paragraph (ba) of the definition of politically motivated violence) Repeal the paragraph, substitute: (ba) acts that are offences punishable under Subdivision A of Division 72, or Part 5.3, of the Criminal Code; or 3 Section 4 (definition of terrorism offence) Repeal the definition. 4 Section 22 (definition of computer) Repeal the definition. 5 Subsection 25A(2) (note) Omit "section 22", substitute "section 4". 6 Subsection 34(1A) Omit "subsection 34AAA(2)", substitute "subsection 34AAD(2)". 7 Section 34A (first occurring) (heading) Repeal the heading, substitute: 34AAA Director‑General to report to Attorney‑General—concealment of access 8 Section 34AA (heading) Repeal the heading, substitute: 34AAC Evidentiary certificates 9 Section 34AAA (heading) Repeal the heading, substitute: 34AAD Person with knowledge of a computer or a data storage device to assist access to data 9A Subparagraph 34AAA(1)(a)(ix) Omit "section 34ZB", substitute "subsection 34CC(5)". 10 Division 3 of Part III Repeal the Division, substitute: Division 3—Compulsory questioning powers Subdivision A—General provisions 34A Definitions In this Division: adult questioning matter means a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from any of the following: (a) espionage; (b) politically motivated violence; (c) acts of foreign interference; whether directed from, or committed within, Australia or not. adult questioning warrant means a warrant issued under section 34BA (including such a warrant as varied under section 34BG). against: a confiscation proceeding is against a person if: (a) for a proceeding under the Proceeds of Crime Act 2002—the person is a suspect (within the meaning of that Act) for the proceeding; or (b) for a proceeding under a law of a State or Territory—the person is in a corresponding category for that law. charged: a person is charged with an offence if a process for prosecuting the person for the offence commences. communication device means: (a) a device that a person may use to communicate information to another person; or (b) a surveillance device (within the meaning of Division 2). complaints agency means an Ombudsman, agency or body: (a) that is appointed or established by a law of a State or Territory; and (b) that is permitted or required to investigate complaints about the police force or police service of the State or Territory; other than an agency or body prescribed by the regulations for the purposes of this definition. confiscation proceeding means a proceeding under: (a) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; or (b) a corresponding law within the meaning of either of those Acts; but does not include a criminal prosecution for an offence under either of those Acts or a corresponding law. criminal proceeding means: (a) a prosecution for an offence against a law of the Commonwealth or of a State or Territory; or (b) a confiscation proceeding. dangerous item means: (a) a weapon; or (b) any other thing that is or could be used in a dangerous or threatening way. derivative material means any evidence, information, record or other thing obtained directly or indirectly from questioning material. disclose, for questioning material or derivative material, includes: (a) to make available; and (b) to disclose copies, contents or descriptions of that material. extra permitted questioning period has the meaning given by subsection 34DK(3). immediate appearance requirement: a questioning warrant includes an immediate appearance requirement if it requires the subject of the warrant to appear before a prescribed authority for questioning under the warrant immediately after the subject is given notice of the requirement in accordance with section 34BH. imminent: (a) a charge against a person is imminent if: (i) the person is under arrest for an offence, but has not been charged with the offence; or (ii) a person with authority to commence a process for prosecuting the person for an offence has decided to commence, but not yet commenced, the process; or (b) a confiscation proceeding against a person is imminent if a person with authority to commence the proceeding has decided to commence, but not yet commenced, the proceeding. Note: Subparagraph (a)(ii) applies, for example, if a person with authority to lay the charge has decided to lay, but not yet laid, the charge. lawyer means a person who: (a) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and (b) holds a practising certificate granted under a law of a State or Territory. minor questioning matter means a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not. minor questioning warrant means a warrant issued under section 34BB (including such a warrant as varied under section 34BG). minor's representative, for the subject of a minor questioning warrant, has the meaning given by section 34AA. permitted questioning period has the meaning given by subsection 34DJ(3). police officer means any of the following: (a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); (b) a special member of the Australian Federal Police (within the meaning of that Act); (c) a member of the police force or police service of a State or Territory. post‑charge: (a) a use or disclosure of questioning material or derivative material is a post‑charge use or disclosure if the use or disclosure happens at a time when: (i) the subject for the material has been charged with a related offence and that charge is still to be resolved; or (ii) such a charge is imminent; or (b) material is post‑charge questioning material if the material becomes questioning material at a time when: (i) the subject for the material has been charged with a related offence and that charge is still to be resolved; or (ii) such a charge is imminent; or (c) questioning under a questioning warrant is post‑charge questioning if the questioning commences at a time when: (i) the subject of the warrant has been charged with a related offence and that charge is still to be resolved; or (ii) such a charge is imminent; or (d) a questioning warrant is a post‑charge questioning warrant if the warrant is issued at a time when: (i) the subject of the warrant has been charged with a related offence and that charge is still to be resolved; or (ii) such a charge is imminent. post‑confiscation application: (a) a use or disclosure of questioning material or derivative material is a post‑confiscation application use or disclosure if the use or disclosure happens at a time when: (i) a related confiscation proceeding has commenced against the subject for the material and that proceeding is still to be resolved; or (ii) such a proceeding is imminent; or (b) material is post‑confiscation application questioning material if the material becomes questioning material at a time when: (i) a related confiscation proceeding has commenced against the subject for the material and that proceeding is still to be resolved; or (ii) such a proceeding is imminent; or (c) questioning under a questioning warrant is post‑confiscation application questioning if the questioning commences at a time when: (i) a related confiscation proceeding has commenced against the subject of the warrant and that proceeding is still to be resolved; or (ii) such a proceeding is imminent; or (d) a questioning warrant is a post‑confiscation application questioning warrant if the warrant is issued at a time when: (i) a related confiscation proceeding has commenced against the subject of the warrant and that proceeding is still to be resolved; or (ii) such a proceeding is imminent. pre‑charge: (a) a use or disclosure of questioning material or derivative material is a pre‑charge use or disclosure if the use or disclosure happens at a time when: (i) the subject for the material has not been charged with a related offence, and such a charge is not imminent; or (ii) all such charges have been resolved; or (b) material is pre‑charge questioning material if the material becomes questioning material at a time when: (i) the subject for the material has not been charged with a related offence, and such a charge is not imminent; or (ii) all such charges have been resolved; or (c) questioning under a questioning warrant is pre‑charge questioning if the questioning commences at a time when: (i) the subject of the warrant has not been charged with a related offence, and such a charge is not imminent; or (ii) all such charges have been resolved. pre‑confiscation application: (a) a use or disclosure of questioning material or derivative material is a pre‑confiscation application use or disclosure if the use or disclosure happens at a time when: (i) a related confiscation proceeding has not commenced against the subject for the material, and such a proceeding is not imminent; or (ii) all such proceedings have been resolved; or (b) material is pre‑confiscation application questioning material if the material becomes questioning material at a time when: (i) a related confiscation proceeding has not commenced against the subject for the material, and such a proceeding is not imminent; or (ii) all such proceedings have been resolved; or (c) questioning under a questioning warrant is pre‑confiscation application questioning if the questioning commences at a time when: (i) a related confiscation proceeding has not commenced against the subject of the warrant, and such a proceeding is not imminent; or (ii) all such proceedings have been resolved. prescribed authority means a person appointed under subsection 34AD(1). proceeds of crime authority means: (a) a proceeds of crime authority within the meaning of the Proceeds of Crime Act 2002; or (b) an authority of a State or Territory responsible for conducting a confiscation proceeding under a corresponding law (within the meaning of the Proceeds of Crime Act 2002). prosecuting authority means an individual, or authority, authorised by or under a law of the Commonwealth or of a State or Territory to prosecute an offence. prosecutor, of the subject of a questioning warrant, means an individual: (a) who is a prosecuting authority or is employed or engaged by a prosecuting authority; and (b) who: (i) makes, or is involved in the making of, a decision whether to prosecute the subject for a related offence; or (ii) is one of the individuals engaging in such a prosecution of the subject. questioning material has the meaning given by subsection 34AB(1). questioning warrant means: (a) an adult questioning warrant; or (b) a minor questioning warrant. record has the same meaning as in Division 2. related confiscation proceeding, for questioning material, derivative material or the subject of a questioning warrant, means a confiscation proceeding if the subject matter of the relevant questioning relates to the subject matter of the proceeding. related offence, for questioning material, derivative material or the subject of a questioning warrant, means an offence if the subject matter of the relevant questioning relates to the subject matter of the offence. resolved, in relation to a charge or a confiscation proceeding, has the meaning given by section 34AC. screening equipment means a metal detector or a device for detecting objects or particular substances. subject: (a) in relation to a questioning warrant—means the person specified in the warrant; or (b) for questioning material or derivative material—has the meaning given by subsection 34AB(3). superior court means: (a) the High Court; or (b) the Federal Court of Australia; or (c) the Family Court of Australia or of a State; or (d) the Supreme Court of a State or Territory; or (e) the District Court (or equivalent) of a State or Territory. undergo a screening procedure: a person undergoes a screening procedure at a place if: (a) the person walks, or is moved, through screening equipment at the place; or (b) handheld screening equipment is passed over or around the person or around things that are at the place and in the person's possession or control; or (c) things that are at the place and in the person's possession or control are passed through screening equipment or examined by X‑ray. use, for questioning material or derivative material, includes use of copies, contents or descriptions of that material. 34AA Meaning of minor's representative (1) A person is a minor's representative for the subject of a minor questioning warrant if the person is: (a) a parent of the subject; or (b) a guardian of the subject; or (c) another person who meets the requirements in subsection (2). (2) A person meets the requirements of this subsection if the person: (a) is able to represent the subject's interests; and (b) is, as far as practicable in the circumstances, acceptable to the subject and, if applicable, to the prescribed authority; and (c) is not one of the following: (i) a police officer; (ii) the Director‑General; (iii) an ASIO employee or an ASIO affiliate; (iv) a person approved under section 24. Note: A lawyer for the subject of a minor questioning warrant, including a lawyer appointed under paragraph 34FC(2)(a) or (3)(b), may also be a minor's representative for the subject if the lawyer meets the requirements of this subsection. 34AB Meaning of questioning material and subject (1) Questioning material is: (a) any information given by a person while before a prescribed authority for questioning under a questioning warrant; or (b) a record or other thing produced by a person while before a prescribed authority for questioning under a questioning warrant; or (c) any information that might enable a person, who has appeared before a prescribed authority for questioning under a questioning warrant, to be identified; or (d) the fact that a person has appeared, or is required to appear, before a prescribed authority for questioning under a questioning warrant. (2) To avoid doubt, information, a record or a thing is not covered by paragraph (1)(a) or (b) to the extent that it is obtained otherwise than before a prescribed authority under a questioning warrant. Example: Before a record is produced before a prescribed authority, a copy of the record is obtained when executing a search warrant. The copy obtained under the search warrant is not questioning material. (3) The subject is: (a) for questioning material—the person referred to in paragraph (1)(a), (b), (c) or (d); or (b) for derivative material—the person who is the subject for the questioning material from which the derivative material was obtained. 34AC Meaning of resolved (1) A charge for an offence is resolved in relation to a person at the later of the following times: (a) when: (i) the charge is withdrawn; or (ii) the charge is dismissed; or (iii) the person is not committed on the charge following a committal hearing; or (iv) the person is acquitted of the offence; or (v) the person is sentenced for the offence; or (vi) the person is dealt with by being the subject of a court order made as a consequence of a finding of guilt; or (vii) the charge is otherwise finally dealt with; (b) if an appeal relating to the charge is not lodged within the period for lodging such an appeal—when that period ends; (c) if an appeal relating to the charge is lodged—when the appeal lapses or is finally determined. Despite paragraph (b), if an appeal relating to the charge is lodged after that period ends, the charge ceases to be resolved until that appeal lapses or is finally determined. (2) A confiscation proceeding is resolved in relation to a person at the later of the following times: (a) when the proceeding is discontinued; (b) if an appeal relating to the proceeding is not lodged within the period for lodging such an appeal—when that period ends; (c) if an appeal relating to the proceeding is lodged—when the appeal lapses or is finally determined. Despite paragraph (b), if an appeal relating to the proceeding is lodged after that period ends, the proceeding ceases to be resolved until that appeal lapses or is finally determined. 34AD Prescribed authorities Appointment of prescribed authority (1) The Attorney‑General may, in writing, appoint as a prescribed authority: (a) a person who: (i) has served as a judge in one or more superior courts for a period of at least 5 years; and (ii) no longer holds a commission as a judge of a superior court; or (b) a person who: (i) holds an appointment to the Administrative Appeals Tribunal as President or Deputy President; and (ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and (iii) has been enrolled for at least 5 years; or (c) a person who: (i) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and (ii) has engaged in practice as a legal practitioner for at least 10 years; and (iii) holds a practising certificate granted under a law of a State or Territory; and (iv) is a Queen's Counsel or a Senior Counsel. (2) A person is not eligible for appointment under subsection (1) if the person is: (a) an ASIO employee or an ASIO affiliate; or (b) the Director‑General; or (c) an AGS lawyer (within the meaning of the Judiciary Act 1903); or (d) an IGIS official; or (e) a person referred to in subsection 6(1) of the Australian Federal Police Act 1979; or (f) a staff member of a law enforcement agency (other than the Australian Federal Police); or (g) a staff member of an intelligence or security agency. (3) The Attorney‑General must not appoint a person to whom paragraph (1)(c) applies unless the Attorney‑General is satisfied that the person has the knowledge or experience necessary to properly perform the duties of a prescribed authority. (4) The Attorney‑General must not appoint a person unless: (a) the person has, in writing, consented to being appointed; and (b) the consent is in force. (5) Before appointing a person as a prescribed authority, the Attorney‑General must have regard to: (a) whether the person engages in any paid or unpaid work that conflicts, or could conflict, with the proper performance of the person's duties as a prescribed authority; and (b) whether the person has any interests, pecuniary or otherwise, that conflict, or could conflict, with the proper performance of the person's duties as a prescribed authority. Duty to disclose interests (6) A person who: (a) is appointed as a prescribed authority; and (b) has a material personal interest that relates to the proper performance of the person's duties as a prescribed authority; must disclose that interest, in writing, to the Attorney‑General. (7) The disclosure must include details of: (a) the nature and extent of the interest; and (b) how the interest relates to the proper performance of the person's duties as a prescribed authority. (8) The person must make the disclosure: (a) as soon as practicable after the person becomes aware of the interest; and (b) if there is a change in the nature or extent of the interest after the person has disclosed the interest under this section—as soon as practicable after the person becomes aware of that change. Termination of appointment (9) The Attorney‑General may terminate the appointment of a prescribed authority: (a) for misbehaviour; or (b) if the prescribed authority is unable to perform the duties of a prescribed authority because of physical or mental incapacity; or (c) if the prescribed authority becomes bankrupt; or (d) if the prescribed authority fails, without reasonable excuse, to comply with subsection (6), (7) or (8); or (e) if the prescribed authority engages in paid or unpaid work, or has an interest, pecuniary or otherwise, that, in the Attorney‑General's opinion, conflicts or could conflict with the proper performance of the prescribed authority's duties. Definitions (10) In this section: paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise). unpaid work means work that is not paid work. 34AE Status of prescribed authorities A prescribed authority has, in the performance of the prescribed authority's duties under this Division, the same protection and immunity as a Justice of the High Court. 34AF Written statement of procedures (1) The Director‑General may prepare a written statement of procedures to be followed in the exercise of authority under a questioning warrant. Consultation (2) The Director‑General must consult the following about the preparation of the statement: (a) the Inspector‑General of Intelligence and Security; (b) the Commissioner of the Australian Federal Police. Approval by Attorney‑General (3) The Director‑General must give the statement to the Attorney‑General for approval. (4) The Attorney‑General must approve or refuse to approve the statement. Approved statement is a legislative instrument (5) A statement approved by the Attorney‑General is a legislative instrument made by the Attorney‑General on the day on which the statement is approved, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the statement. Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the statement: see regulations made for the purposes of paragraph 54(2)(b) of that Act. Briefing of Parliamentary Joint Committee on Intelligence and Security (6) The Director‑General must brief the Parliamentary Joint Committee on Intelligence and Security on the statement after it is approved by the Attorney‑General. The briefing may be done orally or in writing. 34AG Humane treatment of subject of questioning warrant (1) This section applies to the subject of a questioning warrant while anything is being done in relation to the subject under: (a) the warrant; or (b) a direction given by a prescribed authority in relation to the warrant. (2) The subject must be treated with humanity and with respect for human dignity, and must not be subjected to torture or to cruel, inhuman or degrading treatment, by any person exercising authority under the warrant or implementing or enforcing the direction. Subdivision B—Questioning warrants 34B Request for questioning warrant Request for warrant (1) The Director‑General may request the Attorney‑General to issue, in relation to a person: (a) an adult questioning warrant; or (b) a minor questioning warrant. (2) The request may be made: (a) in writing; or (b) if the Director‑General reasonably believes that the delay caused by making a written request may be prejudicial to security—orally in person, or by telephone or other means of communication. (3) To avoid doubt, this section operates in relation to a request for the issue of a questioning warrant in relation to a person, even if a request (a previous request) for the issue of a questioning warrant has previously been made under this section in relation to the person. Requirements for requests (4) A request under subsection (1) must include: (a) a statement of the facts and other grounds on which the Director‑General considers it necessary that the warrant should be issued; and (b) a statement of the particulars and outcomes of any previous requests for the issue of a questioning warrant in relation to the person; and (c) if one or more warrants were issued as a result of the previous requests—a statement of: (i) the period for which the person was questioned under each of those warrants; and (ii) whether the person was apprehended in connection with any of those warrants; and (d) whether the request is for a warrant that includes an immediate appearance requirement; and (e) if the request is for a warrant that includes an immediate appearance requirement—whether the request is also for a questioning warrant that authorises the apprehension of the person; and (f) if the request is for a minor questioning warrant—all information known to the Director‑General, at the time of the making of the request, about the matters mentioned in subsection 34BB(3). Additional requirements for oral requests (5) If a request under subsection (1) is to be made orally, the Director‑General must, before or as soon as practicable after the request is made, cause the Inspector‑General of Intelligence and Security to be notified that the request will be or has been made. (6) If a request under subsection (1) is made orally, the Director‑General must: (a) make a written record of the request that includes: (i) the day and time the request is made; and (ii) the reasons why the Director‑General believes that the delay caused by making a written request may be prejudicial to security; and (iii) the matters mentioned in subsection (4); and (b) as soon as practicable, and no later than 48 hours after the request is made, provide the written record to: (i) the Attorney‑General; and (ii) the Inspector‑General of Intelligence and Security. 34BA Test for issue of questioning warrant—persons who are at least 18 (1) If the Director‑General requests the Attorney‑General to do so, the Attorney‑General may issue a warrant in relation to a person under this section if the Attorney‑General is satisfied that: (a) the person is at least 18 years old; and (b) there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to an adult questioning matter; and (c) having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued; and (d) if the warrant is a post‑charge, or post‑confiscation application, questioning warrant—it is necessary, for the purposes of collecting the intelligence, for the warrant to be issued even though: (i) the person has been charged or the confiscation proceeding has commenced; or (ii) that charge or proceeding is imminent; and (e) there is in force under section 34AF a written statement of procedures to be followed in the exercise of authority under a questioning warrant. (2) Without limiting its effect apart from this subsection, this Act also has the effect it would have if: (a) paragraph (1)(d) had not been enacted; or (b) paragraph (1)(d) were, by express provision, confined to dealing with a charge against the person or such a charge that is imminent; or (c) paragraph (1)(d) were, by express provision, confined to dealing with a confiscation proceeding against the person that has commenced or is imminent. 34BB Test for issue of questioning warrant—persons who are at least 14 (1) If the Director‑General requests the Attorney‑General to do so, the Attorney‑General may issue a warrant in relation to a person under this section if the Attorney‑General is satisfied that: (a) the person is at least 14 years old; and (b) there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not; and (c) there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a minor questioning matter; and (d) having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued; and (e) if the warrant is a post‑charge, or post‑confiscation application, questioning warrant—it is necessary, for the purposes of collecting the intelligence, for the warrant to be issued even though: (i) the person has been charged or the confiscation proceeding has commenced; or (ii) that charge or proceeding is imminent; and (f) there is in force under section 34AF a written statement of procedures to be followed in the exercise of authority under a questioning warrant. (2) In deciding whether to issue the warrant, the Attorney‑General must consider the best interests of the person as a primary consideration. (3) In considering the best interests of a person for the purposes of subsection (2), the Attorney‑General must take into account the following matters: (a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person; (b) the physical and mental health of the person; (c) the benefit to the person of having a meaningful relationship with the person's family and friends; (d) the right of the person to receive an education; (e) the right of the person to practise the person's religion; (f) any other matter the Attorney‑General considers relevant. (4) The Attorney‑General must take into account the matters in subsection (3) only to the extent that: (a) the matters are known to the Attorney‑General; and (b) the matters are relevant. Note: Information about the matters in subsection (3) is provided to the Attorney‑General as part of the request for the warrant: see paragraph 34B(4)(f). (5) Without limiting its effect apart from this subsection, this Act also has the effect it would have if: (a) paragraph (1)(e) had not been enacted; or (b) paragraph (1)(e) were, by express provision, confined to dealing with a charge against the person or such a charge that is imminent; or (c) paragraph (1)(e) were, by express provision, confined to dealing with a confiscation proceeding against the person that has commenced or is imminent. 34BC Warrant has no effect if person under 14 A questioning warrant has no effect if the subject of the warrant is under 14 years old. 34BD What a questioning warrant authorises (1) A questioning warrant must, subject to any restrictions or conditions specified in the warrant: (a) require the subject of the warrant to appear before a prescribed authority for questioning under the warrant either: (i) if the warrant includes an immediate appearance requirement—immediately after the subject is given notice of the requirement in accordance with section 34BH; or (ii) at a day and time specified in the warrant; and (b) subject to subsection (2), authorise the Organisation to question the subject of the warrant before a prescribed authority by requesting the subject to: (i) if the warrant is an adult questioning warrant—give information, or produce a record or other thing, that is, or may be, relevant to intelligence that is important in relation to an adult questioning matter; or (ii) if the warrant is a minor questioning warrant—give information, or produce a record or other thing, that is, or may be, relevant to intelligence that is important in relation to a minor questioning matter; and (c) authorise the Organisation to make copies or transcripts of a record produced by the subject while before a prescribed authority for questioning under the warrant. Additional requirements for minors (2) For the purposes of paragraph (1)(b), if the warrant is a minor questioning warrant, the warrant authorises the Organisation to question the subject of the warrant before a prescribed authority: (a) only in the presence of a minor's representative for the subject; and (b) only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority. Note 1: Also, the subject of a minor questioning warrant may be questioned only in the presence of a lawyer for the subject: see subsection 34FA(1). Note 2: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34DE(1)(e) for the subject's further appearance before the prescribed authority for questioning. (3) To avoid doubt, subsection (2) does not affect the operation of section 34DJ (permitted questioning time) or 34DK (extra permitted questioning time if interpreter present). Matters in relation to which the Organisation may request information etc. (4) For the purposes of paragraph (1)(b), the matters in relation to which the Organisation may request the subject to give information, or produce records or things, may include: (a) the subject matter of any charge, or imminent charge, against the subject; and (b) the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the subject. Severability (5) Without limiting its effect apart from this subsection, this Act also has the effect it would have if: (a) subsection (4) had not been enacted; or (b) subsection (4) were, by express provision, confined to dealing with a charge against the subject or such a charge that is imminent; or (c) subsection (4) were, by express provision, confined to dealing with a confiscation proceeding against the subject that has commenced or is imminent. 34BE Other things that may be authorised in questioning warrant Warrant may require immediate appearance (1) A questioning warrant may include an immediate appearance requirement if the Attorney‑General is satisfied that it is reasonable and necessary in the circumstances. Note: For the definition of immediate appearance requirement, see section 34A. Warrant may authorise apprehension (2) If: (a) a questioning warrant is to include an immediate appearance requirement under subsection (1); and (b) the Attorney‑General is satisfied that there are reasonable grounds for believing that, if the subject of the warrant is not apprehended, the subject is likely to: (i) alert a person involved in an activity prejudicial to security that the activity is being investigated; or (ii) not appear before the prescribed authority; or (iii) destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested under the warrant to produce; the warrant may also authorise the apprehension of the subject by a police officer in order to immediately bring the subject before the prescribed authority for questioning under the warrant. Note: A police officer may also apprehend the subject of a questioning warrant if the subject makes certain representations: see subsection 34C(2). Warrant may authorise seizure of certain records or other things found during search (3) If the Attorney‑General is satisfied that it is reasonable and necessary in the circumstances, a questioning warrant may provide that if: (a) a police officer conducts a search of the subject of the warrant under section 34CC; and (b) a record or other thing is found during the search that the officer reasonably believes is relevant to the collection of intelligence that is important in relation to: (i) if the warrant is an adult questioning warrant—an adult questioning matter; or (ii) if the warrant is a minor questioning warrant—a minor questioning matter; the officer is authorised to seize the record or other thing. Note: A police officer may only conduct a search of the subject of a questioning warrant under section 34CC if the subject is apprehended in connection with the warrant. Warrant may request production of records or things (4) A questioning warrant may request the subject of the warrant to produce, before a prescribed authority: (a) a specified record or other thing; or (b) a specified class of record or other thing; if the Attorney‑General is satisfied that the record or thing, or class of record or thing, is, or may be, relevant to intelligence that is important in relation to: (c) if the warrant is an adult questioning warrant—an adult questioning matter; or (d) if the warrant is a minor questioning warrant—a minor questioning matter. Warrant may require immediate further appearance etc. (5) If: (a) a questioning warrant is in force; and (b) the subject of the warrant has appeared before a prescribed authority for questioning under the warrant; and (c) the subject has not been questioned under the warrant for longer than the permitted questioning period or, if applicable, the extra permitted questioning period; and (d) the Attorney‑General is satisfied that it is reasonable and necessary in the circumstances; the warrant may, despite any direction given under subsection 34DE(1) to the contrary: (e) require the subject's further appearance before a prescribed authority for questioning under the warrant; and (f) include an immediate appearance requirement under subsection (1) in relation to the further appearance. Note: This subsection only applies if a questioning warrant that is in force is varied under section 34BG. (6) If: (a) a questioning warrant is to include the requirements mentioned in paragraphs (5)(e) and (f); and (b) the Attorney‑General is satisfied that there are reasonable grounds for believing that, if the subject of the warrant is not apprehended: (i) the subject is likely to alert a person involved in an activity prejudicial to security that the activity is being investigated; or (ii) the subject is likely to not comply with the requirements mentioned in paragraphs (5)(e) and (f); or (iii) the subject is likely to destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested under the warrant to produce; the warrant may also authorise the apprehension of the subject by a police officer in order to immediately bring the subject before the prescribed authority for further questioning under the warrant. 34BF Requirements for questioning warrant (1) A questioning warrant may be issued: (a) by means of a written document signed by the Attorney‑General; or (b) if the Attorney‑General is satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written warrant may be prejudicial to security—orally in person, or by telephone or other means of communication. Requirements for written warrants (2) If a questioning warrant is issued by means of a written document, the warrant must specify: (a) that the warrant authorises the things mentioned in subsection 34BD(1); and (b) which of the things mentioned in section 34BE are authorised by the warrant (if any); and (c) the period during which the warrant is to be in force. Requirements for oral warrants (3) If a questioning warrant is issued orally, the Director‑General must cause a written record of the warrant, that includes the matters mentioned in subsection (2), to be made as soon as practicable, and no later than 48 hours after the warrant is issued. Duration of warrant (4) A questioning warrant may remain in force for a period of no more than 28 days, although the Attorney‑General may revoke the warrant before the period has expired. Issue of further warrants not prevented (5) Subsection (4) does not prevent the issue of any further warrant. Written warrants and records not legislative instruments (6) The following are not legislative instruments: (a) a document referred to in paragraph (1)(a); (b) a written record referred to in subsection (3). 34BG Variation of questioning warrant Request for variation (1) The Attorney‑General may, on request by the Director‑General, vary a questioning warrant. (2) The request may be made: (a) in writing; or (b) if the Director‑General reasonably believes that the delay caused by making a written request may be prejudicial to security—orally in person, or by telephone or other means of communication. (3) The request must include the facts and other grounds on which the Director‑General considers it necessary that the warrant should be varied. Requirements for oral requests (4) If a request under subsection (1) is to be made orally, the Director‑General must, before or as soon as practicable after the request is made, notify the Inspector‑General of Intelligence and Security that the request will be or has been made. (5) If a request under subsection (1) is made orally, the Director‑General must: (a) make a written record of the request that includes: (i) the day and time the request is made; and (ii) the reasons why the Director‑General believes that the delay caused by making a written request may be prejudicial to security; and (iii) the matter mentioned in subsection (3); and (iv) whether the request is to vary the warrant to include an immediate appearance requirement; and (v) whether the request is to vary the warrant to authorise the apprehension of the subject of the warrant; and (vi) any other matter the Director‑General considers relevant; and (b) as soon as practicable, and no later than 48 hours after the request is made, provide the written record to: (i) the Attorney‑General; and (ii) the Inspector‑General of Intelligence and Security. Issue of variation (6) The variation may be issued: (a) by means of a written document signed by the Attorney‑General; or (b) if the Attorney‑General is satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written variation may be prejudicial to security—orally in person, or by telephone or other means of communication. (7) If the variation is issued orally, the Director‑General must cause a written record of the variation to be made as soon as practicable, and no later than 48 hours after the variation is issued. Limits on variation (8) If the variation extends, or further extends, the period during which the warrant is in force, the total period during which the warrant is in force must not exceed 28 days. Warrant may be varied more than once (9) A questioning warrant may be varied more than once under this section. Written variations and records not legislative instruments (10) The following are not legislative instruments: (a) a document referred to in paragraph (6)(a); (b) a written record referred to in subsection (7). 34BH Notification requirements in relation to questioning warrant (1) This section applies if the Attorney‑General issues a questioning warrant. (2) The Director‑General must cause the subject of the warrant to be given written notice of: (a) the warrant; and (b) the place where the subject is required to appear before a prescribed authority for questioning under the warrant; and (c) either: (i) if the warrant includes an immediate appearance requirement—the fact that the subject must appear before the prescribed authority for questioning under the warrant immediately after the subject is given notice of the requirement under this section; or (ii) otherwise—the day and time when the subject is required to appear before the prescribed authority for questioning under the warrant; and (d) the fact that the subject is able to contact a lawyer in accordance with section 34F; and (e) if the warrant is a minor questioning warrant—the fact that: (i) the subject may request that a minor's representative for the subject be present during the questioning; and (ii) the subject may be questioned only in the presence of a minor's representative for the subject; and (f) the subject's obligations under sections 34GD and 34GF; and (g) the subject's right to make a complaint orally or in writing to: (i) in relation to the Organisation—the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986; or (ii) in relation to the Australian Federal Police—the Ombudsman under the Ombudsman Act 1976; or (iii) in relation to the police force or police service of a State or Territory—a complaints agency of the State or Territory concerned; and (h) the fact that the subject may seek from a federal court a remedy relating to the warrant or the treatment of the subject in connection with the warrant. (3) If the warrant is varied before the subject is given notice of the warrant in accordance with this section, the Director‑General must cause the subject to be given written notice of: (a) the warrant as varied; and (b) the matters mentioned in paragraphs (2)(b) to (h). (4) If: (a) the warrant is varied after the subject is given notice of the warrant in accordance with this section; and (b) the variation may affect the subject's obligations under the warrant or the information provided in the notice; the Director‑General must, as soon as practicable, cause the subject to be given written notice of: (c) the variation; and (d) the effect of the variation on the subject's obligations under the warrant. Note: For example, if the warrant is varied to include an immediate appearance requirement, the Director‑General must cause the subject to be given written notice of the fact that the subject must appear before the prescribed authority immediately after the notice is given. (5) If the warrant is revoked after the subject is given notice of the warrant in accordance with this section, the Director‑General must, as soon as practicable, cause the subject to be given written notice of: (a) the revocation; and (b) the fact that the subject is no longer required to appear before a prescribed authority for questioning under the warrant; and (c) the effect of section 34GF; and (d) the subject's right to contact a lawyer in relation to the warrant at any time. Subdivision C—Apprehension and search powers etc. 34C Police officer may apprehend subject of questioning warrant in certain circumstances Apprehension where authorised by warrant (1) If a questioning warrant authorises the apprehension of the subject of the warrant, a police officer may apprehend the subject in order to immediately bring the subject before a prescribed authority for questioning under the warrant. Note 1: The Attorney‑General may only issue a questioning warrant that authorises the apprehension of the subject of the warrant if: (a) the warrant includes an immediate appearance requirement; and (b) the Attorney‑General is satisfied of certain matters. See subsection 34BE(2). Note 2: A police officer's power to apprehend the subject of a questioning warrant under this subsection ends when the subject appears before a prescribed authority for questioning under the warrant. Apprehension where certain representations made (2) If: (a) a questioning warrant includes an immediate appearance requirement; and (b) the warrant does not authorise the apprehension of the subject of the warrant; and (c) at the time the subject is given notice of the requirement in accordance with section 34BH, the subject makes a representation that the subject intends to: (i) alert a person involved in an activity prejudicial to security that the activity is being investigated; or (ii) not appear before the prescribed authority; or (iii) destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested in accordance with the warrant to produce; a police officer may apprehend the subject in order to immediately bring the subject before a prescribed authority for questioning under the warrant. Note: A police officer's power to apprehend the subject of a questioning warrant under this subsection ends when the subject appears before a prescribed authority for questioning under the warrant. Apprehension where subject fails to appear (3) If the subject of a questioning warrant fails to appear before a prescribed authority as required by: (a) the warrant; or (b) a direction given by the prescribed authority under subsection 34DE(1); a police officer may apprehend the subject in order to immediately bring the subject before the prescribed authority for questioning under the warrant. Note: A police officer's power to apprehend the subject of a questioning warrant under this subsection ends when the subject appears before a prescribed authority for questioning under the warrant. Definitions (4) In this section, representation includes: (a) an express or implied representation (whether oral or in writing); and (b) a representation that could be inferred from conduct; and (c) a representation not intended by its maker to be communicated to or seen by another person; and (d) a representation that for any reason is not communicated. 34CA Entering premises to apprehend subject If: (a) a police officer is authorised under section 34C to apprehend the subject of a questioning warrant; and (b) the officer believes on reasonable grounds that the subject is on particular premises; the officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night, for the purpose of searching the premises for the subject or apprehending the subject. 34CB Communications while apprehended (1) The subject of a questioning warrant who is apprehended under this Division is not permitted to contact, and may be prevented from contacting, any person at any time during the period: (a) beginning when the subject is apprehended; and (b) ending when the subject appears before a prescribed authority for questioning under the warrant. (2) However: (a) the subject may contact any or all of the following: (i) a lawyer; (ii) if the warrant is a minor questioning warrant—a minor's representative for the subject; (iii) any other person the subject is permitted to contact by the warrant, or by a direction given under paragraph 34DE(1)(b); and (b) subsection (1) does not affect the following: (i) the operation of the Inspector‑General of Intelligence and Security Act 1986 in relation to contact between the subject and the Inspector‑General of Intelligence and Security; (ii) the operation of section 7 of the Ombudsman Act 1976 in relation to contact between the subject and the Ombudsman in respect of a complaint, or proposed complaint, about the Australian Federal Police; (iii) the subject's right to make a complaint to a complaints agency in relation to the police force or police service of the State or Territory concerned; and (c) any person apprehending the subject under this Division must, if requested by the subject, give the subject facilities for the following: (i) contacting a person mentioned in paragraph (a); (ii) contacting the Inspector‑General of Intelligence and Security; (iii) contacting the Ombudsman to make a complaint under section 7 of the Ombudsman Act 1976; (iv) contacting the Commissioner of the Australian Federal Police to give information under section 40SA of the Australian Federal Police Act 1979; (v) contacting a complaints agency to make a complaint of the kind mentioned in subparagraph (b)(iii). Note: For the purposes of paragraph (a), section 34F provides for the subject of a questioning warrant to contact a lawyer for the purpose of obtaining legal advice in relation to the warrant and, if the warrant is a minor questioning warrant, to also contact a minor's representative. 34CC Power to conduct search of apprehended subject of questioning warrant (1) This section applies if: (a) a questioning warrant is in force; and (b) the subject of the warrant is apprehended under this Division in connection with the warrant. Power to conduct search (2) A police officer may conduct an ordinary search or a frisk search of the subject at any time during the period: (a) beginning when the subject is apprehended; and (b) ending when the subject appears before a prescribed authority for questioning under the warrant. (3) An ordinary search or a frisk search of the subject must, if practicable, be conducted by a police officer of the same sex as the subject. Records or other things found during search (4) If: (a) a record or other thing is found during a search of the subject of a questioning warrant under this section; and (b) the record or other thing is: (i) a seizable item; or (ii) a communication device; the record or other thing may be seized under this subsection by the police officer conducting the search. (5) If: (a) a record or other thing is found during a search of the subject of a questioning warrant under this section; and (b) the police officer conducting the search reasonably believes that the record or other thing is relevant to the collection of intelligence that is important in relation to: (i) if the warrant is an adult questioning warrant—an adult questioning matter; or (ii) if the warrant is a minor questioning warrant—a minor questioning matter; and (c) the warrant authorises the seizure of such a record or other thing; the record or other thing may be seized under this subsection by the officer. (6) Despite subsection (4), a seizable item or a communication device is taken to have been seized under subsection (5) if: (a) the item or device is found during a search of the subject of a questioning warrant under this section; and (b) the item or device is seized by the police officer conducting the search; and (c) the requirements of paragraphs (5)(b) and (c) are met in relation to the item or device. 34CD Use of force in apprehending or searching subject A police officer may use such force as is necessary and reasonable in: (a) apprehending the subject of a questioning warrant in accordance with section 34C, or preventing the escape of the subject from such apprehension; or (b) conducting an ordinary search or a frisk search of the subject of a questioning warrant under subsection 34CC(2). 34CE Power to remove, retain and copy materials etc. Powers of the Organisation (1) In addition to the things that the Organisation is authorised to do that are specified in a questioning warrant, the Organisation is also authorised: (a) to remove and retain any record or other thing produced by the subject of the warrant while before a prescribed authority for questioning under the warrant, or to retain any record or other thing seized under subsection 34CC(5), for the purposes of: (i) inspecting or examining the record or thing; and (ii) in the case of a record—making copies or transcripts of the record; and (b) to do any other thing reasonably incidental to: (i) the things mentioned in paragraph (a); or (ii) any of the things that the Organisation is authorised to do that are specified in the warrant. (2) A record or other thing retained as mentioned in paragraph (1)(a) may be retained: (a) if returning the record or other thing would be prejudicial to security—only until returning the record or other thing would no longer be prejudicial to security; and (b) otherwise—for only such time as is reasonable. Powers of police officers (3) A seizable item seized by a police officer under subsection 34CC(4) may be retained for such time as is reasonable. (4) A communication device seized by a police officer under subsection 34CC(4) may be retained: (a) if returning the device would be prejudicial to security—only until returning the device would no longer be prejudicial to security; and (b) otherwise—for only such time as the prescribed authority before whom the subject is appearing for questioning under the warrant considers reasonable. Subdivision D—Matters relating to questioning under questioning warrants 34D Screening of persons (1) This section applies in relation to a person who is seeking to enter a place (the questioning place) where the subject of a questioning warrant is appearing, or is due to appear, before a prescribed authority for questioning under the warrant. Note: This section applies in relation to any person who is seeking to enter a questioning place, including the subject. Persons may be screened or sea