This is the text of an Explanatory Memorandum issued by the Attorney-General, Daryl Williams, explaining the purposes of the anti-terrorism legislation.
Explanatory Memorandum from the Attorney-General, Daryl Williams.
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 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 Bill will provide ASIO with the ability to seek a warrant to detain and question people for a period of up to 48 hours for the purposes of investigating terrorism offences.
Under this Bill, a person can be required under a warrant to provide information or produce records or things. Before the Director-General may seek a warrant from a prescribed authority, the Attorney-General must give consent. Before giving his or her consent, the Attorney-General must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist in the collection of intelligence that is important in relation to a terrorism offence and that relying on other methods of collecting the intelligence would be ineffective.
A prescribed authority will be a Federal Magistrate or a senior legal member of the Administrative Appeals Tribunal. A warrant may only be issued by the prescribed authority if the prescribed authority is satisfied that there are reasonable grounds for believing that such action will substantially assist in the collection of intelligence that is important in relation to a terrorism offence.
A warrant to be requested may only authorise the person to be immediately taken into custody by the police and detained if the Attorney-General is satisfied that there are reasonable grounds for believing that the person may: alert a person involved in a terrorist offence that the offence is being investigated; not appear before a prescribed authority; or destroy, damage or alter a record or thing the person may be requested under the warrant to produce.
The Bill includes a number of safeguards to ensure that the new powers are exercised reasonably.
The prescribed authority must be present throughout the questioning process.
The Bill specifically provides that a person being detained under a warrant must be treated with humanity and not subjected to cruel, inhuman or degrading treatment.
The Director-General must ensure that video recordings are made of the proceedings before the prescribed authority or any other matter that the prescribed authority directs. These recordings must be provided to the Inspector-General of Intelligence and Security (IGIS).
The Bill requires the prescribed authority to inform the person being detained under the warrant of the effect of the warrant; the length of time the warrant is in force; the legal consequences of non-compliance with the warrant and the right of the person being detained to communicate with the IGIS and the Ombudsman. Interpreting services must be provided before any questioning can take place if the person detained is unable to communicate in English.
The person detained has the right to make a complaint relating to ASIO to the IGIS or, if their complaint relates to the AFP, the Ombudsman. On request, the person detained is to be provided with the facilities to communicate with the IGIS or the Ombudsman.
The Bill also requires ASIO to give a copy of any warrant issued and a statement containing details of any detention that has taken place to the IGIS. The Attorney-General will also receive a report from ASIO on each warrant.
Under this Bill, it is an offence to fail to appear before a prescribed authority, to fail to give information in accordance with the warrant, to knowingly make a false or misleading statement in accordance with the warrant, or to fail to produce any record or thing requested in accordance with the warrant, unless the person can prove that he or she does not have the record or thing. These offences attract a maximum penalty of five years imprisonment.