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This instrument sets out the procedures to be followed in the questioning and apprehension of persons under a Part III Division 3 of the Australian Security Intelligence Organisation Act 1979 warrant.
Administered by: Attorney-General's
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 10
Registered 24 Dec 2020
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Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020

I, CHRISTIAN PORTER, Attorney-General, approve the following instrument.

Dated                           22 December 2020     

CHRISTIAN PORTER

Attorney-General

 

 

 


Contents

1  Name........................................................................................................................................ 1

2  Commencement........................................................................................................................ 1

3  Authority.................................................................................................................................. 1

4  Definitions................................................................................................................................ 1

5  Application of Minister’s Guidelines....................................................................................... 2

6 Questioning warrant requests.................................................................................................... 2

7  Arrangements for liaison.......................................................................................................... 3

8  Written record in relation to a questioning warrant................................................................... 3

9  Conduct of questioning et cetera............................................................................................... 3

10  Where apprehension is authorised.......................................................................................... 5

11  Conduct of ordinary or frisk searches and screening.............................................................. 7

12  Use of force............................................................................................................................ 7

13  Health and welfare.................................................................................................................. 7

14  Video recordings.................................................................................................................... 8

15  Complaints made by the subject while appearing for questioning.......................................... 9

16  Review................................................................................................................................... 9

 

 


1  Name

                   This instrument is the Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020.

2  Commencement

             (1)  Each provision of this instrument 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.  The whole of this instrument

(a)     The day on which the statement is approved.

 

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under section 34AF of the Australian Security Intelligence Organisation Act 1979.

4  Definitions 

Note:          A number of expressions used in this instrument are defined in the Act, including the following:

(a)      adult questioning warrant;

(b)      communication device;

(c)      Director-General;

(d)      law enforcement agency;

(e)      lawyer;

(f)       minor questioning warrant;

(g)      minor’s representative;

(h)      Organisation;

(i)       police officer;

(j)       prescribed authority;

(k)      questioning warrant;

(l)       subject.

                   In this instrument:

Act means the Australian Security Intelligence Organisation Act 1979.

master version means the original version of a video recording made in accordance with subsection 34DP(1) of the Act.

medical practitioner means an individual registered or licensed as a medical practitioner under a State or Territory law.

psychologist means an individual registered or licensed as a psychologist under a State or Territory law.

5  Application of Minister’s Guidelines

             (1)  The Organisation must observe any guidelines given by the Minister to the Director-General under subsection 8A(1) or 8A(2) of the Act to the extent it is relevant to a questioning warrant.

6 Questioning warrant requests

                   Additional requirements

             (1)  In addition to the things in subsection 34B(4) of the Act, a request for a questioning warrant must include:

                     (a)  a statement of:

(i)     warrants (other than questioning warrants) under which the Organisation is, or has been within the past 6 months, authorised to do things in relation to the subject; and

(ii)   why the Director-General considers it necessary that the warrant should be issued; and

                     (b)  a statement of the particulars of any known risks involved in questioning the subject under a questioning warrant; and

                     (c) a statement of the particulars of any known vulnerabilities (including a physical, sensory, intellectual or psychiatric disability, or medical condition) or sensitivities (including religious beliefs or cultural identities) in relation to the subject, to the extent they are relevant to the questioning; or

                        (d) if the request is for a minor questioning warrant, all information known to the Director-General about the matters mentioned in subsection 34BB(3) of the Act (best interests of the person), including the special protections that should be considered in relation to the best interests of a person who is at least 14 years old but less than 18 years old, taking into account the person’s individual circumstances and needs (including their developmental status, any disabilities they may have, and whether the person belongs to any minority groups, as well as the other matters listed in subsection 34BB(3) of the Act).

                   Oral requests for warrants and variations

             (2)  Without limiting the circumstances in which a questioning warrant or a variation of a questioning warrant may be requested orally, the Director-General may request a warrant or variation orally if he or she reasonably believes the delay caused by making a written request may be prejudicial to security because:

                     (a)  there may be an imminent threat to a person’s safety; or

                     (b)  an act of politically motivated violence, espionage or foreign interference may be imminent.

7  Arrangements for liaison

             (1)  The Director-General must cause the Inspector-General of Intelligence and Security to be notified of any request for a questioning warrant:

                     (a)  if it is practicable to do so – before the request is made; or

                     (b)  otherwise – as soon as practicable after the request is made.

             (2) As soon as practicable after a questioning warrant is issued, the Director-General must cause the Inspector-General of Intelligence and Security, a prescribed authority, and the Commissioner of the Australian Federal Police or the relevant police force or police service, to be informed of:

                     (a)  details of the warrant; and

                     (b)  the proposed arrangements for the execution of the warrant.

8  Written record in relation to a questioning warrant

             (1)  The Director-General must cause the maintenance of a written record of the following in relation to a questioning warrant:

                     (a)  the identity of the subject; and

                     (b)  the authority for the questioning and apprehension (if any) of the subject; and

                     (c)  the place, day and time of questioning under the warrant and the details of any time disregarded under section 34DL of the Act; and

                     (d)  the place, day, time and duration of any apprehension of the subject.

             (2)  The Director-General must cause this record to be included in the report under section 34HA of the Act.

9  Conduct of questioning et cetera

                   Manner

             (1)  All persons present during questioning under a questioning warrant or any period of apprehension must interact with the subject in a manner that is both humane and courteous, and must not speak to the subject in a demeaning manner.

             (2)  The subject must not be questioned in a manner that is unfair or oppressive in the circumstances.

             (3)  For the purpose of exercising a power or performing a function or duty as an IGIS official, an IGIS official may be present at the questioning or apprehension of the subject.

                   Understanding questioning

             (4)  Information given to the subject or a minor’s representative, including the written notice provided to the subject under section 34BH of the Act, must:

                     (a)  in relation to the subject – have regard to the subject’s age, and to the extent practicable and relevant, any known vulnerabilities (including a physical, sensory, intellectual or psychiatric disability, or medical condition) in relation to the subject; and

                     (b)  in relation to both the subject and minor’s representative – be given in a language the person can understand.

             (5)  An interpreter must be provided for the subject under section 34DN or 34DO of the Act if the prescribed authority believes on reasonable grounds that the subject is unable to communicate with reasonable fluency in the English language because:

                     (a)  of inadequate knowledge of that language; or

                     (b)  they are physically unable to communicate in that language.

Note:          For example, the subject may be physically unable to communicate in the English language because they have a speech or hearing disability.    

             (6)  An interpreter must be provided for the minor’s representative if the prescribed authority believes on reasonable grounds that the minor’s representative is unable to communicate with reasonable fluency in the English language because:

                     (a)  of inadequate knowledge of that language; or

                     (b)  they are physically unable to communicate in that language.

Note:          For example, the minor’s representative may be physically unable to communicate in the English language because they have a speech or hearing disability.       

                   Explanation of certain matters

             (7)  In addition to the requirements of sections 34DC and 34DD of the Act, when the subject first appears before a prescribed authority for questioning under a questioning warrant, the prescribed authority must:

                     (a)  cause the subject to be given a copy of this instrument; and

                     (b)  inform the subject that their right to make a complaint of the kind referred to in paragraph 34DC(1)(i) of the Act includes a right to make a complaint in relation to any contravention of this instrument; and

                     (c)  inform the subject of the use which may be made of any information given, or record or other thing produced, by the subject, including any derivative use for the purpose of criminal investigations.

             (8)  The prescribed authority must satisfy themselves that the subject has understood the explanations given to the subject under sections 34DC and 34DD of the Act, and subsection (7).

             (9)  If the subject has a known vulnerability (including a physical, sensory, intellectual or psychiatric disability, or medical condition) which may be relevant to their understanding of the explanations referred to in subsection (8), the prescribed authority may at any time obtain advice from an appropriate medical practitioner or psychologist to satisfy themselves that the subject will understand, or has understood, the explanations.

                   Conditions of questioning

           (10)  The subject and, if applicable, a minor’s representative for the subject must have access to fresh drinking water and clean toilet and sanitary facilities at all times during questioning and the subject and minor’s representative must be permitted to use the toilet and sanitary facilities in private as required.

           (11)  If food is provided to the subject or a minor’s representative, the food must meet dietary requirements of the subject or minor’s representative.

           (12)  Where the subject of a minor questioning warrant or adult questioning warrant has been questioned for at least 4 hours in total, they, and where applicable a minor’s representative, are to be provided with food.     

           (13) The subject of an adult questioning warrant must not be questioned continuously for more than 4 hours without being offered a break.

Note:          In accordance with paragraph 34BD(2)(b) of the Act, the subject of a minor questioning warrant can only be questioned for continuous periods of 2 hours or less without a break.              

           (14)  A break as required by subsection (13) or paragraph 34BD(2)(b) of the Act must be at least 30 minutes in duration.

           (15)  Despite subsections (13) and (14), the subject may, at any time:

                     (a)  in the case of an adult questioning warrant – elect to forego a break; or

                     (b)  in the case of an adult questioning warrant or minor questioning warrant – elect to take a break shorter than 30 minutes;

                   provided the prescribed authority is satisfied that this election is entirely voluntary.

           (16) The subject of an adult questioning warrant or minor questioning warrant must be given a break of sufficient duration in any 24 hour period of questioning to ensure they have an opportunity for an appropriate amount of continuous and undisturbed sleep, having regard to the subject’s age.

           (17) The amount of continuous and undisturbed sleep referred to in subsection (16) must be at least 8 hours. For minors this period of sleep must be at least 10 hours.

           (18)  During a break in questioning directed by the prescribed authority, the subject is not required to be at the place where they are appearing for questioning under a questioning warrant. Depending on the circumstances, the subject and a minor’s representative (where applicable) may be afforded transport, food, nearby accommodation or other assistance as required.

10  Where apprehension is authorised

             (1)  This section applies if a police officer is authorised to apprehend the subject under a questioning warrant or section 34C of the Act.

             (2)  A police officer must make the arrangements for the apprehension, and undertake the apprehension.

             (3)  Before the subject is apprehended, the Organisation must take all reasonable steps to ensure the following persons will be present when the subject arrives at the place where they are appearing for questioning under a questioning warrant:

                     (a)  the prescribed authority; and

                     (b)  a police officer; and

                     (c)  the persons who will be questioning the subject on behalf of the Organisation; and

                     (d)  if the prescribed authority has appointed a specified person as the lawyer for the subject – that person; and

                     (e)  if the Organisation is satisfied that the prescribed authority is likely to appoint one or more specified persons as the lawyer for the subject – one such person; and

                      (f)  if an interpreter is required an interpreter; and

                     (g)  if the Organisation is satisfied that an interpreter is likely to be required – an interpreter.

             (4) The arrangements for apprehension must be consistent with applicable police practices and procedures in relation to apprehension, and in accordance with any applicable legislation.

             (5)  The transportation to bring the subject before a prescribed authority for questioning under the warrant must be undertaken in a way which would not expose the subject to unnecessary physical hardship. 

             (6)  A minor’s representative for the subject of a minor questioning warrant is permitted to be present at any time while the subject is apprehended.

             (7)  If the subject wishes to contact a person under section 34CB of the Act while apprehended the subject must be given facilities to enable the contact to be made which may, without limiting paragraph 34CB(2)(c) of the Act, include:

(a)    a device as referred to in paragraph (a) of the definition of communication device; and

(b)   contact details for any person the subject is permitted to contact; and

(c)    an interpreter.

 Note:         Under section 34CB of the Act, the subject while apprehended, may contact any of the following:

(a) a lawyer;

(b) if the warrant is a minor questioning warrant – a minor’s representative;

(c) any person the questioning warrant or a direction given by the prescribed authority under paragraph  34DE(1)(b) permits;

(d) the Inspector-General of Intelligence and Security;

(e) the Ombudsman;

(f) the Commissioner of the Australian Federal Police;

(g) a complaints agency relating to the police force or police service of the State or Territory (if applicable).        

11  Conduct of ordinary or frisk searches and screening

             (1)  An ordinary or frisk search of the subject under subsection 34CC(2) or paragraph 34D(2)(c) of the Act must be conducted with appropriate sensitivity.

             (2) If records or other things are seized by a police officer under subsection 34CC(4) or (5) of the Act, or given to a police officer under subsection 34D(5) of the Act, a police officer or person exercising authority of the warrant must cause:

                     (a)  the record or things to be itemised in an inventory which must be signed by the subject if he or she is able and willing to do so; and

                     (b)  the subject to be given a copy of the inventory referred to in paragraph (a); and

                     (c)  the subject to be given a written notice informing them of:

(i)     the procedure for requesting the return of the records or things; and

(ii)   the subject’s right to make a complaint of the kind referred to in paragraph 34DC(1)(i) of the Act in relation to the records or things; and

                     (d)  the records or things to be retained in safe custody; and

                     (e)           the subject to be asked to sign a receipt on returning the record or things to the subject.        

 

12  Use of force

             (1)  This section applies if a police officer is authorised to use force under section 34CA or 34CD of the Act.

             (2)  A police officer may only use the minimum force reasonably necessary in the circumstances.

13  Health and welfare

                   Questioning place

             (1)  The place where the subject is appearing for questioning under a questioning warrant:

                     (a)  must have adequate fresh air and ventilation, floor space, and heating and cooling appropriate to the climatic conditions; and

                     (b)  must have sufficient natural or artificial light to permit reading; and

                     (c)  need not be the same throughout the period of the warrant; and

                       (d) must be appropriately furnished.

                        Health care

             (2)  The subject must be provided with necessary medical or other health care.

             (3)  Arrangements must be made for any recommendation made or treatment prescribed by a medical or health professional to be given effect.

                   Religion

             (4)  Subject to subsection (5), the subject must be permitted to engage in religious practices in accordance with the subject’s religion.

             (5)  The prescribed authority and persons exercising authority under the warrant may limit any religious practices under subsection (4) in accordance with the requirements of safety or security, or under the Act.

                   Subject of a minor questioning warrant

             (6)  The subject of a minor questioning warrant may only be apprehended, searched or questioned under conditions that take account of the subject’s particular needs and any special requirements having regard to the subject’s age and any known vulnerabilities (including a physical, sensory, intellectual or psychiatric disability, or medical condition). The Organisation may seek expert advice in assessing these particular needs and special requirements.

                   Other vulnerable persons

             (7)  The subject of a questioning warrant may only be apprehended, searched and questioned under conditions that take account of any known vulnerabilities (including a physical, sensory, intellectual or psychiatric disability or medical condition) or sensitivities (including religious beliefs or cultural identities) in relation to the subject. 

14  Video recordings

                   Facilities for recording

             (1)  The Organisation is responsible for ensuring that there are facilities available for the making of video recordings in accordance with subsection 34DP(1) of the Act.

             (2)  The video recording facilities must:                     

                     (a)  be appropriate to enable a clear visual recording to be made of the subject’s appearance before a prescribed authority for the duration of questioning; and

                     (b)  enable a clear audio recording of all questions, answers, and statements made during questioning, including statements made by the prescribed authority in accordance with section 34DC of the Act.        

(3)   The prescribed authority must be notified if the video recording facilities fail to record as intended, or if the recording has to be suspended for whatever reason, to enable the prescribed authority to direct that questioning be deferred until recording can resume.

                   Notification to the subject

             (4)  Upon the commencement or resumption of any video recording of questioning in accordance with subsection 34DP(1) of the Act, the prescribed authority must inform the subject that the questioning is being recorded, and must state the time and day of the questioning.

                   Security of recordings

             (5)  The Organisation must ensure that a master version is retained of any video recording of the subject’s appearance before a prescribed authority for questioning.

             (6)  The master version must be kept in a secure system where the content cannot be subject to modification.

             (7)  A record must be kept of any persons that access the master version.

             (8)  The master version must be made available to the Inspector-General of Intelligence and Security on request.

             (9)  The Organisation is responsible for ensuring that any copies of master versions, held by the Organisation are kept in a secure system and a record is kept of any persons that access such copies.

           (10)  If the Director-General is satisfied that any video recordings of a subject’s appearance before a prescribed authority are not required for the purposes of the performance of functions or exercise of powers under the Act, the recordings must be destroyed.

15  Complaints made by the subject while appearing for questioning

             (1)  This section applies if:

                     (a)  the subject is appearing before a prescribed authority for questioning under a questioning warrant; and

                     (b)  the subject informs the prescribed authority that they want to make a complaint of the kind referred to in paragraph 34DC(1)(i) of the Act or give information of the kind referred to in paragraph 34DC(1)(j) of the Act; and

                     (c) the prescribed authority gives a direction deferring questioning for the purpose of allowing the subject to make the complaint or give the information.

             (2)  The subject must be provided with such facilities as are, in the view of the prescribed authority, appropriate to make the complaint or give the information.

             (3)  The subject must be permitted to make the complaint or give the information outside of the hearing of persons present for the purposes of executing or supervising the execution of the warrant.  

16  Review

The operation and continued suitability of this instrument will be reviewed in consultation with relevant stakeholders and ministers as appropriate, on a recurring basis to coincide with the review of the Minister’s Guidelines as detailed in paragraph 1.14 of the Guidelines.