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representatives vote 2020-12-10#5
Edited by
mackay staff
on
2021-01-02 14:12:07
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Title
Bills — Australian Security Intelligence Organisation Amendment Bill 2020; Consideration in Detail- Australian Security Intelligence Organisation Amendment Bill 2020 - Consideration in Detail - The 'Howard safeguard'
Description
<p class="speaker">Mark Dreyfus</p><p>by leave—I move amendments (1) to (30) as circulated in my name together:</p><p class="italic">(1) Schedule 1, item 10, page 7 (after line 26), after the definition of <i>imminent</i>, insert:</p>- The majority voted in favour of a [motion](https://www.openaustralia.org.au/debate/?id=2020-12-10.23.5) to disagree with [amendments](https://www.openaustralia.org.au/debates/?id=2020-12-10.22.1) introduced by MP for Isaacs [Mark Dreyfus](https://theyvoteforyou.org.au/people/representatives/isaacs/mark_dreyfus) (Labor), which means the amendments were unsuccessful.
- ### What do these amendments do?
- [According to MP Dreyfus](https://www.openaustralia.org.au/debate/?id=2020-12-10.22.2):
- > *The amendment, although it has 30 parts, is to a single effect, which is to reinstate what we've called the 'Howard safeguard'. In other words, it would ensure that, with the consent of the Attorney-General, questioning warrants could only be issued by an independent issuing authority. Parliamentary counsel has seen it as necessary to develop a quite intricate set of amendments, but they only do the one thing: they put back an issuing authority, who will be a judge, and set up a process where the Director-General of Security, the head of ASIO, seeks the Attorney-General's consent and the Attorney-General then goes to the issuing authority for a warrant to be issued.*
- ### What does this bill do?
- According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd009):
- > *The purpose of the Bill is to amend the Act to replace the existing framework for questioning warrants and questioning and detention warrants with a revised questioning warrant framework, make related changes to the Act and other legislation, and amend provisions in the Act relating to the use of surveillance devices.*
- Changes include:
- * *expanding the purposes of questioning from terrorism offences to politically motivated violence, espionage and foreign interference*
- * *lowering the minimum age for the subject of a warrant from 16 to 14 years of age*
- * *having the Attorney-General issue warrants directly in place of an issuing authority*
- * *allowing for requests for warrants to be made, and warrants to be issued, orally in some circumstances*
- * *creating a new framework to allow the use of certain tracking devices by ASIO with internal authorisation from higher level officers (currently the use of such devices requires a warrant)*
<p class="italic"><i>issuing authority</i> means:</p><p class="italic">(a) a person appointed under section 34ACA; or</p><p class="italic">(b) a member of a class of persons declared by regulations made for the purposes of that section to be issuing authorities.</p><p class="italic">(2) Schedule 1, item 10, page 14 (after line 31), after section 34AC, insert:</p><p class="italic">34ACA Issuing authorities</p><p class="italic">(1) The Attorney-General may, by writing, appoint as an issuing authority a person who is a Judge.</p><p class="italic">(2) The Attorney-General must not appoint a person unless:</p><p class="italic">(a) the person has, by writing, consented to being appointed; and</p><p class="italic">(b) the consent is in force.</p><p class="italic">(3) The regulations may declare that persons in a specified class are issuing authorities.</p><p class="italic">(4) The regulations may specify a class of persons partly by reference to the facts that the persons have consented to being issuing authorities and their consents are in force.</p><p class="italic">(3) Schedule 1, item 10, page 17 (lines 20 to 23), omit section 34AE, substitute:</p><p class="italic">34AE Status of issuing authorities and prescribed authorities</p><p class="italic">(1) An issuing authority or prescribed authority has, in the performance of his or her duties under this Division, the same protection and immunity as a Justice of the High Court.</p><p class="italic">(2) If a person who is a member of a court created by the Parliament has under this Division a function, power or duty that is neither judicial nor incidental to a judicial function or power, the person has the function, power or duty in a personal capacity and not as a court or a member of a court.</p><p class="italic">(4) Schedule 1, item 10, page 19 (line 2) to page 20 (line 27), omit section 34B, substitute:</p><p class="italic">34B Request for questioning warrant</p><p class="italic"> <i>Seeking of Attorney</i> <i>-General</i> <i>'</i> <i>s consent to request for warrant</i></p><p class="italic">(1) The Director-General may seek the Attorney-General's consent to request the issue of one of the following in relation to a person:</p><p class="italic">(a) an adult questioning warrant;</p><p class="italic">(b) a minor questioning warrant.</p><p class="italic">(2) The consent may be sought:</p><p class="italic">(a) in writing; or</p><p class="italic">(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.</p><p class="italic">(3) To avoid doubt, this section operates in relation to a request for the issue of a warrant under section 34BA or 34BB in relation to a person, even if a request (a <i>previous request</i>) for the issue of a warrant under this Division has previously been made in relation to the person.</p><p class="italic"> <i>Requirements for seeking consent</i></p><p class="italic">(4) In seeking the Attorney-General's consent, the Director-General must include:</p><p class="italic">(a) a statement of the facts and other grounds on which the Director-General considers it necessary that the warrant should be issued; and</p><p class="italic">(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</p><p class="italic">(c) if one or more warrants were issued as a result of the previous requests—a statement of:</p><p class="italic">  (i) the period for which the person was questioned under each of those warrants; and</p><p class="italic">  (ii) whether the person was apprehended in connection with any of those warrants; and</p><p class="italic">(d) whether the request is for a warrant that includes an immediate appearance requirement; and</p><p class="italic">(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</p><p class="italic">(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).</p><p class="italic"> <i>Additional requirements for seeking consent orally</i></p><p class="italic">(5) If seeking consent under subsection (1) orally, the Director-General must, before or as soon as practicable after seeking the consent, cause the Inspector-General of Intelligence and Security to be notified that the consent has been sought.</p><p class="italic">(6) If seeking consent under subsection (1) orally, the Director-General must:</p><p class="italic">(a) make a written record of the seeking of the consent that includes:</p><p class="italic">  (i) the day and time the consent was sought; and</p><p class="italic">  (ii) the reasons why the Director-General believes that the delay caused by seeking consent in writing may be prejudicial to security; and</p><p class="italic">  (iii) the matters mentioned in subsection (4); and</p><p class="italic">(b) as soon as practicable, and no later than 48 hours after seeking the consent, provide the written record to:</p><p class="italic">  (i) the Attorney-General; and</p><p class="italic">  (ii) the Inspector-General of Intelligence and Security.</p><p class="italic"> <i>Attorney</i> <i>-General</i> <i>'</i> <i>s consent to making of request</i></p><p class="italic">(7) The Attorney-General may, by writing, consent to the making of the request, but only if the Attorney-General is satisfied of the matters that an issuing authority must be satisfied of under section 34BA or 34BB (as the case requires).</p><p class="italic">(5) Schedule 1, item 10, page 20 (lines 30 to 32), omit "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", substitute "If the Director-General requests an issuing authority to do so, the issuing authority may issue a warrant in relation to a person under this section if the Attorney-General has consented to the issue of the warrant under section 34B and the issuing authority".</p><p class="italic">(6) Schedule 1, item 10, page 21 (lines 28 to 30), omit "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", substitute "If the Director-General requests an issuing authority to do so, the issuing authority may issue a warrant in relation to a person under this section if the Attorney-General has consented to the issue of the warrant under section 34B and the issuing authority".</p><p class="italic">(7) Schedule 1, item 10, page 22 (line 19), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(8) Schedule 1, item 10, page 22 (line 22), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(9) Schedule 1, item 10, page 22 (line 31), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(10) Schedule 1, item 10, page 22 (line 32) to page 23 (line 3), omit subsection 34BB(4) (including the note), substitute:</p><p class="italic">(4) The issuing authority must take into account the matters in subsection (3) only to the extent that:</p><p class="italic">(a) the matters are known to the issuing authority; and</p><p class="italic">(b) the matters are relevant.</p><p class="italic">Note: Information about the matters in subsection (3) is provided to the issuing authority as part of the request for the warrant: see paragraph 34B(4) (f).</p><p class="italic">(11) Schedule 1, item 10, page 25 (line 11), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(12) Schedule 1, item 10, page 25 (line 19), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(13) Schedule 1, item 10, page 26 (line 3), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(14) Schedule 1, item 10, page 26 (line 24), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(15) Schedule 1, item 10, page 27 (line 4), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(16) Schedule 1, item 10, page 27 (line 17), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(17) Schedule 1, item 10, page 27 (line 35), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(18) Schedule 1, item 10, page 28 (line 1), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(19) Schedule 1, item 10, page 28 (line 20), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(20) Schedule 1, item 10, page 29 (line 3), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(21) Schedule 1, item 10, page 30 (line 6), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(22) Schedule 1, item 10, page 30 (line 7), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(23) Schedule 1, item 10, page 30 (line 26), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(24) Schedule 1, item 10, page 32 (line 33), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(25) Schedule 1, item 10, page 33 (line 1), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(26) Schedule 1, item 10, page 74 (line 27), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(27) Schedule 1, item 10, page 75 (line 19), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(28) Schedule 1, item 10, page 76 (line 23), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(29) Schedule 1, item 11, page 94 (line 10), omit "Attorney-General", substitute "issuing authority".</p><p class="italic">(30) Schedule 1, item 18, page 96 (line 26), omit "Attorney-General", substitute "issuing authority".</p><p>The amendment, although it has 30 parts, is to a single effect, which is to reinstate what we've called the 'Howard safeguard'. In other words, it would ensure that, with the consent of the Attorney-General, questioning warrants could only be issued by an independent issuing authority. Parliamentary counsel has seen it as necessary to develop a quite intricate set of amendments, but they only do the one thing: they put back an issuing authority, who will be a judge, and set up a process where the Director-General of Security, the head of ASIO, seeks the Attorney-General's consent and the Attorney-General then goes to the issuing authority for a warrant to be issued.</p><p>As I explained in my second reading speech, the government has advanced no persuasive justification for removing the Howard safeguard from the questioning warrant framework. It's an important safeguard and it should be reinstated. The amendments circulated in my name would do precisely that. Of course Labor's preference would be for the government to move its own amendment to reinstate the Howard safeguard. We would welcome an opportunity to work with the government to that end. There's still time for government members to reconsider their position on this matter, and I would urge them to do so.</p><p>To be clear: if the amendments fail, Labor will reinstate the Howard safeguard, the process of having an issuing authority who is a judge, if we are successful at the next election.</p> <p class="speaker">Adam Bandt</p><p>I rise to support these amendments for the reasons that the shadow Attorney-General has put forward. They're good reasons. I'm sure the shadow Attorney-General was putting them forward as a good-faith attempt to address a real problem with the bill. In doing so, the amendments nail the problem with the bill and the reason it shouldn't pass. So, while I support these amendments, I suggest to the House that if the amendments fail, the bill itself should be defeated.</p><p>What the amendments seek to do is ensure that we don't move to a situation where a minister has unfettered power and is able to issue warrants that are not supervised by an issuing authority. That would be a huge, huge step. I think it speaks volumes that the minister hasn't bothered to respond to the amendments and explain why it is that all of a sudden we should remove the role of a judge or an issuing authority. He can't bring himself to make a contribution on that front. These amendments highlight that the bill is, in effect, a big power grab to entrench in ministers powers to do things that would otherwise be unlawful—namely, bring someone in for questioning, hold them, seize them, without having to go to a judge to seek permission.</p><p>I respect the shadow Attorney-General and I respect the reasons for putting the amendments forward, but I would suggest that in putting them forward he's put his finger on one of the big problems with the bill. If these amendments fail, the bill itself should be opposed.</p> <p class="speaker">Tony Smith</p><p>The question is that the amendments be disagreed to.</p>
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