34J Humane treatment of person specified in warrant
(1) This section applies to a person specified in a warrant issued under section 34D while anything is being done in relation to the person under the warrant or a direction given under section 34F.
(2) The person must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the warrant or implementing or enforcing the direction.
34JA Entering premises to take person into custody
(1) If:
(a) either a warrant issued under section 34D or subsection 34F(6) authorises a person to be taken into custody; and
(b) a police officer believes on reasonable grounds that the person is on any 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 person or taking the person into custody.
(2) However, if subsection 34F(6) authorises a person to be taken into custody, a police officer must not enter a dwelling house under subsection (1) of this section at any time during the period:
(a) commencing at 9 pm on a day; and
(b) ending at 6 am on the following day;
unless the officer believes on reasonable grounds that it would not be practicable to take the person into custody under subsection 34F(6), either at the dwelling house or elsewhere, at another time.
(3) In this section:
dwelling house includes an aircraft, vehicle or vessel, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
premises includes any land, place, vehicle, vessel or aircraft.
34JB Use of force in taking person into custody and detaining person
(1) A police officer may use such force as is necessary and reasonable in:
(a) taking a person into custody under:
(i) a warrant issued under section 34D; or
(ii) subsection 34F(6); or
(b) preventing the escape of a person from such custody; or
(c) bringing a person before a prescribed authority for questioning under such a warrant; or
(d) detaining a person in connection with such a warrant.
(2) However, a police officer must not, in the course of an act described in subsection (1) in relation to a person, use more force, or subject the person to greater indignity, than is necessary and reasonable to do the act.
(3) Without limiting the operation of subsection (2), a police officer must not, in the course of an act described in subsection (1) in relation to a person:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); or
(b) if the person is attempting to escape being taken into custody by fleeing—do such a thing unless:
(i) the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); and
(ii) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be taken into custody in any other manner.
34JBA Surrender of passport by person in relation to whom warrant is sought
(1) If the Director-General has sought the Minister’s consent to request the issue of a warrant under section 34D in relation to a person, then, as soon as practicable after that person is notified of that action and of the effect of this subsection, the person must deliver to an enforcement officer every passport that:
(a) is an Australian passport (as defined in the Passports Act 1938), or a foreign passport, that has been issued to the person; and
(b) the person has in his or her possession or control.
Penalty: Imprisonment for 5 years.
(2) The Director-General must cause a passport delivered under subsection (1) to be returned to the person to whom it was issued, as soon as practicable after the first of the following events:
(a) the Minister refuses to consent to request the issue of a warrant under section 34D in relation to the person;
(b) an issuing authority refuses to issue a warrant under section 34D in relation to the person;
(c) if a warrant under section 34D is issued in relation to the person—the period specified in the warrant under paragraph 34D(6)(b) ends;
but the Director-General may cause the passport to be returned to that person earlier.
(3) Subsection (2) does not require:
(a) the return of a passport during a period specified under paragraph 34D(6)(b) in another warrant that specifies the person to whom the passport was issued; or
(b) the return of a passport that has been cancelled.
(4) If a warrant under section 34D is issued in relation to the person, a person approved under subsection 24(1) in relation to the warrant may, after a passport of the first-mentioned person is delivered under subsection (1) and before it is returned under subsection (2):
(a) inspect or examine the passport; and
(b) make copies or transcripts of it.
(5) In this section:
enforcement officer means any of the following:
(a) a member of the Australian Federal Police;
(b) an officer of the police force of a State or Territory;
(c) an officer of Customs (within the meaning of the Customs Act 1901).
34JBB Person in relation to whom warrant is sought must not leave Australia without permission
(1) A person commits an offence if:
(a) the person has been notified:
(i) that the Director‑General has sought the Minister’s consent to request the issue of a warrant under section 34D in relation to the person; and
(ii) of the effect of this subsection in connection with that action; and
(b) the person leaves Australia; and
(c) the leaving occurs after the person has been notified that the Director‑General has sought the Minister’s consent and of the effect of this subsection in connection with that action, and before the first of the following events:
(i) if the Minister refuses to consent to request the issue of a warrant under section 34D in relation to the person—that refusal;
(i) if an issuing authority refuses to issue a warrant under section 34D in relation to the person—that refusal;
(ii) if a warrant under section 34D is issued in relation to the person—the period specified in the warrant under paragraph 34D(6)(b) ends; and
(d) the person does not have written permission from the Director‑General to leave Australia at the time the person leaves Australia.
Penalty: Imprisonment for 5 years.
(2) The Director-General may give written permission for a person to leave Australia at a specified time. The permission may be given either unconditionally or subject to specified conditions.
Note 1: The Director-General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition and the condition is not met, the permission is not in force.
34JC Surrender of passport by person specified in warrant
(1) As soon as practicable after the person specified in a warrant issued under section 34D is notified of the issue of the warrant and of the effect of this subsection, the person must deliver to someone exercising authority under the warrant every passport that:
(a) is an Australian passport (as defined in the Passports Act 1938), or a foreign passport, that has been issued to the person; and
(b) the person has in his or her possession or control.
Penalty: Imprisonment for 5 years.
(2) The Director-General must cause a passport delivered under subsection (1) to be returned to the person to whom it was issued, as soon as practicable after the end of the period specified in the warrant under paragraph 34D(6)(b) (about how long the warrant is in force), but may cause the passport to be returned to that person earlier.
(3) However, subsection (2) does not require:
(a) the return of a passport during a period specified under paragraph 34D(6)(b) in another warrant that specifies the person to whom the passport was issued; or
(b) the return of a passport that has been cancelled.
(4) After a passport is delivered under subsection (1) and before it is returned under subsection (2), a person approved under subsection 24(1) in relation to the warrant mentioned in subsection (1) of this section may:
(a) inspect or examine the passport; and
(b) make copies or transcripts of it.
34JD Person specified in warrant must not leave Australia without permission
(1) A person commits an offence if:
(a) the person has been notified of:
(i) the issue of a warrant under section 34D that specifies the person; and
(ii) the effect of this subsection in connection with the warrant; and
(b) the person leaves Australia; and
(c) the leaving occurs:
(i) after the person has been notified of the issue of the warrant and of the effect of this subsection in connection with the warrant; and
(ii) before the end of the period specified in the warrant as the period during which the warrant is to be in force; and
(d) the person does not have written permission from the Director-General to leave Australia at the time the person leaves Australia.
Penalty: Imprisonment for 5 years.
(2) The Director-General may give written permission for a person to leave Australia at a specified time. The permission may be given either unconditionally or subject to specified conditions.
Note 1: The Director-General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition and the condition is not met, the permission is not in force.
34K Video recording of procedures
(1) The Director-General must ensure that video recordings are made of the following:
(a) a person’s appearance before a prescribed authority for questioning under a warrant;
(b) any other matter or thing that the prescribed authority directs is to be video recorded.
(2) The Director-General must ensure that, if practicable, video recordings are made of any complaint by a person specified in a warrant issued under section 34D when he or she is not appearing before a prescribed authority for questioning under the warrant.
34L Power to conduct an ordinary search or a strip search
(1) If a person has been detained under this Division, a police officer may:
(a) conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(1A) An ordinary search of the person under this section must, if practicable, be conducted by a police officer of the same sex as the person being searched.
(2) A strip search may be conducted if:
(a) a police officer suspects on reasonable grounds that the person has a seizable item on his or her person; and
(b) the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item; and
(c) a prescribed authority has approved the conduct of the search.
(3) The prescribed authority’s approval may be obtained by telephone, fax or other electronic means.
(4) A strip search may also be conducted if the person consents in writing.
(5) A medical practitioner may be present when a strip search is conducted, and he or she may assist in the search.
(6) If a prescribed authority gives or refuses to give an approval for the purposes of paragraph (2)(c), the prescribed authority must make a record of the decision and of the reasons for the decision.
(7) Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (1).
(8) Any item:
(a) of a kind mentioned in paragraph (2)(a); or
(b) that is relevant to collection of intelligence that is important in relation to a terrorism offence;
that is found during a search under this section may be seized.
34M Rules for conduct of strip search
(1) A strip search under section 34L:
(a) must be conducted in a private area; and
(b) must be conducted by a police officer who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (3A), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 16; and
(f) if, in a prescribed authority’s opinion, the person being searched is at least 16 but under 18, or is incapable of managing his or her affairs:
(i) may only be conducted if a prescribed authority orders that it be conducted; and
(ii) must be conducted in the presence of a parent or guardian of the person or, if that is not acceptable to the person, in the presence of someone else who can represent the person’s interests and who, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person’s body cavities; and
(h) must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has a seizable item on his or her person; and
(i) must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to determine whether the person has a seizable item on his or her person.
(2) For the purposes of subparagraph (1)(f)(ii), none of the following can represent the person’s interests:
(a) a police officer;
(b) the Director-General;
(c) an officer or employee of the Organisation;
(d) a person approved under subsection 24(1).
(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(3A) Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(4) If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.
34N Power to remove, retain and copy materials etc.
(1) In addition to the things that the Organisation is authorised to do that are specified in the warrant, the Organisation is also authorised:
(a) to remove and retain for such time as is reasonable any record or other thing produced before a prescribed authority in response to a request in accordance with the warrant, for the purposes of:
(i) inspecting or examining it; and
(ii) in the case of a record—making copies or transcripts of it, in accordance with the warrant; and
(b) subject to section 34M, to examine any items or things removed from a person during a search of the person under this Division; and
(c) to retain for such time as is reasonable, and make copies of, any item seized under paragraph 34L(8)(b); and
(d) to do any other thing reasonably incidental to:
(i) paragraph (a), (b) or (c); or
(ii) any of the things that the Organisation is authorised to do that are specified in the warrant.
(2) A police officer may retain for such time as is reasonable any seizable item seized by the officer under paragraph 34L(8)(a).
34NA Special rules for young people
Rules for persons under 16
(1) A warrant issued under section 34D has no effect if the person specified in it is under 16.
(2) If a person appears before a prescribed authority for questioning as a result of the issue of a warrant under section 34D and the prescribed authority is satisfied on reasonable grounds that the person is under 16, the prescribed authority must, as soon as practicable:
(a) give a direction that the person is not to be questioned; and
(b) if the person is in detention—give a direction under paragraph 34F(1)(f) that the person be released from detention.
(3) Subsection 34F(2) does not prevent the prescribed authority from giving a direction in accordance with paragraph (2)(b) of this section.
Rules for persons who are at least 16 but under 18
(4) If the Director-General seeks the Minister’s consent to request the issue of a warrant under section 34D in relation to a person and the Minister is satisfied on reasonable grounds that the person is at least 16 but under 18, the Minister may consent only if he or she is satisfied on reasonable grounds that:
(a) it is likely that the person will commit, is committing or has committed a terrorism offence; and
(b) the draft warrant to be included in the request will meet the requirements in subsection (6).
(5) An issuing authority may issue a warrant under section 34D relating to a person whom the authority is satisfied on reasonable grounds is at least 16 but under 18 only if the draft warrant included in the request for the warrant meets the requirements in subsection (6).
Note: Section 34D requires that a warrant issued under that section be in the same form as the draft warrant included in the request.
(6) If subsection (4) or (5) applies, the draft warrant must:
(a) if the warrant authorises the person to be taken into custody and detained—permit the person to contact, at any time when the person is in custody or detention authorised by the warrant:
(i) a parent or guardian of the person; and
(ii) if it is not acceptable to the person to be questioned in the presence of one of his or her parents or guardians—another person who meets the requirements in subsection (7); and
(b) authorise the Organisation to question the person before a prescribed authority:
(i) only in the presence of a parent or guardian of the person or, if that is not acceptable to the person, of another person who meets the requirements in subsection (7); and
(ii) only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.
Note: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34F(1)(e) for the person’s further appearance before the prescribed authority for questioning.
(7) The other person must:
(a) be able to represent the person’s interests; and
(b) as far as practicable in the circumstances, be acceptable to the person and to the prescribed authority; and
(c) not be one of the following:
(i) a police officer;
(ii) the Director-General;
(iii) an officer or employee of the Organisation;
(iv) a person approved under subsection 24(1).
(8) If a person appears before a prescribed authority for questioning under a warrant issued under section 34D and the prescribed authority is satisfied on reasonable grounds that the person is at least 16 but under 18, the prescribed authority must, as soon as practicable:
(a) inform the person that the person:
(i) may request that one of the person’s parents or guardians or one other person who meets the requirements in subsection (7) be present during the questioning; and
(ii) may contact the person’s parents or guardians and another person who meets the requirements in subsection (7), at any time when the person is in custody or detention authorised by the warrant; and
(iii) may contact a single lawyer of the person’s choice when the person is in detention authorised by the warrant ; and
(b) if the person requests that one of the person’s parents or guardians be present during the questioning—direct everyone proposing to question the person under the warrant not to do so in the absence of the parent or guardian; and
(c) if the person does not request that one of the person’s parents or guardians be present during the questioning—direct everyone proposing to question the person under the warrant not to do so in the absence of another person (other than the prescribed authority) who meets the requirements in subsection (7); and
(d) direct under paragraph 34F(1)(d) that the person may contact someone described in subparagraph (a)(ii) of this subsection at any time described in that subparagraph; and
(e) direct everyone proposing to question the person under the warrant that questioning is to occur only for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority.
Note: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34F(1)(e) for the person’s further appearance before the prescribed authority for questioning.
(9) Subsection 34F(2) does not prevent the prescribed authority from giving a direction in accordance with paragraph (8)(d) of this section.
(10) To avoid doubt, paragraphs (6)(b) and (8)(e) do not affect the operation of section 34HB.
34NB Offences of contravening safeguards
(1) A person commits an offence if:
(a) the person has been approved under section 24 to exercise authority conferred by a warrant issued under section 34D; and
(b) the person exercises, or purports to exercise, the authority; and
(c) the exercise or purported exercise contravenes a condition or restriction in the warrant on the authority; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is a police officer; and
(b) the person engages in conduct; and
(c) the conduct contravenes section 34DA; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
(a) the person is identified (whether by name, reference to a class that includes the person or some other means) in a direction given by a prescribed authority under paragraph 34F(1)(c), (d), (e) or (f) or subsection 34HA(4), 34NA(2) or (8) or 34V(3) as a person who is to implement the direction; and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes paragraph 34F(9)(c), subsection 34H(4), paragraph 34HAA(3)(b) or (4)(a) or subsection 34J(2); and
(c) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(4A) A person commits an offence if:
(a) the person has been approved under section 24 to exercise authority conferred by a warrant issued under section 34D; and
(b) the person exercises, or purports to exercise, the authority by questioning another person; and
(c) the questioning contravenes section 34HB; and
(d) the person knows of the contravention.
Penalty: Imprisonment for 2 years.
(5) A person (the searcher) commits an offence if:
(a) the searcher is a police officer; and
(b) the searcher conducts a strip search of a person detained under this Division; and
(c) the search is conducted:
(i) without either the approval of a prescribed authority or the consent of the detained person; or
(ii) in a way that contravenes subsection 34M(1); and
(d) the searcher knows of the lack of approval and consent or of the contravention.
Penalty: Imprisonment for 2 years.
(6) A person (the searcher) commits an offence if:
(a) the searcher is a police officer who is conducting or has conducted a strip search of a person detained under this Division; and
(b) the searcher engages in conduct; and
(c) the conduct contravenes subsection 34M(4); and
(d) the searcher knows of the contravention.
Penalty: Imprisonment for 2 years.
(7) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
34NC Complaints about contravention of procedural statement
(1) Contravention of the written statement of procedures mentioned in section 34C of this Act may be the subject of a complaint:
(a) to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986; or
(b) to the Ombudsman under Part III of the Complaints (Australian Federal Police) Act 1981.
(2) This section does not limit the subjects of complaint under the Inspector-General of Intelligence and Security Act 1986 or Part III of the Complaints (Australian Federal Police) Act 1981.
34P Providing reports to the Minister
The Director-General must give the Minister, for each warrant issued under section 34D, a written report on the extent to which the action taken under the warrant has assisted the Organisation in carrying out its functions.
34Q Providing information to the Inspector-General
The Director-General must, as soon as practicable, give the following to the Inspector-General of Intelligence and Security:
(aa) a copy of any draft request given to the Minister under subsection 34C(2) in seeking the Minister’s consent to request the issue of a warrant under section 34D;
(a) a copy of any warrant issued under section 34D;
(b) a copy of any video recording made under section 34K;
(c) a statement containing details of any seizure, taking into custody, or detention under this Division;
(d) a statement describing any action the Director-General has taken as a result of being informed of the Inspector-General’s concern under section 34HA.
34QA Reporting by Inspector-General on multiple warrants
(1) This section imposes requirements on the Inspector-General of Intelligence and Security if:
(a) a person is detained under this Division in connection with a warrant issued under section 34D; and
(b) one or more other warrants (the later warrants) meeting the requirement in paragraph 34D(2)(b) are issued later under that section in relation to the person.
(2) The Inspector-General must inspect a copy of the draft request given to the Minister under subsection 34C(2) for each of the warrants, to determine whether the draft request for each of the later warrants included information described in paragraph 34C(3D)(b).
Note: Paragraph 34C(3D)(b) describes information additional to or materially different from that known to the Director-General at the time the Director-General sought the Minister’s consent to request the issue of the last warrant that:
(a) was issued under section 34D before the seeking of the Minister’s consent to the request proposed in the draft request; and
(b) was a warrant in connection with which the person was detained under this Division.
(3) The Inspector-General must report on the outcome of the inspection in his or her annual report for the year in which he or she carries out the examination. For this purpose, annual report means a report under section 35 of the Inspector-General of Intelligence and Security Act 1986.
34R Discontinuing action before warrants expire
If, before a warrant issued under section 34D ceases to be in force, the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist, the Director-General must:
(a) inform the Minister, and the issuing authority who issued the warrant, accordingly; and
(b) take such steps as are necessary to ensure that action under the warrant is discontinued.
34S Certain records obtained under warrant to be destroyed
The Director-General must cause a record or copy to be destroyed if:
(a) the record or copy was made because of a warrant issued under section 34D; and
(b) the record or copy is in the possession or custody, or under the control, of the Organisation; and
(c) the Director-General is satisfied that the record or copy is not required for the purposes of the performance of functions or exercise of powers under this Act.
34SA Status of issuing authorities and prescribed authorities
(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.
(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.
34T Certain functions and powers not affected
(1) This Division does not affect a function or power of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986.
(2) This Division does not affect a function or power of the Ombudsman under the Complaints (Australian Federal Police) Act 1981.
34TA Limit on contact of lawyer of choice
(1) The person (the subject) specified in a warrant issued under section 34D that meets the requirement in paragraph 34D(2)(b) may be prevented from contacting a particular lawyer of the subject’s choice if the prescribed authority before whom the subject appears for questioning under the warrant so directs.
(2) The prescribed authority may so direct only if the authority is satisfied, on the basis of circumstances relating to that lawyer, that, if the subject is permitted to contact the lawyer:
(a) a person involved in a terrorism offence may be alerted that the offence is being investigated; or
(b) a record or thing that the person may be requested in accordance with the warrant to produce may be destroyed, damaged or altered.
(3) This section has effect despite paragraph 34F(9)(a).
(4) To avoid doubt, subsection (1) does not prevent the subject from choosing another lawyer to contact, but the subject may be prevented from contacting that other lawyer under another application of that subsection.
34TB Questioning person in absence of lawyer of person’s choice
(1) To avoid doubt, a person before a prescribed authority for questioning under a warrant issued under section 34D may be questioned under the warrant in the absence of a lawyer of the person’s choice.
Note: As the warrant authorises questioning of the person only while the person is before a prescribed authority, the prescribed authority can control whether questioning occurs by controlling whether the person is present before the prescribed authority.
(2) This section does not permit questioning of the person by a person exercising authority under the warrant at a time when a person exercising authority under the warrant is required by another section of this Division not to question the person.
Example: This section does not permit the person to be questioned when a person exercising authority under the warrant is required by section 34H or section 34HAA to defer questioning because an interpreter is not present.
34U Involvement of lawyers
(1) This section applies if the person (the subject) specified in a warrant issued under section 34D contacts another person as a legal adviser as permitted by the warrant or a direction under paragraph 34F(1)(d).
Contact to be able to be monitored
(2) The contact must be made in a way that can be monitored by a person exercising authority under the warrant.
Legal adviser to be given copy of the warrant
(2A) A person exercising authority under the warrant must give the legal adviser a copy of the warrant. This subsection does not:
(a) require more than one person to give the legal adviser a copy of the warrant; or
(b) entitle the legal adviser to be given a copy of, or see, a document other than the warrant.
Breaks in questioning to give legal advice
(3) The prescribed authority before whom the subject is being questioned must provide a reasonable opportunity for the legal adviser to advise the subject during breaks in the questioning.
Note: The prescribed authority may set the breaks between periods of questioning by giving appropriate directions under paragraph 34F(1)(e) for the person’s further appearance before the prescribed authority for questioning.
(4) The legal adviser may not intervene in questioning of the subject or address the prescribed authority before whom the subject is being questioned, except to request clarification of an ambiguous question.
Removal of legal adviser for disrupting questioning
(5) If the prescribed authority considers the legal adviser’s conduct is unduly disrupting the questioning, the authority may direct a person exercising authority under the warrant to remove the legal adviser from the place where the questioning is occurring.
(6) If the prescribed authority directs the removal of the legal adviser, the prescribed authority must also direct under paragraph 34F(1)(d) that the subject may contact someone else as a legal adviser. Subsection 34F(2) does not prevent the prescribed authority from giving the direction under paragraph 34F(1)(d) in accordance with this subsection.
If legal adviser also represents young person
(12) If section 34V also applies to the legal adviser in another capacity in relation to the subject, this section does not apply to conduct of the legal adviser in that other capacity.
34V Conduct of parents etc.
(1) This section applies in relation to a person (the representative) who:
(a) is either:
(i) the parent or guardian of a person (the subject) specified in a warrant issued under section 34D; or
(ii) another person who meets the requirements in subsection 34NA(7) in relation to the subject; and
(b) either:
(i) is or has been contacted by the subject as permitted by the warrant or a direction under paragraph 34F(1)(d); or
(ii) is or has been present when the subject was before a prescribed authority for questioning under the warrant.
(2) If a prescribed authority considers the representative’s conduct is unduly disrupting questioning of the subject, the authority may direct a person exercising authority under the warrant to remove the representative from the place where the questioning is occurring.
(3) If the prescribed authority directs the removal of the representative, the prescribed authority must also:
(a) inform the subject that the subject:
(i) may request that one of the subject’s parents or guardians or one other person who meets the requirements in subsection 34NA(7), other than the representative, be present during the questioning; and
(ii) may contact a person covered by subparagraph (i) to request the person to be present during the questioning; and
(b) if the subject requests that one of the subject’s parents or guardians, other than the representative, be present during the questioning—direct everyone proposing to question the subject under the warrant not to do so in the absence of the parent or guardian; and
(c) if the subject does not request that one of the subject’s parents or guardians, other than the representative, be present during the questioning—direct everyone proposing to question the subject under the warrant not to do so in the absence of another person (other than the prescribed authority) who meets the requirements in subsection 34NA(7); and
(d) direct under paragraph 34F(1)(d) that the subject may contact a person covered by subparagraph (a)(i) of this subsection to request the person to be present during the questioning.
Subsection 34F(2) does not prevent the prescribed authority from giving the direction under paragraph 34F(1)(d) in accordance with this subsection.
34VAA Secrecy relating to warrants and questioning
Before the expiry of the warrant
(1) A person (the discloser) commits an offence if:
(a) a warrant has been issued under section 34D; and
(b) the discloser discloses information; and
(c) either or both of the following apply:
(i) the information indicates the fact that the warrant has been issued or a fact relating to the content of the warrant or to the questioning or detention of a person in connection with the warrant;
(ii) the information is operational information; and
(d) if subparagraph (c)(ii) applies but subparagraph (c)(i) does not—the discloser has the information as a direct or indirect result of:
(i) the issue of the warrant; or
(ii) the doing of anything authorised by the warrant, by a direction given under subsection 34F(1) in connection with the warrant or by another provision of this Division in connection with the warrant; and
(e) the disclosure occurs before the end of the period specified in the warrant as the period for which the warrant is to be in force; and
(f) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 5 years.
In the 2 years after the expiry of the warrant
(2) A person (the discloser) commits an offence if:
(a) a warrant has been issued under section 34D; and
(b) the discloser discloses information; and
(c) the information is operational information; and
(d) the discloser has the information as a direct or indirect result of:
(i) the issue of the warrant; or
(ii) the doing of anything authorised by the warrant, by a direction given under subsection 34F(1) in connection with the warrant or by another provision of this Division in connection with the warrant; and
(e) the disclosure occurs before the end of the 2 years starting at the end of the period specified in the warrant as the period during which the warrant is to be in force; and
(f) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 5 years.
Strict liability
(3) Strict liability applies to paragraphs (1)(c) and (2)(c) if the discloser is:
(a) the person (the subject) specified in the warrant; or
(b) a lawyer who has at any time been:
(i) present, as the subject’s legal adviser, at the questioning of the subject under the warrant; or
(ii) contacted for the purpose of the subject obtaining legal advice in connection with the warrant; or
(iii) contacted for the purpose of the subject obtaining representation in legal proceedings seeking a remedy relating to the warrant or the treatment of the subject in connection with the warrant.
Otherwise, the fault element applying to paragraphs (1)(c) and (2)(c) is recklessness.
Note: For strict liability, see section 6.1 of the Criminal Code. For recklessness, see section 5.4 of the Criminal Code.
Extended geographical jurisdiction—category D
(4) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (2).
Definitions
(5) In this section:
operational information means information indicating one or more of the following:
(a) information that the Organisation has or had;
(b) a source of information (other than the person specified in the warrant mentioned in subsection (1) or (2)) that the Organisation has or had;
(c) an operational capability, method or plan of the Organisation.
permitted disclosure means any of the following:
(a) a disclosure made by a person in the course of any of the following:
(i) exercising a power, or performing a function or duty, under this Act;
(ii) doing anything the person is authorised to do by a warrant issued under this Act;
(iii) doing anything the person is required or permitted to do by a direction under subsection 34F(1);
(iv) exercising a power (including a power to make a complaint), or performing a function or duty, under the Complaints (Australian Federal Police) Act 1981 or the Inspector‑General of Intelligence and Security Act 1986;
(b) a disclosure that is:
(i) made in the course of the questioning of a person under a warrant issued under section 34D; and
(ii) made by a person who is present at the questioning when making the disclosure;
(c) a disclosure to a lawyer for the purpose of:
(i) obtaining legal advice in connection with a warrant issued under section 34D; or
(ii) obtaining representation in legal proceedings seeking a remedy relating to such a warrant or the treatment of a person in connection with such a warrant;
(d) a disclosure for the purpose of the initiation, conduct or conclusion (by judgment or settlement) of legal proceedings relating to such a remedy;
(e) a disclosure that is permitted by a prescribed authority to be made;
(f) a disclosure to one or more of the following persons, by the representative mentioned in subsection 34V(1) or by a parent, guardian or sibling of the subject mentioned in that subsection, of information described in paragraph (1)(c) or (2)(c) of this section in relation to the warrant mentioned in that subsection:
(i) a parent, guardian or sibling of the subject;
(ii) the representative;
(iii) a prescribed authority;
(iv) a person exercising authority under the warrant;
(v) the Inspector-General of Intelligence and Security;
(vi) the Ombudsman;
(g) a disclosure permitted by the Director-General;
(h) a disclosure permitted by the Minister;
(i) a disclosure prescribed by the regulations.
(6) For the purposes of paragraph (e) of the definition of permitted disclosure in subsection (5), a prescribed authority may give written permission, not inconsistent with the regulations (if any), for:
(a) a person contacted as described in subsection 34U(1); or
(b) the representative mentioned in subsection 34V(1);
to disclose specified information to a specified person. The permission may be given either unconditionally or subject to specified conditions.
Note 1: The prescribed authority may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition and the condition is not met, the permission is not in force.
(7) For the purposes of paragraph (g) of the definition of permitted disclosure in subsection (5), the Director‑General may give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions.
Note 1: The Director‑General may revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition and the condition is not met, the permission is not in force.
(8) For the purposes of paragraph (h) of the definition of permitted disclosure in subsection (5), the Minister may, after obtaining advice from the Director-General, give written permission for a disclosure. The permission may be given either unconditionally or subject to specified conditions.
Note 1: The Minister may, after obtaining advice from the Director-General, revoke or amend the permission. See subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: If permission is given subject to a condition and the condition is not met, the permission is not in force.
(9) Regulations made for the purposes of paragraph (i) of the definition of permitted disclosure in subsection (5) may prescribe a disclosure by reference to one or more of the following:
(a) the person making the disclosure;
(b) the person to whom the disclosure is made;
(c) the circumstances in which the disclosure is made;
(d) the purpose of the disclosure;
(e) the nature of information disclosed;
(f) an opinion of a specified person about the possible or likely effect of the disclosure.
This subsection does not limit the way in which such regulations may prescribe a disclosure.
Offences apply to original and previously disclosed information
(10) To avoid doubt, subsections (1) and (2) apply whether or not the discloser has the information that he or she discloses as a result of a disclosure by someone else.
Relationship with other laws prohibiting disclosure
(11) This section has effect in addition to, and does not limit, other laws of the Commonwealth that prohibit the disclosure of information.
Implied freedom of political communication
(12) This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
34VA Lawyers’ access to information for proceedings relating to warrant
The regulations may prohibit or regulate access to information, access to which is otherwise controlled or limited on security grounds, by lawyers acting for a person in connection with proceedings for a remedy relating to:
(a) a warrant issued under section 34D in relation to the person; or
(b) the treatment of the person in connection with such a warrant.
34W Rules of Court about proceedings connected with warrants
Rules of Court of the High Court or the Federal Court of Australia may make special provision in relation to proceedings for a remedy relating to a warrant issued under section 34D or the treatment of a person in connection with such a warrant.
34WA Law relating to legal professional privilege not affected
To avoid doubt, this Division does not affect the law relating to legal professional privilege.
34X Jurisdiction of State and Territory courts excluded
(1) A court of a State or Territory does not have jurisdiction in proceedings for a remedy if:
(a) the remedy relates to a warrant issued under section 34D or the treatment of a person in connection with such a warrant; and
(b) the proceedings are commenced while the warrant is in force.
(2) This section has effect despite any other law of the Commonwealth (whether passed or made before or after the commencement of this section).
34Y Cessation of effect of Division
This Division ceases to have effect 3 years after it commences.
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