3.1
During the course of the inquiry, the Committee considered the adequacy of the existing questioning and detention framework to respond to current threats. It became apparent that over time this framework has become limited in its utility. At the Committee’s request, ASIO proposed a number of reforms. The Committee has considered the proposals from ASIO and other submitters, and has taken the opportunity in this review to consider the principles that should underpin a future compulsory questioning model.
3.2
This chapter presents evidence received by the Committee for an alternative questioning model.
3.3
The chapter concludes with a series of Committee findings.
Alternative examination models
3.4
In his review, INSLM Gyles found that ASIO’s questioning and detention powers were unwieldy and warranted reform.
3.5
INSLM Gyles considered that the obvious solution was for ASIO to adopt, as closely as possible, the model of questioning under the ACC Act. Mr Gyles argued that:
ASIO and the ACIC are similar Commonwealth bodies with similar roles in their fields. Those fields have overlapped to an extent for some years. During that time, the ACIC questioning power has been used on many occasions in relation to counter-terrorism, gathering useful intelligence without any known complaints. The results have been provided to ASIO. The ACC Act provisions have also regularly been used across a broad range of serious criminal activity and are known and understood in the legal profession. They have been scrutinised by the courts and by Parliament in recent times. That model addresses most of the legitimate complaints about the ASIO provisions and would give ASIO a proven and practical procedure…The ACC Act is the appropriate model and it would not be appropriate to cherry-pick parts of other models and graft them on, or to excise some parts unless it is necessary to accommodate the different repository of the power.
3.6
Responses to INSLM Gyles’ recommendation varied. The Law Council, in its support of the recommendation, noted it was desirable to have consistent compulsory questioning models amongst agencies and suggested that there were a number of advantages to the ACC Act model, including:
it affords greater access to legal representation,
it is a known and tested regime,
it specifically addresses post-charge questioning,
it does not contain a detention power, and
the appointment of ACIC examiners is more transparent and formal than the similar provisions under the ASIO Act.
3.7
However, the Law Council noted concerns with the post-charge questioning provisions and low thresholds found within the ACC Act.
3.8
Dr McGarrity and Professor Williams did not support the recommendation. They were of the view that a move to an ACC Act model would result in a ‘relaxing of the checks and balances which apply to questioning warrants at present’.
3.9
ASIO initially accepted, in part, INSLM Gyles’ recommendation to adopt the ACC Act model although it was of the view that while there were benefits to that model, it would require significant amendments to meet ASIO’s requirements.
3.10
Upon further inquiry from the Committee, ASIO confirmed that the adoption of the ACC Act examination provisions was not ASIO’s preferred approach. ASIO explained:
While ASIO believes the ACIC framework could be seen as an appropriate starting point in developing a compulsory questioning model that would suit ASIO, this is not ASIO's preferred approach. ASIO would prefer a model that broadly reflects the existing framework with a range of adjustments to make it more streamlined and ensure it better reflects ASIO's intelligence collection functions.
3.11
The Committee invited ASIO to provide a proposed questioning model that would accommodate its operational requirements and then invited submitters to consider the model put forward by ASIO and provide any further comments.
3.12
Following is a summary of ASIO’s preferred model.
Box 3.1: ASIO’s preferred questioning model
The model proposes amending the existing questioning and detention powers as follows:
Scope of questioning: Questioning would be broadened to occur in relation to all heads of security.
Issuing authority: The minister responsible for issuing other ASIO warrants would issue QWs and QDWs. Emergency oral authorisations would be permitted.
Thresholds: The legislative threshold for QDWs would be in line with QWs.
Apprehension powers: A police officer serving a QW may take the subject of the warrant into custody where they suspect from anything said or done by the person that the person does not intend to comply with the warrant, including not appearing for questioning, alerting a person that there is an investigation into the security-relevant activity, and/or destroying or damaging a record or things that has been, or may be, requested to be produced. Entry to premises and person searches would be permissible.
If QDWs were repealed, then under a QW, the Minister would have the option to authorise the apprehension of the person where satisfied that the person may not appear for questioning, may alert a person that there is an investigation into the security-relevant activity, and/or may destroy or damage a record or things that has been, or may be, requested to be produced. Entry to premises would be permitted. The Minister may also specifically authorise a police officer to search the person and seize found items and require immediate attendance at questioning, with the use of force available to ensure compliance.
Person searches: In all cases, a police officer may search a person subject to a warrant and seize items found on them that could be used to harm another person, before that person enters the place of questioning.
Detention: The presiding officer would retain the ability to direct the detention, or further detention, of the person.
Presiding officer: The presiding officer would be statutorily appointed, and have been enrolled as a legal practitioner for a minimum of five years.
Minimum age of subject: The minimum age of a person to be questioned would be lowered from 16 years to 14 years.
Post-charge questioning: A warrant could be issued in respect of a person charged with a criminal offence, or where such charges are imminent, and questioning could cover the subject matter of those charges. The presiding officer may give directions regarding disclosure of information and derivative material in order to ensure the subject’s fair trial.
Secrecy offences: The prohibition on disclosing operational information and the existence of a warrant would be extended from two years to five years.
Identified person warrant: ASIO would be able to conduct compulsory questioning under an identified person warrant. However, an identified person warrant would not allow detention.
Broadening of questioning remit
3.13
One of the most significant differences in the questioning model proposed by ASIO was that the scope of questioning would be expanded to apply to all heads of security, rather than the current restriction to terrorism offences.
3.14
Currently, ASIO may use the questioning and detention powers only in relation to a ‘terrorism offence’, being offences against Subdivision A of Division 72 of the Criminal Code (International terrorist activities using explosive or lethal devices) or Part 5.3 of the Criminal Code (Terrorism).
3.15
In his review, INSLM Gyles formed the view that this definition should be broadened to include the foreign incursion and recruitment offences in Part 5.5 of the Criminal Code and the terrorism financing offences in the Charter of the United Nations Act 1945.
3.16
The Department argued that tying ASIO’s questioning power to terrorism offences was at odds with ASIO’s role as an intelligence, not law enforcement, agency. It suggested that the requirement to identify a terrorism offence had the potential to prevent ASIO from collecting intelligence about terrorist threats where ASIO had yet to identify a specific offence that was being committed.
3.17
ASIO, with the Department’s support, proposed that Division 3 of Part III be amended to make questioning available in respect of all elements of the definition of ‘security’ under section 4 of the ASIO Act. These are:
politically motivated violence,
promotion of communal violence,
attacks on Australia’s defence system,
acts of foreign interference, and
threats to Australia’s territorial and border integrity.
3.18
It also includes Australia’s responsibilities to other countries in relation to the above elements.
3.19
Through the Department’s submission, ASIO submitted that
the availability of ASIO’s compulsory questioning powers for espionage and foreign interference matters would provide a key tool in quickly and efficiently resolving complex, and in many cases extremely sensitive [espionage and foreign interference] investigations, and the reallocation of limited resources to other high priority investigations.
A security intelligence interview is often the most effective and efficient manner to resolve complex investigations. A non-adversarial compulsory interview regime with exemption from prosecution would provide an incentive for individuals to cooperate with ASIO during CEI investigations and afford ASIO the opportunity to meet face to face with an individual who could substantially assist in resolving a complex investigation. In addition, it would provide a more intimate, controlled environment without external distractions or interruptions for subjects of investigative interest to be fully explored.
3.21
ASIO described the current threat to Australia from espionage and acts of foreign interference as ‘an extreme threat because it is occurring now.’ ASIO continued:
Espionage and foreign interference activity against Australian interests is extensive, unrelenting and increasingly sophisticated. Foreign interference is taking place in Australia. Foreign powers want to gain advantage for their nation or to disadvantage us. Adversaries seek information on our foreign policy, intelligence and defence capabilities, economy and industry, and alliance relationships. They try to influence our polity, bureaucracy and civil society, and they use a wide range of techniques to obtain intelligence and clandestinely interfere in Australia's affairs.
3.22
ASIO offered the following example to support the broadening of the question powers to espionage and acts of foreign interference:
For example, if ASIO were investigating an Australian who was in direct contact with a Foreign Intelligence Service (FIS), and ASIO’s coverage via questioning and detention powers (for example, telephone interception) and other investigative techniques had determined the individual was engaged in acts of foreign interference as defined by the ASIO Act (1979), the use of questioning powers would assist ASIO to gather intelligence to assess the resultant harm from the individual's activities. If elements of the case were highly classified and law enforcement outcomes were not possible, and a voluntary interview was inadequate to obtain the required intelligence without prejudicing the investigation, ASIO’s questioning power would be crucial in determining the nature and extent of the prejudicial security outcomes and the best manner in which to mitigate the harm. The sanctions for revealing the questioning would assist in deterring the individual from contacting their FIS handler to tell them about the fact and nature of their contact with ASIO.
3.23
The Committee asked ASIO how this proposed broadening of questioning fits within, and complements, existing Australian Intelligence Community (AIC) efforts, strategies and policies aimed at countering espionage and acts of foreign interference. ASIO replied:
ASIO is the lead AIC agency responsible for identifying, countering and providing advice to government on threats emanating from espionage and acts of foreign interference. As the only AIC agency with the authority to exercise questioning and detention powers inside Australia, ASIO alone is empowered to investigate these threats.
ASIO is not aware of any other efforts, strategies and policy to counter threats to security from espionage and foreign interference.
3.24
ASIO also provided the Committee with real-life classified case studies in which the availability of a coercive questioning power would have assisted ASIO’s investigations into espionage or foreign interference activities.
3.25
The Department supported ASIO’s proposal, noting that a range of compulsory questioning powers are vested in other Commonwealth agencies with broad functions, without similar limitations as those present in the ASIO Act. Examples of broad questioning powers include those available to the ACIC, the Australian Taxation Office, the Australian Securities and Investments Commission, and the Australian Competition and Consumer Commission.
3.26
The Department provided the following explanation of the likely benefit to ASIO of having its compulsory questioning power available across all heads of security:
The particular value of ASIO’s compulsory questioning powers is that they enable ASIO to collect intelligence that is peculiar to the mind of the person concerned. This can enable ASIO to collect intelligence in circumstances where, for example, a person has not committed information about their activities into documentary form, which could be seized under a search warrant, or does not communicate such information electronically, which could be intercepted under a telecommunications interception warrant.
ASIO advises that persons involved in espionage, sabotage, attacks on Australia’s defence system or foreign interference, in particular could typically be reasonably expected to take steps to conceal their activities. In particular, such persons could typically be reasonably expected to practice counter-surveillance techniques in an attempt to limit the effectiveness of ASIO’s other special powers (search, computer access, surveillance device, and inspection of postal and delivery articles powers). Accordingly, compulsory questioning powers would be of relatively greater value for such investigations, where critical intelligence may exist only in the minds of persons involved.
3.27
The IGIS submitted that the extension of compulsory questioning (and detention) beyond terrorism offences to all parts of the definition of security was ‘one of the most striking features of ASIO’s proposed model’. The IGIS observed that the definition of security
also encompasses carrying out Australia’s responsibilities to any foreign country in relation to any other aspect of the definition of security. This could result in ASIO compulsorily questioning a person in Australia about a matter in another country in circumstances where the equivalent intelligence agency in that country would not be able to do such a thing.
3.28
In response, the Department stated that
ASIO could only question a foreign person in Australia in relation to a security matter if the warrant threshold was met and if questioning would be consistent with the carrying out of Australia’s responsibilities to that foreign country. This would prevent ASIO from merely carrying out the collection requirements of a foreign country. Paragraph (b) is also limited by section 20 of the ASIO Act, which requires the Director-General to take all reasonable steps to ensure that the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions.
Noting these limitations, [the Department] considers it would be appropriate for a compulsory questioning power to be available to ASIO in relation to its function under paragraph (b) of the definition of security, to enable ASIO to compulsorily question a person located in Australia in appropriate circumstances. The fact that such powers would not be available to the intelligence agency of that foreign country in equivalent circumstances should not affect ASIO’s ability to protect Australia’s interests and to discharge its responsibilities to other countries. This is an important consideration given Australians have been extensively affected by terrorist attacks overseas.
3.29
The IGIS also advised:
One of the key things that IGIS considers when looking at the propriety of ASIO operations is that the exercise of a power should be proportionate to the gravity of the threat posed, the probability of its occurrence, as well as the imminence of the threat. The threat of an imminent major terrorist attack in Australia is at the top of the current scale of potential threats and would justify the use of the most intrusive powers. Other threats to Australia, including from espionage and foreign interference, can also be serious but this does not mean that there is no hierarchy of threats. It may be the case that currently, as the Attorney-General’s submission states “terrorism is not necessarily a more serious threat than other matters that fall within the definition of ‘security’”; however, it does not follow that questioning and questioning and detention warrants should always be available for every aspect of the definition of security.
If ASIO’s most intrusive powers – compulsory questioning and detention – were to be available for all elements of security as defined, it would be necessary to reconsider what in those circumstances proportionality would involve.
3.30
Responding to the IGIS’ observation, the Department submitted:
While threats to life will always remain a high priority, the protection of Australia’s national security extends well beyond the prevention of major terrorist attacks and must encompass longer-term threats posed by espionage (including cyber espionage) and foreign interference activities if Australia’s national interests are to remain secure. [The Department] considers questions of proportionality should be determined by application of a robust legislative framework available in respect to all heads of security, rather than by reference a hierarchy of threats. This approach is consistent with ASIO’s wider warrant regime.
3.31
The Law Council did not oppose ASIO’s proposal but noted that such an expansion would necessitate the current constraints in the ASIO Act accompanying that reform, and the threshold test for getting such a warrant should not be weakened. The Law Council also noted that it would support an exemption from prosecution for those that cooperate in the questioning process.
3.32
Professor Williams did not support the proposal, suggesting that it would be inconsistent with the approach taken by the PJCAAD in seeing this as an extraordinary power justified only in respect of the threat posed by terrorism.
Warrant issuing authority and emergency authorisations
3.33
ASIO proposed that the Minister who issues other ASIO warrants (currently the Attorney-General) should issue ASIO’s QWs or QDWs. This would be a departure from the current provisions, which require ASIO to seek the Minister’s consent prior to applying to a judge for the issue of a warrant. ASIO also proposed new emergency authorisation provisions.
3.34
The limited involvement of a sitting judge in the issuing of QWs and QDWs has been criticised by submitters on the basis that, while it is the judge that issues the warrant, the decision about whether to make a QDW application rather than a QW application lies with a member of the executive (the Attorney-General).
3.35
INSLM Walker found that there was no justification in policy for the difference between the responsibility of the Attorney-General alone for deciding whether a QDW is appropriate and the shared responsibility of the Attorney-General and the issuing authority for the additional threshold that issuing the warrant ‘will substantially assist the collection of intelligence that is important in relation to a terrorism offence’.
3.36
Dr McGarrity and Professor Williams supported this finding, submitting that all criteria should be subject to strict, independent scrutiny by the judicial officer, as such officers ‘can bring powers of reason and analysis to the matter that the Attorney-General may lack’.
3.37
On the judge’s role, INSLM Gyles observed:
The judge does not sit in an ordinary judicial capacity, making a decision based on evidence after hearing both sides. It is suggested, with some justification, that the involvement of a judge gives a veneer of respectability to the process. There is a point of view that the involvement of a sitting judge chosen by the executive as persona designata in a secret process of this kind could diminish respect for the judiciary. On the other hand, judicial issue of warrants occurs in state jurisdictions and under other Commonwealth statutes. There is discretion as to certain aspects of the form of the warrant (eg, whether appearance of the individual is required immediately or later, and the duration of the warrant). However, the issuing authority has no discretion, as it is bound by the form of the draft warrant. There are no statutory criteria in relation to these important matters, particularly a warrant for immediate attendance.
3.38
ASIO submitted that this multi-step warrant authorisation process does not permit the timely execution of a warrant, particularly where there is an imminent threat to public safety. INSLM Gyles observed that this multi-step process contrasts
with the ACIC procedure that involves one external person, the examiner, filling all roles. Indeed, none of the other bodies with compulsory questioning powers has comparable external authorisation procedures. The procedure is also out of step with authorisation of the use of other ASIO special powers by the Minister, without involving any separate issuing authority.
3.39
In support of making the issuing officer the minister responsible for ASIO’s other warrants, ASIO argued that having one authority issue all of ASIO’s warrants is administratively appropriate and operationally effective.
3.40
The Department supported this proposal:
From a policy perspective, we consider it appropriate for the Attorney to balance all the considerations as he or she already does for other warrants under the ASIO Act. It is the minister responsible for national security but also the rule of law. Considering those and issuing a warrant for questioning warrants is something we consider appropriate from a policy perspective.
3.41
The Law Council similarly supported applications for questioning warrants being made to the Attorney-General.
3.42
The IGIS submitted that removing the role of an independent issuing authority is at odds with the position in other likeminded countries, where the trend is to increase the requirements for external authorisation for intelligence activities:
As far as I am aware none of the other 5-eyes countries has legislation authorising their intelligence services to conduct compulsory questioning but the UK and New Zealand have recently introduced, and the US and Canada already had, judicial or quasi-judicial authorisation for other powers including telecommunications interception. These changes reflect concerns in these countries that there be better protection of human rights. ASIO’s ‘streamlining’ proposal does not give weight to these concerns.
3.43
In response, the Department stated:
The proposed new Australian model does not include judicial approval for intelligence warrants, but shifts responsibility for issuing, or consenting to applications for, those warrants from the Minister responsible for the agency (as remains the case in the United Kingdom, New Zealand and Canada) to the Attorney-General in his or her capacity as the First Law Officer of the Crown and Minister responsible for the oversight and integrity of the intelligence services. This model can be distinguished from warrant authorisation frameworks in countries such as Canada and the United Kingdom, where the decision of the responsible Minister (not the Attorney-General) to issue a warrant is subject to judicial approval.
This model would bring the process for issuing questioning warrants into alignment with that of other ASIO warrants. As Justice Hope observed in 1976 ‘… in respect of matters such as issuing warrants, the minister will obviously be required to adopt an entirely non-partisan approach, an approach which, as the Attorney-General, he has to adopt in many of his other ministerial functions’. Further, it would more closely align ASIO with other Commonwealth bodies that have the ability to conduct compulsory questioning, such as the Australian Securities and Investments Commission (ASIC), the Australian Competition and Consumer Commission (ACCC) and the Commonwealth Ombudsman.
3.44
Dr McGarrity and Professor Williams agreed that allowing the Minister to issue all warrants would make it simpler and quicker for ASIO to exercise its questioning powers. However, they argued that the judiciary should have a greater—rather than reduced—role in the warrant process due to the gravity of the questioning and detention powers. They added that the role of an independent body in the issuing process is crucial in light of the extraordinary nature of the questioning and detention powers.
3.45
At a public hearing, the Committee sought ASIO’s views on whether the involvement of a judge in the warrant issuing process was likely to build public confidence in the exercise of these powers. The Acting Director-General of Security replied:
I am sure that would be the case. I would also argue that, in addition to it being consistent with the way all other special ASIO powers are authorised, that independent ministerial authorisation exceeds, if I am not mistaken—I can be corrected on that—other compulsory questioning regimes that exist in the Commonwealth.
3.46
ASIO also proposed that the ASIO Act be amended to allow the issue of emergency warrants. ASIO submitted that, in the current security environment—where threats can emerge and develop quickly—it requires a mechanism for the Minister to give an emergency oral, rather than written, authorisation for compulsory questioning. Such an authorisation would be consistent with the authorisation of special intelligence operations under the ASIO Act.
3.47
The Department supported this proposal, noting that there are a range of precedents for such emergency authorisation frameworks:
The ASIO Act contains two different forms of emergency authorisation. Under section 29, the Director-General of Security may issue an emergency warrant, lasting no more than 48 hours, authorising the use of ASIO’s special powers in limited circumstances where the Attorney-General is not available. Under section 35C, the Attorney-General may give oral, rather than written, authorisation for a special intelligence operation, in urgent circumstances. The Intelligence Services Act 2001 contains a more detailed framework for emergency authorisations in relation to the Australian Signals Directorate, Australian Secret Intelligence Service and Australian Geospatial-Intelligence Organisation, allowing authorisation to be given by a range of different ministers and agency heads, in different circumstances.
3.48
When asked for her views, the Inspector-General of Intelligence and Security, the Hon Margaret Stone, commented:
Emergency authorisations always raise issues. I am not aware of what form ASIO is suggesting that that emergency authorisation should take. If it meant that we were not notified at the outset or were notified in such short time that it was impossible for us, in fact, to exercise the oversight that we presently have, I would have a concern about it.
3.49
The Inspector-General subsequently advised the Committee that
If some form of emergency questioning warrant regime is to be introduced, particularly one involving oral authorisation, the issue of effective notice to the IGIS will be more complex. Careful consideration also needs to be given to defining an ‘emergency’. The IGIS’ experience with emergency authorisations in other contexts demonstrates there can be differences of opinion about what constitutes an emergency and how long it continues. Clear guidance on what constitutes an emergency is necessary for effective oversight. Consideration could also be given to requiring that emergency authorisation not be used where other powers, such as the police power of arrest, are a more appropriate way to deal with the emergency.
3.50
The Committee asked ASIO how it would engage with the IGIS if an emergency warrant was sought. The Acting Director-General of Security stated that ASIO would work with the IGIS to develop a protocol that ensured the IGIS was alerted to the request for an emergency warrant and seek the Office of the IGIS’ availability to be present for questioning.
Identified person warrant
3.51
Identified person warrants, available under section 27C of the ASIO Act, allow the Attorney-General to provide conditional approval for ASIO to use multiple warrant-based powers—such as computer access, use of surveillance devices, and premises search—under the one warrant in respect of a specified person. The warrant can last for up to six months.
3.52
After an identified person warrant is issued and the Minister has provided conditional approval as to the powers that ASIO may deploy, the Director-General of Security or the Minister authorises the use of each specific power as the operational need arises (if certain additional legislative thresholds are met). This warrant type allows ASIO to use each conditionally approved power on multiple occasions over the life of the warrant, without requiring the Attorney-General’s authorisation on each occasion.
3.53
Identified person warrants have a high legislative threshold and can only be obtained against persons of security concern (being a person who is engaged in, or is reasonably suspected of being engaged in, or of being likely to engage in, activities prejudicial to security). Therefore, this warrant type cannot be issued against a non-suspect/person of interest.
3.54
ASIO proposed that its questioning power be available under this warrant type. This proposal would enable questioning powers to be included with the various other special powers available under the ASIO Act, which may be exercised under a single identified person warrant. The proposal, which would see questioning attached to a warrant that may continue for six months, contrasts with the existing limitation which prevents ASIO from questioning a person more than 28 days after the issue of the warrant.
3.55
ASIO justified its proposal as follows:
Extension of the identified person warrant regime to allow the Attorney-General to grant conditional approval for questioning an identified person would allow ASIO to select the most appropriate power for intelligence collection, available in the ASIO Act, at each point in time of an investigation, enhancing ASIO’s ability to respond quickly, efficiently and effectively to threats as they arise. As with the exercise of other special powers under an Identified Person Warrant, questioning would only take place under the warrant once further specific authorisation has been obtained from the Director-General or Attorney-General for such questioning, and provided he or she is satisfied the relevant thresholds have been met. Questioning under an identified person warrant would otherwise be subject to the same safeguards as under a questioning warrant.
3.56
ASIO further noted that the inclusion of compulsory questioning under the identified person warrant ‘would be a very useful inclusion that sits with other suggested adjustments as a streamlining measure’.
3.57
The Department advised the Committee that, if compulsory questioning was available under an identified person warrant, it would not support a lower threshold for requesting the power than what has been proposed for a revised questioning warrant power. The Department envisaged a requirement that the Minister ‘consider a higher threshold, or satisfy an additional limb’, in relation to a request for compulsory questioning under an identified person warrant. This would reflect the higher level of intrusion involved in exercise of a compulsory questioning power, when compared with existing powers that can be authorised under an identified person warrant.
3.58
The IGIS observed that to include compulsory questioning and administrative detention
in a routine warrant for a security agency because doing so would be ‘a useful inclusion’ and a ‘streamlining measure’ would certainly be an unusual if not unprecedented step. The identified person warrant scheme applies to search and surveillance powers that do not have the same level of intrusion into individual rights as questioning warrants. Although both powers can be used to obtain intelligence the differential levels of intrusion are recognised through the current questioning warrant scheme having higher thresholds and more safeguards than the identified person warrant scheme. There is no doubt that ASIO’s preferred approach would ‘streamline’ obtaining a questioning warrant for ASIO in that it would make obtaining the authority to exercise a compulsory questioning power much quicker and easier. When combined with a reduction in the thresholds for obtaining such a warrant and the broadening of the power to all aspects of the definition of security it must be assumed that the resulting power would be used more often.
3.59
The IGIS advised that this proposal would challenge her ability to satisfactorily scrutinise ASIO’s use of its questioning powers:
Currently IGIS reviews a sample of ASIO warrants after the warrant has expired. If compulsory questioning is included in identified person warrants then, to maintain the current approach to reviewing questioning warrants, it would be necessary for IGIS to: examine the identified person warrant at the time (or before) it is issued; review the Director-General’s later decision to authorise questioning; potentially be present for compulsory questioning if it occurred; and then review other powers exercised under the warrant at the conclusion of the warrant period. This would greatly increase the extent of IGIS oversight of each identified person warrant, even where compulsory questioning is pre-authorised by the Minister but ultimately not used. This degree of oversight could not be achieved within the current resources of the IGIS.
Furthermore, to enable oversight of compulsory questioning it would be necessary for the ASIO Act to require ASIO to notify IGIS not only when it sought any identified person warrant which included questioning but also when the Director-General (or Minister) decided to authorise that activity. Even with ASIO providing such double notification it may not be possible for IGIS officers to attend questioning (as has occurred in the past) because of the speed with which internal Director-General authorisation can be obtained.
Legal thresholds and duration of questioning
3.60
Currently, a QW may be issued if ‘the issuing authority is satisfied that there are reasonable grounds for believing that that warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.’ ASIO proposed that this be amended by replacing ‘important in relation to a terrorism offence’ with ‘important in relation to security’.
3.61
The Law Council submitted that while it would not oppose a broadening of ASIO’s questioning power, as discussed above, it would not support a weakening of the threshold test:
…the threshold for the issuance of a summons should not be ‘is reasonable in the circumstances’ as per the Australian Criminal Intelligence Commission (ACIC) model. Rather, the threshold test should as a minimum be that the issuance of the summons ‘will substantially assist the collection of intelligence that is important in relation to ‘security’’ as defined in section 4 of the ASIO Act.
3.62
Dr McGarrity and Professor Williams suggested that, rather than broadening the legal threshold as proposed by ASIO, the existing QW threshold ‘should be tightened by, for example, requiring the existence of a reasonable belief that issuing a questioning warrant would substantially assist in the prosecution or prevention of a terrorism offence.’
Apprehension powers
3.63
At the Committee’s request, ASIO and the Department provided the Committee with a possible apprehension framework that would address ASIO’s concerns about a person absconding, destroying things, or alerting others.
3.64
Under this alternative mechanism:
1
the ASIO Act could contain a general power for police to apprehend a person where they suspect on reasonable grounds from anything said or done by the person that they intend not to comply with the warrant. In this situation, police officers would have the ability to enter premises to take the person into custody and to carry out a search of the person,
2
the Minister may authorise one or more additional powers under a QW:
a.
conduct an ordinary search of the subject, and seize communications devices, seizable items (as defined in the ASIO Act), and items relevant to security,
b.
require the subject of the warrant to immediately accompany the police officer to the questioning location (with the police officer able to use reasonable force if necessary, including to enter premises to ensure compliance).
The Minister would have the option of authorising the above actions in circumstances where the Minister is satisfied that there are reasonable grounds for believing that, if those powers are not available, the person may:
a.
not appear for questioning as required under the warrant,
b.
alert a person involved in the security-relevant activity that there is an investigation in that activity, and/or
c.
destroy, damage or alter a record or thing, or cause another person to destroy, damage or alter a record or thing, that has been requested to be produced in accordance with the warrant.
3
The presiding officer would retain the ability to direct the detention, or further detention, of the subject of the warrant.
3.65
Dr McGarrity and Professor Williams did not support these proposals.They submitted:
We appreciate that there may be some circumstances in which it is necessary for a person to be detained pending questioning. However, a determination by the Minister that there are, for example, reasonable grounds for believing that a person may not appear for questioning is an insufficient justification for detention. Our view is that detention is only justified where there is a concrete (as opposed to generalised) risk of a person taking steps which might undermine the effective operation of a questioning warrant.
3.66
Instead, they suggested that the ASIO Act make it an offence for a person to intentionally or recklessly inform a person involved in a terrorism offence that the offence is being investigated (or urge another person to do so); or destroy, damage or alter a record or thing that may be requested in questioning (or urge another person to do so). Where the AFP had reasonable grounds to believe a person had engaged, or attempted to engage, in that conduct, the Act would authorise immediate detention, with the person to be brought before a judge as soon as practicable to determine whether the AFP had reasonable grounds for their belief. The person would then be released or detained depending on the judge’s finding.
3.67
The Law Council noted that the relevant provisions under the ACC Act—where a court issues a warrant for the apprehension of a person—could be adapted for the ASIO Act. It added:
Deprivation of liberty is a serious matter and the power to detain someone in the absence of that person being suspected of committing an offence is an extraordinary one. Judicial oversight is thus an essential and important safeguard.
Person searches
3.68
ASIO proposed that police officers be able to search the person upon the person’s arrival at questioning to ensure they are not carrying dangerous items. ASIO explained that, presently, where a person presents for questioning as required under the warrant
there is no ability to conduct a search of that person before they enter the building or room where questioning is to take place. In the current environment, this can present safety risks to those involved in the questioning process.
3.69
The Law Council did not oppose providing police with this search power, provided that there was a demonstrated need for such a power and the power was subject to appropriate limitations and safeguards.
Presiding officer
3.70
Presently, ASIO’s questioning is presided over by a ‘prescribed authority’, which is a former superior court judge with at least five years’ experience as a judge, who is appointed by the Attorney-General.
3.71
ASIO advised that it would prefer to adopt the ‘examiner’ model contained within the ACC Act, where statutorily appointed officers, who must have five years’ experience as a legal practitioner to be eligible for appointment, preside over questioning.
3.72
Other key elements of the ACC Act model include:
that appointments are made by the Governor-General, following consultation by the Minister with the Inter‑Governmental Committee,
that an examiner may be appointed on a full-time or part-time basis for a period of up to five years,
a requirement for examiners to disclose interests in accordance with section 29 of the Public Governance, Performance and Accountability Act 2013
a prohibition on full-time examiners engaging in outside employment, and a prohibition on part-time examiners engaging in outside employment that (in the Chief Executive Officer’s opinion) ‘conflicts or may conflict with the proper performance of his or her duties’, and
provisions requiring the termination of the appointment of examiners in a range of circumstances, including the non-disclosure of interests or engagement in outside employment in contradiction with the above requirements.
3.73
The Department stated that the current prescribed authority model under the ASIO Act, which sees former judges presiding over questioning, had presented difficulties as
a significant number of appointees are unwilling or unable to serve in this capacity for an extended period of time, representing a significant barrier to the development of institutional expertise in controlling compulsory questioning.
3.74
The Law Council submitted that the method of appointing examiners under the ACC Act is seen as being transparent and formal. INSLM Gyles noted that the examiner holds a statutory office on terms likely to promote independence.
3.75
Dr McGarrity and Professor Williams did not support this proposal. They argued that having retired judges serve in this role was ‘appropriate and necessary’. They added:
There are provisions in the ASIO Act to enable alternative people to be appointed if there are insufficient retired Judges available. However, there is no evidence that this has ever been required.
Questioning of minors
3.76
The ASIO Act allows ASIO to seek a QW or a QDW against a person as young as 16. However, a special threshold applies to any person between the ages of 16-18, so that a warrant can only be sought against a minor if that minor will commit, is committing or has committed a terrorism offence.
3.77
Special restrictions and safeguards also apply. For example, the minor must be permitted to contact a parent, guardian or other support person, with questioning of the minor not permitted to occur in the absence of that adult.
3.78
There have been no QWs or QDWs issued in respect of a minor.
3.79
ASIO proposed lowering the minimum age of a questioning subject to 14 years, arguing that the recent change in age profile of those involved in terrorism-related activities necessitated allowing questioning of persons as young as 14:
Since May 2015, three major terrorist attacks involving teenagers under the age of 18 have been disrupted by law enforcement, often with critical security intelligence being provided by ASIO. During this period one terrorist attack by a teenager was the murder of NSW Police employee Curtis Cheng in October 2015 by a 15-year-old male.
3.80
ASIO also noted that:
The seriousness of threats posed by persons as young as 14 was recently recognised by the Commonwealth Parliament when it enacted amendments to the control order regime in the Criminal Code reducing the minimum age for those who can be subject to control orders from 16 to 14.
3.81
The minimum age of a person subject to various compulsory questioning and counter-terrorism powers is as follows:
Table 3.1: Minimum age under various questioning and detention power regimes
|
|
|
|
QWs and QDWs under the ASIO Act
|
16
|
|
Examinations under the ACC Act
|
No relevant provisions
|
|
Examinations under the Crime Commission Act 2012 (NSW)
|
No relevant provisions
|
|
Control orders under the Criminal Code Act 1995 (Cth)
|
14
|
|
Preventative detention orders under the Criminal Code Act 1995 (Cth)
|
16
|
|
Investigative detention under Terrorism (Police Powers) Act 2002 (NSW)
|
14
|
3.82
The Law Council accepted that there may be the need to question minors but argued that any compulsory questioning regime that may be available against minors must include a framework for dealing with the particular needs of minors, including the provision of legal assistance and a support person. The Law Council also suggested that, in line with the United Nations Conventions on the Rights of the Child, the framework should include a requirement that the best interests of the child be taken into account as a primary consideration in the issue of the warrant.
3.83
When asked at the public hearing whether the questioning of a 14 year old would change the way in which the IGIS oversaw questioning, the Deputy IGIS stated:
I could imagine that, if it was a person of particular vulnerability, including because of age, we would apply even more scrutiny. But it is hard to do more than the very close detailed scrutiny that was given to each of these warrants and the in-person attendance of the Inspector-General or senior staff member at each questioning.
3.84
ASIO also proposed that the questioning of minors be broadened to allow questioning in relation to all heads of security. ASIO advised the Committee:
Espionage and acts of foreign interference activity is not age dependant. Espionage and foreign interference activity through cyber means could be perpetrated by a minor. In addition, there are positions such as in Defence where individuals entering are minors and have access to privileged information.
3.85
ASIO further proposed that minors no longer be subject to a unique legislative threshold (as described above). That is, ASIO wishes to be able to question any minor who may possess the relevant information, and not be limited to only those who are suspects. ASIO provided the following to justify this proposal:
For example, if ASIO has a concern about a minor being engaged in activities prejudicial to security, it is possible that other friends, acquaintances or siblings who are also minors but who ASIO is not able to say are involved in those prejudicial activities, would nonetheless have information of intelligence value related to the target’s activities.
3.86
ASIO acknowledged that ‘the compulsory questioning of persons as young as 14, particularly in circumstances where they may not necessarily be a target themselves, is a significant step’.
3.87
The Department’s view was that if the scope of a questioning warrant is broadened to encompass all heads of security under the ASIO Act, questioning should be limited to where the minor is the targeted individual:
Where minors are concerned, we have suggested that an additional safeguard be put in place and that the person being questioned should be themselves reasonably believed to be engaged in activities prejudicial to security, to make sure that they are the target of the investigation, the person actually conducting the activities, rather than that kind of circle that is described in other contexts, so you do not have somebody’s children being questioned about their activities.
Post-charge questioning
3.88
The ASIO Act is silent on whether ASIO may question a person after that person has been charged with an offence. According to the Department, this is because the purpose of ASIO questioning is to gather intelligence, rather than gathering evidence to support prosecutions.
3.89
Recent High Court authority has made it clear that post-charge compulsory questioning will only be permissible where legislation clearly allows it by express words or necessary intendment.
3.90
ASIO proposed that the ASIO Act be amended, in line with the provisions in the ACC Act, to expressly authorise a questioning warrant to be issued following the laying of charges against the person who is the subject of questioning or where charges are imminent against that person, and would allow the questioning to cover matters that are the subject of those charges. The presiding officer would be empowered to give a direction in regard to disclosure of information obtained under the warrant in order to protect the subject’s fair trial. ASIO submitted:
The inability to compulsorily question a person following the laying of charges has the potential to give rise to critical gaps in intelligence as there are circumstances where, notwithstanding the arrest and charging of a person by law enforcement, ASIO requires information from the person to assess ongoing security threats and to minimise risks to the community. This is particularly so given existing links between criminal and ideologically motivated persons. ASIO submits that it should not be constrained by law enforcement developments in continuing to gather security intelligence information relevant to current threats.
3.91
The Department advised that no QWs have been issued in relation to a person who had, at the time the warrant was issued, been charged with a terrorism offence. Nonetheless, the Department submitted that
it is foreseeable that a person charged with an offence could be in a position to provide important intelligence in relation to a security matter. For example, in relation to a terrorist plot involving a person charged with an offence, the person is likely to have valuable intelligence information about other persons associated with terrorist activity or about capabilities and methodologies of terrorist groups. This is particularly so in the current environment, where plans are carried out quickly and law enforcement agencies are forced to act, potentially including by laying charges, at an earlier stage in order to disrupt or prevent an attack.
3.92
In 2012, INSLM Walker recommended that the QW provisions be amended to make it clear that a person who has been charged with a criminal offence cannot be subject to questioning until the end of their criminal trial:
To exert executive force against an accused person to compel answers incriminating him or her of the very matters for which he or she is facing trial before the judicial power, constitutes a fundamental challenge to the capacity of the judicial power to ensure a fair trial. It would be a mockery of the standard trial judge’s direction to a jury that the accused is under no requirement to give evidence, if simultaneously a statute purported to require the accused to give answers that may be either tendered against the accused at the trial or may lead to other damaging material being tendered at the trial.
3.93
In his 2016 review, INSLM Gyles noted the concerns of some submitters to his review about the ACC Act’s approach to post-charge questioning (which allows post-charge questioning, though disclosure of examination material to prosecutors can only occur with the leave of a court); however, he reasoned that the ACC Act provisions had recently been the subject of close parliamentary scrutiny and there was no reason to restrict ASIO’s ability to collect intelligence more than that of the ACIC. On that basis, he recommended ASIO adopt the post-charge provisions contained within the ACC Act model.
3.94
The Law Council disagreed with INSLM Gyles’ recommendation, suggesting that the ACC Act’s post-charge questioning provisions may not be constitutionally valid as they effectively take away from courts the discretion in respect of exclusion of evidence of post-charge questioning. On that basis, the Law Council recommended, in the ASIO context, that the examination of a person charged with an offence should be deferred until after the disposition of any charges. It stated:
there remains a real risk that a person who is examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice his or her defence. An accused person should not be forced to divulge his or her position prior to trial or to assist law enforcement officers in gathering supplementary information to aid in his or her prosecution.
3.95
The Law Council suggested that, should the Committee not accept the Law Council’s recommendation, then as an alternative to ASIO’s adoption of the ACC Act provisions, it would be appropriate to require authorisation from a Federal Court judge before a warrant is issued in relation to a person who is subject to criminal proceedings, and for that judge to prescribe limitation on the matters which may be covered by the questioning. The Law Council explained:
If an examination is permitted to occur prior to the resolution of the witness’s pending charges, there should be strict regulation of who is present at the examination, what use can be made of the information obtained, and the subject matter able to be covered.
Access to legal representation
3.96
A number of submitters and witnesses raised issues in relation to a person’s access to legal representation under the questioning and detention powers framework, contending that the framework needed to be amended to ensure a lawyer can adequately represent their client’s interests.
3.97
Issues raised included that:
there is a limit on contact with the subject’s lawyer of choice,
contact between the subject and the lawyer can be monitored, restricting legal professional privilege,
a lawyer cannot intervene in questioning or address the prescribed authority during questioning, except to request clarification of an ambiguous question or, with leave, address the prescribed authority on a matter during a break in questioning.
3.98
Dr McGarrity and Professor Williams noted that ‘these restrictions may inhibit full and frank communication between the person and their lawyer. They create a real risk that the person will not understand their legal rights or obligations’.
3.99
ASIO proposed retaining the existing provisions relating to legal representation. ASIO stated that adoption of the relevant provisions of the ACC Act (as recommended by INSLM Gyles and the Law Council), including that the lawyer be involved in the questioning process, would not be preferable because:
If the lawyer were to have a more active role in the questioning, this would change the nature of the process to an adversarial one and would interrupt the flow of questioning and the elicitation of vital intelligence.
3.100
The Department, however, submitted that it ‘is of the view that the model under the ACC Act is transferable to the ASIO context’.
3.101
The Committee asked the Law Council to provide a series of relevant safeguards that should be adopted should the questioning and detention powers be amended. The Law Council offered:
An examinee should have a general right to independent legal representation under any revised ASIO questioning and detention power regime. The Law Council considers that any person compelled to answer questions pursuant to a summons or warrant must be entitled to access an independent lawyer at all stages of the questioning process without that communication being monitored or otherwise restricted. Such access is necessary to ensure the person subject to the summons can exercise their right to challenge the legality of the detention, the conditions of detention and any ill-treatment occurring during the questioning and/or detention process. All communications between a lawyer and his or client should be recognised as confidential and adequate facilities should be provided to ensure the confidentiality of communications between lawyer and client.
Secrecy provisions
3.102
Division 3 of Part III provides that during the life of a warrant the person and their lawyer must not, on a strict liability basis, disclose the existence of the warrant, the fact of the questioning or detention, or any operational information. In the two years following the expiry of the warrant, the person and lawyer also must not, on a strict liability basis, disclose any operational information obtained as a result of the questioning. The penalty for either offence is five years imprisonment.
3.103
The secrecy provisions were criticised by several submitters. The Australian Lawyers Alliance noted that, for either of the above offences,
there need be no intention to disclose the information, no risk to national security, or to the safety of any person or property, before severe penalties can ensue as a result of disclosing information about a QW or QDW. As such, under this legislation, people who are not suspected or accused of any crime could be liable to five years in prison, for simply telling their boss why they were not able to come to work, or a family member why they could not come home, as noted by the INSLM.
3.104
The Lawyers Alliance therefore contended that the secrecy provisions could not be considered reasonably appropriate or adapted to a legitimate purpose. They suggested that ‘it is thus likely to conflict with the Constitutional freedom of political communication’.
3.105
Professor Williams agreed with that submission. He noted that concerns about the constitutionality could arise because of the prevention of information being made public that may well be in the public interest, such as revealing misuse.
3.106
Given these concerns, Dr McGarrity and Professor Williams recommended that the provisions be more closely tailored to their counter-terrorism purpose, such as by prohibiting only those disclosures which could prejudice national security or including a broad defence for innocent or innocuous disclosures.
3.107
ASIO proposed that the length of time that secrecy obligations remain in force be extended as follows:
the length of time in which the existence of a warrant be kept secret should be extended from the current 28 days to five years, and
the length of time in which operational information, obtained as a result of questioning, be kept secret extended from the current two years to five years.
3.108
ASIO justified this proposal as follows:
Given that ASIO intelligence investigations often continue for several years, a disclosure as to the existence of a QW/QDW or related operational information could potentially jeopardise an investigation at any stage during that period. A five-year time frame for secrecy offences to apply from the issue of the warrant would be consistent within the time frames for when secrecy obligations are imposed regarding ACIC examinations.
3.109
Dr McGarrity and Professor Williams questioned the appropriateness of this proposal:
Our view is that the disclosure offences – as they currently stand – are already overbroad. In the first place, they are inadequately tailored to the counter-terrorism purpose of the ASIO Act. They should prohibit only those disclosures which have the potential to prejudice national security or, at the very least, include a defence for innocent disclosures. Second, the penalties are excessively long. The former Independent Monitor of National Security Legislation, Bret Walker SC, recommended that the penalty for breaching s34ZS should be reduced from five years to two years imprisonment. Finally, the application of the operational information offence for two years after the expiry of a warrant makes it difficult to test the legality of a particular warrant in court or in the public domain. ASIO’s proposal would exacerbate this problem by making it an offence to not only disclose operational information for up to five years after the expiry of a warrant but also the mere existence of a warrant as well.
Oversight and accountability
3.110
In addition to the IGIS’s general function contained within the Inspector-General of Intelligence and Security Act 1986 of inquiring into the legality and propriety of ASIO’s activities, Division 3 of Part III also contains provisions relating to the IGIS’s oversight of the use of the questioning and detention powers. These include:
the requirement that the Director-General of Security consult the IGIS in the development of a written statement of procedures to be followed in the exercise of authority under the warrants,
the requirement that the prescribed authority explain to the subject of the warrant that they have a right to make a complaint to the IGIS in relation to ASIO,
clear exceptions to the secrecy offences to allow persons to make complaints to the IGIS,
the ability of the IGIS to be present at the questioning or the taking into custody of a person,
the ability of the IGIS to raise concerns with the prescribed authority about any impropriety or illegality in connection with the exercise of powers under a warrant, and the requirement that the prescribed authority consider those concerns,
the requirement that the Director-General of Security provide to the IGIS copies of any draft requests for warrant, issued warrants, video recordings of the questioning of subjects; and statements containing details of any seizure, taking into custody or detention, and describing any action the Director-General of Security has taken as a result of concerns raised by the IGIS, and
the requirement for the IGIS to inspect and report on any requests for multiple warrants relating to detention of an individual.
3.111
ASIO supported retention of these provisions.
3.112
Commenting on any possible increase in the use of the questioning powers, the IGIS advised the Committee:
As the Committee is aware, the IGIS office is small and decisions as to resourcing must be made judiciously. The use of coercive questioning powers is an area that has been closely monitored in the past, and we consider that this would continue to be the case if the current or any new questioning powers were exercised in future. Oversight of the use of any such [power] is likely to be resource intensive, particularly if the IGIS or IGIS staff attends questioning. The current questioning powers have not been used since 2010. An increase in the use of ASIO questioning powers would impact on IGIS resources. If the increase was significant, we would need to consider whether current resourcing levels continue to be adequate to provide effective oversight of the use of these powers as well as all other areas of oversight of the six Australian intelligence agencies.
3.113
Section 34C of the ASIO Act provides that the Director-General of Security may prepare a written statement of procedures to be followed in the exercise of authority under warrants. The statement, which is drafted in consultation with the IGIS and the Commissioner of the AFP, is approved by the Minister and contains a number of clauses aimed at ensuring a person is treated with dignity and respect during the execution of a warrant. The current statement includes clauses relating to:
transportation of the person to custody,
questioning procedures, including the manner in which a person is to be treated,
video recording of procedures, and
health and welfare arrangements, including food, sleeping, and personal hygiene.
Committee comment and findings
3.114
The Committee has signalled its in-principle support for an ongoing compulsory questioning power for ASIO and implementation of an apprehension framework to ensure attendance at questioning.
3.115
The Committee has also recommended that the Government develop amendments to Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 to give effect to a compulsory questioning framework based on the findings of the Committee as outlined below.
3.116
One suggestion for a future ASIO compulsory questioning framework was that a model based on the ACC Act be adopted. The Committee can see a number of benefits to the ACC Act model. It is, as INSLM Gyles suggested, a known and tested model. However, the wholescale adoption of that framework would see the removal of existing ASIO Act safeguards. The Committee notes that ASIO has requested retention of many of these safeguards, such as the special safeguards for minors, which do not exist in the ACC Act. In its proposed model, ASIO also made a number of recommendations for provisions that are, in the Committee’s view, stronger and fairer than the equivalent provisions under the ACC Act, such as providing automatic direct use immunity for subjects of warrants.
3.117
The Committee notes that Division 3 of Part III was specifically designed for ASIO, its intelligence functions, and its oversight arrangements. It contains, as INSLM Gyles noted, ‘heavy duty safeguards’ that place necessary limitations on the use of the powers by an intelligence organisation that must operate in secret. Noting ASIO’s preference to retain and modify the existing framework and that adoption of the ACC Act provisions would remove some existing safeguards, the Committee believes that the preferable approach is that the Government modify the existing framework and retain some of these important provisions.
3.118
Nevertheless, the Committee acknowledges that the ACC Act regime also offers some mechanisms that merit consideration in the development of a future questioning model.
3.119
The Committee sets out its specific findings below.
Issuing authority
3.120
The Committee accepts that ASIO requires an agile framework in the current threat environment. The Committee notes ASIO’s evidence that it considers the current multi-step authorisation process to be inefficient and to impede timely and effective operations. The Committee also observes that other comparable compulsory questioning frameworks do not have multi-step authorisation processes.
3.121
The Committee recognises that removing the issuing authority from the warrant issuing process may be viewed as reducing independent scrutiny.
3.122
However, the Committee notes that the issuing of warrants by the Attorney-General would be a higher level of authorisation than that required for some other domestic compulsory questioning regimes, some of which provide for internal authorisations.
3.123
The Committee finds it appropriate that a questioning warrant be authorised by the Attorney-General.
3.124
In addition, the Committee finds it appropriate that the Attorney-General be able to separately authorise apprehension when this may be required.
Scope of questioning
3.125
The questioning and detention powers were introduced as a direct reaction to the growing threat from terrorism after 11 September 2001. They were an emergency power designed to respond to an emergency situation.
3.126
In proposing to broaden the questioning power to all heads of security, ASIO is seeking to expand this emergency counter-terrorism power to a purpose more suited to the current range of security threats.
3.127
The Committee notes comments from ASIO that the threat from espionage and foreign interference to Australian interests is ‘extensive, unrelenting and increasingly sophisticated’.
3.128
The Committee notes that this is a matter that could be considered by Government in the development of legislation for an amended compulsory questioning framework.
Apprehension framework
3.129
The Committee accepts ASIO’s concerns about a person failing to attend questioning, tipping off others, or destroying relevant material.
3.130
The Committee notes that a number of other questioning regimes provide for immediate attendance to prevent the commission of an offence, loss of evidence, or serious prejudice to investigations, or allow the pre-emptive arrest of a person where specific concerns exist as to a person’s likely non-appearance for questioning.
3.131
The Committee acknowledges the IGIS’s observation that providing police officers with the power to use force to ensure the person accompanies them to questioning does amount to detention.
3.132
The Committee supports, in principle, an alternative apprehension framework, possibly with a separate authorisation framework, to ensure attendance at questioning and prevent contact with others or the destruction of information.
3.133
The Committee finds that any apprehension or compulsory attendance power should be limited to the power to compel the subject of a warrant to attend questioning under the warrant.
3.134
The Committee does not support the presiding officer being able to direct the detention, or further detention, of the subject of a warrant. In reaching this conclusion, the Committee has taken the views of the two former INSLMs into account.
3.135
The Committee considers that any ongoing detention power must be subject to the discretion of the courts (as is the case under the ACC Act model).
Identified person warrants
3.136
The Committee does not support a compulsory questioning power being available under an identified person warrant.
3.137
Making compulsory questioning available under an identified person warrant would place questioning on par with other ASIO special powers, such as the use of listening devices or access to computers.
3.138
However, the Committee considers compulsory questioning to be a more intrusive power because it restricts an individual’s personal liberty, carries the compulsion to answer questions or face prosecution, and entails enhanced secrecy. As such, it should not be considered the equivalent of, or be as readily accessible as, ASIO’s other special powers, and it would be wholly inappropriate for it to be subject to ‘streamlined inclusion’ in an identified person warrant.
3.139
As the IGIS observed, identified person warrants in effect allow for decision making to be devolved from the Minister to the Director-General of Security, as although the Minister approves a range of special powers that can be used against a person under the warrant, it is the Director-General who decides if and when a power is used. Identified person warrants also allow each special power authorised under the warrant to be used on multiple occasions during the life of the warrant. The Committee notes that this proposal would potentially allow the Director-General of Security to authorise multiple uses of the questioning power over the six month period of the warrant.
3.140
The Committee is of the view that the Attorney-General, when considering the authorisation of a questioning warrant, should be in a position to press ASIO as to the specific requirements and arrangements for questioning a person. Such intrusive powers should not be requested, nor authorised, until a clear operational need has arisen and a specific case for their use at that particular time has been demonstrated. A questioning warrant should not be issued on a speculative or multi-use basis.
Emergency authorisations
3.141
The Committee acknowledges that emergency authorisations are available for other powers in the ASIO Act and IS Act, subject to certain safeguards. The Committee has previously supported emergency authorisations under national security legislation, subject to close oversight by the IGIS, and accepts the rationale for providing the Minister with the ability to issue warrants orally in an emergency.
3.142
The Committee finds that ASIO should, in emergencies, be empowered to apply to the Attorney-General for the issue of a warrant in a manner other than in writing. The Attorney-General should then be permitted to provide authorisation for the warrant in a manner other than in writing.
3.143
In reaching this conclusion, the Committee also finds that:
the provisions should clearly describe the circumstances in which an emergency application may be made,
the Director-General must be required to ensure that all reasonable steps are taken to alert the IGIS as to ASIO’s intention to obtain a warrant prior to ASIO seeking the oral authorisation,
the Director-General must be required to ensure that a written record of an urgent oral warrant application is made and provided to the Attorney-General as soon as practicable and to the IGIS within 48 hours of the warrant being issued,
the Director-General’s annual report, as provided for under section 94 of the ASIO Act, should include details on the number of emergency warrants requested and issued during the reporting period, and
the provision should be supported by a protocol between ASIO and the IGIS.
Prescribed authority
3.144
The Committee accepts that the current prescribed authority model—which relies on retired judges to fill the positions—may lead to a shortage of persons willing and able to serve in the role.
3.145
The Committee received evidence on several different models, including creation of a permanent statutory examiner based on that in the ACC Act. This model could be appropriate for several reasons. The Committee notes the requirement in the ACC Act that a person must have five years’ experience as a legal practitioner to be eligible for appointment as an examiner. Further, the examiner is a statutorily appointed officer, with strict requirements relating to the disclosure of interests and any engagement in outside employment.
3.146
The Committee finds that, as a minimum requirement, an examiner must hold a current practicing certificate or be a retired judicial officer of a State Supreme Court, the Federal Court of Australia or the High Court of Australia.
3.147
The Committee expects that in the ASIO context an appointed officer should have substantially more than five years’ experience as a legal practitioner and would be a person of some eminence.
3.148
Any proposal to create a permanent statutory examiner must address the examiner’s independence. The Committee considers that prior to the appointment of a person as an examiner, consideration should be given to the person’s current employment and any other positions held to ensure any perceived conflicts of interest are avoided. Similarly, the Committee considers it is essential that the examiner not be subject to directions from, nor have his or her decisions overruled by, the Director-General of Security or the Minister.
Questioning of minors
3.149
The Committee notes ASIO’s evidence detailing the changing age profile of terrorism suspects, including recent attacks and plots in Australia involving young persons. This evidence demonstrates that some capacity is required to investigate, and potentially question, minors involved in such activities.
3.150
The Committee notes the concerns raised by submitters about the proposed questioning of minors by ASIO. It is a grave matter and one which the Committee has considered closely.
3.151
The Committee is of the view that, in principle—and with appropriate safeguards—lowering the minimum age of a questioning subject to 14 may be a necessary measure for protecting the community from terrorism.
3.152
However, the Committee maintains that these are extraordinary powers and the need for their use in regard to minors must be clearly evidenced.
3.153
The Committee notes that the inability to question a minor under a questioning warrant would not preclude ASIO from conducting a voluntary interview with a minor or from seeking a warrant for the use of ASIO’s other special powers (such as telecommunications interception or use of listening devices) against that minor.
3.154
Further, the Committee considers additional oversight and safeguards are essential in relation to the questioning of minors.
3.155
The Committee makes the following findings:
any compulsory questioning of minors must be limited to those who are themselves the subject of investigation. It is not a proportionate response to compulsorily question a 14 year old who is not the subject of suspicion in relation to the unrelated activities of that minor’s friends or family members,
apprehension should not be available in relation to minors,
any minor that is the subject of a questioning warrant must have a legal representative present at all times,
any minor that is the subject of a questioning warrant must have had an assessment conducted prior to the Attorney-General’s approval of the warrant as to whether the interests of the child are appropriately protected, and
to the greatest extent possible, the interests of the child should be protected.
Post-charge questioning
3.156
The Committee considers that the question of whether post-charge questioning should be allowed under the questioning regime requires careful consideration. While it is possible that a person charged with an offence may hold critical information about a security threat that they are unwilling to provide on a voluntary basis, compulsory questioning of such a person may imperil their ability to receive a fair trial.
3.157
The Committee considers it is beyond the scope of this review to make a definitive finding on this matter.
3.158
The Committee considers however that, if the Government were to bring forward such a power in revised legislation, it must be attended by adequate safeguards. The Committee notes that the provisions contained within the ACC Act require an examiner to issue directions restricting the use or disclosure of examination material if the failure to do so would reasonably be expected to prejudice the examinee’s fair trial. The provisions also prevent post-charge examination material being disclosed to prosecutors unless on court order, which may only occur if the court is satisfied that such a disclosure is required in the interests of justice. The provisions also do not restrict a court’s power to make any orders necessary to ensure the person’s fair trial is not prejudiced. The Committee considers it is critical that, at a minimum, such conditions and restrictions are similarly provided for in the ASIO context.
Access to lawyers and legal professional privilege
3.159
The Committee acknowledges the concerns of some submitters about the limitations the ASIO Act places on a person’s ability to obtain adequate, and private, legal advice.
3.160
The Committee considers that any person subject to compulsory questioning should be afforded appropriate access to legal counsel. This is particularly important given the secrecy in which ASIO’s questioning takes place, the availability of questioning against innocent persons, and the gravity of the offences for non-compliance.
3.161
The Committee notes that the Law Council of Australia and INSLM Gyles considered that the provisions under the ACC Act offer a fair and workable framework for access to legal representation. The adoption of those provisions would address some of the criticisms aimed at the existing ASIO Act provisions, and has been supported by the Department.
3.162
The Committee’s view is that the existing provisions in the ASIO Act should be repealed and replaced with provisions consistent with those relating to legal representation in the ACC Act.
Ability of subject or subject’s lawyer to contact third party
3.163
Suitably strong and effective secrecy provisions are required to protect ASIO’s methodologies, capabilities and sources of information, as well as the identities and reputations of individuals investigated by ASIO who may be shown to pose no risk to security.
3.164
The Committee finds that restrictions on the disclosure of information obtained as a result of the warrant should continue.
3.165
However, the Committee acknowledges the concerns of many submitters as to the inability of a person, subject to questioning, to advise family, friends, and work colleagues as to their absence. Strict liability applies to any disclosures. While the prescribed authority has the capacity to make a direction permitting such disclosures, the direction must be consistent with the terms of the warrant, or otherwise have been approved in writing by the Minister.
3.166
The Committee believes it is appropriate for the presiding officer to take into account the personal circumstances of the subject of the warrant and allow that person to make certain disclosures to specified family members, employers, and others in order to explain, and make arrangements for, their absence. This is particularly appropriate given the person being questioned may not, themselves, be the subject of any suspicion and may be apprehended, in secret, without being able to notify any person.
3.167
The Committee finds that the subject of a warrant (or their legal representative) should be able to request permission from the examiner to contact specified persons. ASIO and the subject of the warrant (or their legal representative) should be given an opportunity to make representations to the examiner as to the appropriateness of allowing a disclosure to those specified persons.
3.168
The discretion of the presiding officer to authorise disclosures should not be capable of being overridden by the Minister or the Director-General of Security.
Secrecy offences
3.169
The Committee notes ASIO’s proposal that the application of the secrecy offences should be increased from two to five years following the issue of the warrant. While it is true, as ASIO suggested, that the proposed amendment would be comparable with provisions in the ACC Act, the five years provided in the ACC Act is the maximum possible period; if no evidence of an offence has been obtained, a decision is made to not prosecute the examinee, or criminal proceedings are commenced against the examinee, then the secrecy provisions of the ACC Act cease applying.
3.170
The Committee does not support extending the length of time that secrecy obligations remain in force.
Person searches
3.171
The Committee notes that in 2013, when ASIO requested the ASIO Act be amended to allow a person search to be undertaken independently of a premises search, the Committee did not support ASIO’s proposal. The Committee noted at the time:
The Committee is very mindful of the importance of maintaining the clear distinction between intelligence and law enforcement. ASIO is not a law enforcement agency; it is an intelligence agency. Its statutory charter makes this clear. The Committee has serious misgivings about whether this power would take ASIO into the realm of law enforcement and policing.
3.172
The Committee notes that current proposal is primarily for officer safety—not intelligence collection—and the proposed person search would be carried out by police officers, not ASIO officers.
3.173
The Committee considers that this matter should be brought forward for consideration in any proposed legislation amending the questioning framework.
Accountability arrangements
3.174
INSLM Gyles noted in his 2016 review that the present questioning power is ‘heavy duty with heavy duty safeguards’. The Committee agrees with that proposition and ASIO’s assertion that the accountability arrangements provided under the questioning and detention powers are among the highest imposed on bodies with coercive powers in Australia.
3.175
The Committee considers it is appropriate and necessary for these intrusive powers, which have limited judicial oversight and operate in secret, to be restrained and subject to a comprehensive system of oversight in order to foster public confidence in their use and operation.
3.176
The Committee notes that ASIO has supported the retention of existing oversight provisions.
3.177
The Committee therefore finds that all existing provisions contained in the Australian Security and Intelligence Organisation Act 1979 and the Inspector-General of Intelligence and Security Act 1986 relating to the Inspector-General of Intelligence and Security’s oversight of Division 3 of Part III should be retained.
3.178
The Committee further finds that all existing accountability and safeguard provisions contained within Division 3 of Part III should be retained. This includes:
the written statement of procedures (section 34C),
availability of, and access to, complaint mechanisms (sections 34K and 34ZG),
offences for contravention of safeguards (section 34ZF),
access to an interpreter (sections 34M and 34N),
requirement to treat the person humanely (section 34T),
obligation to video record questioning (section 34ZA),
reporting to the Minister (section 34ZH), and
provision of financial assistance (section 34ZX).
3.179
The Director-General of Security’s annual reporting requirements (section 94) should also be retained.
3.180
The Committee supports the continuation of a written statement of procedures as currently required under section 34C of the ASIO Act, which establishes, and provides public awareness of, the obligation on ASIO and police officers when executing a warrant to treat persons with respect and dignity. A new statement of procedures should be developed for any revised questioning framework in consultation with the Inspector-General of Intelligence and Security and the Commissioner of the Australian Federal Police.
3.181
ASIO should also develop a set of internal procedures and protocols to govern the amended questioning warrant framework.
3.182
Finally, the Committee notes the recommendation of INSLM Gyles that a protocol be developed between ASIO, the ACIC and other bodies that share information obtained via compulsory questioning, to avoid oppression by successive examinations. The Committee, in principle, supports this recommendation, but did not give close consideration to the matter. The Committee expects the government to consider this recommendation.
Retention of existing provisions
3.183
As noted earlier, ASIO has sought to retain a number of existing provisions within Division 3 of Part III of the ASIO Act.
3.184
The Committee finds that, subject to its findings in relation to minors, a questioning warrant should continue to be able to be issued against any person, whether a target of ASIO investigation or a third party.
3.185
The Committee notes that ASIO has not proposed reducing the legislative threshold for obtaining a QW. ASIO has however sought to remove the existing link to a criminal offence. The Committee is of the view that the intrusive and extraordinary nature of these powers means that the powers should not be readily accessible, and ASIO’s use of the powers should continue to be judicious and sparing. The legislative threshold should not be reduced.
3.186
ASIO has supported retention of existing timeframes that apply to the operation of questioning warrants, including the maximum 28 day period in which a warrant may be in force and maximum questioning times currently permitted under section 34R. It is the Committee’s expectation that these existing timeframes, where applicable, would continue under an amended questioning regime.
3.187
Similarly, the Committee finds that actions authorised under the warrant in section 34E, including that a person subject to the warrant appear for questioning immediately, or at a time specified in the warrant, and that the subject be required to give information and/or produce records or things be continued. ASIO should also continue to be able to question a subject and make copies and/or a transcript of anything said or produced.
3.188
The Committee notes that ASIO has sought to retain the current availability of judicial review, automatic direct-use immunity in regard to information provided under a questioning warrant, and existing offences for the contravention of safeguards by ASIO or law enforcement officers. The Committee supports, in principle, retention of these provisions, subject to review of specific provisions in the revised legislation.
Continuation of the legislation and Committee review
3.189
The Committee considers that any proposed legislation should include an appropriate sunset clause. The Committee is also of the view that it would be appropriate to require the Committee to conduct a further review of the compulsory questioning framework prior to the sunset date. In such a review, the Committee would consider the powers and safeguards to ensure they are operating as intended. The Committee notes that the INSLM is already empowered to conduct further reviews of the provisions under the Independent National Security Legislation Monitor Act 2010.
March 2018