Referral of the Bill
1.1
The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill) was introduced into the House of Representative by the Hon Peter Dutton MP, Minister for Home Affairs on 13 May 2020.
1.2
In his second reading speech Minister Dutton said:
The Australian Security Intelligence Organisation (ASIO) is facing a wider range of security challenges than at any time in its 70-year history. As the director-general recently noted in his recent annual threat assessment, the number of terrorism leads ASIO is investigating has doubled since this time last year. The director-general also noted that the threat to Australia from foreign interference and espionage is higher now than it was at the height of the Cold War.
The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats.
`It does this in two ways. First, the bill repeals ASIO's existing questioning and detention warrant framework contained in division 3 of part III of the Australian Security Intelligence Organisation Act 1979(ASIO Act), and introduces a reformed compulsory questioning framework.
Second, the bill aligns the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004 and modernises the definition of tracking device to ensure ASIO is able to use the latest and safest technology to perform its functions.
1.3
On 13 May 2020, the Hon Peter Dutton MP, Minister for Home Affairs, wrote to the Committee to refer the provisions of the Bill to the Committee for inquiry and report.
Conduct of the inquiry
1.4
The Committee resolved to undertake an inquiry into the Bill and details of the inquiry were uploaded to the Committee’s website, www.aph.gov.au/pjcis, on 14 May 2020. Calls for submissions were announced the same day, with submissions from ASIO and the Department of Home Affairs requested by 29 May 2020 with all other submitters requested to submit by 26 June 2020.
1.5
The Committee received 37 submissions and 9 supplementary submissions. A list of submissions received can be found at Appendix A.
1.6
The Committee held a public hearing on 10 July 2020. A list of witnesses appearing at the hearings can be found at Appendix B.
1.7
Copies of submissions, the transcript from the public hearing and links to the Bill and Explanatory Memorandum, can be accessed at the Committee’s website.
Report structure
1.8
In addition to this introductory chapter the report has three further chapters being:
Chapter Two which assesses the Bill in response to the Committee’s 2018 Questioning and Detention Report recommendations and findings;
Chapter Three sets out the consideration of the Bill and evidence received to the Committee inquiry; and
Chapter Four sets out the Committee’s comments and recommendations on the Bill.
The Committee’s 2018 Report on ASIO's questioning and detention powers
1.9
In May 2018 the Committee tabled its report: ASIO's questioning and detention powers: Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (2018 Questioning and Detention Report). The 2018 report set out a number of recommendations and findings. The Explanatory Memorandum states that the Bill
implements the Government’s response to the report by the Parliamentary Joint Committee on Intelligence and Security into the operation, effectiveness and implications of the ASIO Act’s existing compulsory questioning framework.
1.10
As set out above Chapter Two of this report assesses the Committee’s recommendations and findings in relation to the Bill. This assessment is high level and is not a detailed description of each aspect of the Bill but provides an outline of whether the Bill has addressed the recommendations and findings from 2018.
The Bill
1.11
The Bill amends the compulsory questioning framework in the ASIO Act by:
enabling ASIO’s continued use of questioning warrants, but removing its ability to use questioning and detention warrants;
replacing the existing detention framework with a more limited apprehension framework to ensure attendance during questioning and to prevent contact with others or the destruction of information;
enabling the use of questioning warrants in relation to espionage, politically motivated violence (including terrorism) and acts of foreign interference, as defined in section 4 of the ASIO Act, rather than only in relation to terrorism offences;
streamlining the process for requesting and issuing a questioning warrant by enabling the Attorney-General to issue questioning warrants directly, removing the role of the issuing authority;
enabling ASIO to request, and the Attorney-General to issue, questioning warrants orally in an emergency;
amending the eligibility requirements for appointment of prescribed authorities, to enable a broader pool of qualified persons to be appointed to this role;
providing the power for a police officer to conduct a search of a person who is apprehended in connection with a questioning warrant, and the ability to seize dangerous items and items that could be used to communicate the existence of the warrant or escape from custody, with an additional ability to seize items of intelligence relevant to the questioning matter, when authorised by the Attorney-General;
introducing screening measures and person searches for people attending questioning, either as the subject of the questioning warrant or others involved in the questioning process such as parents, and the ability of a police officer to retain any dangerous items and communications devices found in order to ensure the safety of those involved in questioning, and the integrity of the questioning;
subject to a number of safeguards - permitting ASIO to seek a questioning warrant in relation to minors aged 14 to 18 years old, but only where the minor is themselves the target of an ASIO investigation in relation to politically motivated violence;
strengthening the right to legal representation during questioning while retaining the ability to prevent contact with specific lawyers due to security concerns, and to remove a lawyer who is unduly disruptive during questioning;
introducing the ability of the independent prescribed authority to appoint a lawyer for the subject of a questioning warrant in certain circumstances; and
enabling a questioning warrant to be executed following the laying of charges against the person who is the subject of a questioning warrant, or where charges against that person are likely, and allow for the questioning to cover matters that are the subject of those charges with appropriate protections in relation to the person’s fair trial.
To support this new framework, the Bill also retains existing provisions in relation to the exercise of a questioning warrant, including:
oversight, including the presence of the Inspector-General of Intelligence and Security at questioning;
the existing 28 day limit for a questioning warrant to be in force;
the prescribed authority’s obligation to explain that the subject of a questioning warrant may seek a remedy from a federal court relating to their treatment in connection with the warrant;
the immunities from criminal liability in providing information, records or other things during questioning;
offences for non-compliance with the questioning warrant;
secrecy obligations and related offences;
access to interpreters where required; and
the humane treatment of the subject of a questioning warrant.
The Bill also amends the surveillance device framework in the ASIO Act to promote increased operational agility, mitigate the risk to ASIO surveillance operatives engaging in physical surveillance and to help resolve the current disadvantage faced by ASIO when engaging in joint operations with law enforcement. The Bill amends the ASIO Act in this regard by:
enabling ASIO to use tracking devices with internal authorisation in certain circumstances, rather than requiring a warrant;
clarifying that the surveillance device framework is permissive and does not require ASIO to obtain a warrant where conduct would not otherwise be unlawful; and
updating the definition of ‘tracking device’ and effectively modernising ASIO’s capabilities.
The Bill also makes consequential technical amendments to the Crimes Act 1914, the Criminal Code Act 1995, the Foreign Evidence Act 1994 and the Inspector-General of Intelligence and Security Act 1986.