The Questioning Warrant Framework
Expansion of the scope of a questioning warrant from terrorism offences to espionage, foreign interference and politically motivated violence
3.1
Under current legislation, a Questioning Warrant (QW) may be issued where the issuing authority is satisfied that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.
3.2
For warrants in relation to persons over the age of 16 but under 18, there is currently a further restriction that the Attorney-General may only consent to a warrant application if satisfied on reasonable grounds that it is likely that the person will commit, is committing or has committed a terrorism offence.
3.3
A terrorism offence is defined in the ASIO Act as an offence against Subdivision a of Division 72 of the Criminal Code (‘International terrorist activities using explosive or lethal devices’), or an offence against Part 5.3 of the Criminal Code (‘Terrorism’).
3.4
Proposed section 34BA provides that, for adult questioning warrant (person at least 18 years old), the Attorney-General may issue a warrant if satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to the protection of Australia from espionage; acts of foreign interference; or politically motivated violence.
3.5
Proposed section 34BB provides that, for minor questioning warrants (person at least 14 years old), the Attorney-General may issue a warrant if there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of Australia and its people from politically motivated violence, and that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to protection of Australia and its people from politically motivated violence (PMV).
3.6
PMV is defined in section 4 of the ASIO Act as:
(a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or
(b) acts that:
(i) involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and
(ii) are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or
(ba) acts that are terrorism offences; or
(c) acts that are offences punishable under Division 119 of the Criminal Code, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
(d) acts that:
(i) are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or
(ii) threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director‑General.
3.7
Acts of foreign interference is defined in section 4 of the ASIO Act as:
activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:
(a) are clandestine or deceptive and:
(i) are carried on for intelligence purposes;
(ii) are carried on for the purpose of affecting political or governmental processes; or
(iii) are otherwise detrimental to the interests of Australia; or
(b) involve a threat to any person.
3.8
In relation to this broadening of the scope of questioning powers the Department of Home Affairs (Home Affairs) state that:
Broadening the scope of the powers will ensure that questioning warrants may be used where appropriate to investigate those threats that pose the greatest potential harm to Australians and Australian interests. Removing the existing link to a criminal offence better aligns the powers with ASIO’s functions as an intelligence agency. ASIO’s investigations focus on anticipating threats to security, often before it is possible to identify a criminal offence. This amendment will enable the use of the powers to collect intelligence at an earlier stage of investigation by removing the need to establish the presence of criminality.
3.9
Similarly, ASIO states that:
ASIO already has the power to conduct compulsory interviews with suspected terrorists; allowing us to conduct compulsory interviews to investigate threats of espionage and foreign interference will provide a substantial capability enhancement to safeguard Australia’s national security. The new framework also enables ASIO to collect intelligence quickly and in high-threat environments, which will enable us to remain agile against the evolving security environment.
3.10
A number of submitters raised concerns around this expansion of the questioning power.
3.11
The Australian Human Rights Commission, whilst acknowledging foreign interference and espionage may present increasingly complex threats to national security in Australia, states that it
has not been demonstrated that the threats posed to national security by foreign interference and espionage are of the same magnitude as those posed by the kinds of catastrophic terrorist attacks which were said to justify the introduction of the current powers in 2002. Nor has it been explained why less intrusive powers would be inadequate in addressing the current threats.
3.12
The International Commission of Jurists (Victoria) (ICJ), after setting out and discussing the definition of politically motivated violence set out its concern around ‘how ASIO will determine and define’ PMV and opined that:
Without adequate scrutiny and little independent oversight, it will largely be left to ASIO to decide where it draws the line. As noted above, upholding the rule of law requires the law to be knowable and predictable. Presently, the amendments are not.
Legislative threshold for issuing a questioning warrant
3.13
Under the expanded framework proposed in this Bill, the legislative threshold remains largely the same as previous iterations.
3.14
Under the existing framework, the Attorney-General may consent to the making of a request for a questioning warrant if satisfied that there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence.
3.15
Proposed section 34BA sets out the legislative threshold for an adult QW as follows, that:
the person is at least 18 years old;
there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to an adult questioning matter;
having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued;
the warrant is a post-charge, or post-confiscation application, questioning warrant—it is necessary, for the purposes of collecting the intelligence, for the warrant to be issued even though:
the person has been charged or the confiscation proceeding has commenced;
that charge or proceeding is imminent
there is in force, under section 34AF, a written statement of procedures to be followed in the exercise of authority under a questioning warrant.
3.16
Furthermore, in their submission Home Affairs states that this new framework ‘imposes a higher threshold where the warrant is a post-charge, or post-confiscation application questioning warrant’;
[By] imposing an additional requirement that it is necessary, for the purpose of collecting the intelligence that warrant be issued even though legal proceedings may be underway. This requirement is consistent with similar requirements in the Australian Crime Commission Act 2002 and Law Enforcement Integrity Commissioner Act 2006, and is intended to ensure that the warrant is issued for the purpose of collecting intelligence, and not to bolster the prosecution of any charges underway.
3.17
A number of concerns were raised with regard to legislative thresholds for a QW.
3.18
In their submission, the Law Council of Australia expressed concerns the existing thresholds may result in the questioning of children who are ‘unintentionally engaged in prejudicial activities’.
Accordingly, it would be possible for ASIO to obtain a questioning warrant in relation to a child who has been exploited by adults of security concern as a ‘mere courier’ (for example, by passing on communications or items without knowledge or understanding of their contents or purpose, or any deliberate design to contribute to the objectives or activities of the relevant group).
3.19
Associate Professor Greg Carne submitted that a ‘threshold limitation is required as the Bill’s new broad questioning warrant inclusions of espionage, politically motivated violence and acts of foreign interference extend far beyond existing terrorism offence questioning powers’.
Issuing a warrant
3.20
Under existing legislation, the issuing process for QW’s occurs in three stages. In the first place, the Director-General of Security (Director-General) must seek the Commonwealth Attorney-General’s (Attorney-General) consent to apply for a Warrant. The Attorney-General then considers whether to approve the application. The final stage is the issuing of a Questioning Warrant by a judge appointed by the Commonwealth Attorney-General as an issuing authority.
3.21
In explaining this amendment, the Home Affairs submitted that the current issuing process for a QW is ‘inconsistent with the authorisation of other ASIO warrants and not conducive to the efficient or timely execution of a questioning warrant’. For this reason, the Bill removes the standing ‘issuing authority role’ and has provided the Attorney-General with the sole responsibility for issuing, varying and revoking a QW, as well as the ability to authorise the subject’s apprehension. In support of this proposal, Home Affairs stated,
Streamlining the authorisation process for issuing a questioning warrant will ensure that the powers are suitably tailored to the current operational environment. Significant changes in Australia’s security environment has seen a rise in low complexity attacks by lone actors or small groups involving the use of weapons that are easy to acquire, such as knives or vehicles. This has significantly changed the pace of ASIO’s investigations, as opportunities to identify and intervene are limited. Removing the multi-step authorisation process will ensure that ASIO’s compulsory questioning powers are operationally efficient in a fast-paced, high-threat environment.
3.22
The Inspector-General for Intelligence and Security (IGIS) noted that the ‘removal of the role…also departs from the trend towards increased requirements for external authorisation in other Five Eyes jurisdictions’ and provided examples of recent legislation adopted by the United Kingdom and New Zealand which require intrusive powers to be approved by the responsible Minister and an independent judicial commissioner.
3.23
A number of submitters raised concerns regarding this proposed amendment, and its ‘streamlining effects’. Dr Nicola McGarrity and Professor George Williams submitted that this amendment would result in there ‘no longer be any role for an independent and impartial issuing authority’. According to Williams and McGarrity, the current issuing process authority ‘plays an integral role in safeguarding the fundamental human rights of the person in relation to whom a Questioning Warrant is sought’ and helps to maintain public confidence that the decision-making process has been approached in a non-discriminatory manner’.
3.24
The Australian Human Rights Commission raised similar concerns, stating that,
the QW regime could be made more ‘streamlined’ or efficient, without diminishing the effectiveness of safeguards against abuse, it would make sense to amend it accordingly. However, limitations on human rights cannot be justified only on the basis of administrative efficiency.
3.25
The Law Council recommended that the Bill is amended to include a ‘double lock’ authorisation mechanism for the issuing of questioning warrants (QWs), based on requirements of the Investigatory Powers Act 2016 (UK) (IPA) for the authorisation of electronic surveillance and technical collection warrants (for example, telecommunications interception and metadata access). The following table compares the key provisions of the IPA (illustratively using the provisions on telecommunications interception warrants) with the Law Council’s recommendation.
Table 3.1: Law Council of Australia proposed 'double lock' mechanism
|
|
Investigatory Powers Act 2016 (UK)
|
Law Council recommendation for ‘double-lock’ authorisation of ASIO QWs (rec 15, pp. 41-44)
|
|
Power to issue (primary decision-maker).
|
Conferred on Secretary of State for Home Office on application of an ‘intercepting authority’. (That is, intelligence agencies and specified law enforcement agencies, including police): ss 18-19.
|
Conferred on the Commonwealth Attorney-General, on a request made by the Director-General of Security.
|
|
‘Double-lock’ reviewing authority
|
Judicial Commissioner of the Investigatory Powers Commission (IPC). (That is, a Judge of the Supreme Court): ss 23 and 227.
|
A Judge of the Federal Court or a State or Territory superior court, who is appointed in their personal capacity.
|
|
Applicable test for double lock review
|
A Judicial Commissioner must review the Secretary of State’s conclusions on the following matters (the issuing criteria for the warrant, per ss 20 and 2):
whether the warrant is necessary on ‘relevant grounds’ (which include national security); and
whether the conduct that would be authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
The Judicial Commissioner must apply the same principles as would be applied by a court on a judicial review application: ss 23(1)-(3).
|
The reviewing judge must review the Attorney-General’s decision to issue the warrant, and consider whether the issuing decision was reasonably open on the facts and grounds placed before the Attorney-General.
The reviewing judge must apply the same principles as would be applied by a court on an application for statutory judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).1 Note: this should be read with the Law Council’s recommendations 17-19 (issuing criteria should include necessity, proportionality and consideration of multiple powers and oppression)
|
|
Reasons for double-lock review decision
|
If a Judicial Commissioner does not approve the issuing of the warrant (that is, they do not uphold the issuing decision on their review) they must give the Secretary of State written reasons for the refusal: s 23(4).
|
If the reviewing judge does not uphold the issuing of the warrant on their review, they must give written reasons to the Attorney-General if they refuse to confirm the issuing decision.
|
|
Review of double lock review decision
|
The Secretary of State may ask the Investigatory Powers Commissioner (a Supreme Court judge who is the head of the IPC) to reconsider an application that a Judicial Commissioner has refused: s 23(5).
|
Not proposed. Australia has no equivalent body to the IPC. The decision of the reviewing judicial officer would be final, however, ASIO could make a new warrant request.
|
|
Urgent cases
|
The warrant takes effect when issued by the Secretary of State. The Secretary of State must inform the Judicial Commissioner of the issuing of the warrant. The Judicial Commissioner must decide whether to approve the issuing decision within three days. If the Judicial Commissioner refuses to approve the issuing decision, the warrant ceases to have effect: s 24. The Judicial Commissioner may make directions requiring the destruction of material obtained under warrant, or impose conditions on its use or retention: s 25.
|
The reviewing judge must complete a review of the issuing decision within three days (or another, shorter period of time). If they do not uphold the issuing of the warrant, the warrant is cancelled. The judge may order the destruction of the intelligence or impose conditions on its retention.
|
Source: Law Council of Australia, Submission 31.1.
3.26
The Department of Home Affairs was asked to comment on this recommendation and it stated:
The authorisation process in the Bill is consistent with the findings of the Committee in its 2018 report.
As the First Law Officer of the Commonwealth with responsibility for the rule of law and oversight of intelligence agencies, the Attorney-General currently issues all other ASIO special power warrants in the ASIO Act. This includes search, surveillance device and computer access warrants. This provides ministerial oversight of the intended use of intrusive powers for national security purposes, and establishes ministerial accountability, a central principle of Australia’s parliamentary system. In his Third Report of the Royal Commission on Intelligence and Security, Justice Hope highlighted that Ministers are required to accept clear responsibility for the agencies of the intelligence community and are accountable to Parliament for the agencies within it.
As to the consequences if the recommendation was implemented Home Affairs stated:
This would result in the same delays in applying for and executing a compulsory questioning warrant as the existing framework. In some cases, the delay may be operationally significant. It would maintain the departure from the existing authorisation process for a majority of ASIO’s powers and be inconsistent with the findings of the 2018 Committee Report in relation to ASIO’s existing questioning and detention warrant framework.
3.27
On Friday 30 October 2020 the Committee held an additional public hearing to allow the Director-General of ASIO an opportunity to explain ASIO’s position in relation to the issuing of a QW. The Director-General stated that his view was that
actually the Attorney-General is the high standard for all other intrusive activities that we take. We recognise we have extraordinary powers, and I think the Attorney-General is appropriate for the compulsory questioning power.
3.28
The Director-General went on to explain that, although streamlining was one argument for the Attorney-General issuing QWs the accountability given by the Attorney-General issuing QW’s was central to his support for the current Bill.
The Attorney-General approves all our other warrants, which are intrusive by their very nature. And I think it is sufficient—and of course the Inspector-General of Intelligence and Security has 24/7 access to everything we do, so it's not just a matter of coming around to forming an inquiry into looking at something. Actually the inspector-general routinely inspects, and her staff inspect, the warrants we put up. For ASIO's part, of course everything we do is proportionate to the threat at hand.
So, when we're putting together a warrant of whatever form, including compulsory questioning, we do look at a number of factors, including whether it is necessary, whether it is proportionate to the threat at hand and the unintended consequences. And we have to explain all of that in great detail to the Attorney-General, including the entire facts and grounds for this step. And of course there are a number of reporting obligations that go on should a warrant be approved by the Attorney-General. So, I can assure you that my agency and I, as the director-general of security, take these matters very seriously. We recognise that we are given extraordinary powers, and our attention to detail and our need to be meticulous in execution in all things that we do is paramount. Yes, as the Inspector-General of Intelligence and Security has seen and done, we are able to make mistakes, but they are rare, and when we make mistakes we learn from them quickly and we are subject to the full force and judgements of the Inspector-General of Intelligence and Security and of course the government of the day through the minister and the Attorney-General themselves.
Emergency questioning warrants
3.29
Within the ASIO Act, there are currently two emergency authorisation frameworks which provide for the authorisation of ASIO’s special powers. In Division 2 of Part III the ASIO Act emergency warrants may be issued, and in Division 4 special intelligence operations may be authorised in urgent circumstances.
3.30
Proposed section 34B outlines that warrants can be sought and issues orally by the Attorney-General at the request of the Director-General, should they meet the legal threshold that:
The Director-General reasonably believes that the delay caused by making a written request may be prejudicial to security – orally in person, or by telephone, or other means of communication.
3.31
Section 34B also contains additional requirements should a warrant be requested orally, including that the Director-General must, before or as soon as practicable after the request is made, cause the Inspector-General of Intelligence and Security to be notified that the request will be or has been made. Further, the Director-General must also make a written record of the request and within 48 hours, provide it to the Attorney-General and the Inspector-General to Security.
3.32
Home Affairs, in their submission, provided that this proposal was necessary as ‘the current security environment requires a mechanism for the authorisation of a questioning warrant in an emergency’.
3.33
A number of submitters considered this proposal and raised concerns regarding the accountability of such a warrant. The Australian Lawyers Alliances expressed concern that
the issuing of an oral warrant lacks the necessary accountability, given that it may be up to 48 hours after the warrant is issued that a written record of the warrant and any relevant conditions or restrictions are made. The ALA is concerned that in that time the warrant may have been executed excessively or beyond the scope of what was originally intended, and that any subsequent written record could be ‘retro-fitted’ to the manner in which it was executed.
3.34
The ANU Law Reform and Social Justice Research Hub also expressed their opposition to the proposal, including their concerns that;
efficiency must be balanced against the need for accountability in relation to these expansive powers. Judges acting in their role as persona designata bring a level of independence to a decision that is otherwise made entirely internally within the executive branch of government. There are also significant concerns regarding these types of decisions made by a member of the executive who is seeking election. Terrorism is a fraught political issue, subject to spin and electoral leveraging. This may mean that the Attorney-General could be subject to accusations of bias or the appearance of bias in making these types of decisions. Such a situation would likely not accord with either the goals of government or of ASIO and could impact the perception of the validity of any warrants issued under this section.
Apprehension of adults
3.35
The ASIO Bill repeals the current detention power and introduces an apprehension power to ensure attendance at questioning, prevent the tipping off others or the destruction of records or other things.
3.36
Proposed section 34C sets out the guidelines and situations where a subject can be apprehended when they are the subject of a QW. Further, it notes that apprehension ends when the subject appears before a prescribed authority for questioning under the warrant. This includes if,
There is an immediate appearance requirement in the QW.
The warrant has authorised the apprehension of a subject.
Certain representations are made by the subject, including that the subject intends to;
Alert a person involved in an activity prejudicial to security that the activity is being investigated, or
Not appear before the prescribed authority, or
Destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested in accordance with the warrant to produce.
The subject of the questioning warrant fails to appear at the time specified in the warrant, or by a direction of a prescribed authority.
3.37
Proposed section 34CA enables a police officer to enter a premises to apprehend a subject if they are authorised to do so under section 34C and has belief on reasonable grounds that the subject is on a particular premises. The officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night, for the purpose of searching the premises for the subject or apprehending the subject.
3.38
ASIO and Home Affairs did not provide comment in their submissions, other than explaining the technicalities of the legislation.
3.39
The Australian Federal Police (AFP), in their submission, noted that police apprehension based on representations is a new power and is exercisable only at the discretion of the police officer.
3.40
A number of submissions expressed concerns with regard to this section. The Law Council of Australia expressed that, in their view, this proposed apprehension amounted to detention in both substance and effect. The Law Council’s submission contains concerns with regard to the ‘absence of judicial involvement in decisions to authorise the immediate apprehension of a person’. The Law Council stated their view as,
if such a [apprehension] power is to be available, it should be conferred solely upon a judicial officer, as is the case under section 31 of the ACC Act. The Law Council considers that there is no viable justification for subjecting ASIO to a lesser standard of independence in the authorisation process, which is the effect of the Bill as drafted by conferring this power exclusively on a minister. Given that decision-making about apprehension at the time of issuing a warrant necessarily involves the imposition of a significant restraint on a person’s liberty based on a prediction about their future conduct, the Law Council considers it important that such a complex and high-risk decision is subject to independent determination by a person who is not a central part of the executive government, as is a Minister of the Crown.
3.41
As such, the Law Council provided a recommendation that
Proposed subsection 34BE(2) of the ASIO Act (and related provisions) should be amended so that only a judicial officer appointed persona designata (and not the Attorney-General as part of issuing the warrant may authorise the immediate apprehension of a warrant subject, on the basis of an unacceptable risk they may abscond, tip off others or tamper with or destroy relevant information.
Questioning of minors
3.42
Under the current legislation, ASIO may seek a QW against a person as young as 16 years of age. A special threshold had existed for these QW including that the ‘Attorney-General must be satisfied on reasonable grounds that it is likely the minor will commit, is committing, or has committed a terrorism offence.’
3.43
Proposed section 34BB lowers the minimum age of questioning to 14 years of age and widens the scope of questioning in relation to a minor from terrorism offences to politically motivated violence.
3.44
In their submission, Home Affairs noted that ‘the Bill retains the previous threshold’. Proposed section 34BB(1)(b) differs slightly that the Attorney General must be satisfied that ‘there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in’ politically motivated violence.
3.45
In their submission, ASIO provides justification for this proposal noting,
ASIO is particularly concerned that vulnerable and impressionable young people will continue to be at risk of being ensnared in the streams of hate being spread across the internet by extremists of every ideology. Islamist extremist groups and supporters continue to disseminate propaganda designed to radicalise, recruit and inspire terrorist attacks in the West, including in Australia. The approach to propaganda of the Islamic State of Iraq and the Levant (ISIL) set the standard among Islamist extremists, but right-wing extremists will also continue to produce internet-savvy, sophisticated messaging. Extreme right-wing online forums proliferate on the internet and attract international memberships, including from Australians. These online forums share and promote extremist right-wing ideologies and encourage and justify acts of violence. We expect such groups will remain an enduring threat, making more use of online propaganda to spread their messages of hate.
3.46
ASIO further provide details of three terrorist attack disruptions that involved minors under the age of 18 and stated that the successful terrorist attack which involved the murder of a NSW Police, Curtis Cheng. ASIO provided these as real-life cases to demonstrate the challenges they face in protecting Australian interests from an expanding youth terrorist threat.
3.47
The AFP provided support for the proposal to utilise ‘compulsory questioning powers on minors of 14 years of age’ for PMV, alongside ‘appropriate protections and considerations, to allow ASIO to collect intelligence and collaborate quickly in a predictive and anticipatory capacity’. Further, the AFP stated that,
Limiting these powers to individuals over 14 years of age aligns with age thresholds for Control Orders in counter terrorism matters. The Counter-Terrorism Legislation Amendment Act (No 1) 2016 recognised that 14 years of age is an appropriate threshold for the application of control orders. Prior to these amendments, the threshold was also set at 16 years of age.
3.48
A number of submitters from civil societies and the public raised concern with this proposal. The ‘Save the Children’ Organisation submitted that this Bill ‘directly impinges’ on the fundamental rights of Children as provided by the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR), both of which Australia is a signatory. Further, Save the Children stated that this Bill,
Would allow ASIO to compulsorily question children as young as 14, including the power to obtain a warrant for police to immediately apprehend and search children, using force if necessary. This effectively amounts to an extraordinary power to detain children. The Bill also threatens children’s basic rights in the child justice system, including the right to a fair trial.
3.49
Save the Children also raised concern with the Bill and its adoption of international practice,
The extension of counter-terrorism legislation to children is also out of step with international standards. The United Nations Global Study on Children Deprived of Liberty has recently, following an extensive global review, recommended that children be excluded from counter-terrorism and security legislation and instead handled exclusively within child justice systems, including the full suite of procedural and other safeguards that ordinarily apply to children in the justice system. It is also noted that the United Nations Committee on the Rights of the Child has urged States parties to adopt preventive interventions to tackle social factors and root causes, as well as social reintegration measures, when implementing Security Council resolutions related to counter-terrorism.
3.50
The ICJ shared similar concerns with regard to Australia’s obligations in accordance with the CRC and the ICCPR. They further state that the explanatory memorandum accompanying the Bill provides little evidence this change is necessary.
If the risk identified is the use of teens to commit terror, this does not justify coercive powers in relation to children when existing investigative and control powers are already so significant. At paragraph 27, the Memorandum cites: “The need for the lowered age is illustrated by the 2015 politically motivated shooting of New South Wales Police Force employee by a 15 year old.” Although the incident itself was a tragedy, such incidents are well within the capability of existing law enforcement and do not justify the removal of fundamental safeguards from oppressive state activity.
3.51
The views of the ANU Law Reform and Social Justice Research Hub submitted to the Committee were aligned with the ICJ, stating that the ‘Bill should be amended to raise the minimum age contained in s 34BB to 16 years given the present lack of justification for the lowering of the age that an individual may be subject to a compulsory questioning warrant’.
In ASIO’s submission, it identified four incidents in the past five years involving minors, comprising one terrorist attack and three ‘disruptions ’. Of these four incidents, only one involved a minor below the age of 16. Beyond this, only the presence of propaganda was raised to justify the threat posed by minors. This propaganda already existed throughout this five-year period and does not appear to present an enhanced threat justifying the extension of compulsory questioning powers to vulnerable individuals.
Apprehension of minors
3.52
According to the Home Affairs submission, the apprehension powers within the Bill apply equally for adult and minor questioning warrants. They state however, that there are higher legislative thresholds, alongside the requirement for the Attorney-General to consider the best interests of the child before issuing the warrant.
3.53
Currently, ASIO can question and detain minors aged 16 years or over in relation to a terrorism offence. As this Bill removes detention powers, Home Affairs believes that ‘ASIO requires a mechanism to ensure that any minor who is the subject of a questioning warrant does not abscond, tip-off others, or destroy records or other things’.
Age does not reduce the threat posed by the subject. In fact, a minor may be less likely to respond rationally when faced with a questioning warrant, and may be more inclined to ignore the serious consequences for failing to comply with a warrant.
The exclusion of persons under 18 years of age from the proposed apprehension power would leave a critical gap in ASIO’s compulsory questioning powers. This may have significant operational consequences, particularly in circumstances where a minor is involved in planning an imminent terrorist attack. The ability to apprehend a minor where required may prevent behaviour that would seriously jeopardise an ASIO investigation.
3.54
Submitters raised similar concerns regarding the apprehension of minors in comparison to lowering the questioning age and expanding the scope for a minor QW. The Australian Human Rights Commission submitted that the ‘proposed QW regime’, including those that include children and involve apprehension ‘are highly intrusive of the human rights of any persons subject to their use.’
3.55
The Law Council, which does not support the Bill, raised concerns that insufficient evidence has been raised by the relevant parties on the need for this provision.
The Explanatory Memorandum does not provide a cogent explanation of the need for minors to be apprehended, in the absence of any failure on the minor’s part to voluntarily attend for questioning, or demonstrated non-compliance with the minor’s obligations under Division 3 of Part III of the ASIO Act. That is, it does not explain why any risk presented by a minor’s potential failure to attend, or their potential to tip off others or tamper with or destroy relevant information, could not be managed adequately via surveillance of the minor until the time of their required appearance; with a separate power of apprehension available to police only once there is sufficient evidence of the minor’s specific conduct in closer proximity to the appointed time of questioning, which reasonably suggests that the minor’s conduct presents an unacceptable risk of non-appearance, tip-off, tampering or destruction.
Additional safeguards for minors
3.56
Accompanying the aforementioned creation of a minor QW and associated apprehension, the Bill also establishes a number of safeguards to protect minors. Included within the Home Affairs submission, these were listed as:
The prescribed authority must explain additional matters to the minor, such as their rights in relation to a lawyer and a minor’s representative.
A minor may only be questioned under the warrant in the presence of a lawyer.
Questioning may only occur with a minor’s representative present (for example, a parent or guardian; or, in some limited circumstances a lawyer).
The minor may contact a minor’s representative at any time after being notified of the warrant.
Questioning of a minor may only occur for continuous periods of two hours or less, separated by breaks directed by the prescribed authority.
3.57
ASIO, in their submission, expanded on these safeguards further;
The Bill retains the numerous existing safeguards and the various reporting requirements contained in the current questioning framework and retains and updates provisions permitting the Inspector-General of Intelligence and Security to be present at questioning and apprehension and to raise concerns with the prescribed authority, who may then suspend questioning. The Bill also adds additional safeguards to the questioning power, such as clarifying the subject’s right to legal representation and requiring the Attorney-General to consider the best interests of the subject where the warrant is to be issued in relation to a minor. The Bill will also ensure a subject has the right to make a complaint to the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman or relevant complaints agency in relation to the conduct of ASIO or police officers.
3.58
In addition, ASIO identifies that the Bill contains a ‘best interests of the child test’ which the Attorney-General will be required to take into consideration prior to issuing the warrant. These include:
the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
the physical and mental health of the person;
the benefit to the person of having a meaningful relationship with the person’s family and friends;
the right of the person to receive an education;
the right of the person to practise the person’s religion; and
any other matter the Attorney-General considers relevant.
3.59
A number of concerns were raised with regard to the included safeguards.
3.60
The Save the Children organisation criticised the safeguards, and in particular was concerned that the ‘best interests of the child test’ was only one of many considering factors.
The Bill severely limits children’s rights and its safeguards are not comprehensive. For example, the Bill contains no requirement for children’s best interests to be a primary consideration throughout the warrant and questioning process. It only requires the child’s best interests to be considered when deciding whether to issue a warrant, and even then there is no requirement for the child’s best interests to be a primary consideration.
3.61
The ANU Law Reform and Social Justice Hub raised two key concerns held regarding safeguards in relation to minors:
The exclusion of a definite limit on the maximum questioning time of a minor:
Two concerns are raised by this absence. First, the prescribed authority appears to have wide discretion about the duration of breaks, and may allow for negligible breaks under the present section. Second and conversely, the provision for breaks means that there is no hard limit on the amount of time a minor may be required to be present for questioning. Accounting for the maximum possible permitted questioning period, this could extend to over 24 hours; this has the potential to significantly increase the total time period during which a minor could be held for questioning. In circumstances where the questioning period is extended for a minor questioning warrant, additional elements should be incorporated into the decision-making process.
The definition within the Bill of a minor’s representative:
The definition of a ‘minor's representative’, however, appears to be wide enough to include a lawyer. This means that circumstances could arise where only the lawyer is present and yet the provisions of the Bill are complied with. The need for a minor’s representative is heightened given the limitations surrounding the subject’s choice of lawyer and the ability for a lawyer to best represent the interests of the subject as discussed below. The Committee should consider the consequent risks that a child questioned in these circumstances may not understand what is happening, the options available to them, and the consequences of any statements they may or may not make.
3.62
The Law Council raised concerns about the Bill was the absence of ‘independent assistance to children in selecting and contacting a lawyer’ and the ‘assumption that a child’s lawyer is equipped to represent their non-legal interests’:
The Bill makes no provisions for minors to be assisted in making decisions about whether to seek to contact a lawyer of their choice, how to select a lawyer, and to be supported in making contact with that lawyer if required. It is conceivable that a child, particularly if aged 14 or 15 years, may not be able to undertake these tasks alone.
These provisions impliedly assume that a child’s lawyer will be able to effectively represent the totality of the child’s non-legal interests, concurrently with representing the child’s legal interests, if a non-legal representative for the child is not present. The child’s non-legal interests may include, for example, matters relevant to their welfare or wellbeing, such as a need for emotional, psychological or spiritual support.
3.63
As such, the Law Council proposed two relevant recommendations they believe support a child who is the subject of a QW.
Recommendation 10 – rights of non-lawyer representatives to raise concerns:
Proposed section 34FG of the ASIO Act should be amended to provide that a child’s non-lawyer representative has a right to any raise concerns they may have about the welfare of the child during questioning. This should include rights to raise matters with the IGIS (in relation to ASIO), the Ombudsman (in relation to the AFP) and the Independent Child Advocate (as recommended below) at any time.
Recommendation 11 – Independent Child Advocate:
Schedule 1 to the Bill should be amended to require the appointment of an Independent Child Advocate, who is made available to support all children appearing under a minor questioning warrant, in addition to their non-lawyer representative.
There should be a prohibition on the questioning of a child unless an Independent Child Advocate is present.
The Independent Child Advocate should also function as a point of liaison between a child’s non-lawyer representative and the prescribed authority, and the IGIS or Ombudsman, to ensure that there is an accessible channel for the child’s non lawyer representative to raise concerns about the child’s welfare.
An Independent Child Advocate must:
- be qualified as a youth social worker or a child psychologist;
- be independent of ASIO and all Australian police forces;
- have no pre-existing relationship with the child;
- act only in the best interests of the child, and must not disclose information to any other person contrary to wishes or best interests of the child; and
- not be subject to compulsion to disclose information to the prescribed authority, ASIO, a law enforcement agency, a court or any other entity exercising coercive information-gathering powers that is obtained in the course of performing their functions as an Independent Child Advocate for a child who is subject to a questioning warrant.
3.64
In answer to the suggestion that Independent Child Advocate be introduced into the proposed framework The Department of Home Affairs stated that:
The Government would need to carefully consider any recommendation to introduce an Independent Child Advocate into the proposed framework to ensure that there are no unintended consequences or operational risks.
Involvement of lawyers
3.65
Proposed section 34F(1) provides the subject of a questioning warrant with the ability to seek legal advice in relation to the warrant, proposed section 34FA introduces a right for the subject to have a lawyer present during questioning, subject only to limited exceptions for adults. The Bill provides a mechanism enabling the prescribed authority to:
prevent the subject from contacting a specific lawyer where the prescribed authority is satisfied, on the basis of circumstances relating to that lawyer, that contact with that lawyer may result in either a person involved in an activity prejudicial to security being alerted that the activity is being investigated, or a record or other thing that the subject has been requested to produce in accordance with the warrant being destroyed, damaged or altered; and
address the disruption of questioning by enabling the prescribed authority to direct that the lawyer be removed from questioning.
3.66
In these circumstances, the subject may contact another lawyer.
3.67
Proposed subsection 34F(1)(a) provides that the subject of a questioning warrant may contact a lawyer at any time after they have been given notice of the warrant for the purpose of obtaining legal advice in relation to the warrant. A lawyer may also be present during questioning in accordance with the warrant.
3.68
Under proposed subsection 34FE a lawyer acting for the subject of a questioning warrant in connection with the warrant may request, and if they do so, must be given, a copy of the warrant and any variations to the warrant, or in the case of an orally issued warrant, a copy of the written record. Under proposed subsection 34FE(4) this right is subject to the Director-General of Security making such deletions from the document as the Director-General considers necessary in order to avoid prejudice to security, the defence of the Commonwealth, the conduct of the Commonwealth’s international relations, or the privacy of individuals.
3.69
Proposed subsection 34FF(3) provides that a lawyer for the subject must not intervene in the questioning of the subject or address the prescribed authority before whom the subject is being questioned except to:
request clarification of an ambiguous question, or
request a break in questioning to provide advice to the subject.
3.70
Proposed subsection 34FF(2) provides that the prescribed authority must provide a reasonable opportunity for the lawyer to advise the subject during breaks in the questioning.
3.71
The Australian Human Rights Commission stated a general concern in relation to these proposed sections:
Meaningful access to legal representation is necessary to ensure the subject of a QW understands their rights and can exercise those rights to challenge the legality and conditions of their apprehension and any ill-treatment occurring during the apprehension/questioning process. Access to a lawyer is essential to ensure that the severe limitations on human rights occasioned by questioning under warrant are within the boundaries prescribed by law, which is a precondition for any limitation on rights to be permissible under international human rights law. Proper access to legal counsel will generally be necessary for an individual to exercise the right to challenge the lawfulness of detention under article 9(4) of the ICCPR. In the case of people under 18, article 37(6) of the CRC explicitly guarantees the right of any child deprived of liberty to prompt legal assistance.
3.72
In its submission the Law Council expressed concerns around the following two aspects of these proposed subsections:
prohibitions on raising objections and cautioning clients during questioning; and,
removal of lawyers for ‘unduly disrupting’ questioning.
Prohibitions on raising objections and cautioning clients during questioning
3.73
In its submission the Law Council expressed concerns that the prohibitions on raising objections and cautioning clients during questioning will impact on ‘a subject’s lawyer to have a meaningful opportunity to participate in the process to ensure that questions are both lawful and fair’ stating that they were concerned that
the restrictions imposed by proposed subsection 34FF(3) have the potential to impinge on a lawyer’s professional obligation to act in the best interests of their client, especially when coupled with the power in proposed subsection 34FF(6) to remove a lawyer from questioning if the prescribed authority considers that the lawyer is causing an ‘undue disruption’. This may result in the lawyer being faced with the choice between:
upholding their professional responsibilities and contravening proposed subsection 34FF(3), and risking removal; or
complying with the limitations in proposed subsection 34FF(3) by participating less fully in the questioning process, but being unable to discharge their professional obligation to act in the best interests of their client.
Removal of lawyers for ‘unduly disrupting’ questioning
3.74
In its submission the Law Council expressed concerns around the proposed subsection 34FF(6) conferring a power on the prescribed authority to direct the removal of a lawyer for ‘unduly disrupting’ as there is no guidance on what constitutes ‘undue disruption’ and that there
are no requirements for the prescribed authority to issue a prior warning to a person’s lawyer, or to make such directions only as a last resort, having regard to the significant detrimental impact that a change of lawyer part-way through questioning could have on the subject.
3.75
In addition the Law Council opined that the
breadth of the power to direct the removal of lawyers is particularly problematic in view of the fact that the role of lawyers for questioning warrant subjects is explicitly limited by proposed subsection 34FF(3) to seeking clarification of ambiguous questions and requesting breaks to give advice to their clients or address the prescribed authority.
This has the problematic result of making it possible for anything other than these interjections to be deemed to be a ‘disruption’ of questioning, and therefore potentially an ‘undue’ disruption that could warrant a direction for removal at the sole discretion of the prescribed authority.
Searches, screening and seizure
3.76
The Bill creates two separate search frameworks. One for the subject of a QW who has been apprehended, and another for persons (including the subject) who are seeking to enter the place of questioning. The latter could apply to a lawyer or a minor’s representative. The frameworks apply equally to adults and minors.
3.77
Notably, and included within the IGIS submission,
The Bill removes the power to conduct a strip search, but retains the power for a police officer to conduct an ordinary search or a frisk search of a person who is apprehended. The revised provisions also enable communications devices to be seized by the police officer. Additionally, the Bill proposes new powers for police offers to screen any persons (other than police or ASIO officers) who are seeking to enter a place where the subject of a QW is appearing, or is due to appear, before a prescribed authority.
Screening the subject when apprehended
3.78
Proposed section 34CC provides a police officer with the authority to conduct an ordinary or frisk search. If practicable, the search must be conducted by a police officer of the same sex as the subject.
3.79
Proposed section 34CD enables the police officer to use reasonable and necessary force in the conduct of the search.
3.80
Home Affairs, in their submission stated that the purpose of these police powers is ‘twofold’;
To ensure the safety of those involved in questioning; and prevent the subject from communicating the existence of the warrant or recording the questioning proceedings. If found, the following items may be seized by the police officer conducting the search.
3.81
Proposed section 34CE states that an item seized may be retained by a police officer for such time deemed ‘reasonable’. The Home Affairs submission provides an example of this power. For example, if a police officer deems that returning a communication device could be prejudicial to security, the device could be retained until the police officer deems necessary. Alternatively, when returning the device that is considered not to be prejudicial to security, the device may only be retained for the time that the prescribed authority deems reasonable to inspect, examine, make copies of or transcribe the device.
3.82
Furthermore, if authorised by the Attorney-General, records or things found during the search may be seized if the police officer conducting the search ‘reasonably believes the item is relevant to the collection of intelligence that is important in relation to a questioning matter’. This can only be used when apprehension of the individual is authorised in the warrant. The justification presented by Home Affairs include when ASIO has intelligence that suggests the individual will destroy relevant material when notified in advance of a questioning warrant.
3.83
Furthermore, ASIO may retain items seized which are deemed relevant to intelligence collection. ASIO are also authorised to retain items seized if they are deemed to be prejudicial to security.
3.84
The Law Council of raised concerns relevant to the scope of the power of seizure provided in the Bill. They noted the power as ‘overly broad’ and that,
the police officer need only have a ‘reasonable belief’ that a record or thing may be relevant to ‘an adult questioning matter’ or ‘a minor questioning matter’ (as applicable), and not the particular adult or minor questioning matter in respect of which the warrant is issued. The Law Council is concerned that this may unintentionally enable the seizure of things that are unrelated to the warrant, and the subsequent examination and use of those things by ASIO for intelligence-collection purposes.
3.85
The Law Council also expresses concerns that the threshold for seizure under this Bill will create ‘perverse incentive’ to minimally brief police so the belief of those police officers about the potential relevance of items or things seized could be taken to be ‘reasonable’ in the minimal factual circumstances known to that police officer at the time of apprehension.’
The breadth of the seizure provisions connected with apprehension (and subsequent intelligence collection-related uses of seized items under proposed section 34CE) is compounded by the absence of use immunity for seized items under proposed subsection 34GD(6). That is, not only can an extremely wide range of things be seized from a person while they are apprehended – and not only may ASIO make use of those things for intelligence-collection purposes (including accessing data under warrant) – but a person will also be deprived of use immunity in relation to those things.
3.86
The Bill, according to the Law Council, provides potential for the prolonged or indefinite retention of seized items.
It is notable that the power of retention extends beyond prejudice to the questioning matter specified in the warrant, and extends to all heads of ‘security’ within the definition of that term in section 4 of the ASIO Act.
3.87
The Law Council also raised in their submission that the Bill does not require a person to be given ‘notification of the seizure or a receipt for the seized item. Nor are there any procedures for a person to request the return of a seized item, and for the independent determination of such a request.’ As such, it is not seen to have equivalent provisions determined in the Crimes Act.
Screening at the place of questioning
3.88
Proposed section 34CD creates screening measures for anyone who ‘seeks to enter the place where the subject of a QW is due to appear, or is appearing for questioning. This includes the subject, lawyers and if applicable, minor’s representatives.
3.89
As part of this section, entrants are not permitted to possess a communication device or a ‘dangerous item’ while the subject is appearing for questioning.
3.90
A ‘dangerous item’ is defined in the Bill as ‘a weapon, or any other items that could be used in a dangerous or threatening way’.
3.91
A dangerous item given to the police officer may be retained for such time as deemed ‘reasonable’ by the police officer.
3.92
Under proposed section 34D, a police officer may deny entry to an individual should they not comply with the requests of a police officer. Under proposed section 34GD, if the subject is refused entry for failing to comply with a request, it will be deemed that that person has failed to appear for questioning under the warrant.
Screening the subject at place of questioning
3.93
When given a communication device by the questioning subject the police officer will retain that device. Upon conclusion of the questioning, the police officer may:
Determine that returning the device would be prejudicial to security and only return it when it ceases to be so.
Determine that returning the device would not be prejudicial to security. The police officer may only retain the device for a period that the prescribed authority has deemed reasonable.
Screening those who are not the subject at place of questioning
3.94
When given a communication device by those who are not subject however are attending the place of questioning, the officer may only hold the device in safekeeping while the person is at the place of questioning. The individual, when leaving the premises, can request the return of their device which the police officer must comply with.
3.95
Whilst in safekeeping, the device cannot be accessed or used for any purpose unless specified in the warrant.
Eligibility and function of the prescribed authority
3.96
Proposed section 34AD provides that the Attorney-General may, in writing, appoint a prescribed authority who meets one of the following criterion:
Has served as a judge in one or more superior courts for a period of 5 years, and no longer holds a commission as a judge of a superior court,
Holds an appointment to the Administrative Appeals Tribunal as President or Deputy President, and has been enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory for at least five years, or,
Is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory, and has engaged as a legal practitioner for at least ten years, and holds a practicing certificate granted under a law of a State or Territory.
3.97
According to Home Affairs, the Bill broadens the eligibility criteria from the current legislation in an attempt to increase the number of suitable candidates and ‘facilitate the development of institutional expertise in supervising compulsory questioning under a questioning warrant’.
3.98
Proposed section 34AD set out a number of clauses that endeavour to ensure the independence of those appointed included eligibility restrictions and considerations for the Attorney-General. There are also a number of reasons for which the Attorney-General can terminate the appointment.
3.99
Proposed section 34DE states that during the questioning of a subject, the prescribed authority may give direction:
To permit the subject to disclose specified information to a specified person,
To permit the subject to contact an identified person,
That a specified lawyer must be present during the questioning,
Direct the subject’s further appearance at a specified time,
Direct that the subject to be excused or released from further attendance at questioning.
3.100
There were multiple concerns raised with regard to the function and appointments of prescribed authorities. Associate Professor Greg Carne addresses this in his submission.
The Bill weakens the status and qualifications of existing classes of Prescribed Authorities to supervise and make decisions and directions in relation to questioning under a questioning warrant. This proposed change is under the guise of removing the constitutionally vulnerable (through the incompatibility doctrine) category of s.34 B (2) serving State or Territory Supreme Court or District Court judges…The first difficulty is in the frankly undistinguished and ill-suited new third category for appointments as Prescribed Authorities in Clause 34 AD (c), principally lacking any evident experience as a legally independent authority who has performed significant and authoritative adjudicative and determinative roles.
3.101
Associate Professor Carne also noted that he perceived a further issue that ‘there was a lack of independence of the prescribed authority’, which is ‘evident in some of the grounds in clause 34 AD (9) under which the Attorney General may terminate the appointment of a prescribed authority.’
Offences for non-compliance with questioning warrant
3.102
Proposed section 34GE of the ASIO Act will retain the offence in the existing questioning regime for officials exercising authority under a questioning warrant who knowingly contravene a safeguard provision, including the present maximum penalty of two years’ imprisonment.
3.103
The maximum penalties for the offences in proposed section 34GD for questioning warrant subjects who fail to appear or give information in accordance with a questioning warrant, or who give false or misleading information, or who tamper with relevant records or things, will remain as five years’ imprisonment.
3.104
Noting the disparity in maximum penalties between offences committed by officials (two years) and those the subject of a QW (five years) the Law Council stated that
the Parliament should not send a signal to officials exercising authority under a questioning warrant that their intentional or knowing contravention of statutory safeguards is, in any way, less culpable than the conduct of a warrant subject who contravene their obligations under the warrant. This would be the effect of retaining a lower maximum penalty for the offence of contravening safeguards in proposed section 34GE than the offences in proposed section 34GD for warrant subjects who fail to comply with their obligations.
3.105
Proposed subsection 34GD(3) creates an offence of failing to give any information or producing any record or thing in response to a request from ASIO in accordance with a questioning warrant. The offence is subject to an exception in proposed subsection 34GD(4) if the subject does not have the information or does not have possession or control of the record requested. However, it is the defendant (the warrant subject) who bears the evidential burden in relation to the exception. This is a reversal of the usual burden upon the prosecution to discharge the legal and evidential burdens. The Explanatory Memorandum seeks to justify the reversal of the evidential burden in the following terms:
In accordance with subsection 13.3(3) of the Criminal Code, it is the defendant who must adduce evidence that suggests a reasonable possibility that he or she does not have the information requested. The evidential burden has been placed on the defendant because the matter is peculiarly within the defendant’s knowledge and would be too difficult for the prosecution to prove.
3.106
The Law Council did not accept the positon put by the Explanatory Memorandum that ‘the relevant matter is peculiarly within the defendant’s knowledge and would be too difficult for the prosecution to prove.’
3.107
The Law Council argued that the prosecutor could have access to evidence in the form of intelligence or other facts that would mean ASIO could form a reasonable belief that the person possessed the information, document or thing.
3.108
Conversely, it was the opinion of the Law Council that
it may be extremely difficult, and potentially impossible, for a defendant to discharge the evidential burden – that is, to adduce or point to evidence suggesting a reasonable possibility that the information was not within their knowledge, or that the record or thing was not within their possession or control. In practice, these matters would require the defendant to essentially ‘prove a negative’ in relation to their own state of mind. It is easily conceivable that such evidence may not exist, as a defendant may only be able to make a bare statement about their subjective state of mind.
3.109
The Law Council recommended that the exception in proposed subsection 34GD(4) should be re-framed as an element of the offence in proposed subsection 34GD(3) in the following terms:
Proposed section 34GD of the ASIO Act should be amended to re-frame the matter in the exception in proposed subsection 34GD(4) as an element of the offence in proposed subsection 34GD(3). The prosecution should be required to prove that:
there were reasonable grounds on which ASIO believed the warrant subject had the relevant information in their knowledge, or had possession or control of the relevant record or thing at the material time; and
the warrant subject intentionally failed to comply with the requirement in the warrant for disclosure or production.
3.110
In response to this proposed amendment to the Bill the Department of Home Affairs stated that:
In accordance with subsection 13.3(3) of the Criminal Code, it is the defendant who must adduce evidence that suggests a reasonable possibility that he or she does not have the information requested. If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt.
The Department considered the Guide to Framing Commonwealth Offences in developing the offence. The Guide states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:
it is peculiarly within the knowledge of the defendant, and
it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
In accordance with these principles, the Bill places the evidential burden on the defendant because the matter is peculiarly within the defendant’s knowledge. This is because the subject would know whether he or she did not have the information ASIO requested. The matter would be significantly more difficult for the prosecution to disprove. In order for the prosecution to disprove the matter, the prosecution would need to understand all the information held by the defendant, and show that the defendant had the piece of information requested. This would be significantly more difficult and costly, if not impossible, for the prosecution to disprove.
Post-charge questioning
3.111
Proposed subsections 34BA(1)(d), 34BB(1)(e) and 34BD(4) are intended to expressly authorise the compulsory questioning of persons who have been charged with an offence, and persons against whom charges are imminent
3.112
Proposed paragraph 34BA(1)(d) applies where a person has been charged with an offence, or a confiscation proceeding has commenced; and, a charge or confiscation proceeding is imminent.
3.113
The term post-charge is used to describe the time at which:
the use of questioning material or derivative material becomes a post-charge use or disclosure
material becomes post-charge questioning material
questioning under a questioning warrant becomes post-charge questioning, or
a questioning warrant becomes a post-charge questioning warrant.
3.114
The Explanatory Memorandum sets out the argument for the legitimacy and reasonableness of post charge questioning:
The legitimate objective is to obtain information that is available in the mind of the person subject to a questioning warrant in order to collect intelligence in relation to ongoing security threats, even where criminal proceedings are likely or have commenced. The ability to question a person where charges are likely, or where the person has been charged, is necessary to achieve the legitimate aim of intelligence collection in light of the potential harm caused by ongoing security threats.
The measure is reasonable in the context of ASIO investigations, particularly as ASIO’s remit is not linked to criminal offences or prosecutions and questioning is not used for criminal justice purposes. There is also an obligation on the prescribed authority, who presides over the questioning, to make directions in relation to the use of questioning material where failure to give the direction might prejudice a person’s safety or would reasonably be expected to prejudice the subject’s fair trial. This safeguard, combined with the criminal immunity under subsection 34GD(6) and that questioning material can only be disclosed to a prosecutor under a court order, ensures that the measure is proportionate and represents the least rights restrictive means of achieving this necessary purpose.
3.115
Proposed subsection 34DF(1) requires a prescribed authority in certain circumstances to give a direction that questioning material must not be used or disclosed or may only be used by, or disclosed to, specified persons in specified ways or on specified conditions. There are two circumstances when a prescribed authority is required to make such a direction:
where the failure to make the direction (or make it in such a way) might prejudice a person’s safety.
where the failure to make the direction (or make it in such a way) would reasonably be expected to prejudice the subject’s fair trial. This obligation only applies where:
the subject has been charged with an offence (or such a charge is imminent), and
that offence is a ‘related offence’ (that is, the subject matter of the questioning relates to the subject matter of the offence).
3.116
In relation to this the Explanatory Memorandum states that:
The threshold that material ‘would reasonably be expected’ to prejudice is intended to clarify that a prescribed authority is not required to make a direction to protect against unforeseeable risks that disclosure or use may prejudice the subject’s fair trial. The court’s power to manage any risk to the subject’s fair trial will ensure that any unforeseeable risks will be appropriately mitigated.
For example, if the disclosure of certain questioning material to the prosecution of the subject would reasonably be expected to prejudice the subject’s fair trial, the prescribed authority would be required to make a direction that the material cannot be used to inform the prosecution of the subject.
3.117
Proposed subsection 34DF(5) permits a court to override a confidentiality direction. Specifically, if a person has been charged with an offence before a federal court or a court of a State or Territory, and the court considers it may be desirable in the interests of justice that material subject to a confidentiality direction be available to the person charged (or their lawyer), the court may give the Director-General a certificate requiring the Director-General to make the material available to the court.
3.118
Proposed subsection 34DF(6) applies where the Director-General has made information available to a court pursuant to a certificate under section 34DF(5). In those circumstances, the court has the power to make the material available to the person charged with the offence (or their lawyer), if satisfied that is required by the interests of justice.
3.119
Notwithstanding the proposed section 34DF(1), the Law Council detailed a number of concerns with post charge questioning concluding with their concerns that
despite various purported safeguards, post-charge questioning overturns the privilege against self-incrimination and creates an overwhelming risk that a person who is compulsorily questioned, in detail, as to the circumstances of an alleged offence, is very likely to prejudice their own defence. An accused person should not be forced to divulge their position prior to trial or to assist law enforcement officers in gathering supplementary information to aid in their prosecution.
3.120
The Australian Human Rights Commission supported a recommendation made by former Independent National Security Legislation Monitor (INLSM), Mr Bret Walker SC that questioning warrant 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. (emphasis in original)
3.121
Dr Nicola McGarrity and Professor George William AO also supported the recommendation by INSLM Walker. Their submission quoted from INSLM Walker’s report and recommended that:
The proposal to allow post-charge questioning should be rejected. Instead, the ASIO Act should be clarified to indicate that post-charge questioning is prohibited.
In the alternative, the following safeguards should be included in any post-charge questioning regime:
(i) a Warrant for post-charge questioning should be issued by an issuing authority; and
(ii) the regime should include both use and derivative use immunities.
3.122
The Department of Home Affairs noted that:
The Bill prevents the post-charge disclosure of questioning material and the post-charge disclosure of derivative material obtained from post-charge questioning to prosecutors of the subject unless under court order. A court may order that questioning material or derivative material may be disclosed to prosecutors of the subject if the court is satisfied that the disclosure is required in the interests of justice. The provisions in the Bill do not restrict a court’s power to make any orders necessary to ensure the person’s fair trial is not prejudiced.
Secrecy provisions
3.123
The Bill has a number of provisions in relation to secrecy.
3.124
Proposed section 34GF creates offences for unauthorised disclosures and provides the framework to allow for certain disclosures, referred to as permitted disclosures.
3.125
Proposed subsection 34GF(1) creates an offence, where a questioning warrant has been issued, for a person who discloses the existence of the warrant, a fact of questioning or apprehension in relation to the warrant and/or any operational information for the life of the warrant (which can be no more than 28 days). If the disclosure is only in relation to operational information, the person who made the disclosure must have the information as a direct or indirect result of the issue of the warrant or the doing of anything authorised by the warrant. The offence does not apply where the disclosure is a permitted disclosure.
3.126
The penalty for the offence in proposed subsection 34GF(1) is imprisonment for five years.
3.127
The Explanatory Memorandum explains the need for this provision as being
intended to deter the subject of a warrant, and any other persons that are lawfully aware of the warrant, such as lawyers or a minor’s representative, from notifying others about the questioning. The disclosure of such information could result in an ASIO operation or investigation being compromised. The offence also protects sensitive information, such as information relating to ASIO’s methods of operations, its sources and intelligence holdings.
3.128
The Home Affairs set out the reasons for strong secrecy provisions as follows:
Given ASIO’s intelligence investigations often continue for several years, a disclosure as to the existence of a questioning warrant, or operational information relating to that warrant, may jeopardise an investigation at any stage during that period. Strong secrecy provisions are required to protect ASIO’s tradecraft and sources of information, and the identity and reputation of individuals investigated by ASIO.
3.129
Associate Professor Greg Carnes describes 34GF(1) as being’ confusingly drafted’ and recommended that it should be re-drafted to
express in clear form the class of persons who are the discloser – if it is the intention to exclude the subject of the warrant from being a discloser (and the disclosure offence) in circumstances where the information is operational information, but such information is OUTSIDE of the categories mentioned under (1) (c) (i) – that should be clearly and simply stated
The re-drafting of Clause 34 GF (1) and Clause 34 GF (2) is important because the penalty is imprisonment for 5 years. Comprehension of Clause 34 GF would be aided by moving the Definitions (Under (5)) to the commencement of Clause 34 GF. (emphasis in orginal)
3.130
The Law Council were concerned that
the secrecy provisions in the Bill may prevent a person with a disability from liaising with a disability advocate or support person, either before or after questioning, with any concerns they may have about the warrant.
3.131
Proposed subsection 34GF(2) reflects existing subsection 34ZS(2). It creates an offence where a questioning warrant has been issued and a person discloses operational information that the person obtained as a direct or indirect result of the issue of the warrant or the doing of anything authorised by the warrant or the Division in connection with the warrant, such as a prescribed authority direction. The offence does not apply where the disclosure is a permitted disclosure. The penalty for the offence is imprisonment for five years.
Strict liability
3.132
Proposed subsection 34GF(3) states that strict liability applies to the circumstances in paragraphs 34GF(1)(c) and (2)(c) where the unauthorised disclosure is made by the subject or a subject’s lawyer. This means there is no need to prove fault in relation to the fact that the information relates to the issuance or content of the warrant or is operational information. If the disclosure is made by someone other than the subject or the subject’s lawyer, the fault element applying, the fault element is recklessness.
Extended geographical jurisdiction – category D
3.133
Proposed subsection 34GF(4) extends the geographical jurisdiction for offences under subsections 34GF(1) and (2) to Category D under section 15.4 of the Criminal Code. This will ensure that offences may apply to any person, in respect of conduct engaged in any country, whether or not the conduct is an offence under laws of the relevant local jurisdiction (if outside Australia).
3.134
The Explanatory Memorandum explains the need for this provision as being
necessary due to the potential of information obtained under a questioning warrant to place at risk Australia’s national security and intelligence gathering capabilities, in addition to potentially endangering the ASIO officers involved. Therefore, it is appropriate that the offences have the widest possible geographical application to target such wrongdoing. Prosecutions of non-Australians in relation to conduct outside Australia is subject to the safeguard in section 16.1 of the Criminal Code, which requires the Attorney-General to consent to the commencement of such prosecutions.
Definitions
3.135
Proposed subsection 34GF(5) defines ‘operational information’ and ‘permitted disclosure’ for the purposes of the offences in section 34GF.
3.136
The term ‘operational information’ is intended to capture information that was or is in ASIO’s possession, a source of information that ASIO had or has (other than the subject of the warrant) or an operational capability, method or plan of ASIO. The intention of this definition is to ensure that ASIO’s intelligence holdings and its methods of operation receive appropriate protection from unauthorised disclosure.
3.137
The term ‘permitted disclosure’ is intended to mean any of the following:
a disclosure by a person exercising a power, function or duty under the Act or doing anything authorised by a questioning warrant or a prescribed authority direction or as authorised under legislation that allows a complaint to be made to the IGIS, Ombudsman or State or Territory complaints agency;
a disclosure by a person during the questioning of the subject of a warrant;
a disclosure to a lawyer for the purpose of obtaining legal advice or legal representation in relation to the warrant;
a disclosure for the purpose of the initiation, conduct or conclusion by judgment or settlement of legal proceedings relation to a remedy for the treatment of a person under a questioning warrant;
a disclosure that is permitted by a prescribed authority to be made;
a disclosure of operational information by the subject of a minor questioning warrant or by a minor’s representative to any of the following:
a minor’s representative or sibling;
a prescribed authority or a person exercising authority under the warrant; or
the IGIS, Ombudsman or a complaints agency.
a disclosure to make a financial assistance application under the Division;
a disclosure that is permitted by the Director-General or Attorney-General; or
a disclosure that is prescribed by the regulations.
Oversight and accountability of the questioning warrant framework
3.138
Established via the Inspector-General of Intelligence and Security Act 1986, the IGIS is independent statutory office holder that is responsible for viewing the activities of the agencies that collectively comprise the Australian Intelligence Community. The IGIS will have oversight of the proposed questioning warrants as set out in the Bill.
3.139
The IGIS stated, at the public hearing that:
In relation to ASIO's compulsory questioning framework, the provisions to support IGIS oversight are as robust in the bill's amended framework as they are in the existing framework. Given the serious and unusual nature of the powers, I expect that the historical practice of the Inspector-General, or a senior staff member, attending and closely reviewing the questioning process will continue.
3.140
The IGIS’ submission explicitly states that the Bill retains existing provisions for IGIS oversight of ASIO’s activities in connection with QWs. These existing provisions and their inclusion in the Bill are set out in the IGIS’ submission and are worth quoting in full. They include:
The requirement in clause 34AF for the Director-General of Security to consult the IGIS about the preparation of a written statement of procedures to be followed in the exercise of authority under a QW (and the requirement that such a statement of procedures be in force before a QW may be issued by the Attorney-General).91
An explicit statement in clause 34H that contravention of the written statement of procedures may be the subject of a complaint to the IGIS (without limiting the ability to complain about other aspects of ASIO’s activities).
Explicit provisions in clause 34CB to make clear that the Bill’s prohibition on an apprehended subject contacting another person does not affect the subject’s ability to contact the IGIS and requiring that, if requested, the subject must be given facilities for contacting the IGIS.
A requirement in clause 34DC that, when the subject of a QW first appears before a prescribed authority, the prescribed authority must inform the subject of their right to make a complaint to the IGIS about ASIO, orally or in writing.
A requirement in clause 34DI that a person exercising authority under a QW must give the subject facilities for making a complaint or giving information to the IGIS, if the subject makes such a request and questioning is deferred by the prescribed authority.
An exception to the secrecy offences in clause 34GF enabling any person to make a disclosure in the course of exercising a power (including a power to make a complaint or to give information), or performing a function or duty, under the IGIS Act.
An explicit provision in clause 34JB enabling an IGIS official to be present at the questioning or apprehension of a person, for the purposes of the IGIS official exercising a power or performing a function or duty as an IGIS official.
A specific role for the IGIS in clause 34DM, which provides that where the IGIS has a concern about impropriety or illegality in connection with the exercise of powers under a warrant, he or she may raise that concern with the prescribed authority. The prescribed authority must consider the IGIS’s concern and may give a direction to suspend the questioning (or other exercise of power under the warrant) until the concern has been satisfactorily addressed.
A requirement in clause 34HB for the Director-General of Security to, as soon as practicable, give the IGIS:
a copy of each warrant request;
a copy of each warrant, or written record of the warrant;
a copy of each request to vary a warrant;
a copy of each variation to a warrant, or written record of the variation;
a statement containing details of any seizure or apprehension associated with the warrant;
a statement describing any action taken by the Director-General of Security as a result of a concern raised by the IGIS; and
a copy of any video recording made in connection with the QW.
3.141
At the public hearing, in discussing proposed section 34DM, the Office of the IGIS (OIGIS) set out an example of where the Inspector-General had concerns in connection with the exercise, or purported exercise, of powers under the a questioning warrant and had informed the prescribed authority after which the prescribed authority considered the Inspector-General's concern. Referring to a 2017 submission the OIGIS stated:
The Inspector-General at the time, in deciding whether the warrant was specific enough, Mr Carnell, the then Inspector-General, raised that with the prescribed authority, who paused the questioning, discussed it with the legal representative, and then the prescribed authority heard argument on the matter and made a decision. So the Inspector-General's role in that case was to raise a question and it was then for the prescribed authority to consider it and that occurred. That's the only substantive time in the limited number of occasions when these powers have been used, when the Inspector-General's raised a concern.
3.142
In its submission the Law Council set out a number of, in its view, limitations in the oversight provisions. These are:
a technical error in naming individual enactments under which IGIS and Ombudsman officials perform functions or duties and exercise powers This may inadvertently and arbitrarily limit the protections conferred by the re-designed questioning warrant regime to the performance of functions or duties or the exercise of powers under a narrow sub-set of the legislation under which the IGIS and Ombudsman have functions, powers and duties;
the ‘permitted disclosures’ in relation to questioning warrant information in proposed subsection 34GF(5) of the ASIO Act do not cover the making of public interest disclosures (PIDs) under the PID Act about the conduct of an ASIO or AFP official who is exercising authority under the questioning warrant, or who is assisting another official who is authorised to exercise authority under the warrant;
proposed section 34D means that IGIS officials who are attending questioning would be subject to police powers of seizure in relation to their personal communications devices, as a condition of their entering the place of questioning to perform their oversight functions;
no clear legal basis for an IGIS official to observe the execution by ASIO of a mandatory assistance notice under section 34AAA of the ASIO Act against a person who is in attendance under a questioning warrant; and,
proposed section 34A inserts a regulation-making power to exclude any or all State and Territory police oversight bodies from the definition of a ‘complaints agency’ to which a questioning warrant subject may disclose warrant-related information for the purpose of lodging a complaint about their treatment by State or Territory police members exercising authority under a questioning warrant.
Sunsetting
3.143
Proposed section 34JF introduces a sunsetting clause with the powers ceasing to have effect on 7 September 2030.
3.144
In relation to this the Law Council suggested,
a more limited period of operation of no more than five years, and statutory requirements for pre-sunsetting reviews, are particularly important in view of the proposals to significantly expand the scope of questioning, lower the minimum age of questioning, and confer powers of apprehension, search and seizure.
3.145
Associate Professor Greg Carnes also argued for a 5 year sunset clause:
As this is an untested and substantially expanded scheme – taking in a very significantly expanded scope of questioning regimes under adult questioning matters for espionage, politically motivated violence and acts of foreign interference, whether directed from, or committed within, Australia or not
(previously restricted to questioning and questioning and detention that is important in relation to a terrorism offence – one of only five definitional examples in the s.4 ASIO Act definition of politically motivated violence); as well as questioning warrants being extended to 14 year olds for politically motivated violence – the uncertainty of operation of these changes (which are likely to involve substantially more questioning warrants) and the relaxation of other safeguards (such as discussed above in relation to issuing authorities and the prescribed authority), make it prudent to retain a five year sunset clause provision.
Tracking devices
3.146
Currently the use of surveillance devices may be authorised by warrants issued by the Attorney-General under either section 26 of the ASIO Act (‘Issue of surveillance device warrants’); or section 27C of the ASIO Act (‘Issue of identified person warrants’) with subsequent authorisation by the Director-General or Attorney-General under section 27F of the ASIO Act (‘Authority under identified person warrant—surveillance devices’).
3.147
The Bill proposes a range of further amendments to the provisions that govern ASIO’s use of tracking devices. Primarily, the Bill enables ASIO to internally authorise the use of a tracking device without a warrant in certain circumstances.
Changes to definitions of ‘device’, ‘track’ and ‘tracking device’
3.148
The Bill amends the ASIO Act’s existing definitions of ‘device’, ‘track’ and ‘tracking device’ as follows:
the definition of ‘device’ is changed from ‘includes instrument, apparatus and equipment’ to ‘includes instrument, apparatus, equipment and any other things (whether tangible or intangible’;
the definition of ‘track’ is changed from ‘be aware of the movement of the object or person from place to place’ to ‘determine or monitor the location of the person or object; or the status of the object’; and
the definition of ‘tracking device’ is changed from ‘a device or substance that, when installed in or on an object, enables a person to track the object or a person using or wearing the object’; to ‘any device capable of being used (whether alone or in conjunction with any other device) to track a person or an object’.
Enabling the use of tracking devices with internal authorisation
3.149
Proposed section 26G will enable ASIO to use certain tracking devices under an internal authorisation, rather than under a warrant, where use of the device does not involve interference with the inside of a vehicle or trespass onto premises.
3.150
Proposed section 26G(6) provides that an authorising officer may give the authorisation only if the authorising officer is satisfied that there are reasonable grounds for believing that:
(a) if the authorisation is requested in relation to a particular person—the use by the Organisation of a tracking device in relation to the person will, or is likely to, substantially assist the collection of intelligence in respect of the security matter; and,
(b) if the authorisation is requested in relation to an object or class of object—the use by the Organisation of a tracking device in or on that object, or an object of that class, will, or is likely to, substantially assist the collection of intelligence in respect of the security matter.
3.151
Proposed section 26J sets out the things that may be authorised. If an internal authorisation is given in relation to a particular person, the authorisation may authorise one or more of the following:
(a) install, use or maintain one or more tracking devices to track the person;
(b) install, use or maintain one or more tracking devices in or on any object used or worn, or likely to be used or worn, by the person;
(c) install, use or maintain enhancement equipment in relation to the device or devices referred to in paragraph (a) or (b);
(d) enter into or onto, or alter, the object referred to in paragraph (b);
(e) any thing reasonably necessary to conceal the fact that any thing has been done in accordance with the authorisation;
(f) any other thing reasonably incidental to any of the above.
3.152
If an internal authorisation is given in relation to an object or a class of object, the authorisation may authorise one or more of the following:
(a) install, use or maintain one or more tracking devices in or on the specified object, or an object of the specified class;
(b) install, use or maintain enhancement equipment in relation to the device or devices;
(c) enter into or onto, or alter, the specified object, or an object of the specified class;
(d) any thing reasonably necessary to conceal the fact that any thing has been done in accordance with the authorisation; and,
(e) any other thing reasonably incidental to any of the above.
3.153
Proposed section 26K provides that neither an internal authorisation nor section 26L authorises any of the following:
(a) the doing of any thing that would involve either or both of the following:
(i) entering premises without permission from the owner or occupier of the premises;
(ii) interference with the interior of a vehicle without permission of the person having lawful possession or 4 control of the vehicle;
(b) the remote installation of a tracking device or enhancement equipment in relation to the device;
(c) the installation, use or maintenance of a tracking device, or enhancement equipment in relation to the device, to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person;
(d) the doing of any thing by the Organisation if, apart from section 26G, the Organisation could not do the thing without it being authorised by a warrant issued under section 25A.
3.154
Proposed section 26R introduces a warrant for the recovery of tracking devices. This warrant may be required where recovery of a tracking is not possible under an internal authorisation because it would require entry to premises or interference with the interior of a vehicle.
3.155
Proposed section 26R(3) sets out that the Attorney-General may only issue a warrant for the recovery of tracking devices, or enhancement equipment in relation to tracking devices, where satisfied that the failure to recover the relevant devices or equipment would be prejudicial to security. The Attorney-General must also have regard to the risk that information relating to ASIO’s operations, capabilities, technologies, methods or sources will be communicated or become available to the public, without the authority of the Commonwealth, if the warrant is not issued.
3.156
Proposed section 26R(6) sets out that a recovery warrant will enable ASIO to, amongst other things:
recover relevant devices and equipment;
use the devices or equipment only for the purpose of locating it;
enter a premises where the devices or equipment are reasonably believed to be located, or any other premises for the purposes of gaining entry to or exiting the premises where the devices or equipment are reasonably believed to be located;
do anything reasonably necessary to conceal action under the warrant; and,
do anything reasonably incidental to any of the actions ASIO is authorised to do under the warrant.
3.157
The Department of Home Affairs set out the need and justification for internally authorised tracking devices as follows:
The requirement to obtain a warrant in all circumstances can restrict ASIO from acting with sufficient speed to respond to time critical threats. It also creates a heightened level of risk to ASIO officers due to the need to maintain constant physical surveillance on potentially dangerous subjects where the warrant threshold is not met. While there is provision for an emergency warrant to be issued, this still requires that a warrant request by (sic) prepared and sent to the Attorney-General before the Director-General can exercise the power to issue an emergency warrant. This prohibits ASIO from responding expeditiously in urgent circumstances.
3.158
ASIO stated that the Bill gives them:
the authority to deploy a tracking device using internal approval processes similar to those in the existing law enforcement framework. This is particularly necessary in the current security environment, where effective threat response is managed through close operational engagement between ASIO and law enforcement partners. The discrepancy in authorisation arrangements is noticeable in terms of ASIO’s reduced operational agility in cases when ASIO and police are jointly responding to time-critical threats or progressing Joint Counter-Terrorism Team (JCTT) operations.
3.159
A number of submitters raised concerns around internal authorisation of tracking devices. Professor Greg Carne labelled the reasoning that such tracking devices are unobtrusive as a ‘ridiculous claim’ and distinguished the powers that should be available to ASIO as an intelligence agency from those available to law enforcement generally. He stated that the proposed warrantless tracking devices powers
are at odds with the longstanding and ministerially accountable Attorney General’s warrants and warrant process applicable to the suite of secret and intrusive ASIO powers, such as telecommunications interceptions, premises searches, computer access warrants, other surveillance device warrants and inspection of postal and delivery articles warrants. (emphasis in original)
3.160
Civil Liberties Australia ‘strongly opposed’ the powers and took issue with the explanation around operational agility:
The explanatory memorandum and the Minister’s second reading speech give vague justifications for these proposed powers – like ‘modernising’ and ‘operational agility’ – but otherwise give no evidence to support the need for these expanded capabilities. The explanatory memorandum says the current arrangements place ASIO at a ‘disadvantage’ when it is engaged in joint operations with law enforcement agencies. This makes no sense at all. If ASIO is engaged in joint operations with agencies that have these surveillance powers, then it can be left to those other agencies to perform the roles of planting devices on people and their property, subject to their own authorisation and oversight arrangements. It should be explained to ASIO that that is what ‘joint operations’ means. Each agency performs different roles and cooperates to achieve the desired objective – they do not all perform the same role and they don’t all require identical powers.
3.161
In a supplementary submission the Law Council set out its concern that due to ‘considerable variation in individual State and Territory surveillance device laws’ the proposed tracking device powers
would allow ASIO to install and use a tracking device in a public place without any kind of statutory approval requirement in several States and Territories.
3.162
The Law Council set out their examination of relevant legislation and stated that:
ASIO would be required to obtain an internal authorisation under proposed section 26G of the ASIO Act to install, use, maintain and recover a tracking device in a public place in New South Wales, Western Australia, South Australia and the Northern Territory.
However, it appears that ASIO would not be required to obtain an internal authorisation under proposed section 26G of the ASIO Act in Victoria, Queensland, Tasmania and the Australian Capital Territory.
3.163
As a result of this analysis the Law Council recommends that:
Recommendation – statutory authorisation requirements for tracking devices
If the Committee supports the enactment of the internal authorisation framework, then Schedule 2 to the Bill should be amended to prohibit ASIO from using a tracking device without authorisation under one of the following statutory heads of power (as applicable):
a surveillance device warrant under existing s 26 (if the conduct involved in installing, using, maintaining or recovering the device would involve an offence, or is otherwise excluded from an internal authorisation by proposed s 26K); or
an internal authorisation under proposed s 26G (if the tracking device is to be installed in a public place, including on the exterior of a vehicle in a public place, and does not exceed the limits of authority under proposed ss 26J and 26K); or
section 26E (if the other person consents to the installation, use, maintenance and recovery of the tracking device).
3.164
At its public hearing on 10 July 2020 the AFP gave the Committee some pertinent information around JCTT. The AFP explained that they were
very much at a mature stage of cooperation and collaboration with ASIO in relation to countering the counterterrorism threat. The JCTT arrangements have been in place for over 15 years now, and through that process—it's an extremely seamless process between ASIO, the respective state and territory police service in that state and AFP—they've very much a coordinated response in terms of addressing the threat. The key benefit of the JCTT is being able to leverage off the respective powers of ASIO, the AFP and the respective state and territory police force but also leverage off capabilities in addressing that threat.
3.165
In the hearing ASIO explained that, whilst joint work or interoperability with the police is the prime justification’ for the tracking device power there were other reasons for ASIO needing this power more related to the independent functions it has. ASIO stated that it
is an independent organisation, as you're aware, with our own mandate. We do not operate in parallel with the police in all circumstances. Indeed, there are many occasions where we are pursuing our own investigations and operations and need to use our surveillance capability. In those instances, the circumstances as articulated by the Director-General, there are complications and difficulties associated with the current environment, which mean our officers may find themselves—and this could be in the course of a surveillance operation—unsafe or feeling unsafe for particular reasons or turns of events that would happen. They may need to be surveilling targets into areas where it is not safe for them to go or where we cannot maintain coverage of the target for a variety of reasons. So we need to be able to very quickly, and with agility, make decisions on the spot in order to maintain contact with the target, not lose sight of the target or maintain the safety of our officers or the public. These things can arise over the course of a surveillance shift. They are not necessarily things that ASIO can predict or pre-empt. If you can't predict or pre-empt those sorts of circumstances reaching a threshold to get a warrant is more challenging as well. I guess this is where we draw the parallel with what our law enforcement partners are able to do. They have the agility and flexibility to be able to deploy tracking devices on the spot. Our circumstances are similar or identical and we are seeking the same permission.
3.166
ASIO also gave further specific information on one type of operational concern that might arise stating that:
[W]e are deploying surveillance we have a range of reasons to do that, which automatically bring it down to, 'We've reached a threshold for that activity', because we realise surveillance itself is intrusive. So that selects us. And things can change really quickly in the course of surveillance operation. We could have the example of officers following someone who is of interest to us from a security point of view, but if they turn right and go into a gun shop and buy a gun or a knife that might surprise us. The ability to, when they come out, track them safely is paramount to us.
Oversight
3.167
As set out above the IGIS will be responsible for the oversight of ASIO’s use of tracking devices as envisaged by the Bill.
3.168
The IGIS confirmed that her office had been consulted about oversight arrangement during the development of the tracking device amendments contemplated by the Bill. The IGIS’s submission noted that there ‘are several features of the proposed amendments that will assist IGIS oversight.’ These are.
clear statutory requirements outlining the information to be included in a request for an internal authorisation, in the authorisation itself, and in any requests for variation;
statutory requirements for written records to be made, within 48 hours, of any internal authorisations or variations that are requested or made orally;
a requirement for ASIO to keep a register of requests for internal authorisations, including the name of the person who made the request, the security matter in respect of which the request was made, the day on which the authorisation was given or refused, the name of the
authorising officer, the day on which the authorisation ceased to be in force or was discontinued, and the location at which any record relating to the request is kept by ASIO; and
a requirement for the Director-General of Security to give a report to the Attorney-General within three months of the expiry of each internal authorisation including the extent to which the authorisation has assisted ASIO in carrying out its functions, the security matter in respect of which the authorisation was given, the name of any person whose location was tracked, the period in which the tracking device as used, details of any object in or on which a tracking device was installed, details of the compliance with any restrictions or conditions to which the authorisation was subject, and details of any variations that were made.137 I will expect these reports to be supported by detailed records of all instances in which tracking devices have been used, including the particular ASIO employees or ASIO affiliates who exercised authority under the internal authorisation.
3.169
ASIO pointed out that in addition to existing oversight mechanisms they will be obliged to:
establish and maintain a detailed register of requests for internal authorisations, including information concerning the ASIO employee or affiliate who made the request, the authorising officer, the security matter and duration of the authorisation;
provide a detailed report to the Attorney-General regarding the execution of all internal authorisations, including the extent to which the authorisation assisted ASIO in carrying out its functions; and
include statistics regarding internal authorisations in their annual report.
3.170
At the public hearing the IGIS stated that:
In relation to tracking devices, the bill's proposed framework for ASIO to authorise the use of tracking devices internally also includes features that will assist our oversight. Under this framework, the powers of my office, given under Inspector‑General of Intelligence and Security Act, are sufficient for us to oversee the legality and propriety of ASIO's use of tracking devices.