Bills Digest No. 4, 2019–20
PDF version [533KB]
Cat Barker and Helen Portillo-Castro
Foreign Affairs, Defence and Security Section
15
July 2019
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 4
July 2019
House: House of
Representatives
Portfolio: Home
Affairs
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at July 2019.
Purpose of the Bill
The purpose of the Australian Security Intelligence
Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism
Offences) Bill 2019 (the Bill) is to amend the Australian Security
Intelligence Organisation Act 1979 (the Act) to extend the operation of
special powers relating to suspected terrorism offences in Division 3 of Part
III to 7 September 2020.
These provisions are currently due to sunset on 7
September 2019.[1]
Background
Division 3, Part III of the Act was first enacted in 2003,
and provides for the issue of questioning warrants (QWs) and questioning and
detention warrants (QDWs) in relation to suspected terrorism offences where
other means of collecting the relevant intelligence may not be effective. The
nature of this special powers regime is coercive, and was characterised as
‘extraordinary’ when tabled by Attorney-General Daryl Williams in 2002.[2]
The special powers relating to terrorism offences were initially subject to a
three-year sunset clause.[3]
Since first enacted, the provisions have been extended
three times, most recently in 2018 for an additional 12 months, to the current
date of 7 September 2019.[4]
The Bill contains a single item that proposes a fourth
extension of the special powers regime for a further 12 months. In his second
reading speech, Minister for Home Affairs Peter Dutton stated:
Law enforcement and security agencies must have access to the
tools and capabilities that they need to manage the ever-evolving terrorist
threat.
To this end, this bill ensures that the Australian Security
Intelligence Organisation (ASIO) retains its strong counterterrorism
capabilities while the government progresses more detailed reforms to ASIO’s
questioning and detention powers, following reviews of the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) and the Independent National
Security Legislation Monitor (INSLM).[5]
The Bill does not contain any substantive legislative
change to the special powers regime.
Similar to the fourth extension embodied in the Bill, the
Government sought the third extension of the sunset clause (from 7 September
2018 to 7 September 2019) on the basis that the special powers should not
lapse, pending its consideration of a legislative response to the most recent
PJCIS and INSLM reviews of those powers, during a period when the threat
environment was ‘steadily worsening’.[6]
Summary of Special Powers Relating to Terrorism Offences
The potential application of the special powers regime
encompasses persons who are not suspected of, or charged with, any offence. This
is because QWs and QDWs issued under Division 3, Part III of the Act are
intended primarily as intelligence-gathering and preventative (rather than
investigative) tools. A person may be:
- questioned
on the basis that they can provide information about a potential terrorism
offence rather than on suspicion of having committed an offence and/or
- detained
on the basis of preventing the person from damaging evidence or alerting
someone involved in a terrorism offence to the fact it is being investigated.[7]
A person may actually be detained under either a QW or a
QDW; the distinction is when a person may be detained and by whom it is
authorised:
- A QW issued under section 34E requires a person to appear
before a ‘prescribed authority’ (a judge or member of the AAT prescribed under section
34B) for questioning either immediately after being notified of the warrant
or at a time specified in the warrant.
- A QDW issued under section 34G authorises a person to be
taken into custody by a police officer, brought immediately before a prescribed
authority for questioning and detained until the relevant statutory time limit
expires (the longest period permitted is seven days from when the person was
first brought before a prescribed authority).
- Under section 34K, which applies to both warrant types,
detention or further detention of the person are among the directions a
prescribed authority may make while a person is before it.
Summary
of reviews under consideration
The INSLM and the PJCIS were required to review the
provisions ahead of the 2018 sunset date, to inform a decision on whether to
retain them for a further period.[8]
In 2016, the INSLM recommended:
- QWs
should be replaced by a questioning power based ‘as closely as possible’ on the
coercive questioning powers of the Australian Criminal Intelligence Commission
and
- QDWs
should no longer be permitted, with the provisions to be repealed or cease at
the sunset date.[9]
In 2018, the PJCIS also recommended that QDWs be abolished
and that ASIO should retain a compulsory questioning power.[10]
However, it considered that the repeal of QDWs might lead to the need for ‘an
alternative apprehension framework, possibly with a separate authorisation
process, to ensure attendance at questioning and prevent contact with others or
the destruction of information’ (which it supported in principle).[11]
The PJCIS recommended that the Government develop legislation for a reformed
questioning framework, and that the legislation be introduced by the end of
2018 and referred to the PJCIS for inquiry and report (with the Committee given
at least three months for an inquiry on that legislative proposal).[12]
The PJCIS recommended that the sunset period be extended
for 12 months, to 7 September 2019, to allow sufficient time for
legislation for a reformed questioning framework to be developed and reviewed.[13]
Current threat environment
The likelihood of an act of terrorism remains
‘probable’—as it has since September 2014—signifying that ‘individuals or
groups continue to possess the intent and capability to conduct a terrorist
attack in Australia’.[14]
The Director-General of Security summarised recent
terrorist activity in Australia as at April 2019, stating that ‘there have been
seven attacks and 15 thwarted attacks [since September 2014]’.[15]
Two days prior to the Bill being introduced in July 2019, three
individuals were charged with terrorism offences including acts in preparation
of a terrorist act, representing the sixteenth disruption of an allegedly
planned attack since September 2014.[16]
Twenty-two of these attacks and disruptions related to
Islamist extremists (a small number of which the Australian Security
Intelligence Organisation (ASIO) assesses continue to pose the primary
terrorist threat in Australia).[17]
One disruption, for which charges were laid in August 2016, related to
far-right extremism.[18]
The most likely form of terrorist attack, in ASIO’s assessment, remains an
individual or small group using simple and low-cost methods.[19]
Committee consideration
At the time of writing, the Bill had not been considered
by any Parliamentary Committees.
Committee consideration of the special powers regime last
took place when the third proposal to extend Division 3, Part III of the Act
was before the Parliament in 2018.[20]
Policy position of
non-government parties/independents
At the time of publication of this Bills Digest, there was
no public indication of the policy position of any non-government parties or
independents on the Bill.
Position of major interest
groups
No public indication of the position of any major interest
groups on the Bill was available at the time of publication.
Positions taken by stakeholders in submissions to the
INSLM’s and PJCIS’s latest reviews of the special powers regime were outlined
in relation to the most recent extension in 2018.[21]
Financial implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[22]
Statement
of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible with each of the rights that it
identifies the Bill as engaging, including:
- freedom
of movement and freedom from arbitrary detention
- humane
treatment in detention and freedom from cruel, inhuman or degrading treatment
or punishment
- protection
against arbitrary and unlawful interferences with one’s privacy or home
- freedom
of expression and freedom of association and
- the
right of the child to have their best interests as a primary consideration by
courts of law, administrative authorities or legislative bodies.[23]
The Parliamentary Joint Committee for Human Rights (PJCHR)
had not commented on the Bill at the date of publication of this Digest.
However, in 2018, the PJCHR noted that the special powers
regime had been introduced prior to the requirement for a compatibility
assessment with the Human Rights (Parliamentary Scrutiny) Act 2011; and
that, at the time the second extension of the regime was before the Parliament,
the committee had found QWs and QDWs were ‘likely to be incompatible with human
rights’.[24]
Concerning the third extension
of the sunset clause, the PJCHR considered that the powers are likely to pursue
a legitimate objective for the purposes of international human rights law, but
remained unconvinced that they are rationally connected to, and proportionate
to, that objective. The PJCHR acknowledged:
... that [while] full consideration of the PJCIS and INSLM’s
respective reports may take time, it remains a concern that these measures are
being extended for one year in the bill despite serious questions as to their
effectiveness, necessity and proportionality.[25]
Key issues and provisions
Key provision
Item 1 of Schedule 1 proposes to extend the
operation of Division 3, Part III of the Act by amending section 34ZZ to
replace the current sunset date of 7 September 2019 with a new sunset date of 7
September 2020.
This is the sole amendment to the special powers regime
proposed in the Bill.
Key issue
The key issue for the Parliament will be whether to allow
the special powers regime:
- to
continue for a further 12 months, without further committee consideration or
ministerial statement addressing existing parliamentary assessments, including
on the human rights implications of the present regime[26]
or
- to
lapse, absent any legislative proposal to reform the special powers in line
with existing INSLM and PJCIS recommendations.
The INSLM and PJCIS reviews noted that QWs had not been
used since 2010 (16 such warrants were issued between 2004 and 2010) and that
at the time of their reports, no QDWs had been sought.[27]
ASIO’s latest annual report indicates that no warrants of either type were
issued in 2017–18.[28]
This means that no QWs or QDWs were issued between September 2014 (when the
terrorist threat level was raised to probable) and June 2018.
The Parliamentary Library has not identified any public
information as to whether any QWs or QDWs were issued during the 2018–19
reporting period or in relation to the most recent disruption of alleged terrorist
activity in July 2019.
[1]. Australian Security
Intelligence Organisation Act 1979 (ASIO Act),
section 34ZZ.
[2]. D
Williams (Attorney-General), ‘Second
reading speech: Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Bill 2002 [No. 2], House of Representatives, Debates,
21 March 2002, p. 1935.
[3]. The
special powers regime was first tabled as the Australian
Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002,
and laid aside on 12 December 2002 after several rounds of amendment could not
be agreed between the Houses. A legislative proposal for the regime was re-introduced
on 20 March 2003, and passed in June 2003 in the form of the Australian
Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003.
[4]. Counter-Terrorism
Legislation Amendment Act (No. 1) 2018. The first extension,
passed in the ASIO
Legislation Amendment Act 2006, set a new sunset date of 22 July 2016.
The second extension, passed in the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, set a new sunset
date of 7 September 2018. The sequence of extensions up to 2018 is detailed
in C Barker and H Portillo-Castro, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2018, Bills Digest, 4,
2018–19, Parliamentary Library, Canberra, 2018: see, in particular,
pp. 22–24.
[5]. P
Dutton (Minister for Home Affairs), ‘Second
reading speech: Australian Security Intelligence Organisation Amendment
(Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019’,
House of Representatives, Debates (proof), 4 July 2019, p. 36.
[6]. Explanatory
Memorandum, Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, p.
29.
[7]. ASIO
Act, sections 34E, 34G and 34K. See also Explanatory
Memorandum, Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Bill 2002 [2003], p. 1.
[8]. Previously
reflected in subsection 6(1B) of the Independent
National Security Legislation Monitor Act 2010 (as at 11 May 2018) (review
was required by 7 September 2017) and paragraph 29(1)(bb) of the Intelligence
Services Act 2001 (as at 1 July 2018) (review was required
by 7 March 2018).
[9].
R Gyles, Certain questioning
and detention powers in relation to terrorism, Independent National
Security Legislation Monitor, Canberra, October 2016, pp. 42, 52.
[10].
Parliamentary Joint Committee on Intelligence and Security (PJCIS), ASIO's
questioning and detention powers: review of the operation, effectiveness and
implications of Division 3 of Part III of the Australian Security Intelligence
Organisation Act 1979, PJCIS, Canberra, March 2018, pp. 27, 41.
[11].
Ibid., p. 41.
[12].
Ibid.
[13].
Ibid., p. 42.
[14]. Australian
Government, ‘National
Terrorism Threat Advisory System’, Australian National Security website.
[15]. Senate
Legal and Constitutional Affairs Legislation Committee, Proof
Committee Hansard, 8 April 2019, pp. 78–79.
[16]. AFP,
Three
men to face charges in NSW JCTT operation, media release,
2 July 2019; P Dutton (Minister for Home Affairs), Transcript
of press conference: Parliament House, Canberra, media release,
2 July 2019.
[17]. Ibid.;
Australian Security Intelligence Organisation (ASIO), Annual
report 2017–18, ASIO, 2018, pp. 19 and 21.
[18]. J
Crothers, ‘Melbourne's
Trades Hall targeted by man who planned to carry out terrorist attacks, court
told’, ABC News (online), updated 3 September 2018.
[19]. ASIO,
Annual
report 2017–18, op. cit., p. 19. For an overview of developments
related to counter-terrorism, see also A Zammit, ‘Australia’ in I Kfir and
G Grice (eds), Counterterrorism
yearbook 2019, Australian Strategic Policy Institute, Canberra, 2019,
pp. 9–20.
[20]. For
an overview, see C Barker and H Portillo-Castro, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2018, op. cit. For detail, see PJCIS,
ASIO's
questioning and detention powers: review of the operation, effectiveness and
implications of Division 3 of Part III of the Australian Security Intelligence
Organisation Act 1979, op. cit.; Parliamentary Joint Committee on Human
Rights (PJCHR), Human
rights scrutiny report, 6, 26 June 2018, pp. 24–29; and Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2018, The Senate, 20 June 2018, pp. 13–16.
[21]. Most
submissions to those reviews objected to the special powers regime, and were
made by legal, human rights and civil liberties organisations and academics:
see C Barker and H Portillo-Castro, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2018, op. cit., p. 10.
[22]. Explanatory
Memorandum, Australian Security Intelligence Organisation Amendment
(Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019, p. 2.
[23]. The
Statement of Compatibility with Human Rights can be found at pages 3–10 of the Explanatory
Memorandum to the Bill. Specifically, the Statement of Compatibility
considers articles 7, 9, 10, 12, 17, 19 and 22 of the International Covenant
on Civil and Political Rights; articles 2 and 16 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
and Article 3 of the Convention on the Rights of the Child.
[24]. PJCHR,
Human
rights scrutiny report, 6, op. cit., p. 25. See also PJCHR, Human
rights scrutiny report, 19, 3 March 2015, p. 69.
[25]. Ibid.,
p. 27.
[26]. The
Explanatory
Memorandum to the Bill is silent on the previous assessments of
parliamentary committees. A joint ministerial response to the PJCHR’s Human
rights scrutiny report, 6 (op. cit.) was provided on 13 August 2018
(published in PJCHR, Human
rights scrutiny report, 10, 18 September 2018, Appendix 3): it
does not substantively address the PJCHR’s comments about the special powers
regime, but merely acknowledges that the QWs and QDWs would be extended by the
Counter-Terrorism Legislation Amendment Bill (No. 1) 2018.
[27]. PJCIS,
ASIO’s
questioning and detention powers: review of the operation, effectiveness and
implications of Division 3 of Part III of the Australian Security Intelligence
Organisation Act 1979, op. cit., pp. 11–12; Gyles, Certain questioning and detention
powers in relation to terrorism, op. cit., pp. 25 and 42.
[28]. ASIO,
Annual
report 2017–18, op. cit., p. 114.
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