BILLS DIGEST NO. 4, 2019–20              15 July 2019

Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019

Cat Barker and Helen Portillo-Castro
Foreign Affairs, Defence and Security Section 

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.

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[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.