This chapter examines whether there is a need for ASIO’s questioning powers and detention powers. This examination takes account of the current security context and the range of state and federal counter-terrorism measures introduced in recent years.
The need for a questioning power
Despite the increase in threat and resultant counter-terrorism activity over the last decade, ASIO has requested only one QW since 2006. ASIO has never requested a QDW.
The Castan Centre for Human Rights Law and the Australian Lawyers Alliance suggested this demonstrated a lack of need for the questioning and detention powers. INSLM Gyles similarly questioned the necessity of the powers:
The non-use of the power since 2010 is striking. Two QWs have been issued since 2005; one in 2006 and the other in 2010. The number of potential terror incidents has increased rather than diminished during that time. The necessity for, and the efficacy of, the power comes into question. No entirely satisfactory reason for non-use has been given by ASIO. The changing nature of the threat from large-scale targets requiring considerable planning to one-off single incidents with little notice is cited.
From their introduction, it was the Government’s intention that these powers would be used sparingly. The then Attorney-General, the Hon Daryl Williams QC, noted in 2003:
It must be remembered that warrants issued under the bill will be tools of last resort. It is anticipated they will be used rarely and only in extreme circumstances.
ASIO offered the following to explain the lack of use of these powers:
First, ASIO is judicious in its use of these resource-intensive and intrusive powers. This is in line with the Attorney-General’s Guidelines, which require ASIO to undertake inquiries and investigations using, wherever possible, the least intrusive techniques to collect information; therefore, they are only considered in a limited number of cases. Second, the current framework does not lend itself to the collection of intelligence with the agility and speed regularly demanded of ASIO in current terrorist offence investigations. Third, the earlier ‘last resort criterion’ statutory threshold, repealed in October 2014 and replaced with a ‘most effective’ requirement, has been difficult to satisfy and has limited ASIO’s ability to obtain a questioning warrant.
According to ASIO, the recent shift toward less sophisticated attack planning—with very short time frames between the person forming the intent to undertake an attack and actually being able to acquire the capability to do so—has limited the effective use of the powers. ASIO claimed that the multi-step process in applying for and acquiring a warrant prevents the timely execution of a warrant, particularly where there is an imminent threat to public safety and immediate action is required. The Acting Director-General of Security explained:
So, the time it would take to form the view that a questioning warrant or a questioning and detention warrant would be an appropriate way to proceed in the current environment, and then the time taken to actually acquire such an instrument, would probably preclude its general utility in the current environment. But we can certainly conceive, and have considered in the current environment, whether or not they would be appropriate to use. But, again, because of the fluidity and the speed with which these sorts of plots emerge, we need to be much more agile.
ASIO argued that, notwithstanding the problems with the current provisions, a questioning power is a useful intelligence collection tool:
In many cases, when faced with criminal offences for non-cooperation, persons being questioned may be more inclined to give truthful answers and provide information that ASIO would otherwise not have obtained. There are situations where some people will be reluctant to volunteer information to ASIO because of perceived competing loyalties or obligations, notwithstanding that they have serious security concerns about the conduct of an individual. Those competing loyalties or obligations may include personal and professional relationships which cause people to hesitate in volunteering information to ASIO. In many cases, the lawful requirement to provide information may be an effective means of overcoming those competing loyalties and gaining full cooperation.
It was argued that the questioning and detention powers have produced useful intelligence. According to ASIO:
Since their introduction, questioning warrants have enabled ASIO to collect valuable and previously unknown information on key individuals, tactical information related to investigative targets and information on which more confident intelligence assessments could be made concerning an individual’s intent, extremist views and motivations. Such information could not have been achieved through other collection methods. Given this, it is important that a regime of questioning warrants and questioning and detention warrants in relation to ASIO’s intelligence functions be retained beyond the current sunset period.
Dr McGarrity and Professor Williams were not convinced by ASIO’s explanations for the lack of use of the questioning and detention powers, suggesting instead that the lack of use was a result of the existence of alternative methods of gathering intelligence. Professor Williams submitted:
If you look at the use [of the questioning and detention powers] recently it coincides with the fact that since this was first brought into place a range of other mechanisms have been introduced. When this was first brought about in 2003 there were no control orders. We did not have preventative questioning in the AFP in the form we now do. In fact, a range of other things were not on the books either, including at the state level. So it is no surprise to us that, if you look at the figures where there was 11 of these questioning warrants issued in 2005—which does demonstrate the capacity to use the scheme—you will see that it has really dropped off since then, and that since 2006 it has only been used once. And that is explicable, because there are simply so many other mechanisms to get this information that the utility it serves is just not the case as it was when it was first enacted.
It was suggested that the increased interaction between ASIO and law enforcement agencies may be a factor in the lack of use of the questioning and detention powers. ASIO confirmed that the recent trend of a reduction in time frames from attack planning to execution has led to more intensive cooperation between ASIO and law enforcement agencies and the use of other investigative tools. According to ASIO,
the nature of the current environment means that the way we collaborate with law enforcement also is compressed and more engaged as well in terms of the capability and tools that are available in respect of investigations of emerging plots. There is a fluidity between moving from the intelligence space of an operation into the law enforcement space, and that too has compressed when you compare it to a decade ago.
The 2017 Independent Intelligence Review supported this proposition, arguing that the traditional distinctions between intelligence and law enforcement were now less definitive than in the past:
… our view is that the changing nature of the security threats facing Australia and the opportunities opened up by new technologies, particularly in relation to data analytics, mean that these points of interaction between Australia’s intelligence agencies and law enforcement authorities are becoming more intensive. The points of interaction relate to co-operation not only among Commonwealth entities but also among relevant State and Territory bodies. They need to be managed in ways that respect the information sharing arrangements, the accountability and the obligations under law of each entity, including arrangements for managing intelligence-derived information in the conduct of legal proceedings. What is clear, however, is that many of the traditional distinctions between intelligence and law enforcement in the Australian context are less comprehensive and definitive than in the past, and that this trend towards more intensive interaction will continue.
Notwithstanding the increased availability of law enforcement powers, ASIO noted the distinction between itself as an intelligence agency, and the role of law enforcement agencies. Accordingly, ASIO contended that it required a questioning power to enable it to perform its functions independently of other agencies. The Department supported this:
While ASIO cooperates with other agencies as appropriate to ensure intelligence gathering and investigation of terrorism offences is conducted consistently among agencies, Part III gives ASIO the capacity to conduct its own investigations independently of other agencies. ASIO requires a questioning function for its own intelligence gathering purposes. The fact that another agency may have a questioning power for its distinct purposes, which may at time closely align with ASIO’s, is an incident of the intersection of functions, and not an effective or adapted alternative to ASIO having its own questioning power.
The Department also countered the suggestion that intelligence agencies should not be afforded compulsory questioning powers, suggesting that compulsory questioning arguably best sits with agencies responsible for gathering intelligence, as opposed to purely law enforcement agencies. The Department contended that this is due to the necessary constraints placed on the use of information obtained against the person in criminal proceedings. The Department stated:
The outcomes an intelligence agency seeks from its investigations will not always be directed at achieving a successful criminal prosecution, but often have a broader focus on building a stronger understanding of the security or crime environment. Therefore, the existence of direct use immunities in regard to compulsory questioning is unlikely to be a major impediment to intelligence agencies pursuing their functions.
Despite their concerns with the existing questioning and detention powers, Dr McGarrity and Professor Williams did endorse ASIO retaining a questioning power. Similarly, both former INSLMs and the Law Council had no objection to ASIO retaining such a power. INSLM Gyles concluded:
I accept that a compulsory questioning power to gather intelligence is a useful tool for ASIO’s counter-terrorism work, despite its sparse use to-date. I also accept that the potentially serious impact of terrorism on the community justifies this inroad into civil liberties. That premise is now generally uncontentious. I accept that the power can properly extend to those not accused or suspected of implication in terrorism. That extension carries limitations. The collecting of intelligence must not be confused with law enforcement. A questioning power for that purpose should not be considered or justified as a front-line method of preventing imminent terrorist attacks.
ASIO’s questioning powers are extraordinary powers. They were introduced into an unprecedented security environment. As noted, this security environment has changed considerably since that time, but the threat of terrorist attack persists. Other security threats have also increased during this period.
The Committee notes ASIO’s evidence that Australia currently is facing a significant threat from terrorism. The frequency and unpredictable nature of recent attacks is alarming.
The Committee supports the intention of this legislation—the protection of the community from terrorist acts—and remains of the view that our national security agencies, including ASIO, must have sufficient powers to enable them to respond to this evolving threat.
The Committee acknowledges the view of some submitters that the limited use of the questioning and detention powers demonstrates that the powers are not necessary to protect the community from terrorism. The Committee accepts that the limited use of the powers is, in part, due to terrorist threats being resolved via other means, such as police arrest powers or some other disruptive strategy.
However, the Committee also accepts INSLM Gyles’ finding that, although such a power should not be seen as a front-line tool for disruption, a questioning power is useful for ASIO’s counter-terrorism work.
An increasingly co-operative counter-terrorism response does not reduce the preference or need for agencies to have available and to exercise their own legislated powers, tailored to their unique functions and roles. In this case, it is important that the powers available to ASIO are appropriate for its role as an intelligence, rather than a law enforcement, agency.
The Committee therefore concludes that ASIO should continue to have a compulsory questioning power.
The Committee recommends that the Australian Security Intelligence Organisation retains a compulsory questioning power under the Australian Security Intelligence Organisation Act 1979.
The need for detention powers
One of the most extraordinary aspects of the questioning and detention powers is the ability to detain persons, including those not suspected of involvement in a terrorism offence. A QDW authorises the pre-emptive detention of a person, and a QW allows the prescribed authority to order the detention of a person who has appeared for questioning. Under either warrant, a person may be detained for up to seven days.
The Department advised the Committee that the overriding purpose of a QDW is ‘the ability to compulsorily question a person in time critical circumstances where it is important that others are not alerted to the investigation and security-relevant material not destroyed.’ The Acting Director-General of Security elaborated on the three key elements underpinning this:
Where we may choose to question somebody and we are concerned about, firstly, the possibility of the person not complying or absconding, that is one element. The second element is our concern about the possibility that the individual will be able to destroy documents or intelligence, be they electronic or otherwise, that would be relevant to the investigation we are conducting. The third element that we would want to prevent is their ability to alert others who may be involved or associated with the investigation, which could, again, have a negative or harmful effect. If we are talking in the terrorism space, we would not want them to be able to alert others in a way that may result in a plot being accelerated or obfuscated or otherwise reduce our ability to do something about it.
ASIO requested the retention of a detention power, but did not argue to keep the QDW regime in its current format. In the event that the QDW regime is repealed as a result of a recommendation of this Committee, ASIO advised that it requires a similar ability to pre-emptively detain a person in order to ensure a person:
is prevented from alerting others as to ASIO’s interest, or
is prevented from destroying relevant material.
Throughout this inquiry, ASIO has stressed the importance of preventing the occurrence of those three scenarios. For ASIO
the critical issue is removing any period of time between the service of the questioning warrant and the appearance of the subject at questioning during which others could be alerted to the investigation or material of security relevance could be destroyed (including electronic records accessible from a mobile phone). In 2017 where mobile phones are prevalent and likely to be immediately at-hand for any person, the time period that would enable these things to occur is literally a matter of seconds or minutes.
The Committee asked whether ASIO had powers available to it—other than a QDW or detention under a QW—that could be used to prevent ASIO’s concerns from eventuating. In response, ASIO and the Department detailed a range of ASIO and law enforcement powers that go some way to addressing those three concerns; however, they concluded that ‘their use as a substitute would either be ineffective in preventing one or more of those three outcomes, or result in compulsory questioning being detrimentally affected or unavailable altogether.’
As a result, it was ASIO’s view that the ability to pre-emptively detain was an essential component of its questioning framework, despite it not having been used to date. The Acting Director-General of Security advised the Committee that, if ASIO did not have the ability to detain a person, its questioning powers would be of less utility:
If we could not ensure that others would not be alerted or that information would not be destroyed, we would simply not use that tool; we would have to find other investigative means which could take longer and be less efficient to be able to reach the same result.
In private evidence, the Acting Director-General further advised that if a pre-emptive requirement to have a person present and be compelled to attend immediately could be added as a provision to the QW regime, then ASIO would be ‘absolutely supportive’ of the existing QDW regime being repealed.
Notwithstanding ASIO’s stated need for a detention power, the non-use of the existing QDW regime was consistently raised by submitters as evidence that the powers were not needed. For example, the Australian Lawyers Alliance observed, ‘if they were necessary, they would surely be used’.
In a similar vein, Dr McGarrity and Professor Williams commented that, even accepting ASIO’s claim that the threat to Australia from terrorism has increased in recent years, it has never proved necessary for a QDW to be issued. They pointed out that in none of the 16 QWs, or in respect of any of the dozens of persons charged with terrorism offences since 2003, has ASIO used its detention powers. This suggested, to them, that the detention powers were not necessary for terrorism investigations or prosecutions. They concluded that the detention powers may never be used:
The only situation in which there is still an arguable need for these powers is in respect of non-suspects. However, it is very unlikely that the additional detention criterion could be satisfied in respect of non-suspects. ASIO will also no doubt be alert to the public reaction that detention of a person, especially a non-suspect, might provoke. The case of Dr Mohamed Haneef demonstrates how the use of extraordinary powers that contravene accepted community standards may cause considerable damage to the reputation of executive agencies. This suggests that it will take a truly extraordinary case for the detention power to be used (if at all).
The Law Council submitted that ‘the QDW power appears unnecessary to prevent or disrupt a terrorist act, in light of all of ASIO’s other powers including QWs, and the questioning and detention powers of federal, state and territory police and the ACIC’.
The Department acknowledged that the introduction of a number of other arrest and detention regimes with lower thresholds since Division 3 of
Part III was enacted was a factor in the non-use of QDWs. However, it added that
simply because the warrant has not been used does not mean there are no grounds for it to be kept. QDWs are expressed to be used as a last resort and it is important to retain a last resort in an evolving security environment, particularly one where a terrorist act in Australia is ‘probable’.
At the public hearing, the Committee asked the Acting Director-General of Security why the detention powers had never been used. She explained that obtaining and using a warrant is a labour intensive process that would require unique circumstances to be met, and those circumstances have not yet arisen in a way that meant that detention was the right tool in those particular circumstances. In addition,
they are a last resort power. They would be very judiciously applied. We have considered a few occasions where it might be appropriate, but, again, I think you are quite right that in the current environment, and because they are specific to terrorism offences, we do find ourselves in the situation where we are working more closely with our law-enforcement partners and that those sorts of capabilities combined can be applied so that we are transitioning from the intelligence space into the law enforcement space more quickly.
In 2012, INSLM Walker was not convinced of the need for the detention powers:
The INSLM asked agencies and departments to give evidence demonstrating why QDWs are necessary. No scenario, hypothetical or real, was shown that would require the use of a QDW where no other alternatives existed to achieve the same purpose. The power to arrest and question without charge for a broad range of preparatory and inchoate offences, the power to order the surrender of passports and prohibit a person from leaving Australia and the existing powers of detention or forcibly compelled immediate attendance under QWs all provide less restrictive alternatives to QDWs.
Similarly, in 2016 INSLM Gyles found that the QDW powers were not necessary to prevent or disrupt a terrorist act:
ASIO has all of its other powers and capacities including QWs. The federal, state and territory police have their powers and capacities including: arrest and questioning, and pre-charge detention if there is reasonable suspicion or suspicion on reasonable grounds of a preparatory act; warrants of various kinds (eg, search warrants, delayed notification search warrants, warrants for arrest); control orders; and preventative detention. The ACIC and some state bodies have intelligence-gathering powers including questioning. There is co-ordination between these various organisations related to the exercise of these powers.
The Committee asked ASIO for a hypothetical scenario which would demonstrate why the detention powers were necessary in the 2017 context. In response, ASIO offered a number of hypothetical scenarios, including the following:
Box 2.1: ASIO counter-terrorism scenarios
Scenario 1: unexpected arrival in Australia of a returnee from Syria
‘Around 110 Australians are currently fighting or engaged with terrorist groups in Syria and Iraq. While the Australian Government has consistently stated that anyone fighting with, providing material support to or associating with organisations on either side of the conflict is committing a serious crime and will be subject to the full force of the law upon their return to Australia, evidence collection in a conflict zone is extremely challenging.
In this context, the role of intelligence collection is vital. For example, we could see use of a questioning and detention warrant in a case involving an individual who was identified at the Australian border as a member of the Islamic State of Iraq and the Levant (ISIL) who had been active with the group in Syria, but where detail of activity was limited and based on intelligence reporting. With a more tactically flexible regime—and if the requirement for linkages to specific terrorism-related offences were removed—ASIO could use a questioning and detention power to detain the individual and question them in relation to their ISIL role in order to determine the extent of any capability obtained, what contacts they had formed, their intended location, what activities they might undertake once in Australia, and other relevant information to support an assessment of the threat they pose to the community. This questioning might also identify that, from their ISIL activities, the individual had knowledge of or involvement in current attack planning in Australia; capacity to obtain this information would enable ASIO to provide advice to other agencies in order to activate mitigation measures to meet the assessed level of threat.
In such circumstances, an emergency oral warrant may be required, and immediate pre-emptive detention necessary, in the case where ASIO thought they had knowledge of current attack planning, to ensure the individual was not able to contact others involved in the conspiracy and cause them to accelerate their attacks, or to ensure the individual did not destroy electronic records related to their activities in Syria before being required to produce them to ASIO under compulsory questioning. Further, immediate pre-emptive detention would enable force to be used to ensure the individual’s attendance at questioning in circumstances where it may otherwise be unlikely they would attend as required.’
Scenario 2: a complex/multi-mode terrorist attack plot scenario
‘In this scenario, a complex terrorist plot involving multiple possible attack vectors—such as explosives, in addition to edged weapons or motor vehicles—has been discovered and the main perpetrators have been arrested. However, not all the devices have been found and the arrested perpetrators are not giving law enforcement agencies information to assist ASIO in assessing the residual threat to the community.
If thought appropriate in the circumstances, ASIO could seek a questioning and detention warrant on another family member or associate who was assessed to hold relevant information or leads. Immediate pre-emptive detention would be necessary because we would not want that person to notify anyone else that they are being questioned by ASIO. Such notification could result in others being able to destroy or hide the devices or, worse, accelerate the attack planning’.
Constitutional validity of detention
A number of submitters raised concerns about whether the Commonwealth Parliament can validly confer on the Executive the power to detain a person for the purpose of intelligence gathering. A central question was whether the detention was punitive or non-punitive.
One submitter explained that it is the general position that the detention of a citizen may only be ordered by a court after a finding of criminal guilt or as an adjunct to the judicial process. An exception to this is that the Executive may order the ‘non-punitive’ detention of a citizen for a pressing public purpose, such as to protect the community from non-criminals who pose a risk to public health or safety. Executive detention is generally only permitted where it is justified on strong grounds.
The Australian Lawyers Alliance suggested that if the detention authorised under the questioning and detention powers was considered to be punitive, the provisions could be found to infringe the separation of powers entrenched in the Constitution due to the lack of involvement of a court in the issuance of the warrants. It explained:
There is a lot of High Court authority around this, and it is not necessarily always easy to navigate. But there is a presumption that detention is punishment. Clearly the detention that is allowed under these warrants is circumscribed ostensibly around national security, but there is certainly an argument to be made that allowing an intelligence agency to detain someone in line with the permissions that are acquired with that detention would conflict with the separation of powers which essentially says that only courts can take away individual liberty in line with a fair trial.
Dr McGarrity and Professor Williams suggested that, because of this accepted position that detention may only be ordered by a court after a finding of criminal guilt, the detention powers should not be accepted unless there is clear evidence that they are necessary to protect the community from terrorism.
In his 2016 review, which recommended the repeal of the QDW provisions, INSLM Gyles found that the detention powers raised significant constitutional concerns. The former INSLM explained his concerns in this way:
The constitutional validity of these provisions has not been tested, as the provisions are yet to be used. The issue of a warrant for detention without the involvement of the courts certainly tests the doctrine of the separation of powers. Both a QW and a QDW are issued by the issuing authority on the request of the Director–General with the consent of the Minister. The issuing authority has to be satisfied of the same thing in each case: that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence. The difference lies in the matters the Minister must be satisfied of before consenting to a QDW. Thus, the effective decision about the use of that warrant rests with the Director–General and the Minister rather than with the issuing authority. In any event, the issuing authority is not to be equated with a court, although it may be a judge. That judge would act in a personal capacity, as persona designata, and would be chosen and appointed by the Minister either directly, or possibly as one of a member of a class. Even if valid, executive orders for detention are odious and no case can be made for them in this context.
The Department advised the Committee that it had obtained legal advice from the Australian Government Solicitor as to the constitutional validity of the questioning and detention powers regime as proposed in 2002.
International human rights considerations
Some submitters suggested that the QDWs appear to be in conflict with a number of Australia’s obligations under international human rights law, including the rights to freedom of movement and freedom of expression. These submitters were of the view that the QDW provisions were not a necessary or proportionate response to terrorism.
The Australian Lawyers Alliance explained that QDWs were relevant to human rights law in a number of ways:
Primarily, the right to privacy is compromised by forcing individuals who are not suspected or accused of any crime to answer questions with protections regarding the right not to incriminate oneself and the right to legal advice compromised. Secondly, the right to freedom of expression, which domestically is recognised in the constitutional protection of freedom of political communication, is undermined by the secrecy provisions that surround these warrants. Thirdly, in relation to questioning and detention warrants, the right to be free from arbitrary detention is undermined.
While we understand that the motivation for undermining these rights comes from a concern of public safety, we also believe that it is a mistake to see human rights and national security as in any way in conflict. Our national security is stronger if we protect human rights. If human rights are undermined, feelings of injustice might be the result. Human rights cater for national security concerns, allowing, for example, restrictions on freedom of expression for national security purposes to the extent that the restrictions are necessary and proportionate. Under domestic law a similar test is applied to permissible restrictions on freedom of political communication.
In his review, INSLM Gyles found that there was much in the argument that QDWs breach Australia’s international human rights obligations:
It can be concluded that QDWs are not proportionate to the threat of terrorism and are not necessary to carry out Australia’s counter-terrorism and international security obligations. It is time to accept that the capacity to secretly and immediately detain persons whether or not they are implicated in terrorism is a step too far.
INSLM Walker similarly found that the provisions were not a justifiable intrusion on personal liberty. He noted that the provisions were also not necessary to prevent someone from alerting others, failing to attend, or destroying information, as a QW could compel immediate attendance, with police officers able to use reasonable force to ensure compliance, thereby removing the need for the QDW provisions. INSLM Walker stated:
In practice, service of a QW requiring immediate attendance for questioning thereby opens the possibility for the police officer or officers involved to exert reasonable force if there is resistance to or unwillingness concerning compliance with the legal obligation, by the person served with the QW. It is difficult to see why further provision, as seen in the QDW powers, is necessary let alone proportionate as a response to these risks.
The Committee raised the various constitutional and human rights concerns with the Department at a public hearing. The Department offered the following in response:
From the department’s perspective, we would be quite confident that the current regime is compliant with the Constitution and with our human rights obligations. To go into a little bit more detail, we consider that the regime is both necessary and proportionate, which are issues to consider when you are looking at human rights issues. The minister can only consent to a request for making a questioning warrant if a certain threshold is met, which is quite a high threshold. At the moment, it is set out as being reasonable grounds for believing the issue of the warrant will substantially assist in the collection of intelligence that is important to a terrorism offence, having regard to other methods of collecting the intelligence and whether they are likely to be as effective and reasonable in all the circumstances. There is also a current written statement of procedures to be followed on the exercise of the authority pursuant to the warrant, and there are a number of safeguards within the regime as well which we would say assist in ensuring compliance from a human rights perspective.
Detention of non-suspects
The questioning and detention powers are not unique in permitting questioning of innocent persons—most compulsory questioning regimes allow the questioning of non-suspects. However, the current powers are unique, and unlike similar law enforcement powers, in that they permit the detention of non-suspects. The statutory test for obtaining a QDW focuses on the value of the intelligence that is likely to be obtained under the warrant, rather than the person from whom the intelligence will be obtained. According to the Department, this reflects the fact that persons other than the subject of an ASIO investigation may possess critical intelligence.
The ability to obtain a QDW against a non-suspect was a concern raised by a number of submitters. INSLM Gyles, in his review, noted that the fundamental distinction between those believed to be implicated in terrorism and those who are not is elided under these powers.
The Department justified the detention of non-suspects on the basis that there may be circumstances in which a person who is not the subject of an investigation will, nevertheless, be likely to tip off others about the investigation, or destroy records of things:
For example, a person may not be involved in the activities under investigation, but may:
be sympathetic to the objectives or worldview of the subject(s) of the investigation;
feel obliged to alert or assist the subject of the investigation, or to protect their interests; or
be concerned (rightly or wrongly) that they may be implicated in the activities that are under investigation where, for example, they have provided (wittingly or otherwise) financial or other support to the subject of the investigation, and so take action they perceive may protect their own interests.
The Department added that there may also be situations where the person is directly involved in the security-relevant activities under investigation, but where ASIO wishes to question them in relation to another person’s involvement; or separately involved in security-relevant activities unrelated to those that are the subject of the immediate investigation.
It is now more than 14 years since the introduction of ASIO’s questioning and detention powers. The Committee has found that although the nature of the security environment has evolved and that there are now a range of additional counter-terrorism powers, there is a need for a continuing form of ASIO questioning power.
The Committee must similarly assess whether a need exists—in the current security context and given the existence of these other counter-terrorism powers—for a continuing form of ASIO detention power.
One submitter summed up the challenge that this inquiry presents to the Committee:
The question of whether — and to what extent — individual rights and freedoms can be restricted in times of emergency is one of the most challenging to have faced Western democracies. An even more difficult question faces us today. A decade on from the September 11 terrorist attacks, this state of emergency has become the norm; there is no end in sight for the ‘war on terror’. Therefore, Australia must start considering and answering the question of what its anti-terrorism laws should look like for the long term. Is it prepared to accept the ASIO questioning and detention powers regime as an ‘ordinary’ part of the legal framework?
Of the evidence the Committee received, a sizeable amount was dedicated to the detention powers. The Committee also took classified evidence from the Department and ASIO. The public and classified evidence has informed the Committee’s examination of this complex issue.
The Committee notes that all non-government submitters to this inquiry recommended that the QDW provisions be repealed. Former INSLMs
Mr Bret Walker SC and the Hon Roger Gyles AO QC also recommended the provisions be repealed. These contributors highlighted the lack of need for the detention powers—ASIO has never used, nor requested, a QDW; nor has a person been detained under any of the 16 QWs issued to date. Contributors also raised a range of constitutional and human rights concerns. These contributions, and the recommendations of the former INSLMs, were given due consideration by the Committee.
The Committee acknowledges the opinion of the Department that the questioning and detention powers are not in breach of Australia’s Constitution or international human rights obligations. The Committee notes that, while it is ultimately a matter for the High Court to consider the constitutional validity of such powers, it is the responsibility of Parliament to ensure legislation is compliant with legal and human rights obligations.
The need for a detention power was a central consideration of this review. The original purpose of the questioning and detention powers was the prevention of terrorist acts. The powers were seen, in light of the limited availability of other powers at the time, as a necessary method of preventing terrorism.
The Committee stresses that the means of achieving that purpose is through the collection of intelligence. The powers, themselves, should not be used as a preventative detention power. That would not be acceptable for an intelligence agency. Instead, there are sound policy reasons for preferring that law enforcement agencies—which have legislated disruption functions—deploy their detention powers, under the observation of the courts, in order to prevent and disrupt terrorist acts.
The non-use of ASIO’s detention powers over the last 14 years—a period of sustained counter-terrorism activity—must be given considerable weight. The Committee notes that while the non-use of a power does not automatically lead to a finding that the powers are not necessary, it does suggest that close examination is warranted. The Department, in its submission, conceded that the present availability of a range of law enforcement powers, such as Part IC of the Crimes Act and preventative detention orders, was a factor in this non-use.
ASIO has made clear to the Committee that it is not wedded to the current model of detention under the QDW regime. In the evidence the Committee received from ASIO via hearings and submissions, ASIO emphasised that its principal concern was the retention of an apprehension power to ensure attendance and to prevent the person from contacting others and/or destroying information or other things. That is, ASIO’s concern focused on the period between service of the warrant and the commencement of questioning. ASIO did not place a similar emphasis on the need to retain its ability to continue to detain persons following questioning or between questioning sessions.
The hypothetical scenarios provided by ASIO (see, for example, Box 3.1), provide some justification for ASIO continuing to have available to it additional powers to support its questioning framework. The Committee reiterates its position that the current security environment necessitates that agencies have access to a range of effective counter-terrorism powers. The Committee accepts that there may be limited and exceptional circumstances where the power is required in order to ensure a person attends questioning, and consequently there is the need to provide a ‘power of attendance’.
However, noting the seriousness of ongoing detention, the constitutional and human rights concerns with the current framework and the non-use of the powers, the Committee is of the view that the current provisions are no longer the appropriate response to the threat of terrorism. The current detention framework should therefore be repealed.
In reaching this view, the Committee acknowledges ASIO’s advice that if a provision was added into the QW regime to enable a person to be pre-emptively compelled to attend questioning, then it would be ‘absolutely supportive’ of the existing QDW regime being repealed.
The Committee supports, in principle, 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.
The Committee recommends that ASIO’s current detention powers, as set out in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, be repealed.
It was apparent from evidence received to the Committee’s review that the existing questioning and detention framework requires reformation. Issues raised in evidence to the Committee are presented in Chapter 3.
The Committee recommends that the Government develop legislation for a reformed ASIO questioning framework, and that this legislation be referred to the Committee for inquiry and report. In the following chapter, the Committee outlines its key findings from this review, which are intended to guide development of this legislation.
Further, given that the existing powers are due to sunset on 7 September 2018, the Committee recommends that the Australian Security Intelligence Organisation Act 1979 be amended to extend the sunset date by 12 months to 7 September 2019 to allow sufficient time for legislation to be developed and reviewed.
The Committee recommends that the Government develop legislation for a reformed ASIO compulsory questioning framework, and refer this legislation to the Committee for inquiry and report.
The Committee further recommends that proposed legislation be introduced by the end of 2018 and that the Committee be asked to report to the Parliament no sooner than three months following introduction.
The Committee considers any proposed legislation should include an appropriate sunset clause.
The Committee recommends that the Australian Security Intelligence Organisation Act 1979 be amended to extend the sunset date of 7 September 2018 by 12 months to allow sufficient time for legislation to be developed and reviewed.