The Australian Security Intelligence Organisation Amendment Bill 2020 is the culmination of concerted and complex work by this Committee, Independent National Security Monitors, civil society and the Australian Government, in particular ASIO and the Department of Home Affairs.
Given the nature of the powers proposed in the Bill and the sensitivities in the community around intelligence agencies such as ASIO questioning people, the Committee sought and received a significant amount of publicly available information from ASIO in relation to the powers the Bill intends to bestow on them. ASIO’s submissions provided detailed public case-studies which the Committee has published on its webpage.
The Committee is not persuaded by any argument suggesting that, because questioning warrants have not been used a lot in the past that such a power is not necessary. Instances of use do not address the need or efficacy of the powers an intelligence agency might need, particularly, as described in evidence given by ASIO, in emergency situations. To put this in a different context, people with certain allergies carry EpiPens, they hope not to use them but it is vitally important that they have them available. The Committee is satisfied that ASIO should have these powers within the current ‘complex and elevated security environment’.
The Committee therefore fully supports the aims of the Bill.
The questioning warrant regime
The Committee notes that in its 2018 Questioning and Detention Report (2018 Report) the Committee did not make a finding in relation to the expansion of the scope of a questioning warrant from terrorism offences to espionage, foreign interference and politically motivated violence. As set out in Chapter 2 the Committee however, noted that the matter of broadening the questioning power to additional ASIO functions should be considered by the Government.
It is clear that the Government has given detailed consideration to this matter and has decided on the broadening as set out in the Bill. Given the threat environment, as set out by the Director-General of ASIO at the 10 July 2020 public hearing, the Committee is comfortable with this expansion.
The tensions between the recommended changes to the Bill and the position of the Government are set out in Chapter 3. The Committee has considered the evidence before it in detail and it is comfortable with the majority of the Bill that deals with questioning warrants. In stating this, the Committee notes that the Department of Home Affairs addressed each recommendation made by the Law Council of Australia.
Under the current questioning and detention regime, a prescribed authority must be a former judge of a superior court (and have served more than 5 years); and if there are insufficient available, a person who is currently a Supreme Court or District Court judge; and if there are insufficient available, a President or Deputy President of the AAT enrolled as a legal practitioner for at least 5 years.
The Bill essentially means an associate with 10 years’ experience in a law firm could be appointed to the role – even if the person has no relevant legal experience. The proposed change amounts to a diminution of the safeguards present in the current framework (despite the expansion of powers). The Committee therefore recommends that a Prescribed Authority may have 10 years’ experience but must, additionally, be a Queen’s Counsel or Senior Counsel.
The Committee recommends that proposed sub-subsection 34AD (1)(c) of the Australian Security Intelligence Organisation Amendment Bill 2020 be amended so that a legal practitioner able to be appointed as a prescribed authority must have engaged in legal practice for at least 10 years and be a Queen’s Counsel or a Senior Counsel.
Safeguards for minors
The Committee accepts that the Bill provides safeguards to protect minors in addition to ASIO’s existing considerations in relation to operational planning for activities involving minors. This includes the presence of the minor’s lawyer and a minor’s representative to represent the minor’s best interests during questioning. In addition, the independent prescribed authority’s role is to ensure that the questioning is conducted within the confines of the law and appropriately in the circumstances.
The Bill also provides that the Inspector-General of Intelligence and Security (IGIS) may be present at any point throughout the exercise of power under the warrant and that the prescribed authority may suspend questioning should the IGIS raise any concerns to the prescribed authority.
Whilst these safeguards are commendable the Committee considers that legislation cannot be too careful when dealing with minors particularly in the serious situation where they may be the target of an ASIO investigation.
The Committee notes submitters’ recommendations that the requirement for children’s best interests be a primary consideration throughout the warrant and questioning process. The Bill requires the Attorney-General to consider the minor’s best interests before issuing a warrant (proposed section 34BB(2)). As stated in the Explanatory Memorandum, this is a primary consideration in deciding whether to issue a minor questioning warrant.
Relevantly the Explanatory Memorandum states:
In deciding whether to issue a questioning warrant in relation to a person who is at least 14 but less than 18 years old, the Attorney-General must consider the best interests of the person (section 34BB). It is intended that this consideration is a primary consideration in deciding whether to issue a minor questioning warrant, but will also be considered alongside other legitimate considerations, such as public safety and national security. In considering the best interests of the child, the Attorney-General must take into account the following matters, to the extent known:
The age, maturity, sex and background 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 their religion; and
Any other matter the Attorney-General considers relevant.
The Committee notes that the consideration is a primary consideration in deciding whether to issue a minor questioning warrant, but will also be considered alongside other legitimate considerations, such as public safety and national security. In evidence to the Committee the Department of Home Affairs were ‘happy to consider further’ that the best interests of the child should be a primary consideration in making an issuing decision, and that this be made explicit in the legislation.
The Committee notes that the policy intent of the Bill is that the best interests of the child will be the primary consideration before the issuing of a warrant. It therefore recommends that this be made explicit in the Bill.
The Committee recommends that proposed subsection 34BB(2) of the Australian Security Intelligence Organisation Amendment Bill 2020 should be amended to require the Attorney-General to take into account the best interests of the child as a primary consideration in deciding whether to issue a minor questioning warrant.
The Committee has considered the proposal by some submitters that an Independent Child Advocate be introduced into the proposed questioning warrant framework to provide a safeguard for the child’s best interests. The Department of Home Affairs stated that the government would need to carefully consider the introduction of an Independent Child Advocate into the proposed framework ‘…to ensure that there are no unintended consequences or operational risks’.
The Committee accepts that there may be unintended consequences or operational risks if it were to make a recommendation regarding an Independent Child Advocate. However, the Committee considers that ASIO, when using questioning powers, might consider the inclusion of an Independent Child Advocate as an additional safeguard for minors under the questioning framework. In addition, the Committee would welcome the government providing a written briefing to the Committee within 12 months of this report on its considerations of the inclusion of an Independent Child Advocate in the questioning warrant regime.
Apprehension of minors
The Committee notes that proposed section 34BE allows for the apprehension of minors and therefore does not implement the Committee’s finding that apprehension of minors not be available to ASIO.
The Committee also notes the following evidence from the Director-General of ASIO:
The fact that young people are involved in terrorist plots and attacks is well known. Curtis Cheng was killed in a terrorist attack in 2015 carried out by a 15-year-old. Three of the plots disrupted in Australia since 2014 have involved minors planning to carry out attacks. In May 2015, a 17-year-old male was arrested in Melbourne after he contacted Australian ISIL members in Syria who encouraged him to undertake terrorist attacks in Australia. He later pleaded guilty to one count of acts in preparation for a terrorism offence and was sentenced to 11 years in prison with a non-parole period of eight years. In April 2016, a 16-year-old male was arrested and charged with one count of acts in preparation for a terrorist offence after he sought firearms and explosives to conduct an attack on Anzac Day. He was sentenced to 12 years in prison with a non-parole period of nine years. In October 2016, two 16-year-olds were arrested by counterterrorism police after they entered a Sydney gun shop and purchased two bayonets. One of the teens was located with a note linking their plans to ISIL. Both were charged with acts done in preparation for or planning a terrorist act and membership of a terrorist organisation. Both have been convicted. The court sentenced one to 16 years in prison with a non-parole period of 12 years. The second is yet to be sentenced.
We are seeing increasing numbers of young Australians involved in onshore terrorism. This is being observed in both the Islamic extremism and extreme right-wing circles, and this includes children as young as 13 and 14. I confirm today that at ASIO we are currently undertaking counterterrorism investigations which involve children as young as 14. This threat is amplified by the COVID crisis, with some young Australians being exposed to radicalisation as they've spent time online meeting and engaging with like-minded individuals.
This is powerful evidence. It is evidence that the Committee has taken into serious consideration in light of its previous stated position and other evidence given to it during the course of the inquiry. Ultimately, given the safeguards for minors embedded in the Bill, including the further safeguards recommend by the Committee above, the Committee accepts the Bill’s proposal to allow for the apprehension of minors.
Involvement of lawyers
In its 2018 Report the Committee considered that the existing provisions in the ASIO Act governing legal representation for questioning warrant subjects ‘should be repealed and replaced with provisions consistent with those relating to legal representation in the ACC Act’. The power to remove lawyers for ‘unduly disrupting’ questioning in proposed subsection 34FF(6) of the ASIO Act is, therefore, contrary to the views of the Committee.
The Committee agrees with the rationale, as set out in the Explanatory Memorandum that a disruption offence equivalent to that in section 35 of the Australian Crime Commission Act 2002 ‘is not appropriate in the ASIO model’ because ASIO’s questioning warrants can be used ‘to obtain critical and time sensitive national security information’ in ‘high risk situations’.
Oversight and accountability
The Committee notes the following statement by the IGIS:
My final point is that the Inspector-General's office is of course only one part of the matrix of oversight that applies to ASIO's use of its powers. For example, in the current questioning and detention regime, there is the role of the Attorney-General in improving an application, the independent judicial issuing authority and the use of a former judge—or, if none is available, an AAT member—as a prescribed authority, and the role of the IGIS in the proposed questioning and apprehension scheme. The role of the Inspector-General is effectively unchanged, although there are changes in other parts of the matrix. Similarly, for tracking devices the current matrix includes the issue of warrants by the Attorney-General as well as inspector-general oversight.
The Committee notes that proposed subsection inserts new annual reporting requirements, updated to reflect the operation of the revised framework. Specifically, new subsection 94(1) requires the following to be included in the annual report prepared by the Director-General:
the total number of requests made to the Attorney-General, including the number requested orally, for the issue of questioning warrants in the relevant period;
the total number of questioning warrants issued, including the number issued orally, in the relevant period;
the number of times persons were apprehended in the relevant period;
the number of hours each person appeared for questioning in the relevant period, and the total of all those hours for all persons; and
the number of times each prescribed authority had persons appear for questioning before that prescribed authority in the relevant period.
The Committee will have the opportunity to read the Annual Report prepared by the Director-General.
The exception in section 29(3) of the Intelligence Services Act 2001 prohibits the Committee reviewing operational activities and it could be the case that questioning warrants may relate to ongoing operational activities.
The Committee notes the openness and transparency, including at times going to operational matters, of briefings provided by ASIO officers. However for the avoidance of doubt it recommends that the Committee may request a written or oral briefing on any matter in relation to any questioning warrant as reported in the Annual Report.
The Committee recommends that the Australian Security Intelligence Organisation Amendment Bill 2020 and the Intelligence Services Act 2001 be amended to allow the Committee to request a written or oral briefing on any matter in relation to any questioning warrant as reported in the Annual Report prepared by the Director-General of ASIO.
Following the implementation of the above recommendation the Committee will be satisfied that the oversight provided by the Bill is appropriate.
The powers proposed by the ASIO Bill are extraordinary. Similar questioning powers have been available to ASIO since 2003 and have only been used on 16 occasions. It is therefore understandable that a sunsetting period of 10 years would be proposed by the Government in this Bill. However, given the extraordinary nature of the questioning powers given to ASIO and the interest and concern this raises in some section of the Australian public ASIO the Committee recommends reducing the sunsetting timeframe to 5 years, being 7 September 2025.
The Committee recommends that section 34JF of the Australian Security Intelligence Organisation Amendment Bill 2020 be amended to introduce a sunsetting clause with the powers ceasing to have effect on 7 September 2025.
Previously the Committee has been required, prior to the sunsetting period, to review the operation, effectiveness and implications of the questioning powers, however, taking into account the Committee scrutiny recommended above and the, so far, limited use of the current questioning powers the Committee recommends that the Intelligence Services Act 2001 be amended so that the Committee may review the operation, effectiveness and implications of the questioning powers ahead of that sunset date with a review to commence by 7 September 2023. Using the word may will leave any review up to the Committee at the time, taking into account any information they have reviewed prior to making any decision to commence the review.
The Committee recommends that the Intelligence Services Act 2001 be amended so that the Parliamentary Joint Committee on Intelligence and Security may commence, by 7 September 2023, a review into the operation, effectiveness and implications of the Australian Security Intelligence Organisation’s questioning powers.
This would mean that the Committee would be able to review the use of the questioning powers after they have been in place for 5 years. Having such a review commence 2 years prior to the sunsetting period would allow for the Committee to spend some time on its inquiry without creating a risk that the powers would sunset without the Committee’s recommendations being available to Government.
The Committee notes that, whilst there are specific guidelines in relation to questioning warrants set out in the Bill the more general ASIO Guidelines affect the work of ASIO overall.
The Committee notes that, at the time of finalising this report, updated ASIO Guidelines had been provided to the Committee ahead of their tabling in the Parliament.
Public Interest Disclosures
The Committee is always concerned to make sure legislation is clear and transparent to the reader and, as such, recommends that proposed subsection 34GF(5) be amended to provide that the making of a public interest disclosure to an authorised internal recipient under the Public Interest Disclosure Act is a “permitted disclosure” for the purpose of the disclosure offences in proposed subsections 34GF(1) and 34GF(2).
The Committee recommends that proposed subsection 34GF(5) of the Australian Security Intelligence Organisation Amendment Bill 2020 be amended to provide that the making of a public interest disclosure to an authorised internal recipient under the Public Interest Disclosure Act is a “permitted disclosure” for the purpose of the disclosure offences in proposed subsections 34GF(1) and 34GF(2).
In an operational environment where cross-functional teams at the tactical level, conducting surveillance against terrorism targets and, potentially, espionage and foreign interference targets, the Committee accepts that ASIO has made the operational case for it to be able to internally authorise the deployment of tracking devices. It is clear that there is a significant operational benefit for ASIO at a tactical level in having the internal authorisation power.
Specifically ASIO pointed to the situation that could be faced by the JCTTs on the ground. Someone might be an intelligence lead for ASIO under physical surveillance and suddenly transition to someone who is about to commit an act of violence against the Australian public, and there's a hand-off to the AFP which might be a matter of minutes. Enabling ASIO potentially to internally authorise the placements of a tracking device on a vehicle would make that transition smoother and would in fact mitigate the risk of that target getting away from law enforcement and committing an act of violence against the Australian public.
The Committee therefore supports the Bill’s proposed tracking device provisions but notes the concerns 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.
These concerns are serious, including potential legal risk to ASIO, and its officers, and should be addressed. Out of an abundance of caution the Committee therefore recommends that the Australian Government amend the ASIO Bill 2020 to prohibit ASIO from using a tracking device without an internal authorisation under proposed section 26G (if the tracking device is to be installed in a public place in a jurisdiction where doing so is otherwise not permissible, including on the exterior of a vehicle in a public place, and does not exceed the limits of authority under proposed sections 26J and 26K).
The Committee recommends that the Australian Government amend the Australian Security Intelligence Organisation Amendment Bill 2020 to prohibit ASIO from using a tracking device without an internal authorisation under proposed section 26G (if the tracking device is to be installed in a public place in a jurisdiction where doing so is otherwise not permissible, including on the exterior of a vehicle in a public place, and does not exceed the limits of authority under proposed sections 26J and 26K).
The Committee is confident that if any of the issues raised by the Law Council create the legal risks identified that the Government will make any necessary amendments or explain to the Parliament if such amendments are not necessary.
Following implementation of the recommendations in this report, the Committee recommends that the ASIO Amendment Bill 2020 be passed by Parliament.
The Committee recommends that, following implementation of the recommendations in this report, the Australian Security Intelligence Organisation Amendment Bill 2020 be passed by Parliament.
Mr Andrew Hastie MP
1 December 2020