Labor members support the fundamental objectives of the Australian Security Intelligence Organisation Amendment Bill 2020 (“the bill”).
In particular, Labor members:
welcome the long-overdue repeal of the questioning and detention warrant power – a power which has never been used and which, since 2016, this Committee and multiple Independent National Security Legislation Monitors have repeatedly told the Government to repeal; and
agree that it is appropriate for the Parliament to allow ASIO to use its compulsory questioning powers for the purpose of gathering intelligence in relation to politically motivated violence, espionage and foreign interference (noting that, at present, ASIO can only use that power to gather intelligence in relation to terrorism offences).
For the latter reason, in August this year Labor formally offered the Government support, and moved in the Senate to immediately amend the Australian Security Intelligence Organisation Act 1979 (“the ASIO Act”), to expand the questioning warrant powers to apply to acts of foreign interference and espionage.
This Bill is long overdue.
In March 2018, the Committee recommended that (among other things) the Government (i) repeal the questioning and detention warrant power in Division 3 of Part III of the ASIO Act and (ii) develop legislation for a revised compulsory questioning framework and introduce it into the Parliament by the end of 2018.
It took over one year for the Government to acknowledge the Committee’s recommendations. It took over two years for the Government to introduce this bill.
That delay has not been explained.
In any event, with a number of qualifications which we elaborate on below, Labor members welcome this bill and the Committee’s report.
Our approach to assessing the bill
Speaking about the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill in 2002, Senator John Faulkner told the Senate that:
In assessing the government security legislation, Labor has been guided by the desire to protect citizens both from terrorist attack and from attacks on their rights. We have always regarded the laws underpinning our national security as being of the utmost importance. We consider the protection of the democratic rights and liberties of Australian citizens to be equally important. These principles cannot be traded off against one another. We must be vigilant in taking measures to protect the community from terrorist threats. We must be equally vigilant in protecting civil liberties and democratic freedoms.
Those same principles have guided us in our assessment of this legislation – a desire to protect Australians and Australia from politically motivated violence, foreign interference and espionage, on the one hand, and an equally powerful desire to protect the democratic rights and liberties of Australians, on the other.
Labor members also understand that, as well as being protective of civil liberties and democratic freedoms, clearly defined powers and robust safeguards play a critical role in building and maintaining public confidence in ASIO. Without that confidence, ASIO’s ability to effectively gather intelligence would be severely compromised.
For these reasons, Labor members are pleased to join with Coalition members in making the recommendations in the Committee’s report, which would – if implemented – result in sensible improvements to the to the limited safeguards that are currently contained in the bill.
We are also pleased to join with Coalition members in urging the Government to give further consideration to the introduction of an Independent Child Advocate into the proposed questioning warrant framework to provide a further safeguard in relation to minors.
However, in some respects, we do not think the Committee’s report goes far enough. We elaborate on a number of those concerns below.
Before turning to those concerns, Labor members would like to put on the record our expectation that the Attorney-General will authorise the use of the new questioning warrant power sparingly, prudently and only in the most extraordinary circumstances.
As well as having serious implications for the rights and liberties of the subject of the warrant, the use of such an extraordinary power to gather intelligence in relation to foreign interference and espionage could – in some circumstances – have much broader implications for our country, including Australian nationals living or travelling overseas.
The repeal of the Howard Safeguard
Labor members do not support the repeal of the key safeguard that was createdby the Howard Government in 2003: the requirement that questioning warrants be issued by an independent issuing authority (“the Howard Safeguard”).
The Government has not provided sufficient justification for removing the Howard Safeguard.
For example, the Director-General of Security – and some members of the Committee – referred to the fact that other Commonwealth agencies have compulsory questioning powers (including the Australian Competition and Consumer Commission, the Australian Building and Construction Commission, Inspector-General of Intelligence and Security and the Australian Criminal Intelligence Commission). The Director-General and Liberal members have suggested that, because those other agencies do not require the approval of an independent issuing authority to exercise their questioning powers, ASIO should not require authorisation from an independent issuing authority either.
Labor members do not accept that there is equivalence between ASIO – an intelligence agency which performs its functions covertly – and the other Commonwealth agencies with compulsory questioning powers. Further, Labor members do not accept that a meaningful comparison can be made between ASIO’s questioning warrant power and any of the other compulsory questioning powers cited by the Director-General and Liberal members of the Committee. For example, unlike ASIO’s questioning warrant power, none of the other compulsory questioning powers can authorise the apprehension of any individual. This is a fundamental distinction.
Most bizarrely, the Department of Home Affairs argued that the repeal of the Howard Safeguard would somehow constitute a desirable manifestation of the doctrine of ministerial responsibility.
Such an argument betrays ignorance about the role that independent issuing authorities play in Australia, which is not to make judgments about questions of policy or national interest but rather to assess the legality of decisions to authorise the use of coercive powers by Government agencies.
This argument also overlooks that, by necessity, ASIO operates in secret and so the usual rules of public accountability and ministerial responsibility to the Parliament do not – and cannot – apply.
Under both the current and proposed new questioning warrant power, questioning by ASIO must be conducted in the presence of a prescribed authority. That is a fundamental safeguard.
When the Howard Government sought to introduce the questioning warrant power in 2003, the Australian Parliament convinced the Government to amend the bill to ensure that only eminent and highly qualified individuals could be appointed as prescribed authorities. As a result of those amendments, a prescribed authority must be a former judge of a superior court, a current Supreme Court or District Court judge or a President or Deputy President of the Administrative Appeals Tribunal.
By contrast, in its current form, this bill would allow the Attorney-General to appoint individuals who could not possibly be qualified to perform the role of prescribed authority. For example, the Attorney-General could appoint a conveyancing solicitor or a banking lawyer as prescribed authorities, provided they had 10 years’ experience in a law firm.
The Department of Home Affairs justified this departure from the existing prescribed authority model on the basis that the model has presented difficulties due to a limited pool of potential applicants. Given the very high number of retired and current judges across Australia – and given that the current questioning warrant power has not been used in 10 years – we do not find this justification credible.
While Labor members welcome the Committee’s recommendation to tighten the eligibility criteria for prescribed authorities under the bill, we further recommend that the eligibility criteria be reassessed when the Committee reviews these powers in 2023.
There are a number of further matters that, in our view, the Committee should have particular regard to when it undertakes its review of the measures introduced by the bill in 2023, including:
whether the issuing criteria in sections 34BA and 34BB of the bill are sufficiently stringent;
whether the safeguards designed to protect children function as intended;
whether it is appropriate to allow a questioning warrant to be issued on the basis of an oral application in an emergency situation and, if so, whether the law should provide more guidance on what an emergency actually constitutes;
whether a questioning warrant should be capable of authorising the apprehension of a minor;
whether the limitations the bill imposes on a subject’s legal practitioner are appropriate;
whether the law should be amended to remove the post-charge and imminent-charge questioning powers;
whether the framework for internal authorisation of tracking devices, which would be introduced by Schedule 2 of the bill, is appropriate (having regard to ASIO’s role as an intelligence agency as distinct from a law enforcement agency); and
whether the public reporting requirements in relation to the use of the questioning warrant powers are sufficiently detailed.
Labor members endorse Recommendations 1 to 7 of this Report, and further recommend that the bill be amended to retain the Howard Safeguard.
Hon Anthony Byrne MP
Hon Mark Dreyfus QC MPSenator Jenny McAllister
Senator the Hon Kristina KeneallyDr Anne Aly MP