In its 2018 Questioning and Detention Report, the Committee made recommendations and findings in relation to a compulsory questioning framework for ASIO. This chapter sets out the Bill in relation to those recommendations and findings.
Following the review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), the Committee published four high-level and generalised recommendations in its report. The following table sets out the recommendations and their inclusion in the Bill.
Table 2.1: PJCIS Recommendations following the Review of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979
Retention of Questioning Powers
The Committee recommends that the Australian Security Intelligence Organisation retains a compulsory questioning power under the ASIO Act.
Compulsory questioning powers will be retained.
Repeal of detention powers
The Committee recommends that ASIO’s current detention powers, as set out in Division 3 of the ASIO Act, be repealed.
Questioning and detention warrants will no longer be available, and detention will not be permitted under a questioning warrant. Apprehension powers will be available instead.
Development of new provisions
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 Government has developed a new framework and referred it to the PJCIS for report.
The Bill was introduced in May 2020. The Bill was referred to the PJCIS for inquiry and report on 13 May 2020, with a report requested by 17 July 2020, a shorter timeframe than recommended by the PJCIS (no sooner than 13 August 2020).
The new framework will sunset after approximately ten years on 7 September 2030 (proposed section 34JF).
Extension of sunset clause
The Committee recommends that the ASIO Act 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.
This was done, with the date further extended by another year in 2019.
The sunset date is currently 7 September 2020.
In addition to the recommendations set out above the Committee made a number of findings. These findings added some context to the high level recommendations previously mentioned.
The findings were in relation to the following matters:
Identified Person Warrants;
In relation to the issuing authority for a questioning warrant the Committee found that questioning warrants should be authorised by the Attorney-General and that the Attorney-General should be able to separately authorise apprehension ‘when this may be required’.
The Bill implements these findings and the Attorney-General will issue questioning warrants (proposed sections 34BA and 34BB).
Warrants may require a person to appear immediately and, if the Attorney-General is satisfied that there are reasonable grounds for believing certain matters, may authorise the apprehension of the person by a police officer to facilitate that immediate appearance (whether for a first or subsequent appearance under the warrant) (proposed subsections 34BE(1), (2), (5) and (6)).
Scope of Questioning
In regard to the scope of questioning, the Committee did not make a formal finding. The Committee however, noted that the matter of broadening the questioning power to additional ASIO functions should be considered by the Government.
The Bill considered this finding and provides that adult questioning warrants may be issued for the purposes of collecting intelligence on a matter that relates to the protection of the Commonwealth, its people and the states and territories from espionage, politically motivated violence or acts of foreign interference, whether directed from or committed within Australia or not (proposed sections 34A and 34BA).
Further, the Bill provides that minor questioning warrants may be issued for the purpose of collecting intelligence on a matter that relates to the protection of the Commonwealth, its people and the states and territories from politically motivated violence, whether directed from or committed within Australia or not (proposed sections 34A and 34BB).
In relation to the apprehension framework, the Committee provided in-principle support for an alternative apprehension framework, however considered that any such power should be limited to compelling the subject of the warrant to attend questioning. The Committee noted that the presiding officer (in relation to prescribed authority, the Committee considered the ACC Act an appropriate model, see more below) should not be able to direct detention or further detention. The Committee noted that this should be a matter for the courts, as it is under the Australian Crime Commission Act 2002 (ACC Act).
The Bill provides that warrants may authorise apprehension for the purposes of bringing a person immediately before a prescribed authority for a first or subsequent appearance under the warrant (for subsequent appearances, see subsections 34BE(5) and (6)). Further, detention of a person is not among the things a prescribed authority may direct while a subject is appearing for questioning (under proposed section 34DE, 34DF or 34DG).
Warrants may require a person to appear immediately and, if the Attorney-General is satisfied that there are reasonable grounds for believing certain matters, may authorise the apprehension of the person by a police officer to facilitate that immediate appearance (proposed subsections 34BE(1) and (2)).
The Bill does not contain provisions relating to contempt as are found in sections 34A 34F of the ACC Act.
Identified Person Warrants
The Committee found that compulsory questioning should not be permitted under an identified person warrant. The Committee also found compulsory questioning should not be approved on a speculative or multi-use basis.
The Bill implements these findings and does not provide for compulsory questioning to be undertaken under an identified person warrant.
With respect to emergency authorisations, the Committee found that oral applications and authorisations should be permitted in emergencies with the following conditions:
the provisions should clearly describe the circumstances in which an emergency application may be made,
the Director-General must be required to ensure that all reasonable steps are taken to alert the Inspector-General of Intelligence and Security (IGIS) as to ASIO’s intention to obtain a warrant prior to ASIO seeking the oral authorisation,
the Director-General must be required to ensure that a written record of an urgent oral warrant application is made and provided to the Attorney-General as soon as practicable and to the IGIS within 48 hours of the warrant being issued,
the Director-General’s annual report, as provided for under section 94 of the ASIO Act, should include details on the number of emergency warrants requested and issued during the reporting period, and
the provision should be supported by a protocol between ASIO and the IGIS.
The Bill implements these findings. Warrants may be issued orally if the Attorney-General is satisfied that there are reasonable grounds on which to believe that the delay caused by issuing a written warrant may be prejudicial to security (proposed subsection 34BF(1)).
Further, the Director-General of Security will be required to ensure a written record if such a warrant is made that includes certain matters, as soon as practicable and within 48 hours of the warrant’s issue (proposed subsection 34BF(3)). The Director-General of Security must:
notify the Inspector General of Intelligence and Security (IGIS) of an oral request before or as soon as practicable after it is made (proposed subsection 34B(5)) and
make a written record of the request that includes certain matters and provide it to the Attorney-General and the IGIS as soon as practicable and within 48 hours of the request being made (proposed subsection 34B(6)).
The Bill provides that annual reports will be required to include the number of requests made and the number of warrants issued orally (item 11 of Schedule 1 to The Bill).
In relation to prescribed authority, the Committee considered the ACC Act an appropriate model. As a minimum requirement, the authority must be required to ‘hold a current practicing certificate or be a retired judicial officer of a State Supreme Court, the Federal Court of Australia or the High Court of Australia’. The Committee expected that they should have substantially more than five years’ experience as a legal practitioner.
Further, to ensure independence the Committee noted that consideration should be given to potential conflicts of interest prior to appointment and the authority should not be subject to directions from, or be over-ruled by, the Director-General of Security or the Minister.
The Bill implements these findings and as such, identifies three classes of person who will be eligible for appointment as a prescribed authority, subject to their consent and the application of safeguard. This includes those who:
have previously served as a judge in one or more superior courts for at least five years,
are a President or Deputy President of the Administrative Appeals Tribunal (AAT), currently enrolled as a legal practitioner of a federal court or of Supreme Court, and have been so enrolled for at least five years, or,
are currently enrolled as a legal practitioner of a federal court or of a Supreme Court, have engaged in practice as a legal practitioner for at least 10 years, and currently hold a practising certificate granted under a state or territory law (proposed subsections 34AD(1) and (4)).
The Bill also provides that a person must not be appointed if he or she holds certain other appointments (such as employment with an intelligence or law enforcement agency), and may only be appointed if the Attorney-General is satisfied that the person has the knowledge or experience necessary to properly perform the duties of a prescribed authority (proposed subsections 34AD(2) and (3)).
With regard to the Committees findings on potential conflicts of interest, the Bill outlines that before appointing a person, the Attorney-General must have regard to actual or potential conflicts of interest (proposed subsection 34AD(5)). Once appointed, the person must inform the Attorney-General of any material personal interest that relates to the proper performance of duties as a prescribed authority (proposed subsections 34AD(6) (8)).
The Bill outlines that a prescribed authority will not be subject to direction by the Director-General of Security or the Attorney-General in performing the authority’s functions or exercising the authority’s powers, except that certain directions that are inconsistent with the warrant must be approved by the Attorney-General (proposed paragraph 34DE(2)(b) and proposed subsection 34DH(2)). Directions given by prescribed authorities cannot be varied or revoked by the Director-General of Security or the Attorney-General except that:
an immediate appearance requirement and apprehension may be authorised by a warrant under proposed subsections 34BE(5) and (6) despite any direction given by a prescribed authority under subsection 34DE(1), and,
a direction given by a prescribed authority about confidentiality under subsection 34DF(1) may be varied or revoked under proposed subsection 34DF(3) by the Director-General of Security if the person to whom questioning material relates has been excused or released from further attendance at questioning (proposed subsection 34DH(3)).
Questioning of Minors
With respect to the questioning of minors, the Committee supported in-principle – and with safeguards – the lowering of the minimum age for questioning. The Committee found that:
any compulsory questioning of minors must be limited to those who are themselves the subject of investigation,
apprehension should not be available in relation to minors,
any minor that is the subject of a questioning warrant must have a legal representative present at all times,
any minor that is the subject of a questioning warrant must have had an assessment conducted prior to the Attorney-General’s approval of the warrant as to whether the interests of the child are appropriately protected, and
to the greatest extent possible, the interests of the child should be protected.
The Bill implements some of the findings of the Committee. The Bill would lower the minimum age of persons who may be questioned under a warrant from 16 to 14 years of age (subsection 34ZE(1) and proposed section 34BC (see also proposed section 34DG)).
In addition, a minor questioning warrant may only be issued in relation to a person who is themselves the subject of investigation, and only for the purpose of collecting intelligence on a matter that relates to the protection of the Commonwealth, its people and the states and territories from politically motivated violence (proposed section 34A and proposed subsection 34BB(1)).
Questioning may only take place under a minor questioning warrant in the presence of the minor’s lawyer (proposed paragraphs 34BD(2)(a) and 34DD(2)(b) and proposed subsection 34FA(1)). The minor may also request a non-lawyer representative (proposed paragraphs 34DD(2)(c) (e) and proposed section 34FD) and may contact that representative, including while apprehended (proposed paragraphs 34CB(2)(a) and 34F(1)(b)).
Under the Bill the Attorney-General must consider the best interests of the person, prior to issuing a minor questioning warrant. In doing so, the Attorney-General must take account of listed factors (to the extent that they are known and relevant) and any other matter he or she considers relevant (proposed subsections 34BB(2) (4)). Further, minors may only be questioned for continuous periods of up to two hours at a time (proposed paragraphs 34BD(2)(b) and 34DD(2)(f)).
Certain disclosures by minors or their representatives are permitted disclosures for the purposes of secrecy offences in proposed section 34GF (proposed paragraph 34GF(5)(f)).
The Bill does not implement the Committee’s findings with regard to apprehension, and states that apprehension will be available under a minor questioning warrant (proposed section 34BE).
The Committee did not make a definitive finding on the matter of post-charge questioning.
The Committee considered that if the Government proposes ASIO be able to question a person charged with an offence, such a power must be accompanied by adequate safeguards (as a minimum, equivalent to those in the ACC Act).
The Bill provides that post-charge and post-confiscation application questioning will be permitted under a questioning warrant (proposed section 34A, proposed paragraphs 34BA(1)(d) and 34BB(1)(e) and proposed subsection 34DB(1)).
The Bill includes provisions equivalent or similar to those in the ACC Act with respect to:
definitions of various terms, including post-charge, post-confiscation application, charged, and derivative material (sections 4 and 4C; proposed sections 34A and 34AC),
permitting post-charge and post-confiscation application questioning (subsection 24A(2); proposed subsection 34DB(1)),
directions about confidentiality and an offence for contravention of such directions (subsections 25A(9) (11) and (14A); proposed subsections 34DF(1) (4) and 34GE(4)),
issue of certificates by a court before which a person has been charged with an offence, requiring disclosure of material to the court (subsections 25A(12) and (13); proposed subsections 34DF(5) and (6)),
obtaining derivative material (section 25B; proposed section 34E),
disclosing examination/questioning material and derivative material to prosecutors of the person (sections 25C and 25D; proposed sections 34EA and 34EB) and proceeds of crime authorities (section 25H; proposed section 34EF),
court’s powers to order disclosure and to ensure a fair trial (section 25E; proposed section 34EC),
material that may always be disclosed to prosecutors of the person (section 25F; proposed section 34ED), and
other matters about prosecutors and examinees/subjects (section 25G; proposed section 34EE).
An additional criterion applies for the issue of a warrant if it is a post-charge or post-confiscation application questioning warrant. The Attorney-General must be satisfied that it is necessary for the collection of intelligence that the warrant be issued even though the person has been charged or the confiscation proceeding has commenced, or that the charge or proceeding is imminent (proposed paragraphs 34BA(1)(d) and 34BB(1)(e).
Access to Lawyers and Legal Professional Privilege
With reference to the access of lawyers and legal professional privilege, the Committee found that those subject to compulsory questioning should have appropriate access to legal counsel and existing provisions should be replaced with provisions consistent with those in the ACC Act.
The Bill did not implement the findings of the Committee and did not replace the existing provisions with those in the ACC Act. However, the Bill has amendments including:
removing the existing requirement that communication with a lawyer must generally be able to be monitored by a person exercising authority under the warrant (subsections 34ZQ(2) and (3)); and,
only allowing questioning of minors in the presence of a lawyer for the person (either a lawyer of choice or an appointed lawyer, depending on certain circumstances) (proposed subsection 34FA(1) and proposed paragraph 34DD(2)(b)).
The current and proposed provisions each provide that the provisions do not affect the law relating to legal professional privilege (section 34ZV and proposed section 34FI).
Ability to Contact Third Parties
In regard to the ability to contact third parties, the Committee made the a finding consisting of the following points:
Restrictions on the disclosure of information obtained as a result of the warrant should continue,
It is appropriate for the presiding officer (prescribed authority)to consider personal circumstances and allow the subject to make certain disclosures to specified family members, employers, and others in order to explain, and make arrangements for, their absence,
The subject of a warrant or that person’s legal representative should be able to request permission from the examiner (prescribed authority) to contact specified persons, with both sides able to make representations on the matter,
The Committee was concerned that, while prescribed authorities may give a direction allowing a person to contact someone, such directions ‘must be consistent with the terms of the warrant, or otherwise have been approved in writing by the Minister’,
The discretion to authorise disclosures should not be capable of being overridden by the Director-General of Security or the Minister.
The finding has not been addressed in the same terms that the Committee proposed.
As under the existing provisions, the prescribed authority may give a direction permitting a person to ‘contact an identified person (including a person identified by reference to the fact that the person has a particular legal or familial relationship with the subject) or any person, and to disclose information other than specified information while in contact with that person’ (subsection 34K(1); proposed subsection 34DE(1)).
A prescribed authority may also give a direction permitting a person to disclose specified information to a specified person (proposed subsection 34DE(1)).
Such directions may not be overridden by the Director-General of Security or the Attorney-General (proposed sections 34DE and 34DH). However, as with the existing provisions:
such directions must either be consistent with the warrant or be approved by the Attorney-General (subsection 34K(2); proposed subsection 34DE(2)), and
there is no provision in the Bill for requests to contact specified persons to be made, or for representations to be made on the matter.
The Committee found that the length of time that secrecy obligations remain in force should not be extended.
Under the bill, the length of time that secrecy obligations remain in force will remain the same (two years) (subsection 34ZS(2) and proposed subsection 34GF(2)).
In respect to person searches, the Committee considered that the matter of allowing a person search by a police officer, primarily for officer safety rather than intelligence collection, ‘should be brought forward for consideration in any proposed legislation amending the questioning framework’.
The Bill includes consideration of person searches and introduces new screening and personal search powers. A police officer will be permitted to:
enter a place where the subject of a questioning warrant is appearing or is due to appear before a prescribed authority,
ask the person to produce things in their possession for inspection, and
if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying a dangerous item or a communication device, search the person.
Police may also retain certain items found, ask reasonable questions about things found, and refuse entry if a person fails to comply with certain requests (proposed section 34D).
Similar to the current provisions, which enable a detained person to be searched (sections 34ZB 34ZD), a police officer may search a person who is the subject of a questioning warrant and who has been apprehended (and seize certain items), using such force as is reasonable and necessary (proposed sections 34CC 34CE). While the current provisions authorise ordinary and strip searches, the Bill will only authorise ordinary and frisk searches (proposed subsection 34CC(2)).
The Committee made a number of findings in relation to accountability arrangements, including that all existing provisions for IGIS oversight in legislation governing ASIO and the IGIS should be retained.
Further, the Committee found that all accountability and safeguard provisions in the current questioning framework should be retained, including:
the written statement of procedures (section 34C),
availability of, and access to, complaint mechanisms (sections 34K and 34ZG),
offences for contravention of safeguards (section 34ZF),
access to an interpreter (sections 34M and 34N),
requirement to treat the person humanely (section 34T),
obligation to video record questioning (section 34ZA),
reporting to the Minister (section 34ZH), and
provision of financial assistance (section 34ZX).
The Committee also found that the Director-General of Security’s annual reporting requirements (under section 94) should also be retained and a new statement of procedures should be developed for any revised questioning framework. ASIO should develop a set of internal procedures and protocols.
The Committee provided in-principle support to development of a protocol ‘between ASIO, the ACIC and other bodies that share information obtained via compulsory questioning, to avoid oppression by successive examinations’.
The Bill has implemented most of the findings of the Committee. With respect to existing provisions for IGIS oversight, the Bill will:
include an equivalent section 34P (IGIS official may be present at questioning or apprehension) (proposed section 34JB), and
expand the IGIS’s existing powers under the IGIS Act to enter places of detention for the purposes of inspections and inquiries to provide powers to enter any place where a person is being questioned or apprehended under a questioning warrant for those purposes (items 25 and 26 of Schedule 1 to the Bill).
The Bill includes equivalents to sections 34Q (suspension of questioning etc. in response to concern of IGIS; proposed section 34DM) and 34ZI (providing information to the IGIS; proposed section 34HB).The Bill does not include an equivalent to section 34ZJ (reporting by IGIS on multiple questioning and detention warrants), as detention will no longer be permitted.
With regard to accountability and safeguard provisions in the current questioning framework, the Bill includes provisions equivalent to:
section 34C (written statement of procedures; proposed section 34AF),
subsection 34K(9) and section 34ZG (complaint mechanisms; proposed sections 34DI and 34H),
section 34ZF (contravening safeguards; proposed section 34GE),
sections 34M and 34N (access to an interpreter; proposed sections 34DN and 34DO),
section 34T (treating person humanely; proposed section 34AG),
section 34ZA (video recording; proposed section 34DP),
section 34ZH (reporting to Attorney-General; proposed section 34HA),
section 34ZX (financial assistance; proposed section 34JE).
The Bill also implements the Committee’s findings to retain reporting requirements under section 94 of the ASIO Act except where they concern detention, which is no longer permitted (items 11 and 12 of Schedule 1).
The Bill has not included the Committee’s findings with regard to internal procedures and information sharing.
Retention of Existing Provisions
With regard to the retention of existing provisions, the Committee found that a questioning warrant should be able to be issued against both targets and third parties, subject to the Committee’s findings in relation to minors.
Further, the Committee found that the currently threshold for issuing a warrant should be retained and that the period for which a warrant remains in force and maximum questioning times should remain the same.
The Committee also found that particular actions authorised under warrant in section 34E should remain the same.
The Committee provided in-principle support for retaining the current availability of judicial review, automatic direct-use immunity and offences for officers contravening safeguards.
The Bill implements some of the Committee’s findings including that adult questioning warrants may be issued against targets and third parties (proposed section 34BA). Minor questioning warrants however, may only be issued against targets (proposed section 34BB; see in particular proposed paragraph 34BB(1)(b)).
As found by the Committee, the key threshold for issuing a questioning warrant remains the same and questioning warrants will remain in force for up to 28 days, as is currently the case (subsection 34E(5) and proposed subsections 34BF(4) and 34BG(8)).
Currently, the key threshold is that the issuer is satisfied that ‘there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to’ a matter, though the matter to which that threshold is applied has been expanded (as outlined under ‘Scope of questioning’ above) (subsection 34E(1); proposed subsections 34BA(1) and 34BB(1)). The matters of which the Attorney-General was previously required to be satisfied before consenting to an application have been incorporated into the issuing criteria (subsection 34D(4); proposed paragraphs 34BA(1)(c) and (e) and 34BB(1)(d) and (f)).
An additional criterion of necessity must be satisfied if the warrant will authorise post-charge or post-confiscation questioning (proposed paragraphs 34BA(1)(d) and 34BB(1)(e)).
For issue of a minor questioning warrant, the Attorney-General must also be satisfied that there are ‘reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not’ (proposed paragraph 34BB(1)(b)).
Maximum questioning time, if an interpreter is not used, will remain at 24 hours (section 34R and proposed section 34DJ). If an interpreter is used at any point, the maximum questioning time has been reduced from 48 hours to 40 hours (subsections 34R(8) (12) and proposed section 34DK).
In addition to the existing times not counted as questioning time, any time during which a prescribed authority has deferred questioning to allow a lawyer to be present in accordance with a direction given under certain provisions will be disregarded as questioning time (subsection 34R(13) and proposed section 34DL).
Under the Bill, existing particular actions authorised under warrant in section 34E will remain, being:
require persons to appear either immediately or at a time specified in the warrant,
authorise ASIO to question the person and require the person to produce records or things, and
authorise ASIO to make copies and/or transcripts of records produced (subsection 34BD(1)).
In addition, warrants may also:
authorise the apprehension of a person by a police officer in order to bring the person before a prescribed authority (proposed subsections 34BE (1), (2), (5) and (6)),
authorise the seizure of certain records or things if a search is conducted under proposed section 34CC (proposed subsection 34BE(3)), and
request the person to produce a specified record or other thing or a specified class of record or other thing before a prescribed authority (proposed subsection 34BE(4)).
With respect to seeking a legal remedy relating to the warrant or the treatment of the person in connection with the warrant, the Bill includes provisions equivalent to:
subsections 34J(1) and (5) (prescribed authority must explain certain matters; proposed subsections 34DC(1) and (3)),
subsection 34ZS(5) (definition of permitted disclosure for the purposes of secrecy offences; proposed subsection 34GF(5)),
section 34ZT (regulations may limit lawyers’ access to certain information; proposed section 34FH),
section 34ZU (rules of court about proceedings connected with warrants; proposed section 34JC),
section 34ZW (jurisdiction of state and territory courts excluded; proposed section 34JD), and
subsection 34ZX(5) (limits on financial assistance; proposed subsection 34JE(7)).
The Bill retains direct use immunity for self-incriminating information, but contains additional exceptions (for certain confiscation proceedings, proceedings for an offence against section 34GF (secrecy offences), and proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to section 34GD) in addition to the existing exception of proceedings for an offence against the section (subsection 34L(9) and proposed subsection 34GD(6)).
The Bill also retained offences for officers contravening safeguards and contains equivalents to the existing provisions.
Sunset Clause and Committee Review
The Committee found that the revised framework should include a sunset clause and require the PJCIS to review the updated provisions before that sunset date.
The Bill has implemented a Sunset Clause in line with the Committee finding and the new framework will cease to have effect on 7 September 2030 (proposed section 34JF).
The Bill did not implement the finding for a required review and does not include an amendment to the Intelligence Services Act 2001 to require a PJCIS review of the provisions before they sunset.