Chapter 6 - Law enforcement and ASIO powers
Introduction
6.1
This chapter will outline the key provisions and issues
raised in relation to the following aspects of the Bill:
-
the extension of police powers to stop, question
and search persons in relation to terrorist acts; and to seize items related to
terrorism and other serious offences (Schedule 5);
-
the introduction
of powers to permit police to directly issue a notice to produce information
and documents from persons and organisations for the purposes of investigating terrorism
and other serious offences (Schedule 6); and
-
the expansion of the scope of ASIO's powers
(Schedule 10).
Powers to stop, question and search persons in relation to terrorist acts –
outline of key provisions
6.2
Schedule 5 of the Bill amends
the Crimes Act to expand the powers of the AFP, and state and territory police forces
to stop, question and search persons for the purposes of investigating and
preventing terrorism. It also enables police to seize items related to
terrorism and other serious offences.[589]
6.3
The Explanatory Memorandum to the Bill states that the
provisions will 'dovetail' with equivalent state and territory stop, question
and search powers, and will provide a common approach for police operating in a
'Commonwealth place' (which includes airports).[590] The Bill
also creates the proposed concept of a 'prescribed security zone': the Minister
may declare a Commonwealth place to be a 'prescribed security zone' for 28 days
(unless earlier revoked) if the Minister considers that a declaration would
assist in either preventing, or responding to, a terrorist act (proposed
section 3UJ).
6.4
The declaration of a 'prescribed security zone', and
any subsequent revocation, are not legislative instruments (proposed subsection
3UJ(7)). This means that declarations need not be tabled in Parliament and are
not subject to disallowance. There is a requirement to broadcast any declaration
by television or radio so as to be capable of being received within the
'prescribed security zone', and published in the Gazette and on the Internet. However, there is no requirement that
publication occur within a particular timeframe or as soon as practicable.
Further, failure to broadcast or publish does not invoke any sanction, nor does
it invalidate a declaration (proposed subsections 3UJ(5)-(6)).
6.5
Any person who
is in the 'prescribed security zone' during the period of the declaration may
be subject to the stop, search, questioning and seizure powers.
6.6
Proposed
subsection 3UK sets out the sunset clause for the proposed stop, question,
search and seizure powers. The sunset clause does not expressly provide for any
of the relevant provisions to cease to have effect after 10 years; rather it
appears to allow the proposed police powers to remain in legislation, yet be
unable to be exercised.[591]
Stop, question and search powers
6.7
Proposed
Subdivision B of Division 3A of the Bill sets out the application and scope of the
powers to stop, question and search. Proposed section 3UB provides that the
powers may only be exercised where a person is in a Commonwealth place (other
than a prescribed security zone) and the police officer 'suspects on reasonable
grounds' that the person might be about to commit, be committing, or has just
committed, a 'terrorist act';[592] or
if a person is in a Commonwealth place in a prescribed security zone.
6.8
Proposed
subsection 3UC(1) gives police officers the power to ask a person for the
following details:
-
name;
-
residential
address;
-
reason
for being in the particular Commonwealth place; and
-
evidence
of identity.
6.9
It is an
offence to not comply with such a request, or to give false information (proposed
subsection 3UC(2)). The offence carries a maximum fine of $2200; however the
more serious offence of obstruction, hindering or intimidating a Commonwealth
official in the execution of his/her duties may also apply, which carries a
maximum penalty of imprisonment for 2 years.[593]
Proposed subsection 3UC(3) provides a reasonable excuse defence to the offence
created by proposed subsection 3UC(2).
6.10
Proposed
subsection 3UD(1) provides a police officer with the power to stop and detain a
person for the purpose of searching for a terrorism-related item. Searches that
may be conducted include an ordinary search or frisk search (not a strip
search), and a search of a vehicle owned or operated by the relevant person.
6.11
A police
officer may use reasonable force but must not use more force or create greater
indignity than is reasonable or necessary; or detain the person for longer than
reasonably necessary to conduct the search (proposed subsections 3UD(2) and (3)).
Seizure of items
6.12
Proposed
section 3UE provides for the seizure of terrorism-related or serious
offence-related items found in the course of a search conducted under proposed
section 3UD. Proposed sections 3UF and 3UG set out how items seized under proposed
section 3UE must be dealt with.
6.13
For
example, items seized during searches are subject to a notification system,
which requires police to serve a seizure notice on the owner within 7 days,
identifying the items and informing the owner of their right to request (within
90 days) the return of the item (proposed subsections 3UF(1)-(3)). The police
may retain an item where there are reasonable grounds to suspect the item is
likely to be used in the commission of a terrorist act or serious offence (proposed
subsection 3UF(6)); or is evidence of a terrorist act or serious offence (proposed
subsection 3UF(7)).
6.14
When the
owner requests return of a seized item, and the relevant police officer does
not return it within the time limits, the police officer may apply to a
magistrate for orders that:
-
the
police officer retain the item (proposed subsection 3UG(3) and proposed
paragraph 3UG(4)(a));
-
the item
be forfeited to the Commonwealth (proposed paragraph 3UG(4)(b));
-
the item
be sold and the proceeds be given to the owner (proposed paragraph 3UG(4)(c));
or
-
the item
be otherwise sold or disposed of (proposed paragraph 3UG(4)(d)).
6.15
A
magistrate may also make an order for the return of the item to its owner
(proposed subsection 3UG(5)). In any application to a magistrate under proposed
subsection 3UG, the owner of the item must be allowed to appear and be heard by
the magistrate (proposed subsection 3UG(2)).
Powers to stop, question and search persons in relation to terrorist acts –
key issues
6.16
Some of the key concerns raised in the committee's
inquiry in relation to the proposed expansion of police powers to stop, search
and question, and seize items, include:
-
the necessity of expanding the powers (given the
scope and nature of existing police powers);
-
the broad and random nature of the powers;
-
the possible impact of the proposed powers on specific
ethnic, religious or racial groups, and, in particular, the Muslim community;
-
the highly discretionary nature of the
Minister's power to declare an area a 'prescribed security zone';
-
seizure of items related to serious
(non-terrorism) offences; and
-
the need for independent oversight of the use of
the powers.
Need for the new powers
6.17
Many submissions expressed in-principle opposition to
the enhanced police powers contained in Schedule 5 of the Bill.
Specifically, they questioned the need and justification for the proposed
powers, particularly in light of the breadth of existing Commonwealth and state
and territory police powers.
6.18
For example, the Federation of Community Legal Centres
(Vic) argued that AFP officers are already afforded a wide range of stop,
search, question and detain powers under the Australian Federal Police Act 1979 (AFP Act);[594] and state and territory police are
also 'generally able to stop and question a person where it is reasonably
suspected that the person is committing or has just committed a criminal
offence'.[595] Further, in its view:
...police powers with respect to terrorism offences are already
overly coercive and expansive. Many of the powers provided for in Schedule 5
already exist in some form and are sufficient in themselves. The additional
powers sought are in our view an excess of police power.[596]
6.19
PIAC agreed with this assessment:
In PIAC’s view it is
unnecessary to extend police powers in this way. State and Federal police
already have extensive powers to stop, question, search, detain and arrest
people in relation to suspected terrorist offences and other serious offences. The Government has failed to explain why
these powers are now seen as inadequate, and why a new regime of police powers
needs to be introduced into the Crimes Act. PIAC notes that the Explanatory Memorandum to the Bill states that the provisions will 'dovetail
with equivalent State and Territory stop, question and search powers'. However, in PIAC’s view the proposed
provisions go beyond what already exists in State and Territory legislation and
are likely to result in front-line policing practices that are arbitrary,
intrusive and potentially discriminatory.[597]
6.20
In their
submission, Mr Joo-Cheong Tham and others also argued that Commonwealth and
state and territory police currently 'wield extensive powers to stop, search,
detain, question and arrest in relation to 'terrorism' offences' and that,
further, the AFP 'are presently empowered by a variety of intersecting laws
with broad coercive investigative, preventive and surveillance powers as well
as extensive stop, search and question powers'.[598]
6.21
The
Australian Political Ministry Network (PolMin) agreed, and emphasised that a
far wider range of people would come within the ambit of such broad police
powers:
The proposals also seek
to extend "stop, question and search" powers where "there might be reasonable
grounds that a person might have just committed, might be committing,
or might be about to commit a terrorism offence". Both State and Federal
police already wield extensive powers to stop, search and question in relation
to terrorism offences. The proposals if adopted clearly mean that a much wider
range of people may be subject to detention, restrictions on movement and compulsory
questioning. Giving the police such free rein to use coercive powers when there
is only a possibility of an offence, opens the door to mistakes
and abuse.[599]
6.22
In evidence, Ms Agnes Chong from AMCRAN told the
committee that many of the new powers contained in the Bill, including the
random stop and search powers, 'mirror existing powers but with the safeguards
removed or weakened'.[600] AMCRAN's
submission argued that:
...the range of powers
that are available to both Federal and State Police forces are more than
sufficient to combat terrorism, especially in light of desirability of
Governments to cooperate. As we saw with the recent raids, they were more than
enough to raid, search, detain and arrest persons allegedly to have been
involved in terrorism. We further note that they did not even need to resort to
the broader NSW police powers to conduct those raids and arrests. In our view,
the proposed amendments unnecessarily broaden the powers of the AFP to stop,
question and search persons.[601]
6.23
In their submission, Mr
Patrick Emerton
and Mr Joo-Cheong
Tham expressed concern that little
justification has been given by the Federal Government as to why greater
discretionary police powers are needed. Their submission contained a useful
comparison between, on the one hand, some of the existing powers and inherent safeguards
in the Crimes Act and the AFP Act; and, on the other, the Bill's
considerable expansion of police powers with few corresponding safeguards.[602]
6.24
For example, Mr Emerton
and Mr Tham
pointed out that the stop and question powers in the Bill
would allow the AFP 'to demand people's reasons for being in a place' and would
eliminate 'the connection to a crime that it is believed might have taken
place'.[603] By contrast, the current
stop and question powers vested in police by the Crimes Act are limited to
circumstances in which a police officer believes on reasonable grounds that the
person whose name and address is sought 'may be able to assist...in inquiries in
relation to an indictable offence that the constable has reason to believe has
been or may have been committed'.[604]
Further, unlike the Crimes Act, the Bill does
not oblige a police officer to identify himself or herself at the request of
the person he or she is questioning.[605]
6.25
Mr Emerton
and Mr Tham
argued further that:
No explanation has been
offered of how the vesting of greater discretionary and coercive powers in the
AFP will prevent acts of political or religious violence. Currently, if an AFP
member suspects on reasonable grounds that a person is attempting to commit a
terrorist act, or is engaged in preparation for or planning of a terrorist act,
or has in his or her possession any document or other thing connected to such
preparation or planning, then the AFP member can arrest that person. This then triggers a number of powers, as
well as accountability and review mechanisms, under the Crimes Act.[606]
6.26
The
Australian Privacy Foundation (APF) submitted that '(t)he extent to which the
provisions not only in Schedule 5 but also in various other schedules to the
Bill...are 'new' or differ from existing powers is not clear'.[607] Further:
If they are different,
then this must be better justified. What is
clear is that the powers will apply to a much wider range of individuals,
including those who are not even suspected of criminal offences. There must be
more debate about the proportionality of applying these powers to such people.[608]
6.27
In a
joint submission, the Commonwealth Ombudsman and the Inspector-General of
Intelligence and Security pointed out that the proposed 'powers to stop, search
and require identification...may cause disagreement or confrontation when
exercised, leading to complaints'.[609]
Broad and random nature of the
powers
6.28
Many submissions and witnesses criticised the extremely
broad nature of the proposed powers in Schedule 5, as well as their likely
random application. There were also strong criticisms of the lack of statutory
criteria to regulate and standardise the exercise of the powers, and the lack
of connection of the power to the alleged 'terrorist act'. Given that the
proposed powers allow police to stop, question and search persons where there
is only the possibility of an offence
being committed (or about to be committed), arguably the current threshold for
the use of such coercive powers would be lowered considerably.[610]
6.29
PIAC contended that '(t)he proposed powers are
exercisable on the basis of unacceptably wide discretions that are a recipe for
inconsistent and arbitrary policing practices'.[611] In particular, it noted the breadth
of some of Schedule 5's key provisions:
The repeated use of the
word 'might' in clause 3UD(1)(a) is likely to encourage the exercise of the
powers on the basis of vague possibilities rather than concrete evidence. The
fact that the powers are exercisable by a broad spectrum of policing
authorities raises the potential for inconsistent
application of the 'reasonable suspicion' test across different police forces.
Of even greater concern
is clause 3UB(1)(b), which will allow the powers to be triggered simply because
a person happens to be in a 'prescribed security zone' in a Commonwealth place.
In these circumstances, not even a reasonable suspicion test applies. Anyone
can be stopped, searched and questioned, simply because they happen to be in
particular area at a particular time. This is an unacceptable interference
[with] the right to freedom of movement and
the right to privacy and has the potential
to lead to inefficient policing practices and to undermine trust and confidence
in the police. We note that police in the United Kingdom have been criticised for using similar
powers too widely.[612]
6.30
Mr Patrick
Emerton and Mr
Joo-Cheong Tham
were of the view that '(r)ather than increasing the safety of Australians, the
vesting of broad discretionary police powers which are not subject to effective
review is a recipe for discrimination and racial or ethnic profiling, with all
the [related] adverse consequences'.[613]
6.31
The NSW Council for Civil Liberties argued that the
proposed powers are excessive. It suggested that use of the powers in a
'prescribed security zone' is particularly offensive, given that they are not
contingent on a requirement of reasonable suspicion:
They give police
extraordinary powers to search, seize and demand details from anyone in
a prescribed security zone – without the requirement of reasonable suspicion.
So if the Attorney-General were to declare Sydney International airport a
prescribed security zone, then everyone in the airport could be searched, have
items seized and their personal details recorded. The requirement of reasonable
suspicion should not be removed. It is not a crime simply to be in
a public Commonwealth place.[614]
6.32
The
Federation of Community Legal Centres (Vic) expressed their concerns as follows:
Police would also be
offered very broad discretion in that, pursuant to the amended Section 3UB(a)
they need only suspect on reasonable grounds that a person ‘might have
just committed, be committing or be about to commit such an act. Both the
concept of ‘reasonable suspicion’ and the term ‘might’ give rise to the
extremely broad discretion here. As a result, it is almost certain that these
powers will cause far more people to come into contact with police, including a
majority who do not pose any threat to the community. This is particularly
concerning given the humiliating impact public police searches and questioning
may have on people that are subject to this kind of policing. The discretionary
nature of these powers is such that there is also the danger that the powers
will be misused. The Federation is concerned that these powers will be used for
collateral purposes that are not aimed at apprehending criminal offenders, for
example to gather intelligence or for harassment or targeting of individuals.[615]
6.33
In a
joint submission, the Bar Association of Queensland and the Queensland Law
Society noted the lack of safeguards contained in Schedule 5 to counteract the
expansion of the powers:
Safeguards relating to
the conduct of the search including a prohibition upon the search taking any
longer than is reasonably necessary or that a person is always given the
opportunity to open a search item before using force to open it or damage it.
No specific consequences are provided for failing to comply with the condition
of the search.[616]
Impact on particular groups
6.34
Many submissions and witnesses argued that the measures
taken in the Bill in relation to stop, search, question and detain powers will
inevitably lead to ethnic, religious or racial profiling by exposing minority
communities to over-policing and arbitrary interference. In particular, there
were serious concerns that the Muslim community would be unfairly targeted.
6.35
For example, Mr Joo-Cheong
Tham and others argued that discriminatory
application of the powers was highly likely:
...the extension of AFP
powers to provide a pre-emptive authority based on what someone 'might' do,
risks the discriminatory and blanket application of stop and search powers.
Stop and search powers operate at the level of 'street policing' and have a
history of controversial application, exposing particularly vulnerable minority
communities to overpolicing and arbitrary interference. Research demonstrates such powers are
routinely used for purposes other than 'apprehending criminals', such as
gathering intelligence, harassment and punishment along ethnic lines. Heavy-handed
forms of policing such as the regular use of stop and search powers,
particularly where used in conjunction with racial profiling have proven
counter-productive to terrorism investigation through the alienation of
communities [citing C Cunneen, Conflict,
Politics and Crime, Aboriginal Communities and the Police (2001); J White, Defending the Homeland, Domestic
Intelligence, Law Enforcement and Security (2004)].[617]
6.36
Importantly:
'Reasonable suspicion'
as a trigger for the exercise of police power represents a powerful discretion
to determine levels of action and to interpret law. Coercive powers, together
with increased discretionary power, give the police an extended freedom to
characterise a situation as giving rise to a 'terrorist offence'. Given the
exceptionally broad range of activity, which can fall within a 'terrorism'
offence, these extended police powers are likely to increase police interaction
with those who are not a threat to security. In such circumstances, the discretionary
aspect of increased police power presents a formidable threat to basic
freedoms.[618]
6.37
The Federation of Community Legal Centres (Vic)
stated that it too was 'worried about the discriminatory use of the powers in
prescribed security zones, where no reason for exercising the powers to stop,
search and question will be required'.[619]
Further:
There is already a
disproportionate focus on the Muslim community by the media, law enforcement
agencies, intelligence gathering agencies and the broader community whenever
the issue of terrorism is raised. We are concerned that the Muslim community
will be subject to further disproportionate and arbitrary police interference
as a result of these powers. Police targeting of the Muslim community is
clearly an undesirable outcome and may even have a counter-productive effect
with respect to criminal investigation, insofar as an alienated community is
less likely to be cooperative with police investigations. Most importantly,
however, over-policing along racial or religious lines that is facilitated by
legislation amounts to officially sanctioned racial and religious
discrimination. It also has the danger of perpetuating and even exacerbating racial
and religious prejudice in the broader community. This should be something that
our society is working to counteract, rather than enacting laws that are
inherently prone to discriminatory application such as these.[620]
6.38
In a
similar vein, Dr Philip Claxton argued that:
[The random stop and
search powers coupled with the Minister's discretion to declare an area a
'prescribed security zone' mean that] the police...need not even reach the very
low threshold of suspecting that a terrorist act "might" be
committed: the scope for widespread abuse of those seen as suspect...will be most
acutely felt by those seen as terrorists, and the danger of racial and
religious stereotyping again raises its ugly head.
This in turn will widen
the gulf between Muslims and other sections of Australian society as Muslims are
forced to become the feared "other": this will inevitably lead to a
backlash against ordinary Muslims personally who will be seen as the cause of
the current problems Australia is currently touted as suffering from. At
particular risk are Muslim women who are visibly Muslim and who will inevitably
be subjected to the indignity of a bodily search which requires the headscarf
to be removed to be searched in public - there is currently no provision which
requires the search to take place in private. Again this will further alienate
the Muslim community and serve to marginalise even moderate Muslims.[621]
6.39
Ms Agnes
Chong from AMCRAN also highlighted the
potential impact of the Bill on the Muslim
community, with particular reference to its weakened safeguards:
The problem with the weak safeguards [in the Bill]
is that they increase the chance of innocent people being caught by the bill.
And, let us face it, the reality is that these people will be likely to be
Muslims. The weaker test allows for the spectre of racial profiling, whether
official or unofficial, to arise. Each miscarriage of justice and use against
innocent people would cause ripples of fear and disempowerment through the
Muslim community. More dangerously, it also undermines the spirit of cooperation
that must exist between Muslims and the wider community if terrorism is to be
fought.[622]
6.40
Dr Waleed
Kadous from AMCRAN commented on the message
the Bill may send to the Muslim community at
large:
The important thing to realise is that legislation is not just about
law; it is about social messages. And the message that these laws send out to
the community is that Muslims are to be suspected, whether that is intended or
unintended. I had a conversation with a senior member of the AFP recently. I
discussed with him the possibility that, under these new laws, racial profiling
may happen. He assured me that it is not within his power to guarantee that
racial profiling will not happen. Similarly, it is not within my power to
guarantee that the introduction of these laws will not lead to people
susceptible to radical ideas falling for them as a consequence of what they see
as being railroaded, marginalised, by, for example, not being able to say what
they really think on a particular issue.[623]
6.41
The
Islamic Women's Welfare Council of Victoria expressed concern that the stop and
search powers would unfairly target certain members of the Muslim community:
We are concerned that
this will lead to racial profiling and that Muslims are more likely to be
searched. Young Muslim men are already vulnerable to racial profiling.
Furthermore, it may cause community backlash against Muslims as people would be
likely to blame them for any inconvenience they experience because of an area
being locked down as a "security zone".[624]
6.42
Further:
There is also a
particular issue for women who wear hijaab (head scarf), niqaab and chador
(traditional Islamic dress which also covers part of/or full face) who might be
requested to remove their hijab/niqaab/chador as part of a search. There is no
requirement that the search be conducted in private and this will be a source
of great distress for women. We believe that fear of random stop and search
powers; will further isolate women for fear of being searched publicly or being
searched by male officers. It also appears that Muslim men are more likely to
be stopped in relation to these matters (this has been demonstrated by the fact
that all the raids in relation to terrorism have been conducted on Muslims) and
therefore, their wives, daughters or other women who might be accompanying them
are again vulnerable to the policing measures targeting Muslim men.[625]
6.43
Several
other submissions also expressed concern at the particular impact of the stop
and search powers on Muslim women, including the lack of privacy safeguards in
the Bill and the lack of a requirement that searches
be carried out by police officers of the same sex as the person being searched.[626] The National Children's and Youth
Law Centre, and the Hon Alastair Nicholson and others, noted the possible impact of the powers on young people,
particularly young people of ethnic background or appearance.[627] PIAC expressed concern that 'the
proposed police questioning powers will impact adversely on marginalised and
vulnerable social groups', including the homeless, the mentally ill, and those
with intellectual disabilities.[628]
6.44
PIAC also pointed out that the use of similar police
powers in the UK
is subject to independent oversight:
Unrestricted coercive
powers of the type envisaged have the potential to encourage racial profiling
and discrimination. There is a danger that decisions by front-line police as to
who they will stop, search and question will be affected by commonly held
prejudices and stereotypes, eg, that Muslims are terrorists. This may result in
particular ethnic, cultural and religious groups being targeted in the exercise
of the powers, eg, young men of Arab or Muslim appearance, women wearing the
hijab. There is evidence that similar stop and search powers in the United Kingdom have impacted disproportionately on people
of colour. The United Kingdom Government has responded
to concerns about racially discriminatory application of its anti-terror laws
by requiring police to keep records of each stop and search that they carry out
and by setting up a Stop-and-Search Action Team, which includes community
representatives, to review how the powers are being exercised and to produce a
guidance manual for all police forces.[629]
Highly discretionary nature of the
power to declare a 'prescribed security zone'
6.45
Some submissions objected to the highly discretionary
nature of the Minister's power to declare a 'prescribed security zone' under
proposed section 3UJ.
6.46
In this regard, PIAC submitted that:
There are no guidelines
in the Act as to the criteria that have to be satisfied before a place is
declared a prescribed security zone, and no requirement that the Minister make
his or her decision on the basis of reliable intelligence or information.
Although a procedure is set out requiring the Minister to publish the declaration,
the declaration remains effective notwithstanding a failure to follow this
procedure. Wide, unfettered discretion of this nature
is unsatisfactory, given the potential adverse implications that the
declaration of an area as a prescribed security zone may have for people who
live or work in the area.[630]
6.47
Mr Patrick
Emerton and Mr
Joo-Cheong Tham
expressed a similar view:
Given the breadth of
the definition of 'terrorist act', the broad grounds on which the Minister may
make a declaration of a place as a 'prescribed security zone', and the lack of
any requirement that the Minister’s declaration be based on reasonable grounds,
means that the circumstances in which these powers are able to be invoked may
be very broad.[631]
6.48
In its
joint submission, the Bar Association of Queensland and the Queensland Law
Society pointed out that the 'effectiveness of publication [of the Minister's
declaration of a 'prescribed security zone' under proposed section 3UJ in the
Gazette and on the Internet] seems questionable as a failure to properly
publish the declaration has no consequences whatsoever'.[632]
Seizure of items related to 'serious offences'
6.49
The
committee received some evidence which was critical of the proposed power to seize
items for 'serious offences' (non-terrorism offences), particularly in light of
the stated purpose of the Bill to
prevent and combat terrorism.
6.50
The
Federation of Community Legal Centres (Vic) argued that this part of Schedule 5 reaches
beyond the scope of the Bill,
effectively amounting to a misuse of anti-terrorism legislation to increase
police powers with respect to ordinary crime:
In our view, the
inclusion of ‘serious offences’ in Schedule 5 is inexplicable and exceeds the
scope of this Bill. Schedule 5 provides that, when conducting searches
for a terrorism related item, police are permitted to seize and potentially retain
any ‘serious offence related items’ found. A serious offence is specifically not
a terrorism offence, rather, this term includes drug offences and those relating
to fraud. This would seem to be an attempt to arm police with further powers to
assist in policing non-terrorism offences via legislation purportedly aimed
only at countering terrorism – an extension of police powers by stealth. We
submit that any powers relating to serious offences are clearly misplaced in this
Bill. We are concerned that the Government is
exploiting public concerns regarding terrorism to extend police powers with
respect to ordinary crime. Any increased police powers with respect to serious
offences should be removed from the Bill.[633]
6.51
Mr Michael Cordover made a similar argument:
Search powers may be
used in order to obtain evidence to be used in non-terrorism-related trials.
This is a misuse of the additional powers being granted in the name of national
security.[634]
6.52
The NSW
Council for Civil Liberties agreed:
The provisions...extend
beyond the professed purpose of the Bill (to prevent terrorism) and will apply to
all federal indictable offences. There is no justification for extending these
extraordinary powers to non-terrorist offences.[635]
6.53
At one
of the committee's hearings, Mr Cameron Murphy, from the NSW Council for Civil Liberties, expanded on its concerns with
respect to the search and seizure provisions of Schedule 5 (and the notice to
produce regime under Schedule 6, discussed in detail later in this chapter):
It effectively
dispenses with any need for a search warrant. That is what this does. It is so
broad that you can effectively conduct a search through search and seizure
powers or a notice to produce and obtain anything you like. It is not limited
in that sense to terrorism offences. It fundamentally changes the protection
that the law has provided for people’s privacy. It eliminates it. Searches can
take place and you will not need a warrant any more. You can simply ask someone
to produce anything that you wish in relation to an investigation. I have said
in the past that it allows ordinary criminal matters to suddenly morph into
terrorism investigations. If you cannot obtain a search warrant in a tax evasion
matter or some other criminal matter then suddenly it can become a terrorism
investigation and you can obtain the evidence that way. That is the real
danger.[636]
Need for independent oversight of
the powers
6.54
Some submissions noted that, unlike the situation in
the UK where
the exercise of similar police powers is subject to independent oversight, the Bill
does not contain any accountability mechanisms.
6.55
Liberty Victoria
argued that:
The grant and
subsequent exercise of such extraordinary stop and search powers require a
system of comprehensive independent auditing of the use of the powers. This is
particularly so given there is absence of a Bill of Rights to provide a
constitutional or legislative framework against which the grant and exercise of
the powers can be judged. However, even where a Bill of Rights is in place the
need for regular independent random auditing of the exercise of the powers is
necessary to maximize the protection of the public from the abuse of power.[637]
6.56
Similarly, the National Children's and Youth Law Centre
argued that, due to the strong possibility of racial profiling:
...the exercise of those
policing powers requires special protection and review. Mechanisms for
individual and systemic complaint, review and redress are required. Such mechanisms
must be public, independent and externally accountable.[638]
Justification of the proposed powers
6.57
The committee heard evidence from the AFP and the
Department which provided some background to, and rationale for, the Bill.
The committee also took the opportunity to question the AFP and the Department in
relation to some of the specific concerns raised by submissions and witnesses
about the new police powers in Schedule 5.[639]
6.58
A representative from the AFP told the committee that
the Bill addresses limitations in the current
counter-terrorism legislative framework which have become apparent recently. This
includes:
...the need for the AFP
to be able to protect the community where there is not enough evidence to
arrest and charge suspected terrorists but law enforcement has a reasonable
suspicion that terrorist activities may be imminent or where an act has
occurred. Terrorism is different from other offences that the AFP investigates
in that its outcomes are much more unpredictable and potentially catastrophic.
The AFP needs appropriate powers to respond to that threat. These powers will
be used judiciously and cautiously to protect the community.[640]
6.59
The
representative submitted further that:
What we are confronted
with here is a new environment and new terrain where we are being tasked by the
community to prevent terrorism from occurring in this country. As part of our
operational activity we are seeing things occurring, we are highly disturbed by
what we are seeing and we are having to exercise judgments which are at the
very upper end of risk management to ensure that we can act before a terrorist
act occurs. This is a very onerous responsibility for the security agencies and
law enforcement. What we need are the tools to be able to intervene at an
earlier period of time without having to wait until all of the evidence may be
in place because, as we get towards that particular point, that becomes an
inexact science. The risks to the community of something catastrophic happening
are very real. This suite of measures is not a grab for power...and it is not
something that the AFP does in any way without absolute consideration and great
thought. But, from our operational experience, it will allow us to at least
have a chance of preventing such activity.[641]
6.60
The representative provided specific justification for
the increased stop, search, question and seize powers as follows:
...the London and Madrid bombings in particular demonstrate the need
for police to have the appropriate powers to ensure that areas of mass
gathering and public transport facilities are safe. The proposed extended
powers are necessary to increase the AFP’s capacity to prevent terrorist
attacks and to respond effectively to attacks in a way that is consistent with
the police in other jurisdictions. The AFP presently does not have the power to
stop a person who may be acting suspiciously and ask basic questions as to
their identity and purpose nor can the AFP search any suspicious items that a
person may be carrying.[642]
6.61
A
representative from the Department provided the committee with an explanation of
the reason why seizure of items related to serious offences is included in
Schedule 5:
Where it comes in is
that you have to be doing the stopping and questioning and so on in relation to
a serious terrorism offence. However, if you find something when you are doing
that questioning that relates to a serious offence then there are some
provisions that deal with what you may do with that evidence.[643]
Powers to stop, question and search persons in relation to terrorist acts –
the committee's view
6.62
The committee notes the concerns raised in submissions
and evidence with respect to the proposed powers to stop, question, search and
detain persons in relation to terrorist acts; and the power to seize items,
including those related to serious offences. The committee shares some of these
concerns. However, at the same time, the committee recognises the operational
imperatives driving the measures contained in the Bill and is cognisant of the
fact that strong police capabilities are essential to respond to, and combat,
the threat of terrorism.
6.63
In line with these views, the committee believes that
certain safeguards could usefully be included in Schedule 5 to counteract the
potentially broad and arbitrary reach of the proposed powers. The inclusion of several
statutory safeguards and checks on the use of the powers will serve to better
protect civil liberties, such as the right to privacy. In the committee's view,
this would provide a more balanced approach without impacting unduly on the
exercise of the powers.
6.64
The committee considers also that there is a need for
independent oversight of the powers. Therefore, the committee recommends that
the Commonwealth Ombudsman be tasked with comprehensive oversight powers of the
use of the proposed powers in Schedule 5. The committee emphasises the
importance of, and strongly encourages, effective engagement of the
Commonwealth Ombudsman in the accountability process.
6.65
The committee also recommends that the sunset clause
applicable to Schedule 5 be amended to apply for a period of five years, in
light of the stated purpose of the Bill as a
specific and exceptional response to the threat of terrorism.
Recommendation 33
6.66
The committee recommends that all police who exercise
the new stop, question, detain, search and seizure powers under Schedule 5 of
the Bill be required to undergo comprehensive
training as to their obligations under Commonwealth and state and territory
discrimination legislation.
Recommendation 34
6.67
The committee recommends that proposed section 3UD of Schedule
5 of the Bill be amended to include a
requirement that, as far as possible, body searches are to be conducted in
private.
Recommendation 35
6.68
The committee recommends that proposed section 3UD of Schedule
5 of the Bill be amended to include a
requirement that body searches be carried out by police officers of the same
sex as the person being searched.
Recommendation 36
6.69
The committee recommends that Schedule 5 of the Bill
be amended to include a requirement that all police forces keep comprehensive
records in relation to any exercise of the proposed stop, question, detain,
search and seizure powers in Schedule 5.
Recommendation 37
6.70
The committee recommends that the Commonwealth
Ombudsman be tasked with comprehensive oversight of the use of the proposed
stop, question, detain, search and seizure powers under Schedule 5 of the Bill.
Recommendation 38
6.71
The committee recommends that the sunset clause
applicable to Schedule 5 be amended to apply for a period of five years.
Recommendation 39
6.72
The committee recommends that the Bill
be amended by inserting an express requirement for a public and independent five
year review of the operation of Schedule 5.
Power to obtain information and documents – outline of key provisions
6.73
Schedule
6 amends the Crimes Act to introduce powers to permit authorised AFP officers
to directly issue a notice to produce information and documents from operators
of aircraft or ships (for example, in relation to persons or things on board), which
relate to the doing of a 'terrorist act' (whether or not a 'terrorist act' has
occurred or will occur) (proposed section 3ZQM); and to a person or
organisation who may have information or documents relevant to the
investigation of a 'serious terrorism offence' (proposed section 3ZQN).
6.74
Schedule
6 also allows for a Federal Magistrate, on application by AFP officers, to
issue a notice to produce documents which will assist in the investigation of a
'serious offence' (offences punishable by imprisonment of 2 years or more, not
including serious terrorism offences) (proposed section 3ZQO). The power to
issue such a notice is conferred on a Federal Magistrate in a personal capacity
and not as a court or member of a court (proposed section 3ZQQ).
6.75
The
provisions allowing for notices to produce to be issued in relation to the
investigation of serious terrorism offences and serious offences are aimed at
organisations (such as financial institutions, utilities providers and
telecommunications carriers) which may have in their possession or control
documents such as transaction records, financial accounts and telephone records
(proposed section 3ZQP). These might be relevant to determining, for example:
-
whether an account is held by a specified person
with a specified financial institution, and details relating to the account (proposed
subsection 3ZQP(a));
-
whether a specified person travelled or will
travel between specified dates or specified locations, and details related to
the travel (proposed subsection 3ZQP(d)); or
-
who holds a specified telephone account and
details relating to the account (proposed subsection 3ZQP(h)).
6.76
These provisions significantly widen the current powers
of the AFP in relation to seizing documents relating to serious offences
without a warrant.
6.77
Proposed
section 3ZQR provides that documents requested under a notice given under
either proposed section 3ZQN or 3ZQO must be produced. A person is not excused
from producing a document on the following grounds (proposed subsection 3ZQR(1)):
-
production
of the document would contravene another law;
-
the
document might tend to incriminate the person, or expose them to a penalty or
liability;
-
production
of the document would breach legal professional privilege, or any other duty of
confidence (that is, legal professional privilege and other duties of
confidence are waived in relation to documents which are the subject of a notice,
but only to the extent that a person is not excused from producing the
document); or
-
production
would otherwise be contrary to the public interest.
6.78
However,
proposed subsection 3ZQR(2) provides an immunity to ensure that self-incriminatory
disclosures cannot be used against the person who makes the disclosure, either
directly in court or indirectly, to gather other evidence against the person.
The only exception to this immunity relates to proceedings under sections 137.1
and 137.2 (False and misleading information and documents), and 149.1
(Obstruction of Commonwealth public officials) of the Criminal Code.
6.79
Failure
to comply with a notice to produce documents or information under proposed
sections 3ZQN or 3ZQO is an offence punishable by a fine of $3300 (proposed
subsection 3ZQS).
6.80
Proposed section 3ZQT creates an offence
relating to the disclosure of the existence or nature of a notice issued under proposed
sections 3ZQN or 3ZQO. The penalty for breach of the non-disclosure provisions
is $13200 or 2 years imprisonment or both. There are some exceptions to the
non-disclosure provisions, including disclosure to obtain a document required
by the notice; disclosure for the
purposes of obtaining legal advice or representation in relation to the notice;
or disclosure in the course of legal proceedings.
Power to obtain information and documents – key issues
6.81
Key issues raised in the committee's inquiry in
relation to the power to obtain information and documents include:
-
the broad nature of the power and lack of
accountability safeguards;
-
the potential impact of the notice to produce
regime on the duty of journalists not to reveal their sources; and
-
the application of the regime to investigation
of serious (non-terrorism) offences.
Broad nature of the power and lack
of accountability
6.82
Many submissions and witnesses objected strongly to
particular aspects of the proposed notice to produce regime. In particular,
many noted the broad nature of the powers conferred on police by the Bill's
vague statutory criteria, and the lack of associated oversight and accountability
mechanisms.
6.83
For example, Mr David
Bernie from the NSW Council for Civil
Liberties told the committee that the notice to produce regime:
...is probably one of the
clearest provisions in this whole legislation. The police have the power. There
is no problem with the power. They have search warrant power. If they need to
they can do it through the existing search warrant powers. All that is
happening here is the removing of a safeguard. It is effectively removing the
safeguard of having to go and get a warrant. That is what is happening here. It
is not a case of, 'Oh, gee, police need more powers to fight terrorism.' They
have those powers. They can get search warrants. They can get questioning
warrants under the ASIO Act. All sorts of warrants are available. What this is
doing is removing a safeguard—a safeguard that we have always had in common law
countries.[644]
6.84
Mr Cameron
Murphy from the NSW Council for Civil
Liberties noted further that:
It is not difficult for
the police to obtain a warrant in circumstances where there is some evidence or
suspicion of wrongdoing. They can do that quite easily. We are not aware of any
instances where the police have had a problem as part of an investigation.
There is no real justification for this removal of a check and balance at all.[645]
6.85
The Gilbert and Tobin
Centre of Public Law also submitted that the new regime allows the police a
wide-ranging power because, unlike a search warrant (and as it applies to
terrorism-related activities), there is no independent check on its use:
[The regime is] plainly designed to circumvent the usual
procedures for obtaining evidence under a search warrant, which include the
requirements that a magistrate issue the warrant and only when satisfied by
information on oath that there are reasonable grounds for suspecting that there
is, or soon will be, evidence on the premises (Div 2, Crimes Act 1914 (Cth)). The Bill
does not provide the independent safeguard of an issuing magistrate, nor the
additional evidentiary requirement that suspicion be based on information on
oath.[646]
6.86
The Gilbert and Tobin
Centre of Public Law drew an interesting analogy with the notice to produce
powers already conferred on the Australian Securities and Investment Commission
and the Australian Competition and Consumer Commission.[647] However:
The complexity of
corporate entities does not apply in the same way to terrorist offences, so the
rationale for notices to produce in the corporate context cannot be readily
transplanted. While notice to produce powers may be helpful in investigating
terrorism, departing from ordinary criminal investigative procedures (and their
attendant protections for privacy and liberty) is only justifiable if
accompanied by the independent safeguard of an issuing magistrate.[648]
6.87
In evidence, Dr Ben
Saul from the Gilbert
and Tobin Centre of Public Law reiterated the views expressed in its submission,
stressing also that the regime has the potential to interfere with various
types of confidential relationships. Having said that, however, he acknowledged
that the notice to produce regime in the Bill contains
some limitations:
...the Attorney-General
has publicly stated that this process is designed purposely to bypass the
regular search warrant procedure, and so there must be some kind of intention
behind it to make it easier to gather evidence. On the other hand, the notice
to produce is relatively restrictive because it only allows you to gather
certain kinds of fairly limited information, and so on that basis we are not
absolutely against this measure. We do think, however, it should be subject to
the protection of an issuing magistrate. The concern is that the notice to
produce may interfere in legal professional privilege as well as other kinds of
confidential relationships—protection of journalists' sources, for example, and
protection of clients in noncriminal or non-civil proceedings—because, although
the bill preserves use immunity, it does not preserve legal professional
privilege absolutely. Think of refugee cases, for example, where there is no
court proceeding on foot; there is simply an administrative process before the
department of immigration. You have no use immunity there and therefore refugee
lawyers have to effectively dob in their clients.[649]
6.88
PIAC also noted that the regime in Schedule 6 'breaks
from the usual legal processes and protections in relation to the obtaining of
documents relevant to an investigation'.[650]
It observed, with concern, that certain privileges are abrogated under the
proposed regime:
The Schedule also
provides that no privileges apply to permit a person to refuse disclosure of a document.
As such, documents normally protected under legal professional privilege lose
that protection under these provisions. Similarly, it removes the usual
evidentiary protection against a person being required to give evidence that
may 'tend to prove that the [person] has committed an offence against ... an
Australian law'.[651]
6.89
Further:
These processes are a
departure from usual criminal procedures with the absence of the requirement that
such notices be issued under a court’s authority and the absence of any
protection against self-incrimination and a limited protection of legal
professional privilege.
Where there is a risk
of self-incrimination or a claim of legal professional privilege, there ought properly
be a process for these matters to be determined by a properly constituted
court.[652]
6.90
The APF
argued that '(n)o justification has been provided as to why information cannot
be obtained by using existing search warrant provisions, subject to judicial
oversight'.[653] Indeed, it posed a
pertinent question:
If time is a factor,
why not just spend resources on the availability of judges to approve warrants?[654]
6.91
In their submission, Mr
Patrick Emerton
and Mr Joo-Cheong
Tham made similar comments about the broad grounds
for use of the proposed powers:
These powers will be
able to be exercised without any need for a warrant being issued, and without
the involvement or supervision of any judicial or independent authority. Failure
to provide the information or document will be a strict liability offence. There is no express protection of the
privilege against self-incrimination, although this might result from defence
of 'reasonable excuse'. The burden will be
placed on an accused who does not have the information or documents to adduce
evidence of this in his or her defence.[655]
6.92
Similarly to the Gilbert
and Tobin Centre of Public Law, Mr Emerton
and Mr Tham
were mindful of the limitations of the regime. However, in their view, these
limitations were not enough to temper the power:
The Bill limits the documents that are subject to a
notice to produce to various matters including details of financial accounts,
funds transfer, dealings in assets, travel, utility accounts, telephone bills
and residence. Nevertheless, this power gives the AFP the capacity to build up
extensive dossiers of information on individuals or companies that they are
interested in, potentially in secret.[656]
6.93
Mr Emerton
and Mr Tham
pointed out that such capacity is particularly pertinent in the context of
terrorism-related offences:
This is particularly so
in the case of the powers relating to 'terrorism offences', which may be
exercised, and subjected to secrecy, without the supervision of any judicial or
independent authority. Although the AFP's use of this power is stated to be
limited to investigation of terrorism offences, in practice this will be a
difficult constraint to enforce, as the party against whom the demand is made
will not be in a good position to contest the issue simply by virtue of not
having the relevant information. Moreover, if the AFP chooses to impose a
secrecy requirement, the person who is suspected of engaging in a terrorist
offence will have no knowledge that these demands are being made in relation to
their personal or business information. Giving the police such free rein opens
the door to mistakes and abuse.[657]
6.94
Further, the potential for 'secret police dossiers' raises
issues with respect to civil liberties which are exacerbated by the lack of statutory
criteria in the Bill for use, handling and storage of the relevant information
or documents.[658]
6.95
The Federation of Community Legal Centres (Vic)
raised similar issues in the context of application of the regime to passenger
information held by aircraft and ship operators. Specifically, they noted the
lack of sufficient connection between the information or document sought and 'a
terrorist act' under proposed section 3ZQM:
Given the invasion of
privacy involved in the exercise of these powers, we submit that a closer nexus
between the information/document sought and a terrorist act should be required.
It is conceivable that, as currently framed, the Bill empowers the AFP to request an
extraordinarily expansive array of information and documents. As with any
intrusive state powers, these powers should be kept to the minimum required for
their purpose. In this respect, this Bill does not conform to this principle.[659]
6.96
Notably,
in their joint submission, the Commonwealth Ombudsman and the Inspector-General
of Intelligence and Security suggested that, in order to lessen the potential
for disagreement or confrontation, the Bill should be amended to contain:
...some
specification...which would safeguard against extensive "incidental"
collection of information which is contained in documents requested for a
specific purpose, particularly where the material may be of a sensitive nature
(eg medical information).[660]
6.97
The Australian Privacy Foundation (APF) also argued
that proposed section 3ZQT presents 'an unacceptable obstacle to
accountability' since it prevents anyone served with a notice to produce from
informing any other person (other that those involved in responding to the
notice, and the person's own legal advisers).[661]
6.98
The
Office of the Privacy Commissioner (OPC) made some pertinent comments about the
breadth of the proposed notice to produce regime in the context of the Privacy Act 1988 (the Privacy Act). Generally,
the OPC noted that:
The result of this Bill being enacted would be to permit greater
collection of personal information by the AFP including from private sector
organisations, without warrant. While such collection and disclosure would
comply with the AFP’s obligations under the Privacy Act, as it would be
authorised by law, careful consideration should be given to the enactment of
such powers as they may detract from the intent and spirit of the Privacy Act.[662]
6.99
And further:
In expanding the powers
of law enforcement agencies, this Schedule invests a significant degree of
unilateral authority in law enforcement officers going about their required
duties with no corresponding guidance as to how this authority should be
exercised. Specifically, the test required to request documents is: the
authorised AFP officer "believes on reasonable grounds" and the officer
must determine what is "relevant to". There is no obvious guidance on
how these subjective terms should be interpreted, posing the risk that they may
be interpreted broadly. The Office suggests that such powers should be
accompanied by guidance as to how they should be executed.[663]
6.100 The OPC also made some comments in relation
to particular aspects of the proposed regime. In relation to proposed section
3ZQM (the power to request information or documents about 'terrorist acts' from
aircraft or ship operators), the OPC expressed the following concerns:
...there is the potential
for a large quantity of information to be collected from aircraft operators and
operators of cruise liners. As a result, the personal information of large
numbers of individuals who are not the subject of investigations and about whom
there is no cause for suspicion, could be collected. Such an outcome sits
uncomfortably with the notion of necessary collection. It would be preferable
for there to be greater explanation as to how such routine surveillance would
be useful, including whether it is a necessary and proportional response to the
need for greater security.[664]
6.101 Proposed section 3ZQM does not address the
question of how long personal information, once collected, may be retained.
Accordingly:
...an approach which is
consistent with best privacy practice would be to destroy the information once
it is no longer necessary for the purpose for which it was collected,
particularly in relation to the information of people who may not be the subject
of interest to law enforcement authorities.[665]
6.102 The OPC also commented on the breadth of
proposed section 3ZQN (the power to obtain documents relating to 'serious
terrorism offences'):
This would seem to
create a power for the AFP to demand personal information without judicial
warrant that is considerably wider than the power which currently exists. This
section appears to substitute the use of notices in place of obtaining
warrants. It is the Office’s understanding that only the latter are subject to
judicial oversight. The need for this additional power without judicial
oversight is not readily apparent.[666]
Impact on journalists
6.103
In relation to Schedule 6 of the Bill,
the Explanatory Memorandum states that:
Care has been taken to ensure sensitive material can not be
obtained under the new notice to produce regime. Sensitive material held by
health professionals, lawyers, counsellors and journalists is clearly not
caught by the regime. Such sensitive material might be able to be obtained for
the purposes of an investigation through a search warrant.[667]
6.104
Notwithstanding this, the committee received a considerable
amount of evidence from journalists who raised concerns about the possible
impact of proposed sections 3ZQN and 3ZQO on their ability to carry out their functions.
In particular, they were concerned that the proposed regime would effectively
compel them to reveal the identity of confidential sources.
6.105
For example, in its submission, Fairfax
argued that:
The Bill...in effect mak(es) journalists an investigatory arm of
the state, by empowering the AFP to apply for an order requiring any person to
produce documents which may help the investigation of a serious non-terrorist
offence [3ZQO]. How such a provision came to be included in the Anti-Terrorism
Bill 2005 is unclear.[668]
6.106
Fairfax
acknowledged the Explanatory Memorandum's reference to sensitive material held
by journalists not being caught by the operation of the proposed notice to
produce regime. However, in its view, 'the assurances in the E[xplanatory]
M[emorandum] are hollow' since the Bill itself
does not contain any such assurances.[669]
Fairfax expressed
grave concerns that, under the Bill, 'a
journalist cannot refuse to produce a document which is protected by legal
professional privilege or any other duty of confidentiality, including the duty
owed to a confidential source'.[670]
6.107
The Media, Entertainment and Arts Alliance agreed that
'(i)t may have been the intention that journalists not be captured in the new
notice to produce regime but that intention is not reflected in the Bill
itself'.[671] The ABC was also not
convinced that the Explanatory Memorandum alone would provide journalists with adequate
protection:
...the Australian Federal
Police can...apply for an order to produce documents which may assist the
investigation of a serious (non-terrorist) offence. It is difficult to understand
why such a provision in relation to non-terrorist offences should be
incorporated into anti-terrorism legislation. It is noted that section 3ZQP
sets out the type of material that may be subject to a Notice to Produce under
section 3ZQN and 3ZQO and that the Explanatory Memorandum to the Bill confidently asserts that material held by
journalists would not be caught by these provisions. However, this seems far
from certain. It is quite conceivable that a journalist may come into
possession of material that relates, for example, to a person’s financial
transactions, travel or telephone accounts and communications. If so, they
would not, apparently, be immune from a Notice to Produce.[672]
6.108 The ABC also noted that, under the Bill, it is a criminal offence, punishable by
imprisonment for 2 years, to disclose the fact that the ABC or one of its
personnel has been given a notice to produce:
Again, this seems to be
an unreasonable and unnecessary restraint on the media’s ability to provide
news and information in respect of criminal activities and, specifically,
terrorism.[673]
6.109
The Australian Press Council (APC) submitted that:
The Council notes with
concern some elements of the proposed Schedule 6, dealing with the power to
obtain information and documents. In particular, the Council raises the
question of the inclusion in the Bill of Section 3ZQO that deals with power to
obtain documents related to serious offences. Other provisions in this section
deal specifically with information and documents related to terrorist acts. Why
is a section related to ‘serious offences’, which might adversely impact on the
press when authorities seek the surrender of documents they believe to be in a
journalist’s possession, in a Bill
purportedly dealing with terrorism? If such provisions are thought necessary,
they should be introduced separately.[674]
6.110 In relation to the provisions dealing with
serious (non-terrorist) offences, the Special Broadcasting Service (SBS)
objected strongly to their inclusion in the Bill and argued that they should be removed and
dealt with more appropriately in a different context:
The Bill also provides that the AFP can apply to a
Federal Magistrate for an order to produce documents that will assist in the
investigation of a "serious offence", that is, separate to the
provisions relating to a "serious terrorist offence". This provision
is also a matter of serious concern: it appears to go beyond the objects of the
Bill and, its potential impact on the
independence of journalists goes well beyond any justifiable public interest.[675]
6.111
Free TV Australia's submission expressed its view as
follows:
The extension of the AFP's power to obtain documents that may
help the investigation of a serious non-terrorist offence is of serious concern
to Free TV. Clearly such a provision has no place in Anti-Terrorism
legislation. Of similar concern is the AFP's power to require any person to
produce documents based on the suspicion that they may assist in the
investigation of a terrorist offence.[676]
6.112
Moreover, Free TV Australia argued that:
Unlike the corresponding provision in the ASIO Act where the
power of the Director[-]General of Security to seek a warrant requiring a
person to produce records or things which are or may be relevant to
intelligence that is important in relation to a terrorism offence is subject to
qualification, the proposed Bill does not require the notice to produce
documents to be approved by any judicial or other supervising body. Of
particular concern is the absence of protection on the basis of legal
professional privilege or other duty of confidentiality. Free TV seeks the
removal of the AFP's power in relation to non-terrorist offences. In relation
to terrorist offences Free TV requests that the Bill
be amended to require approval of a notice to produce by a judicial or such
body. Further, a carve out for documents protected by legal professional
privilege or any other duty of confidentiality should be included.[677]
6.113
In evidence, Professor
Kenneth McKinnon
from the APC contended that proposed section 3ZQO of the Bill
is of particular concern to journalists:
...clause 3ZQO of the bill...is...very threatening in that it will
allow an AFP person to go into any office and seize any document in pursuit of
an undefined serious crime. I go around the country and speak to editors every
year. I already have examples of state police coming into an editor’s room and
saying, ‘We want that document and we advise you not to publish.’ The editors
do not know what to do. They usually say, ‘If you bring a warrant,’ and so on.
The threatening tenor, supported by a clause of this kind, would be magnified
very considerably.[678]
6.114
Professor McKinnon
argued that specific protections should be included in legislation to enable
journalists to fulfil their ultimate responsibility of keeping the public
properly informed:
We believe that there ought to be a general set of shield
clauses for reporting to the public what is going on, not only about terrorism
but also about every other matter, and that in the Evidence Act there ought to
be a bar on a judge approving counsel requiring a journalist to divulge
sources. These clauses in this legislation add to a general tenor of concern
about getting at the intermediaries to the public being informed. We really
want to diminish those possibilities as far as possible so that there is the
least possible impediment to full reporting to the public. We do not push it as
freedom for newspapers or freedom for journalists; we push it as the public’s
right to know.[679]
6.115
SBS agreed that Schedule 6, as currently drafted, 'does
not adequately address matters such as the public interest, legal professional
privilege and duty of confidence'. It argued further that:
Any provision relating
to the production of documents in relation to terrorist offences should require
judicial approval and an exemption for documents protected by legal
professional privilege or any other duty of confidentiality.[680]
6.116
The Media, Entertainment and Arts Alliance also
contended that the Bill 'strikes at the basis of
news reporting and the principles of freedom of the press'.[681] That is:
The Alliance can see
no demonstrable benefit to be gained by the provisions that will have the
effect of stifling freedom of the press and infringing on freedom of political
communication.[682]
Application of the regime to non-terrorism offences
6.117
As indicated in the previous section, the committee
received a considerable amount of evidence objecting to the application of the
notice to produce regime to serious (non-terrorism) offences (proposed section
3ZQO). Some of these concerns are outlined more fully below.
6.118
The Gilbert and Tobin
Centre of Public Law argued that inclusion of serious crimes in the regime is
inappropriate and unjustified:
We object to the
inclusion of this power in anti-terrorism legislation. The measures in the Bill have been publicly justified as an
exceptional response to the extraordinary threat of terrorism. Extending
special terrorism powers to investigate ordinary crime exploits the
anti-terrorism justification for the Bill to significantly undermine regular criminal
procedure. Exceptional threats are being manipulated to justify measures which
would normally be considered an impermissible intrusion on privacy and liberty.[683]
6.119
In evidence, Dr Ben
Saul from the Gilbert
and Tobin Centre of Public Law again emphasised this point:
Our concern with notices to produce is...that, although this bill
is publicly justified by the government as a counter-terrorism measure, notices
to produce may be available to combat other serious crimes. We think it is
inappropriate for that kind of modification of regular criminal investigative
procedure to take place on the back of a terrorism bill.[684]
6.120
The APF were extremely critical of the application of
the regime to non-terrorism offences:
Why is the government
dealing with this in the context of the rushing-through anti-terrorism
legislation instead of in its hopefully considered response to the Privacy Act
reviews? This is an example of 'a power grab by stealth' i.e. slipping provisions into legislation
that go well beyond the apparent objective of that legislation, to prevent
separate debate about those provisions in the proper context. This smacks of
rank opportunism –- and should be strongly resisted.[685]
6.121
PIAC agreed:
Given the urgency with
which the Parliament is being required to consider extensive changes to the law
to provide, on the Government’s rationale, necessary powers to counter the
terrorism threat, it is not appropriate to include other amendments to the Crimes
Act 1914 (Cth), which should be properly scrutinised
by Parliament for their general affect on the operation of criminal law in
Australia and the proper protections to be afforded to individuals in the criminal
process.[686]
6.122 The OPC made similar observations:
Discussion around the Bill has...focused on the extent to which the new
powers are necessary and proportional as measures to combat the risks posed by
terrorism. The introduction of measures that expand the powers of law
enforcement agencies to investigate other offences seems to fall outside of the
stated purpose of the Bill.
Such measures are likely to have policy objectives distinct from those that
underpin the main provisions of the Bill relating to terrorist activity and should
be able to be separately scrutinised and pursued through stand-alone
legislation.[687]
6.123 In a detailed submission on Schedule 6 of
the Bill, Mr Kenneth Kuhlmann queried the extension of the proposed notice to produce regime to
non-terrorism offences:
The government policy
objectives and the need for this particular extension of police powers is not
addressed in the Bill's Explanatory Memorandum (EM). In this area
one could read the EM as being disingenuous and less than informative on the
effects of this provision...
To my knowledge no
Minister of the Government has raised this matter in public discourse and the
need to apply these far reaching powers to law enforcement generally has not
been the subject of public debate...[688]
6.124 Mr Kuhlmann also made a noteworthy observation:
It is reasonable to
assume that public attention to the detail of this Bill has been directed to the substantial
terrorism provisions and that the single section to which I refer has simply
passed unnoticed. It is also fair to say that the community generally is
completely uninformed about this proposed section and its possible
consequences.[689]
6.125 Moreover, Mr Kuhlmann pointed out that a significant feature of the Bill is the power to order production of
documents or information kept in electronic form. He argued that the ultimate effect
of the notice to produce regime in this context may be 'the establishment of
secret systems of monitoring or ongoing surveillance of individuals'.[690] While this might 'be considered
necessary to deal with an immediate terrorist threat', it remains to be seen 'whether
such powers should be in place for all serious offences'.[691] Arguably this 'is a matter which
deserves full disclosure to the Australian community in preparation for serious
and measured consideration', particularly in light of the fact that 'there is
no sunset provision in relation to these powers; no judicial review; and no
mechanism for Parliamentary oversight'.[692]
6.126 The Federation of Community Legal Centres (Vic) expressed concern that the disclosure
offences under proposed section 3ZQT apply equally to notices to produce for
terrorism-related offences and for notices to produce relevant to the
investigation of a serious offence:
The justification for
secrecy provisions and disclosure offences has consistently been stated to be
to protect sensitive information relating to matters of national security. It
is therefore unjustifiable that a disclosure offence pertains to a serious offences
notice to produce.[693]
6.127
The NSW Council for Civil Liberties concurred with these
views, and pointed out that the effect of the extension of the power to serious
offences is even more pronounced because the relevant provisions are not
subject to a sunset clause:
These non-terrorism powers will remain in force for more than
ten years. If the information and documents [are] sought from the person under
suspicion, then any material produced should not be admissible in a court of
law. Otherwise, the right to silence would be undermined.[694]
6.128
PIAC pointed
out that, since the power to obtain documents relevant to the investigation of
a serious offence is to be issued by a Federal Magistrate on the evidence in
his or her personal capacity (as opposed to 'as a court or a member of a court'),
issues of constitutionality may also be raised.[695]
Justification of the proposed powers
6.129 The Department and the AFP provided the
committee with arguments in support of the proposed measures in Schedule 6.[696] A representative from the Department
characterised the notice to produce regime in the following way:
The power to obtain
information and documents where they are related to a terrorism offence is
properly characterised as an emergency type power because it is about a
terrorism offence. However, this second leg, which is about obtaining documents
in relation to serious offences, is less of an emergency power. In fact, it has
a magistrate authorising the issue of this notice, so it is more of a general
criminal justice type aid.[697]
6.130 With respect to the extension of the notice
to produce regime to serious offences, he stated that:
I guess there is a
connection in the sense that some of the serious offences in here can be mixed
up with some of the terrorism offences. However, to answer the question very
honestly, the emergency power component really is about the terrorism offences
rather than these offences. These powers are more about enabling the people who
have these documents to have some sort of reasonably accessible legal authority
to hand the documents over to the police. The documents cannot be used against
the person who hands them over, so you could not use these powers effectively
to target someone who had the documents. You would have to get a search warrant
in that case. There is no way that you would be able to use this for all the
sensitive stuff that you would think of—medical records and stuff like that.
This is a limited class.[698]
6.131
A representative from the AFP presented its view that
the proposed notice to produce regime is a necessary tool to assist in enhancing
its operational capacity to combat terrorism:
With regard to notices
to produce, the AFP believes that notices to produce are necessary to
facilitate essential and basic inquiries related to the investigation of a
terrorist and other serious offences, such as confirming the existence of an
account; account holder details, including residential address; account
history; and payment details. The British police have such a power, which was
invaluable during the response to the London bombings to identify the suspected
terrorists and verify their movements and associations at a very early and
critical stage. In the past the AFP would have benefited from having these
powers, in particular in relation to identifying potential terrorists
travelling to Australia. The AFP believes that a notice to produce
power is necessary to provide enough certainty to the private sector to assist
the AFP in all circumstances.[699]
6.132 The representative continued:
Some organisations have
been reluctant, or have refused, to provide information requested by the AFP
under the national privacy principle No. 2. A notice to produce would alleviate
these problems. As the existing alternative is seeking search warrants to
access information that firms are able to disclose under the NPPs, the national
privacy principles, during a terrorist event there could be insufficient
evidence on which to ground such a warrant.[700]
6.133 In response to questioning by the committee
with respect to extension of the notice to produce regime to serious
(non-terrorism) offences, the representative of the AFP provided the following
explanation:
It is an issue for us that
has been on the agenda for quite some period of time. We have been in regular
discussions with the Attorney-General’s Department. But what we are
progressively seeing, as I think I indicated in my opening remarks, is that,
particularly in the corporate sector, where information is available and able
to be released, there are businesses and entities that are unsure of their
legal standing. We are finding more and more reluctance to release information
to the AFP, which can be legitimately released in these instances. We are also
finding that businesses, companies and corporations are effectively looking for
some legal cover, some legal protection, for abiding by the relevant privacy
principles. So we are seeing more and more a need for such a notice to produce.[701]
6.134 Further:
Might I say that
notices to produce are not new. The committee may well recall the Proceeds of
Crime Act, where there are notices to produce in such activity. And, of course,
a range of other agencies, both state and federal, have notices to produce, to
facilitate their investigational activity. So, particularly when the issue of
notices to produce was being actively put forward as something that was
required in the terrorist context, it made absolute sense to the AFP and the
department that this particular bill was the appropriate forum in which to move
those forward.[702]
6.135 The representatives reminded the committee
that, where the notice to produce relates to a serious (non-terrorism) offence,
a Federal Magistrate must issue the notice. Moreover, 'the evidence would need
to be sworn'.[703]
6.136 The representatives also emphasised that the
process of obtaining a search warrant is often not appropriate, nor
practicable:
Often in the early
stages of investigation there is physically not enough information to ground a
search warrant. Often you find yourself—if I can put it in the colloquial—in a
chicken and egg situation. You need to find some base information and look at
that information, which then might be the basis on which you could ground
further warrants or investigative processes.[704]
6.137 The Commonwealth Ombudsman and the
Inspector-General of Intelligence and Security were not entirely satisfied with
the AFP's central justification for the application of the notice to produce
scheme to serious offences. While maintaining that they were 'not in a position
to question the need for notices to produce in relation to terrorism offences',
they suggested that 'further consideration be given to allowing this capacity –
as currently drafted – to be used in relation to other serious offences as
proposed in s 3ZQO'.[705]
6.138 The
Commonwealth Ombudsman and the Inspector-General of Intelligence and Security
argued that fishing expeditions were still possible under proposed section
3ZQO:
The justification given
by the Deputy Commissioner suggests that in many instances it would be
sufficient for a notice to seek "information" rather than a "document"
or "documents". The latter are likely to contain some extraneous and
possibly sensitive information. While the proposed s 3ZQP attempts to narrow
the types of documents which can be sought (but in the case of at least
proposed (i) and (k), not successfully in our view), there is still the
potential to encourage "fishing" or "trawling".[706]
6.139 The
Commonwealth Ombudsman and the Inspector-General of Intelligence and Security pointed
out that proposed section 3ZQM allows an authorised AFP officer to obtain
either 'information' or 'documents' from the operator of an aircraft or ship,
but proposed section 3ZQO refers only to 'documents'.[707] They suggested amendments to
Schedule 6 in the following terms:
-
proposed
section 3ZQO (and perhaps proposed section 3ZQN) should include the capacity
for a notice to require the production of either information or of documents;
-
proposed
subsection 3ZQO(2) should specifically require the Federal Magistrate to
include in his or her considerations whether:
-
it is
appropriate that the notice require the production of 'documents' rather than 'information';
and
-
in
cases where documents are sought, whether the source and documents nominated
are the most appropriate ones for obtaining the information of relevance to the
investigation.[708]
Power to obtain information and
documents – the committee's view
6.140
The committee acknowledges the significant level of
concern raised throughout the course of its inquiry in respect of Schedule 6 of
the Bill. However, again, the committee
recognises the operational objectives behind the Bill
and expresses strong support for the provision of extraordinary powers to help
combat an extraordinary threat. Therefore,
after careful consideration, the committee does not consider that the concerns
raised warrant rejection or significant amendment to Schedule 6.
6.141
Nevertheless, the committee notes the evidence it
received with respect to Schedule 6's abrogation of legal professional
privilege and other duties of confidence, including the duty of journalists not
to reveal confidential sources. The committee agrees that legal professional
privilege and other duties of confidence should be preserved absolutely in
respect of any documents or information sought under the notice to produce
regime in Schedule 6. This aligns with the committee's view in relation to
legal professional privilege in the context of the preventative detention
regime.[709]
6.142
The committee also agrees with the Commonwealth
Ombudsman and the Inspector-General of Intelligence and Security's suggested
amendments to proposed section 3ZQO which would limit the scope of the notice to produce regime for
serious (non-terrorism) offences in order to protect the capture of extraneous and possibly sensitive
information.
6.143
Further, the
committee acknowledges, and agrees with, comments and suggestions by the OPC in
relation to the expansion of the powers of law enforcement agencies to collect
and use personal information under Schedule 6. The committee notes that similar
arguments could also apply to Schedule 5 and Schedule 8 (enabling the Minister
to determine a code regulating and authorising the use of optical surveillance
devices at airports and on board aircraft by aviation industry participants) of
the Bill. Specifically, the committee is mindful that these powers provide a
significant degree of unilateral authority in law enforcement officers (and
others), with no corresponding statutory guidance as to how such authority
should be exercised. The committee agrees that such broad powers should be
accompanied by some guidance as to how they should be executed and recommends
that best practice procedures be developed in this regard.
6.144
The committee is also of the view that the Bill
be amended to include a sunset clause of five years applicable to Schedule 6, in
light of the stated purpose of the Bill as a
specific and exceptional response to the threat of terrorism.
Recommendation 40
6.145
The committee recommends that proposed section 3ZQR of Schedule
6 of the Bill be amended to preserve absolutely legal professional privilege
and other duties of confidence, including the duty of journalists not to reveal
their sources, in respect of any documents or information sought under the
notice to produce regime in Schedule 6.
Recommendation 41
6.146 The
committee recommends that proposed section 3ZQO of Schedule 6 of the Bill
be amended to better protect the capture of extraneous and possibly sensitive information from the scope of the
notice to produce regime for serious (non-terrorism) offences. That is:
-
proposed
section 3ZQO be amended to include the capacity for a notice to require the
production of either 'information' or of 'documents';
-
proposed
subsection 3ZQO(2) be amended to specifically require Federal Magistrates to consider
also whether:
-
it is
appropriate that the notice require the production of 'documents' rather than
'information'; and
-
in
cases where documents are sought, whether the source and documents nominated
are the most appropriate ones for obtaining the information of relevance to the
investigation.
Recommendation 42
6.147
The committee recommends that a set of best practice
procedures and guidelines be developed in consultation with the Office of the
Privacy Commissioner to govern the collection, use, handling, retention and
disposal of personal information acquired under the powers in Schedules 5, 6
and 8 of the Bill.
Recommendation 43
6.148
The committee recommends that the Bill
be amended to include a sunset clause of five years applicable to Schedule 6.
Recommendation 44
6.149
The committee recommends that the Bill
be amended by inserting an express requirement for a public and independent five
year review of the operation of Schedule 6.
ASIO powers - outline of key provisions
6.150 Schedule 10 of the Bill amends the Australian Security Intelligence Organisation Act 1979 (ASIO Act),
the Customs Act 1901 (Customs Act),
the Customs Administration Act 1985 (Customs
Administration Act), and the Migration
Act 1958 (Migration Act).
6.151 Schedule 10 amends the ASIO Act to:
-
expand
the scope of ASIO's special powers warrant regime by:
-
clarifying
the scope of computer access warrants to include a 'data storage device' (such
as a compact disc) to allow ASIO to conduct lawful operations in the face of
changing technologies, and to resolve any possible ambiguities in relation to what
constitutes electronic equipment (Item 1);
-
extending
the time period for the validity of search warrants (from 28 days to 90 days)
(Item 12) and inspection of postal and delivery service warrants (from 90 days
to 6 months) (Items 16 and 17), and extending the maximum time periods for foreign
intelligence gathering warrants so that these periods are consistent with the
general warrant time periods (Items 18-20);
-
allowing
for the removal and retention of material found during the execution of a
search warrant for 'such time as is reasonable' unless its return would be
'prejudicial to security' (Items 23 and 24); and
-
extending
computer access warrants to allow entry onto premises without the need for a
separate (search) warrant to authorise such entry (Item 13);
-
provide
ASIO with the power to request assistance from operators of aircraft and vessels,
and impose obligations on such operators to answer questions and produce information
and documents (in relation to the aircraft or vessel, or its cargo, crew,
passengers, stores or voyage) that are in the possession or under the control
of the operator (Item 2);
-
align
the offence of providing false or misleading information during questioning
under a warrant issued under Division 3 of Part III of the ASIO Act (to
covertly collect intelligence information that 'is important in relation to
national security') with the formulation used in similar offences in the
Criminal Code (Items 21 and 22); and
-
make it
clear that obligations, prohibitions and restrictions imposed by control orders
under proposed Division 104 of the Criminal Code will not be a 'prescribed administrative action' for the
purposes of Part IV of the ASIO Act (Items 26-28).
6.152 Schedule 10 also amends the Customs Act and
the Customs Administration Act to broaden the powers of Customs officers to
copy documents in relation to 'security or intelligence' matters (where the
documents are relevant to specific functions of ASIO); and to allow Customs
officers to lawfully disclose information relevant to 'security or
intelligence' to relevant agencies (Items 29 and 30). It also amends the
Migration Act to clarify the power to deport non-citizens on security grounds so
that the definition of 'security' is the same as the definition in the ASIO Act
(Items 31 and 32).
ASIO powers – key issues
6.153
The key concerns raised in submissions in relation to
Schedule 10 of the Bill include:
-
the necessity of the new ASIO powers;
-
the proposed extension of time periods for
validity of ASIO search warrants.; and
-
the proposed ASIO power to confiscate seized
items.
Need for the new powers
6.154
Most submissions commenting on Schedule 10 questioned
the need and justification for the new powers, given the existence of ASIO's
already extensive powers (most of which, to date, have not been utilised). Some
submissions also queried the inclusion of expanded ASIO powers in the Bill
before the completion of various reviews of Australia's
current anti-terrorism laws (which, it was contended, may effectively render
these reviews meaningless).[710]
6.155
For example, the Federation of Community Legal Centres
(Vic) submitted that:
...we reiterate our
concern relating to the necessity of extending ASIO’s powers...ASIO have
expressly stated in public hearings that they do not require an extension of
their powers and no circumstances have been elucidated to justify this proposed
extension of their powers. Furthermore, the review of ASIO’s existing 'special
powers' with respect to terrorism offences is incomplete. Again, we submit that
it is imprudent to be affording ASIO an extension of their powers while the
review of their existing powers remains incomplete.[711]
6.156 The Australian Privacy Foundation (APF)
raised similar concerns:
The changes to ASIO
powers contained in Schedule 10 are not adequately justified (other than some
technical changes which seem unobjectionable). We understand that the former
Director-General of ASIO – Mr Richardson – stated publicly earlier this year that he considered ASIO’s powers to
be adequate and that he was not seeking further powers. The government has
produced no explanation for why this assessment is no longer valid.[712]
6.157 In particular, the APF noted concerns
relating to changes to the warrant regime and noted that '(t)he last round of
amendments to the ASIO warrant regime benefited greatly from a lengthy period
of Senate Committee scrutiny'.[713] The
APF also submitted that the extension of the power of ASIO to require
information from operators of aircraft and ships is not adequately justified:
...there is inadequate
explanation of the extent of the changes, and the justification for them, to
allow for us to make a judgement as to their proportionality. But clearly any
extension of compulsory information gathering powers outside of a judicial warrant
regime are a matter of concern and need to be examined carefully.[714]
6.158
The Federation of Community Legal Centres (Vic)
also warned that any expansion of ASIO's powers should be considered against the
non-transparent nature of its operations:
The Federation is
generally concerned with any extension to ASIO’s powers. Being the agency
responsible for intelligence gathering, ASIO necessarily operates covertly and
is therefore not subject to the same public scrutiny as other agencies. Given
that ASIO does not operate transparently (by necessity) it is not as easily
made accountable. Any extension of its powers must therefore be approached with
extreme caution. We submit that in the absence of compelling justifications for
these extensions, the powers of ASIO should remain at the minimum required for
them to properly fulfil their role. In this instance, no justifications have
been provided for these extensions. It is therefore our submission that, even
if other parts of the Bill
are passed, this particular Schedule should not proceed.[715]
6.159 The OPC made some general observations about
the proposed new ASIO powers. While noting that the activities of ASIO do not
fall within the jurisdiction of the Privacy Act, the OPC still recommended that
'any expansion in its powers in relation to the collection, use and handling of
personal information should be accompanied by strong guidance in relation to
best practice in the handling and disposal of that information'.[716]
6.160 Specifically, the OPC highlighted Item 2 of
Schedule 10 which grants ASIO additional powers to collect personal information
from the operators of ships and aircraft and introduces an offence for not
producing such documents:
In many cases, the
exercise of this power could result in the collection of personal information
about individuals who are not the subject of inquiry and about whom there is no
cause for suspicion.
The O[PC] notes that
there is no guidance on the grounds on which the Director-General, or senior
officer authorised in writing, may authorise an ASIO officer to exercise this
power (see, new section 23(6) [of the ASIO Act]).[717]
6.161 The OPC suggested that guidance from the
Inspector-General of Intelligence and Security would be beneficial 'in relation
to the collection, use and disposal of records by ASIO, particularly those
relating to individuals not the subject of interest to ASIO'.[718]
Extension of time periods for
search warrants
6.162
Some submissions argued that there is no apparent
justification for the proposed extension of time periods for ASIO search
warrants.
6.163
For example, in their submission, Mr
Joo-Cheong Tham
and others argued that:
At present, it is
possible for ASIO to seek the issue of a further warrant if there continue to
be grounds for the issuing of a warrant. The
proposed amendment is therefore unnecessary for ASIO to be able to carry out
its operations. Rather, it would simply reduce the degree of oversight to which
ASIO is subject. In particular, if the time period for which a warrant remains
in force is doubled, ASIO is in effect invited to take an ever less strict view
of what counts as an individual's likelihood to engage in activities
prejudicial to security. With a lengthened period of surveillance, the
threshold requirement that interference under the warrant would be likely to
assist in obtaining intelligence is also diluted.[719]
6.164
Arguably, by extending the time periods in such a way, 'one
of the key factors balancing the interests of privacy against the interests of
security' is diminished significantly.[720]
6.165
PIAC commented that the current time periods for
warrants provide important safeguards:
There is no apparent or
rational justification provided for such an extension. Limited time for the
operation of warrants is an important safeguard against abuse of the warrant
power and protects against a warrant being used as the basis of a fishing
expedition where a lack of clear and relevant evidence has been obtained
through targeted enquiries.[721]
6.166 PIAC also argued that it is appropriate 'to
maintain the current time limits throughout, thereby requiring ASIO to seek a
further warrant based on its further information gathering activities'.[722]
6.167 The Gilbert and Tobin Centre of Public Law submitted
along similar lines:
Tripling the length of
ASIO search warrants from 28 days to three months (cl 27A(3)(a)), and both mail
and delivery service warrants from 90 days to 6 months (cl 27(4) and 27 AA(9)) cannot
be justified. Reasonably short time limits on warrants are designed to ensure
that warrants are not abused by the authorities to conduct fishing expeditions
over extended periods, where there is insufficient evidence of specific
criminal conduct. Where suspicion of criminal activity continues over a
protracted period of time, a new warrant should be made on the basis of any
current and accurate information which justifies the continuing need for the
warrant.[723]
6.168 Importantly, and on a more general note, PIAC
also pointed out that none of the provisions relating to ASIO in Schedule 10 is
limited in operation to ASIO activities that are specific to a terrorism
threat:
Rather, the power
extends generally and so could be applied to any ASIO investigation, where in the
past the Parliament has felt that the existing time limits were an appropriate
balance.[724]
Power to confiscate items
6.169
Some submissions also commented on Items 23 and 24 of
Schedule 10 which propose to amend section 34N of the ASIO Act to allow ASIO to
retain seized items for 'such time as
is reasonable' unless its return would be 'prejudicial to security'. The term
'security' is defined very broadly in the ASIO Act to include, for example, the
protection of the people of the Commonwealth and the states and territories
from espionage, sabotage, and politically motivated violence.[725]
6.170
Mr Patrick Emerton and Mr Joo-Cheong Tham contended
that '(t)he single most concerning part of the Bill in relation to ASIO special
powers warrants...is the power it would give to ASIO to confiscate property'.[726] ASIO does not currently possess a
power of confiscation. Mr Emerton and Mr Tham pointed out that '(t)he risk of
abuse [of the power of confiscation] is all the greater because ASIO is able to
execute its search warrants, and the power of confiscation that it would be granted,
in secret'.[727]
6.171
The Federation of Community Legal Centres (Vic)
argued that 'the expansive definition of 'security'...effectively allows ASIO to
confiscate items in an incredibly broad range of circumstances'.[728] Since ASIO is 'inherently a covert
organisation that is not subject to the same mechanisms for oversight as law
enforcement agencies', it is undesirable that it be given such broad powers to
confiscate personal property.[729]
6.172
Importantly, it was suggested that granting ASIO the
power to confiscate property may also serve to compromise its role as an
intelligence agency (as opposed to a law enforcement agency).[730] PIAC also made a general comment
about the importance of the separation of intelligence and law enforcement
powers which is relevant in this regard: namely that it is 'wary of any
developments that would see the AFP transformed into an intelligence agency, or
vice-versa, that is, ASIO taking on law-enforcement powers'.[731]
Justification of the proposed powers
6.173 The
committee heard that ASIO supports the Bill 'as
part of an evolving legislative framework directed at strengthening Australia’s counter-terrorism capabilities'.[732] The Director-General of ASIO told
the committee that:
...it is essential
that intelligence and law enforcement agencies have the capacity to effectively
investigate potential threats and, where necessary, to intervene at an early
enough stage to prevent a terrorist act from occurring.[733]
6.174
The Director-General advised the committee that, from
ASIO's perspective, the proposed measures in the Bill
would give ASIO 'a greater capacity to make better judgments about whether or
not a threat is imminent'.[734] While
'(t)he threat will not be abolished by the passage of these laws', the
capabilities of the security intelligence and law enforcement agencies would be
significantly enhanced.[735]
6.175
In evidence, representatives from ASIO justified the
proposed extension of time limits for search warrants. The Director-General
stated that:
We have had evidence in
recent times that operational considerations and operational flexibility would
be considerably enhanced by having that greater period to operate in...(T)he
extension of that period does not actually change the powers that ASIO has, but
having a longer time frame within which to operate would be of use to us.[736]
6.176 A representative from ASIO clarified that
current conditions and safeguards attaching to ASIO warrants would remain, despite
the extension of time limits for their validity:
I will just add to that
that a search warrant can be executed only once, and it would still have to be
the case that the grounds on which the warrant was issued—that is, that access
to particular premises would yield items relevant to security—continue to
exist. If during the longer period the (D)irector-(G)eneral is satisfied that
the grounds no longer exist, there is a statutory obligation to take action to
have the warrant discontinued. This just simply allows the situation where, for
various reasons, it might not have been practical to execute the warrant within
28 days but at the end of that 28 days the grounds upon which the warrant was
sought continue to apply.[737]
6.177 With respect to the new power to obtain
information or documents from aircraft or vessel operators, the representatives
from ASIO told the committee that currently ASIO would require the cooperation
of such operators to provide the information or documents on a voluntary basis,
or a search warrant. The Director-General stated that:
At the moment, if my
understanding is correct, there is no strict legal requirement for airlines to
supply information of that kind to an organisation such as ASIO, although there
has been cooperation with some of the airlines some of the time in obtaining
information. If we have a situation where we know a person of interest is
travelling, say, from Sydney to Lebanon or Afghanistan, sometimes it is possible, but it is not
predictable that we will be able to obtain that information.
...
We would probably
request the information from the airlines. We could use a search warrant.[738]
6.178 The other representative added that:
We could theoretically
request a search warrant, but we might be at a lower stage in the inquiry where
the test for a search warrant might not be met or there might be a number of
airlines that may have relevant information.[739]
6.179 The
representatives from ASIO also provided comments on the proposed amendments to
section 34N (Items 23 and 24 of Schedule 10) of the ASIO Act to allow ASIO to
retain seized items for 'such time as
is reasonable' unless their return would be 'prejudicial to security'. The
representatives told the committee that it is not the intent of this proposed
amendment to connote a position where the items are never returned:
That is not the intent
and that is not how we read it, because it is still subject to the requirement
that it be returned in such time as is reasonable...unless an earlier return
might be [prejudicial to security]...[740]
6.180 When the committee pointed out that the Bill does not expressly contain the word
'earlier', the representative reiterated that it was the intention that it do
so:
The intention is that
the items can only be withheld for a longer period than the time needed to
inspect and examine if there is a security reason for holding onto them.[741]
6.181 The representative assured the committee
that clarification of this part of the Bill would be pursued with the Department.[742]
6.182 In response to questioning by the committee
in relation to the impact of increased ASIO powers on civil liberties, the
Director-General informed the committee that ASIO is involved in a broader
process that the Federal Government considers when developing legislation:
Ultimately, that is not
a judgment that we alone make. We are part of a much broader process that the
federal government considers. It has people specifically mandated to give it
advice on those issues. I think you had testimony from the Chairman of the
Human Rights and Equal Opportunities Commission, for instance. So there are a
variety of mechanisms where the government gets input into its considerations
about how particular proposals might affect civil liberties. We have quite a
number of in-house lawyers who advise on that issue, but there are many other
people in, say, the Attorney-General’s Department who advise the government on
it. It has a wide range of views from outside the formal bureaucratic
structures and so on.[743]
ASIO powers – the committee's view
6.183
The committee acknowledges the significant level of
concern raised in submissions and evidence with respect to the Bill's
proposed changes to ASIO powers. In particular, the committee notes the broad
nature of the provisions extending the time periods for validity of search
warrants, and their potential application to any ASIO investigation. The committee is of the view that the Bill
should limit the extension of time periods for search warrants to ASIO
investigations specifically relating to suspected terrorist activities and
offences. This is particularly pertinent in light of the stated rationale of
the Bill – a response to the threat of terrorism
in Australia.
6.184
The committee is also mindful of apprehension expressed
by some witnesses in relation to the proposed ASIO power to confiscate items,
which could serve to compromise its role as an intelligence agency. In stating
this, however, the committee accepts assurances from representatives of ASIO
and the Department that the intent of the proposed amendments to section 34N of
the ASIO Act (Items 23 and 24 of Schedule 10) is not to connote a position
where the items are never returned, but rather to allow ASIO to retain relevant
items for a longer period than currently permitted if there is a 'security'
reason for doing so.[744] The committee
recommends that the Bill be amended to clarify
this position beyond doubt.
6.185
Further, the
committee notes, and agrees with, the recommendation by the OPC that any
expansion of ASIO's powers in relation to the collection, use and handling of
personal information should be accompanied by strong guidance about best
practice in the handling and disposal of that information. The committee agrees
that guidance from the Inspector-General of Intelligence and Security would be
beneficial with respect to the collection, use and disposal of records by ASIO.
This is particularly pertinent in relation to information about individuals who
are not the subject of interest or investigation.
6.186
The committee is also of the view that the Bill
should include a sunset clause of five years which is applicable to Schedule 10,
in light of the stated purpose of the Bill as a
specific and exceptional response to the threat of terrorism.
Recommendation 45
6.187
The committee recommends that Items 12 and 16-20 of Schedule
10 of the Bill be amended to limit the
provisions extending the time periods for validity of search warrants to ASIO
investigations specifically relating to suspected terrorist activities and terrorism
offences only.
Recommendation 46
6.188
The committee recommends that Items 23 and 24 of Schedule
10 of the Bill be amended to clarify that the power allowing for the removal
and retention of material found during the execution of an ASIO search warrant,
for 'such time as is reasonable' unless its return would be 'prejudicial to
security', does not encompass a power to confiscate the material absolutely.
Recommendation 47
6.189
The committee recommends that ASIO, in consultation
with the Inspector-General of Intelligence and Security, develop a set of best
practice procedures and guidelines to govern the collection, use, handling,
retention and disposal of personal information acquired under its expanded
powers in Schedule 10 of the Bill.
Recommendation 48
6.190
The committee recommends that the Bill
be amended to include a sunset clause of five years applicable to Schedule 10.
Recommendation 49
6.191
The committee recommends that the Bill
be amended by inserting an express requirement for a public and independent five
year review of the operation of Schedule 10.
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