Inquiry into the Australian Security Intelligence Organisation Amendment Bill 2020

1. Introduction

1. The Australian Human Rights Commission (the Commission) makes this submission to the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) in its Inquiry into the effectiveness of the Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill).
   
    
2. The Bill would amend the Australian Security Intelligence Organisation’s (ASIO’s) compulsory questioning powers under the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). Most importantly, the Bill would repeal the existing questioning and detention warrant (QDW) and questioning warrant (QW) regimes from the ASIO Act, and insert a new compulsory QW regime. The proposed new QW regime is in some respects the same as the present one, but has some very significant changes. These changes are said to implement the Government’s response[i] to the recommendations made by the PJCIS in its 2018 report addressing the operation, effectiveness and implications of the ASIO Act’s existing compulsory questioning framework (2018 PJCIS Report).[ii]
   
    
3. ASIO’s compulsory questioning and detention powers have been reviewed on numerous occasions by parliamentary committees and two former Independent National Security Legislation Monitors (INSLMs). It is noteworthy that the Bill deviates in a number of ways from the recommendations made by previous INSLMs, and to a certain extent those made by the PJCIS in its 2018 Report.
   
    
4. The Bill would also amend the surveillance device framework in the ASIO Act by changing the authorisation process for ASIO’s use of tracking devices. The Bill would enable ASIO to use tracking devices with only internal authorisation and in some cases without a warrant.
   
    
5. This submission focuses on the changes the Bill would make to ASIO’s questioning and detention powers. [iii]
   
    
6. The Commission welcomes the proposal to repeal the QDW regime. The powers under the QDW regime represent an unjustified intrusion on the human rights of affected persons, and the Commission has called for their repeal in past submissions to this Committee.[iv] So too have both former INSLMs.[v] In addition, there has been no demonstrated practical need for the QDW regime given that, to date, ASIO has never requested nor been issued with a QDW.
   
    
7. The Commission is concerned, however, about the replacement of the existing detention framework with a new questioning and apprehension framework. This would, in some cases, allow for the immediate detention of the subjects of QWs, and would therefore pose many of the same limitations on human rights as the detention framework it would replace. Other changes that would be made to the Bill include:
   
   1. the lowering of the minimum age for persons who may be subject to detention and questioning, from 16 to 14
   2. a substantial increase in the kinds of intelligence that can be sought through the issuing of a QW
   3. substantial reductions in safeguards in the current regime, including a removal of the requirement that warrants be issued by an independent member of the judiciary, and a reduction in the qualifications for the independent persons who supervise questioning under warrants
   4. new provisions allowing for questioning to be conducted where criminal charges are contemplated or have commenced; and allowing for information obtained through questioning to be shared with, and used by, prosecutors, even when criminal proceedings are already under way.
      
       
8. The Commission acknowledges the critical importance of ensuring that our security and law enforcement agencies have appropriate powers to maintain national security and protect the Australian community from terrorism. Human rights law provides significant scope for such agencies to have robust and effective powers, even where those powers limit or restrict certain individual rights and freedoms. Such limitations on rights must, however, be clearly expressed, unambiguous in their terms, and must be necessary and proportionate responses to potential harms.
   
    
9. ASIO’s current compulsory questioning powers are extraordinary. They were never intended to be permanent and have no equivalent in any other jurisdiction within the ‘Five Eyes alliance’.[vi] The Bill would make the QW regime more rights-intrusive. This legislation therefore requires strong, rather than weakened, oversight and other human rights safeguards.
   
    
10. The Commission considers that many aspects of the redesigned compulsory questioning provisions as proposed in the Bill impose significant limitations on a number of rights protected by the International Covenant on Civil and Political Rights (ICCPR)[vii] and the Convention on the Rights of the Child (CRC).[viii] In many instances, the Bill limits human rights without reasonable justification under international human rights law. In particular, these limitations have not been demonstrated to be necessary and proportionate.
    
     
11. Consistently with the views of previous INSLMs, the Commission considers that the entire QDW regime should be repealed and that no equivalent regime should be introduced in its place. That is, the Commission does not support the Bill’s proposed redesigned QW regime allowing for apprehension of a subject. There should be no reduction in the safeguards in the current regime, and the minimum age limit for people subject to QWs should not be lowered. The Commission has made a number of recommendations in line with these views, which address the text of the Bill.

2. Recommendations

12. The Australian Human Rights Commission makes the following recommendations:

Recommendation 1

The provisions of the Bill that would repeal the questioning and detention warrant regime in the ASIO Act should be passed. However, the Bill should be amended to remove the proposed new questioning warrant regime.

If, contrary to Recommendation 1, the Bill includes a new questioning warrant regime, the Commission recommends that the Bill be amended as follows.

Recommendation 2

If the Bill proceeds, the provisions allowing for the immediate apprehension of the subject of a QW should be deleted.

Recommendation 3

There should be no expansion in the kinds of intelligence which can be sought under a QW. That is, a QW should only be able to be issued where the issuing authority is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.

Recommendation 4

The current provisions in the ASIO Act requiring that QWs be issued by an issuing authority on receipt of an application made by the Director-General of ASIO and approved by the Attorney-General should be maintained. There should be no change to the current requirement that issuing authorities for warrants be judges acting as personae designata.

Recommendation 5

The minimum age for subjects of QWs should not be lowered from 16 to 14.

Recommendation 6

If the Bill proceeds, the provisions that relax the current eligibility requirements for ‘prescribed authorities’ should be deleted.

Recommendation 7

Any person subject to a QW should be afforded the right to independent legal representation at all stages of the questioning process.

Recommendation 8

The provisions dealing with post-charge questioning should be amended to make it clear that a person who has been charged with a criminal offence cannot be subject to a QW until the end of their criminal trial.

[i] Explanatory Memorandum, Australian Security Intelligence Organisation Amendment Bill 2020 (Cth) 2 [1].

[ii] Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (2018).

[iii] The Commission has previously expressed concern about inadequate human rights protections in a number of existing provisions of the ASIO Act. See Australian Human Rights Commission, Submission No 10 to the Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the Review of ASIO’s Questioning and Detention Powers, 22 January 2018; Australian Human Rights Commission, Submission to the Independent National Security Legislation Monitor, Review of Counter-Terrorism and National Security Legislation, 14 September 2012.

[iv] Australian Human Rights Commission, Submission No 10 to the Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the Review of ASIO’s Questioning and Detention Powers, 22 January 2018.

[v] Independent National Security Legislation Monitor, Declassified Annual Report: 20th December 2012 (2012), chs IV and V); Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism (2016), [9.1]-[9.10].

[vi] Inspector-General of Intelligence and Security, Submission No 1.2 to the Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the Review of ASIO’s Questioning and Detention Powers, 22 January 2018, 6.

[vii] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[viii] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).