Rex Patrick (SA, Centre Alliance) Share this | Hansard source

The Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 amends the Australian Security Intelligence Organisation Act to extend the operation of ASIO's questioning and questioning and detention powers in division 3 of part III of the ASIO Act for a further 12 months. At the outset, I will say that Centre Alliance supports the clear and bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security and successive Independent National Security Legislation Monitors that ASIO's current detention powers should be repealed.

Subdivision B of division 3 of the ASIO Act sets out the process by which ASIO can obtain a questioning warrant. A questioning warrant requires a specified person to appear before a prescribed authority for questioning under the warrant immediately after the person is notified of the issue of the warrant or at a time specified in the warrant. Subdivision C of division 3 sets out the process by which ASIO can obtain a questioning and detention warrant. This warrant authorises a person to be taken into custody immediately by a police officer and be brought before a prescribed authority immediately for questioning under the warrant for a period of time specified in subsection 34G(4).

These questioning and detention powers—ASIO's so-called special powers—have been the subject of much discussion and debate in the parliament on and off for about 17 years. The very fact that we are debating this bill today shows just how hard it is to wind back any national security powers that have been granted by the parliament to the executive. Even when successive independent reviews have recommended that those powers be revoked, we still see no action.

No-one should doubt the extraordinary powers that are under consideration today. They might have been on the statute books for more than 16 years, but they are still extraordinary and an affront to the principles once thought to be sacrosanct. ASIO's questioning and detention powers establishes a regime in which Australian citizens who are not subject to any charge can be effectively arrested and subjected to compulsory questioning without the right of silence, while being held in incommunicado detention. That's what is involved here: arrest and detention without charge and interrogation without the right to silence.

When the Attorney-General, Daryl Williams, introduced the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 in March 2002, he described these powers as extraordinary and a measure of last resort in dealing with terrorist threats. More recently in his 2016 review of ASIO's detention powers, the Independent National Security Legislation Monitor, Roger Gyles QC, observed:

A warrant enabling a person to be 'detained in custody, virtually incommunicado without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention', … is an extraordinary power. Further, the decision on whether the grounds to make a QDW [questioning and detention warrant] application rather than a QW [questioning warrant] application lies with a member of the executive. No precedent in any comparable country has been identified.

Professor George Williams of the University of New South Wales has supported this observation, submitting to the Parliamentary Joint Committee on Intelligence and Security:

… there is no other comparable nation in the world that gives a coercive questioning power, let alone a detention power, to an intelligence agency of this kind.

Professor Williams suggested that other Western nations have taken the view that compulsory questioning powers are best left to law enforcement agencies, which operate in more open and accountable ways than the secret intelligence and security agencies. He observed:

The simple reason for that is that it is thought that these [intelligence] agencies must operate with a level of secrecy. They cannot have the same level of public accountability and transparency that other bodies have. As a result, that means that extreme caution must be given as to the form of coercive powers that are issued. In this case, the decision has been given to give it a coercive questioning power that takes it beyond those other agencies.

Even with extensive safeguards, the powers provided to ASIO by this parliament in 2003 offend many legal and human rights principles.

Fortunately, these very powers have seen used sparingly. According to the 2018 Parliamentary Joint Committee on Intelligence and Security report on ASIO's questioning and detention powers, between the introduction of the powers in July 2003 and May 2018, ASIO requested and was issued with 16 questioning warrants in relation to 15 persons. In the same period, ASIO did not request, nor was issued, a questioning and detention warrant. ASIO's most recent annual report indicates no questioning warrants and no questioning and detention warrants were issued in 2017-18. There are no reports that these powers have been used in the past year.

The original legislation establishing the regime for ASIO to exercise its questioning and detention powers was the subject of three parliamentary inquiries and lengthy parliamentary debate and amendments before the passage of the bill in June 2003. At the time, the questioning and detention powers were legislated to sunset on 23 July 2006. Since that time, the sunset clause has been repeatedly amended, most recently by the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, which commenced on 25 August 2018. That bill extended the sunset date for 12 months until September 2019.

Today, in the bill before the Senate, we have the government seeking a further 12-month extension. After this week the parliament will not sit again until 9 September, two days after the current sunset clause comes into effect, so the Senate must come to a decision one way or another this week. However, this can't be a rubber stamp exercise. We would fail in our duty if we did not give careful consideration to the success of reviews that have questioned the appropriateness of the questioning and detention regime and have recommended for its repeal.

In 2005 the Parliamentary Joint Committee on ASIO, ASIS and DSD—the forerunner to the PJCIS—observed that the powers, '…should not be permanent and should be scrutinised as thoroughly as possible'.

Much of the subsequent scrutiny of ASIO's special powers has been undertaken by successive holders of the office of the Independent National Security Legislation Monitor, a post established by parliament to carefully examine our national security laws with regard to human rights principles, proportionality and unintended consequences.

In 2012 then INSLM, Brett Walker SC, conducted a thorough review of the questioning and detention powers. While Walker found that the questioning warrants were sufficiently effective to be appropriate, and in a relevant sense necessary, he held that questioning and detention warrants were an unnecessary extension of ASIO's powers and they were not a justifiable intrusion on personal liberty. Walker recommended that questioning and detention warrant provisions of the ASIO Act be repealed. He further recommended that questioning warrant provisions be amended to permit arrest of a person subject to a warrant if the police officer serving the warrant believed on reasonable grounds that there was a serious possibility that the person did not intend to comply with the warrant or that there were unacceptable risks of the person tipping off another involved in terrorism, failing to attend or destroying or tampering with evidence. These recommendations were not implemented.

In 2016 Walker's successor as INSLM, Roger Gyles QC, conducted a further review. Gyles accepted that a compulsory questioning power to gather intelligence was a useful tool for ASIO's counterterrorism work. However, he recommended that the questioning and deterrent warrants provisions be repealed or cease when the sunset clause date, 7 September 2018, was reached. Gyles observed that questioning and detention warrants:

… are not proportionate to the threat of terrorism and are not necessary to carry out Australia's counter-terrorism and international security obligations. It is time to accept that the capacity to secretly and immediately detain persons whether or not they are implicated in terrorism is a step too far.

The current INSLM, Dr James Renwick SC, has indicated that his predecessor's report and recommendations stand as the view of his office.

In its report last year, 2018, the Parliamentary Joint Committee on Intelligence and Security noted ASIO's assessment that Australia continues to face a significant threat from terrorism. In that context, the PJCIS took the view that ASIO should continue to have compulsory questioning powers. However, the committee was equally clear in expressing a negative view about ASIO's detention powers. The committee highlighted the extraordinary nature of the questioning and detention warrant regime in allowing ASIO to detain persons incommunicado, including those not suspected of involvement in terrorism offences.

In its submission and evidence to the PJCIS, ASIO requested the retention of the detention power but did not argue to keep the questioning and detention warrant regime in its current format. In the event that the current detention regime is repealed or lapsed, ASIO advised that it desires a similar ability to pre-emptively detain a person in order to ensure a person appears for questioning, is prevented from alerting others as to ASIO's inquiries and is prevented from destroying relevant material. It should be noted ASIO is still arguing for a power to detain persons incommunicado and without charge even though they haven't used the existing power.

After lengthy and careful consideration, the PJCIS recommended that ASIO's current detention powers, as set out in division 2 of part 3 of the ASIO Act, be repealed. The committee further recommended the government develop legislation for a reformed ASIO compulsory questioning framework. The committee recommended that the proposed legislation be introduced by the end of 2018 and that the committee be asked to report to the parliament no sooner than three months following its introduction. The committee considered that any proposed legislation should again include an appropriate sunset clause. Following the PJCIS's report, the sunset clause was extended for another year, but 2018 went by without any proposals forthcoming from the government. Despite the successive reviews by the INSLM and the PJCIS, no new legislative proposals have been introduced to the parliament.

Clearly, this is not been a priority for the Minister for Home Affairs, Minister Dutton. In response to the PJCIS report in April this year and, specifically, the recommendations that the detention regime be repealed, the government merely said:

The government will consider options for a reformed ASIO compulsory questioning framework.

The government further said:

The Government will work to introduce legislation to implement a reformed ASIO compulsory questioning framework in 2019.

Well, it's already the beginning of August, and there's been nothing forthcoming. The proposed extension of the sunset clause to September reflects the reality that the government is unlikely to progress reforms of the questioning warrant regime in 2019. There are only seven sitting weeks left for both houses of parliament this year. Further delay may arise from the government's consideration and implementation of any recommendations from the review of intelligence and national security legislation being undertaken by former defence secretary and former ASIO director-general Dennis Richardson. By failing to produce a substantive response to the PJCIS report, Home Affairs Minister Dutton has presented the parliament with a fait accompli, something that appears to be his preferred modus operandi.

It is far from clear that ASIO and the government are actually prepared to relinquish the detention warrant regime. They have given no commitment or undertaking at all in that regard. Indeed, ASIO have argued for a continuing detention regime, and, in evidence to the PJCIS, they constructed scenarios in which they contemplated using a questioning and detention power, including in relation to persons of security interest who might return to Australia through a return permit under the new temporary exclusion order scheme. The proposed further 12-month extension could be little more than an effort to keep the issue in a holding pattern while the government works on proposals that will, in effect, reject—I repeat, reject—the recommendations of the INSLM and the bipartisan PJCIS. After all, it's now clear the government has little regard for bipartisanship on national security issues and little regard for the role of parliament in overseeing this vital area of public policy and administration.

Centre Alliance believe that, one way or another, the government should put its cards on the table; at least then we can see its intent and proposals. Parliament can then consider a reformed questioning warrant regime. Accordingly, Centre Alliance is prepared to support the Labor opposition amendment that provides that the provisions for questioning and detention warrants will lapse on 7 September. This is appropriate, given the advice of three Independent National Security Legislation Monitors and the PJCIS. Labor's amendment further provides for an extension of the three months only to 7 December 2019 for the questioning warrant powers. The government has already had ample time to develop legislation to provide for a reformed questioning warrants regime. Three months should suffice for the PJCIS to review those proposals and for the parliament to consider the legislation before the end of the year. Of course, we'll be interested to see the government's response to Labor's amendment, and, indeed, Labor's response in the event that their amendment does not pass the Senate or else is rejected by the government in the House of Representatives.

Let me describe what's happening here with all of this national security legislation, and I'll put it in really simple terms. Senator McKim was wrong when he said that Peter Dutton was asleep at the wheel; he's actually running on adrenaline. It's like he's in the big red security car, driving down the road, swaying from side to side, oblivious to the collateral damage, not looking in the rear-vision mirror, and he's got Labor senators sitting in the car saying, 'No, we're going the wrong way; there's a better way to do this.' But in the end they get to the finish line and Labor cheers and carries on about getting across the line, and then, despite being frustrated with Minister Dutton and his big red car, they jump back in for the next ride when the next piece of national security legislation comes up. That's what's happening here, in simple terms.

If parliament does pass this bill as it stands and gives Minister Dutton another 12-month free pass, I can put on the table now and inform the parliament that Centre Alliance will not support any further extensions of the sunset clause in the life of this parliament. It is an old but vital legal maxim that there should be no detention without charge. One way or another, this quite disproportionate power will have to be brought to an end. The sooner that happens, the better for democracy.