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Legal and Constitutional Affairs Legislation Committee
(Senate-Thursday, 11 December 2014)
Office of the Australian Information Commissioner
Senator JACINTA COLLINS
Australian Federal Police
Senator JACINTA COLLINS
Australian Security Intelligence Organisation
Senator JACINTA COLLINS
Senator JACINTA COLLINS
- Office of the Australian Information Commissioner
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Australian Security Intelligence Organisation
CHAIR: Welcome. I think that, because this is a spillover day of estimates, as I understand it, the director is not with us, but we are favoured and honoured by the deputy director, who is appearing. I think it was indicated to us that the director was overseas; I think he was disappointed about that, because I understand he had an opening statement he wanted to talk about at the last hearing but we did not quite get to him. So, Ms Hartland, I welcome you and any officers you have. Again, I think you are aware of the rules at Senate estimates committee hearings, so I will not repeat them, but if there are matters that you think should be discussed in camera you should raise them with the committee at the appropriate time and we can then talk about those and make a decision. Perhaps you might like to make an opening statement.
Ms Hartland : Yes, thank you, Chair. Yes, you are correct; the Director-General would have liked to have been here today. He had a previous engagement overseas and so is unable to be here today. On behalf of him and the organisation, I have a short opening statement, if you will allow me to present it. I would like to start by thanking the previous Director-General, Mr David» «Irvine» , for his work and contribution to our nation's security over many years. I know had Director-General Lewis been here, he would have wanted to do that today.
To begin, I would like to make a few general remarks about the security environment and some challenges facing the organisation. Then I will seek to update the committee on the threat of foreign fighters as it currently presents. In terms of terrorism, we continue experience a significantly deteriorating global terrorism threat environment which is reflecting the change on the change on 12 September in the national terrorism public alert level from medium to high. The Syria-Iraq conflicts still resonates in Australia. ASIO is very concerned about Australians involved in this conflict placing themselves and others in danger and about the very real prospect of these people returning with connections to networks of extremists and equipped with the intent and capability to conduct attacks on Australian soil. They are likely to return from the Middle East with experience, attitude and connections and, like almost all terrorist fighters returning from the war in Afghanistan, they are statistically very likely to present as a security risk. We can assure you we are expending every effort and using every tool available to us to protect Australians and Australian interests but, like any security organisation in any country, we can never provide an absolute guarantee that an incident will not occur in Australia.
In concert with our law enforcement agencies and international partners, we continue to cooperate and work closely to identify and counter threats as they present. Our ongoing engagement across the Australian community is vital. ASIO is very grateful for the support it receives, particularly from the Australian Muslim community. No Australian should live in fear of a terrorist attack. However, as members of the Australian community, we should all be alert to the fact that there are Australians who walk and talk the language of terrorism. ASIO has and will continue to work closely with the AFP, the police forces of the states and territories and with other agencies in the Australian intelligence and national security community and with international partners to counter this threat and to protect Australians where ever they are.
In terms of espionage, while ASIO tends to talk less about the harm from espionage and it continues to be a critical part of our work. ASIO's investigations on espionage continue to reveal more instances of espionage against Australian interests. In short the more ASIO investigates the more we expose. This is of course particularly the case in terms of the threat we face from cyber intrusion. Much work is being done and will need to be done with regard to this in the future.
ASIO's current challenges include not only the need to sustain our national security intelligence capability but also to ensure we are able to stay ahead by remaining at the cutting edge of innovation. Technology is constantly changing and we have had to ask the question: do we have the tools we need to meet our responsibility? These tools do not come cheaply and we must continue to invest wisely in capability. As well as technical capability, we have sought legislative reform to enable us to do our job effectively. That is why we are seeking the current and potentially some further legislative changes being put before this parliament. The changes aim to ensure ASIO can fulfil its functions in the most effective way with the least possible intrusion on the privacy of Australians. We believe the Australian public expect ASIO, their security intelligence agency, an agency charged with protecting them from threats, to have the necessary tools to carry out its functions.
It is a simple reality that intelligence agencies must and do operate in secret. This secrecy does not make ASIO any less accountable. ASIO are subject to numerous layered oversight and accountability mechanisms designed to provide assurance to the Australian people and the Australian government of the scrutiny and propriety in which ASIO undertakes its business. I would highlight the views expressed by the former independent national security legislation monitor who noted how proper and compliant ASIO was in its observance of existing legislation and guidelines.
I spoke a moment ago about terrorism in general. I would just like to make a few remarks about foreign fighters in particular. ASIO is deeply concerned about Australians involved as foreign fighters in this Syria and Iraq conflict, placing themselves in harm's way, and the domestic ramifications of the very real prospect of these people returning with connections to the networks of extremists and equipped with the intent and capability to conduct an attack.
The general number of young Australians going to fight in the Middle East is a matter of public interest. The overall number of Australians currently fighting with or supporting Islamic extremist groups in Syria and Iraq has remained consistent over recent months; however, this does not reflect a reduction in the number of Australian travellers. Instead, it reflects the relatively high casualty rate for Australians with the numbers of new arrivals roughly keeping pace with the rate of fatalities.
Australians who have travelled to the region have done so for various reasons. Not all of those individuals are joining terrorist groups in Syria. There is a spectrum of activities connected with the conflict ranging from medical or humanitarian aid through to active engagement in fighting.
ASIO has identified around 70 Australians fighting with or supporting Islamic extremist groups, most of whom are affiliated with Jabhat al-Nusra or the Islamic State of Iraq and the Levant. These 70 Australians are there with the approximately 12,000 foreign fighters from 80 nations, including around 3,000 from Western countries, who have travelled to the region to join terrorist groups there, especially ISIL.
More than 100 people here in Australia are actively supporting these extremist groups providing funding, recruiting for them and, in many cases, seeking to travel to these groups. There will be others at home and abroad whose activities have not been detected.
This renewed engagement appears to be largely focused on the most concerning groups, particularly ISIL. ISIL's ability to recruit and influence people in Australia remains of great concern to ASIO.
I should note that ASIO assesses that at least 20 Australians have been killed while fighting in Syria and Iraq so far. A number of Australian agencies, including ASIO, have the ability to prevent travel through the provision of an adverse security assessment leading to the cancellation of the subject's Australian passport. These cancellations have been used to prevent travel by individuals seeking to join violent jihadists in Syria and Iraq or to prevent Australians already with such groups from travelling elsewhere.
Since the start of the Syrian conflict in 2011, ASIO has recommended cancelling nearly 100 passports for Australians linked to Syria and Iraq extremists with over half of those cancellations taking place in 2014.
The scale of Australian foreign fighters involvement in the Syria-Iraq conflict far outstrips any previous conflicts. Further, very few of the Australians who travelled to previous conflicts were involved in violence on the scale seen in Syria and Iraq.
While we cannot extrapolate directly from past experience, the behaviours of Australians who returned from the conflict in Afghanistan and Pakistan demonstrates the need for ASIO to consider those involved in the Syria-Iraq conflict as a serious and long-term problem.
Many Australians who trained with al-Qaeda or affiliates in Afghanistan and Pakistan in the 1990s and 2000s were involved with terrorist related activities on their return. For example, ASIO investigated 30 Australians who travelled to Afghanistan and/or Pakistan between 1990 and 2010 to train at extremist camps and/or fight with extremists. Of these, 25 returned to Australia and 19 engaged in activities of security concern after their return to Australia. Eight were later convicted of terrorism related offences while five are still serving prison sentences.
For these individuals, their behaviour after their return to Australia emerged over an extended period. In some cases, it was not seen until more than five years after their return.
Previously, ASIO assessed that, if a terrorist attack was planned for Australia, it would most likely be a complex mass-casualty attack requiring a long lead time—for example, a vehicle-borne improvised explosive device. We now assess a simple random attack on the street on any Australian using rudimentary weapons is more likely.
Such an attack would provide for the terrorists great propaganda mileage. Lead times between the formation of intent and the undertaking of attacks are becoming increasingly compressed. The main point I am making here is that these sorts of attacks mean that we lose much of the lead time in detecting such attacks, making it much more difficult to provide advance warning.
It was information relating to do this new type of attack, coupled with the large number of Australians becoming foreign fighters, that caused the Australian government to raise the threat level on 12 September.
ASIO is working across our community to protect Australians and Australian interests. We cannot of course do it alone; we require the support of the whole of the Australian and international community, using all available instruments to achieve success. I hope this statement has provided some clarity and perspective to the events, and thank you for the opportunity to comment at the hearing on matters of particular importance to ASIO.
CHAIR: Thank you very much for that. I will start with a couple of questions. On the idea of cancelling passports so people cannot move overseas to join these terrorist groups, some would say that it is better to let them go rather than have them confined to Australia. Do you have any comment on that?
Ms Hartland : The statistics I gave in looking at the Afghanistan and Pakistan experience probably best sum up our views on in that we see that we want to be protecting Australian individuals from themselves but when these individuals have gone they have developed expertise, capability and intent. When they have come back, their views—
CHAIR: I can understand why you would cancel it after they have left Australia so that they do not come back. The comment that is often put to me is that we should not cancel their passports to prevent them leaving Australia and that Australia might be better off if they went and then had their passports cancelled. Do you have any comment on that? It is a commonly held view. It is not necessarily mine, but it is a commonly held view.
Ms Hartland : I think that is the point I am trying to make. If we allow people to go, that is when they develop expertise and come back and use that. I think there is a bit of a misapprehension around passports being cancelled when people are overseas. It allows them to return to Australia, but then it allows us to prevent them travelling further.
Senator Brandis: There is another dimension to this which I think has been somewhat missed in the public discussion. That is that Australia is bound by UN Security Council resolution 2178, which was passed on 24 September. It obliges all member states to use their best endeavours to prevent foreign fighters crossing their borders. Australia, of course, is a member of the Security Council at the moment, as you know. That is a unanimous resolution: all members of the international community accept it. It was not our only reason but, among other things, in giving effect to the foreign fighters legislation we were implementing domestically a scheme for compliance with Security Council resolution 2178.
Ms Hartland : I should also point out that, under the ASIO Act, we also have obligations to foreign partners for the same reasons—those international obligations.
CHAIR: Ms Hartland, did I hear you properly? Did you say that if a passport is cancelled it does not prevent people from re-entering Australia?
Ms Hartland : That is correct.
Senator Brandis: If they are Australian citizens.
Ms Hartland : Yes.
CHAIR: Has there been any work done on the background of people who leave Australia to fight in these terrorist initiated conflicts as to how they originally came to be in Australia? Are they Australian born? Are they former refugees? Has any work being done to look at this? Again, as with all things to do with ASIO and the Federal Police, there are perhaps some answers you would rather not give publicly. If that is the case, you should say so. I am just wondering if there has been any work done on this.
Ms Hartland : Yes. I will give you a general answer in response for the reasons you have indicated. Yes, we have done a lot of work in looking at the nature of the individuals and, in fact, working with the department and others around what potentially drives individuals to form extremist views. There is no easy answer to it, but many of the individuals are second and sometimes third generation Australian.
CHAIR: Is there a percentage?
Ms Hartland : I do not have a percentage figure with me, but I would be happy to look at that. It might be something best dealt with in camera.
CHAIR: Okay. If there are things that it is not wise for us to know, that is fine. Again, it is a question that is raised quite often in the media and by the general public and on social media. I will have a few more questions later. Senator O'Sullivan, I will come to you after Senator Collins if you have any questions.
Senator O'SULLIVAN: Thanks.
Senator JACINTA COLLINS: Please convey to the Director-General thanks for the statement that he was not able to provide on the earlier occasion, and I would add my thanks to the previous Director-General. He provided the committee—actually, it was the references committee—with some quite helpful information regarding two points that are mentioned here. One is the accountability mechanisms that you referred to. Indeed, Mr «Irvine» referred to the importance of increasing accountability along with additional powers in the current circumstances. Can you apprise me of any new operational accountability mechanisms that may be being contemplated by ASIO in the current climate? And, again, as the chair commented earlier, there may be some issues that you cannot discuss.
Ms Hartland : There is a range of accountability mechanisms. We obviously have our own in-house policies and protocols that are signed off guidelines by the Attorney-General. We have almost royal commission-like powers of the IGIS—the Inspector-General of Intelligence and Security. In fact, her people actually have offices that sit within our organisation for much of the time and have full access to all of our records and all of our people and can inquire on any matters. Obviously there are mechanisms through the PJCIS—the Parliamentary Joint Committee on Intelligence and Security—at which, as you know, we appear during both public and private hearings. It is playing a major role in looking at current legislation. Obviously it is instilled in legislation guidelines that we provide annual reports to the parliament. We provide both a classified and an unclassified annual report. The classified annual report goes to the PJCIS, for which we are then fully accountable. In terms of processes around warrants and the like, the department also plays a role in ensuring the legality of everything that we do and we have the INSLM in place as well. That is an overview of the accountability mechanisms within the organisation. Those protocols and policies and procedures dictate the levels of sign off. Generally, they are very high and basically anything that is going to the Attorney for sign off, in terms of warrants and passport recommendations and things, all go through the Director-General.
Senator JACINTA COLLINS: The guidelines you referred to, that the Attorney signs off, they relate to more internal policies and procedures.
Ms Hartland : Correct.
Senator JACINTA COLLINS: Are they available?
Ms Hartland : They are publicly available on the internet, on our website. There are a few that will not be for operational reasons, but the vast majority are there.
Senator JACINTA COLLINS: And has there been a review of those in recent times?
Ms Hartland : One of the recommendations that came out of one of the recent PJCIS inquiries was to review those, and we are in the process of doing that. At the moment we are working with the department on that.
Senator JACINTA COLLINS: Is there a time frame for that?
Ms Hartland : I do not think so. I will look into that for you, but I do not think there is a specific time frame.
Senator JACINTA COLLINS: If you could provide that on notice, that would be helpful.
Ms Hartland : Sure.
Senator JACINTA COLLINS: You mentioned INSLM, whom we are still waiting for. What occurs in the absence of the appointment?
Senator Brandis: No, we are not waiting.
Senator JACINTA COLLINS: Sorry?
Senator Brandis: We are not waiting—
Senator JACINTA COLLINS: When was the appointment made?
Senator Brandis: it was announced last week. It is Mr Roger Gyles QC, a greatly respected former judge of both the Supreme Court of New South Wales and the Federal Court of Australia.
Senator JACINTA COLLINS: That is right; I had seen that. That appointment has already commenced. Is that right?
Senator Brandis: It was certainly announced last week by the Prime Minister. I think it began upon announcement. But I will check that.
Ms Lowe : The Prime Minister announced the appointment of Mr Giles on 7 December so that he would commence in an acting capacity, subject to the completion of a security-vetting process. So it took effect immediately on an acting basis.
Senator JACINTA COLLINS: Ms Hartland, I would like to go back to your opening statement in relation to your comments about the scale of Australians participating in the foreign fighters scene. I take it from your comments that the scale is with respect to not only the number of people but also the intensity of the activities. Is that fair comment?
Ms Hartland : Yes, that is correct. As I mentioned, increasing the threat level was partly to do with the intent and the capability we were seeing in terms of individuals. So yes, the intensity is correct.
Senator JACINTA COLLINS: How does that compare to similar countries?
Ms Hartland : I do not have the figures in front of me—
Senator JACINTA COLLINS: Let us say, for instance, Canada.
Ms Hartland : On a per capita basis, we are certainly seeing a greater number of extremists fighting, compared with most other countries. I have not compared that again of late but that had certainly been the case. So, unfortunately, it is an area where we are highlighted as having more foreign fighters per capita than most other countries.
Senator JACINTA COLLINS: So are we turning into a significant source country?
Ms Hartland : It is a significant source country, noting the size that we are and noting the numbers of individuals there, which is why obviously we have increased the threat level and why we have worked very actively to get the sorts of tools in place that we need to do everything we can to prevent more people from going and becoming extreme in their views.
Senator JACINTA COLLINS: Is there any thinking around why that might be the case?
Ms Hartland : I think there are some historical factors involved in terms of some of the migration to this country in the past. There is something to be said for the feeder groups that are in this country. Other than that, it is probably something that we would rather talk about in a closed hearing.
Senator JACINTA COLLINS: I have noted recent press reports about foreign fighters, in a sense, wishing they had not gone—that might be a generous way of describing it. Can you describe for me ASIO's understanding of the number of Australians who are now essentially entrapped?
Ms Hartland : I can't, no. I would not want to go into that sort of level of operational detail. But I am aware of the reports that you are talking about.
Senator JACINTA COLLINS: Some of those reports have an obvious educational advantage if they deter other young people from being similarly entrapped. But I think there have only been about two that I can recall seeing. I understand it is one of ASIO's objectives to have young people understand the realities of what they are going to rather than the descriptions that they are sometimes receiving on the internet or through social media.
Ms Hartland : That is true. We work very actively with the community, and the department might want to comment on this further in terms of the work being done with the community there. But you are right: we need to make sure that there is a clearer understanding, particularly of very young people who might be aspiring to go, thinking there is some sort of adventure in this without recognising exactly what it is they are getting themselves into.
Senator Brandis: Senator Collins, the Prime Minister has, I think very accurately, described ISIL as a death cult. There is an element of cultish behaviour, at least in relation to some. You I think would be aware that there is quite a body of psychological learning about the behaviour that leads people to become members of cults and the way to deal with those people. I am not saying that is the case with all of the people who have gone to fight for ISIL. In the case of some of them, I am sure it is not the case; they are just evil people who have decided to do a very evil thing. But there will be some, particularly among the younger of these recruits, some of whom have not even reached the age of adulthood, who are like people who are ensnared in a cult. One has to look at each case on its own facts.
Senator JACINTA COLLINS: Yes—and I think some of what you have covered there is important in understanding the incident at Endeavour Hills for instance. The young man in that case probably fits the description that you were just providing.
Senator Brandis: I do not think we can comment on particular cases—and you may or may not be right. But I would just make the general observation that the psychological profile of each of these individuals would be different and, in relation to at least some of them, they will be in the nature of people who have been ensnared into a cult and will evidence those behaviours.
Ms Hartland : Going back to Senator MacDonald's previous question, there is a complex range of factors here which I guess if we understood perfectly we would not be seeing such activity. But it is a very complex array of things that we are seeing that are making individuals become extremists, sometimes in a very short period of time.
Senator JACINTA COLLINS: And it has been described that the radicalisation is more likely were such people to leave the country than to remain.
Ms Hartland : If you think about in particular young people—but not only young people—going into such extreme environments where the foreign fighters are, then that is clearly going to be an environment that is more radicalising and providing more capability and more intent, which is the reason for trying to stop them going there in the first place through passport cancellations.
CHAIR: I want to go back to passport control. This is something I have never really thought about—and sometimes these would be better questions for the Department of Immigration and Border Protection. Whilst you allow someone back into Australia even if their passport is cancelled, for those people to leave an airport and get on an aeroplane they would have to have a valid passport, wouldn't they?
Ms Hartland : Correct.
CHAIR: So how are they coming back into Australia without a passport—unless they swim.
Ms Hartland : Do you mean when a passport has been cancelled?
Ms Hartland : It probably is a question best asked of other agencies—Foreign Affairs in particular. But basically, as I understand it, there is documentation provided for a one-way trip back into the country.
Mr Moraitis : That is right.
Ms Hartland : The secretary, with his past experience, would be able to comment further.
Mr Moraitis : The Department of Foreign Affairs and Trade, if I may speak on their behalf, do issue single travel documents for a situation such as this. This is a document that can be used for travel from A to B for a specific purpose.
CHAIR: But if I am overseas and lose my passport, there is no way in the world I can get back onto a plane to get back to Australia.
Mr Moraitis : If you go to the embassy or the high commission, they will provide you with a single travel entry document. They would not issue you with a passport again, but obviously in extreme cases they could issue you with something like that.
CHAIR: So would DFAT still do this for someone whose Australian passport has been cancelled?
Mr Moraitis : I cannot comment on that. In theory, they could.
Ms Hartland : Yes.
Mr Moraitis : And they would obviously consult with various agencies who have an interest.
Senator Brandis: Australian citizens have a right to return to Australia whether they have a current passport or not—I think that is the point that underlies the point Mr Moraitis was making.
CHAIR: Sorry, Senator Collins; I interrupted. Back to you.
Senator JACINTA COLLINS: So it is not the cancelling of a passport that would be the issue; it is the revoking of citizenship that would achieve the end I think you are talking about.
Senator Brandis: That is right, and I think sometimes people make the mistake of conflating the idea of passport cancellation with revocation of citizenship, which of course are quite different things.
CHAIR: That is something this committee dealt with in the recent bill that came before this committee.
Senator JACINTA COLLINS: I have one question and it might be useful to break after this one.
CHAIR: We could go to Senator O'Sullivan after you.
Senator JACINTA COLLINS: Okay. You mentioned that, of the 25 people who have returned to Australia, 19 have engaged in activities of security concern after they have returned.
Ms Hartland : That was from the Afghanistan-Pakistan experiences, yes.
Senator JACINTA COLLINS: Eight faced later conviction. Can you describe what happened to the other 11?
Ms Hartland : I will take that on notice.
Senator JACINTA COLLINS: Let me know if it is problematic. From our point of view, in terms of dealing with this problem, understanding why only eight of 19 were successfully prosecuted is one of the policy issues we want to address.
Senator Brandis: That is quite right, Senator. Of course, as you know, conduct that raises a level of concern in the mind of ASIO may not reach the threshold at which the Director of Public Prosecutions would make the judgement that a prosecution is likely to be secured at the standard of proof in a criminal trial. By the way, it is a point I keep trying to convey to critics of this legislation—I know you are not one of them, Senator—that the most important protection of all is that, for all of these terrorism related offences the standard of proof remains the criminal standard: proof beyond reasonable doubt.
Mr Moraitis : Senator, if I could just clarify: you might be conflating two elements—prosecution for activities in Australia in those situations, rather than for activities overseas. The two activities should not be confused in this context, in the historical context.
Senator JACINTA COLLINS: I understand your point, and perhaps that is something that can be separated, if you are able to address that in an answer on notice—whether those convictions related to domestic or international activities.
Ms Hartland : There may not be a lot more we can say to you on that, given that we do not comment on individuals and we do not comment on operational matters, but we will take it on notice and see what further advice we can provide you with. It might be of a more general nature.
Senator JACINTA COLLINS: Sure.
CHAIR: Senator O'Sullivan, do you have some questions?
Senator O'SULLIVAN: Not many. When a recommendation is made, I understand it is a dual decision by the Minister for Foreign Affairs and the Attorney in terms of revoking the passport? Is that correct?
Senator Brandis: No. It is a decision ultimately of the Minister for Foreign Affairs, but there are certain procedural steps required before that decision is made. It would not be quite right to characterise it as a joint decision.
Senator O'SULLIVAN: So would the grounds that are provided to the minister prima facie constitute an offence, Attorney?
Senator Brandis: Not in every case, not necessarily. They might very well, but not necessarily in all cases.
Senator O'SULLIVAN: Where I am going is—and really I ignore age, immaturity, all of that; set that aside—if I have got a frustrated terrorist, my preference would be to have the frustrated terrorist somewhere else other than within Australia. Whatever it was they have done with their frustrations in a war zone is a matter for them. I think most freethinking Australians do not understand why we cannot create an environment where we deal with this either here domestically or upon their return. I have to imagine that preparing a brief of evidence to prosecute them for having engaged in activities overseas is by degree much harder than developing a prosecution from a body of evidence that you might have collated here domestically.
Senator Brandis: That, again—with respect—may or may not be so. One of the reasons we introduced, with the support of the opposition, the declared areas offence in the legislation that has recently gone through the parliament was in a sense to address that issue, to make it easier to prove the commission of the offence. At the moment, there is one declared area—Al-Raqqa province in Syria. If it can be established—and this is just a question of empirical fact—that a person has visited a declared area, then they have committed the offence and they can then raise the defences available to them under the provision. But the offence is constituted by travel to the declared area, and it is not especially difficult to establish that a person was at a particular place. So, that is one of the rationales for that new offence.
As to the broader question, I just want to emphasise—and as I said to Senator Macdonald as well—that we have to see this as an international problem. This is a global problem. And as the deputy director-general of ASIO said in her opening statement, there are about 12,000 foreign fighters involved in this conflict, of whom about 3,000 come from what we might broadly describe as the Western world. There are foreign fighters from effectively every country in Europe, and in some cases a very large number—hundreds and hundreds. There are foreign fighters from the United States and from Canada and from elsewhere as well. This is a global problem. Therefore, it demands a coordinated global response. Part of that coordinated global response is UN Security Council resolution 2178, in which all the nations of the world assume a common obligation to prevent the passage across their borders of foreign fighters. If all the nations in the world observed and were able to give effect to their obligations under UN Security resolution 2178, there would not be any more foreign fighters going to this war. Of course, people who might be motivated to do that may still be problematic domestically. But the core task here is to defeat ISIL and particularly to defeat ISIL in that theatre of war.
Senator O'SULLIVAN: I will direct my question another way, and I am endeavouring to express the frustration of the everyday punter. The punter on the street does not understand why, if the foreign minister has grounds that are sufficient to prevent someone from departing from Australia, they are not transported directly from Sydney airport to jail. That is the point I am trying to make. If the grounds are there to prevent them from departing, we are almost sort of intervening to help them help themselves from committing an offence or putting themselves in harm's way. I think there is concern about their return to the suburbs. We now have ourselves a frustrated freedom fighter who, in my view, would be even more vulnerable to being persuaded to go, the following day, down into a part of one of our cities to commit an atrocity for the movement.
Senator Brandis: Of course, it may well be—and again, I am speaking generally, and we cannot really descend to individual cases—that a person, under the hypothesis you have described, has committed an offence for which they could be arrested and taken into custody. One of those offences under the existing criminal law is association with a terrorist organisation; that is an offence under chapter 5 of the Commonwealth criminal code already. As well, it may be that in a particular case the conduct could constitute facilitating the commission of a terrorist act if they are, for example, travelling as a member of a party so that they are not only seeking to travel themselves but enabling others to travel. There is also the offence, under section 101.6 of the criminal code, of planning or preparing for a terrorist act. Then there are the association offences in division 102 of the Commonwealth criminal code about being a member of, or an associate of, a terrorist organisation.
So it is not as if the existing legal regime we have does not deal with acts ancillary to actually being a foreign fighter, because depending on the facts of the particular case it may very well do so. We have, in reviewing this legislation, I think I may say, in collaboration with ASIO and the Australian Federal Police and the Attorney-General's Department, really turned our minds to the very question you put, Senator, to ensure that the architecture of the criminal offences relating to terrorism is sufficiently encompassing to deal with that problem.
Senator O'SULLIVAN: I ask a specific question, Attorney—and I am not asking for a specific case. It is a specific question, not a specific case. Are you able to give us an example of someone whose passport might be revoked but who is otherwise allowed to return to the suburbs? I do not mean for operational purposes; I do not mean replanting them back in their community so that ASIO can do their job. I am talking about where there are grounds to prevent their departure but insufficient grounds, prima facie, to bring about a prosecution.
Senator Brandis: Let me give you an example, allowing for the fact that this is a hypothetical case, and I might ask the Deputy Director-General of ASIO to add to my remarks. ASIO, under its act, can issue an adverse security assessment of an individual. Now, we do not arrest people in this country because ASIO issues an adverse security assessment. What it means—and the deputy director-general might elaborate if she likes—is that they are a person of concern to ASIO for various reasons. It is not a crime to be the subject of an adverse security assessment, but there may be a particular case where the fact of an adverse security assessment having been issued is sufficient to persuade the Minister for Foreign Affairs to revoke a passport. Perhaps, Ms Hartland, you might add to my remarks about that.
Ms Hartland : Yes. We furnish a security assessment, as the Attorney-General said, and look at whether the requirements of security make it necessary or desirable for the person's passport to be cancelled. So we look at this from a security perspective, and that does not necessarily mean, as the Attorney has said, that the person has committed a crime. In the business of intelligence, we are looking at the security, the nexus with security. We are looking at early indicators and information that we will have that provides the intelligence that may lead, down the track, to us working with our law enforcement colleagues around a prosecution. But the job of ASIO is not about the prosecution part of it; it is about looking at the security intent and the security issues that might be involved. It is on that basis that we issue a security assessment.
Senator Brandis: Of course, ASIO and the Australian Federal Police in cooperation with the state and territory police forces do keep a number of people under surveillance. I am not going to go any further than that, for obvious operational reasons. But just because someone may not have been arrested does not mean that, if they are known to ASIO and the police, they are not the subject of surveillance.
Senator O'SULLIVAN: Yes, but, Attorney, can I get to the nub of my question. Would you agree [inaudible] You have them at the airport. It is insufficient for you to prosecute, and at best they are going to go back into some surveillance regime—and let's not spend any time around that. The average punter would be happy for you to let them go—in fact, encourage them. Upgrade them. They will get quicker into their war zone so they can get their [inaudible] That is what I am trying to project here. That is the mood out in punter land.
Senator Brandis: I know, Senator, that there are a lot of people who are of that view, and I and the deputy director-general have tried to explain to you why the government's and the agencies' policies should not do that. I really do not have anything to add to what I said before, but I absolutely acknowledge that you are right when you say that there are a lot of people in the community who do think that.
Senator O'SULLIVAN: Yes, but I was drawing on this point—and it was the deputy director-general that made the point. The only point in my mind that justifies intervening on an exiting passenger on general suspicion but insufficient to prosecute was some obligation that we have to the international effort. That was the only valid point put forward that I heard. If there are other valid points then I am happy to hear them. But is that a correct assessment?
Senator Brandis: No, it is not. I did point out the international community's joint endeavour to defeat ISIL and that preventing passage across borders of potential foreign fighters is one of them, but no, it is not the only reason. I mentioned before that there are aspects of this behaviour which are cult like. Some of these people are not even adults. We have seen recent examples, including in the newspapers, of teenagers—adolescents—who have been ensnared into this behaviour. I myself do not think that we should blithely let an Australian adolescent who is foolish enough to have been ensnared by a cult just go overseas, where he might blow himself up and blow up another 20 people in a marketplace somewhere in Iraq. I think we should stop that.
Senator O'SULLIVAN: All right, fair point. Thank you, Attorney. Thank you, Chair.
CHAIR: Thanks, Senator O'Sullivan. Senator Collins just has a couple more questions of ASIO, and then—if this suits you, Mr Moraitis and Minister—instead of having a morning tea break and then a half-hour lunch break from 12, we might look at breaking at a quarter past 11 until 12 and then finishing with ASIO and bringing forward the Attorney-General's Department, outcomes 1, 2 and 3. And then we have a private briefing from the Attorney-General's staff, or the department, to follow this, which was scheduled for two. I am only mentioning that to say that hopefully we can bring everything forward by an hour.
Senator Brandis: Mr Chairman, can I respectfully suggest a slightly different course.
CHAIR: Yes, sure.
Senator Brandis: We can bring that briefing forward, as Mr Moraitis has said. Could I respectfully suggest that, after Senator Collins has finished her questions to ASIO, we break until perhaps half past 11 and then resume, and then we can finish this sooner.
CHAIR: No, I am sorry. I have a couple of things I have to do in a half-hour break. I appreciate the comment. But I think if we do that that might accommodate almost everyone. I am hopeful then that we might be finished completely by two and perhaps even earlier. Senator O'Sullivan, hopefully that suits you as well.
Senator O'SULLIVAN: Yes, it works for me, but I think you will have to rule me out of any private briefing.
CHAIR: Yes, of course. That is an optional thing—requested by Senator Bilyk, I might say.
Senator JACINTA COLLINS: I think she was happy to have a private singular one, but you suggested the committee.
CHAIR: Yes, okay. All right, let's go along that line, if we may.
Senator JACINTA COLLINS: As I have with the AFP, I was hoping to explore some of the issues around mandatory data retention given a very helpful briefing that Mr «Irvine» gave us previously. I have had a quick look at the draft dataset that the Attorney referred to. It is fairly general. I have a few questions I will probably ask of the department when we get to that stage, but I am conscious of the fact that Mr «Irvine» had some particular interest in this area and so would like to give ASIO an opportunity to inform us of any particular input you think is of relevance in relation to how we proceed with data retention. One issue that comes to my mind is Mr Irvine's acceptance that in reality a two-year period was maybe not desirable but reasonable—
Ms Hartland : Very similarly to what the commissioner said to you earlier this morning, in almost every investigation and certainly in every serious investigation that we undertake we utilise such metadata. It is a very important tool for us. What we are looking for in the data retention regime is consistency across datasets being held. Because of the pace of change of technology and business models, we are finding that different standards of data are being kept by different organisations. So we are not seeking anything that we have not been able to legally obtain in the past. What we are looking for is consistency of those datasets and consistency of the time frames in which they are kept. For the reasons that the Attorney mentioned earlier in the state of play negotiation discussions around the datasets, I will not go into details on that. That is work in progress.
It is the case in some of the terrorist investigations but particularly in some investigations around espionage that the periods of time in which we are needing to look back through information is very much longer than two years. I think that when the Director-General, Mr «Irvine» , spoke on this last time he said that he understood that we needed to find a compromise between a much longer time in which we would ideally like data retained and needing to weigh up the balance between security and privacy concerns. It is true that the time frame we need for the majority of our investigations is six months, 12 months or up to two years, but for some of these serious investigations, including serious terrorist investigations, it has gone way past that period of time. I spoke earlier about some of the time frames that we have seen in returning people in the past. It has been very much longer than two years.
Senator JACINTA COLLINS: We were discussing earlier the internal policies, procedures and guidelines and that you are commencing a review process on that. Is it envisaged at this stage that that review will deal with issues around the management of metadata?
Ms Hartland : The review will look at all of our policies. I should point out as well that there is a fairly constant process of reviewing our internal policies and procedures. I do not want you to think that we never, ever look at them. We would be looking at those as part of it, yes, because they are part of the delegations and the sign-offs that we have around responsibility for metadata requests, for example.
Senator JACINTA COLLINS: The reason I raise that is, again, past comments from Mr «Irvine around broadening accountability with such access arrangements. Also, the joint parliamentary committee is dealing with it tranche by tranche. Whereas their review recommendation related probably to earlier measures, it would make sense, I would have thought, given we are aware that we are dealing with this tranche, that the review equally encapsulate the management of metadata as well.
Ms Hartland : I do not want to pre-empt anything that will come out of legislation or inquiries there, but some of that might necessitate looking at them regardless anyway. But, as a matter of good practice, we would.
Senator JACINTA COLLINS: You talk about the metadata involving what you have been able to legally obtain in the past. Where does the exclusion around web browsing histories sit there?
Ms Hartland : Web browsing does not form part of metadata, so we would be looking at a warranted process. If we are looking at content, we are looking at a warrant that would be required, which goes through to the Attorney-General for sign-off.
Senator Brandis: And I might say that it is explicitly prohibited by the act.
Senator JACINTA COLLINS: Yes, I understand that part of it, which is why I am asking, because my impression in the past has been that ASIO would have had access to metadata—or data, let's say; let's not squabble over the definition of it—that essentially is browsing history material.
Ms Hartland : When we are seeking content—
CHAIR: You should not take any notice of the speeches Senator Ludlam gave in the chamber where he actually said that this was what metadata was all about.
Senator Brandis: Senator Ludlam does not have the faintest idea about this.
CHAIR: I think he was being deliberately misleading.
Senator Brandis: Perhaps he was.
CHAIR: I have said that to his face; I am not speaking behind his back.
Senator Brandis: Web browsing is treated as revealing content, as of course it does. We could have left it generic, but, to avoid any shadow of a doubt about that, because there have been mischievous suggestions, as Senator Macdonald has suggested, to the contrary, it has been made explicit in the act itself that web browsing is excluded, for that reason.
Senator JACINTA COLLINS: I was asking, Ms Hartland, about past material that has been used by ASIO. Would it have included material in the past that would—
Ms Hartland : As I said, content related material required a warrant, so it would be warranted material.
Senator JACINTA COLLINS: I personally do not find intuitively helpful the distinction between the envelope and the letter. I think many people have commented about how, in the current day, that is not really a helpful analogy—that you can capture as much information about someone by understanding, say, the equivalent of a GPS reporting of everywhere they have been, some of which is captured in this draft data-set discussion. But, equally, another area that is captured in it is the issue of volume. If I am web browsing but then downloading, does that change the scenario?
Ms Hartland : It is not the web browsing that would form part of the metadata.
Senator JACINTA COLLINS: But the download would?
Ms Hartland : The volume may well do, but this is why we are going through these discussions with industry—to put clarity around exactly what each of these elements is. So I do not really want to pre-empt those discussions.
Senator JACINTA COLLINS: And we will come to that later, but I am interested, from the ASIO point of view, obviously, in your understanding of how metadata has been used to date and how you can help inform that process, but presumably you are also involved in the broader consultation process here.
Ms Hartland : That is true, and we understand that the PJCIS is starting some hearings around this next week and there will be some closed hearings around that where we will be much more able to articulate some of the reasons behind that.
Senator JACINTA COLLINS: It is helpful in part, although I know some observers of these discussions assume much just from the dialogue. I am not meaning to defend Senator Ludlam here, but in the past in our references inquiry I asked some questions about the scope of access to metadata. The concerns being raised with us were about the number of agencies that could do so, and that is dealt with in part with the legislation. The query I was actually following at the time was more the scope in terms of the type of metadata rather than necessarily who has access to that metadata. Presumably this definitional process is what is ultimately going to capture that.
Ms Hartland : Correct.
Senator JACINTA COLLINS: All right. I will leave that for the department, when we get to them, about how that process is going to proceed.
CHAIR: Senator McKenzie has joined us via teleconference. But we will break until 12 o'clock and hopefully finish the rest of it. We are ahead of time.
Senator Brandis: ASIO is now finished, Chair.
CHAIR: Yes. Thank you, Ms Hartland. Can I mirror Senator Collins's comments about the former Director-General and the current one. I am disappointed we did not have the opportunity to meet him, but understand—
Ms Hartland : I am sure he will be here next time and I will pass on those comments.
CHAIR: You can tell him it will be a pleasure to look forward to.
Ms Hartland : I am sure he will feel the same.
Proceedings suspended from 11 : 16 to 12:04