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JOINT COMMITTEE ON ASIO, ASIS AND DSD
Review of ASIO's questioning and detention powers
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JOINT COMMITTEE ON ASIO, ASIS AND DSD
Senator ROBERT RAY
Review of ASIO's questioning and detention powers
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JOINT COMMITTEE ON ASIO, ASIS AND DSD
(Joint-Monday, 6 June 2005)
McKINNON, Professor Kenneth
HERMAN, Mr Jack Richard
Senator ROBERT RAY
RYAN, Mr Mark
WOLPE, Mr Bruce
NORTH, Mr John
Senator ROBERT RAY
PETTITT, Ms Annie Frances
BISHOP, Ms Julie Anne
Senator ROBERT RAY
Senator SANDY MACDONALD
SHULMAN, Ms Joanna Laura Rosenman
AGGARWAL, Ms Alison Gita
ROUDE, Mr Ali
Senator SANDY MACDONALD
Senator ROBERT RAY
KADOUS, Dr Mohammed Waleed
CHONG, Ms Agnes Hoi-Shan
Senator ROBERT RAY
BANKS, Ms Robin L
Senator ROBERT RAY
STRATTON, Ms Jane
- Mr Wolpe
Content WindowJOINT COMMITTEE ON ASIO, ASIS AND DSD - 06/06/2005 - Review of ASIO's questioning and detention powers
ACTING CHAIR —We welcome you to this inquiry and invite you to make an opening statement which we will follow with questions.
Ms Banks —Thank you for the opportunity to speak to you as the committee reviewing division 3, part III of the ASIO Act. We certainly congratulate the committee on its work to date and acknowledge the important role that the committee plays in monitoring ASIO, ASIS and DSD.
As you are aware, the centre have made a comprehensive written submission. We do not intend to elaborate in any great detail on the points but we want to amplify several issues. Before I do that, I will briefly remind the committee of our fundamental position, which is that the compulsory questioning and detention powers ought to be repealed because they are extraordinary, unnecessary and disproportionate to counter the perceived or actual security threats to Australia. In the event that the committee’s recommendation, and the parliamentary decision, is not to repeal the legislation, we certainly would urge the committee and the parliament to make amendments that will be coherent and consistent with the intended purpose of the law while maintaining protection of appropriate and core values of our parliamentary democracy.
Firstly, the notion that a new security environment exists has been used to counter or contradict fundamental human rights protections and the rule of law. In our view, measures to be implemented in response to any new security environment or potential threats to Australian society should be carefully tailored to recognise and reinforce the compatibility of international human rights with the protection and sustainability of society rather than seeing those as competing outcomes, as we think this legislation does. The appropriate form of regulation should be determined from the perspective of Australian constitutionalism; the human rights obligations which Australia has also voluntarily entered into as a part of an international process in the UN; the constraints on the exercise of governmental power that are found and reinforced by the rule of law; and the separation of powers between the executive, the parliament and the judiciary. The focus should therefore be on ensuring that any powers granted to the executive, in the form of ASIO, are subject to adequate and independent review by the other two arms of government, the parliament and the judiciary. Obviously this committee process is part of that, but we say that the process needs to go further. This means retaining a sunset provision that allows regular review of whether or not the powers continue to be necessary, quarterly reporting to parliament on the use of the powers and providing for independent judicial review in relation to the issuance and exercise of powers under the legislation.
Secondly, the other matter we want to focus on is our submission that the application of the powers should be narrowed in relation to the notion of terrorism; they should be limited to the prevention of imminent terrorist threats. To that end we reflected on what ASIO said in its unclassified submission to the committee—that the need for the powers comes to the fore particularly where there is a threat of harm which is immediate and where other forms of intelligence collection have not been sufficient and are too slow. The other things that ASIO has pointed to are the circumstances where limited insight has been gained into terrorist activity and where other attempts by the groups have interfered with ASIO’s attempts to identify who is involved or assess the extent of the threat where there is a reasonable suspicion of terrorist activity, but efforts to resolve it have been unsuccessful and there has been a lack of cooperation.
Those criteria articulated by ASIO are not reflected explicitly by sections 34C and 34D of the act, yet they are more consistent, in our view, with the purposes of the division—namely, to prevent an imminent terrorist attack. We argue that at a minimum the provisions need to be amended to reflect that imminence and to ensure that that is when the powers are called into play. There should also be more selective and careful definition of ‘terrorism’ and ‘terrorist offences’ used in this legislation than that which is provided in part 5.3 of the Criminal Code and which is currently relied on for this legislation. It would result in a more tailored and more proportionate legislative response to the legitimate ends of seeking to prevent terrorist attacks in Australia.
Finally, PIAC reject the assertion by ASIO that the distinction between ‘suspect’ and ‘nonsuspect’ is irrelevant. The distinction is key because it lies at the heart of the constitutionality of the detention regime, its compliance with human rights standards and, ultimately, whether or not ASIO is the correct body with which to vest such powers, which in our view are fundamentally policing powers and belong with the Federal Police. That is the extent of our opening statement. I am happy to take any questions the committee has.
ACTING CHAIR —I notice that you said in your opening statement that the provisions of the act are out of proportion to any perceived or real security threats to Australia. How do you draw that conclusion when the only people who really understand what some of our security threats are are the intelligence organisations themselves?
Ms Banks —In my view, the threats clearly exist. I do not think anybody can doubt that. As you say, the extent of them is unknown to many of us and probably to you as well. To undermine the protections that are so central to the rule of law, in our view, could only be justified if the threats were immediate and really were widespread. The rule of law has been a solid and effective protection mechanism to enable government to act appropriately in response to threats it faces for many decades—centuries even. In our view, while the threats we are currently facing may be of a different nature and may be harder to identify—certainly by us—that should not be allowed to undermine the effectiveness of using the rule of law as the mechanism to protect against threats.
ACTING CHAIR —You have expanded a bit. First you talked about immediate threats and now you are talking about immediate and widespread threats. Can you give us an example of what you think are immediate and widespread threats?
Ms Banks —I do not have a response to that.
ACTING CHAIR —You said it, not me.
Ms Banks —Yes, I did. You asked me what would be proportionate, but it seems to me that, unless a threat is going to affect a significant percentage or a significant aspect of our society, it would be an extreme response to take away the fundamental protections we have through the rule of law.
Ms Stratton —I think that the language that we have used in the submission and that we would like to use going forward is the concept of imminence. We note that ASIO uses the concept of immediate threat in its unclassified submission. We would think that immediate and/or imminent would be the threshold of threat—that is, where there is a material threat to property or to people in Australia that is identifiable. It is more than a whim; it is something that is identifiable.
ACTING CHAIR —Identifiable by whom?
Ms Stratton —ASIO is the organisation. I think that it is important to mark the normality of the bounds of what we are trying to say. Our first position is that these powers ought to be repealed but, in answering your questions, we are obviously working within the environment—
ACTING CHAIR —That is fair enough. I guess the follow-up question is: how do you know that there is not an immediate or imminent threat today?
Ms Stratton —The honest answer to that is that we do not.
ACTING CHAIR —I do not know.
Ms Banks —Perhaps you should.
Ms Stratton —That is what we are saying.
ACTING CHAIR —I am not too sure about that.
Ms Stratton —That is the position that we take. We deal with that in our submission in the public accountability and reporting requirements. We think that, if parliamentary scrutiny is to be meaningful, this parliamentary committee ought to be able to do more than merely request information of ASIO; it ought to be furnished as a matter of right with that type of information so that it can provide the supervisory jurisdiction that we think it ought to in a properly functioning separation of powers.
ACTING CHAIR —This committee does take some evidence in private, so there are some issues that we would necessarily not raise in public.
Ms Stratton —We acknowledge that in our submission.
Ms Banks —The fact that you identified that there may be threats that you are not aware of suggests that there is a process operating outside any scrutiny and without review, which is surely not the appropriate mechanism in a parliamentary democracy. While you may not know about it when it is an immediate threat, the need to be able to review it at a later stage is vital to ensure that the powers are being exercised appropriately. I may never know because I am not a parliamentarian, but I would hope that any powers that are exercised by the executive are subject to parliamentary scrutiny. That is the purpose of our constitutional framework.
ACTING CHAIR —You talk about the definitions of ‘terrorism’ and ‘terrorist acts’ as being too broad. One of the other submissions today made a recommendation about it being an actual terrorist threat. How do we define ‘terrorism’? What do you believe is an actual terrorist act? I am not sure why you think that ‘terrorism’ and ‘terrorist acts’ are too broad. Can you expand on that?
Ms Stratton —This raises the really difficult question of where to draw the line, but it is one that we think the committee should grapple with. This act, of course, borrows from the Criminal Code part 5.3 in its definition of ‘terrorism’. In the way that these powers are triggered it talks about ‘information that may be important to terrorist offences’, so you get all those concepts of terrorist offences that are in the Criminal Code.
ACTING CHAIR —The exact words that were given to us this morning by the National Association of Community Legal Centres were:
... the role of ASIO should be limited to the prevention of actual terrorist activities ...
Ms Stratton —There are two points I would make. First of all, we are clear about the concept of ‘imminence’ or ‘immediate threat’. That is the kind of threshold that we are trying to find a way of expressing through what is already defined as a terrorist offence. In our submission we use the concept of ‘actual knowledge’, or something that is more than recklessness, in terms of the mental element of the crime. I think that is a separate question.
There is also the difficult question of where to draw the line. There are a very broad range of offences at the moment captured as terrorist offences. Whether that is proper or not is an entirely separate discussion, because it goes to the criminality of what is a terrorist, who should be arrested and who is properly put in jail for particular acts. That is not what we want to discuss. We are saying that these powers, which the government itself has said are extraordinary, ought to be limited to something that amounts to an immediate or imminent terrorist threat. Trying to map those two concepts is what we are interested in asking the committee to think about.
Mr KERR —The difficulty is that we use the language of terrorism generically when we speak, but statutorily it is defined in a very broad way. Sometimes the language gets muddled up: we use one when we should be using the other or we don’t work through the subtleties of some of it. If we were minded to follow up the point that you are making, we would understand you to be saying that the language that defines the various criminal offences of terrorism under the Criminal Code is not the appropriate triggering language that should be used for this statute.
Ms Stratton —That is what I am trying to say.
ACTING CHAIR —I tried very hard to get the witness this morning to say whether or not they agreed that training with a terrorist organisation should come under the range of terrorist acts that we are talking about here, and I did not really get an answer. How would you feel about someone who trains with a terrorist organisation?
Ms Stratton —I would prefer to reframe it, and say that that is not the appropriate way to frame what constitutes an ‘immediate’ or ‘imminent’ threat. We need to think about coming up with a concept that captures the idea of imminence or immediacy, without perhaps being so tied to offences that are easily tripped, such as the association offences. For instance, if I regularly attend Lakemba Mosque and make donations to a particular organisation, I may well be unwittingly caught up in the operation of the Criminal Code, because recklessness is the threshold mental element. We say that is too low for a person to be caught up, compulsorily questioned and, particularly, to be detained under these powers. So I am not sure that thinking about it offence by offence is the right way to do it, and that is why we have not tried to do that.
Senator ROBERT RAY —Why would anyone in their right mind, believing you have committed a criminal offence, want to question you when none of your answers can be used in evidence? They would just arrest you under existing powers and question you there, surely?
Ms Stratton —Perhaps that strengthens the submission that we are trying to make: that existing powers are enough and the Australian Federal Police—
Senator ROBERT RAY —It might. It does not strengthen that argument. It is just bringing it to bear, I am afraid.
Ms Stratton —I think it is a separate point. There are a number of parallel arguments at play here. I am not positing a threshold. I do not have an open and shut—
ACTING CHAIR —The reason I am talking about the imminence and immediacy of the threat is that I bet the perpetrators of 9-11 did not do all their planning the day before. This is something they had put in place over months and years. Why should it be an immediate or imminent threat when in fact the worst case that we have ever had was obviously planned well in advance?
Ms Stratton —Because these powers were posited as a last resort, that is why. ASIO framed them that way, too. They say that the reason they use these types of warrants is where all else has failed. So, if they do not already know about it, it is too late anyway. These powers are probably not going to help you.
ACTING CHAIR —I disagree. I know we are not here to debate the issues.
Ms Stratton —I wish that I could find this but somewhere I read a media report in which Mr Dennis Richardson was saying that he did not believe that these types of powers would have been sufficient to prevent an attack like that. I do not know whether he was framing it as an ‘attack of that scale’ or something else, but he said that it would not have been sufficient to have prevented 9-11.
ACTING CHAIR —I think he may have said that it ‘may not’ have prevented it, not ‘would not’.
Ms Stratton —Okay.
ACTING CHAIR —That puts a different complexion on the whole issue.
Ms Stratton —I will accept that it may not have prevented 9-11.
ACTING CHAIR —But it may have, or it may not have.
Ms Stratton —Yes. But I am not sure that we can come up with something—
Mr KERR —This will not prevent everything. Let us assume that one of the principals of 9-11 got caught. They would probably have told fibs or kept their mouth shut and taken six months in prison for a first offence. This will not work with everything. There is a hard question here. We have had it for just under two years. We have had some experience under the current administration, but that administration will change.
ACTING CHAIR —You are not talking about the administration, are you?
Mr KERR —No, Dennis Richardson’s administration. That, at least, will change. We have hopes of larger change. A number of submitters are trying to pare this back into a narrower frame and some are trying to eliminate it entirely. Others say that it should be entrenched in the statute books. Within that sort of framework, it would assist us if on reflection you are able to do what you say you currently cannot, which is to give us a threshold test that would be preferable. It does not take us very far to have a critique that says the existing threshold is not apt.
Ms Banks —Our recommendation talks about active knowledge rather than the recklessness of being not aware whether or not the organisation you are dealing with is a terrorist organisation. That notion of intention that reflects the criminal law is certainly part of any threshold test that we would see as appropriate.
Senator ROBERT RAY —The whole concept here that we often confuse is that this legislation seeks to be an intelligence-gathering exercise and not an evidence-gathering exercise. If you want to boil this down to its most fundamental point, the toughest point in it is that it takes away the right to silence. Everything else derives from that—all the other protections, penalties or whatever else. What the Australian parliament has said is that in regard to a potential terrorist act that is going to affect innocent victims you do not have a right to silence. That distils this legislation right down to the bottom. You basically say, ‘It is too big a human right to give up.’
Ms Banks —I think that is probably not a bad analysis. This is absolutely about intelligence gathering; it is not about policing. And yet what has been given under this legislation to ASIO is, in our view, much more akin to policing powers than intelligence-gathering powers. They do not seem to sit particularly with ASIO’s role and mechanisms because, in order to protect ASIO’s identity, you have to have all of those secrecy provisions. If the legislation were more coherent with the notion of intelligence gathering, you might not have as many of the problems of protecting from disclosure who was questioning and what they were questioning about. All of that comes from the fact that you are granting to an intelligence-gathering body something that is not particularly akin to intelligence gathering, except in the most brutal sense—and I do not mean in a physical or violent sense; I mean in the most direct sense possible.
Mr KERR —Many people have raised the association offences as a concern. I remember a lot of the early submissions were around the Communist Party dissolution case. Most people who study history will remember that the United States had a particularly nasty period under Senator McCarthy where people were asked to name names and to identify people who were members of the Communist Party. It does not seem, in this round of submissions, that there has been any strong case put forward that any of the organisations that have been proscribed have a legitimacy that we should acknowledge. We have done reviews of those organisations and without exception we have not recommended disallowance of any of the proposals. Basically, no-one is defending the entitlement to participate and belong to proscribed organisations. Doesn’t that weaken some of the attack on the breadth of the terrorism related offences? Certainly, if we were proscribing organisations that even fringe groups out in the community say are playing a legitimate part in the political discourse, then we would be having a very different debate than we are having currently, I suspect.
Ms Banks —I think that is correct, certainly in terms of the proscription process. We made submissions in relation to the recent review of that. It is very difficult to know whether or not those groups are properly proscribed because the detail of their activities that makes them the subject of proscription is not publicly known.
Mr KERR —Yes it is. It has to be, virtually. The Attorney publishes his or her reasons.
Ms Banks —But the detail of the reasons is limited.
Ms Stratton —We do not know the background information. The criteria may be publicly known, but not the precise reasons the government has for believing that. It is the background intelligence that no-one in the public sphere knows. You may know that, as members of the committee, but we are not in a position to know that.
Senator ROBERT RAY —The reason it was made that way, if it is a disallowable instrument, is that you cannot have the government claiming stuff that is not on the public record. But, you are right. It is a problem for the general public to understand, I am sure. It is one of the weaknesses that we have to deal with.
Ms Stratton —It is an understandable difficulty, but it is also the reason many of the submissions, our submission and other submissions in a similar vein, come from first principles. We do not have the mill and grist of the information that you are privy to—
Mr KERR —It may be a bit more than that. If anybody out there were making a case that an organisation really should not be proscribed, surely we would have heard it. All I am saying is that, given the capacity for concern about this legislation, if there were not a case—if one of these organisations truly was a civil society organisation or a people’s liberation movement, like the ANC might have been, which certainly conducted acts of terrorism but was engaged in broader social objectives at the same time, such that it had a number of supporters—we would have heard some argument addressed on the merits of a particular organisation not being proscribed.
We have not had that. We have had concern that organisations should not be proscribed without adequate reasons being given. But, to my knowledge, I do not think we have ever had a positive case advanced to us that any of those organisations are organisations which you could belong to, knowingly, which would not take you outside the social compact that we all share as citizens.
Ms Banks —I cannot disagree with you. I think you are right; there has not been a strong argument put as to whether those organisations somehow are good bodies to join as a local community.
Mr BYRNE —Your recommendation on page 21, which relates to the heavying of people who are questioned by ASIO, recommends that the act be amended to ‘create a new offence by persons empowered to seek or execute warrants, such that threats made to persons to induce them to give information et cetera’. We took some evidence from some groups, just before you came to the table, which were talking about people being ‘heavied’, for want of a better term, to provide information, otherwise those powers would be used. Are you aware of any specific instances of that?
Ms Stratton —Only the instances that AMCRAN—the Australian Muslim Civil Rights Advocacy Network—shared with us. I think they have disclosed those to the committee, to the extent that they know about them. There is anecdotal evidence from community legal centre workers. PIAC participates in the National Association of Community Legal Centres’ Human Rights Network, which is a nationwide network. It is convened by telephone. We have regular hook-ups and workers have shared anecdotes. We are aware from similar workers reporting to us—not from the case load that we have—that there is a reluctance to come forward and a lack of understanding about what you can and cannot say, a lack of understanding as to whether or not you are subject to a warrant, and that is what inspired us to include this recommendation.
Mr BYRNE —Some sort of protection so that those people would not be—
Ms Stratton —A good faith requirement.
Mr BYRNE —That would be incorporated within the act. With respect to disclosure of any matter on which the committee requires information—that is on page 19—what would make you think that that disclosure is not occurring at the present time?
Ms Stratton —We do not have information as to whether it is or whether it isn’t. If what you are saying is that that disclosure is occurring then that is comforting. I suppose in that respect the submission is positing an ideal state of affairs.
Mr BYRNE —With respect to the protections that are built in with respect to the issuing authority and the prescribed authority—it is not a perfect world—are you comparatively happy with those particular protections or safeguards that have been put in? Do you have any alternative to the systems kept in place?
Ms Stratton —We have issues—and I believe this is mentioned in other submissions also—with the issuing authority on two counts. One is that the cumulative requirements that the Attorney has to be satisfied of in exercising the consent in section 34C are not carried over to the issuing authority. I would be interested to hear why that is—
Senator ROBERT RAY —To give a good reason.
Ms Stratton —and whether there are practical impediments. Another issue is judicial review. We note that there is access to the Federal Court in relation to the execution of the warrant but we are concerned that, in relation to the issuing of the warrant, it might be appropriate for there to be independent supervision of that process also, which is consistent with the safeguard that has already been built in for the execution of the warrant when someone is actually in custody. The preference that we have expressed in our submission is that that be judicial oversight, and I think that is what we think is preferable because of our position on the separation of powers. But if we needed to frame it more generically, a second position might be some kind of independent oversight. We think that is important.
Mr BYRNE —A separate judicial oversight of the entire process or just sections of it?
Ms Stratton —We say that it should be over the entire process and, by covering the issuing authority, that would be to complete the oversight, if you like.
ACTING CHAIR —One of your recommendations bothers me somewhat, and that is that—
Ms Stratton —I am glad it is just one of them.
ACTING CHAIR —It is only the wording of it. It is on page 15 of your submission where you recommend:
... that the Committee approach this legislation with the understanding that Australian constitutionalism, rule of law and commitment to human rights are non-negotiable and must be protected—
then you say:
especially in any response to threats to national security.
Why the emphasis on threats to national security and not everywhere else?
Ms Stratton —We emphasise that because often, as Robin alluded to in the opening statement, national security is pitted against human rights discourse or rule of law, for instance. The best recent example I can give you was a statement by Mr Robert Cornall, the secretary of the Commonwealth Attorney-General’s Department. He said that human rights are a concept that is well and good—and I am paraphrasing brutally here—but belong to a comfortable time, but in the age of terrorism they need to be limited in their exercise by individuals by a concept that he termed ‘community rights’. He located that idea in article 3 of the Universal Declaration of Human Rights, which is the right to life and security. I think the argument is that individuals refer in a way that individual right to the Commonwealth, which holds it in trust and exercises it on behalf of everybody as a community right. It is a utilitarian type of argument. We reject that logic firmly and we have done so publicly. We say that individual human rights are not something that accrue to the state; they are something that individuals hold and they are something to be asserted against the state. We reject fundamentally the type of opposition of the discourse of national security against human rights, the rule of law, so that the argument might be: ‘This is a time of emergency, so it is important that the executive can do this. It is extraordinary. It justifies the rolling back of civil liberties.’ We are concerned about pitting those concepts against another. We do not see it that way.
Ms Banks —Individual human rights, the rule of law and constitutionalism exist in order to protect the integrity of the state and its citizens. They are coherent rather than combative. We should be seeking to achieve measures that reflect that coherence, the compatibility of protecting individuals and the state with the rights and constitutionalism that we live with within that framework. In using the word ‘especially’, we are saying that this has been used to counter but we do not think that that is the appropriate way to think about what is occurring. You can maintain the protection of rights and constitutionalism, and implement appropriate security measures.
ACTING CHAIR —I am not sure I am any wiser.
Mr KERR —But better informed!
ACTING CHAIR —Perhaps I should show the transcript to Mr Cornall and give him another dig.
Ms Stratton —We shared our correspondence with him at the time.
Senator ROBERT RAY —I remember in your opening statement you talked about threats to Australia, which is a recurrent theme. I am sure it is unintended, but what we intend with this legislation is threats to anyone. If there is terrorist planning in this country, at least 50 per cent is a terrorist act overseas rather than here. Do you think we should be trying to protect people overseas by using the powers of the state?
Ms Banks —As part of an international community I think we have responsibilities to ensure the protection of all global citizens. In talking about threats to Australia the primary focus is an important one, but obviously protecting others is important as well.
Senator ROBERT RAY —You made the point earlier, Ms Stratton, that the issuing authority should take the same criteria into account as the Director-General and the Attorney-General. The problem with that is we would have to train every issuing authority—that is, the Federal Court and the Federal Magistrates Court—with the knowledge of what alternative measures are available to ASIO, which we are reluctant to do.
The alternative to that is to have only one or two issuing authorities, which goes totally contrary to the way we want the act to work. We do not want a couple of tame Uncle Tom judges being the ones ASIO go to all the time—and I do not think they would ever intend to. So there is our dilemma. We consciously made different criteria for the Attorney-General and the issuing authority so that we would get a widespread issuing authority. We even put in senior AAT people in case the other two were not available, which we were also reluctant to do.
Ms Stratton —We resisted the AAT measure.
Senator ROBERT RAY —I think that even though the act allows it, in reality you have won the case on that. We have enough issuing authorities with Federal Court judges and magistrates wanting to do it, but if we expand that criterion we are going to narrow the number of issuing authorities. It is not an easy dilemma; that is all I am saying.
Ms Banks —Does that not reflect a lack of trust in the judiciary?
Senator ROBERT RAY —No. It is not a lack of trust. The need-to-know basis is not a silly concept when it comes to intelligence matters. You do limit it as much as possible. We do not really want some of the techniques of interception to be known, frankly. I probably have a different philosophical approach from you, but I think it is part of the social compact and political compact that you cede to the executive very limited areas that they are entitled to protect. We have to take them on trust, and they have to win that trust. If they do not then a lot of the points you make come into play. We differ on that; that is all.
Ms Stratton —I just wonder, Senator Ray, whether there is not a midway point that means giving full disclosure not of secret operations A, B, C and D, but rather of the means that are available to ASIO. A lot of that would be in legislation or some kind of regulation. Would it not be a matter of ticking the boxes? If ASIO were making representations, of course they would be confidential. Or perhaps it would be a matter of not going into classified material and there being limited ability for the issuing authority to go behind that.
Senator ROBERT RAY —You are looking at some of the very small matters here and you are missing the big picture, which is: do the results of the questioning regime justify the issuing of the warrant? That is the big issue. The issuing of the warrant on this or that ground is not so important; it is whether the end process justifies the issuing of the warrant. In our legal system, it occurs to me, we have hardly a method of benchmarking that. There are a couple of ways. If it turns out at the end of the day that the type of questions asked, let alone the answers, do not justify the warrant then we have a major problem. It is much bigger than whether or not there is an alternative method. That seems to me to be the big picture item here. You cannot be expected to tackle that, because you do not know what occurred in the questioning process. But I think we have to find a way, because it is not just in this process but right across the legal process. In the issuing of a warrant, often the result at the other end does not justify the original warrant. That is my concern. I think it is a bigger issue than the one you have raised.
Mr McARTHUR —On page 7 of your submission you have raised the matter of the new security environment. You suggest that September 11, Bali and other incidents are not quite a new environment. You suggest in your recommendation that really the institutional self-interest of the organisations should be reduced to improve security. The people in Australia expect the government and the parliament to take some action after September 11 and Bali and these types of attacks. What are you suggesting the agencies should do?
Ms Stratton —I cannot answer that without going into the entire submission, but the point we are trying to make there is that we think this is a question of framing—that is, the way that the story is being told. We think that there is not a pre- and a post-9.11 world. Terrorism has been around and with us for a long time—and if not terrorism then another type of threat. The point is that there have always been threats. Every nation state faces threats; every community faces threats of different ways and means. We are trying to say that, regardless of what that is called—whether it is called communism, as in the Cold War period, or whether it is the idea of foreigners coming to our shores through the White Australia period or today, when there is mandatory detention—we need to look behind the rhetoric of the new security environment and be rigorous with the concept. We need to demand that the people who claim they are acting in the name of national security or a new security environment or a threat environment ground their claims. We should not just accept that at face value, which is an easily understandable, emotionally driven thing to do, especially when you know people who have died or who have been touched by those sorts of events.
Mr McARTHUR —Wouldn’t you agree that there is an expectation amongst the Australian people that the agencies will actually seek intelligence and be aware and undertake some of these activities so that they can at least understand where the next potential terrorist activity might be?
Ms Stratton —Yes, but our point is that existing intelligence tools and methods are adequate to do that. That is the point that we are making.
Ms Banks —And responding with such measures could be read by the populace as an admission that in the past we have not had appropriate mechanisms in place to protect the populace and gather intelligence, and that does not appear to be the case. It appears that ASIO has had a range of powers that have enabled it to go about its business appropriately. So in some ways, in responding to the events of September 11 the response has suggested that there is a much greater need for fear. In fact, there has been a threat in existence for much longer than that and we have had mechanisms to intercept and deal with threats for much longer than just since September 2001. So it is that idea that we should treat the world as a different place when the world has been a dangerous place for much longer than just the last few years.
Mr McARTHUR —So you do not think it has changed very much since September 11 in terms of technology and ongoing—
Ms Banks —No, not since September 11. There is a range of technologies available that creates threats to people. The technology used in those attacks was not particularly sophisticated: it is not about using high- and new-level technologies: it is about using force, and it seems to me that to suggest that something fundamental has changed in the way in which terrorism operates is to focus on the wrong problem. ASIO does have powers and has been using them appropriately for a long time. The question becomes whether you feed the fear by suggesting that you need greater and greater powers or whether you continue to do the job that you are doing effectively and government reassures people that it is doing everything it can to respond to—
Mr McARTHUR —There are a lot of checks and balances in this whole process, surely.
Ms Banks —I am sorry: I am not sure—
Mr McARTHUR —Well, the process of issuing warrants and—
Mr BYRNE —Safeguards.
Mr McARTHUR —There are an enormous number of checks and balances in the way the warrants are issued and in this whole process in the Australian context. What do you say to that?
Ms Stratton —We applaud the safeguards that are currently in place and we know that it is due to the work of this committee that some of those safeguards are there. But this committee recommended things that were not necessarily implemented, so even on the committee’s own record there are things that could be improved. We echo that, and we go further, consistent with our submission, by saying that there are key aspects—in particular, explicit human rights protection and joining the dots of judicial review—that we urge the committee to take up in making recommendations about the further passage of this legislation if it is not repealed. It is proper that there should be checks and balances in this legislation, because the powers are extraordinary, and that is why the first thing that we said this afternoon was that a sunset clause and ongoing scrutiny by this committee are crucial.
Mr BYRNE —Would your concerns be assuaged if, on a hypothetical basis—say, on the number of warrants that have been issued so far and in the future—the committee was satisfied that it met the test for those warrants to be issued? Given that the committee is obviously privy to some classified information that cannot be put out in the public domain, if the committee, operating on behalf of the public, were scrutinising the processes and what has actually transpired and it met their tests with unanimous agreement, would that provide some comfort if that committee then, without going into too much detail, reported back the parliament that what has been issued has met the test that you have set down?
Ms Banks —You asked: does it add some comfort? Yes, it does, inevitably. When you have got a multiparty or bipartisan approach with a number of people coming at it from a number of different angles, and if you are all reassured that the criteria have been met—
Mr BYRNE —Hypothetically.
Ms Banks —certainly that would suggest that it is not merely one person saying, ‘It is all okay.’ Obviously the more scrutiny it gets and the more the committee as a whole accepts that the criteria have been properly applied, it does obviously add a level of comfort.
Ms Stratton —But I think the judiciary is the branch which has traditionally exercised that type of balancing role, particularly when individuals’ rights are involved. We cannot not put that on the record. The judiciary plays that type of supervisory role.
Mr BYRNE —But in the potential absence of the judiciary—
Ms Stratton —Then certainly.
ACTING CHAIR —Thank you very much for appearing before us today and for your contributions to the inquiry. No doubt they will help us in our deliberations. Thank you very much.
Resolved (on motion by Senator Ray):
That this committee authorises the publication, including proof transcripts on the internet, of the evidence given before it at the public hearing today as part of the records of the committee’s review of division 3 part III of the Australian Security Intelligence Organisation Act 1979.
Committee adjourned at 3.41 pm