Mr JULL (1:18 PM) —On behalf of the Parliamentary Joint Committee on ASIO, ASIS and DSD, I present the committee’s report entitled ASIO’s questioning and detention powers—review of the operation, effectiveness and implications of division 3 of part III in the Australian Security Intelligence Organisation Act 1979, together with evidence received by the committee.

Ordered that the report be made a parliamentary paper.

Mr JULL —I present the review by the Parliamentary Joint Committee on ASIO, ASIS and DSD of the operations, effectiveness and implications of ASIO’s questioning and detention powers. The committee’s name changed on Friday to the Parliamentary Joint Committee on Intelligence and Security; however, this review was wholly completed under the old name so that is the name that appears on the report being tabled today.

This review is a fulfilment of the requirement in section 29 of the Intelligence Services Act that the committee would review the operations of this provision three years after its implementation and prior to the activation of the sunset clause in July 2006.

ASIO provided the committee with a substantial and comprehensive classified submission detailing the operations of the powers over a three-year period. The committee is most grateful for this information, which it found immensely important to its understanding of the operations of the act.

The committee’s findings in relation to the operations of division 3, part III are as follows. ASIO used its questioning powers, under warrant, 14 times over the period of the review. It did not use its detention powers. No request for a warrant was rejected by either the Attorney-General or the issuing authority. All subjects of warrants had access to legal advisers, although not all subjects used legal advisers for the whole period of their questioning. No legal representatives were removed on the grounds of disrupting the proceedings. All applications for financial assistance made to the Attorney-General’s Department have been granted.

ASIO complied with both the act and the protocol in relation to the general conduct of the questioning—that is, it adhered to the laws and regulations in relation to the periods of questioning, the granting of breaks, the allowing of prayer times and the explanation of the procedures to the subject et cetera. The Inspector-General of Intelligence and Security or someone from his office attended the first day of all questioning warrants. All questionings were videotaped and transcribed and all videotapes and transcripts were provided to the office of the Inspector-General. The committee also had an opportunity to view videotapes and transcripts for the first eight warrants, but not the last six.

The nature of the questioning was described by the IGIS as ‘professional and appropriate’ and ‘the subjects of warrants were treated with humanity and respect for human dignity’, even in the face of ‘abusive and evasive comments’. The prescribed authority described the nature of the questioning as ‘questions merely to get information’ rather than ‘cross-examination’.

No complaints were made to the Federal Court or to the Ombudsman. However, some complaints about the process were made to IGIS and to the committee. The details of these complaints are set out in the report. They included:

• A lack of specificity in the warrants and therefore a limiting of the supervision of the questioning.
• A series of complaints about the nature of the questions which, while they were acknowledged to be polite and professional, might be considered to be improper.
• The right of lawyers to intervene—in circumstances where questions appeared to be improper, lawyers believed they should have a right to intervene.
• Problems associated with the right to use interpreters—interpreters were refused on occasions and, where the period of questioning had been extended for those using interpreters, there was a danger that this might inhibit a subject from asking for the use of one even where that might be advisable.
• There were claims of prejudicial reporting in the media about people subject to questioning warrants whose right of reply was curtailed by the secrecy provisions of the act.

These complaints were central to the debate during the inquiry and have informed the committee’s subsequent recommendations. A number of the committee’s recommendations were supported by the IGIS and regarded as reasonable by officials from ASIO and the Attorney-General’s Department during the inquiry.

The committee has also asked that the secrecy provisions be re-examined—that penalties for breaches be made standard, that the definition of ‘operational information’ for the purposes of the secrecy provisions be narrowed, that greater disclosure be possible on questioning-only warrants and that the prescribed authority be given some decision-making power in relation to disclosure under the secrecy provisions.

The committee took a great deal of evidence from the Muslim community on the implications of the legislation for them. They expressed concern that the impact on them was negative, that it had created apprehension and a sense that they had to prove their innocence.

Finally, the committee acknowledged and accepted the view put to it by almost all witnesses that the powers within division 3 part III were extraordinary powers that should remain on the statute book only so long as necessary. Therefore, the committee believes that the sunset clause, albeit over a longer time frame, must be re-inserted into the legislation when it is re-enacted next year.

I commend the report to the House.