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Parliamentary Joint Committee on Intelligence and Security
ASIO's questioning and detention powers

BLIGHT, Mr Jake, Deputy Inspector-General, Office of the Inspector-General of Intelligence and Security

STONE, The Hon. Margaret, Inspector-General, Office of the Inspector-General of Intelligence and Security

Committee met at 09:36

CHAIR ( Mr Hastie ): Good morning, everyone—particularly IGIS. Ms Stone and Mr Blight, thank you for joining us. I declare open this public hearing of the Parliamentary Joint Committee on Intelligence and Security for the review of division 3 of part III of the Australian Security Intelligence Organisation Act 1979.

These are public proceedings, although the committee may agree to a request to have evidence heard in camera and may determine that certain evidence should be heard in camera. I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

In accordance with the committee's resolution of 12 October 2016, this hearing will be broadcast on the parliament's website and the proof and official transcripts of the proceedings will be published on the parliament's website. Those present here today are advised that filming and recording are permitted during the hearing. I also remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee.

I now welcome the Inspector-General of Intelligence and Security and the Deputy Inspector-General of Intelligence and Security to give evidence today. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Ms Stone : I actually do not think an opening statement is necessary, given the extensive submission we have made. I would like to draw the committee's attention to the matters raised on pages 8 and 9 of our submission, which deals with the current oversight of ASIO, the cooperation of ACIC, and the INSLM's recommendation that the provisions that we are concerned with today be repealed and replaced with a questioning power more closely resembling that based on the Australian Crime Commission Act. If that were to be the case, we would strongly advise that the safeguards that are detailed on page 9 be incorporated to any such amendment. I think that is all I need to say by way of opening.

CHAIR: Thank you. I will begin by talking briefly about the role of IGIS as an independent statutory office. Some of the submissions have suggested that there is not enough oversight. One, indeed, says—and I think it is a bit of a political point—that the IGIS emanates from the executive and, therefore, casts doubt on the rigour of the safeguards in place. If you could just talk us through—

Ms Stone : Certainly.

CHAIR: I draw your attention to page 4 of your submission where you write that IGIS gives real-time consideration of the basis for the seeking of a warrant as opposed to retrospective. So you are intimately involved in the process from the beginning under section 34ZI of the act, as well. If you could talk as through that, that would be great.

Ms Stone : What that means is that we are not looking at whether what happened was legal and proper looking backwards, but we are involved with every stage. We were involved in developing the procedures that govern the exercise of the questioning and detention warrants. Insofar as these procedures have been used, in the first three or four—or was it five?—a member of my staff, or the IGIS himself, because it has not happened in my time, was present all through the questioning. Since then, a representative from my office has been at every exercise of the warrants for at least the first day. The decision not to stay the whole time is, obviously, a resources question. Can I say that the criticism, that my office is an emanation of the executive and, therefore, not independent, is an untutored observation. It ignores the very fact—

Senator McKENZIE: That is very kind, Mr Stone. A very kind way to describe it.

Ms Stone : I am kind. A few stronger words flashed into my mind! It ignores the fact that the inspector-general is a statutory appointment with strong guarantees of independence, including security of tenure with limited exceptions, and without having to report to any minister. The report is by way of an annual report to the parliament. There are provisions in the act that I am not subject to direction as to how I exercise my powers. If you say the IGIS is not independent, then you are saying that judges are not independent. As a former judge, I know what independence looks like, and I am very satisfied that this office is independent. The fact that it emanates initially from the executive does not stop the influence of the executive stopping at the point of appointment.

CHAIR: I think it is a very important point that the safeguards are real time.

Ms Stone : I do, too.

Mr BYRNE: I wholeheartedly endorse the comments that you have made, Inspector-General. I was on the committee that looked at the tranche in 2005, when I think Ian Carnell was IGIS. You simply could not want for a better custodian of civil liberties in this country. If I can add to the absolutely critical nature of the role, my view is that the office has always operated independently. One of the great achievements of the architecture of the national security framework is having your position and your capacity to independently assess the intelligence agencies.

Ms Stone : Can I add that if you look at the oversight provisions in relation to all of the Five Eyes powers, ours, along with New Zealand, would probably be the strongest and the most direct.

Mr BYRNE: Absolutely.

Ms Stone : The only problem for us is resourcing.

Mr BYRNE: Yes, I tie on that. I remember taking evidence, from Mr Carnell when he was IGIS, that they had intensively scrutinised, particularly on the first three occasions when the questioning warrants were issued, and then also—for people listening to this, there are videotapes that are required to be made available of the entire questioning period. Those tapes were made available to the committee when it had the opportunity to look at it with the appropriate safeguards. In terms of anyone who might be trying to say that we have not had a proper opportunity to look at this, that is false. From my perspective, having been on that first committee in 2005, the inspector-general operates as an essential counterbalance and weight in terms of civil liberties. If anyone imputes that is not case, then they do not understand the subject matter. I just wanted to lead to a question. In a lot of the submissions that have been put forward, and even in your submission, there is a view about potentially modifying the existing questioning powers and lining them up with those that are being used by the ACIC. Some of the essential checks and balances were put into the legislation when it was enacted in 2003 and when the committee looked at this again in 2005. There was the issue of going to an issuing authority so that the warrant could be issued for questioning after the decision was taken by the Attorney-General on advice from the agencies, and there would be a prescribed authority sitting there in the questioning to make sure. If we moved to that model, would you want to continue those safeguards? Do you think it would offer the strongest possible protections of civil liberties if we moved to a model that was envisaged by Mr Gyles and others? My concern is that there are some propositions whereby some of the key safeguards are potentially 'streamlined'. That is what they call it; I call it 'taken out'. I would like to have your view on whether, if we countenanced shifting to that model, you would still want some of those safeguards to be available.

Ms Stone : I could say two things. Streamlining is always taking something out and the question is: what is the value of what you took out? I think the value of what would be taken out is very high. This is what I was referring to earlier. On pages 8 and 9, a number of paragraphs address this question. In my view, those are very worthwhile safeguards and I think it is important. It is a matter for the government, obviously, as to whether there is a move to that model. But we would say that satisfactory—not even perfect—oversight would not be possible without those sorts of safeguards.

Mr BYRNE: It would be my personal view that, if we took away some of the fundamental points of the oversight architecture, that could weaken the protections for those that would be subjected to questioning. We will hear from the other agencies about that. Do you also have a view about potentially extending the remit? There has been a lot of discussion about dropping the threshold so that the agencies can then use the power that they have not used for some period of time—since 2010, as I understand it.

Ms Stone : I am not sure what you are referring to or what you have in mind when you talk about extending the remit.

Mr BYRNE: The remit where they could be talking about—

Mr DREYFUS: For espionage.

Mr BYRNE: Espionage and other issues.

Ms Stone : I see. I would have to give that quite a lot of thought. These are very strong powers, as I think we would all agree. Whether we think they are too strong or not strong enough, they are strong. Every step taken to extend the ambit of those powers would have to be carefully thought about. I would not like to venture an opinion until I had a reasoned argument from, say, ASIO as to what would be the value of the extension. I can imagine there are circumstances in which it would be valuable, but I do not think I am equipped to make that decision. The question would be: what is it they want to find out that they cannot find out without these powers? I can imagine there would be some circumstances. If they are very limited circumstances, then you might want to say, 'Okay, we'll extend them to a certain extent, but we want stronger gateways to get into that.' I think that really depends on the argument that ASIO makes.

Mr BYRNE: Thank you for that. Would you have a concern if some of the witnesses from agencies that will come before us later are looking to expand the potential usage of that questioning power? If they started taking away safeguards, that could be quite concerning.

Ms Stone : I think taking away any of these safeguards is a matter of real concern. We have listed on page 9 matters that could be dealt with administratively, but that is a procedural rather than a substantive decision. If you take away any of these safeguards, you lose something. The question is: what do you gain when you take away a safeguard? Some safeguards might have so slight an effect—and I am not talking about any of these—that, on balance, you would say, 'Yes, we can live with that.' But if you are extending the ambit then you need to ask all those questions. In a sense, I cannot answer them. Jake, do you want to add to that?

Mr Blight : I think it is a matter that INSLM has considered. We have come at it from the oversight perspective rather than the fundamental question: should there be a questioning and detention power? We have come at it from the point of view that, if the committee was minded to adopt the model the INSLM has recommended, then these are our points on that model. I do not know that it is for us to recommend a model.

Mr BYRNE: No, I was not asking that question. I am seeking an opinion about the safeguards that are currently in place and what the inspector-general would think about them being removed, and she has provided that.

Ms Stone : I think the bottom line is that safeguards are always important and all safeguards are important—and you cannot answer that in a vacuum. You have to look at what you are trying to achieve and weigh the gravity of that with the limitations that safeguards impose, because they do impose limitations. That is what they are designed to do. That is a judgement that, in a sense, we have got one side of the picture.

Mr BYRNE: Thank you for the evidence. Have you been consulted by ASIO or AGD about any potential widening of the remit of these questioning powers?

Ms Stone : No.

Mr BYRNE: You have not been approached?

Ms Stone : No.

Mr DREYFUS: Just to follow up on Mr Byrne's questions, at page 9 of your submission, you have rightly listed some safeguards if there is to be a continuation of the questioning powers and if, as has been suggested by some people, the model that is in the Australian Crime Commission Act should be adopted. You have said that 'some of the current safeguards should be maintained' and you have listed four at page 9. My question would be: what about the other existing safeguards, such as—

Ms Stone : They are included in what we say could be dealt with administratively.

Mr Blight : The sentence you quoted at the bottom of page 8 states that 'current safeguards relevant to the IGIS role should be maintained'. We confined our commentary to the safeguards about IGIS, not the prescribed and issuing authorities.

Mr DREYFUS: I understood that. Thank you very much. You are not making a general comment about other safeguards such as the use restrictions or other things; it is rather in respect of the IGIS.

Mr Blight : The ones relating to IGIS that are under the heading 'Other matters could be dealt with administratively' are currently points that are dealt with in the statute. If you were minded to be looking for things to streamline, then these would be the ones which perhaps do not add as much value as the points above in that these are things where we think the same outcome could be achieved without prescriptive statutory provisions.

Ms Stone : That bears in mind that, if you dealt with those administratively, we still have the jurisdiction to review the activities of the agencies for legality and propriety. It does not mean that those issues would be without any oversight.

Mr BYRNE: Sorry, cutting across, you and the previous IGIS have looked at the fact that, when the warrant gets issued—the first notification—it comes to you, and that, I think, is when it goes to the issuing authority. In a sense, if they took that bit out, you may not be getting notification of the fact that they might be proceeding today. You might get that afterwards, but one of the key safeguards that was built in around the 2003 legislation and reinforced by the committee in 2005 was that IGIS would get brought into the picture very quickly and they would even get a chance to look at the warrant to ensure in their own mind, in real time, that they would be satisfied that it was being executed. My point is that, in terms of an issuing authority, if that element is taken out and the executive or a member or the Attorney-General or someone from within the service then authorised that, you would have to write in something that would say that you would have to be notified.

Ms Stone : The first paragraph dealing with copies of key documents to be provided envisages that the current requirement—

Mr BYRNE: With the issuing authority?

Ms Stone : Yes.

Mr Blight : We had phrased it fairly broadly, not being quite sure what you would do.

Mr BYRNE: I am just trying to assist you!

Mr Blight : When we said 'relevant initiating documents would be provided', we chose the term 'initiating documents' to cover whatever it was that kicked the process off, whether that is a draft submission to the Attorney-General or—

Mr BYRNE: In contemplating this, a lot of people will not understand the history of it and also the safeguards—the sorts of very strong and effective safeguards that were built in. I am just wanting to make sure people understand that, when you change one bit, it does have an impact on the rest of the oversight mechanisms, and at the very least, if there were a change, the moment that a warrant were issued or a warrant were contemplated—it says in the legislation that you can get draft warrants—my expectation would be that you would be notified in accordance with the provisions in the existing legislation.

Ms Stone : That is right. It is always difficult to comment on something that is only envisaged. Perhaps that much has been more nebulous than we might otherwise like. But I should make it very clear that, in my view, it is an important safeguard that we are notified at the very beginning of any such process, however it begins. Because, as you say, unless we are notified, we cannot then follow it step by step.

CHAIR: That is what it says in the act—'the Director-General must, as soon as practicable, give to the IGIS'—at the moment.

Ms Stone : Yes. And, if you were going to change it, we think that should still be there.

Mr DREYFUS: Could I go back to where I was, which was page 9, talking about the other safeguards. I am just a bit puzzled. Are you suggesting, Inspector-General, that, other than the four safeguards you have listed expressly at the top of page 9, all the other safeguards could be dealt with administratively or are you simply saying you could choose?

Ms Stone : We are talking about those which are relevant to our oversight.

Mr DREYFUS: This is not a trick question. Can I give you an example? Section 34K(11) of the ASIO Act is a section that ensures that a person who is under a questioning warrant is not only to have access to you, and that cannot be taken away—that is what 34K(11)(b) says—but (c) says they have to be given facilities for contacting you. This is not a law exam. I am just trying to nail this down.

Ms Stone : It does bring back memories.

Mr DREYFUS: That is something that you would expect to see continuing in the statute, isn’t it? It is a kind of basic guarantee.

Ms Stone : In my view, it would be better, but we are trying to anticipate. So, could we live with those matters being dealt with administratively and still have reasonable oversight or good oversight? I think we could, because, as long as we are being brought in at the beginning so that we can be there from the beginning and know how and where it is going to be conducted, then we can deal with facilities administratively, bearing in mind procedures in terms of legality and propriety.

Also, I think it must not be overlooked that a really important part of effective oversight—even if our office were expanded we still would be small in relation to the intelligence agencies—is that we have real cooperation with them. I think we have that and I do not have any doubt that we would get cooperation on those sorts of things. Sometimes it is better not to do it with a big stick, in my view. If the agencies felt that they were only obliged to do what the statute provides—and that is not an argument for leaving these things in or taking them out but a broad general proposition—we could get into a position, and I do not want us to, where we argue about law all the time. Almost all the discussion that I have with the agencies is about the propriety and reasonability of what they are doing. Mostly the law does not come into it, because they tend not to break the law. They are quite careful about that. And the rest depends on working with it cooperatively. It is like saying, 'Your life will be easier if you cooperate with me.' And that works.

Mr DREYFUS: I do not for a moment doubt the level of cooperation that ASIO and the other intelligence agencies have provided and are providing on a continuing basis to your office. Can I ask you, though: isn't there another reason why we set out in statutes safeguards like the ones we are talking about? I have given you as an example 34K(11) but there are a whole range of others that are in the statute now, like 34C(2)(a), which is a requirement for consultation with you over a written statement of procedures; or a requirement imposed on you in 34Q to raise concerns about impropriety with the prescribed authority; or a requirement in 34ZI for the director-general to give you a range of materials about questioning to facilitate oversight. One of the reasons for those requirements appearing in a statute, can I suggest and invite your comment on, is to give confidence to the public that those things are required. As I say, ASIO has demonstrated over years its active willingness to cooperate with the inspector-general and there is no doubt at all of that. But is another purpose served by that?

Ms Stone : I absolutely agree with you that statutes have an educational role as well as an enforcement role. I completely agree with that. I perhaps have not made it entirely clear. My view is that all of the safeguards that are there in relation to the legislation as it stands are valuable and I would prefer to see them stay. These comments are really trying to address the INSLM's recommendation about moving to the Crime Commission approach. I think we would lose something if we did that, but these are an attempt to say: 'That is a government decision. If the government decided to go that way, what would be essential and what else might we do?' But I am not suggesting that as a path. It would be trying to think how best we could deal with it. If the view was, 'What is essential and what could perhaps be dealt with another way?' that is one possibility. I am not for a moment suggesting that it is my preferred path.

Mr DREYFUS: What do we lose if we go down that path, in your opinion?

Ms Stone : If you go down the path which—?

Mr DREYFUS: Towards the Crime Commission model.

Ms Stone : It depends what you mean by the 'Crime Commission model.' As I understand the Crime Commission model, it does not have these sorts of safeguards. Therefore, I think, there would be real questions about what we lose. I have not heard the argument for what we gain. That is an argument that ASIO and others need to make. I am not expecting to be convinced by that argument, but I might be and I am certainly not ruling it out. So I can refer to what we would lose, but that has to be balanced against what we would gain.

Mr DREYFUS: It is the case, of course, that the questioning and detention warrant has never been used, and the questioning warrant process has not been used by ASIO since 2010. To some extent, your submission and the evidence you can give us is at a pretty theoretical level, because you and your staff have not had any contact with either of these processes.

Ms Stone : We have in mind to do a project on ASIO's cooperation with the Crime Commission. So far, because of constraints on resources, we have not been able to do that, but it is certainly something we would very much like to look into.

Mr DREYFUS: Do you have a view on why ASIO has not used the questioning and detention warrant power at all?

Ms Stone : I think that is something you have to ask ASIO.

Mr DREYFUS: It is not something that has come to you in the course of your work that you feel able to offer an observation as to why?

Ms Stone : No. As I said, we do want to do a project on the cooperation, and then we might have some answers to that sort of question. But, at the moment, no.

Senator McKENZIE: Thank you very much for your appearance here today and your submission. I want to go to ASIO's submission. On page 11 they discuss the change to the Criminal Code that reduced the age of a person who can be subject to control orders from 16 to 14, in recognition of the seriousness of threats posed by persons as young as 14. If this was adopted, do you envision any changes to your oversight in circumstances where a 14-year-old is being questioned?

Ms Stone : ASIO does have strong policies and procedures about dealing with younger people. Did you want to add anything?

Mr Blight : As I said, they have not been used since 2010. What we did do when preparing for this submission was to go through our files, which are quite detailed with a lot of contemporaneous notes. We also have some standing procedures, and, regardless of the age of the person, our standing procedure is to pay very close attention to these types of warrants and to attend for at least part of it. I could imagine that, if it was a person of particular vulnerability, including because of age, we would apply even more scrutiny. But it is hard to do more than the very close detailed scrutiny that was given to each of these warrants and the in-person attendance of the inspector-general or senior staff member at each questioning.

Senator McKENZIE: In terms of the overarching framework that you apply, you would not see it needing any changes to what you currently do?

Mr Blight : It is hard to comment on a provision in a vacuum. What other safeguards might there be in relation to parents, guardians or other persons representing the interests of the child? I do not see our role as being an advocate for a person in detention; it is as an independent oversight body. So you would have to take our role in the whole together with whatever other safeguards were put in place for people of particular vulnerabilities such as minors.

Senator McKENZIE: So you would not envisage any changes to your approach regarding oversight?

Ms Stone : It is really hard to answer that unless you see what the provisions put in place are. I think Mr Blight's point about the fact that we are not the advocate—

Senator McKENZIE: Yes—

Ms Stone : Given the high level of generality in the legislation at which our oversight role is expressed, I think it is quite possible that one could deal with all issues of increased vulnerability under that high-level generality, because it is really saying: what is appropriate? If you look at propriety, that is not defined and there are lots of arguments about what it might be. Certainly, what it enables you to do is to look at the very specific circumstances—that person, that person's vulnerability and the context in which you need to look at that. There might be additional provisions. I cannot think of anything offhand, but there is probably enough flexibility in the powers we have. I do think we should steer clear of trying to specify what propriety is because I think we only end up limiting it if we do that.

CHAIR: Inspector-General, on page 8 of your submission it notes:

IGIS oversight of ASIO includes ASIO’s cooperation with other bodies, including law enforcement agencies such as the ACIC. In materials relating to such cooperation, IGIS staff have not identified significant issues of legality or propriety.

My query goes towards coordination and deconfliction between ASIO and other agencies, specifically with the problem of multiple questioning. I note on page 10 that you support the INSLM recommendation that a protocol be developed between ASIO, the Australian Criminal Intelligence Commission and any relevant state body which shares information obtained by compulsory questioning, to avoid oppression by successive examinations. Concerns have been raised by the Law Council of Australia and INSLM Gyles about the possibility of multiple agencies using their coercive questioning powers in respect of the one person. Are you confident that, as IGIS, if ASIO sought to compulsorily—

Ms Stone : Indulge in compulsory.

CHAIR: Yes. My English is getting better since I have joined parliament—questioning a person soon after the ACIC or another similar agency did so, or if ASIO sought to question a person who was subject to some other counterterrorism powers such as a control order; would you be aware of that? And I know that you have not been involved in such a process.

Ms Stone : Under the present legislation, we would be aware if they want to exercise their powers under these questioning and detention powers. So we would be aware. If you are asking: would we be aware of whether their questioning is duplicating questions that have been asked by other authorities—is that what you are asking?

CHAIR: I guess, in your role providing oversight, do you see the landscape? So if one person has been—

Ms Stone : If the landscape includes knowing what a state authority has asked, the answer is no.

Mr Blight : Perhaps I could add that we have visibility of ASIO's own records. For example, at a normal warrant—not a questioning warrant because I have experience more experience of normal warrants—we see the submission that ASIO puts up to the Attorney-General, and our staff can also log on directly to ASIO's systems and look at the intelligence and other operational matters underlying that warrant. My expectation is that if ASIO was aware of state police involvement or ACIC involvement, that would be visible on ASIO's records, and we would note if that had not been put to the Attorney, for example, as a matter of concern. If it was in the submission to the Attorney, we would see it right away. And when we did a more thorough inspection, which we do on a sample of regular warrants, then we see the underlying documents. Because it is some years since there has been a questioning and detention warrant, I cannot comment directly on one, but based on our current model of doing more in-depth inspections of high-risk cases, it seems to me highly likely that these would be in the category of higher risk cases and resources would be diverted to enable that more in-depth look into ASIO's own records, so we would potentially see if ASIO was aware that a state authority was involved.

Ms Stone : It would not necessarily mean that we would know what they were asked about. It might, but it might not.

CHAIR: Because there is not a huge baseline of experience in this regard, is it conceivable that, potentially, it might get missed and someone might be questioned by the AFP or by a state jurisdiction and then ASIO consecutively?

Mr Blight : It is conceivable, but ASIO and the state and Federal Police have quite good coordination arrangements in counterterrorism measures and joint counterterrorism teams, so it does seem unlikely that ASIO and the police would not be aware that they were interested in the same person—it is possible. What I am commenting on is, if ASIO was aware, then we should be able to see that in ASIO's records.

CHAIR: And that is part of your involvement—those safeguards?

Ms Stone : With questioning warrants, if it was there in the interstices, yes, we would find it without necessarily knowing what the ambit of the state authority's questioning was. We might, and it is our practice, more and more, to go back from the warrant to the intelligence that supports the warrant and see whether that is adequately represented in the submission to the Attorney. With questioning warrants, if that came up—as has already been remarked, maybe this is theoretical—because we would look at all of those not just a sample then we would find it if it was reflected in their records.

CHAIR: Okay, and that is the beauty of your involvement real-time rather than retrospectively, insofar as safeguards are concerned.

Ms Stone : It is also a factor of there being so few of these and because these are such coercive powers that we look at every one, whereas we cannot possibly look at every warrant in the normal course of events. So we take a sample and by taking a sample what you are saying is you are likely to miss some.

Mr DREYFUS: You are wanting to do a project on cooperation between ASIO and the Australian Crime Commission. Is that because you have only limited visibility at the moment or that it does not come up?

Ms Stone : What we are trying to do is we are trying to do more and more and think what is the best way to use our resources. One of the things that I have been concerned about is looking more deeply and also looking across arrangements between organisations. We are trying to look very carefully at what, say, ASIO and ASIS do together, and this would be another example. It is not prompted by a concern that we have that something is wrong; it is prompted by our concern that we do not know. So that is an obvious, and since the INSLM's report it is an obvious area that we would like to look at.

Mr DREYFUS: My final question is a somewhat technical one. ASIO has recommended in its submission that it should have the warrant regime that has been in place since 2014, the identified persons warrant regime, extended so as to encompass questioning that is presently covered by the questioning warrants. At the moment, we have an identified persons warrant regime that was put in place to obviate the need for ASIO to go back multiple times for different kinds of warrants for this single identified person. I am not asking you to comment on the identified persons warrant regime as such, which you have been other reports. But if the legislation were to be amended to incorporate coercive questioning, as is presently covered by questioning warrants in the identified persons warrant regime, at what point would you seek to be notified and at what point would you be involved? I am asking you to assume not only that this committee thought it was a good idea but that the government thought it was a good idea and subsequently legislated for it.

Ms Stone : I cannot see any reason why we would not want to be notified right at the outset for the same reason we are notified at the outset here. Whether you put it into this pot or in this pot with something else, the arguments for our need to oversee and therefore for these protections to be there is the same, it seems to me.

Mr Blight : Whether that is workable will depend on the thresholds. For example, if the proposal is that in effect every identified persons warrant has this as an option then the number of them would make it impossible for us to keep track of each one, and we would have to rely on ASIO to notify us that it was inclined to activate that part of the warrant, which they might want to do but on very short notice for operation reasons. If the threshold for questioning warrants was on par with those other surveillance type things then I can see that could happen. I guess the question would be how often and that would be judged by how high the threshold is that a warrant could include compulsory questioning.

Mr DREYFUS: Thanks very much.

Senator FAWCETT: In ASIO's submission they talk about a number of changes to the authorisation procedure—streamlining it, having oral emergency authorisations as well as conditional authorisations. Do they raise any concerns or issues from your perspective?

Ms Stone : Are you talking about these questioning warrants or warrants in general?

Senator FAWCETT: No, the questioning warrants.

Ms Stone : Emergency authorisations always raise issues. I am not aware of what form ASIO is suggesting that that emergency authorisation should take. If it meant that we were not notified at the outset or were notified in such short time that it was impossible for us, in fact, to exercise the oversight that we presently have, I would have a concern about it.

Mr Blight : It has to be weighed against the nature of the emergency and the threshold. Yes, there is a cost in terms of oversight when there is a power for an agency to act unilaterally, but I am sure you will hear from the agency what they consider to be the benefit and the two have to be weighed.

Senator FAWCETT: What I am hearing there are two key issues: one is notification; the other is there the potential ability to respond in a timely manner.

Ms Stone : Yes.

Senator FAWCETT: You also mentioned a resource issue numerous times through your presentation today. If there were to be a shorter notice ability to use the powers, what kind of resource implications might that have for you?

Mr Blight : It depends how often they are used. We are aware from incidental conversations how often the ACIC powers are used and that kind of frequency would be a complete change in the work of our office. The question is going to be around how frequently they are going to be used and what the expectation is there and that will depend on the threshold and the threat environment.

Ms Stone : It also depends on the form—the procedure for the emergency authorisation. It could range from short-term notification to a minister and getting that authority there or it might—I mean, when you look at the range of emergency authorisations over various issues in all the intelligence legislation, you will see that at times it can be the head of the agency giving that authorisation at any time around the clock. The minister might give it orally. A lot depends on the form that the emergency authorisation takes as well as the issues that Mr Blight raised.

CHAIR: As there are no further questions, thank you, Inspector-General and Mr Blight, for your attendance here today. I do not think you have had any questions on notice, but if any further questions come it would be great if you could forward them to the secretariat by 30 June. You will be sent a transcript of your evidence and you will have an opportunity to make corrections as you see fit.

Ms Stone : Thank you.

Mr Blight : Thanks very much.