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

McGARRITY, Dr Nicola, Private capacity

WILLIAMS, Professor George, AO, Private capacity


Evidence was taken via teleconference—

CHAIR: Good morning and welcome to Dr Nicola McGarrity and Professor George Williams. Do you have any comments about the capacity in which you appear?

Dr McGarrity : I am a senior lecturer in the faculty of law at the University of New South Wales, and I appear in my personal capacity.

Prof. Williams : I am the dean of the faculty of law at the University of New South Wales and I also appear in a personal capacity.

CHAIR: 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.

Prof. Williams : Thank you for the opportunity to speak on our submission. We recognise the importance of this inquiry in ensuring that Australia has appropriate and strong laws to protect the community from terrorism. We do understand the threat that the community faces and we come to this having worked on these issues now for many years, including having studied Australia's legal response in comparison to other nations. In fact, I myself was very heavily involved when this particular measure was debated before the parliament in 2002 and enacted in 2003. I gave evidence to this committee's predecessor, and, in fact, we have given evidence to every one of the inquiries since that time.

Our view is that we do see this particular power as being exceptional amongst the anti-terror measures that have been enacted by the federal parliament, and that exceptional measure needs to be kept into account in assessing whether it should be extended or how parliament should otherwise deal with these measures. It is important to note that a coercive questioning power of this kind is not held by a domestic intelligence service in any other comparable nation. In fact, whether it be Israel, the United States or the United Kingdom, there is no comparator to this. That needs to be considered in light of the measures enacted here and elsewhere. It is one reason why, when this power was enacted in 2003, it came with a sunset clause which was itself a large part of the debate. Of course, it was not something that the government initially put forward, but it reflects the fact that this is quite exceptional, even compared to many of the other strong measures that are currently on the statute book.

Our submission, in short form, is that we do think it is necessary to keep a questioning power on behalf of ASIO. However, we think, given the nature of this power, it is not appropriate to extend the power into areas that would make it far easier to use, and my colleague Dr McGarrity will speak on that in a moment.

When it comes to the detention power, we support the recommendation of the national security monitors and the consistent findings that suggest that this power is not needed and ought not to be retained beyond the sunset clause. To retain a power of this kind needs a truly compelling case, and, having looked at the submissions of the agencies and the AGD, we note that no such case has been made, we think, in a form justifying its retention. We note, of course, that the monitors themselves have looked at this in exhaustive detail with the benefit of internal secret information. Their conclusions, which we iterate, are that this detention power is not needed because it lacks the utility that would justify its retention. Since the enactment of this measure in 2003 we now have extensive control order regimes, preventative detention, pre-charge detention and preparatory offences. The presence of those matters illustrates why this additional detention power is not needed.

I would also say that ASIO has been very judicious in the use of these powers and the detention power has never been used. I think also here it is important to reflect upon the dangers for the agency and the work done in this area if indeed this power was used. We know the public reaction to the Dr Haneef case, operating then within the limits of that law. There is a risk here that if a power is used to coercively detain an innocent person who is not even suspected of a crime, as it could be, that this risks eroding public confidence in these schemes, which itself is a very important part of ensuring their efficacy.

On that, I will hand over to Dr McGarrity for a few additional points.

Dr McGarrity : In addition to being consistently opposed to a detention aspect of this regime, we have in contrast supported the retention of a coercive questioning regime for the reasons that have been set out by both of the former Independent National Security Legislation Monitors. We are, however, concerned about the particulars of the coercive questioning regime. I would note at this point that we do not support the recommendation of the former Independent National Security Legislation Monitor, Roger Gyles, that a model of coercive questioning based upon that of the Australian Criminal Intelligence Commission should be adopted.

Nor do we think it is appropriate that the questioning warrants regime should, as I note the Attorney-General's Department's and ASIO's submissions suggest, be made consistent with the processes applicable to other powers given to ASIO under the ASIO Act, such as search warrants and computer access warrants. We think there is something quite unique about coercive questioning and we regard both of those options as resulting in a significant relaxing of the checks and balances which currently apply to ASIO questioning warrants. They would, for example, involve abolishing the role of the issuing authority and giving the power to authorise questioning warrants to the Attorney-General alone or, where an identified person warrant had previously been issued, to the Director-General of Security.

We accept that this would undoubtedly make the process of applying for a questioning warrant less time consuming and resource intensive. However, in the first place we would contest whether there really is a lack of concrete evidence about the current process impeding the protection of national security. Furthermore, in any event, it is not our belief that efficiency should be used as a justification for whittling away national security protections unless there is some compelling reason.

CHAIR: Thank you very much. The first question is about the need for a compulsory questioning power. In your submission, on page 7 you have stated, 'Questioning Warrants are not an effective tool in responding to the threat of terrorism.' Are you able to expand on this? Does it lead you to the view that ASIO should not have a compulsory questioning power?

Prof. Williams : Our starting point is to reflect upon the use of this power to date. When we look at the figures, we have not had a use of this power now for some years. That comes at a time where we know from the agencies there has been a significant and heightened threat from returning foreign fighters and a range of other sources. Of course, there are number of recent incidents that demonstrate that as well. It says to us that it is difficult to see that this is an effective frontline tool in the fight against terrorism. Nonetheless, we do accept that the power should be retained. We think that the agencies do have a good reason to suggest why this power should be available to them. Even though it has not obviously been of great use over recent years, that is not enough for us to say that it should be removed. It should be available. Because it does not raise the same stronger concerns as detention warrants we think tightening up the processes with retention is the appropriate outcome.

CHAIR: So part of it is, if I hear you correctly, that it is not fit for purpose, given the current threat.

Prof. Williams : That is part of it. If you look at the use recently it coincides with the fact that since this was first brought into place a range of other mechanisms have been introduced. When this was first brought about in 2003 there were no control orders. We did not have preventative questioning in the AFP in the form we now do. In fact, a range of other things were not on the books either, including at the state level. So it is no surprise to us that, if you look at the figures where there was 11 of these questioning warrants issued in 2005—which does demonstrate the capacity to use the scheme—you will see that it has really dropped off since then, and that since 2006 it has only been used once. And that is explicable, because there are simply so many other mechanisms to get this information that the utility it serves is just not the case as it was when it was first enacted.

CHAIR: Sure. I refer to your comment on page 4: 'There is real reason to suspect the detention power will never be used.' Can I ask you to perhaps imagine where it might be used. In what situation can you conceive of it being used?

Dr McGarrity : I do not think we can. Really, here we would follow on from and be guided by the work that was done by Brett Walker, who noted in the light of the very detailed information he was provided with by the relevant agencies that he had been presented with that there was no hypothetical situation in which it would be necessary for a detention warrant to be issued. As my colleague has indicated, we believe that the way in which ASIO has used these powers to date has been judicious, they have been restrained in their use of these powers and ASIO would only use a detention power if it were absolutely necessary for them to do so. However, even the agency itself was unable to present any hypothetical scenario to Brett Walker that demonstrated to him that detention could ever be necessary as provided for in the current regime.

Prof. Williams : Again, it comes down to those other powers. If we imagine scenarios where there is a threat and someone needs to be detained, then we do have those options available through other panels that have been enacted since 2003. In fact, it is more appropriate that those other powers are used, because when we are dealing with the collection of evidence and the like for possible prosecutions, these are not simply intelligence matters; we actually need the police engaged. They are the primary mechanism for dealing with these things, and they should remain the primary mechanism. That simply means that we have a power that, in our view, should be regarded as obsolete because of the other alternatives.

But, as I indicated, if ASIO was minded to use the power despite those things, I think there are dangers involved in terms of public confidence. I think ASIO would need to ask itself just how wise is it to use a power when there is a potential for a public backlash, as we have seen in a different context. All of that indicates that, if detention is required, then this detention power is not the way to go for operational and other reasons.

CHAIR: Thank you. I will throw to the committee now.

Senator McALLISTER: Thanks, Professor Williams and Dr McGarrity. Could you elaborate a little on your reasoning about rejecting Mr Giles's proposal to model the questioning warrant process on that used by the ACIC. There is something kind of tidy about the reasoning for his recommendations, particularly his view that that framework is well understood by a large number of participants in the legal system, and that that familiarity would mean there is a clearer and fairer process for the operation of questioning warrants, if they were to operate in that way. Can you explain to me what factors you think outweigh Mr Giles's recommendation that we proceed with something that is aligned with another process.

Dr McGarrity : Our reading of Roger Giles's recommendation is largely that, based upon evidence given by ASIO and the Attorney-General's Department, it is premised on the assumption that the current system is too time-consuming, too resource intensive and that it needs to be streamlined. It is in the light of that need for streamlining that the former monitor emphasised the possibility of modelling the ASIO questioning and detention regime upon that of the Australian Criminal Intelligence Commission.

As I said previously, our view is that there is insufficient evidence to demonstrate that the current regime is so time-consuming and resource intensive and that it creates delays that could impede the protection of national security. As my colleague has already mentioned, in the 2004-05 period alone, 11 questioning warrants were issued in relation to 10 individuals. We think this demonstrates the capacity for the system and the current regime to issue a large number of questioning warrants in quite a speedy manner.

The consequence for us, of adopting a recommendation like that of the monitor to model the system upon that of the standing Criminal Intelligence Commission, is largely to relax what he calls the heavy-duty safeguards which apply to the ASIO questioning regime at present. In our view, the current regime is not sufficiently targeted to the threat of terrorism, and the criteria and process should be tightened and the safeguards strengthened. We would be very concerned about any proposal that would suggest removing, for example, the role of an independent authority, being the involvement of the judiciary in the issuing process. We would be concerned about an expansion of the criteria applying to the issuing of a questioning warrant. We would also be concerned about the blanket extension of the category of prescribed authorities who oversee the questioning process, from members of the judiciary to any legal practitioner who has served for five years.

We think that there is something quite unique about the nature of the questioning powers that are given to ASIO not simply in the Western democratic world but also in comparison with the other types of powers that ASIO has—things like search warrants, computer access warrants et cetera. We believe that there is a necessity to have adequate checks and balances upon the exercise of these powers, to prevent against misuse and also to ensure that public confidence in the system is maintained.

Prof. Williams : I obviously agree with that. I can understand the argument for tidiness and streamlining, but I think that only works if we are dealing with comparable powers—and, here, we are not, as Nicola has indicated. This particular power is not comparable with other instances. We are dealing with an extraordinary power directed at terrorism that your predecessor committee recognised at the time was different and unlike any other comparable power, and so set up an entirely different scheme at that time. They were very motivated to indicate that it needed a set of safeguards that went beyond and were different to what was seen in terms of the powers held by other agencies.

In short, for us it is apples and oranges. This is a different power subject to a sunset clause that should be subject to a different and additional set of safeguards, particularly involving the import of an independent person through the issuing authority. We would be very concerned if it was regularised by putting it on a par with powers that we see as being of a very different order. We think it is important and necessary that this is subject to a distinctive and special set of safeguards.

Senator McALLISTER: I think your argument rests on the powers being of a very different order to those possessed by the Australian Criminal Intelligence Commission. Could you explain, simply, why you believe this to be so?

Prof. Williams : One of the most important reasons is the body that holds those powers. Of course, there are similarities in terms of coercion and other matters, but here we are dealing with a body that is a domestic intelligence agency. As we indicated, there is no other comparable nation in the world that gives a coercive questioning power, let alone a detention power, to an intelligence agency of this kind. The simple reason for that is that it is thought that these agencies must operate with a level of secrecy. They cannot have the same level of public accountability and transparency that other bodies have. As a result, that means that extreme caution must be given as to the form of coercive powers that are issued. In this case, the decision has been given to give it a coercive questioning power that takes it beyond those other agencies. Our argument is that, if that is the case, then we need to reflect the special nature of that power with a set of additional safeguards.

Senator McALLISTER: Putting aside the nature of ASIO as a necessarily secret organisation, is it your view that the coercive questioning power in this legislation does extend beyond that held by other similar agencies?

Prof. Williams : Yes, it does. This is something that we have studied over a long period of time. In one of the footnotes, for example, in a piece written by Nicola, in a separate piece by us and in our submission we directly compared this power to the powers held by other comparable agencies and found that this is unique. In fact, when I was over in Washington recently, talking to agencies there, this was a topic of conversation. Agencies were asking how it is that our agencies are given this power when Israel, for example, has not thought it needed to give a coercive power of this kind to a domestic intelligence agency. So—

Senator McALLISTER: Apologies, Professor Williams—I am trying to understand whether it can be distinguished from the powers held by, say, the ACIC.

Prof. Williams : It is a questioning power. That is correct. Our point of distinction is that, yes, it involves questioning. There are similarities there—we do understand that. But the key distinguishing feature in this case is who exercises that power.

Senator McALLISTER: Can I ask about—

Senator McKENZIE: Sorry, Senator McAllister, I have a follow-up question on the point you were on. How do other nations then deal with achieving the same outcome if they are not giving their intelligence agencies this type of power? How do they achieve the outcome that ASIO is hoping is achieved through giving ASIO these powers? I am assuming they are still getting to the same end point, but in a different way.

Dr McGarrity : Absolutely. I have had similar conversations with scholars in both Canada and the United Kingdom, and also in America, about these quite unique powers. Their belief is that they simply would not add anything to their intelligence gathering frameworks in their countries, and that is for two reasons. One is the belief that traditional methods of intelligence gathering—whether they be through telecommunications interception, the gathering of human intelligence, the reliance upon public sources, or cooperation with foreign countries—are all providing sufficient information. The second is the recognition that powers like coercive questioning are best left to law enforcement agencies, which operate under a much more stringent level of accountability and lower levels of secrecy than do intelligence agencies. The cooperation between law enforcement and intelligence agencies can achieve very much the same outcomes without the same threats being posed to public confidence in the system.

Prof. Williams : You would have to say that the evidence is that, even though this power exists, it is a similar answer here. Unless ASIO is of the view that it has not been able to collect effective intelligence—it has not used these powers at all since 2011, and so is presumably relying upon the same sorts of powers found in other countries. Again, that is a factor in our thinking: why do you need the power? We are happy to accept questioning should remain, but why do you need to extend the power when it has not been thought to be needed over that period of time? Presumably, as a result, ASIO is using the same powers and mechanisms as are used in other countries.

Senator McALLISTER: I think there are two limbs to your argument. One is that coercive powers are best exercised by a body that does not work in secrecy, but the second is that there is a distinction between collecting information for the purposes of criminal investigation and collecting information for the purposes of intelligence. Is that a fair assessment of the two limbs of your argument?

Prof. Williams : I think that is a good encapsulation of key parts of our argument, yes. On that second point, which we have not elaborated on, that distinction is an important one. There are examples in the past where, if you like, the blurring of the role of ASIO with law enforcement bodies has prejudiced the potential for prosecutions. When we are dealing here with the admissibility of evidence and the like, we do need to exercise caution. That is why other countries with similar legal systems to ours tend to emphasise the role of the police and law enforcement agencies in order to ensure that they do get prosecutions and the jailing of people.

Senator McALLISTER: Can I ask you—it follows from this—about the present framing of the powers, which go to terrorism offences. There is some discussion, given the fact that it is not questioning being undertaken for the purpose of an investigation of an offence but for intelligence gathering more generally, about whether it is too narrow. Do you have a view about the scoping of the power?

Prof. Williams : We would certainly strongly oppose the idea that the power should be exercisable generally in respect of matters of security. That would give ASIO a power at large to move well beyond the terrorism context into other areas. That would be inconsistent with the approach taken by your predecessor committee in seeing this as an extraordinary power justified only in respect of the threat posed by terrorism. We see that as an example of what would be some unfortunate mission creep, in turning an important, if not largely used, power into something that would actually become far more generalisable. We just cannot see the justification for that.

Senator McALLISTER: I suppose there are two options. One is an extension to all questions in which ASIO may take an interest. The other is just to broaden it to intelligence relating to counterterrorism as opposed to terrorism offences. I am interested in your view about that second proposition.

Dr McGarrity : I think there is some need for redefinition. That is, if at the very least, because of the lack of ability at the moment to capture, for example, foreign incursions offences, which have only recently been incorporated into the Criminal Code. I would question at present whether extending the criteria to counterterrorism, rather than a terrorism offence, would actually have much of a practical impact, in the sense that the definition of and the scope of our terrorism offences in Australia are so broad. We have preparatory offences; we have offences of conspiring to do an act in preparation; we have advocacy offences; we have foreign incursions offences—and all of these do not need to be identified in relation to a specific terrorist act being committed. They can be in relation to the future commission of a terrorist act. So our view is that the definition of a terrorism offence, once the idea of foreign incursions offences were incorporated, would be sufficiently broad to encapsulate a general reference to counterterrorism in any event.

Prof. Williams : That said, if it turned out that there were particular pragmatic problems with having to pin everything to a terrorism offence, then, as you can see, we are not suggesting an in-principle opposition to describing it in a different way. Our point is simply that we suspect the offences are so broad that it may not actually add much.

Senator McALLISTER: Thanks.

Mr DREYFUS: Hello, Professor Williams and Dr McGarrity. Thanks very much for giving us your time. This is not something you have raised in your submission to any great extent, but the Australian Lawyers Alliance have argued that these special powers that ASIO has—the questioning power and the questioning and detention power—are likely to be in breach of Australia's Constitution. They have particularly referred to the freedom of political communication, to detention as punishment and to some international human rights obligations. The Independent National Security Legislation Monitor, Mr Gyles, in his 2016 report, expressed some similar constitutional concerns. I want to ask you whether either of you share those concerns about constitutionality, if I can put in that generic sense.

Prof. Williams : Yes, there are circumstances that could arise where there may be a problem. On the free-speech ground, that could arise because of the prevention of information being made public that may well be in the public interest; it may reveal misuse of the power or other information that may affect the conduct of elections, in terms of people making their choices. That is a blanket ban on that information, and, if a case arose where that information was prevented from coming to light, then, yes, a constitutional argument could be brought. Whether it would be brought, though, is unlikely because it is of course hard to get that information in the first place. So it would take a quite specific set of events. But it is no different here to, say, the debate about section 35P of the ASIO Act, which raises similar issues of a blanket restriction of information, and at some point we may well see a challenge brought to one or other of those provisions on the basis that they prevent the dissemination of information that is in the public interest.

Mr DREYFUS: Thanks, Professor Williams. The other question I have relates to the issue of postcharge questioning. This is something, clearly, that is dealt with in the coercive-questioning-powers provisions of not only the Crime Commission legislation but also the various integrity commission acts, such as the ICAC Act and others, where there is specific reference to postcharge issues—that is, questioning someone who has already been charged with a criminal offence.

I will say one other preliminary thing. The Independent National Security Legislation Monitor, Mr Gyles, suggested that there was a spectrum, and that is obviously correct, where you could have either a complete prohibition on coercive questioning by ASIO of someone who has been charged or no prohibition at all, or, alternatively, various restrictions on the use of questioning of material gain through questioning someone who has been charged.

ASIO have in their submission recommended that they simply be permitted to engage in coercive questioning of someone who has been charged. Do you have a view on that recommendation by ASIO?

Dr McGarrity : It is not something, in all honesty, we have looked at in great detail previously. However, I think it does tie in with our recommendation that there should be incorporated into the ASIO coercive questioning regime not only a use immunity but also a derivative use immunity, which we think would go some way towards creating a greater distinction between the intelligence-gathering activities of ASIO conducted under the coercive questioning power and the activities of law enforcement in gathering evidence for trial. So, certainly, without even thinking about the post-charge questioning aspect, we have always been in favour of the incorporation of not simply a use immunity into the regime but also a derivative use immunity.

Prof. Williams : I would also be a little wary about that, I must admit. Even though I think it is important that information is shared and we do need good sharing practices, in that post-charge period when we are heading in all likelihood towards a trial, there are dangers in actually involving intelligence agencies in that questioning process. What we really need are good, efficient processes that mean that people can go from charge to trial to jail if they are convicted, and there are dangers in inserting intelligence gathering into that process because it bears the risk of actually prejudicing a trial. There are examples where intelligence agents overseas have been involved in circumstances that have led to evidence not been admissible, and it is why other countries tend to be very cautious about maintaining a separation—because in the end it can defeat the main goal of protecting the community by ensuring that the law enforcement processes have the right path to follow to actually get that outcome.

CHAIR: Professor Williams and Dr McGarrity, I refer to page 18 of your submission, where you state:

The accountability framework relies heavily on 'integrity' agencies, particularly the IGIS and INSLM. These agencies are emanations of the executive and so lack the clear cut independence which courts provide.

We just had the IGIS in here with her deputy, and I posed that question to her. It is my view that the safeguards are sufficiently rigorous, and the position of IGIS is a statutory position and it is independent. I am just wondering if you could make further comment on that paragraph.

Prof. Williams : We can, and it goes to the heart of why an intelligence agency is different to other bodies. Our argument is not that those mechanisms are ineffective—and we have a very high regard for the work of IGIS—but simply that they are appropriate for a body that cannot be subject to the same levels of public scrutiny as the AFP or other agencies. In our case, the argument is not that you should subject ASIO to the same transparency as those agencies—that would not be appropriate—but instead, in recognising they necessarily must retain their secretive function and the executive oversight they have, that we should not be vesting that body with powers that are more appropriate for the police or other bodies. That is essentially the point we seek to make.

Of course, it is not just a matter of those bodies. You can look at the whistleblower exceptions and other areas, and section 35P of the ASIO Act and others, which again and again demonstrate that an intelligence body such as ASIO is subject to a far higher degree of secrecy and lower levels of public transparency and oversight than other bodies. We understand that. But we say, understanding that, we need to reflect that in the powers that the body is conferred with.

CHAIR: Thank you.

Mr BYRNE: Professor Williams and Dr McGarrity, I am particularly interested in page 9 of your submission. I do not know, George, if you would remember, but I asked you a question—and this is something for ASIO to take on notice for later today—where I specifically said, 'In light of the diminished number of warrants that were issued, what would you need to make the threshold lower,' because ASIO were saying the threshold was too high. When I put the question to ASIO, they responded, 'The threshold is too high.' So then we modified that threshold, which you take note of, in terms of the last-resort requirement for the Attorney-General to be satisfied that other methods would be ineffective other than having to use these powers. I am particularly interested in you saying that the legislation that was drafted did not allow the issuing authority to contemplate that, so we had an Attorney-General who had a different set of guidelines to the issuing authority in terms of issuing a warrant.

Dr McGarrity : That is correct. This is one of the criteria. We note in our submission that one of the changes we would recommend being made to the current regime to tighten the safeguards is to ensure that the issuing authority is placed in a position to consider each and every criteria, rather than some of those criteria being left to the exclusive determination of the Attorney-General. The report of the former Independent National Security Legislation Monitor noted that he could not identify any clear explanation as to why it was appropriate for the Attorney-General to consider some criteria and the Attorney-General alone to consider some criteria versus other criteria which would be considered both by the Attorney-General in allowing consent for an application and by the issuing authority in deciding whether it finally issued a questioning warrant.

This is one of those criteria that are left for the determination of the Attorney-General alone. Other criteria that are left for the determination of the Attorney-General alone are criteria such as the special protection for people aged between 16 and 18, which under the proposal being made by the Attorney-General's Department and ASIO would be extended to minors aged between 14 and 18. The Attorney-General but not the issuing authority must be satisfied on reasonable grounds that it is likely the person will commit, is committing or has committed a terrorism offence. Similarly, criteria for considering whether there should be repeat warrants or rolling warrants is the exclusive determination of the Attorney-General and also the detention criteria.

So one of our fundamental concerns about the way in which the regime is drafted at present is that it does not comply with the recommendations of the former Independent National Security Legislation Monitor. There is no justification for distinguishing between criteria that are appropriate for determination by the Attorney-General and those that are appropriate for determination by the issuing authority.

Mr BYRNE: So in a sense you have got the anomaly where the Attorney-General might have the capacity to issue a warrant, but in essence we have not empowered the issuing authority to have a similar remit to properly contemplate whether or not that warrant should be issued for questioning powers?

Prof. Williams : That is right, and we say that should be clarified. More broadly on the last-resort power, we think that that is needed. This particular power was brought into place as a last resort. That was the debate in 2002. This was never seen as a generalizable power that should be subject to extensive use, in particular because of the public confidence aspects. So it should be used where it is a last resort. It is not being used because the last resort is not needed because we have so many other agencies with appropriate powers, and, hence, we have the figures before us.

Mr BYRNE: Those modifications occurred as a consequence of a question and during the contemplation of the foreign fighters bill in 2014—where I said, 'What do you need?' So we have dropped the threshold for the Attorney-General, but what we did not do is drop the threshold for the issuing authority to contemplate it in the same manner that the Attorney-General could.

Dr McGarrity : We would say that in actual fact, as my colleague has suggested, we opposed the dropping of the last-resort requirement in 2014—

Mr BYRNE: Yes, sure.

Dr McGarrity : But there is an anomaly that currently exists between the criteria.

Mr BYRNE: As I said, in 2014 I asked, 'What do we need?' The agencies said that this is what we needed. According to the information we have, nothing further has been issued. It is quite striking that there is such a strong anomaly. I am just trying to get clarification of the existing law. I wonder if that has been one of the obstacles to them approaching the issuing authority for a warrant to be issued? I will ask them, but I thank you for drawing it to my attention. I have one other question. Do you think that, because of the threshold, the agencies have been outsourcing that coercive power to the Crime Commission?

Prof. Williams : Not to our knowledge, and, of course, we need to recognise the limits of our knowledge in this regard. All we can work on are the extensive reports of the legislation monitors. What they indicate, in fact, is that this power is not needed. It is not a matter of outsourcing so much; it just does not have the utility, particularly the detention aspect. That to us seems to be the primary point.

Mr BYRNE: I was interested in your conversation in Washington. I am not quite sure what the equivalent agency to MI5 would be in the United States; it could be the CIA or FBI. But you are saying the most comparable agency is MI5 and MI5 simply does not have this power.

Prof. Williams : That is right. They cannot coercively question people in the circumstances that ASIO can. Domestic intelligence agencies are just not thought appropriate to have the powers, and the primary reason is that, yes, this needs to be done, but it is a law enforcement function. There is particular concern about prejudicing trials and other matters. There is also a matter of public confidence: it was thought that if you go down this path then there will be community alarm at what might occur. Hence, Australia has gone down this path, but we are unique in doing so.

Mr BYRNE: Do you theorise why that might be the case?

Prof. Williams : I think that in Australia's case it happened because of the particular events in 2002 and 2003. I was heavily involved in that debate, and we went down that path because of the alarm and concern especially about the Bali bombings at the time. It meant that we responded in this way with what was regarded as a deeply exceptional law. It was thought necessary at that time, but even then that is why the sunset clause was put on this, unlike most other measures. Even at that time it was thought that this does need to be reviewed and cannot be a permanent measure. It was always seen as something that would be on the books while there was a particular threat of terrorism that required this exceptional response, and that explains also why we would say it needs to be limited to that terrorism context. At some point this should be removed from the books as something that is not appropriate in normal times.

Mr BYRNE: Do you see the dangers in importing into the intelligence agencies a method of questioning that is used by enforcement agencies—giving them those sorts of powers?

Prof. Williams : Yes, we do. As we say, often the primary object in these cases is to secure prosecutions and the jailing of people, and that is not a function the intelligence agencies can do. We do not want to muddy the waters in terms of evidence and the like, but we also know from the past that there can be real community concern where people think intelligence agencies go beyond the bounds of what people think is appropriate for a secret body that cannot be subject to the same level of transparency and accountability as the police and other bodies. We do need to factor in what the community would regard as reasonable and acceptable for a body of this kind to do.

Mr BYRNE: Dr McGarrity, I think you were going to say something.

Dr McGarrity : I have just had a chance to have a more detailed look at the legislation and I wanted to say something in more detail about the last-resort requirement. I think we might have been talking at cross-purposes. The last-resort requirement was changed as a result of the foreign fighters act to require the Attorney-General to consider whether other methods of collecting the intelligence were likely to be as effective, essentially lowering the threshold. The issuing authority is not required to consider either that or whether the issuing of a questioning warrant is a matter of last resort. The only criteria that the issuing authority is required to consider is whether there are reasonable grounds for believing that the warrant would substantially assist the collection of intelligence that is important in relation to a terrorism offence. Therefore, I do not think the existence of a last-resort requirement which has been deleted from the act has in any way affected the ability of ASIO to obtain questioning warrants since the introduction of the foreign fighters act.

Mr BYRNE: Thank you for that clarification. I appreciate it.

CHAIR: Dr McGarrity, Professor Williams, thank you very much for your submission and for dialing in today. If you have any further information that you want to send, if you could forward it to the secretariat by 30 June, that would be appreciated. We will send you a copy of the transcript, and you will have an opportunity to make any amendments to it. Thank you again for your contribution.