Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Parliamentary Joint Committee on Intelligence and Security
16/06/2017
ASIO's questioning and detention powers

TALBOT, Ms Anna, Legal and Policy Adviser, Australian Lawyers Alliance

[11:10]

Evidence was taken via teleconference—

CHAIR: Good morning. 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 Talbot : Thank you for inviting me to appear before you today. The Australian Lawyers Alliance supports all efforts to keep our community safe. We believe that this is best achieved by adhering to both domestic and international law, including human rights law. Questioning and questioning detention warrants are relevant to these rights in a number of ways.

Primarily, the right to privacy is compromised by forcing individuals who are not suspected or accused of any crime to answer questions with protections regarding the right not to incriminate oneself and the right to legal advice compromised. Secondly, the right to freedom of expression, which domestically is recognised in the constitutional protection of freedom of political communication, is undermined by the secrecy provisions that surround these warrants. Thirdly, in relation to questioning and detention warrants, the right to be free from arbitrary detention is undermined.

While we understand that the motivation for undermining these rights comes from a concern of public safety, we also believe that it is a mistake to see human rights and national security as in any way in conflict. Our national security is stronger if we protect human rights. If human rights are undermined, feelings of injustice might be the result. Human rights cater for national security concerns, allowing, for example, restrictions on freedom of expression for national security purposes to the extent that the restrictions are necessary and proportionate. Under domestic law a similar test is applied to permissible restrictions on freedom of political communication.

Our concern with these warrants and many other pieces of legislation passed under the banner of national security is that they restrict rights in too broad a manner. There is generally no requirement that national security be compromised before, for example, prosecution is available under section 34ZS, the secrecy provision, can occur. There is public interest exception to secrecy provisions either. There is thus no requirement under these laws that national security be an issue before severe prison sentences can be available for speaking about these warrants.

We are also concerned about the complexity around this area of law. Australia has, I believe, one of the largest and most complex webs of national security legislation among Commonwealth countries. We support the prioritisation of public safety that constitutes the motivation of these laws. However, we are concerned that the complexity in this area, combined with harsh penalties for broadly defined laws, has the potential to give rise to injustice, which ultimately is in no-one's interest. Thank you.

CHAIR: Thank you. I will start by going to one of the key thrusts of your submission, which is that you question the constitutional validity of division III of part 3. Specifically, there is on page 8 concern that the special powers are in breach of the right to freedom of political communication and on page 9 concern about the use of detention as punishment by the executive. Could you expand on your concerns? How may these special powers be constitutionally invalid?

Ms Talbot : As I am sure you all know, the freedom of political communication comes from Australia's status as a liberal democracy requiring our government to be selected by the people. The basis of those selections is clearly political communication. We need to be able to talk about the people who are putting themselves forward to represent us and the laws and policies that they implement as they represent us to be able to make that choice of who we want as our representative.

Having the restriction on speech that is in section 34ZS regarding what has happened as a result of these warrants severely undermines our ability to speak about what our representatives are allowing—what our government agencies are doing essentially in our name with public money. Without any additional requirement that there be any threat linked to that speech happening related to the warrants, without there being any national security risk or some similar sort of risk, it is very difficult to see how that speech can be limited in line with that constitutional protection I was talking about earlier.

Regarding the detention side of it, that is very unclear. There is a lot of High Court authority around this, and it is not necessarily always easy to navigate. But there is a presumption that detention is punishment. Clearly the detention that is allowed under these warrants is circumscribed ostensibly around national security, but there is certainly an argument to be made that allowing an intelligence agency to detain someone in line with the permissions that are acquired with that detention would conflict with the separation of powers which essentially says that only courts can take away individual liberty in line with a fair trial.

CHAIR: Sure, but I guess I would come back and say that these powers were granted to ASIO in the context of an increasing terrorist threat to our national security, which has not abated over the last 15 years; in fact, it has only increased. When I look at footnote 18 on page 7 of your submission, it says that the freedom of political communication prevents any laws that inhibit communication that might be relevant to political discourse. Given that these powers are very focused, particularly as they pertain to terrorism offences, isn't it reasonable that political discourse—well, I would ask you to define 'political discourse' and whether there are any boundaries around that, in your view, because of course we have rights in this country, but we also have responsibilities.

Ms Talbot : Certainly. Freedom of political communication obviously has limitations attached. Speech is a powerful tool, and it can be dangerous, and the constitutional freedom recognises that. It allows the freedom to be limited to the extent that it is necessary and proportionate to do so. And I agree that in circumstances in which national security is an issue it is reasonable to limit speech. But there is no requirement that national security be an issue in these laws. Yes, they were passed as part of a national security push, but that does not mean all speech related to the warrants will be related to national security. I think it is reasonable for there to be a requirement that, for any speech that is limited, it be demonstrated that there is a risk to national security before that limitation is in place.

CHAIR: But surely that occurs when the warrants are sought by the Director-General when he or she approaches the Attorney-General?

Ms Talbot : There is not necessarily a direct link there. Surely there is the requirement that needs to be met in seeking the warrant, but what is limited is information that comes out of the existence of the warrant. It could be that an individual was mistreated during their questioning or anything else. Speaking about whether they got a cup of tea, for example, would potentially give rise to a five-year prison sentence under this provision.

I am not saying that everything that happens as a result of these warrants needs to benefit from this freedom of political communication, but what I am saying is that there should be a requirement that there is a national security nexus before that penalty comes in. There needs to be a requirement that if someone is going to be punished for speaking about these warrants then it is shown that the speech would compromise national security.

CHAIR: ASIO's submission notes that there have been more than 12 disrupted terrorist attacks in Australia over the last 2½ years. In his 2016 review into these powers, INSLM Gyles said in relation to ASIO's question power:

I also accept that the potentially serious impact of terrorism on the community justifies this inroad into civil liberties.

I take it that you would not agree that in a high-threat environment—or am I being unfair?—government efforts to prevent terrorism may necessarily restrain some civil liberties. And, in your view, what would be an appropriate balance?

Ms Talbot : No, I would not say that at all. I agree that national security is an important priority, and the freedoms and rights we have are able to be compromised to pursue national security. I just think there is a need for the link to be more tightly drawn.

CHAIR: I do not think we have any further questions at this point. I appreciate your dialling in and talking to the submission, as well as your written submission. There is no follow-up, but if there is then we would ask that you submit it to the secretariat by 30 June. There will also be an opportunity for you to amend the transcript before it is published.

Ms Talbot : Thank you very much.

Proceedings suspended from 11 : 21 to 13 : 06