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Parliamentary Joint Committee on Intelligence and Security
16/06/2017
ASIO's questioning and detention powers

COOK, Ms Heather, Acting Director-General of Security, Australian Security Intelligence Organisation

DEAKIN, Ms Catherine, National Legal Practice Manager, Australian Criminal Intelligence Commission

INVERARITY, Ms Tara, Acting Assistant Secretary, Communications Security and Intelligence Branch, Attorney-General's Department

KIMBER, Mr David, Head of Determinations, Australian Criminal Intelligence Commission

MAYO, Ms Nicole, National Manager, Legal Service, Australian Criminal Intelligence Commission

REEVE, Mr Parker, Acting Director, Security and Intelligence Law Section, Attorney-General's Department

SHEEHAN, Ms Anne, Acting First Assistant Secretary, Intelligence and Identity Security Division, Attorney-General's Department

SOUTHERN, Dr Wendy, Deputy Director-General, Strategy, Australian Security Intelligence Organisation

CHAIR: Welcome. 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 invite you to make opening statements before we proceed to a discussion.

Ms Sheehan : Both the department and ASIO have opening statements, but we will try to keep them both brief. I would like to thank the committee for the opportunity to address you today on the review of ASIO's questioning and detention powers under division 3 of part 3 of the Australian Security Intelligence Organisation Act. I will make some short opening remarks to highlight some key aspects of the department's submission, and my colleague from ASIO will make some opening remarks from an operational perspective.

As the committee knows, division 3 of part 3 was inserted into the ASIO Act in 2003 to enhance the capacity of ASIO the combat terrorism. In the current threat environment, which my colleague from ASIO will address, it is increasingly important for ASIO to be flexible and agile and be able to rapidly gather intelligence. It is also fundamental that any coercive powers that may be exercised by ASIO are proportionate and appropriately balanced against the protection of civil liberties.

A compulsory questioning power remains important to enable ASIO to perform its statutory intelligence collection function. The department considers that the current questioning warrant regime should be amended to provide a more efficient and effective process, while still retaining important safeguards, including close oversight of the Inspector-General of Intelligence and Security. The department considers that a regime based on the current Australian Crime Commission Act model, but suited to the role, function, structure and oversight of ASIO, would be appropriate. The department also considers that broadening the scope of the questioning warrant power to provide ASIO with the ability to utilise compulsory questioning in circumstances where it would substantially assist the collection of intelligence that is important to security, including matters such as espionage, foreign interference and wider forms of politically motivated violence, would assist ASIO to better perform its functions. This would be consistent with the ACIC model, which enables the ACIC to utilise its coercive questioning powers for investigations and intelligence operations about serious and organised crime, which is broadly defined in the ACC Act.

The current requirement in the ASIO Act that the intelligence that ASIO seeks to collect be important in relation to an offence is at odds with ASIO's role as an intelligence agency. It has the potential to prevent ASIO from collecting vital intelligence about terrorist threats in circumstances where ASIO has not yet identified a specific offence that is being committed.

The department considers it appropriate to lower the age at which a young person may be questioned from 16 to 14 years of age. The seriousness of threats posed by persons as young as 14 was recently recognised by the parliament when it enacted amendments to the control order regime in the Criminal Code, reducing the minimum age from 16 to 14. There are currently a number of safeguards that apply to questioning a minor, and the department would recommend that they be retained.

The department also considers that improvements could be made to enable questioning warrants to be issued more efficiently to best position ASIO to respond in a more agile manner. There is a growing trend in domestic terrorism for lone actors to seek to commit low-capability attacks with little or no forewarning. The current processes for obtaining a questioning warrant are not sufficiently agile for the powers to be utilised quickly. The department considers it would be appropriate for a questioning warrant to be authorised by the Attorney-General, rather than the current process of seeking the Attorney's approval to present a warrant to an issuing authority.

Authorisation by the Attorney would be consistent with a number of other special-power warrants currently in the ASIO Act such as surveillance device warrants and computer access warrants. In relation to questioning and detention warrants, the department considers that these provide ASIO with an additional operational tool to ensure that a person subject to a questioning warrant cannot tip off others, avoid attending questioning or destroy material. The questioning and detention warrant regime offers a number of important safeguards which balance the rights of individuals. Simply because the warrant has not been used does not mean that there are no grounds for it to be kept. Questioning and detention warrants are expressed to be used as a last resort, and it is important to retain a last resort in an evolving security environment. Thank you.

Ms Cook : Thank you for the opportunity to appear today and to participate in this important review of the compulsory questioning powers in division 3 of part III of the ASIO Act. ASIO, along with the department and my other colleagues here, welcomes this inquiry and trusts that our submission will assist the committee in considering both whether the compulsory questioning powers that are available to ASIO should be permitted to cease on 7 September 2018 and what shape retained provisions, if any, should take to remain effective within the current national security environment. With the committee's indulgence I do wish to make some opening remarks about the global and domestic threat environment and the current operational challenges faced by ASIO.

You will be aware that ASIO has not formally sought a questioning warrant since 2010. However, we remain of the strong view that the compulsory questioning powers should be retained. A modern and effective compulsory questioning framework, adapted to the security environment, is an important intelligence-collection tool to support ASIO's role in the protection of Australia and Australian people from threats to security.

It will come as no surprise to you that ASIO's work is undertaken within a steadily worsening security and operational environment. We do not expect the terrorism threat to diminish in the foreseeable future. Since the national terrorism threat level was raised to 'probable' in September 2014, there have been five onshore terrorist attacks in Australia and over 12 disruption operations in response to imminent attack planning in Australia. In the last month alone we have seen terrorist attacks in Melbourne, London and Manchester resulting in the loss of Australian lives. Following the London Bridge and Manchester attacks, our security and law enforcement colleagues in the United Kingdom are closely examining what they knew of the attackers and the decisions they made about them. Similarly, in Australia, we are critically examining the Melbourne attack on 5 June.

In preventing future attacks, this type of introspection is critical. These recent examples here and in the United Kingdom unfortunately highlight the challenges that security and law enforcement agencies are experiencing in terms of the volume, velocity and complexity of our counterterrorism work. In addition, the nature of the terrorism threat has changed, with radicalisation occurring quickly and affecting younger people, including minors.

The committee will appreciate that terrorism is not the only threat to Australia's security. Espionage and foreign interference activity against Australian interests is extensive, unrelenting and increasingly sophisticated. Foreign interference is taking place in Australia. Foreign powers want to gain advantage for their nation or to disadvantage us. Adversaries seek information on our foreign policy, intelligence and defence capabilities, economy and industry, and alliance relationships. They try to influence our polity, bureaucracy and civil society, and they use a wide range of techniques to obtain intelligence and clandestinely interfere in Australia's affairs. These techniques include human enabled collection, technical collection and exploitation of the internet and information technology.

To mitigate the threat from espionage and foreign interference, Australia needs the ability to investigate these activities within our current legislative frameworks. Expanding our compulsory questioning powers to espionage and foreign interference will help mitigate this threat. Compulsory questioning powers remain an important intelligence collection tool to enable ASIO to perform its statutory intelligence collection function independently and, where appropriate, in partnership with law enforcement and intelligence partners. Questioning warrants have enabled ASIO to collect valuable and previously unknown information on key individuals, tactical information related to investigative targets and information on which more confident intelligence assessments could be made concerning an individual's intent, extremist views and motivation. Such information could not have been obtained through other collection methods.

ASIO anticipates compulsory questioning powers will be increasingly important given the increased security awareness of the people seeking to harm Australians and Australian interests. However, the current framework for our questioning powers does not provide the agility and speed regularly demanded of ASIO in current terrorism investigations. It also does not assist us with the very real threats posed by espionage, sabotage, acts of communal violence and foreign interference. ASIO requires a modernised compulsory questioning powers regime that will enable questioning in relation to all elements of the definition of security under the ASIO Act. For this reason, we ask that the committee consider recommending that the reference to a terrorism offence in the questioning and questioning and detention warrant thresholds be removed. Given the speed with which threats are now realised, the compulsory questioning powers require a streamlined authorisation process in order to assist ASIO in the current threat environment. We would like to see the current authorisation process aligned with the authorisation process for other warrants obtained by ASIO in the exercise of our other intrusive special powers. This would provide consistency with other processes.

Other amendments that would assist in the operation of the powers are for the Attorney-General to be able to give an emergency oral authorisation for compulsory questioning followed by written confirmation as soon as practicable and for the identified person warrant regime to include questioning warrants. Retention of the ability to compulsorily question a person following the laying of charges against that person would also alleviate critical intelligence gaps arising. ASIO is also seeking a reduction in the minimum age for the use of compulsory questioning powers from 16 to 14 years. Our continued experience is that the demographic of potential ASIO targets extends to minors. The murder of Mr Curtis Cheng by 15-year-old Farhad Mohammad in 2015 is a recent example of young people being involved in terrorism related activity. But it is not the only example.

There have been suggestions that ASIO should adopt a compulsory questioning framework similar to that of the Australian Criminal Intelligence Commission. While we acknowledge the usefulness of such a framework, we also note that any modified regime for compulsory questioning based on the ACC Act of 2002 must be shaped to reflect ASIO's role as a security intelligence agency and to meet the challenges of the current security environment. For example, we have submitted that the revised powers should include: empowering the Attorney-General to authorise ASIO's use of compulsory questioning powers; retaining the ability for the Inspector-General of Intelligence and Security to be present during compulsory questioning; retaining a similar direct use immunity provision to that under ASIO's existing compulsory question powers; retaining the power to prevent the subject of detention for compulsory questioning from contacting a particular lawyer of their choice in certain circumstances; and enabling compulsory questioning to take place before a statutorily appointed examiner or similar.

Given the heightened and hostile environment in which ASIO officers work, the ability to search the subject of a questioning warrant is important. Accordingly, ASIO is seeking an explicit provision that will allow the subject of a questioning warrant to be searched and for items found on their person to be seized if appropriate. Any compulsory questioning framework for ASIO continues to require the ability to ensure the subject appears for questioning and is prevented from alerting other targets or destroying relevant documents, whether by means of pre-emptive detention or some other mechanism.

In closing, I wish to emphasise that ASIO has been judicious in its use of compulsory questioning powers since their inception in 2003. These resource-intensive and intrusive powers are not used lightly. However, to assist ASIO in carrying out its security functions, the powers need to be modernised and streamlined, and we look forward to working with the committee on how best to reframe them.

CHAIR: To start from first principles, we had a submission from the Australian Lawyers Alliance which questioned the constitutional validity of division 3 of part 3, and suggested that the provisions do not comply with Australia's international human rights obligations. I have no trouble making inroads on the rights of those who would cause Australians harm, if that means that we protect the majority of Australians' right to be free from violence. I understand that argument. From the department's perspective, what would you say in response to the Australian Lawyers Alliance statement that it is not constitutional and that it is in breach of human rights obligations?

Ms Sheehan : From the department's perspective, we would be quite confident that the current regime is compliant with the Constitution and with our human rights obligations. To go into a little bit more detail, we consider that the regime is both necessary and proportionate, which are issues to consider when you are looking at human rights issues. The minister can only consent to a request for making a questioning warrant if a certain threshold is met, which is quite a high threshold. At the moment, it is set out as being reasonable grounds for believing the issue of the warrant will substantially assist in the collection of intelligence that is important to a terrorism offence, having regard to other methods of collecting the intelligence and whether they are likely to be as effective and reasonable in all the circumstances. There is also a current written statement of procedures to be followed on the exercise of the authority pursuant to the warrant, and there are a number of safeguards within the regime as well which we would say assist in ensuring compliance from a human rights perspective.

CHAIR: Paragraphs 18 and 51 of ASIO's submission explain the lack of use of a questioning warrant since 2010, but do not appear to address why there has never been a questioning and detention warrant requested or issued. The way you have fleshed out the current terrorism threat is that it is a very agile threat, and you mentioned the need for modernisation. Can I assume that the threat over the last 15 years has changed so much that when these were initially drafted back in 2002 they did not foresee the current threat environment? Would that be fair?

Ms Cook : Yes, I think that would be a fair way of categorising it. The threat environment has changed dramatically over the last decade. What we are experiencing now, as opposed to how the threat manifested a decade ago, in the post September 11 environment, represents quite a dramatic change. Previously, the sorts of activities in the terrorism space that were observed were larger networks of individuals and larger scale plots with more involved planning and longer term planning. As you would be aware, the current environment is pretty much the opposite of that: lone actors or very small groups and very short time frames between forming the intent to undertake an attack and actually being able to acquire the capability to do so. That is because of the use of more readily available weaponry—more easily accessible types of tools of attack are the preferred mode of attack now. So, the time it would take to form the view that a questioning warrant or a questioning and detention warrant would be an appropriate way to proceed in the current environment, and then the time taken to actually acquire such an instrument, would probably preclude its general utility in the current environment. But we can certainly conceive, and have considered in the current environment, whether or not they would be appropriate to use. But, again, because of the fluidity and the speed with which these sorts of plots emerge, we need to be much more agile.

I would also add that the nature of the current environment means that the way we collaborate with law enforcement also is compressed and more engaged as well in terms of the capability and tools that are available in respect of investigations of emerging plots. There is a fluidity between moving from the intelligence space of an operation into the law enforcement space, and that too has compressed when you compare it to a decade ago.

CHAIR: If the terrorist threat is agile, fluid and constantly changing, with a very rapid decision cycle required—that being the case—can we talk a little more about espionage and foreign interference. In your submissions, both the department's and ASIO's, you have called for the questioning powers to be expanded from questioning in relation to terrorism offences, as you say. ASIO's full security remit includes:

… protect[ing] Australians from politically motivated violence, the promotion of communal violence, espionage, sabotage, acts of foreign interference…

Given that a lot of those threats require longer term planning, could you see the questioning powers being used more readily to defeat some of those threats in terms of enabling you to develop leads as part of your overall collection?

Ms Cook : In the espionage and foreign interference ways, you are asking?

CHAIR: Yes, that is right.

Ms Cook : Absolutely. We have had opportunity to see in particular cases, which I will not go into in this hearing, where other agencies, such as our partners ACIC, have been able to use powers in respect of concurrent investigations in that space and where we have been able to observe the effectiveness of a compulsive questioning power in those sorts of operational environments. Whether or not the speed or agility remains a factor in those cases is questionable, I think, as you should point out. But the fact that we do not have it open to us, under our current legislative regime, to use a power such as compulsive questioning in the espionage or foreign interference spaces is definitely a limitation. We believe that with that authority we would be able to resolve some of those issues much more quickly, reach decisions and assessments far more quickly, with the ability to question individuals in that way, which will ultimately allow us to divert and redirect resources more effectively against the threat.

CHAIR: When you compare those two sets of threats, which consumes the majority of ASIO's time and which is of greatest threat to Australia's national interest?

Ms Cook : I would not separate the two. I would argue that terrorism consumes most of our time because of the immediacy and the high threat to life element of it. But espionage and foreign interference is an extreme threat. We assess terrorism at probable. Espionage and foreign interference is an extreme threat because it is occurring now. It is very occupying for us. We would dedicate many more resources to that if we could, but at the moment we are more occupied with terrorism.

CHAIR: So would you categorise not having this tool in that space as a gap, even a weakness?

Ms Cook : I would describe it as a gap. We know that with that power we could, as I mentioned before, be able to more quickly resolve and get to the bottom of some of our investigations in that area, and that would release resources and allow us to direct resources more effectively.

Mr BYRNE: Clearly you are looking towards expanding the remit of the questioning powers because of, as you say, espionage and foreign interference. How would you categorise that again? Would you say that espionage and foreign interference is critical in this country at the moment or not?

Ms Cook : It absolutely is and it has been for some time. The Director-General has been on the public record at estimates and at other fora explaining the level of concern about that activity here. It is a very high priority for ASIO and that conduct and that activity is creating harm to Australian interests as we speak.

Mr BYRNE: You may have noted that there has been some media reportage by Four Corners and Fairfax media about allegations of foreign interference. Do you take those issues seriously and the way that that interference can be exercised?

Ms Cook : Of course.

Mr BYRNE: And would you say that there is some basis to people's concerns about how foreign state actors have been trying to interfere with the Australian political process?

Ms Cook : What I would say, and I am not going to get into detail in this forum, is that we are concerned with all elements of espionage and foreign interference, that there are foreign state-sponsored entities that have the intent and capability to conduct operations here in Australia and against Australian interests. For that reason, we and our close partners around the world take espionage and foreign interference very seriously.

Mr BYRNE: Can I formally request, as deputy chair, that ASIO provide us as a matter of priority with an intelligence briefing about foreign interference. I understand that that has not been requested yet, having checked with you. Can you please provide that to our committee at your earliest opportunity.

Ms Cook : Absolutely.

Senator McKENZIE: Thank you very much for your submission and your evidence here today. We heard this morning in regard to the compulsory questioning power expansion that Israeli intelligence agencies do not have these; across the world, including our Five Eyes partners, do not have these sorts of powers. I want that clarified—yes or no. If that is the case, I want to know what is unique about Australia, our system and the threat level that we are experiencing that our intelligence agency is requesting quite unique powers compared to intelligence agencies across the world.

Ms Cook : I am not sure if A-G's have more comparative analysis around what others do, but I would simply say that—

Senator McKENZIE: I am assuming you would know your counterparts in other jurisdictions.

Ms Cook : But comparative legislation and how special powers operate within different countries is unique to those countries. I will take it on face value that they do not have the same sorts of powers, but the—

Senator McKENZIE: A-G's, do you have some comparisons around the world?

Ms Sheehan : We do not have comparisons of other countries' regimes in this space—

Senator McKENZIE: All right. On notice, if you could both have a look because we received very clear evidence that other intelligence agencies, including our Five Eyes partners, do not have this type of expanded power and have other ways internally within their borders to deal with this particular issue. Given that you cannot—

Ms Sheehan : I was going to say what might be useful to the committee is that the coercive questioning powers are common amongst other Australian agencies. So it is not something that is unique to ASIO; there are other agencies—obviously, the ACIC—

Senator McKENZIE: Yes, the law enforcement agencies.

Mr DREYFUS: If I could perhaps interrupt: the particular proposition was expressed in respect of domestic intelligence agencies by Dr McGarrity, who referred us to an article she wrote for the Journal of Policing, Intelligence and Counter Terrorism in 2014, which is referred to in her submission—the one that she made jointly with Professor Williams.

Senator McKENZIE: And someone here at this table would have read that submission, I am assuming, to appear here today. So what is unique about our system and our threat level that sees us requiring these expanded powers in the domestic space?

Ms Cook : If I could go back a step. The other element that I was trying to express in terms of how legislative frameworks work in other countries is that I am not aware of whether the ability to compel somebody for questioning may be linked to the way those other intelligence services interoperate with law enforcement or other authorities that may have that power, and they may be able to avail themselves of that power. I would need to check whether or not there are other means by which they are doing that. I would not try to argue that our environment is unique. Certainly, in the current security environment or global environment, we are experiencing a similar level of threat to others and certainly in some respects a greater level of threat. In terms of that comparison, I will not try to argue that there is something unique about the security environment here. I would simply argue as a practitioner—

Senator McKENZIE: What about our system?

Ms Cook : Well, that is it; I cannot compare the system, I suppose, because I do not know whether or not, for instance, our British partners or our other partners, or the Israelis, may be able to avail themselves of compulsive questioning through a partnership with another authority in that country.

Senator McKENZIE: Can you do that on notice? Thank you.

Senator FAWCETT: I want to come back to the difference between the counterterrorism threat and the threat of espionage. Some of the streamlining that you have asked for in terms of removing some of the judicial steps and going straight to the Attorney-General for verbal permissions et cetera are all targeted around the rapid response required. As I read it, that option would be available to you even in an espionage situation, which—I stand to be corrected—it strikes me would not necessarily be as imminent in terms of dealing with the threat. Are you seeking or are there reasons why you want that ability to react in such a short time frame or is there scope to actually keep those protections in for espionage and foreign interference type regimes and just limit that streamlining to acts of violence, which can occur in a very short term?

Ms Cook : We would argue that there is a necessity to have that streamlining and that agility in the espionage space as well. Again, we can conceive of situations, especially when we factor in some of the nature of the threat in that space, where we may become aware that privileged or classified information may be about to be released into the hands of someone that it should not be, whether that is to the public or to a foreign power. We would want to be able to act very, very quickly to be able to prevent the harm that would result from that occurring. There are examples where the need to operate very quickly in order to prevent that sort of harm from occurring could be as applicable in the espionage space as it would be in the terrorism space.

Senator FAWCETT: In either of those scenarios, my understanding is that, on the occasions when these powers have been used, IGIS have been physically present during the questioning. Clearly, if you get to the point of having a verbal approval from the Attorney-General to enable a quick response, that throws into question the ability of IGIS to respond in a similar time frame. Have you thought through from your perspective how you would enable a similar level of oversight of the checks and balances that we have had to date for the use of these powers?

Ms Cook : The IGIS is aware of the documentation that goes through, as you said, and is present for any questioning activity. Yes, we would have to work with the office of the IGIS to make sure that, if we were in that sort of emergency circumstance, that she was part of the procedure in terms of alerting her office, or his office as the case may be into the future, that such an emergency warrant was being sought, and seeking the office of the IGIS's ability to present for the questioning. We would simply have to work with the office to develop a protocol to make sure that that occurred.

Senator FAWCETT: My final question is with regard to the immediacy issue—and you may wish to address this in a private briefing. Clearly, if you see an imminent threat to the point where you need an emergency verbal authorisation, I am interested to understand what protocols you have worked up with law enforcement, because the transition from an intelligence activity to a prevention and law-enforcement activity would be very rapid in that situation. I am interested, either now or perhaps later, to understand what preparatory works you have done with other agencies to make that side of it work.

Ms Cook : Again, we are happy to perhaps contemplate some examples in the closed hearing, if you are interested, but I guess what I would say about how we operate with law enforcement now—certainly in the last several years and in the current environment—is that there is a virtually seamless partnership in how we operate in our joint counterterrorism teams and whatnot. But there are differences between a law enforcement agency and what the law enforcement agency needs to act on and a security intelligence organisation, where there is an imperative to inquire or a perishability of a particular type of inquiry that may reveal information of relevance to an ongoing security matter. With the urgency and the seamlessness, if it is a matter we are working with police on, I think we have mechanisms in place to ensure we de-conflict and that we are working in a seamless way in that area, but there are many occasions where our interests diverge and it would not necessarily be that type of a scenario where law enforcement would be directly involved.

Senator FAWCETT: My final question goes to the area of searching people who are to be questioned. I completely understand that in the light of recent events, but it does go to the question of training for your officers, equipping for your officers and powers for your officers if, during that search, an offensive weapon and the demonstrated intent to use it were revealed.

Ms Cook : I do not think we would be proposing that ASIO conduct the search, necessarily. I think, whatever the legislative mechanism would be, there would need to be an appropriately trained law enforcement officer to accompany and participate in that, for the reasons you point out.

Senator McALLISTER: I want to ask about the questioning and detention warrants. I think both agencies today are now presenting a case for retention of that provision. Two successive INSLMs have recommended that those provisions be repealed, and a number of submissions have argued that there are now sufficient alternative mechanisms to detain a person who presents a threat. In particular, these arguments suggest that it is difficult to imagine a circumstance where a questioning and detention warrant might be required that would not present the opportunity to charge an individual with an offence, at least a preparatory offence. It would be helpful to the committee if you responded to that set of arguments around questioning and detention warrants.

Ms Cook : The best way, I think, for me to respond to this is, rather than describe the legislative mechanism that would be required, to describe the operational effect that we would be after and what we are trying to achieve through that. Where we may choose to question somebody and we are concerned about, firstly, the possibility of the person not complying or absconding, that is one element. The second element is our concern about the possibility that the individual will be able to destroy documents or intelligence, be they electronic or otherwise, that would be relevant to the investigation we are conducting. The third element that we would want to prevent is their ability to alert others who may be involved or associated with the investigation, which could, again, have a negative or harmful effect. If we are talking in the terrorism space, we would not want them to be able to alert others in a way that may result in a plot being accelerated or obfuscated or otherwise reduce our ability to do something about it.

So, I guess, when we are talking about questioning and detention, and appreciating what consecutive INSLMs have found, we remain of the view that, in questioning someone, we would want to have the ability, whatever the legal framework might be around that, to prevent them from absconding, to make them appear, to ensure there were no means by which they could destroy relevant information or evidence, and to ensure that they have no ability to alert others. Whatever shape that mechanism needs to take legally, that would be the effect we would be after. There are very strong operational reasons why we would want that to be the case, separate and apart from whether or not somebody has committed an offence at that time or is getting ready to commit an offence.

Senator McALLISTER: I am thinking about scenarios where a person of interest to you from an intelligence-gathering perspective is likely to abscond, destroy materials or communicate with others who are involved in preparation for some sort of terrorist act. I am trying to think of a circumstance where that individual would not themselves through the kind of communication or participation that you are describing be able to be charged through some of the other mechanisms in the Crimes Act.

Ms Cook : Again, I am happy to go into some more scenarios in a closed setting, but it may not be the individuals themselves; there may be somebody on the periphery who has information. It could be a family member or an associate who is not themselves committing the act but has knowledge of it and would not otherwise be voluntarily prepared to provide that information.

Senator McALLISTER: The question of voluntary provision of information relates to the questioning warrants; I am asking very specifically about questioning and detention warrants.

Ms Cook : For the same reason we would be concerned about the ability of that family member or associate to alert the target of concern or destroy evidence or communications. Those are the sorts of things we would be seeking to prevent or pre-empt.

Mr DREYFUS: On that last point, do other partner agencies and partner forces—say, those that you participate with on the joint counterterrorism task forces—have their own powers of detention?

Ms Cook : Yes.

Ms Sheehan : As in law enforcement?

Mr DREYFUS: Yes. New South Wales Police, for example.

Ms Sheehan : Law enforcement have their own ability to detain if they meet the thresholds in their legislation.

Mr DREYFUS: Australian Federal Police, similarly?

Ms Inverarity : Yes, although they would have had to form a specific suspicion that a terrorist offence was reasonably likely to be committed, which might be a higher threshold than ASIO's questioning threshold.

Mr DREYFUS: They are matters of detail; I am just going to the existence of the power. New South Wales Police have a power to detain, Australian Federal Police have a power to detain and Victoria Police have a power to detain. Is that right?

Ms Inverarity : Yes, in the margins of charging a person or having arrested a person, that is correct.

Mr DREYFUS: Is it right to say—do not answer if there is any operational sensitivity about this—that ASIO has relied on the existence of those detention powers that state and federal police forces have?

Ms Cook : No.

Mr DREYFUS: Never?

Ms Cook : No.

Mr DREYFUS: I am trying to pin down the suggestion that the detention power seems to be all emergency, urgent-type matters. The three things you have identified are risk of absconding—this is potentially on the part of someone that is not a suspect, not a person of interest but may have information—destroying documents or alerting others. Are there other ways you could deal with those three problems?

Ms Cook : We have considered that. We have considered, for instance, our own existing search powers. Again, I think they would not be comprehensive enough to deal with all of those issues. We are talking about the time frame between somebody being alerted about a questioning warrant and then being able to alert somebody else. Our powers of a search warrant would not necessarily preclude that from occurring. I do not think that the powers of our law enforcement partners—I could be wrong; I will seek guidance from my colleagues at the table—would allow us to question the individual. They could be detained under those powers, but I am not necessarily sure that would then allow for the questioning we need to do. There have been efforts to look at what else is available out there, but we have not been able to find a combination of things that would achieve this. We would still point out that the questioning and detention powers are extraordinary. They are not something we would expect to have to apply even with the streamlining of the regime. We recognise that we would use them in extraordinary and unique circumstances, but we do not have a power that would allow us to give effect to that or prevent those sorts of risks in a pre-emptive way. That is what we are seeking to achieve.

Mr DREYFUS: Just to digress for a moment, these are extraordinary powers that we are dealing with, aren't they.

Ms Cook : I think both the compulsory questioning and in particular the questioning and detention were extraordinary when they were put in place back in 2003.

Mr DREYFUS: They have not become less extraordinary since.

Ms Cook : I would argue that the compulsory questioning power is not extraordinary, given the range of Commonwealth and state agencies that have them. We still treat them as extraordinary and recognise their intrusive nature, but I am not certain that I would describe ASIO's compulsory questioning powers as extraordinary.

Senator McKENZIE: But for intelligence agencies they are extraordinary. They are not for the ACCC or a range of bodies, as you have said, but even globally it is extraordinary for an intelligence agency to have compulsory questioning powers.

Ms Cook : Again, I would have to examine the legislative framework in all these different countries to see if they have other means of compelling information or questioning individuals. I simply do not know if that is the case or not.

Senator McKENZIE: I find it incredible that you have developed a submission and come to the Commonwealth seeking a change and expansion of your powers and you have not looked at other spaces and places on how they achieve the same outcomes. Is that correct? You and A-G's have not done an analysis?

Ms Sheehan : It is not a matter of comparing precisely what legislation is on the books in those other countries. As Ms Cook pointed out, you would have to understand how the relationship between those agencies in other countries works.

Senator McKENZIE: But that goes to Mr Dreyfus's line of questioning, which I think is about what currently exists within our own borders—the working, or not, of the joint counterterrorism teams and the sharing of information between our intelligence-gathering agencies and our law enforcement agencies. Has some internal analysis been done of where the gaps are?

Ms Sheehan : I go back to the point that when law enforcement agencies might be detaining someone, as Ms Inverarity pointed out, they would be detaining someone where an offence was likely to be committed, so law enforcement would have their own threshold to look at when detaining someone. ASIO's intelligence-gathering functions and our intelligence-gathering functions are different in this space.

Ms Inverarity : We would also note that ACIC can also use its coercive examination powers for the purposes of criminal intelligence operations, in addition to more traditional law enforcement investigations.

Mr DREYFUS: I have digressed from exploring what the other powers were, and I am going to stay on the digression for a moment. The Inspector-General of Intelligence and Security was here this morning. She has provided a helpful submission and answered some questions from other members of the committee. She described these powers as very strong powers. Would you agree with that?

Ms Cook : Yes. They have to be used very judiciously.

Mr DREYFUS: Right. Well, one of them has never been used—

Ms Cook : Yes, exactly.

Mr DREYFUS: and the other one has only been used 16 times, and not used at all since 2010. Can I suggest to you that they are not just very strong powers, that when they were introduced they were seen as extraordinary powers and they remain extraordinary powers. Even acknowledging that the state integrity commissions all have coercive questioning powers, and even accepting that the Australian Competition and Consumer Commission has a coercive questioning power, they remain extraordinary from the point of view of the domestic intelligence agency, ASIO, having the powers simply because they are exercised in secret. So it is coercive questioning in secret, with a criminal offence carrying five years' imprisonment even to reveal, on a strict liability basis, that you have been questioned.

Ms Cook : Yes, I do not disagree.

Mr DREYFUS: I am trying to set the context in which the committee has to consider this. They are also more intrusive than the whole array of other powers that ASIO has had for many years, like surveillance warrants, search warrants and search-and-seizure warrants—even, you could argue, the identified person warrants. They are actually more intrusive, because coercive questioning of its nature is a very intrusive power. Do you accept that?

Ms Cook : Yes, I do accept the degree of intrusiveness. We consider the suite of our special powers as intrusive, which is why they are handled in a very special way—applied judiciously and proportionate to the threat. But I do not disagree with what you are saying. I suppose there could be different views about whether or not open questioning—albeit in secret—of an individual would be perceived as more intrusive than some of the other sorts of powers where the individual would not be aware that, say, their communications were being intercepted or those sorts of powers that would be used at that point. That is seen as intrusive. I guess the weighting of what is more intrusive may be questionable, but I do not disagree with you that these are intrusive powers.

Mr DREYFUS: Perhaps my view is a bit different on what intrusiveness is. But certainly, the reason why these powers were given additional safeguards when they were introduced, compared to the other powers that ASIO already had—not quite since ASIO's inception, but certainly since the 1950s, in the case of most of the powers—was because they were seen as 'very strong', to use the IGIS's language, or 'extraordinary', to use the language that was used in parliamentary debate at the time.

Ms Cook : Yes.

Mr DREYFUS: I digress, but that is helpful to us because it gives us a bit of context. In answer to the question about the proposition that this committee should consider extending the questioning warrant power—put the questioning infringement warrant power to one side for one moment—to, say, counter espionage: Ms Cook, you gave us an example of the urgent need to deal with the delivery of top-secret material to somewhere where it should not go.

Ms Cook : As an example.

Mr DREYFUS: As an example. Would there not be a whole range of other powers existing both in ASIO and in state police forces or federal police forces to deal with that eventuality? Just to flesh that out, if you have knowledge that top-secret material is in hands that are going to deliver it to a foreign power or to some other place where they should not go, you have the basis for an arrest right there. You could probably charge right there.

Ms Cook : The way that I would answer that question is that we can conceive of examples where the questioning of the person concerned is not necessarily the person who may be perpetrating that. It might be somebody on the periphery who has information that is going to actually assist us in resolving that issue. It might not be the individual themselves. It could be somebody who holds information relevant to an investigation and there could be an urgency to that, as I have described.

Ms Inverarity : To take that example a little further, perhaps a secrecy offence would be in the process of being committed. However, there may be questions arising about to whom the information was to be passed or how that person had come into that line of activity that perhaps could be more easily obtained in ASIO's coercive questioning process where self-incrimination is abrogated prior to any consideration of whether you have met the arrest thresholds in order to obtain that useful information.

CHAIR: And, moreover, involvement of same-state jurisdictions would also potentially compromise operational security considerations. Is that fair, given that, if you are operating at a TS level, you would not want to devolve some of your cases down to lower clearances? Is that a fair comment?

Ms Cook : Yes.

Mr DREYFUS: I suppose I am trying to get a handle on why urgency is brought in aid of the suggestion that questioning warrants might be useful, because, in that hypothetical scenario, you are going to know. That is what makes it urgent; you already know something, and you know quite a lot. And I would suggest that, when you know quite a lot, when you know enough to know that it is really urgent, you are probably going to know enough for all of the police powers that exist to be invoked.

Ms Inverarity : It might also be worth pointing out that, despite what ASIO might know, it would be the AFP that would need to form its independent judgement as to whether it was satisfied that the arrest and charging thresholds had been met. ASIO's view of whether those thresholds had been met may not always exactly align with what the AFP, in its independent role, would conclude.

Ms Cook : Or with what we know reaches evidentiary standards or could even be used in a prosecution. It may be not able to be used for a variety of reasons due to sensitivity. But it is not all about urgency. I was asked to give an example in the espionage space of a potentially urgent case to contrast that to the CT argument or to why we would not necessarily differentiate the need for that sort of agility in both programs of ASIO's work. But it is about making the power accessible for the purposes of counter espionage; that is what we are seeking through this amendment.

Mr DREYFUS: Just to pick up on Ms Inverarity's comment, we are here at the intersection between ASIO's role as an intelligence agency and the role of police forces as operational and enforcement agencies. Why would it fall to ASIO to act in that urgent situation? I am not for a moment saying that there are not things that you get hold of and are going to pursue—and that you are going to pursue them quickly and efficiently and well—but, at the point at which something is about to happen, aren't the police forces almost always going to be involved?

Ms Cook : Potentially, but I do not think that you would be able to say that, universally, that would be the situation in all cases. Again, what we are experiencing in the current environment is that we do have a suite of tools at our disposal, and we work with partners who have a suite of tools at their disposal, and in any given situation we are always examining what is the best way forward and what is the best way to apply that capability to achieve the result that we need. But not everything falls into that law enforcement space, and there are issues that we deal with in the intelligence space that do have an urgency, and a time imperative about them as well, that do not necessarily relate to an offence. So we are seeking to, as an intelligence agency, fill gaps in our understanding and to understand in order to make a more effective security assessment about the threat posed by activity and conduct in individuals and groups, and we would seek to use all the tools at our disposal to try to do that. This is one more that we believe could be more valuable in the current environment if we had the ability to use it in a different way. That is not to say that we could not use it in its current format, and we may consider doing that, but we would be able to make better use of this power if we could have it more fit for purpose in the current environment and if we were able to apply it across the full suite of our remit.

Mr DREYFUS: Just to look at another aspect of this, ASIO's submission at paragraphs 18 and 51, as I understand, is referring to and seeking to explain why the questioning warrants, used only 16 times, have not been used since 2010. But they do not quite seem to engage with why the questioning and detention warrant has never been used. Particularly, in the context of the changed threat environment, which I think everybody around this table accepts. To state it in the broad, there is a change from a threat environment of large-scale plots and large-scale-casualty type threats to the much lower-level, single actors or small groups using what they have at their disposal and acting very quickly. That is the changed threat environment. Accepting that, why is it the case that the detention warrants have never been used?

Ms Cook : Again, I would go back to the fact that they are a last resort power. They would be very judiciously applied. We have considered a few occasions where it might be appropriate, but, again, I think you are quite right that in the current environment, and because they are specific to terrorism offences, we do find ourselves in the situation where we are working more closely with our law-enforcement partners and that those sorts of capabilities combined can be applied so that we are transitioning from the intelligence space into the law enforcement space more quickly.

I think it is part and parcel, because of the environment, that we do with many of these things move into the law-enforcement space very quickly, where they would then take over and move into the evidence collection and the laying of charges. But, again, not using all of the capability that we have does not mean that it could not be useful, and I guess we can conceive of situations going forward where it could be useful.

Mr DREYFUS: But I am asking a different question. It is not as if we have not seen over the last 15 years Australians die in terrorism events and successful interruption of a reasonable number of well advanced plots, where people have been charged with and convicted for serious terrorism offences and jailed for very lengthy periods, in the period that this power has existed. But it has never been used, not in relation to the interruption of those dreadful plots and not in relation to any other activity. Why is that so?

Ms Cook : Again, I would just come back to that we have a suite of capabilities that we have been making use of, that the current environment does have us working very closely with law enforcement, so many of these things do move into that space very quickly, where charges are laid, and the utility of ASIO using this power has not come up as something that was going to be helpful in those particular circumstances at the moment. I do not know what else to say, other than it is considered. It is a labour intensive process that would require unique circumstances to be met, including circumstances mentioned before, where we had concerns about the person not presenting or alerting others or destroying, deleting or otherwise damaging or getting rid of documents or intelligence that would be useful. Those combinations of circumstances have not presented in a way that meant this was the right tool to use in those particular circumstances.

Mr DREYFUS: Can I take the last example of a concern of destruction of material—let us assume it is digital material, not a document; or assume either. ASIO has search and seizure powers available to it. Why wouldn't they be used in the case of feared destruction?

Ms Cook : As I mentioned earlier, we looked at the overlay between the questioning warrants and our search warrants.

Mr DREYFUS: Which is better described as 'search and seizure'.

Ms Cook : 'Search and seizure', yes. The advice I have is that there remains a gap in levying those two summonses and our ability to be assured of preventing, or to prevent, the individual from somehow alerting or contacting another party. The search and seizure powers would not necessarily allow us to prevent that from occurring in combination with a questioning warrant being levied on somebody.

Mr DREYFUS: Perhaps we will have to think about that a bit more.

Senator McALLISTER: Specifically, a clearer explanation of what that gap is would be quite important.

Senator McKENZIE: Would one of your officers have any further detail?

Ms Cook : Perhaps we can cover it in the closed hearing then, when they can come to the table and perhaps offer some examples.

Mr DREYFUS: I am not seeking to deal in any way with operational information in a public hearing.

Ms Cook : No; I understand that.

CHAIR: Is it fair to say that ASIO runs counterespionage operations, for example, at a compartmented level, and you can achieve a disruption effect against foreign interference or espionage without involvement of state or federal law enforcement agencies?

Ms Cook : Yes.

CHAIR: Therefore, the questioning powers, if extended to cover that threat, give you another tool that you can use discreetly to disrupt foreign interference and espionage.

Ms Cook : Yes.

CHAIR: Okay.

Ms Cook : Certainly direct, face-to-face questioning can have that effect without it moving into a law enforcement space.

CHAIR: And as an intelligence organisation, is it fair to say that you do operations discreetly so as not to compromise your network and that incorporating other agencies unnecessarily could indeed compromise things?

Ms Cook : That is certainly the case in the espionage, malicious insider space, yes.

Mr DREYFUS: Perhaps I can state the problem the committee is faced with, Ms Cook. This committee has got two reports in front of it: one report by the Independent National Security Legislation Monitor who first occupied the job, Mr Walker SC, and the second report by the second Independent National Security Legislation Monitor, who occupied the position until October last year and who, in his last big piece of work, gave a report to the government. Both of these Independent National Security Legislation Monitors have recommended that the detention power—they have reached somewhat different positions in respect of the questioning power, but they are differences of degree. Both of them are saying keep them but change them in different ways, which is a separate problem this committee is going to have to grapple with. On the detention warrants both of the retired INSLMs have said, 'Get rid of it; the power has never been used', and yet we have ASIO and the Attorney-General's Department saying, 'Keep it—in fact, expand it'.

Ms Cook : Again, I would go back to my answer to Senator McAllister. We appreciate those were the findings. What we come back to is the effect we are seeking to achieve. I believe Mr Gyles suggested a potential treatment for that in one of his findings—that is, the utility of the compulsory questioning power is paramount to us. That is the one that we would very much seek to retain—I can conceive of many examples—and expand across the remit. The element of the current questioning and detention warrant—in its totality, it is what it is.

What we are seeking to achieve by way of effect is some legal mechanism, whether that is included in or a reform of the current compulsory questioning warrant or not. It is that there is an ability in summonsing somebody for questioning to also pre-emptively ensure that they are not able to destroy material, that they do present and that they are not able to alert others. That is all we are seeking to retain, I suppose. That is the effect we are seeking to retain. Whether that means that the questioning and detention warrant is a separate entity and needs to be reframed or repealed, and whether the questioning warrant could be amended to include some mechanism that allows that to occur, that is the effect we are seeking to achieve. I accept the findings that both INSLMs have reviewed and have that finding. Our point is that those three issues are things that we think are quite important in terms of the overall amendment of this legislation for it to be of utility to us.

Mr DREYFUS: To pick that up: I think your submission and the department's submission both look at those other possibilities of how to deal with a need to detain. One of the matters that both submissions look at, and Mr Gyles has also looked at, is the absconding hypothesis, which was the first of your three examples. It might be possible to create a power that empowered a police officer who feared the person would not attend for examination to arrest.

Ms Cook : Yes.

Mr DREYFUS: Which would be a different way of doing it.

Ms Cook : Yes, for that particular element. I think there was a recommendation that there be an offence or a charge that the person could be arrested if they failed to appear. That would not have the effect we are after. The more important elements are being able to alert others and destroying relevant intelligence. Those would be the elements. We would be seeking to have a power that was pre-emptive in nature.

Ms Inverarity : From a departmental perspective as well, wherever it is possible to do so, we would always prefer that a warrant itself would authorise that detention. Particularly if there were information known at the time that the decision was made to pursue that course, it should be authorised in the warrant rather than left to the discretion of the individual police officer, who may be at an information deficit compared to the original decision maker. So we would want to preserve that ability to cover it in the initiating process as well.

Mr DREYFUS: Just to move to a somewhat different aspect: one of the submissions that we have received—it was from Professor Williams and Dr McGarrity—expressed concern about the suggestions that have been made from some quarters that, instead of the current questioning warrant regime, some modified version of the Crime Commission's regime should be adopted. This is the suggestion made by Mr Gyles. The particular concern that Professor Williams and Dr McGarrity expressed was that that would remove the judicial scrutiny that is present for the questioning warrant regime. I am looking at you, Ms Cook, but perhaps the question is better directed at the Attorney-General's Department. Would you have any comment about that removal of judicial scrutiny? To perhaps put it squarely to you: as I understand it there is a suggestion that the department appears to agree with that, in any event, the judicial scrutiny that is currently present in the questioning warrant regime should be removed. This is the issuing authority.

Ms Sheehan : That is right. The department's position is that for questioning warrants it would be quite appropriate for the Attorney-General to authorise those warrants. As you know, the Attorney-General authorises a number of other warrants under the ASIO Act—surveillance device warrants, computer access warrants—so it would be consistent with the Attorney-General authorising those other warrants for the Attorney-General to be the issuing authority for a questioning warrant as well.

Mr DREYFUS: As I understand the history of this legislation, the reason why the issuing authority was inserted over and above the Attorney-General's involvement was in recognition of the extraordinary nature of these powers, or their very strong nature, to use the IGIS formulation.

Ms Inverarity : Consistent with our submission, we have suggested that the issuing authority role should be retained for questioning and detention warrants, where it does have the additional intrusion into a person's liberty.

Mr DREYFUS: But so too is the questioning warrant a special power.

Ms Inverarity : To some extent—yes. To a lesser extent.

Mr DREYFUS: What is the justification for removing the judicial involvement?

Ms Sheehan : From a policy perspective, we consider it appropriate for the Attorney to balance all the considerations as he or she already does for other warrants under the ASIO Act. It is the minister responsible for national security but also the rule of law. Considering those and issuing a warrant for questioning warrants is something we consider appropriate from a policy perspective.

Mr DREYFUS: Do you accept that, from the point of view of the public, the involvement of a judge provides some additional assurance and is likely to build public confidence in the exercise of these powers?

Ms Cook : I am sure that would be the case. I would also argue that, in addition to it being consistent with the way all other special ASIO powers are authorised, that independent ministerial authorisation exceeds, if I am not mistaken—I can be corrected on that—other compulsory questioning regimes that exist in the Commonwealth.

Mr DREYFUS: Which are not conducted in secret?

Ms Cook : Yes. But, on the fact that they are conducted in secret, there are also other oversight mechanisms in place for ASIO's work that do not exist for other agencies.

Ms Inverarity : Our view would be that, for example, ACIC questioning carries similar prohibitions on the person disclosing the existence of the questioning either before or after they attend. In terms of the questioning being undertaken in secret, there are other examples of people not being able to disclose the existence of the questioning as well.

Ms Cook : There are provisions open to the individual, again in terms of accountability. The IGIS is present. The individual can complain to the IGIS and make representations. Those outlets of accountability are part of the process. We are not suggesting in any way that that should be reduced or removed, but it is over and above what exists in other compulsory questioning regimes and, I think, it compensates for the fact that it occurs in secret.

Senator McALLISTER: I would like to ask questions that shift direction from our current conversation. They go to both AGD and ASIO's recommendation that the scope of the questioning powers be expanded to cover all of the activities defined in relation to security in the act—

Ms Cook : The heads of security?

Senator McALLISTER: The heads of security. Thank you. That is a much neater phrase than mine. In the first instance, I would like to ask about your recommendation that terrorism 'offence' narrows the scope of the questioning powers. Could you explain to the committee the practical ways in which it does that? That would be helpful.

Ms Cook : One very practical way in the current environment is that foreign incursions, for instance, would not be captured under a terrorism offence. In the current environment, much of our investigation is focused on individuals who have gone overseas to fight with offshore groups. So, in terms of being able to apply it in that way or to associates or individuals who may be able to provide us insights into what those individuals are up to, it would not be open to us to use it in that way.

Senator McALLISTER: In the way the legislation is drafted at the moment, referring to an offence effectively creates a threshold below which it is not acceptable to deploy these extraordinary powers?

Ms Sheehan : Yes, that is correct. That is really the reason why both ASIO and the department are supportive of removing the reference to 'offence'. It does not fit with what ASIO's function is as an intelligence-gathering organisation. I think you could have a situation where you have not identified that a specific offence is being prepared for and conducted, but ASIO would still obviously get benefit from its intelligence-gathering functions to be able to question.

Ms Cook : Our mandate is anticipatory and preventative. The way I sometimes describe it is that we are turning over the rocks and working out what the threat is, making assessments of: what does the picture look like; what are we seeing; what are the developments? Then, at some point in time—not always—it may reach a threshold where it is criminal. But we are working in that space where we are below and do not concern ourselves about whether or not a crime has been committed.

Senator McALLISTER: I understand. Another reading of that offence threshold—and not incompatible with anything you have said so far—is that it relates to proportionality. As we have discussed already here, the questioning powers—certainly the questioning and detention powers, but all of the questioning powers—are extraordinary, and so attaching them to the idea of an offence creates a test of proportionality. I do not deny that, as you describe, Ms Cook, ASIO's broad remit is not associated with investigating offences, but, if you are seeking to remove that default test of proportionality for the deployment of these powers, is there anything about either of your proposals that suggests inserting a new test, or is it your view—sticking to terrorism for the moment—that these powers ought to be able to be utilised in any way against any witness who has anything at all to say at any time about terrorism?

Ms Inverarity : Yes, we have suggested that the threshold—and I cannot find it in our submission right now—the question should be undertaken where it is anticipated that it will be important in relation to security, and that would refer back to the definition in the ASIO Act, although obviously there may be other ways to construe that, which we would be happy to work through with agencies and drafters in time.

Ms Cook : And it is language that is similar to what we use in our other warrants—the thresholds that we use for other warrant activity, which do not connect to an offence at all. It is about the impact we are seeking to have, what we are seeking to determine and why we think that information is going to be gleaned by using this particular power.

Senator McALLISTER: If we think about the related proposal, to extend it to all the heads of security in the act, that is the same threshold you would recommend for those other questions from both agencies. Is that correct?

Ms Sheehan : The threshold—I can find the paragraph number in our submission—

Ms Inverarity : It is 4.19. I have just found it.

Ms Sheehan : is that there be reasonable grounds for believing that issuing a warrant would substantially assist the collection of evidence that is important to security—

Ms Cook : Collection of intelligence.

Ms Sheehan : Sorry; collection of intelligence that is important to security.

Ms Cook : As defined in the ASIO Act.

Ms Sheehan : As defined in the ASIO Act, which is consistent with the threshold for issuing other warrants under the ASIO Act—for example, computer access warrants.

Ms Cook : Search and seizure.

Mr DREYFUS: I just want to read to you—you have probably read it—what Mr Gyles had to say in paragraph 9.1 of his submission about the questioning and detention warrants. He said:

The case for abolishing ASIO QDWs was made by the previous INSLM, and is also made in submissions to this review from the Law Council of Australia, the Councils of Civil Liberties, and the Gilbert + Tobin Centre. The case for abolition, and other criticisms of the power, has also been made in previous academic literature.

All of this is footnoted. He went on:

ASIO has argued for retention in the evidence of the Director-General. The submission from the Attorney-General's Department refines the argument. It is not necessary to repeat all of the arguments canvassed in those sources that are readily accessible. The case for abolition is compelling.

He went on to quote Chief Justice Brennan on the extraordinariness of the power: 'No precedent in any comparable country has been identified.' He has been so clear in reaching the conclusion he reaches at 9.10:

There is much in the argument that QDWs breach Australia's international human rights obligations. It can be concluded that QDWs are not proportionate to the threat of terrorism and are not necessary to carry out Australia's counter-terrorism and international security obligations. It is time to accept that the capacity to secretly and immediately detain persons whether or not they are implicated in terrorism is a step too far.

It is all pretty strong language. I am not going back to Mr Walker's report, but it is expressed in pretty similar terms. Either now or later—because we have time for this inquiry; we are starting early on this inquiry, recognising the really important nature of these powers and the significance of what we are engaged in here, so you can take it on notice—can you tell us: what are the compelling reasons this committee would actually need to have to differ from the recommendations of those two Independent National Security Legislation Monitors, who have had access, I should add, to far more information than we are ever going to?

Ms Cook : Again, I will simply go back to the effect we are seeking to have, and whether that sits within a questioning and detention warrant or whether that can be incorporated in some other way. What we are after is an ability in certain circumstances, when issuing a questioning warrant, to ensure that information is not going to be destroyed and that other parties are not going to be alerted. Were that not to be in place, if there were circumstances where that could not be assured under legislation, the questioning power would be of less utility to us. We would still use it, particularly if we could make it a more agile tool, and we would certainly like to expand it. But there will be circumstances where it will not be open to us to use a questioning warrant because it would alert an individual to our interest. If we could not ensure that others would not be alerted or that information would not be destroyed, we would simply not use that tool; we would have to find other investigative means which could take longer and be less efficient to be able to reach the same result. I am not arguing with Mr Gyles or Mr Walker, nor would I have a view on what shape that legislation needs to take. What we are saying is, from an operational utility perspective, a questioning power is useful in its own right, but there are circumstances where we would want to ensure, in issuing that warrant, that the individual concerned could not destroy material or alert others. If that could not be assured in legislation, we would be using the questioning power less because it would potentially harm operational activity or the investigative effort.

Mr DREYFUS: I think Dr Southern was trying to get your attention.

Dr Southern : It was about the language of the recommendation in relation to questioning warrants.

Ms Cook : This is from Mr Walker, in recommendation V/2:

The QW provisions should be amended to permit arrest if the police officer serving the warrant believes on reasonable grounds from anything said or done by the person served that there is a serious possibility that he or she intends not to comply with the warrant, and also to permit the prescribed authority to direct detention after service of a QW but before the time specified in it for attendance if it appears on reasonable grounds that there is an unacceptable risk of the person tipping off another involved in terrorism, failing to attend or destroying or tampering with evidence.

Mr Walker made that recommendation in respect of questioning warrants.

Mr DREYFUS: That is right.

Ms Cook : That is the effect, I guess, we are saying. Whether it is enshrined in the questioning and detention warrant or whether it is an amendment to the questioning warrant, the effect is what we are after to pre-empt that from occurring.

Mr DREYFUS: I hope—possibly rather clumsily—I had drawn your attention to that before in saying a power of arrest might do the job, at least for the absconding scenario.

Ms Cook : Yes, but that is limited. I think the point that our colleagues in AGD made is that judgements about whether or not somebody is in possession of information of security relevance or may alert others we would not want to leave in the hands of an arresting officer. We would want more control over the circumstances under which that judgement is being made and the context and background of our officers rather than police.

Ms Sheehan : From a departmental perspective, we are certainly open to looking at what the various solutions or methods might be for achieving that overall policy objective to prevent someone from absconding and destroying material. We would be happy to look at various options to be able to achieve that objective.

Mr DREYFUS: Speaking for myself—and possibly for other members of the committee—we would be assisted by that being done. I will move to another matter, and that is the question of questioning post-charge. Obviously, the questioning warrants are not restricted in use to merely people who are suspects or who are believed to be involved in terrorism. It extends to completely innocent people, but this is the subset of people who are not completely innocent but rather have already been charged. As I understand the position that has been adopted by both ASIO and the department, your position is that there should not be any restriction on questioning of people post-charge. Is that right? Perhaps that is one for the department.

Ms Inverarity : I think our position is that we would want the ASIO Act to be clear on its face that post-charge questioning is allowed. We would be looking at the ACC Act as our model for what provisions might be appropriate in order to accommodate the High Court's judgement in X7 and other relevant decisions. I do not know whether it would be worth the ACIC perhaps describing that regime or whether the committee is already familiar with it.

Mr DREYFUS: That would be good. You have sat here very patiently waiting for questions.

Ms Mayo : I might ask Catherine to outline that.

Ms Deakin : How can we help you in particular?

Mr DREYFUS: Perhaps for the assistance of the other members of the committee and me, you could outline the post-charge regime that applies to the ACIC and, while you are about it, the use restrictions.

Ms Deakin : Okay. ACC Act summons can be issued for the purposes of an ACC Act special investigation or special operation, if an examiner considers that it is reasonable in all the circumstances to do. In the case of a person who has been charged or where charges are imminent, the examiner has an additional requirement—namely, must be satisfied that the issuing for summons is reasonably necessary for special operation or special investigation despite the fact that charges have been laid. There are also considerations around the existence of confiscation proceedings, but that is probably of lesser interest. We might just stick to the post-charge, if you like.

In the decision in X7, the High Court found that, there being no explicit provision in the act, it was not lawful to examine people who had been charged. We had previously assumed that was possible with the act being silent. Then in 2015 the act was amended to insert that specific provision, which the High Court gave us to understand would be constitutional. That has not yet been tested, but we obviously took some detailed advice—and the Attorney-General's Department was very careful to craft it—about how we may move in the provision to the Constitution.

Summons having been issued in a post-charge situation—an examiner governs who can attend. Since the 2015 amendments, the act also includes explicit provisions around the use of what is called examination material, which is essentially the answers given and, in most cases, also the fact of the examination in fact comes under the category of examination material. That cannot be disclosed to prosecutors other than with a court order, and the court can make such an order if it is in the public interest do so. For background, consideration was given for a blanket prohibition on disclosure to prosecutors, but we considered that there would be instances where it was in the public interest for courts to hear about answers that had been given—exculpatory material, we are thinking—again, perhaps an aside.

The second category of information is derivative information—that is, information derived from answers given at an examination. There are provisions around the use of derivative information. There are separate provisions for post-charge or for pre-charge, the parliament having recognised that the risk of fair trial is quite different in terms of people who are already engaged with the criminal process and those who have not yet been charged and indeed may never be charged. There is quite a complex and comprehensive regime around how derivative use can be communicated to investigators and to prosecutors. In short, it is generally permitted. Derivative information can be so disclosed. The court, of course, always retains its inherent power to govern its own processes and to ensure fair trials.

Ms Mayo : Direct use, of course, is prohibited in the examinations that are conducted in private.

Senator McKENZIE: I wanted to follow-up on extending questioning to include 14-year-olds. How does the ACIC approach the issue of questioning minors, and would you be modifying that should you be granted those powers, and in what way?

Ms Mayo : Our act is silent with respect to age. In the private hearing we can elaborate further on how we approach that.

Senator McKENZIE: How does the ACIC approach the issue of questioning minors?

Ms Mayo : In the private session we are happy to elaborate on that. But the act itself, the ACC Act, is silent with respect to the age.

Ms Inverarity : On the issue of minors, earlier we were speaking about the threshold we were suggesting in terms of something being important in relation to security. Where minors are concerned, we have suggested that an additional safeguard be put in place and that the person being questioned should be themselves reasonably believed to be engaged in activities prejudicial to security, to make sure that they are the target of the investigation, the person actually conducting the activities, rather than that kind of circle that is described in other contexts, so you do not have somebody's children being questioned about their activities. That is at paragraph 4.22 of our submission.

Mr DREYFUS: Looking at your regime and also looking at the regime for post-charge questioning, or not, that applies in the state integrity commissions, there is quite a spectrum of provisions, isn't there, ranging from Western Australia, which prohibits post-charge questioning, to New South Wales, which permits post-charge questioning, with the leave of a Supreme Court judge, for someone who is standing trial, ranging to I think one of them having almost no restrictions at all. There is also an array of different provisions relating to what I suppose you could call generically 'use protections'. Some regimes have a restriction just on use. Others have a derivative material provision. What is the touchstone for what is right? Given that there is such an array for all these different bodies, and you are part of the array—

Ms Mayo : From the perspective of the ACIC, it links directly to what the agencies see their functions and their remit are, and how they can best deliver on those functions. The ACIC would very much see its remit not only around disruption, for example, but also around discovering, understanding and responding, so a lot of the work that we do is designed to either inform what the threat is or what the methodologies are, or to provide material that will assist in a national response to particular crimes or issues. Therefore, the threshold that you set for the use of the material that is obtained through coercive examinations or hearings or powers should correspond to, if you like, the functions or objects or the remit of the agency itself. That will vary from organisation to organisation, and depend on the bigger picture.

Mr DREYFUS: The reason that legislatures have wrestled with this, and the High Court has wrestled with this in some recent cases, is the very high value we have always put on the privilege against self-incrimination. These provisions abrogate that privilege, in various ways.

Ms Deakin : That is true. It is about balancing that very obvious right and need against the public interest in the functions that we discharge, as parliament has instructed us to do so. We consider, and the courts have generally considered, that our act does strike a reasonably fair balance there. The amendments took into account the judicial consideration in a long line of cases. Direct use immunity is a touchstone; it exists for anyone. We certainly do not wish to interfere there. We have found that derivative use immunity is neither workable nor perhaps all that helpful, in terms of a person's liberties, frankly. It is very difficult to define. The NCA Act had a derivative use immunity provision. As you are well aware, it was removed. Successive parliaments, committees and reviewers have agreed that derivative use immunity does not strike the right balance, I think it is fair to say.

CHAIR: To sum up, the questioning powers have only been used 16 times since their inception, and have not been used since 2010. The detention powers have thus far been unused and lie dormant. Is it fair to say that their removal would diminish ASIO's operational flexibility into the future?

Ms Cook : Certainly the removal of the questioning right, I believe, would be a loss. As I mentioned, in respect of the questioning and detention warrant, it is more the effect of having a provision or a legal framework that allows us to ensure somebody presents and that prevents them from destroying documentation and from alerting others—that is the effect we desire. Whether or not that is achieved through the questioning and detention warrant or whether that can be achieved through some other legal mechanism, that is the effect that we want. And if we did not have that, the powers would be of less use to us.

CHAIR: Thank you very much. I think there were a few questions on notice. If that additional information could be provided to the secretariat by 30 June that will be appreciated. You will be sent a copy of the transcript for final approval.

Ms Cook : I think that question about exploring legal regimes in other countries, and how they work, will take longer than that.

Mr DREYFUS: Let us know if you need more time.

Senator FAWCETT: In chapter 8 of your submission I think there was an analysis of Canadian peace officers and other people like that. So, clearly, a body of work has been done.

Senator McKENZIE: I have every faith in your thoroughness, and that it is somewhere.

CHAIR: Great. I declare this meeting closed.

Committee adjourned at 14:48