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ASIO's questioning and detention powers
1. 1. Introduction
1.1
Under section 29 of the Intelligence Services Act 2001 (IS Act), it is a function of the Parliamentary Joint Committee of Intelligence and Security (the Committee) to review the operation, effectiveness and implications of Division 3 of Part III (the questioning and detention powers) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act).
1.2
This report is in fulfilment of that function.

Conduct of the inquiry

1.3
The Chair of the Committee, Mr Andrew Hastie MP, announced the commencement of the inquiry by media release on 22 February 2017 and invited written submissions from government agencies, organisations, and members of the public. Submissions were requested by 21 April 2017.
1.4
The Committee received 22 submissions, including 14 supplementary submissions, from government, academia, and other stakeholders. A list of submissions received by the Committee is at Appendix A.
1.5
When the questioning and detention powers were reviewed by the precursor to this Committee—the Parliamentary Joint Committee on ASIO, ASIS and DSD (the PJCAAD)—in 2005, the PJCAAD received 113 submissions to that inquiry. While there were a smaller number of submissions received for this inquiry, the Committee wishes to recognise the calibre and scope of the submissions. The Committee has drawn heavily on this evidence in this report, and notes it represents a range of views and has usefully informed the Committee’s deliberations.
1.6
The Committee has undertaken a large number of inquiries over recent years, which have placed a considerable burden on contributors. The Committee expresses its appreciation to all submitters and witnesses for their contributions to this inquiry.
1.7
At all times it was the Committee’s preference for submissions and hearings to be made publicly available. The Committee is grateful to the Australian Security Intelligence Organisation (ASIO) and the Attorney-General’s Department (the Department) for providing a number of additional unclassified submissions at the Committee’s request.
1.8
The Committee held public hearings on 16 June and 9 August 2017. The Committee also received private briefings from, or conducted private hearings with, ASIO, the Department, the Australian Criminal Intelligence Commission (ACIC), the former Independent National Security Legislation Monitor (INSLM) the Hon Mr Roger Gyles AO QC, and the National Counter-Terrorism Coordinator Mr Tony Sheehan. A list of hearings and witnesses who appeared before the Committee is included at Appendix B.
1.9
Copies of submissions received and transcripts of public hearings can be accessed on the Committee’s website.
1.10
On 1 March 2018, the Chair made a statement to the House of Representatives to advise that the Committee’s review was completed and that the Committee’s report would be presented shortly.
1.11
This review follows the 2005 review conducted by the PJCAAD and the 2012 and 2016 reviews by the INSLM. In its 2005 review, the PJCAAD considered the operation of this legislation in some detail, including the types of warrants issued, the length of questioning under each warrant, the appointment of prescribed authorities, and the process of questioning.[1]
1.12
In this review, given the lack of use of the powers since that 2005 review, and the Inspector-General of Intelligence and Security’s (IGIS) close focus on the operational activities of ASIO, the Committee does not examine the operational activities associated with the use of these powers.
1.13
Instead, this review focuses on whether there is a need for an ASIO questioning power in the current security context, and the interaction of ASIO’s questioning and detention powers with other counter-terrorism powers that have more recently been introduced.

Report structure

1.14
This report consists of three chapters:
This chapter describes the current questioning and detention powers, the legislative history and use of the powers, and previous independent reviews. It also considers the extraordinary nature of the questioning and detention powers, and provides an overview of the current security environment,
Chapter 2 considers the need for an ASIO questioning power and need for an ASIO detention power in the current context, and
Chapter 3 considers the possible form of a future questioning model and presents the Committee’s findings.

Current provisions for questioning and detention

1.15
Division 3 of Part III of the ASIO Act allows ASIO, upon obtaining a warrant, to question a person under compulsion in order to obtain intelligence that is important in relation to a terrorism offence.[2]
1.16
With the Attorney-General’s consent, ASIO may request either a questioning warrant (QW) or a questioning and detention warrant (QDW) from an issuing authority (a judge acting in a personal capacity). Both warrant types require the person to appear before a prescribed authority for questioning in relation to the relevant terrorism offence(s).[3] The primary difference between the two warrant types is that under a QDW police officers take the person into custody and detain that person;[4] under a QW the person is not initially apprehended or detained, instead appearing for questioning at a specified time. QDWs may be obtained where there are reasonable grounds for believing that, if the person is not immediately detained, the person may alert someone involved in a terrorism offence, may not appear for questioning, or may destroy or damage relevant records or things; and that relying on other methods of collecting that intelligence would be ineffective.[5]
1.17
The prescribed authority controls the questioning and detention process and may make a range of directions, including to detain the person or defer (or extend) questioning.[6] Questioning may occur for up to eight hours, but this can be extended on request up to a maximum of 24 hours (or 48 hours if using an interpreter).[7] Under a QDW, the person is detained until either the questioning has ceased, the above maximum questioning period is reached, or 168 hours (7 days) has passed from the time the person was brought before the prescribed authority, whichever is the earliest.[8]
1.18
During questioning, the person must provide any information, records or things requested. There is no privilege against self-incrimination—the person must answer the questions or produce the requested things even though it may incriminate them; however, any information provided cannot be used against the person in a criminal proceeding.[9]
1.19
A range of safeguards apply. The IGIS must be provided with a copy of any warrant requests, issued warrants, recordings made of questioning, and details of actions undertaken pursuant to a warrant.[10] The IGIS may be present when a person is taken into custody under a QDW and during questioning under either warrant type.[11] The IGIS may raise concerns about any impropriety or illegality under the warrant and the prescribed authority must consider those concerns and may suspend questioning and other processes until the concerns are addressed.[12] If the person wishes to make a complaint to the IGIS or the Ombudsman, then the person must be given facilities to enable them to make the complaint.[13]
1.20
The person may contact a lawyer. However, the person may be prevented from contacting a particular lawyer if the person is in detention and the prescribed authority is satisfied, on the basis of circumstances relating to that lawyer, that contacting that lawyer would mean:
a.
a person involved in a terrorism offence may be alerted that the offence is being investigated; or
b.
a record or thing that the person may be requested to produce in accordance with the warrant may be destroyed, damaged or altered.[14]
1.21
A person’s contact with their lawyer can be monitored by ASIO. Reasonable opportunities must be provided for the lawyer to advise the person, and the lawyer may request permission to address the prescribed authority during breaks in questioning. The lawyer may not, however, intervene in the questioning or address the prescribed authority during questioning, except to clarify an ambiguous question. If the lawyer fails to comply with these restrictions, and is considered by the prescribed authority to be unduly disruptive of the questioning, the lawyer may be removed. If removed, the prescribed authority must permit the person to contact another lawyer.[15]
1.22
A range of criminal offences apply for non-compliance with the warrant, including for when the person fails to appear for questioning, makes a false statement, or fails to answer a question. Persons who commit these offences face a five year term of imprisonment.[16]
1.23
Secrecy offences also apply. During the life of a warrant, the person and their lawyer must not, on a strict liability basis, disclose the existence of the warrant, the fact of the questioning or detention or any operational information. In the two years following the expiry of the warrant, the person and lawyer also must not, on a strict liability basis, disclose any operational information obtained as a result of the questioning. The penalty for either offence is five years imprisonment.[17]

Legislative history

1.24
Following the 11 September 2001 terrorist attacks, the Commonwealth Government announced a range of measures to improve its capacity to identify and prevent threats of terrorism in Australia. In March 2002, the Government introduced the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, containing the questioning and detention powers.
1.25
During the Bill’s second reading speech, the then Attorney-General, the Hon Daryl Williams QC, noted that the objective of the Bill was ‘to strengthen Australia’s counter-terrorism capabilities by enhancing ASIO’s investigative powers.’ The questioning and detention powers would assist ASIO to investigate terrorism offences and to discover the perpetrators of these offences ‘preferably before they perpetrate their crimes’. Attorney-General Williams noted that such warrants may provide for custody and detention incommunicado, and that the powers were extraordinary and were to be ‘a measure of last resort’.[18]
1.26
The Bill was the subject of significant public and political debate. It was reviewed by the PJCAAD,[19] the Senate Legal and Constitutional Legislation Committee,[20] and the Senate Legal and Constitutional References Committee.[21] Various amendments were made to the Bill as a result of these reviews. The Bill was subsequently the subject of lengthy debates in the House of Representatives and the Senate in December 2002. After agreement failed to be reached on the Bill, it was laid aside on 13 December 2002. It was then re-introduced in the House of Representatives in March 2003 and was finally passed by the Parliament in June 2003. Royal Assent occurred on <LineBreak> </LineBreak> 22 July 2003. The questioning and detention powers were to sunset on <LineBreak> </LineBreak> 23 July 2006.

2005 PJCAAD review

1.27
The enacted Bill also amended the IS Act to require the PJCAAD to review the operation, effectiveness and implications of the questioning and detention powers ahead of that 2006 sunset date. In its November 2005 report, the PJCAAD supported the continuation of the powers, finding that they had been useful. The PJCAAD found, though, that the powers ‘should not be permanent and should be scrutinised as thoroughly as possible.’ As a result, the PJCAAD recommended that the sunset clause be extended to November 2011, and that the Committee be required to review the questioning and detention powers again prior to that date.[22]
1.28
The PJCAAD made 18 other recommendations in its report, predominantly centred on improving safeguards and providing greater clarity in the legislation. The recommendations included that:
the ASIO Act be amended to provide more clarity between the QW and QDW regimes,
the availability of judicial review be more clearly expressed,
a person subject to a warrant have greater access to legal representation and a clear right of access to the IGIS or Ombudsman,
the Commonwealth make available reasonable financial assistance to the subject of a warrant, and
ASIO publish additional information in its annual report on the use of the warrants.[23]
1.29
In response, the Commonwealth Government made a number of amendments to the provisions to improve their clarity and operation and to enhance safeguards relating to access to lawyers. The three year sunset period was extended by 10 years to 22 July 2016.[24] In 2014, and on the basis of a recommendation by this Committee,[25] the sunset period was further extended to 7 September 2018, and subject to statutory reviews by the Committee and the INSLM.[26]

Independent reviews

2012 INSLM review

1.30
In 2012, the then INSLM, Mr Bret Walker SC, conducted a review of the questioning and detention powers. INSLM Walker’s extensive review examined the files of each issued QW, including the transcripts of the questioning carried out under those warrants.[27]
1.31
INSLM Walker found that the safeguards relating to the treatment of persons contained within Division 3 of Part III were ‘impressive’:
The considerable safeguards on the treatment of persons questioned under QWs, especially the involvement of the Inspector-General of Intelligence and Security, constitute best practice according to a general review of international standards. Nothing untoward has been discovered by the INSLM in relation to any of the actual questioning under QWs, so far as concerns oppressive or other unlawful or improper conduct. The panoply of provisions in the ASIO Act to this end is on its face impressive, and according to experience so far, effective.[28]
1.32
INSLM Walker ultimately found that QWs ‘are sufficiently effective to be appropriate, and in a relevant sense necessary’ and rejected ‘the criticism that questioning warrants are an unjustified infringement of liberty’.[29] He observed:
The efficacy of the QW provisions and their worth as an intelligence collection tool has been established through review of the files and discussions with relevant agencies. Questioning under QWs has played a role in informing intelligence assessments and progressing terrorism investigations. It should be emphasized that ASIO is an intelligence agency, not an investigation bureau for law enforcement such as police detectives are.[30]
1.33
However, INSLM Walker held that QDWs were an unnecessary extension of QWs and were not a justifiable intrusion on personal liberty.[31]
1.34
INSLM Walker recommended:
1
The QDW provisions be repealed,[32] and
2
The QW provisions 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.[33]
1.35
These recommendations were not implemented.

2016 INSLM review

1.36
In 2016, the then INSLM, the Hon Roger Gyles AO QC, conducted a subsequent review into the questioning and detention powers. In his report, INSLM Gyles accepted that a compulsory questioning power to gather intelligence was a useful tool for ASIO’s counter-terrorism work; however, he expressed concerns about the limited of use of QWs (discussed later in this chapter), and identified a number of provisions which required significant amendment.[34] He found:
The present questioning power is heavy duty with heavy duty safeguards. It is unwieldy and not being used, but has the potential for oppression. It was devised at a time when Australia had a different counter-terrorism framework and is no longer fit for purpose. The key to an effective but reasonable questioning power for ASIO is to accept that it should not be seen as a front-line means of disruption of an imminent terrorist attack, nor as a primary means of collecting evidence to support a criminal prosecution, but rather it should be seen as a tool for the collection of intelligence relating to the threat of terrorist activity.[35]
1.37
INSLM Gyles recommended that the QDW provisions be repealed or cease when the current sunset date (7 September 2018) is reached. He found that the provisions were not necessary to prevent or disrupt a terrorist act, and he voiced some concerns about whether QDWs were constitutionally valid and in line with Australia’s international human rights obligations. He 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.[36]
1.38
Noting the use and usefulness of similar compulsory examinations conducted by the Australian Criminal Intelligence Commission (ACIC), the high level of understanding of the ACIC’s examination powers amongst the legal profession, and the recent scrutiny of those powers by the Parliament and the courts, INSLM Gyles recommended that the QW provisions be repealed, or not extended beyond the sunset date, and be replaced by a questioning power following the model available to the ACIC in the Australian Crime Commission Act 2002 (ACC Act) ‘as closely as possible’. INSLM Gyles explained:
The previous INSLM did not have the experience of the last five years to guide him when considering these powers — particularly, the successful use of the ACIC powers, the non-use of the ASIO powers, and the regular use by the AFP of the pt IC power. There is a plethora of state inquisitorial bodies and each has different functions, powers, and safeguards. Different constitutional considerations apply to those than to Commonwealth bodies. The ACC Act is the appropriate model and it would not be appropriate to cherry-pick parts of other models and graft them on, or to excise some parts unless it is necessary to accommodate the different repository of the power.[37]
1.39
INSLM Gyles also recommended that the definition of a ‘terrorism offence’ be amended to include the foreign incursion and recruitment offences in Part 5.5 of the Criminal Code and the terrorism financing offences in the Charter of the United Nations Act 1945, and the phrase ‘important in relation to a terrorism offence’ should be amended to read ‘important in relation to an actual or threatened terrorism offence’ wherever appearing.[38]
1.40
Finally, to avoid oppression by successive examinations, INSLM Gyles recommended the creation of a protocol between ASIO, the ACIC, and any relevant state body that shares information obtained by compulsory questioning. INSLM Gyles was of the view that this protocol should then be approved and given appropriate status by the Attorney-General. He suggested that the INSLM and other supervisory bodies, such as the IGIS and the Commonwealth Ombudsman, should be able to monitor how this protocol operates in practice.[39]
1.41
The Committee notes that the current INSLM, Dr James Renwick SC has stated that the report and recommendations of Mr Gyles stand as the views of his office.[40]

Use of warrants

1.42
To date, ASIO has requested and has been issued with 16 QWs in relation to 15 persons. ASIO has never requested nor been issued with a QDW.[41]
1.1 Use of QWs since introduction of legislation in July 2003
Year ending 30 June
Number of warrants issued
2004
3
2005
11
2006
1
2007
0
2008
0
2009
0
2010
1
2011
0
2012
0
2013
0
2014
0
2015
0
2016
0
2017
0
Total
16
Source: Attorney-General's Department, Submission 7, p. 55; ASIO Annual Report 2016-17, p. 127.
1.43
On the use of these powers, the IGIS advised the Committee that, in her Office’s experience,
There have been no significant concerns with the use of the powers and the procedural and technical matters that have arisen have been resolved satisfactorily.[42]

The extraordinary nature of the questioning and detention powers

1.44
The questioning and detention powers were one of the first legislative measures that form what is now the modern Australian counter-terrorism framework. The powers predate all other major counter-terrorism regimes in force today, including the preventative detention and control order regimes, and Part IC of the Crimes Act 1914.[43]
1.45
When the questioning and detention powers were first introduced to the Parliament in 2002, the then Attorney-General, the Hon Daryl Williams QC, acknowledged that:
These measures are extraordinary, but so too is the evil at which they are directed.[44]
1.46
The measures were intended to allow ASIO to collect intelligence that could assist in the prevention of terrorist attacks. The powers were seen, in light of the recent September 11 attacks, and then the October 2002 Bali attacks, as a necessary response to what was a fundamentally altered security environment.[45] The powers would allow Australia’s security agency to question in secret (and potentially detain) any person, including those not suspected of committing a terrorism offence. Further, the powers made it a criminal offence carrying five years imprisonment if the person revealed, on a strict liability basis, that questioning had occurred.
1.47
The PJCAAD noted in its 2005 review of the powers:
Intelligence gathering, where compulsory questioning is the only way to elicit information, which is important in relation to a terrorist offence, was put forward on the introduction of the Bill as necessary for the protection of the community. It was to be a measure of last resort. The assumption was that extraordinary powers were necessary to protect the community in the face of terrorism threats. Secrecy, it was argued, was necessary because the powers are part of the intelligence gathering of ASIO, whose methods and collected information needed to be protected on national security grounds. Because the powers were extraordinary, because they involved secret processes and a secret service, because they could not be scrutinised in the way that normal police powers are scrutinised, the Parliament inserted into the Act a series of protections, including the protection of immunity from prosecution, albeit not derivative use immunity, for any information given under compulsion.[46]
1.48
One of these protections was the imposition of a sunset clause. Professor George Williams AO explained:
Even at that time it was thought that [the questioning and detention powers] need to be reviewed and cannot be a permanent measure. It was always seen as something that would be on the books while there was a particular threat of terrorism that required this exceptional response…[47]
1.49
This exceptional response generated significant public and parliamentary debate when first proposed. As one submitter explained, much of what was said or written at the time was highly charged:
On the one hand, it was said that the regime, at least in the form in which it was first introduced into the Commonwealth Parliament, would not be out of place in former dictatorships such as General Pinochet’s Chile or Suharto’s Indonesia. On the other hand, those who opposed or delayed the regime were said to be to blame if any Australian blood was spilt by terrorism as a result.[48]
1.50
The charged debate had a firm basis—the proposed powers were extraordinary. INSLM Gyles observed in his 2016 review:
A warrant enabling a person to be ‘detained in custody, virtually incommunicado without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention’, to use the words of former High Court Chief Justice Sir Gerard Brennan (on the basis of possession of intelligence in relation to a terrorism offence), is an extraordinary power. Further, the decision on whether the grounds to make a QDW application rather than a QW application lies with a member of the executive. No precedent in any comparable country has been identified.[49]
1.51
Professor Williams supported this observation, submitting:
there is no other comparable nation in the world that gives a coercive questioning power, let alone a detention power, to an intelligence agency of this kind.[50]
1.52
Professor Williams suggested that other nations have not provided their intelligence agencies with compulsory questioning powers due to recognition that powers like compulsory questioning are best left to law enforcement agencies. He explained:
The simple reason for that is that it is thought that these [intelligence] agencies must operate with a level of secrecy. They cannot have the same level of public accountability and transparency that other bodies have. As a result, that means that extreme caution must be given as to the form of coercive powers that are issued. In this case, the decision has been given to give it a coercive questioning power that takes it beyond those other agencies.[51]
1.53
At the Committee’s request, ASIO and the Department confirmed the accuracy of the proposition that no like countries have provided their intelligence agencies with such powers. However, the Department cautioned that care must be taken when attempting to draw direct comparisons between countries, and that ‘any comparison should take into account the whole security framework of respective countries, and the roles, relationships and powers afforded to agencies within that broader landscape’.[52]
1.54
At a public hearing, the Committee asked the Acting Director-General of Security whether she agreed with the proposition that these are extraordinary powers. The Acting Director-General of Security replied:
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.[53]
1.55
The Committee suggested to the Acting Director-General of Security that the questioning and detention powers were more intrusive than any of ASIO’s other powers available under warrant. The Acting Director-General responded:
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 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.[54]

The current security environment

1.56
The questioning and detention powers were introduced in 2002-03 to deal with what was seen as a profoundly altered security environment. At the time, the then Attorney-General, the Hon Daryl Williams QC, noted:
The world shaking and tragic events of 11 September claimed close to 3,000 lives, including a number of Australians. The more recent atrocity in Bali, in which 88 Australians tragically lost their lives, brought terrorism to our very doorstep and proved to Australians that geography does not protect us from terror. The security environment has changed forever and the spectre of terrorism is omnipresent.[55]
1.57
According to ASIO, the threat environment has since evolved, and is steadily worsening:[56]
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.[57]
1.58
ASIO advised that since the national terrorism threat level was raised to ‘PROBABLE’ in September 2014, there have been five onshore terrorist attacks and 12 disruption operations in response to imminent attack planning.[58]
1.59
Since the commencement of this review in February 2017, there has been an attack in Melbourne, and an alleged plot to attack aviation interests has been disrupted in Sydney. Over this same period, there have been attacks in Manchester and Barcelona, and multiple attacks in London. Some of those incidents led to the loss of Australian lives. According to ASIO,
these events highlight the enduring and dynamic nature of the extremism challenge to Australia, with the conflicts in Syria and Iraq energising local extremists in a way no other terrorism arena ever has. Over the same time frame, we have seen the subjects of our counter-terrorism investigations greatly increase in number, reduce in average age and diversify in ethnicity and gender.[59]
1.60
ASIO set out what it sees as a continuing and evolving threat environment:
The conflict in Syria and Iraq has now shaped a generation of violent Islamist extremists here, some of whom will pose a threat to security for at least the coming decade. Returning foreign fighters who have spent time with extremist groups globally will further affect the threat. Some will have greatly enhanced capabilities to undertake terrorist attacks. Any planning to do so may take many years to manifest. The shift in what is deemed to be a successful Islamist extremist terrorist attack—from complex methodologies to simple, but very difficult to prevent, low-capability attacks undertaken by individuals enabled by technologies, including encrypted-by-default internet communications and device security—will challenge our ability to disrupt future terrorist attacks. Regardless of actions taken, highly sophisticated violent Islamist extremist propaganda in English and a range of other languages will continue to be accessible to potential extremists, including here, to justify their actions for years to come. As such, the threat we face is self-sustaining.[60]
1.61
The 2017 Independent Intelligence Review supported this assessment, noting that ‘Australia’s national security circumstances have been re-shaped by the realities of extremism with global reach.’ The authors of that review stated:
In our view, the terrorist and extremist threats to Australia and Australian interests will continue to grow in scale and complexity. Detecting and countering such threats will be increasingly challenging for our intelligence and law enforcement agencies. The greater numbers of Australians travelling and living overseas, as well as the international movement of radicalised individuals, will magnify the security threats Australia faces.[61]
1.62
ASIO presented the Committee with this prediction:
We do not expect the terrorism threat to diminish in the foreseeable future. [62]
1.63
There are also a number of other threats to our national security. ASIO noted in its most recent annual report that
the threat from espionage and foreign interference to Australian interests is extensive, unrelenting and increasingly sophisticated. In addition to traditional espionage efforts to penetrate government, foreign intelligence services are targeting a range of Australian interests, including clandestine acquisition of intellectual property, science and technology, and commercially sensitive information. Foreign intelligence services are also using a wider range of techniques to obtain intelligence and clandestinely interfere in Australia’s affairs, notably including covert influence operations in addition to the tried and tested human-enabled collection, technical collection, and exploitation of the internet and information technology.[63]
1.64
In addition,
The clandestine nature of espionage and foreign interference means that the aggregate cost is difficult to quantify, particularly in dollar terms. However, the harm caused by hostile intelligence activity can undermine Australia’s national security and sovereignty, damage Australia’s international reputation and relationships, degrade its diplomatic and trade relations, inflict substantial economic damage, degrade or compromise nationally vital assets and critical infrastructure, and threaten the safety of Australian nationals.[64]
1.65
ASIO also noted that ‘Australia continues to experience low levels of communal violence, although incidents in response to specific local or international events that resonate with expatriate communities do occur occasionally,’ and that ‘most Australian protests, while occasionally employing disruptive tactics, comply with regulations and conclude without significant incident.’[65]
1.66
In relation to border security, ASIO stated in its annual report:
The people-smuggling environment is characterised by a continuing suppressed demand among potential illegal immigrants (PIIs) for travel by illegal maritime venture to Australia; however, Operation Sovereign Borders (OSB) and offshore regional processing constitute a significant and ongoing deterrent. Demand among PIIs for travel to Australia has fallen but is not universally or permanently suppressed. Illegal maritime ventures to Australia continue to be organised mainly from Sri Lanka and Indonesia, with the greatest interest in illegal travel being shown by PIIs from Sri Lanka, Bangladesh, Afghanistan, Myanmar and Vietnam. As such, planned and actual illegal maritime ventures to Australia will remain an enduring challenge over the next decade.[66]

[1]     

The PJCAAD’s report can be accessed from http://www.aph.gov.au/Parliamentary_Business/Committees

[2]     

‘Terrorism offence’ is defined in section 4 of the ASIO Act as an offence against Subdivision A of Division 72 of the Criminal Code Act 1995 (Cth) (Criminal Code), or an offence against Part 5.3 of the Criminal Code.

[3]     

A ‘prescribed authority’ presides over and controls the questioning and detention authorised by the warrant. The prescribed authority is a person, appointed by the Attorney-General, who has served as a judge in one or more superior courts for a period of five years and no longer holds a commission as a judge of a superior court. If there is an insufficient number of former judges available, then persons from other categories, such as current serving judges, may be appointed.

[4]     

Although it is an ASIO warrant, only police officers are authorised under a warrant to take a person into custody.

[5]     

ASIO Act, s. 34F.

[6]     

ASIO Act, s. 34K.

[7]     

The questioning can occur at any time during the life of the warrant and does not have to occur in one questioning session; therefore, the allowed questioning could occur over multiple questioning sessions over the maximum 28 day life of the warrant. If the person is not being detained under the warrant, the person would be free to depart the questioning premises at the conclusion of each questioning session and then be required to return for any subsequent sessions.

[8]     

ASIO Act, s. 34G(4).

[9]     

The only exception to this is in a criminal proceeding for an offence under section 34L of the ASIO Act, such as for providing false or misleading answers during questioning.

[10]     

ASIO Act, s. 34ZI.

[11]     

ASIO Act, s. 34P.

[12]     

ASIO Act, s. 34Q.

[13]     

ASIO Act, s. 34K(9), s. 34K(11).

[14]     

ASIO Act, s. 34ZO.

[15]     

ASIO Act, s. 34ZQ.

[16]     

See ASIO Act, s. 34L.

[17]     

See ASIO Act, s. 34ZS.

[18]     

The Hon. Daryl Williams QC MP, Attorney-General, House of Representatives Hansard, 21 March 2002, p. 1935.

[19]     

See Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD), An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002).

[20]     

See Senate Legal and Constitutional Legislation Committee, Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002).

[21]     

See Senate Legal and Constitutional References Committee, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 and Related Matters (2002).

[22]     

PJCAAD, ASIO’s Questioning and Detention Powers: Review of the Operation, Effectiveness and Implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979 (Cth), 2005, pp. 107-108.

[23]     

PJCAAD, ASIO’s Questioning and Detention Powers: Review of the Operation, Effectiveness and Implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979 (Cth), 2005, p. xiv.

[24]     

Amendments were made via Australian Security Intelligence Organisation Legislation Amendment Act 2006 (Cth).

[25]     

See Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, 2014.

[26]     

See Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).

[27]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, p. 68.

[28]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, p. 76.

[29]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, pp. 4-5.

[30]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, p. 70.

[31]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, pp. 105-106.

[32]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, p. 106.

[33]     

Independent National Security Legislation Monitor, Declassified Annual Report 20th December 2012, 2012, p. 107.

[34]     

Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 42.

[35]     

Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 51.

[36]     

Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 41.

[37]     

Commonwealth of Australia, Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 51.

[38]     

Commonwealth of Australia, Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 52.

[39]     

Commonwealth of Australia, Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 54.

[40]     

Dr James Renwick SC, INSLM, Committee Hansard, Senate Finance and Public Administration Legislation Committee, 27 February 2017, p.123.

[41]     

Attorney-General’s Department, Submission 7, p. 55.

[42]     

Inspector-General of Intelligence and Security, Submission 1, p. 8.

[43]     

Commonwealth of Australia, Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 22.

[44]     

The Hon Daryl Williams QC MP, Attorney-General, House of Representatives Hansard, <LineBreak> </LineBreak> 21 March 2002, p. 1936.

[45]     

The Hon Daryl Williams QC MP, Attorney-General, House of Representatives Hansard, <LineBreak> </LineBreak> 27 March 2003, p. 13762.

[46]     

PJCAAD, Review of the operation, effectiveness and implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979, 2005, pp. 24-25.

[47]     

Professor George Williams AO, Committee Hansard, Canberra, 16 June 2017, pp. 15-16.

[48]     

Lisa Burton, Dr Nicola McGarrity, Professor George Williams AO, ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation,’ Melbourne University Law Review, vol. 36, no. 2 (2012), p. 418, cited in Submission 5.

[49]     

Independent National Security Legislation Monitor, Certain Questioning and Detention Powers in Relation to Terrorism, 2016, p. 39.

[50]     

Professor George Williams AO, Committee Hansard, Canberra, 16 June 2017, p. 12.

[51]     

Professor George Williams AO, Committee Hansard, Canberra, 16 June 2017, p. 12.

[52]     

Attorney-General’s Department, Submission 7.2, p. 2.

[53]     

Ms Heather Cook, Acting Director-General of Security, Australian Security Intelligence Organisation, Committee Hansard, Canberra, 16 June 2017, p. 26.

[54]     

Ms Heather Cook, Acting Director-General of Security, ASIO, Committee Hansard, Canberra, <LineBreak> </LineBreak> 16 June 2017, p. 27.

[55]     

The Hon Daryl Williams QC MP, Attorney-General, House of Representatives Hansard, <LineBreak> </LineBreak> 27 March 2003, p. 13762.

[56]     

Ms Heather Cook, Acting Director-General of Security, ASIO Committee Hansard, Canberra, <LineBreak> </LineBreak> 16 June 2017, p. 20.

[57]     

Ms Heather Cook, Acting Director-General of Security, ASIO, Committee Hansard, Canberra, <LineBreak> </LineBreak> 16 June 2017, p. 22.

[58]     

Australian Security Intelligence Organisation, Submission 8, p. 4.

[59]     

Australian Security Intelligence Organisation, Submission 8, p. 4.

[60]     

Australian Security Intelligence Organisation, Submission 8, p. 5.

[61]     

Commonwealth of Australia, Department of the Prime Minister and Cabinet, 2017 Independent Intelligence Review, p. 26.

[62]     

Ms Heather Cook, Acting Director-General of Security, ASIO, Committee Hansard, Canberra, <LineBreak> </LineBreak> 16 June 2017, p. 20.

[63]     

Australian Security Intelligence Organisation, Annual Report 2016-17, p. 23.

[64]     

Australian Security Intelligence Organisation, Annual Report 2016-17, p. 24.

[65]     

Australian Security Intelligence Organisation, Annual Report 2016-17, p. 23.

[66]     

Australian Security Intelligence Organisation, Annual Report 2016-17, p. 24.