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Parliamentary Joint Committee on Intelligence and Security
09/08/2017
ASIO's questioning and detention powers

GAME, Mr Tim, SC, Co-Chair, National Criminal Law Committee, Law Council of Australia

MOLT, Dr Natasha, Senior Legal Adviser, Legal Policy Division, Law Council of Australia

Evidence was taken via teleconference—

Committee met at 12:48

CHAIR ( Mr Hastie ): Good afternoon and welcome. I declare open this public hearing of the Parliamentary Joint Committee on Intelligence and Security for the review of division three part III of the Australian Security Intelligence Organisation Act 1979. These are public proceedings, although the committee may agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. I remind all witnesses that in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. In accordance with the committee's resolutions of 12 October 2016, this hearing will be broadcast on the parliament's website and the proof and official transcripts of proceedings will be published on the parliament's website.

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

Mr Game : Thank you for hearing us by telephone. The Law Council accepts the need, in principle, to provide ASIO with adequate powers to perform its functions. ASIO performs an important role in the protection of Australians and Australia from threats of security, and from all indications it does so responsibly. You would understand, of course, the important position the Law Council takes as the peak body of lawyers in the country. We take a keen interest in this subject and we're jealous of protecting the liberty of the individual and that restraints on liberty should be viewed jealously, and to the limited extent that is necessary for the legislative end.

We support the regulation of ASIO within an appropriately framed legislative framework. In the past, we have taken a keen interest in this legislation and the work of the two independent monitors, and in the past we've expressed our concerns about the current questioning and detention warrant powers—both the questioning and detention warrant and the questioning warrants.

We have seen submissions from the Attorney-General's Department, in particular, which indicate a potential move towards a legislative model of the kind that the Australian Crime Commission has. That is something we have encouraged in the past and, subject of course to the details, that's a move that we see as a positive one. It would formalise the processes, and then it would become necessary, in fact, crucial, to work out how that structure would work. That's the subject about which we can speak to you today. But, of course, there isn't legislation yet and the devil is going to be in the detail of a draft bill. That's the focus that we bring to the subject today and we're happy to address you in specific details on aspects of such a model. That's all I want to say in opening.

CHAIR: Thank you for your submission. If I could go to the scope of the questioning powers. I refer to the independent intelligence review, which was just released last month, which highlights that of course terrorism is not the only threat that Australia faces; we also have the threat of foreign interference and espionage. At this point in time, ASIO's questioning power is currently limited in relation to terrorism offences. However, ASIO has requested that the ASIO Act be amended to allow questioning across its full security remit, which would thereby allow questioning with regard to espionage, acts of foreign interference, sabotage, politically motivated violence et cetera. Do you take a position on extending those powers to counter those threats?

Mr Game : We don't in principle oppose that. Say you pick up the definition of 'security'—part IV of the ASIO Act, which is pretty much what you have just put to me—then in principle we don't oppose that extension, but you would have to bring to it the constraints that currently appear in the act.

For example, the language that's currently used in respect of these warrants will substantially assist the collection of intelligence that is important in relation to security. You may have to have some provision, having regard to other methods of collecting intelligence, that it's reasonable in all the circumstances for the warrant to be issued. I'm not trying to say that you have to have precisely these words. But if you're going to broaden the questioning powers, then you need to bring to it the constraint that you necessarily should when you're talking, essentially, about the collection of intelligence. That's how we would see that—yes, extend it to things beyond terrorism, but bring with it the necessary constraints that you need before you step to that, bearing in mind that this questioning is not a primary method of intelligence collection. That's my answer to that question.

CHAIR: Would I be right in saying, therefore, that the principles that you base your recommendations on don't fundamentally change whether it's foreign interference, or terrorism, or any other threat for that matter?

Mr Game : No, but the threshold test for getting them needs to be necessarily circumspect, whatever it is. That's my point.

CHAIR: Thank you, Mr Game.

Dr Molt : To reiterate what Tim has said about the threshold: what that means is that the Law Council would not support the current 'is reasonable in the circumstances' threshold test.

Mr Game : That's in the Crime Commission. If you used the Crime Commission model, you couldn't just pick up the test that currently exists for the examiner, which is just 'is reasonable in the circumstances'. Otherwise you would potentially set up an edifice that wasn't what you had in mind to start with, with an inadequate threshold.

CHAIR: Understood.

Senator McALLISTER: I think in your evidence you're suggesting that, in the broad context, this method of intelligence gathering is something like a 'last resort' method, and that the threshold for activating the questioning powers ought to reflect that hierarchy of preference in terms of intelligence gathering. Is that right?

Mr Game : That's exactly what we're saying. But we're also saying one should be mindful of the fact that we've got the Crime Commission for gathering, shall I say, not just intelligence, but evidentiary material, potentially. This is a body that has a completely different function. If you're going to set up these questioning powers, you need to also have a protocol that says who does what and in what circumstances. Otherwise you will have crossover of activity, which is undesirable.

CHAIR: I will now open up to discussion from every committee member.

Dr MIKE KELLY: Have you given any thought to the issue of whether or not we relate these powers to definitions of threat, or seek to go down that path? We've seen similar language used in instruments like the ICCPR. Article 4 talks about public emergency, threat to national life, and those sorts of relationships to the specific nature of the threat. Have you given any thought to that aspect?

Mr Game : We should've. Natasha may be able to answer that in more detail. What I said a little while ago is that you need to actually build in something like the idea that other methods are not likely to be effective, that this method is likely to be the only effective one or that this is necessary in the circumstances for X, Y or Z of the kind you've just outlined. That is to say, there is a criteria upon which the warrant for examination is established, and it's a fairly rigorous one.

There is an aspect to this I would also like to mention, which is this: if you look at the Crime Commission model, those decisions are not currently ADJR reviewable, except for certain ones. If you have a process like this and it's essentially secretive, then you need to set up quite strictly stated criteria, bearing in mind that if you don't have ADJR review all you will have is section 39B of the Judiciary Act and chapter III of the Constitution. So you need to have something that's transparent. I'm kind of accepting the premise of your question, but you need to build around it a structure that is kind of transparently identifiable for the basis upon which decisions are made.

Dr Molt : I might just add to that on the point of the issue of threats of terrorism. The Law Council supports the recommendation of the former Independent National Security Legislation Monitor, the Hon. Roger Gyles. He made a recommendation with regard to the definition of 'terrorism offence' in the ASIO Act—that it should be amended to include foreign incursion and recruitment offences, and that it should also be amended to read 'important in relation to an actual or threatened terrorism offence' wherever appearing. So we certainly support that recommendation. My understanding is that ASIO and the Attorney-General's Department are now talking about potentially broadening that even further to include the issue identified in section 4 of the ASIO Act.

Dr MIKE KELLY: The other issue, obviously, that this authority brings into issue is the question of the relationship with criminal procedures. Of course, there's the safeguard in there that anything conveyed in these interviews is not admissible in evidence. We are talking about post-charge interviews as well. Do you have any suggestions to make in relation to the prevention of contamination of evidence issues in relation to follow-on prosecutions of any individuals dealt with under these provisions?

Mr Game : We think that post-charge questioning in the intelligence context should be exceptional. We think that the Crime Commission model should not be holus-bolus adopted with respect to that. I hope I'm answering your question, but we think that approvals for such questioning should be obtained from a judge—a Federal Court judge, potentially. So there really needs to be a special regime. What you're talking about is this: you've got a person who's charged, and if they're charged with a terrorism offence they're going to be in custody. I should mention the INSLMs both suggested that questioning should be basically put off until after trial. Generally, we would support that, but if you're going to go down this track of questioning people after charge, you've got to have a special regime for it—not just a special regime with the Crime Commission but one kind of created for the fact of what you would in reality be doing.

Normally, people will be in remand, in custody, if it's a terror offence. You're pulling them out and you're questioning them, and the idea of questioning post charge is in relation to—and this is where the big contests are likely to arise—the subject matter, or subject matter related to the subject matter of the charge. That really cuts across all of our ideas about privilege against self-incrimination, which you see reflected in those High Court cases which you're no doubt familiar with of Lee and the Crime Commission, X7, and then Lee and the Queen. I'm not seeking to go back over that ground. But this situation, Chair, that you're putting to me would be a truly exceptional one and, in our view, would need to be treated as such.

CHAIR: I have just one last question. In relation to the handling of minors, have you turned your thoughts to any other appropriate safeguards or aspects that might be included in that process?

Mr Game : This question arises as to whether or not the questioning powers can extend to those under the age of 16. Now, there are currently provisions in the ASIO Act, in section 34ZE, but they are quite limited and they concern parents and the like. We think that, if you're going to have questioning powers of this kind, one needs to think about the provision of legal assistance to such people and also a support person. A support person is normally nominated by the person, and if, say, there is an issue about them talking to their parents, there are legislative regimes for support persons. We think all minors should have support persons in this context, and you'd have to create special provisions that protect the communications between those people. It may be that ASIO has objections to particular people; there would have to be a structure for dealing with that. But, if you're going to extend the powers in this way, you need to have special provisions.

You may also need to have a provision that talks about the best interests of the child being taken into account. I think we can understand why, in certain circumstances, you might want to question a 15-year-old—for example, if that person is being used as a tool by other people and the like—so one has to be realistic about it. But at the same time one needs to think carefully about ways of protecting the process and, really, what we're talking about is not just protecting the person but protecting the integrity of the process, and that's a big thing in a situation like this.

Dr Molt : Can I just add that Australian international law obligations under the Convention on the Rights of the Child require that the best interests of the child be given consideration in executive decision-making, and also that imprisonment should be a last resort and for the shortest appropriate period of time. At the moment, the safeguards in the ASIO Act don't appear to mirror those obligations, so we would like to see, if possible, more of a mirroring of those obligations.

Mr Game : Can I just I add that, in respect of lawyers, if you went with—I keep calling it the Australian Crime Commission, but it's ACIC—the ACIC model then the provisions relating to lawyers work in a different way than they work in the ASIO Act, and we would encourage, to the extent possible, the ACIC model rather than the ASIO model in that respect, and that's one of the reasons that we encourage it. You would also need to think carefully about who it is that issues the warrants, and our proposal is that application be made to the Attorney-General.

The position of an examiner might be an issue that you'd have to think about, because there aren't things, as far as we're aware, that have that kind of description within ASIO at the moment. These examiners, if anybody's ever been to one of those hearings, sort of sit like Buddha while the questions are getting asked, and one would have to think about exactly how that model works. They operate as a quasi-independent person in the process, and then the investigators or in-house lawyers do the questioning. And, of course, the questioning is usually not, shall I say, of the target but of other people. One has to bear in mind that if, say, you're investigating a terrorism thing it's not by any means necessarily the target but other people who you're talking about questioning. So that's just chasing through some of the implications of a different focus.

I want to say something about warrants. There is provision in the Australian Crime Commission Act for the issue of warrants, but it's basically in the context of contempt and the warrants are used to detain people for the purpose of bringing them for the purpose of examination. Our imagined idea of how this thing would work is that the power to obtain detention warrants should rest with the AFP rather than with ASIO, and one would have to find a structure within which that was done and a time frame around which it was done. We would contemplate that the application for the warrant would be made by a federal judicial officer or an officer exercising federal judicial power. So that would provide the safeguard. The warrant would be sought by the AFP. The warrant would be granted by a federal judicial officer. I say 'a federal judicial officer'; it can be a state judge, because state judges exercise federal jurisdiction. Naturally enough, you can understand the perspective from which we are coming, but those are the sorts of safeguards and structures around which we see the orderly conduct of such a process could be conducted. You're lifting the ACIC model but you're adapting it for the circumstances.

Mr DREYFUS: Mr Game, you've just mentioned the question of access to lawyers. In the written submission from the Law Council you noted problems with the current questioning warrant provisions, such as limit on contact with lawyer of choice and the possibility of monitoring contact between the subject of the questioning and the lawyer and the impossibility of the lawyer intervening in questioning. In the broad, the Law Council is saying that the ACIC model is preferable. In the specific regard of access to lawyers, are the ACIC provisions sufficient from the Law Council's point of view?

Mr Game : Yes, we do say that the ACIC model should be adopted, and particularly the exclusion from—I say that ASIO can decide to exclude; that's a slight exaggeration, because there are criteria, but the criteria are in respect of terrorism. We say that if you're going to have the ability to exclude there has to be something tangible, remembering of course these decisions are made under fairly short time frames. But the person who makes the decision has to be satisfied that there is a real risk that the lawyer will have an adverse influence on the process, so you need to put in a test of that kind. The test can be stated in straightforward terms. It's got a higher bar and the decision maker can identify and articulate what the test is and that they're satisfied about it. Does that answer your question?

Mr DREYFUS: Yes, thank you. What's the constitutional invalidity problem that the Law Council is bothered by in relation to the ACIC model?

Mr Game : Our concern about the ACIC model—and whether it's done by a reading-down exercise or otherwise—is that you are effectively taking away from courts the discretion in respect of exclusion of evidence of postcharge questioning. It's the looming constitutional issue that wasn't determined in Lee and X7, because that was done on a statutory construction basis to say that then if you have a strictly defined set of criteria—whether or not you're removing from court the power to determine those questions. We would see that as more of a problem in the ACIC legislation than in this, because here you're talking about intelligence. There would be very limited scope for postcharge questioning. I should add that it's the removing of the privilege against self-incrimination without adequate protection; I suppose that is another way of stating that problem.

Mr DREYFUS: The Law Council's opening position, though, is that there should be no postcharge questioning by ASIO.

Mr Game : Yes. Our position is that it should be delayed until after trial.

Dr Molt : That's correct. Justice Weinberg from the Court of Appeal, writing extrajudicially, has a telling quote in this respect.

Mr DREYFUS: And that's in your submission.

Dr Molt : It is, at paragraph 26.

Mr DREYFUS: And that's stating it as succinctly as it's possible to. It's a very long-established principle in our law that there not be postcharge questioning of someone facing trial.

Dr Molt : That's correct.

Mr Game : And perhaps I could tell you also that the fight often is at postcharge questioning in relation to the subject matter of the offence. They might say, 'We want to question you about your financial circumstances', but the financial circumstances might be critically connected with the conduct that is the subject of the charge. So, there is plenty of room for friction and conflict here. And the common law's abhorrence of postcharge questioning does have, in our view, a constitutional basis. Anyway, we've put that submission. It is just an important part of our process. That's the way we conduct our adversarial system.

Mr DREYFUS: Perhaps I could just put a hypothetical to you. ASIO might be in a situation in which it wants to question someone—who's on remand, has been charged and is facing serious terrorism charges—about the activities of another person, which are not the subject matter of the charges the accused is facing. In that hypothetical situation, do you think ASIO should be permitted by whatever legislation is to be put in place to carry on with that kind of questioning?

Mr Game : Instinctively I would say no, but that is the most difficult question. You of course are an eminent lawyer yourself, so I am saying things that you already know, but in that situation there will be a problem, which is that the person is likely to say, 'Why should I answer those questions? Those questions involve my connection with that person, and that person is the other person who's my codefendant in these charges', or something like that.

What that points up is that the law needs to be reasonably protective of this situation, because otherwise the justification for the questioning will be that it doesn't relate to the charges. So I would say one should be jealous about any post-charge questioning of individuals—people on remand, say, facing serious terrorism charges. One should take the view that, if used at all, this would be the exception, and there should be use immunity, and not just use but derivative use immunity as well if this is to happen.

I will just mention one other forensic issue: it's no good saying, 'Look, this person has been required to answer these questions, but they can't be used against them, and therefore they're free to give some other account.' Once they've committed themselves to a particular account in post-charge questioning, it's silly to think that they could go to trial and give some other account or that they could give some other instructions to their lawyers. The system doesn't really permit that kind of, shall I say, gay abandon for the reality of the circumstances.

Mr DREYFUS: Thanks. Just on that, you've just raised the slightly limited nature of the use immunity provisions that we see in the ACIC model at the moment. The ASIO Act, as it stands, only has a prohibition on use following questioning. Do you think that, if some variant of the ACIC model is to be adopted for ASIO questioning, there needs to be a somewhat more refined set of provisions dealing with derivative use immunity or third-party immunity?

Dr Molt : Yes, we do.

Mr Game : Yes. I think we'd like to have an opportunity to assist or frame something for you. But the critical thing is that ASIO is involved in collection of intelligence, essentially, and so the idea that this intelligence-obtaining exercise would then segue into a dissemination, and then segue into a dissemination of derivative material provided to the prosecutor and then used in trial, sort of turns the process on its head. We see that as undesirable.

Mr DREYFUS: Just on that, if there were something that the Law Council felt might assist the committee as to this particular question on derivative use immunity, we'd be very appreciative.

Mr Game : We could put that in writing if you give us a little time to do so.

Mr DREYFUS: Yes. This is an inquiry that the committee's conducting which is on quite a lengthy timetable, so that would be appreciated.

Mr Game : Of course. The other thing is that we'd be more than happy—in fact, we'd like to be involved—to make submissions to you about any draft legislation and the like, of course, and we'd be happy to give evidence again on any specific topic if that helps.

Mr DREYFUS: Sure.

Dr Molt : On the issue of the use immunity in the ACIC model, one of the downsides, as we see it, is that the examinee has to claim the use immunity before it can be ticked off. In terms of ASIO's powers, we think that the use immunity should automatically apply.

Mr BYRNE: I just want to get your perspectives. You talk about the examiner and the ACIC model. I was involved in the first review, in 2005, and we particularly recommended the retention of the prescribed authority and the issuing authority. My perspective is that I see the examiner having a slightly different role to that which is designated as the prescribed authority at the moment, and that concerns me.

Mr Game : Yes, there does seem to be a need to adapt. I hope I'm answering your question, but there is some awkwardness in just adapting the position of the examiner into some, shall I say, quasi-independent person within ASIO. That may not make sense, but there are provisions that enable a person from the security division of the AAT to preside in certain circumstances. Whether that's an appropriate model I don't know.

Perhaps I could answer it in this limited way: there definitely do seem to be issues about literally adapting the character of an examiner. It does not seem to work if you just adapt that idea; there needs to be some more imagination as to how that is done. That involves policy decisions, but it may also involve operational things within ASIO that you might need to address.

Mr BYRNE: I raised that just in case there was a decision made to keep the detention power—a questioning-and-detention warrant. In that regime the prescribed authority can then make a recommendation. My concern would be that if you then had the role of the examiner, that it is not a sufficiently independent position to recommend that they move to a questioning-and-detention warrant. That was what was envisaged in 2005.

My concern is this, that in the contemplation of moving to the model of an examiner I think the agencies will be asking for the detention power. I can't see how the system would then work if the detention power were being kept. You couldn't have the requisite independence that would be exercised by what would be a designated prescribed authority. I actually see this model that is being put up as a significant weakening of the existing safeguards. From where I see this, if we proceed down with this model—even the language that's been used in terms of an ACIC model—they're used for different purposes.

When this was originally envisaged and the legislation was created, it was to stop something from happening. There was an event, it could have been a mass-casualty event. You grabbed people to try to obtain information. The whole tone of the use of this extraordinary power, I think, has been under the guise of, 'Well, we're going to adopt an ACIC model.' Frankly, I think it's quite dangerous. Do you have a perspective on that?

Mr Game : I don't agree that it's quite dangerous, but things—

Mr BYRNE: Well, it lessens safeguards. I think you are assuming that the detention power won't be there. But now, presume that the detention power is there and then you have what is called 'an examiner'. You are talking about someone who could have been in the security agencies, but this whole thing was predicated on having someone of prescribed authority, who had the power to make that decision and who was an independent person. My reading of this is that the examiner wouldn't have the requisite independence to be making that decision, so you wouldn't have the wellbeing of that person who you're worried about—the accused, or the person that you were looking at—considered.

I see difficulties in this. I have to say that I'm surprised, if I may put this respectfully, that the Law Council hasn't identified this.

Dr Molt : In terms of the level of accountability for any detention power, our position is that if there is to be a detention power then the authorisation for that power should come from a superior court judge, such as a Federal Court judge.

Mr BYRNE: Yes, but coming back to the way this was set up, the whole thing was that you had an issuing authority that was a judge or a retired judge, and then you had a prescribed authority. There was judicial overview. My point to you is that the judicial overview seems to be being removed because of the so-called streamlining of powers, and you are broadening their remit. The remit is that now we might be looking at this for the use of espionage. Again, my point to you is that you talk about an examiner. But I don't think, from my perspective—and from having sat in on the first review and subsequent reviews of this terrorist legislation—that the examiner has sufficient independence. That is the point I am putting to you.

Dr Molt : I think I would reiterate that in terms of a detention power we think it is important that there be judicial oversight for the exercise of any such power.

Mr BYRNE: But I am putting to you that the agencies will say they will be requesting the ACIC model but will still want questioning and the detention powers. I might just alert you to the fact that the whole role of what you see as the examiner will change.

Mr Game : I said earlier that one of the problems with this is you can't just switch over the model to the other model and then take away the protections, otherwise you end up with something different than you had in mind to start with. I would extend that to the power to detain.

Mr BYRNE: Can I just alert you to my concern about this. I think the agencies will push for this, particularly in light of what has happened in the Sydney event. I think, as I said, having been involved in the original architecture of this, that you need to have what I would regard as an independent person, a prescribed authority, who would be a judge. And they would make a decision, depending on the questioning, on moving to potentially recommending a detention of the person concerned. And I don't think that the person, who would be an examiner, would be a person sufficiently independent to be making that decision. You would have to seek another thing. Could I invite you to contemplate that?

Mr Game : Yes, sure. But that person you are talking about is normally like a retired judge or that kind of person. That is a weaker protection than a protection of having to go and get an order from a court. In terms of urgency, one can always have report back provisions. That is to say, you can get an urgent warrant, and then you could, within 24 hours or 48 hours, report back. So you can have provisions, and there are provisions where orders are obtained urgently and then one reports back as to the basis upon which one exercised them. But those provisions are quite common. They appear for example in LEPRA, which is the New South Wales legislation for all powers of arrest, and so forth. If it is not reasonably practicable to give reasons, for example, you can give them later. It is the same with execution of warrants. One can be imaginative about these things in such a way that one doesn't restrict the ability to move very swiftly, that also has complete accountability at a later point of that, which has been done.

Mr BYRNE: Can I just invite you to contemplate what recommendations? I know you are saying that you wouldn't support detention, but could you contemplate a series of safeguards that you would suggest in the potential situation where detention was going to be used?

Mr Game : Of course.

CHAIR: Thank you very much, Dr Molt and Mr Game. We appreciate your expansive submission and your comments today. If you've been asked to provide any additional information, please forward it to the secretariat by 30 August. You'll be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors.

Committee adjourned at 13:33