New CTH Bill To Amend ASIO's Compulsory Questioning & Surveillance Powers

Thursday 14 May 2020 @ 3.30 p.m. | Crime | Legal Research

The Australian Security Intelligence Organisation Amendment Bill 2020  (Cth) (“the Bill”) was introduced into Federal Parliament’s House of Representatives on 13 May 2020 by the Hon Peter Dutton, the Minister for Home Affairs. The Bill is currently before the House of Representatives.

The primary amendments are proposed to affect the Australian Security Intelligence Organisation Act 1979 (Cth), while consequential technical amendments are proposed for the following legislation:

  • the Crimes Act 1914;
  • the Criminal Code Act 1995;
  • the Foreign Evidence Act 1994; and
  • the Inspector-General of Intelligence and Security Act 1986.

Background

According to the Explanatory Memorandum, the object of the Bill is to “amend the Australian Security Intelligence Organisation’s (ASIO’s) compulsory questioning and surveillance device powers under the Australian Security Intelligence Organisation Act 1979 (‘ASIO Act’).”

The Bill will also implement the Government’s response to the report by the Parliamentary Joint Committee on Intelligence and Security into the operation, effectiveness and implications of the ASIO Act’s existing compulsory questioning framework.

To implement the suggestions outlined in Joint Committee's Report, the Bill will amend the compulsory questioning framework in the ASIO Act by:

  • enabling ASIO’s continued use of questioning warrants, but removing its ability to use questioning and detention warrants;
  • replacing the existing detention framework with a more limited apprehension framework to ensure attendance during questioning and to prevent contact with others or the destruction of information; and
  • enabling the use of questioning warrants in relation to espionage, politically motivated violence (including terrorism) and acts of foreign interference, as defined in section 4 of the ASIO Act, rather than only in relation to terrorism offences.

The Bill will support the new framework by retaining existing provisions in relation to the exercise of a questioning warrant, including:

  • oversight, including the presence of the Inspector-General of Intelligence and Security at questioning;
  • the existing 28-day limit for a questioning warrant to be in force;
  • the prescribed authority’s obligation to explain that the subject of a questioning warrant may seek a remedy from a federal court relating to their treatment in connection with the warrant;
  • the immunities from criminal liability in providing information, records or other things during questioning;
  • offences for non-compliance with the questioning warrant;
  • secrecy obligations and related offences;
  • access to interpreters where required; and
  • the humane treatment of the subject of a questioning warrant.

Overview of the Amendments

Schedule 1 reforms ASIO’s compulsory questioning framework, by amending the following:

  • Australian Security Intelligence Organisation Act 1979;
  • Crimes Act 1914;
  • Criminal Code Act 1995;
  • Foreign Evidence Act 1994; and
  • Inspector-General of Intelligence and Security Act 1986.

The reforms will ensure the framework is "fit for purpose, operationally effective and responsive to some of the most serious security threats facing Australia, namely, espionage, foreign interference and politically motivated violence".

Schedule 2 makes amendments to the surveillance device framework in the ASIO Act to improve ASIO’s ability to monitor potential security threats and to bring ASIO’s ability to use surveillance devices in line with those of its law enforcement partners.

Reaction and Comment on the Bill

Commenting on the Bill in his speech, the Minister said:

“… ASIO's questioning and detention powers were introduced in 2003 in response to the growing threat from terrorism after the 11 September 2001 attacks in the United States. These powers enable ASIO, upon obtaining a warrant, to question a person under compulsion to obtain intelligence in relation to terrorism, including a person with knowledge of but not directly involved in a terrorism matter. ASIO has used these powers sparingly, with the last questioning warrant being used in 2010. No questioning and detention warrants have ever been sought by ASIO.”

The Guardian has reported that under the proposed laws, ASIO would be allowed to question children as young as 14 and have easier access to tracking devices. If passed the Bill would also extend the power of ASIO to question people over “foreign interference” and the Attorney General would be able to issue certain warrants orally in emergency situations.

Reacting to the proposed changes, Greg Barns of the Sydney Morning Herald (“SMH”) said:

“Not only does Dutton’s bill impinge significantly on the rights of lawyers and their clients, it reduces independent scrutiny of ASIO’s surveillance activities. ASIO officers will have the power to track individuals and will only have to get the OK to do so from another ASIO officer rather than having to file paperwork for a warrant from an independent judicial officer …”

Pauline Wright, President of the Law Council of Australia said in a media release:

“The Law Council of Australia is very concerned with some aspects of the proposed amendments to the Australian Security and Intelligence Act 1975 (Cth) (ASIO Act) released today in parliament … The proposal to reduce the age of minors who may be subject to questioning from 16 to 14 years and the conferral of powers on police to apprehend and detain persons for the purpose of bringing them in for compulsory questioning also requires detailed scrutiny by the Law Council, amongst the many other amendments.”

Ms Wright also said “… the Law Council is concerned that the government is now rushing the Bill, despite having had over two years to develop the re-designed questioning legislation since the PJCIS tabled its report in May 2018.”

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