Thursday, 10 May 2018
Intelligence and Security Committee; Report
On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's report entitled ASIO's questioning and detention powers: review of the operation, effectiveness and implications of division 3 of part III of the Australian Security Intelligence Organisation Act 1979.
Report made a parliamentary paper in accordance with standing order 39(e).
by leave—I am pleased to present the committee's report for its review of the operation, effectiveness and implications of division 3 of part III of the Australian Security Intelligence Organisation Act 1979.
Division 3 of part III allows ASIO, upon obtaining either a questioning warrant or a questioning and detention warrant, to question a person under compulsion in order to obtain intelligence that is important in relation to a terrorism offence.
I'll provide some background. ASIO's questioning and detention powers were enacted in July 2003 following lengthy debate in the parliament in 2002 and 2003. Their stated objective at the time was to strengthen Australia's counterterrorism capabilities.
The special powers were reviewed by the then Parliamentary Joint Committee on ASIO, ASIS and DSD in 2005 prior to their original sunset date of July 2006, and by the Independent National Security Legislation Monitor in 2012 and 2016.
The powers are currently due to sunset on 7 September 2018.
The committee commenced this review in February 2017.
In undertaking the review, the committee examined ASIO's ongoing need for a compulsory questioning power and concluded, on the basis of evidence received, that it is appropriate that ASIO retain this power.
On the question of detention, however, the committee has recommended that the provisions of the ASIO Act relating to questioning and detention warrants be repealed.
In reaching this view, the committee considered evidence about the constitutional and human rights implications of detention. It also noted the availability of a range of law enforcement mechanisms that did not exist in 2003. The committee concluded, on balance, that the current provisions are no longer the appropriate response to the threat of terrorism.
While the committee has recommended that detention warrants be repealed, it supports, in principle, an alternative apprehension framework that ensures attendance at questioning, prevents contact with others, and prevents the destruction of information.
Further, it became apparent to the committee that the existing legislation has become limited in its utility.
The committee has therefore recommended that the government develop legislation for a reformed ASIO compulsory questioning power, and has made a series of findings that are intended to guide development of this legislation.
In reaching its views, the committee considered ASIO's preferred model together with the recommendation of former INSLM, the Hon. Roger Gyles, that a model based on that contained within the Australian Crime Commission Act be adopted.
The committee concluded that while there are many benefits to the Crime Commission framework, wholesale adoption of this model would see the removal of some existing safeguards. The committee also noted that ASIO has advocated for provisions that are, in the committee's view, strong and fairer than equivalent provisions under the Crime Commission Act.
Ultimately, the committee concluded that the existing framework should be modified, retaining some important safeguards and mirroring Crime Commission Act provisions where appropriate.
I will briefly summarise the committee's key findings.
On the question of whether the scope of questioning under a compulsory questioning warrant should be extended beyond terrorism offences, the committee has not stated a view. This is a matter that the government should consider in the development of legislation.
Finally, the committee considers that any proposed legislation should include an appropriate sunset clause and that this committee should conduct a further review prior to that date.
Given the impending sunset date of 7 September 2018, the committee has made the final recommendation that the ASIO Act be amended to extend the sunset provision by 12 months, to 7 September 2019. This should ensure that there is sufficient time for legislation to be developed and reviewed.
I commend the report to the House.