Thursday, 10 December 2020
Australian Security Intelligence Organisation Amendment Bill 2020; Second Reading
The questioning warrant power has been expanded, as I said, to cover acts of politically motivated violence, including terrorism, foreign interference and espionage. Labor supports this expansion. It is appropriate that our national security agencies have the tools available to them to meet the current threat environment. As former Prime Minister Malcolm Turnbull said: there is no set-and-forget when it comes to national security. The tools that our national security agencies have available to them must evolve to meet the current threats. We acknowledge that foreign interference and espionage are at heights not previously seen in Australia, including at the height of the Cold War. It is appropriate that ASIO has the questioning warrant power to be used in circumstances of foreign interference and espionage.
Labor also supports expanding the questioning warrant power to persons as young as 14, but only in cases of politically motivated violence, as the legislation stipulates, and where the person being questioned is in fact the subject of the investigation. It's important for those who are watching this debate to note and understand that the questioning warrant power is not a law enforcement power; it is an intelligence power. It has been given to our intelligence agencies in order to prevent a terrorist attack. We must recognise the reality that extremist groups, whether they are far-right extremists or from Islamic jihadism, are targeting younger and younger individuals, usually males, to radicalise and to provoke to acts of violence.
We should recall that the person who fired the gun that murdered Curtis Cheng, a New South Wales Police force civilian employee, was only 15 years old. That was an act of politically motivated violence. It was a terrorist attack. It is appropriate that our national security agencies are able to use this questioning warrant power in order to prevent a terrorist attack, including when one is being planned by a person as young as 14, because the evidence is extremist groups are seeking to radicalise and target younger and younger people to carry out these attacks.
I acknowledge that there has been significant concern in the community about the safeguards that would apply to the questioning of minors. I would note for those watching this debate that in this legislation a number of safeguards do apply to the questioning of minors. Many of these are in addition to the safeguards that apply to adults. There is a high threshold for obtaining a questioning warrant; the requirements for children include the following. The Attorney-General must consider the best interests of the child when issuing a warrant. Questioning may only occur in the presence of a lawyer and a parent, guardian or another person acceptable to the child. There is a right to legal advice for all persons, adults and children, including representation during questioning sessions. For minors there is a limit of two hours on continuous questioning periods. Minors also have the right to disclose to particular persons their questioning after the questioning has occurred. And there is the ability to seek judicial remedy in relation to the warrant and the ability to contact the IGIS—the Inspector-General of Intelligence and Security—or the Ombudsman to make complaints about the process. So there are several safeguards built into this legislation.
There are safeguards as well in relation to prescribed authorities. Prescribed authorities play an important role, and always have done so, in relation to the questioning warrant power and, had it been used, the questioning and detention warrant power. A prescribed authority will oversee the execution of a questioning warrant and provide directions in accordance with the legislation. A prescribed authority can be a former superior court judge, an AAT member or another experienced legal practitioner. They cannot be an ASIO employee, a member of an intelligence, security or law enforcement agency, other than the AFP, or an AGS lawyer or IGIS official.
The bill originally proposed to change the qualifications for a prescribed authority. The bill as it was originally presented to the parliament would have allowed for a person with 10 years experience in a legal capacity to be appointed as a prescribed authority. The Parliamentary Joint Committee on Intelligence and Security considered this matter, and it came to a conclusion and made a recommendation in its report that a prescribed authority should have 10 years experience but must additionally be a Queen's Counsel or Senior Counsel. That was in order to assure ourselves and the community that the people acting as prescribed authorities had the relevant senior experience. We acknowledge that the government has accepted that recommendation and moved it as an amendment in the other place to this legislation.
The legislation also previously included a sunset in 2030 and did not include a requirement for a legislative review. Again the Parliamentary Joint Committee on Intelligence and Security considered that matter, and the committee came to a view that this extraordinary and intrusive power, whilst it is appropriate, must be accompanied by appropriate safeguards and parliamentary oversight. Therefore, the intelligence committee made a recommendation to the government that the sunset be shortened to 2025 and that a review occur in 2023. I acknowledge that the government has accepted that recommendation and incorporated it as an amendment in the House of Representatives.
This bill also makes some changes to ASIO's surveillance device warrant framework, allowing the internal authorisation of the use of tracking devices in certain circumstances. Labor members on the intelligence and security committee participated in questioning of our national security agencies in relation to the necessity for that change. We are satisfied that that is an appropriate authorisation change and we support that aspect of the bill. As I said, Labor supports overall the fundamental aims and objectives of this legislation, welcomes the repeal of the questioning and detention warrant, welcomes and supports the expansion of the questioning warrant to acts of foreign interference and espionage, and welcomes, with appropriate safeguards in place, the ability for ASIO to question minors as young as 14 where they are the subject of the investigation and only in relation to acts of politically motivated violence.
I note that the Parliamentary Joint Committee on Intelligence and Security also asked the government—not in the form of a formal recommendation—to consider whether an additional safeguard in relation to minors should be implemented, and that is a child advocate. The committee considered that this is an extraordinary and intrusive power—it is the most extraordinary and intrusive power that ASIO has—and considered that, while the expansion to minors as young as 14 was appropriate in the narrow and defined circumstances with the safeguards the bill contains, there should be consideration, as the warrant power is being given to ASIO, as to whether or not a child advocate should also be part of the process. The intelligence committee has invited the government to come back to it on answering that question. I also flag that I expect that that and the other matters that are highlighted in Labor members' additional comments to the intelligence committee report should be considered as top-order issues for the review in 2023.
In the time remaining I want to turn to an issue where Labor does have a point of difference with the government. The bill removes a safeguard put in place for the issuing of questioning warrants. That safeguard was put in place by John Howard. His Liberal Attorney-General Daryl Williams put in place a safeguard that the questioning warrant power had to be not only issued by the Attorney-General but signed off by an independent issuing authority—a judge acting in a personal capacity. This is a double-lock mechanism to ensure that an intrusive and extraordinary power is used appropriately and lawfully and that the public can have confidence that there is independent oversight and authorisation of such an extraordinary power.
Labor has long supported that the extraordinary powers where they are necessary, as they are in this case, to keep the community safe should also be accompanied by safeguards that ensure democratic rights and freedoms are protected. This was the approach taken by Labor senator John Faulkner when these warrant powers were first introduced in the wake of September 11 and it is the approach Labor takes today.
I note that in the House of Representatives the shadow Attorney-General, Mark Dreyfus, moved an amendment to restore the Howard safeguard. Labor members support the retention of John Howard's safeguard to ensure that independent issuing authorities sign off on the use of these extraordinary powers. I note that in the other place the government voted against the retention of the Howard safeguard. I invite government senators here today to reconsider that position. I anticipate that, given the vote in the House of Representatives, I may be unsuccessful in that request. Nonetheless, I state for the record that, when Labor do come to government, we will—and we make a commitment here today—move to restore John Howard's safeguard to ensure that this extraordinary questioning warrant power is appropriately authorised by not just the Attorney-General but an independent issuing authority.
In the time I have remaining I acknowledge the work done by ASIO in keeping Australians safe. There is no doubt that ASIO has used these powers sparingly. These powers have been used only 16 times since they were provided in 2004. They have not been used since 2010. That's notable because the threat level for terrorism was raised in 2014 and yet ASIO has judiciously and sparingly used these powers. Labor members expect that ASIO will continue to judiciously and sparingly use these powers, particularly in the context of them having been expanded. I acknowledge ASIO's work and state again that Labor supports this legislation. I flag in the seconds remaining that I will seek leave to move amendments to this legislation to restore John Howard's safeguard—the independent issuing authority.