The ASIO parliamentary committee, under the chairmanship of former Liberal minister David Jull, has followed the precedent set by the Senate’s terror legislation committee in calling for a sweeping overhaul of the government’s ASIO terror plans.
Jull and Coalition colleagues Paul Calvert, Sandy McDonald and Stewart Macarthur joined with Labor’s Kim Beazley, Robert Ray and Leo McLeay to produce a bipartisan report faithful to Australia’s democratic traditions and freedoms and with a healthy skepticism of unfettered state power. For my report on the constructive style and approach of the hearings, see Take em on, Beazley.
Because of the importance of the matter and the quality of the report, I publish extensive extracts. The full report is at parliament
It again looks like the Government’s jack-boots instincts will be held in check by a dedicated group of Australians who made submissions, parliamentary committees whose members have a firm grasp of the need for balance and have listened to the evidence, and a concerned Liberal backbench determined to take on Cabinet on despite the emotional momentum behind its cause.
This saga has proved a breath of fresh air and a credit to the Australian democratic system. It will be great to see Attorney-General Williams and the Cabinet which backed him suck eggs yet again.
ADVISORY REPORT ON THE ASIO LEGISLATION AMENDMENT (TERRORISM) BILL
CHAPTER 1 – INTRODUCTION
…1.3 The ASIO Terrorism Bill is the most controversial piece of legislation ever reviewed by the Committee. Over 150 submissions were received, most of which were opposed to the provisions in the Bill.
…1.10 ASIO is the Commonwealths domestic security intelligence organisation. It is responsible for protecting Australia and its people from espionage, sabotage, politically motivated violence, the promotion of communal violence, attacks on our defence system and acts of foreign interference.
1.11 The purpose of the Bill is to amend the ASIO Act 1979 by expanding the special powers available to ASIO to deal with terrorism.
1.12 Specifically, the Bill proposes:
* including the definition of a terrorism offence in the ASIO Act;
* providing a power to detain, search and question persons before a prescribed authority; and
* permitting personal searches to be authorised in conjunction with detention warrants.
1.13 The Attorney-General, in his second reading speech, stated: “Importantly, we have introduced a range of new terrorism offences. In order to ensure that any perpetrators of these serious offences are discovered and prosecuted, preferably before they perpetrate their crimes, it is necessary to enhance the powers of ASIO to investigate terrorism offences.
1.14 The amendments contained in the Bill will empower ASIO to seek a warrant from a prescribed authority (PA). A PA can either be a Federal Magistrate, a Deputy President or a legally qualified member of the Administrative Appeals Tribunal (AAT). The warrant provides for the detention and questioning before the PA of persons who may have information that may assist in preventing terrorist attacks or in prosecuting those who have committed terrorism offences.
1.15 The warrants may provide for:
* a person to be immediately taken into custody by a police officer and brought before a PA for questioning and detained under arrangements made by a police officer.
* detention for a period up to 48 hours. Proposed subsection 34D(2) empowers the Director-General of ASIO to seek a warrant which allows for the detention and questioning of persons who may have information that may assist in preventing terrorist attacks or prosecuting those who have committed terrorist offences.
* Successive warrants can be issued, subject to the limits proposed in subsection 34C(5), which require warrants allowing detention beyond 96 hours to be issued by a Deputy President of the AAT.
* detention incommunicado. Proposed subsection 34F(8) states that a person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention. This prohibition may be qualified by the terms of the warrant or a direction issued by a PA.
* a person not being able to decline to give information or produce a document. Proposed subsection 34G(3) states that a person who is before a prescribed authority for questioning under a warrant must not fail to give any information requested in accordance with the warrant (penalty: imprisonment for 5 years).
1.16 ASIO may not seek a warrant without the Attorney-General’s consent. In consenting to such a request, the Attorney-General must be satisfied that:
* there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence (proposed paragraph 34C(3)(a));
* relying on other methods of collecting intelligence would be ineffective (proposed paragraph 34C(3)(b)), and,
* if the warrant involves detention, there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained he or she may alert a person involved in a terrorist offence, may fail to appear before the prescribed authority or may destroy, damage or alter evidence described in the warrant (proposed paragraph 34C(3)(c)).
1.17 The Attorney-General, in his second reading speech, indicated that the Bill “contains a number of safeguards to ensure that a person is treated fairly whilst in custody or detention”. For example, when a person appears before a prescribed authority, that authority must explain what the warrant authorises ASIO to do and the period the warrant is in force. In addition, the person will be advised that they can make a complaint to the Inspector-General of Intelligence and Security (IGIS) or the Ombudsman.
1.18 The IGIS will be provided with a copy of all warrants issued and a statement containing details of any detention that has taken place.
1.19 The Bill, however, does not appear to contain penalty clauses for officers who do not administer parts of the Bill correctly. In addition, there is no provision in the Bill for redress or compensation in the event that a person is wrongfully detained.
… 1.26 (The definitions of a terrorist act in the ASIO bill are the same in the general terrorism package. The ASIO committee backed the Senate commitee’s adverse findings on the definition.) In relation to the ASIO Legislation Amendment (Terrorism) Bill 2002, the broad definition of terrorism would seemingly allow for the detention and questioning of individuals without legal representation who may not know anything about a terrorist activity, but could belong to or support various protest groups and organisations, or could merely be relatives or associates of persons suspected of engaging in activities within the scope of the broad definition of `terrorism’.
1.27 Australia is not alone in adopting a legislative response to the terrorist attacks of 11 September. Both the United Kingdom and the United States of America responded to 11 September by extending their pre-existing anti-terrorism laws.
1.28 Unlike Australia, however, which has not implemented anti-terrorist legislation previously, both the United Kingdom and the United States have had a long history of terrorist violence. The United Kingdom has had anti-terrorism legislation for over four decades while the United States ofAmerica has had such legislation for approximately two decades.
United Kingdom Prevention of Terrorism Acts
…1.31 The Prevention of Terrorism (Temporary Provisions) Act 1974 came into being in response to a prolonged period of terrorist activity in the United Kingdom. This Act was intended to expire within 6 months but it lasted until 2000.
1.32 The key elements were:
* the Act proscribed the IRA and made support for it illegal;
* the legislation allowed the exclusion of persons involved in terrorism from the United Kingdom; and,
* the Act permitted the arrest and detention of any person whom the police reasonably suspected was subject to an exclusion order, guilty of a related offence, or concerned in the commission, preparation or instigation of acts of terrorism. These persons could be detained for 48 hours and the Secretary of State could extend this by a further 5 days.
The Act also permitted the Secretary of State to issue orders allowing police and immigration officers to stop and search persons at ports or borders.
1.33 Detention was reviewable by a writ of habeas corpus (a legal action which compels authorities to bring someone in custody before a court.) However, despite the large number of detentions under these provisions, such writs were rare. Moreover, given the short duration of detention, such action was practically unavailable in most cases.
1.34 The Terrorism Act 2000 largely reincorporated these provisions but also made some significant changes. The power to extend detention was transferred from the Secretary of State to the judiciary as a safeguard measure.
1.35 Only a judicial authority therefore could extend detention if satisfied that doing so was reasonably necessary to obtain or preserve relevant evidence and that the relevant investigation is being conducted diligently and expeditiously.
Legislation in the United States
1.36 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001) focuses on proscribed organisations, associated offences and law enforcement powers.
1.37 The Act provides for the mandatory detention of any alien whom the Attorney-General has reasonable grounds to believe is an inadmissible alien. This was defined to include persons who have incited or engaged interrorist activity and members or representatives of foreign terrorist organisations. The Act does not apply to US persons.
1.38 The Act extends the definitions to cover persons who use a position of prominence to endorse or espouse terrorism, or belong to a group thatendorses terrorism, in a way that undermines United States efforts toreduce or eliminate terrorist activities. It also broadens the definition of engaging in terrorist activity to include incitement, preparation, information gathering, planning and soliciting funds or members for terrorist activities or organisations.
1.39 The Act provides that decisions by the Attorney-General may be reviewed by writ of habeas corpus. Thus, there is no administrative review, although it is claimed that the habeas corpus review grounds closely parallel some of the judicial review grounds.
Objectives and scope of the inquiry
1.40 The majority of evidence to the inquiry has called for the Bill to be abandoned in total or key provisions removed. The Committee heard these calls but also sought to seek solutions which would ameliorate the major concerns that were raised. Witnesses were tested along these lines about a range of possible measures which would improve the Bill. The key areas of the Bill on which the Committee focused its attention includes:
* the status of the prescribed authority;
* access to legal representation;
* the maximum duration of the detention period;
* the need for protocols governing the detention of persons;
* application of the Bill to persons under 18;
* the issue of self-incrimination;
* access to judicial review; and
* a range of accountability measures including adequate reporting of the number of warrants issued and the use of a sunset clause to strengthen public confidence.
CHAPTER 2 – WARRANTS
2.1 Under the Bill, provision is made for the issuing of two types of warrants, a questioning and/or a detention warrant. These warrants would grant ASIO for the first time the law enforcement power of questioning, but not arrest powers.
2.2 Proposed paragraph 34D(2)(a) sets out the criteria for issuing a warrant requiring the appearance of a person before a prescribed authority. Failure to appear would carry a penalty of 5 years imprisonment.
2.3 Proposed paragraph 34D(2)(b) provides for a warrant to be issued that requires a person to be taken into custody and detained for 48 hours. Under this warrant a person may be denied contact with anyone not specified in the warrant.
…2.5 Proposed section 34C describes the process by which the Director-General of ASIO may apply for the warrant by seeking the consent of the Attorney-General and the factors which need to be considered by the Attorney-General in issuing these warrants.
2.6 Proposed section 34D provides that a prescribed authority may issue warrants for questing and/or detention. The process that the prescribed authority must follow is outlined in this section.
2.24 The status and role of the prescribed authority (PA) is a critical part of the Bill. The PA must be of a certain status which ensures transparency, accountability and provides confidence to the public. This can only be achieved if the authority for issuing a warrant is judicial. The Administrative Appeals tribunal (AAT) is an instrument of executive government and therefore should not be given the power to issue warrants.
Recommendation 1: Proposed section 34B, and consequential parts, of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide for:
* Federal magistrates to issue all warrants;
* Federal Judges to issue all warrants where detention will exceed 96 hours; and
* members of the AAT, as set out in proposed subsection 34B(1), to undertake all other duties of the prescribed authority excluding the power to issue warrants.
Proposed section 34C – duration of the detention period
..2.34 There was considerable criticism and some confusion in relation to the length of time a person could be detained under the proposed legislation. At a public hearing the Attorney-Generals Department confirmed that a warrant could be extended for an indefinite period of time.17 This was criticised by the Law Council of Australia who stated in their submission: “Of utmost concern is that the Bill envisages that second and subsequent warrants each up to 48 hours may be obtained. There is no restriction whatsoever on the number of such warrants which may be obtained and hence the overall period of continuous detention, except that where warrants will result in a continuous period of more than 96 hours, warrant authority must be sought from the Deputy President of the AAT.”
2.35 Amnesty International stated that the ability to further extend the initial period of 48 hours detention indefinitely by repeatedly reissuing new warrants violates obligations regarding arbitrary detention. 19 Article 9 of the International Covenenat on Civil and Political Rights (ICCPR) recognises the right not to be arbitrarily detained. Further to this, they suggest that at the very least, a limit must be placed on the number of warrants obtainable against the one person.
2.36 The Castan Centre for Human Rights Law argue that article 9(1) of the ICCPR prohibits arbitrary detention. Further to this they advised the Committee that articles 9(3) and 9(4) of the ICCPR require oversight by a judicial body, rather than a quasi-judicial substitute.
2.37 The Australian Section International Commission of Jurists add support to this stating in regards to the legislation as a whole: “The Bill, if it becomes an Act, will breach our obligations under the International Covenant on Civil and Political Rights. This Bill is an unprecedented affront by Australia, if enacted, to the instruments to which we have adhered over generations and which were promulgated by the United Nations.”
2.38 The provision for indefinite detention proposed in the legislation is an issue of some concern. A person who has not been charged with an offence should not be detained for an indefinite period of time.
2.39 The Committee therefore proposes to introduce a maximum limit for detention of 7 days (168 hours). Therefore, a person could not be detained for longer than 7 days under the Committee’s amendment.
2.40 In relation to ASIO’s powers to seek warrants, ASIO indicated that the Director-General may only seek a warrant `if the Attorney-General consents to this’. The EM in relation to proposed subsection 34C(5), states
that ‘if the Director-General is seeking a further warrant in relation to a
person who has already been detained under two consecutive warrants,
the Director-General must seek the warrant from a Deputy President of
the AAT.’ It is not explicit that, in seeking a further warrant, the Director-General
has first requested the need for a further warrant from the
Attorney-General. This should be made explicit in the Bill.
2.41 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the maximum period of detention of a person is no more than 7 days (168 hours), and at the expiry of that period a person must be either charged or released.
Proposed section 34D – Being brought immediately before a prescribed authority
2.43 Proposed section 34D provides for the issuing of warrants by a prescribed authority. It sets out the types of warrants that may be issued, under what conditions and what may be included in the warrant. The obligations of the person subject to the warrant are also set out.
2.44 A person may be held incommunicado under a detention and questioning warrant. The warrant under proposed subparagraph 34D(2)(b)(ii) will specify all those whom the person is permitted to contact while in custody or detention. Under this provision, a person may be denied legal representation.
2.46 A 28-day period in which a person may be taken into custody is currently provided for under paragraph 34D(6)(b). This 28-day period was criticised as being too long, and misleading in relation to the 48 hours detention proposed under a detention and questioning warrant.
2.47 Subparagraph 34D(2)(b)(i) authorises that persons under a 34D(2) warrant are to be taken immediately into custody by a police officer and brought before a prescribed authority. It is not, however, specified that a person should be taken immediately before the prescribed authority.
2.48 It is conceivable therefore, that a person could be taken into custody but not immediately taken before the prescribed authority. Thus they could spend a number of days in custody before the 48-hour warrant begins.
2.49 Dr Greg Carne states: “The 48 hour time limit for detention is also misleading. The concepts of custody and detention are differentiated. Police have the task of bringing the named person into custody and ensuring custody in periods outside interrogation. The 48 hours detention does not commence until the police first bring the person in custody before the prescribed authority for interrogation. The bill does not specify as to when this interrogation must occur.”
2.50 ASIO stated that, certainly it is not the intention that someone be picked up and kept somewhere for 21 days before being taken before a prescribed authority.
2.51 The purpose of the 28 day custody period was explained by the Attorney-General’s Department as to allow, `for the warrant to be issued and then for the person, for example, to be found. The warrant would stay active for that 28-day period. But the warrant would only allow a period of detention for up to 48 hours.”
2.52 It was the opinion of ASIO that this was an inadvertent omission which could be made clearer in the legislation.
2.53 It is the view of the Committee that subclause 34D(2)(b)(i) needs to be amended so that when a person is taken into custody they are then immediately taken before a prescribed authority. The logistical problems of finding someone named in a warrant is recognised by the Committee however a loop-hole in the legislation which would allow for someone to be kept in custody for a length of time before being brought before the prescribed authority in the Committees view is not justifiable.
2.54 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the word immediately is inserted into subsection 34D(2)(b)(i) so that a person is immediately bought before a prescribed authority.
CHAPTER 3 – DETENTION
3.1 This chapter examines some of the most contentious aspects of the proposed Bill including, detention of persons, detention incommunicado, the rights and obligations of detainees, and the treatment of persons in detention.
3.2 The Bill provides for the detention of persons who may not themselves be suspected of a crime. Under the proposed legislation, a person may only be detained if the prescribed authority is satisfied that there are reasonable grounds for believing that the person may alert a person involved in a terrorist offence that the offence is being investigated; may not continue to appear or not appear again, before a prescribed authority as required by a warrant; or may destroy, damage or alter a record or thing the person has been requested, or may be requested, under the warrant to produce.
3.3 While in detention, a person may be detained incommunicado without access to legal advice so as to avoid the possibility that the legal adviser would alert terrorist suspects.
3.4 The general provisions for detaining a person are set out under proposed section 34F. Proposed section 34G gives directions as to the requirements of a person when appearing before a prescribed authority for questioning. A person subject to a warrant may not refuse to give information even if doing so might incriminate them.
3.5 Proposed section 34J concerns the treatment of persons while under a warrant issued under proposed section 34D. A direction is given that the person must be treated with humanity and with respect for human dignity.
3.6 No age limit is given in the Bill in relation to persons who may be detained. It is therefore possible for children to fall under the ambit of the legislation and be held in detention and incommunicado without their parents knowledge.
Proposed section 34F – Detention of persons
… 3.13 The provision for detention appears to be a precautionary measure. Detention is proposed:
* as the person may pass on information to someone suspected of planning a terrorist activity that ASIO is investigating;
* because the person may destroy or alter records that may be important to an investigation; and,
* so ASIO may continue to question someone if there is a belief that the person may not continue to appear before the prescribed authority.
3.14 A number of individuals and organisations expressed strong concerns relating to the detention provisions. These concerns relate to:
* detention incommunicado without access to legal representation;
* the absence of any protocols concerning the circumstances of detention of persons; and
* no protection against self-incrimination for information, relating to a terrorism offence, provided at an interview;
* lack of penalties for officials who fail to comply with the legislation; and
* the detention of children.
Proposed section 34F Incommunicado detention and legal representation
3.15 Proposed subsection 34F(8) provides for a person under a warrant to be held incommunicado. A person will be refused the right to contact any one not specified in the warrant. Thus a detainee may not be able to contact their family, their place of work, and most importantly have access to legal representation.
3.16 The Castan Centre for Human Rights Law commented that “the incommunicado aspects of the detention is one of the most potentially dangerous aspects of this Bill”.
3.17 The Attorney-General’s Department justified the need for incommunicado detention on the basis of ensuring that a potential terrorist could alert other terrorists or dispose of evidence. What “was primarily behind this provision was the operational aspects of how the agency thought that it would do its work and how best to ensure that somebody who might be in a position to pass out information that then could result in either a terrorist attack happening or letting people know that they are in custody”.
3.18 It was argued by Amnesty International that one of the key premises on which the provision is based, that detaining people will lessen the chance of a detainee being able to tip off someone involved in a terrorist activity, will simply not work. “Amnesty International finds it difficult to believe that a person’s disappearance for 48 hours without contact with their family or friends would not draw similar attention to an investigation.”
3.19 One of the focus areas during the scrutiny of incommunicado detention was the possibility that a person would be denied access to legal representation. The Law Council of Australia commented that it sees “no reason why a citizen who is subject to the potentially frightening prospect of having to give evidence against their neighbour or someone like that should not have the right to legal representation.”
3.20 During hearings, the option of having a panel of lawyers, who are security cleared and appointed by various law councils, available to provide legal representation was examined. The Law Council of Australiastated: “If you have a concern about a lawyer being a possible breach of security requirements, there are ways in which that can be overcome. But the fundamental right must be that a person taken into custody by administrative action and not supervised by judicial process has access to legal advice and can take certain steps, whatever they may be, to secure some form of justice. This legislation does not permit that. It is a gross departure from every standard that currently governs the way in which we legislate for criminal and other conduct.”
3.21 The NSW Council for Civil Liberties acknowledged that the creation of a pool of cleared legal representatives would be “a basic minimum standard that could be applied”. However it warned that the problem is “if you create that environment, you may get someone who is not going to look after the best interests of the person because they are in a compromising position: if they do that, they may have their security clearance rejected or revoked.”
3.22 Professor George Williams supported the proposal for a pool of legal representatives “as long as those people were chosen, say, in consultation with the Law Council of Australia or some other appropriate body to make sure that there was outside input”.
3.23 The Islamic Council of Victoria supported the proposal but warned that some of the lawyers selected should have knowledge of the Muslim community.
3.24 ASIO indicated that the possibility of providing legal representation from a pool of cleared lawyers was not canvassed during the development of the Bill. However, ASIO did raise the following concern about the proposal. “I have no comment on the suggestion that someone detained should have access to independent legal advice. However, I would have concerns from where I sit about someone detained having access to a legal representative, up front, to engage in an adversarial process. I believe that would defeat the purpose of the timely intelligence in certain crucial situations.”
3.25 The Bill provides for detention incommunicado. No provision is made for the person who is the subject of a warrant to have access to legal representation. Evidence to the inquiry was opposed to this arrangement particularly in view of the fact that a person would not have the right to silence. The Committee agrees that this is an unacceptable situation, which must be rectified.
3.26 The Attorney-General’s Department suggests that access to a lawyer could lead to information about the person in detainment being made public. This position is unsustainable. The Committee notes that there is not the same concern about the provision of interpreters under proposed section 34H and the provision of a medical practitioner under proposed subsection 34M(3).
3.27 The Committee proposes the creation of a pool of legal representatives, possibly selected by the Law Council of Australia, who will be security cleared. A person who is detained for questioning under the provisions in this Bill will have access to these legal representatives from a list supplied by the prescribed authority under proposed section 34E.
3.28 The Islamic Council of Victoria suggested that some of the legal representatives should have knowledge of the Muslim community. The pool of available lawyers should, as far as possible, be representative of Muslim and other communities.
3.29 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide for legal representation for persons who are the subject of a warrant. The following framework should apply:
* a panel of senior lawyers recommended by the Law Council of Australia to be formed who could represent persons being held in detention;
* the Bill should be amended to allow these lawyers to sit in on the entire proceeding of the prescribed authority, and representa person at any further hearings which seek to extenddetention; and
* the lawyers on the panel may have to be security cleared so as to be eligible to represent people in detention.
Proposed section 34E should be amended to ensure that the prescribed authority must advise the person, when they first appear before the prescribed authority, that they have access to a legal representative from a list that will be given to the person.
Protocols governing custody, detention and interview
3.30 It became evident during hearings that there were no guidelines on how certain legislative provisions relating to detention and interview would be implemented and governed. For example, what arrangements would be made when police took a person into custody? Where would a person be detained? Would ASIO officers be with police officers when a person was taken into custody? What are the steps that are taken during the first 48 hour period? How long should an interview be conducted before a break is required? As these issues were discussed, it became clear that a protocol governing custody, detention and the interview process should be developed.
3.31 Dr Greg Carne discussed some international comparisons relating to the issue of a protocol. He indicated that similar provisions are provided for in the UK Terrorism Act. The Minister provides a code of conduct which must then be tabled in the Parliament.14 Dr Carne stated: “Thirty years of experience has suggested that it is both better for national security and better for the states reputation to set down these things in clear terms for minimum compliance with these human rights provisions and to ensure the reliability of evidence.”
3.32 The NSW Council for Civil Liberties commented that “there are very few considerations or protections in place and anything that can be added is of benefit”.
3.33 The Administrative Appeals Tribunal (AAT), which will provide members to act as prescribed authorities, called for protocols to guide the operations between ASIO and the AAT. The AAT commented that “the development of a sensible and fair protocol in relation to all parties would be something that we would see as a priority, once the final form of the legislation is known”.
3.34 Professor Williams supported the need for protocols but advised that there would also be the need for oversight and enforcement. Professor Williams commented that “if that was to happen then you would need a process following that where ASIO would need to demonstrate that they followed their protocols and indeed that this committee perhaps, or the inspector, could actually examine to see whether that occurred”.
3.35 The Castan Centre for Human Rights Law pointed out that an enforceable protocol could act as a powerful accountability mechanism governing the operation of ASIO. Professor Kinley stated: “But woe betide ASIO if it is found out that they did not abide by those, and they did have people standing up against walls etcetera. Maybe one of the statements of intent that could be part of that undertaking would be a protocol. I could see that adding to it. In a way, it is a good compromise because it gives ASIO the opportunity to state these things, yet it gives the judge the opportunity to say, We expect you to abide by these. This is your statement of intent.”
3.36 ASIO accepted the need for the development of a protocol for the treatment of persons in detention. ASIO stated: “I believe it would be a good thing to develop a protocol about the conduct and responsibility of ASIO officers in relation to detention and how people should be treated. I believe such a protocol would be needed anyway and believe personally that, in terms of public trust and confidence, it ought to be approved by the Inspector-General and considered by this committee”.
…3.38 The Committee proposes that ASIO should develop a protocol, which guides the operations of the Bill, in consultation with the Inspector-General of Intelligence and Security, the Australian Federal Police and the Administrative Appeals Tribunal. The protocols should be approved by the Attorney-General. The Committee should be briefed on the protocols as soon as they are developed and then subsequently they should be tabled in the Parliament. The Bill should not commence until the protocols are developed and in place.
3.39 The Inspector-General of Intelligence and Security should monitor the use and application of the protocols. Where a breach of the protocols is discovered, the IGIS should not wait to report this event in his Annual Report. The Committee should be informed of the breach immediately.
3.40 Some of the issues that should be included in the protocols include:
* arrangements for informing the AAT and the IGIS about an impending warrant;
* arrangements for informing the Police;
* arrangements for custody and detention;
* interview duration periods and breaks required during a 48 hour detainment period.
3.42 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a proposed section which requires the development of protocols governing custody, detention and the interview process provided for under the Bill.
ASIO should develop the protocols in consultation with the Inspector-General of Intelligence and Security, the Australian Federal Police, and the Administrative Appeals Tribunal. The protocols should be approved by the Attorney-General; the Committee should be briefed on the protocols which should then be tabled in the Parliament; and the Bill should not commence until the protocols are developed and in place.
Proposed Section 34G protection against self-incrimination
3.43 The main purpose of the legislation as put forward by the Attorney-Generals Department is to gather intelligence relating to a possible terrorist or terrorist activity.
3.44 The powers provided under section 34G that relate to giving information and producing things are therefore considerable in scope. The proposed legislation reverses the onus of proof which requires that the person prove that they do not have something required under the warrant. Refusal to give information or produce a required record or thing carries a penalty of 5 years imprisonment.
3.45 Declining to give information or to produce a record or thing on the grounds that you might be incriminating yourself is no grounds for refusal.
3.51 Scrutiny at public hearings of proposed section 34G focused on the combined issues of the refusal of the right to silence and no protection against self incrimination for information relating to a terrorism offence provided at an interview.
3.52 Terrorism offences are punishable by imprisonment for life. Under proposed subsection 34G(3) a person does not have the right to silence. The penalty for failure to comply is imprisonment for five years. Therefore, a person who provides incriminating evidence relating to a terrorism offence could get life imprisonment or alternatively if the person fails to provide information they could get five years imprisonment. The inadequacy of this arrangement was identified during hearings. In addition, the evidence indicated that it was incompatible for a person to have their right to silence removed and, at the same time, have no protection against self-incrimination for information relating to a terrorism offence which is provided during an interview.
3.53 A further aspect of the investigative powers under the Bill is that they are not primarily a tool to collect evidence for the purpose of prosecution. Rather, the powers are designed for intelligence collection with the purpose of preventing a terrorist attack. It was suggested during hearings that this point seemed to undermine the argument for having a self-incrimination provision. ASIO stated that “in terms of principle, the new powers are intended as an enhancement of ASIOs existing intelligence collection powers”.
The Law Council of Australia stated: “Really, what is happening here is an investigative exercise. It is not an attempt to find evidence against the suspect. It is aimed at, as we see it, people who are not suspects but who are people who know. They are just witnesses. It is never intended that they will be charged or convicted of any criminal offence, necessarily. They are going to provide evidence against other people”.
3.54 The Attorney-General’s Department advised that there were provisions in a range of legislation where it was an offence to refuse to answer questions. These include the National Crime Authority Act, Taxation Administration Act, Education Services for Overseas Students Act, Ozone Protection Act, Census and Statistics Act, Quarantine Act, Migration Act and Motor Vehicle Standards Act.
3.55 At the same time, however, many of these Acts provide protection against self-incrimination. The Law Council of Australia indicated that there were a range of agencies such as the Australian Tax Office, the National Crime Authority and Royal Commissions which provide
protection against self-incrimination for information provided.
3.56 ASIO confirmed that if protection against self-incrimination was provided for, then things said during an interview would not diminish the information that they would be likely to obtain from that person…
3.58 Proposed section 34G requires a person to provide information at an interview. This provision removes the right to silence. In addition, this section does not provide protection against self-incrimination for information relating to a terrorism offence which may be provided at an interview. If a person provides information relating to a terrorism offence they could be subject to life imprisonment or five years imprisonment for failing to give information.
Under this arrangement, logically, a person would remain silent and take the five years imprisonment. This approach is contradictory and incompatible with ASIO’s primary objective, in relation to this Bill, of collecting intelligence to prevent a terrorist attack.
3.59 If the Bill must include a provision where the right to silence is removed then a person must have protection against self-incrimination for the provision of information relating to a terrorism offence. This approach would provide a fair balance if the right to silence were removed. In addition, this approach should, potentially, be a more effective way of collecting intelligence relating to terrorism offences.
3.60 The provision of protection against self-incrimination for information provided at an interview is not the same as immunity from prosecution. A person, for example, could not confess, at an interview, to undertaking a terrorism offence and then gain immunity from prosecution. It is only the information taken at an interview which could not be used in a prosecution. If law enforcement agencies could collect alternative evidence then they could use that information to conduct a prosecution.
3.61 Proposed section 34G of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide protection against self incrimination for the provision of information relating to a terrorism offence.
Proposed section 34J Humane treatment of persons specified in warrant
3.62 Proposed section 34J of the Bill provides that a person being detained under a warrant must be treated with humanity and not subject to cruel, inhuman or degrading treatment.
3.63 In addition to section 34J, there are a number of other sections in the proposed Bill, described by the Explanatory Memorandum, as providing safeguards in relation to the treatment of detainees. These include:
* The Director-General must ensure that video recordings are made of the proceedings before the prescribed authority or any other matter that the prescribed authority directs. These recordings must be provided to the Inspector-General of Intelligence and Security (IGIS).
* The Bill requires the prescribed authority to inform the person being detained under the warrant of the effect of the warrant; the length of time the warrant is in force; the legal consequences of non-compliance with the warrant and the right of the person being detained to communicate with the IGIS and the Ombudsman. Interpreting services must be provided before any questioning can take place if the person detained is unable to communicate in English.
* The person detained has the right to make a complaint in relation to ASIO to the IGIS or, if their complaint relates to the AFP, the Ombudsman. On request, the person detained is to be provided with the facilities to communicate with the IGIS or the Ombudsman.
* The Bill also requires ASIO to give a copy of any warrant issued and a statement containing details of any detention that has taken place to the IGIS. The Attorney-General will also receive a report from ASIO on each warrant…
3.65 Proposed section 34J serves an important purpose which is to ensure that officials applying the provisions in the Bill treat a person with humanity and with respect for human dignity. However, there is no incentive in the form of penalties to ensure that these goals are delivered. Scrutiny of the Bill reveals that there are no penalties in the Bill. Professor Williams commented that “this legislation does not provide penalties for, for example, inhumane treatment”. The Federation of Community Legal Centres stated: “What penalties are there for ASIO or for police who violate the processes set out in this act? If an ASIO officer does actinappropriately, how do you take action against them, because it is illegal even to name them? You are not even going to know their name necessarily.”
3.66 The Attorney-General’s Department confirmed that there are no penalties for non-compliance with proposed section 34J or with other “provisions such as that”. However, the Attorney-General’s Department did qualify this answer: “It is rare in legislation to provide criminal penalties for officers going outside the legislation, but one of the key safeguards that overlays this is that, when you put in a legal rule like this, if officers go outside that and can be shown to be negligent, legal action could be taken against the officer, the agency and the Commonwealth.”…
3.68 The Law Council of Australia stated: “..without access to independent legal counsel, the guarantee in s.34J of treatment with humanity and respect for human dignity, and freedom from cruel, inhuman or degrading treatment, is effectively meaningless whilst a person is undergoing questioning or detention. Moreover, no attempt has been made to give any content to this standard in the context of compulsory questioning and incommunicado detention, and hence to provide authorities with any guidance as to the minimum standards of treatment to be applied.”
3.69 The omission of penalty clauses in this Bill is an area which requires rectification. It is unacceptable for the types of measures contained in this Bill not to have penalty clauses attached for actions by officials who do not comply with the legislation. The most prominent omission relates to proposed section 34J which requires the humane treatment of a person specified in a warrant.
3.70 The Attorney-General’s Department indicates that it is rare in legislation to include criminal penalty clauses because, in any event, legal action could be taken against an officer if it could be proven that they were in breach of a legal rule. This is not a satisfactory response. The inclusion of a penalty clause applying to proposed section 34J, and other sections in the Bill, would send a clear message to the public and government officers, that severe penalties will be incurred for non-compliance with the law. Therefore, proposed section 34J, and other relevant sections, should have a note attached to them indicating that penalties apply.
3.71 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include penalty clauses which will apply to officials who do not comply with the provisions of the Bill. In particular, a penalty clause must apply to the operation of proposed section 34J.
Detention of Children
3.72 The Bill does not place an age restriction on who may be detained. It is therefore possible that children could be detained under the legislation. The only reference to children in the Bill comes under proposed subparagraph 34M(1)(e) which places an age restriction of under ten years on strip searches.
3.73 In a radio interview for the Law Report, Radio National, the Attorney-General was asked if children would be included under the legislation. He commented that “anyone who has information would be appropriate to be detained”.
3.74 The Attorney-Generals Department on being asked by the Committee why the provision for strip searching 10 year old children was in the proposed legislation stated:
“This is a replica of the Crimes Act provisions in sections 3ZH and 3ZL, dealing with the strip search. The same rules apply as to police in the Crimes Act. The key thing is that the power can only be accessed if there are reasonable grounds to suspect a person has an object that could be a danger to a person or assist their escape. So in practice the situation where a 10-year-old would have such an item would be extremely limited. Nonetheless, if they did – and there are real circumstances where a 12-year-old may have a gun or something like that – rather than artificially say You can never do anything about it, the provision lays down a mechanism so that you can talk to the prescribed authority, meet the safeguards and remove that item.”
3.75 ASIO acknowledged that children could be subject to the legislation. “There is nothing in the bill that distinguished detention of adults and detentions of people who are below the age of 18 and I think there ought to be some room to work on that.”
3.76 The Law Institute of Victoria, Young Lawyers Section pointed out disparities between the treatment of children under the Bill and the provisions for their treatment under the Crimes Act. “The proposed Bill provides that a child under the age of 18 may be detained for 48 hours the same period as for an adult. Presently under the Crimes Act 1914 (Cth) a child may be detained for only 2 hours – half the time of an adult.”
3.77 In relation to strip searches the Law Institute of Victoria stated: “The proposed Bill provides for children between the ages of 10 and 18 to be strip-searched without sufficient protection against abuse of the process. Presently under the Crimes Act 1914 (Cth) a Magistrate is guided as to what they must consider in deciding to permit a strip search of a suspect under the age of 18.”
3.78 Some groups, in evidence, raised concerns about the lack of guidelines for questioning children. For example, the length of time children might be detained or who might be there to support and protect the rights of the child. The submission from Amnesty International states: “It is unreasonable that under this legislation a 10 year old child could be held and questioned without the ability to notify his or her parents of the fact of their detention, and the place that they are being kept in custody. It is also unreasonable that a child is not able to have an `interview friend’ present with them during questioning.
3.79 Dr Jenny Hocking from Monash University stated: “It is extraordinary that a democratic nation adhering to notions of the rule of law can even contemplate the passage of legislation which would permit children to be taken and held incommunicado without their parents knowledge, let alone consent. That children can be held without suspicion of their involvement in any offence, without legal representation, strip searched and questioned is an appalling proposal and one which has no place in a humane and just society.”
3.80 Mr Gabr Elgafi, from the Supreme Islamic Council of New South Wales pointed out to the Committee the culturally sensitive issues involved in strip-searching. He commented that, in Islam, we are prohibited to appear nude in front of someone. On the particular issue of the stripsearching of children he further stated: “If a husband sees his wife or his 10-year-old kid being searched it is going to be traumatic for him; it is going to cause a lot of disharmony. He is not going to look nicely at them in the future. This guy will be carrying a grudge because he has seen his 10-year-old kid terrified. Searching a 10-year-old kid, asking them to strip, is a major issueand not just for me, I am sure, but with any Anglo-Saxon as well.”
3.81 The Law Institute of Victoria, Young Lawyers Section claimed that the proposed legislation “contravenes 6 articles of the Convention on the Rights of the Child to which Australia became a signatory in 1991”.
3.82 It is a major concern that children could be subject to the provisions in the Bill. The Committee does not support the right to detain or strip-search children as provided for under the legislation. There already exists a procedure under the Crimes Act which allows for the questioning of children.
3.83 The legislation as it currently stands would allow for the detention of a child without the parents’ knowledge. The Bill would also provide for strip searches to be undertaken of children 10 and over. Many protections could be put into the legislation with regard to children under the age of 18, however, it is the view of the Committee that it would be simpler and safer to have the legislation not apply to anyone under 18 year of age.
3.84 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to ensure that no person under the age of eighteen years may be questioned or detained under the legislation.
CHAPTER 4 – ACCOUNTABILITY MEASURES
4.1 A constant theme that arose in the evidence was the lack of accountability measures in the Bill and the consequent possible diminution of civil liberties. The powers contained in the Bill are significant and it is essential that a balance is struck between these powers and accountability mechanisms which provide transparency and help to provide greater levels of public confidence.
4.2 In 1999 the then Parliamentary Committee on ASIO, in an advisory report to the Parliament, commented that it “is important that a balance be achieved and that mechanisms be established to give the community confidence that ASIO is performing its functions in a way that is lawful and respects individual rights and liberties”. The Committee considers that the current Bill requires that the balance between secrecy and accountability be reviewed.
4.3 In chapter 3, recommendations were made regarding the need for protocols which govern the detention process. In addition, it was proposed that penalty clauses be applied to key sections of the Bill. In particular, penalties should apply to officers who fail to comply with proposed section 34J requiring that persons specified in a warrant be treated humanely.
4.4 This chapter focuses on the need for higher level accountability measures which focus on the overall operation and timeframe of the Bill. For example, annual reporting of the total number of warrants for questioning and detention will provide the Parliament and the public with greater insight into the operation of this Bill. A further measure is the need for the inclusion of a sunset clause which will terminate the Bill at a predetermined time.
4.5 In addition to these measures, this chapter will discuss the need for enhancements to Parliamentary scrutiny by this Committee and greater powers for the Inspector-General of Intelligence and Security.
4.6 The Australian Security Intelligence Organisation (ASIO), under section 94 of the ASIO Act, must provide the Minister with an Annual Report as soon as practicable after each year ending 30 June. The Minister must then table a copy of the report, minus any deletions, in the Parliament within 20 days. In practice, the Minister receives a classified report and will then table an unclassified version in the Parliament. A copy of the classified Annual Report is also provided to the Leader of the Opposition. The 2000-2001 report includes information about ASIO’s corporate governance; people, information and building management; security of ASIO; purchasing practices; use of consultants and contractors; and accountability.
4.7 In relation to accountability, ASIO states that “investigations can be intrusive, so we adhere to a range of accountability measures and safeguards that govern the way we operate’.
4.8 During the inquiry, the issue of reporting the number of warrants sought and granted for questioning or detention was debated. ASIO indicated that the classified Annual Report provided to the Minister and the Leader of the Opposition would “include details regarding the issuing of any warrants under the new powers”.
4.9 ASIO indicated that its public Annual Reports do not include the number of warrants issued. The prospect of aggregated reporting of the number of Ministerial warrants issued was raised in an inquiry by the previous Parliamentary Committee on ASIO. ASIO presented reasons why the number of warrants generally are not publicly reported. However, in relation to public reporting of warrants issued for questioning and or detention under the current Bill, ASIO was less concerned about providing details on these warrants.
ASIO stated: “I would accept in terms of logic that, if this proposed legislation is enacted by the parliament, clearly the secret part of it relates to someone being brought in and questioned. After that is completed – or when an annual report comes around or whatever – the confidentiality of whether you had detained one person or two people or no people during the course of that year I would have thought would have dissipated.”
4.10 The prospect that ASIO will report the total number of proposed section 34C warrants was welcomed by a range of groups. The NSW Council for Civil Liberties supported the proposal but suggested that the measure should be extended to all types of warrants. Similarly, Professor Williams agreed that while the proposal for reporting 34C warrants was an advance, he “would prefer a far higher degree of scrutiny of every case”.
4.11 The Victorian Council of Social Services acknowledged the proposal for public reporting of 34C warrants but commented that “just having an annual report that documents how many times it was used in a year is still not good enough”. The Castan Centre for Human Rights Law was positive about the prospect of comparing the number of warrants sought with the number of warrants issued. “That information would be very useful in at least giving the public some impression of the extent of the use as well as the extent of, for want of a better word, acquiescence of the prescribing authority.”
4.12 ASIO does not currently report aggregate number and type of warrants that are issued. Certain security matters have been raised defending this position. This information is provided in a classified report to the Minister and the Leader of the Opposition.
4.13 The warrants proposed in the current Bill are more intrusive than existing warrants because they affect an individual’s personal liberty and therefore greater accountability is required. ASIO has agreed to publish the aggregate number of section 34C warrants issued. The aggregate number should show the total number of warrants sought, the total number of warrants issued for questioning and the total number issued for questioning and detainment under proposed subsection 34D(2).
4.14 While some groups consider this to be a minimum requirement, the value of scrutinising this information should not be underestimated. The public will have a greater understanding of the use of the measures in this Bill. This Committee scrutinises, on an annual basis, the administration and expenditure of ASIO. The number of section 34C warrants issued will a focus of examination.
4.15 The Australian Security Intelligence Organisation must include in its declassified Annual Report the total number of warrants issued under proposed section 34C of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Annual Report should show the total number of warrants sought, the total number of warrants issued for questioning and the total number of warrants issued for questioning and detainment.
Sunset clause and Parliamentary review
4.16 A sunset clause is a legislative instrument that places a fixed time frame on the duration of an Act. It serves the purpose of terminating an Act when it is considered that the purpose of an Act will expire and not be necessary. In addition, a sunset clause can serve as a significant accountability mechanism. A controversial piece of legislation which has a sunset clause will need to be publicly debated and the Government will need to defend its continuation. It is in the context of the latter point that a sunset clause was debated during the inquiry into the ASIO Terrorism Bill.
4.17 The views of a range of groups were sought on the merits of a sunset clause. There was wide ranging support for this proposal…
4. ASIO did note some reservations about the use of a sunset clause commenting that the “the gap in existing powers, which we are seeking to fill is not time specific”. ASIO stated:
“The sort of situations that I think are likely to lead to detention warrants being sought are September 11 type situations. It is not possible to predict when such situations might arise. For instance, you could put in place a three- to four-year sunset clause, have the act expire and have a major incident six to 12 months later. Practicalities would likely prevent the act being resuscitated quickly, for instance, if we were in the middle of an election period.”
4.20 In relation to Parliamentary review, the Attorney-General in his second reading speech introducing the Bill, indicated the Committee “will be asked to review the new powers and provide a report on their operation twelve months after their commencement”.
4.21 The inclusion of a sunset clause in the ASIO Terrorism Bill, in addition to public reporting on the number of warrants sought and granted, is the most powerful accountability mechanism that the Committee can recommend. It is simple in design but sends a confidence boosting message to the Australian public that the Australian Government will need to account and argue the case for the continuation of these powerful laws.
4.22 From a comparative perspective, a sunset provision operates in the US Patriot Act. The Committee was advised by Mr George B Lotz II, Assistant to the Secretary of Defense for Intelligence Oversight that a sunset provision acts to expire certain authorities by 31 December 2005.
4.23 The use of a sunset clause and the proposed review of the Act by this Committee in 12 months, as indicated in the Attorney-General’s second reading speech, should be linked to maximise the quality of the review. There should be a three year sunset clause. That is, at the end of three years, the Act will terminate.
4.24 This Committee should review the provisions in the Bill 24 months after the Bills commencement and not 12 months as proposed by the Attorney-General. This will ensure that the findings of the Committee’s review is a critical part of the consideration of the relevant parts of the Act shortly before they expire as set out under the provisions of the sunset clause.
4.25 It will be up to the Government of the day to argue for the continuation of proposed Part III, Division 3 of the ASIO Act which will be inserted by the Bill. The timing of the Committee’s review will ensure that the Government could, if necessary, prepare and introduce a replacement Bill when the relevant part of the Act expires.
4.26 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a sunset clause which will terminate the legislation three years from the date of commencement.
The Inspector-General of Intelligence and Security
4.27 The Inspector-General of Intelligence and Security (IGIS) has wide ranging powers of oversight and scrutiny of the Australian Intelligence Community as set out under the Inspector-General of Intelligence and Security Act 1986.
4.28 The ASIO Terrorism Bill refers to the right of a person, who is subject to a warrant, to make a complaint orally or in writing to the IGIS. The IGIS has the power to review all files relating to any cases of the agency and make determinations about compliance with relevant legislation. The concern was raised during hearings that this may not be a sufficient accountability mechanism because the work of the IGIS is considered to be ex-post facto.
Dr Greg Carne stated:
“The more practical issue then would simply be: when is the review going to take place? This is the problem with this sort of window-dressing aspect, where you can communicate with the Inspector-General, you can communicate with the Ombudsman, but all of that is ex-post facto. It is all after the event.”
4.29 The IGIS indicated that proposed section 34T of the Bill states that “this Division does not affect a function or power of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986”. The IGIS has interpreted this to mean that he “could attend these interrogations and assure myself that they were being conducted with propriety”. However, there was less clarity on what action the IGIS could take if he observed non compliance with the legislation or an impropriety occurring during the interrogation. In response to the possible actions that the IGIS could take during an interview, he stated:
“As I have said, my initial intention would be to attend those interrogations. It would also be my intention, between now and when this legislation comes into operation, to discuss with the Director-General of Security procedures that would enable me to do that.”
4.30 The IGIS indicated, in a supplementary submission, that while most inspection work is carried out ex post facto, some inspection work is carried out on current activities. The IGIS commented that conducting real time inspection work in relation to the section 34C warrants “is particularly desirable given the powers that would be conferred by the legislation and the public interest in having reassurance as to their responsible exercise”.
4.31 The IGIS indicated that he would at the start of the operation of the warrant provision seek to attend the first series of interviews. However, he considered that it may not be necessary to make legislative provision for his attendance at all interviews.
4.32 More importantly, however, was the opportunity for the IGIS to attend any interview and have sufficient warning to make that decision. The IGIS suggested that a procedure could be developed whereby he was made aware of any impending activity at the earliest possible time. The IGIS suggested that this would make it unlikely that questioning could begin before he arrived. The IGIS suggested that this process could be achieved through agreements between him and the Director-General of ASIO “along the lines of agreements we already have for the conduct of inspection activity by the Inspector-General”. Alternatively, the IGIS suggested that the notification regime could be required by the legislation.
4.33 The Inspector-General of Intelligence and Security (IGIS) performs an essential role in the oversight of the Australian Intelligence Community. Under the ASIO Terrorism Bill, persons who are the subject of warrants will be able to make complaints orally or in writing to the IGIS. However, the evidence to the inquiry suggested that much of the work of the IGIS is ex-post facto and in practice may be of little use to a person who is subject to a process that does not comply with the law or if some other impropriety occurs. This is a fair observation and therefore the powers and rights of access of the IGIS need to be clarified in the Bill.
4.34 First, the ASIO Terrorism Bill must contain a provision which ensures that as soon as the Director-General seeks the Minister’s consent to request a warrant then the IGIS must be informed immediately and provided with the details of the warrant.
4.35 Second, the IGIS must have the power to intervene immediately at any stage of an interview if the IGIS is of the view that there is non-compliance with the law or any form of impropriety has occurred. The IGIS should have the power to suspend the interview and refer these matters to the Director-General who would then have to take appropriate ameliorative action.
4.36 Both these measures should provide additional reassurance and confidence to the Australian public.
4.37 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to ensure that when the Director-General seeks the Minister’s consent to request a warrant, under proposed section 34C(1), the Director-General must immediately provide details of the warrant to the Inspector-General of Intelligence and Security.
4.38 The Inspector-General of Intelligence and Security Act 1986 be amended to provide the Inspector-General of Intelligence and Security with the power to suspend, on the basis of non-compliance with the law or an impropriety occurring, an interview being conducted under the warrant procedures in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Inspector-General of Intelligence and Security should immediately report the nature of such cases to the Committee.
4.39 During hearings, it became evident that the Bill is not clear on what opportunities a person would have for judicial review of their detention. For example, as discussed previously in this report, a person could be held incommunicado indefinitely with no apparent opportunity for judical review. The proposal was raised during hearings that a person should have the right to judicial review after 24 hours detention and after every subsequent attempt to renew the warrant. If a person is detained incommunicado and it is ASIO’s view that secrecy should be maintained then it is proposed that the court session be closed.
4.40 The Castan Centre for Human Rights Law commented that this “would alleviate some of the problems because it would guarantee some level of judicial intervention after 24 hours”.
4.41 The Federation of Community Legal Centres acknowledged that this proposal would provide ‘minor improvements’ but there are still problems that remain. It warned that it would still be the responsibility of the person to request the right to go to the Federal Court. The problem was that the types of people that could be detained might “have no experience of the court system in any way except in a very disempowered way”.
4.42 The proposal to provide persons who are the subject of a warrant with the opportunity of judicial review would provide further reassurance to the public of the accountability measures applying to the Bill. This would help to remove concerns about executive government control over the process of detention. The Committee has already made recommendations about the maximum duration of detention that should be permitted and the right to legal representation. The measure of judicial review will reinforce the accountability measures already recommended by the Committee.
4.43 The process would place a discipline on ASIO and ensure that the reason for detention was not frivolous, because at a later stage ASIO may need to defend their decision in court.
4.44 Some concerns were raised during evidence that a person may not understand their rights or opportunities for judical review. This problem is offset by the Committee’s recommendation that a person should have access to legal representation. In addition, the Committee proposes that the right to judical review after 24 hours and at every subsequent attempt to renew a warrant should be included as an item in proposed section 34E. Under proposed section 34E, the prescribed authority must explain the warrant and certain rights of the person. Under the Committee’s proposal, the PA will need to advise the person that they can seek judicial review after 24 hours of detainment.
4.45 That proposed section 34E of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a requirement that the prescribed authority must advise the person that they have the right to seek judicial review after 24 hours of detention and at every time a subsequent warrant is sought.