SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
Australian Security Intelligence Organisation Amendment Bill 2020
10 DECEMBER 2020
Labor supports the Australian Security Intelligence Organisation Amendment Bill 2020. We welcome the long-overdue repeal of the questioning and detention warrant power, a power which has never been used and which, since 2016, the Parliamentary Joint Committee on Intelligence and Security and multiple independent national security legislation monitors have repeatedly told the government to repeal. And we agree that, in extraordinary circumstances, ASIO should be able to use its compulsory questioning power for the purpose of gathering intelligence in relation to politically motivated violence, espionage and foreign interference.
The truth is that this bill is long overdue. In March 2018 the intelligence and security committee recommended that, among other things, this government (1) repeal the questioning and detention warrant power in division 3 of part III of the ASIO Act and (2) develop legislation for a revised compulsory questioning framework and introduce it to the parliament by the end of 2018. Those recommendations were unanimous. It took over one year for the government to even acknowledge the committee's recommendations and it took over two years for the government to introduce the Australian Security Intelligence Organisation Amendment Bill, which implements those two key recommendations.
The questioning and detention warrant power is a power that has never been used. Since 2016 the intelligence committee and multiple independent national security legislation monitors have repeatedly told the government to repeal it. This bill would finally do that. It is no small thing for the current government to repeal a coercive power. I'm not sure it has ever done so. Consistent with the intelligence and security committee's March 2018 recommendations, this bill would also introduce a revised compulsory questioning warrant power.
As set out in the report of the Parliamentary Joint Committee on Intelligence and Security, all members of the committee, Labor and Liberal, supported the bill, subject to a number of amendments being made. The committee made seven unanimous recommendations in total. The government has circulated amendments that would implement six of them. The government has said that it will not implement recommendation 3 of the committee's report, which reads as follows:
The Committee recommends that the Australian Security Intelligence Organisation Amendment Bill 2020 and the Intelligence Services Act 2001 be amended to allow the Committee to request a written or oral briefing on any matter in relation to any questioning warrant as reported in the Annual Report prepared by the Director-General of ASIO.
As a matter of practice, ASIO already provides the intelligence and security committee with regular briefings and some of those briefings might touch on operational matters. As the committee's report makes clear, recommendation 3 is not calling on the government to amend the Intelligence Services Act to allow the intelligence and security committee to inquire into ongoing operational matters. The purpose of the amendment is simply to make clear that the committee can request a briefing from ASIO in relation to a questioning warrant that has already been issued and which has been reported in the annual report prepared by the director-general of ASIO. In other words, the amendment would ensure that the committee is able to satisfy itself that these extraordinary powers are being exercised appropriately.
We in the Labor Party do not think recommendation 3 is controversial. Clearly, the six Liberal members, the majority of the intelligence and security committee, do not think it is controversial either. We do, however, acknowledge that, since the committee tabled its report into the ASIO amendment bill, the government has released the unclassified version of the report of the comprehensive review of the legal framework of the national intelligence community by Dennis Richardson. It has also released its response to that report.
Among other things, Dennis Richardson recommended that the remit of the intelligence and security committee should not be expanded to include direct oversight of operational activities whether past or current. The government has agreed with that recommendation. Labor is still in the process of working through Dennis Richardson's 1,300-page report, including the sections on the role of the intelligence and security committee. For that reason, we will not insist on the implementation of recommendation 3 of the committee's report at this stage. However, we will have more to say on this issue after we have had time to complete our review.
As to the other committee recommendations, the government has introduced amendments to implement the other recommendations made by the intelligence and security committee. Those amendments will improve the safeguards contained in the bill, particularly in relation to minors, and ensure that the committee will have a further opportunity to review the new questioning warrant power in three years. As a result of the amendments circulated by the government the eligibility criteria for prescribed authorities will be tightened; the Attorney General will be required to take into account the best interests of the child as a primary consideration in deciding whether to issue a minor questioning warrant; and it will be put beyond any doubt that an ASIO officer who makes a public interest disclosure in accordance with the Public Interest Disclosure Act could not be prosecuted for making an unauthorised disclosure of questioning warrant information.
The committee has also recommended, and the government has agreed, that the bill be amended to provide for a more rational sunset provision. Instead of the 10-year sunset provision originally proposed by the government, which can hardly be described as a sunset provision at all, the new questioning warrant framework would instead cease to have effect in five years. The inclusion of a rational sunset provision was important to all members of the intelligence and security committee, Labor and Liberal, as was the inclusion of a provision that would allow the committee to commence the review into the new questioning power within three years. That is because the questioning warrant power is an extraordinary power. We must not lose sight of that. It is an extraordinary power now and it has always been understood as an extraordinary power.
I want to say something about what we have called 'the Howard safeguard' that appears in the current legislation. This is the one significant point of difference between Labor and Liberal members of the intelligence and security committee. Unlike the Liberal members of the committee, Labor members of the committee did not support the repeal of the key safeguard that was created by the Howard government in 2003, which is the requirement that questioning warrants be issued by an independent issuing authority, who is a judge or a retired judge.
The government has advanced no persuasive justification for removing the Howard safeguard. Most bizarrely, the government has argued that the repeal of the Howard safeguard would somehow constitute a desirable manifestation of the doctrine of ministerial responsibility. The Minister for Home Affairs, who is with us in the chamber, is not exactly known as a proponent of that particular doctrine. This is, after all, the same minister who disclaimed any responsibility for a $423 million contract that his department awarded to a company headquartered in a beach shack on Kangaroo Island.
Even putting to one side the minister's hypocrisy, the suggestion that removing the Howard safeguard would constitute a desirable manifestation of the doctrine of ministerial responsibility betrays a profound ignorance about the role that independent issuing authorities play in Australia. Such authorities are tasked not with making judgements about questions of policy or national interest but, rather, with assessing the legality of decisions to authorise the use of coercive powers by government agencies. The government has also overlooked the fact that, by necessity, ASIO operates in secret. The usual rules of public accountability and ministerial responsibility to the parliament do not and cannot apply.
Labor's approach to this bill, as with all national security bills, has been guided by two principles: a commitment to protecting the safety and security of Australians and Australia, on the one hand, and an equally powerful commitment to protecting the democratic rights of and liberties of Australians, on the other. The Howard safeguard, which this government is removing, is consistent with both of those principles. Labor understands that having clearly defined powers and robust safeguards, as well as being protective of civil liberties and democratic freedoms, plays a critical role in building and maintaining public confidence in ASIO. Without that confidence, ASIO's ability to effectively gather intelligence would be severely compromised.
The Howard government created the Howard safeguard for a reason. The questioning warrant power is unlike any other power conferred on ASIO. When the bill containing the questioning warrant powers was first introduced to parliament in 2002, the then Attorney-General for the Howard government, Daryl Williams QC, MP, described the bill as 'extraordinary' and said:
… I hope the powers under the bill never have to be exercised.
He also said:
… the bill is about intelligence gathering in extraordinary circumstances …
The Inspector-General of Intelligence and Security has described the power as 'serious and unusual'. As the Department of Home Affairs acknowledged on 10 July 2020, the compulsory questioning power under this bill could, for example, theoretically be used to apprehend and question an Australian who is doing business with a foreign company or a journalist. Moreover, under a questioning warrant, a person enjoys no privilege against self-incrimination and must not fail to give any information requested under the warrant. A person may be required to surrender travel documents, may be subject to strip searches and may be prosecuted and imprisoned for up to five years for disclosing the mere existence of a questioning warrant.
The Howard safeguard is good law, and Labor will be moving an amendment to reinstate it. And I'd like to put this on the record: if that amendment fails, Labor will reinstate the Howard safeguard if we are successful at the next election.
I'll turn now to some of the other matters that came up in the committee's report and that the government is proceeding with amendments for, first being the prescribed authority. Under both the current and proposed new questioning warrant power, questioning by ASIO must be conducted in the presence of a prescribed authority. That is another fundamental safeguard. When the Howard government sought to introduce the questioning warrant power in 2003, the Australian parliament convinced the government to amend the bill to ensure that only eminent and highly qualified individuals could be appointed as prescribed authorities.
As a result of those amendments, a prescribed authority must be a former judge of a superior court, a current Supreme Court or district court judge or a president or deputy president of the Administrative Appeals Tribunal. By contrast, in the form in which it was introduced to the parliament by the government the bill would have allowed the Attorney-General to appoint individuals who could not possibly be qualified to perform the role of prescribed authority. For example, the Attorney-General could appoint a conveyancing solicitor or a banking lawyer as prescribed authorities provided they had 10 years experience in a law firm. The government justified this departure from the existing prescribed authority model on the basis that the model has presented difficulties due to a limited pool of potential applicants. Given the very high number of serving and retired judges across Australia, which runs to several hundred men and women, and given that the current questioning warrant power has not been used in 10 years, that justification is very weak indeed.
Labor welcomes the government's amendment to tighten the eligibility criteria for prescribed authorities. That amendment will implement a recommendation by the intelligence and security committee that, in addition to having engaged in legal practice for at least 10 years, the legal practitioner must be a Queen's Counsel or a Senior Counsel in order to be eligible for appointment as a prescribed authority.
Turning to some other concerns, Labor have a number of other concerns with the revised questioning warrant framework that in our view require particularly close examination when the intelligence and security committee reviews the legislation in three years time. Those concerns are set out in the additional comments by Labor members of the intelligence and security committee which form part of the report on this bill and so, with one exception, I won't go through them now.
The one outstanding concern that I wish to mention relates to children. This parliament must be vigilant in ensuring that the safeguards designed to protect children in this bill, and in any bill, function as intended. While in its amended form Labor are generally satisfied that the bill includes sufficient safeguards to protect children, we do think the government should give further consideration to the introduction of an independent child advocate into the questioning warrant framework. Certainly that is a matter that the intelligence and security committee will look at closely when it reviews the revised questioning warrant framework in 2023.
There's one other aspect of this bill which I wish to deal with which is something apart from questioning warrants, and that is the internal authorisation of tracking devices. In addition to a revised questioning warrant framework, the bill would enable ASIO to use tracking devices with internal authorisations rather than requiring a warrant from the Attorney-General. This is significant because all of the other invasions of privacy that ASIO is able to undertake by authorisation of law do require a warrant from the Attorney-General. This marks a break with that arrangement. The government's primary justification for this change is that law enforcement agencies do not require a warrant to exercise similar powers and so ASIO should not require a warrant either. That is not so much a justification as it is an observation from which nothing follows, and it's an observation that ignores the fundamental distinction between intelligence agencies and law enforcement agencies. That, of course, is a fundamental distinction, which Dennis Richardson reaffirms in the recently released report, saying that that distinction, a distinction that forms part of the framework established after the report by Justice Hope more than 40 years ago, remains as important a distinction today as it was then.
Ultimately, having regard to the robustness of the oversight provided by the Inspector-General of Intelligence and Security and the operational benefits to ASIO, Labor was persuaded that ASIO should be able to use tracking devices with internal authorisation. But I would like to make it clear that, despite agreeing to these amendments, Labor, like Dennis Richardson, but apparently unlike the government, does recognise that there is a fundamental distinction between the role of an intelligence agency and the role of a law enforcement agency.
I'd like to conclude by making it clear that, regardless of whether our amendment to reinstate the Howard safeguard succeeds, Labor expects that the Attorney-General will use the new questioning warrant power sparingly, prudently and only in the most extraordinary circumstances. As well as having serious implications for the rights and liberties of the subject of the warrant, the use of the questioning warrant power to gather intelligence in relation to foreign interference and espionage could in some circumstances provoke an international response, which could have broad and serious implications, including for Australian nationals living or travelling overseas. I move:
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House:
- Labor's approach to this bill has been guided by a commitment to protect the safety and security of Australians and Australia, on the one hand, and an equally powerful commitment to protect the democratic rights of and liberties of Australians, on the other;
- the bill would remove one of the key existing safeguards that was created by the Howard Government when the questioning warrant power was first introduced in 2003; and
- under the Howard Safeguard, a questioning warrant must be issued by an independent issuing authority with the consent of the Attorney-General; and
- calls on the Government to amend the bill to re-instate the Howard Safeguard."