Coronavirus Economic Response Package (Deferral of Sunsetting-asio Special Powers Relating to Terrorism Offences) Determination 2020 [F2020l01134] [2020] AUPJCHR 178 (26 November 2020)

• Coronavirus Economic Response Package (Deferral of Sunsetting—ASIO Special Powers Relating to Terrorism Offences) Determination 2020 [F2020L01134]1
• Extending the operation of ASIO's compulsory questioning and detention powers
• Summary of initial assessment
• Preliminary international human rights legal advice
• Multiple rights
• Committee's initial view
• Minister's response15
• Concluding comments
• International human rights legal advice
• Multiple Rights
• Committee view

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Coronavirus Economic Response Package (Deferral of Sunsetting—ASIO Special Powers Relating to Terrorism Offences) Determination 2020 [F2020L01134]^[1]

Purpose	This instrument defers the enacted sunset of Division 3 of Part III (Special powers relating to terrorism offences) of the Australian Security Intelligence Organisation Act 1979 until 7 March 2021
Portfolio	Home Affairs
Authorising legislation	Coronavirus Economic Response Package Omnibus Act 2020
Last day to disallow	15 sitting days after tabling (tabled in the House of Representatives and the Senate on 6 October 2020). Notice of motion to disallow must be given by 30 November 2020 in the House of Representatives and the first sitting day of 2021 in the Senate[2]
Rights	Multiple rights
Status	Concluded examination

2.48 The committee requested a response from the minister in relation to the instrument in Report 12 of 2020.^[3]

Extending the operation of ASIO's compulsory questioning and detention powers

2.49 This instrument defers the enacted sunset of Division 3 of Part III (Special powers relating to terrorism offences) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) by six months, until 7 March 2021.^[4] Division 3 of the ASIO Act sets out the Australian Security Intelligence Organisation's (ASIO's) powers with respect to two types of warrants, namely compulsory questioning warrants (without detention), and compulsory questioning warrants which authorise detention for up to seven days. These powers were due to sunset on 7 September 2020.

Summary of initial assessment

Preliminary international human rights legal advice

Multiple rights

2.50 ASIO's compulsory questioning and detention warrants regime empowers ASIO to seek a warrant to either compulsorily question, or compulsorily question and detain, a person where a judge is 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 terrorism offence.^[5]

2.51 The explanatory statement notes that this instrument extends the operation of these powers as the passage of the Australian Security Intelligence Organisation Amendment Bill 2020 (ASIO 2020 bill) (which would repeal and replace Part III, Division 3) has been delayed. The extension is therefore necessary to ensure that the current law does not sunset while the Parliament considers the provisions of that bill.^[6] While it is noted that the purpose of the instrument is to give more time for the Parliament to consider the ASIO 2020 bill, in assessing the human rights compatibility of a measure, it is necessary to consider if the extension of these coercive powers is compatible with human rights.

2.52 The extension of both ASIO's compulsory questioning powers and detention powers for a further six months, engages numerous human rights. The statement of compatibility provides that the continued operation of these powers is of vital importance to the counter-terrorism efforts of ASIO.^[7] To the extent that the compulsory questioning powers could have the effect of preventing any likely and imminent terrorist acts, the extension of these powers could operate to protect the right to life.^[8] The right to life imposes an obligation on the state to protect people from being killed by others or identified risks.^[9] However, the extension of these compulsory questioning powers, and the power to detain a person for up to seven days without charge,^[10] also engages and limits numerous other human rights, including the right to liberty, freedom of movement, humane treatment in detention, privacy, fair trial, freedom of expression and the rights of persons with disability.^[11] In relation to the compulsory questioning powers (without detention), many of the human rights issues raised in relation to Division 3 of Part III of the ASIO Act are the same as those with respect to the ASIO 2020 bill, which sought to continue the compulsory questioning powers. As such, the relevant advice provided in relation to the ASIO 2020 bill in Report 7 of 2020 and Report 9 of 2020 is reiterated in relation to the extension of the compulsory questioning warrant powers by this instrument.^[12]

2.53 Extending the operation of ASIO's compulsory questioning and detention warrants, which could empower ASIO to detain a person for up to seven days,^[13] specifically engages and limits the right to liberty. The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.^[14] The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability. Accordingly, any detention must not only be lawful, it must also be reasonable, necessary and proportionate in all of the circumstances. The right to liberty may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

2.54 In order to form a concluded view regarding the extended operation of ASIO's compulsory questioning and detention warrants powers, further information is required as to:

(a) what evidence demonstrates a pressing and substantial concern sought to be addressed by maintaining ASIO's questioning and detention warrant power, noting that the government has introduced primary legislation seeking to repeal the detention powers, and that the power itself has never been used;

(b) how maintaining ASIO's questioning and detention warrant powers is rationally connected with (that is, effective to achieve) any such pressing and substantial concern; and

(c) whether the extension of ASIO's detention warrant powers is a proportionate means by which to address a pressing and substantial concern; and whether there are any less rights restrictive measures (such as the use of questioning warrants without detention) to achieve the stated objective.

Committee's initial view

2.55 The committee noted that to the extent that the compulsory questioning powers could have the effect of preventing any likely and imminent terrorist acts, the extension of these powers could operate to protect the right to life. However, the extension of these powers also engages and limits numerous human rights. The committee recently assessed the human rights compatibility of compulsory questioning warrants in Report 9 of 2020, when it considered the ASIO 2020 bill. As such, the committee referred the minister and parliamentarians to the relevant parts of that report in relation to the assessment of the human rights compatibility of the extension of the questioning warrant powers.

2.56 In relation to the questioning and detention warrant powers, the committee noted the legal advice that the power for ASIO to detain a person for up to seven days limits the right to liberty. While the committee appreciated that the COVID-19 pandemic has resulted in delays to the parliamentary schedule, this committee's role is to assess all legislation for compatibility for human rights. As such, the extension of the questioning and detention powers needs to be demonstrated to be compatible with the right to liberty. The committee noted that the right to liberty can be permissibly limited if it is shown to be reasonable, necessary and proportionate.

2.57 In order to form a concluded view of the human rights implications of this instrument, the committee sought the minister's advice as to the matters set out at paragraph [2.52].

2.58 The full initial analysis is set out in Report 12 of 2020.

Minister's response^[15]

2.59 The minister advised:

The Australian Security Intelligence Organisation Amendment Bill (the Bill) was introduced into Parliament on 13 May 2020 and referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for review. The Bill repeals the Australian Security Intelligence Organisation’s (ASIO) existing questioning, and questioning and detention, warrant framework in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and introduces a reformed compulsory questioning and apprehension framework. The proposed framework in the Bill remains subject to consideration by the PJCIS.
The Bill implements the Government’s response to recommendations of the PJCIS in its Inquiry Report on ASIO’s questioning and detention powers of 10 May 2018. In its report, the PJCIS recommended that ASIO retain a compulsory questioning power. Consistent with this recommendation, the Determination will ensure that ASIO’s compulsory questioning power is retained while the PJCIS and the Parliament consider the reforms to ASIO’s compulsory questioning powers brought forward in the Bill. The Government intends to pass the Bill as soon as possible after carefully considering any recommendations of the PJCIS’s current review of the Bill.
In addition, allowing ASIO’s detention power to sunset before the new questioning framework contained in the Bill is implemented would risk a capability gap for ASIO. The ability to detain a person under a questioning and detention warrant is potentially necessary to ensure that ASIO’s questioning and investigation is not prejudiced where there are reasonable grounds on which to believe that the person may not comply with a request to appear, may alert people involved in a terrorism offence to the investigation, or may destroy records or other things that the person may be requested to produce. This power is necessary to ensure the timely gathering of information relevant to investigating a terrorism offence. If a person is allowed to disrupt questioning this could jeopardise the effectiveness of the information gathering process, thereby undermining an investigation into a terrorism offence. This issue has been addressed by the addition of an apprehension power contained in the Bill, but could not be addressed if only ASIO’s questioning, but not its questioning and detention, powers were extended pending passage of the Bill.
The Government’s aim remains to pass the Bill as soon as possible, at which time the extension of the existing powers will cease to have effect, and the new framework contained in the Bill will come into force.

Concluding comments

International human rights legal advice

Multiple Rights

2.60 In relation to the need for extending the sunsetting date of ASIO's powers, the minister advised that the instrument will ensure that ASIO’s compulsory questioning power is retained (as was recommended by the Parliamentary Joint Committee on Intelligence and Security (PJCIS)), while the PJCIS and the Parliament consider the reforms to ASIO’s compulsory questioning powers in the ASIO 2020 bill. The minister stated that allowing ASIO’s detention power to sunset before the new questioning framework contained in the bill is implemented would risk a capability gap for ASIO. He stated that the ability to detain a person under a questioning and detention warrant is potentially necessary to ensure that ASIO’s questioning and investigation is not prejudiced where there are reasonable grounds on which to believe that the person may not comply with a request to appear, may alert people involved in a terrorism offence to the investigation, or may destroy records or other things that the person may be requested to produce. The minister advised that this power is necessary to ensure the timely gathering of information relevant to investigating a terrorism offence. The response explained that this issue has been addressed by the addition of an apprehension power contained in the ASIO 2020 bill, but could not be addressed if only ASIO’s questioning, but not its questioning and detention, powers were extended pending passage of the bill.

2.61 As set out in the initial analysis, while the purpose of the instrument may be to give more time for the Parliament to consider the ASIO 2020 bill, in assessing the human rights compatibility of the measure, it is necessary to consider if the extension of these coercive powers is compatible with human rights. As such, it is necessary to consider whether the extension by six months of the questioning and detention powers is compatible with multiple human rights, including the right to liberty. In assessing any limitation on such rights, it is necessary to consider whether the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

2.62 In relation to the objective of the measure, and whether it is one that is necessary and seeks to address an issue that is pressing and substantial enough to warrant limiting the right, as noted in the initial analysis, ASIO has not drawn on its power to issue a questioning warrant since 2010, and has never utilised the power to issue a questioning and detention warrant.^[16] The minister has not provided any information indicating that this is anticipated to change in the near future (for example, that there is evidence to indicate that there will be any need to rely in future on the questioning and detention powers, including before the passage of the ASIO 2020 bill). Consequently, it remains unclear as to whether there is a pressing and substantial concern which warrants extending the operation of ASIO's detention power.

2.63 The minister has stated that the ASIO 2020 bill addresses a capability gap by introducing an apprehension power to Division 3 Part III, and that this could not be addressed if ASIO’s detention warrant powers were permitted to sunset. This suggests that there would be no such power in Division 3 Part III if the detention warrant powers were allowed to sunset. The ASIO Act does, however, establish other mechanisms by which to enforce compliance with a questioning warrant, and to prevent persons from disturbing the questioning process, which apply to both the questioning warrant (without detention) and the questioning and detention warrant, and would therefore still be available to ASIO even if the detention warrant power alone was allowed to sunset.^[17] Subdivisions D and E provide that failure to attend compulsory questioning pursuant to a warrant is a serious criminal offence punishable by five years' imprisonment,^[18] as is destroying or damaging a relevant record or thing,^[19] or disclosing information related to the warrant to another person other than where permitted.^[20] A police officer may take a person into custody and bring them before a prescribed authority for questioning under either type of warrant if the person fails to appear as required.^[21] Further, when a person is appearing before a prescribed authority for questioning under either type of warrant, the authority may direct that the person be detained, where they are satisfied that there are reasonable grounds for believing that if the person is not detained they may alert a person involved in a terrorism offence; may not continue to appear, or may destroy or damage a record or thing.^[22] As such, it is not clear why it was necessary to extend both type of warrants, including that enabling the detention of a person for up to seven days, rather than extending only the questioning warrant powers (without detention) and existing non-compliance powers.^[23] As such, there would appear to be existing less rights restrictive alternative mechanisms by which to achieve the stated objective of ensuring that any questioning process is not frustrated due to non-compliance.

2.64 The extension of ASIO's detention warrant power engages and limits multiple human rights, including the right to liberty. In order for a limitation on human rights to be permissible under international human rights law (and thus compatible with human rights), it must pursue a legitimate objective (one which is directed towards a matter of pressing and substantial concern), be rationally connected to that objective, and constitute a proportionate means of achieving that objective. It remains unclear that there is a pressing and substantial concern which would warrant the extension of ASIO's detention warrant power. Further, as the questioning without detention powers could be extended (alongside existing mechanisms for addressing non-compliance with the warrant), without extending the detention powers, there appears to be less rights restrictive mechanisms available to achieve the objectives of the measure. As such, the extension of the operation of ASIO's detention warrant powers for a further six months, thereby enabling ASIO to detain a person for up to seven days for questioning, does not appear to be compatible with multiple human rights, in particular, the right to liberty.

Committee view

2.65 The committee thanks the minister for this response. The committee notes that the instrument extends the operation of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, by six months. The committee notes that this has the effect of extending the operation of ASIO's powers with respect to compulsory questioning warrants and compulsory questioning and detention warrants. The committee notes that this extension is temporary, pending the passage of the ASIO 2020 bill which is currently before Parliament.

2.66 The committee reiterates, to the extent that the compulsory questioning powers could have the effect of preventing any likely and imminent terrorist acts, the extension of these powers could operate to protect the right to life.

2.67 The committee notes that the extension of these powers also engages and limits numerous human rights. The committee recently assessed the human rights compatibility of compulsory questioning warrants in Report 9 of 2020, when it considered the ASIO 2020 bill. As such, the committee refers the minister and parliamentarians to the relevant parts of that report in relation to the assessment of the human rights compatibility of the extension of the questioning warrant powers.

2.68 In relation to the questioning and detention warrant powers, the committee notes that the power for ASIO to detain a person for up to seven days limits the right to liberty. The committee notes that the right to liberty can be permissibly limited if it is shown to be reasonable, necessary and proportionate. It is important to reiterate that this preventative regime – enacted essentially to prevent acts of terrorism – has a different purpose from pre-trial detention regime which is imposed solely to facilitate prosecution and conviction. The committee notes the minister's advice that allowing ASIO’s detention power to sunset before the new questioning framework contained in the ASIO 2020 bill is implemented would risk a capability gap for ASIO, and that the ability to detain a person under a questioning and detention warrant is necessary to ensure that ASIO’s questioning and investigation powers are not prejudiced. The committee notes the minister's advice that this issue has been addressed by the addition of an apprehension power contained in the bill, but could not be addressed if only ASIO’s questioning, but not its questioning and detention, powers were extended pending passage of the bill. However, the committee also notes the legal advice that the ASIO Act has existing mechanisms by which to enforce compliance with a questioning warrant, and to prevent persons from disturbing the questioning process, and as it would be possible to extend the questioning without detention powers (alongside these existing mechanisms for addressing non-compliance), there appear to be less rights restrictive mechanisms available rather than extending the detention powers. The committee notes the advice that the temporary extension of the operation of ASIO's detention warrant powers for a further six months, thereby enabling ASIO to detain a person for up to seven days for questioning, does not appear to be compatible with multiple human rights, including the right to liberty.

2.69 The committee acknowledges these human rights concerns, although it also notes that extending these powers is required by reason that the passage of the ASIO 2020 bill (which would repeal and replace Part III, Division 3) has been delayed. Accordingly, the committee recognises that the extension of these measures is intended to put in place only temporary powers with respect to the compulsory questioning and detention framework until such time as the ASIO 2020 bill is presumably passed by the Parliament.

2.70 The committee draws these human rights concerns to the attention of the minister and the Parliament.

Senator the Hon Sarah Henderson

Chair

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[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Coronavirus Economic Response Package (Deferral of Sunsetting—ASIO Special Powers Relating to Terrorism Offences) Determination 2020 [F2020L01134], Report 14 of 2020; [2020] AUPJCHR 178.

[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

[3] Parliamentary Joint Committee on Human Rights, Report 12 of 2020 (15 October 2020), pp. 14-19.

[4] Pursuant to Schedule 16, item 1 of the Coronavirus Economic Response Package Omnibus Act 2020.

[5] Australian Security Intelligence Organisation Act 1979, sections 34E and 34G.

[6] Explanatory statement, pp. 1–2.

[7] Statement of compatibility, p. 4.

[8] Although it is noted that ASIO has never used the power to issue a questioning and detention warrant and last issued a questioning warrant in 2010. See Attorney-General's Department, submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (March 2018), Submission 7, pp. 14 and 55.

[9] International Covenant on Civil and Political Rights, article 6(1) and Second Optional Protocol to the International Covenant on Civil and Political Rights, article 1.

[10] Australian Security Intelligence Organisation Act 1979, section 34S.

[11] International Covenant on Civil and Political Rights, articles 9, 10, 12, 14, 17, 19 and Convention on the Rights of Persons with Disabilities.

[12] The preliminary international human rights legal advice provided in relation to this bill is set out in Parliamentary Joint Committee on Human Rights, Report 7 of 2020 (17 June 2020), pp. 32–69. The concluding international human rights legal advice provided in relation to this bill is set out in Parliamentary Joint Committee on Human Rights, Report 9 of 2020 (18 August 2020), pp. 1–115. The recent international human rights legal advice provided with respect to the Australian Security Intelligence Organisation Bill 2020 did not consider the particular human rights implications of ASIO's compulsory questioning and detention warrant powers, as these powers are proposed to be repealed by that bill.

[13] Australian Security Intelligence Organisation Act 1979, section 34S.

[14] International Covenant on Civil and Political Rights, article 9.

[15] The minister's response to the committee's inquiries was received on 3 November 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[16] See Attorney-General's Department, submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (March 2018), Submission 7, pp. 14 and 55.

[17] In Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, Subdivision B deals with questioning warrants; Subdivision C deals with questioning and detention warrants; Subdivision D sets out certain obligations and protections relating to both type of warrants; and Subdivision E sets out other provisions applicable to both type of warrants.

[18] Australian Security Intelligence Organisation Act 1979, subsection 34L(1).

[19] Australian Security Intelligence Organisation Act 1979, subsection 34L(10).

[20] Australian Security Intelligence Organisation Act 1979, section 34ZS.

[21] Australian Security Intelligence Organisation Act 1979, subsection 34K(7).

[22] Australian Security Intelligence Organisation Act 1979, section 34K.

[23] Noting that it appears it would have been possible to extend Subdivisions A, B, D and E of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, but not Division C (which sets out the questioning and detention warrant powers).