Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 81 (11 September 2019)

• Chapter 2
• Commentary on ministerial responses
• Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019
• Trespass on rights and liberties1

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019

Purpose	This bill seeks to amend the Australian Security Intelligence Organisation Act 1979 (the Act) to extend the operation of the Australian Security Intelligence Organisation’s questioning and detention powers in Division 3 of Part III of the Act, for a further 12 months
Portfolio	Home Affairs
Introduced	House of Representatives on 4 July 2019
Bill status	Received Royal Assent on 12 August 2019

Trespass on rights and liberties^[1]

2.2 In Scrutiny Digest 3 of 2019 the committee requested the minister's advice as to why it is considered necessary and appropriate to further extend the sunsetting of ASIO's special powers relating to terrorism offences, noting that these powers could unduly trespass on personal rights and liberties.^[2]

Minister's response^[3]

2.3 The minister advised:

The powers were recently reviewed by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) who acknowledged the ongoing terrorism threat and concluded that ASIO should continue to have a compulsory questioning power. The Australian Government accepts the findings of the PJCIS and is working towards introducing a reformed compulsory questioning framework for ASIO, accompanied by strong safeguards and oversight, as soon as possible.
The Government is developing these broader reforms in a considered, deliberate way, in close consultation with relevant stakeholders, including ASIO and the Office of the Inspector-General of Intelligence and Security.
The Government will ensure that the reformed framework keeps pace with the evolving threat environment and appropriately balances public safety with the need for strong safeguards and oversight. Particularly, an amended compulsory questioning framework must be necessary, appropriate and fit for purpose.
These powers continue to be necessary because they provide a critical means of collecting intelligence which may assist in the prevention of a terrorist attack. As a result, it is appropriate to extend the sunsetting of these special powers to ensure the powers continue to remain available while these broader reforms are developed and progressed through Parliament.
Since their introduction in 2003, the powers have been used sparingly. In this time, only 16 questioning warrants have been issued and ASIO has never requested a questioning and detention warrant. As these numbers demonstrate, ASIO is judicious in the use of these intrusive powers, and wherever possible uses the least intrusive techniques to obtain intelligence.
Extending the sunsetting of the provisions ensures the powers continue to remain available to ASIO while allowing the PJCIS sufficient time to consider the full reform package. This is consistent with the recent report into the operation, effectiveness and implications of ASIO's questioning and detention powers, where the PJCIS noted they would require at least three months to consider the reforms.
I acknowledge the Committee's comment about the extraordinary nature of these powers and advise that there are rigorous safeguards and oversight procedures in place for the use of these powers. In particular, the Inspector-General of Intelligence and Security may be present at questioning or the taking of a person into custody, a person may make a complaint to the Inspector-General of Intelligence and Security, a person may contact and seek advice from a lawyer and offences apply to officers who breach the safeguards that apply under the Australian Security Intelligence Organisation Act 1979.

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that it is appropriate to extend the sunsetting of ASIO's special powers relating to terrorism as they provide a critical means of collecting intelligence which may assist in the prevention of a terrorist attack. The committee also notes the minister's advice that these powers have been used sparingly since their introduction in 2003 and that the government is working towards introducing a reformed compulsory questioning framework for ASIO.

2.5 However, the committee reiterates its significant scrutiny concerns regarding the coercive nature of these powers and the potential impact of these powers on a number of rights and liberties. The committee also further reiterates its view that sunset clauses are important safeguards which facilitate increased parliamentary scrutiny and notes its concerns that the continued extension of the sunsetting date may create a risk that the measures that were originally introduced on the basis of being a temporary response to an emergency situation could become permanent by their continual renewal.

2.6 In light of the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on this matter.

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[1] Schedule 1, item 1, section 34ZZ. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 3-5.

[3] The minister responded to the committee's comments in a letter dated 27 August 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest