Inquiry into questioning and
detention warrants, control
orders and preventative
detention orders
Mr Bret Walker SC, Independent National
Security Legislation Monitor
10 September 2012
GPO Box 1989, Canberra
ACT 2601, DX 5719 Canberra
19 Torrens St Braddon ACT 2612
Telephone +61 2 6246 3788
Facsimile +61 2 6248 0639
Law Council of Australia Limited
ABN 85 005 260 622
www.lawcouncil.asn.au
Table of Contents
Acknowledgement ...........................................................................................................3
Executive Summary .........................................................................................................4
Summary of the Law Council’s Responses to the Monitor’s Questions on questioning
warrants and questioning and detention warrants ..............................................................5
Summary of the Law Council’s response to the Monitor’s questions on preventative
detention and control orders ..............................................................................................7
Introduction ......................................................................................................................9
Questions relating to questioning, and questioning and detention warrants ...........11
Outline of the Questioning and Detention Regime in Part III Division 3 of the ASIO Act ...11
Law Council’s General Concerns .....................................................................................13
Question 7: Is the last resort requirement for a questioning warrant under the ASIO
Act too demanding? .........................................................................................................15
Question 8: Are the time limits (eg. 7 days detention for 24 hours questioning)
applicable to questioning warrants too long, too short or about right? ..............................16
Question 9: Are the time limits for questioning warrants where interpreters have been
used commensurate with the limits applying otherwise? ..................................................18
Question 10: Are there sufficient safeguards including judicial review in relation to the
surrender or cancellation of passports, in connection with questioning warrants? ............21
Question 11: Is the 5 years imprisonment for failing to answer questions truthfully
under a questioning warrant appropriate and comparable to penalties for similar
offences? .........................................................................................................................24
Question 12: Is the abrogation of privilege against self-incrimination under a
questioning warrant sufficiently balanced by the use immunity?.......................................25
Question 13: Do the conditions permitting use of lethal force in enforcing a warrant
sufficiently clearly require reasonable apprehension of danger to life or limb? .................26
Question 14: Are the three several conditions for issuing a questioning and detention
warrant stringent enough? ...............................................................................................27
Question 15: Should the risk of non-appearance as a condition for issuing a
questioning and detention warrant require assessment by a judicial officer?....................29
Question 16: Does the possible resort either to a questioning and detention warrant or
to arrest of the same person for the same circumstances give an inappropriate
discretion to officers of the executive? .............................................................................30
Question 17: Should the issuing authority, being a judicial officer, rather than the
Attorney-General, or as well as the Attorney-General, determine the existence of a
condition for the issue of a questioning and detention warrant? .......................................31
Question 18: Should the offence of failing to produce records or things under a
warrant explicitly extend to deliberate destruction? ..........................................................31
Question 19: Is the disparity between length of imprisonment for offences against
security obligations in relation to questioning warrants and for offences of deliberate
contravention of safeguards in relation to questioning warrants appropriate? ..................32
Question 20: Is the degree and nature of permitted contact by a person being
questioned under a warrant sufficient?.............................................................................33
Question 21: Should questioning and detention warrants remain available at all? ...........35
2012 09 10 S questioning and detention warrants Final
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Preventative detention and control orders ..................................................................35
Outline of Preventative Detention Orders and Control Orders available under
Divisions 104 and 105 of the Criminal Code.....................................................................35
Control orders ...........................................................................................................36
Law Council’s General Concerns .....................................................................................38
Question 41: Should anything be done about doubtful aspects of the constitutional
validity of control orders and preventative detention orders under the Criminal Code? ....40
Question 42: Do international comparators support or oppose the effectiveness and
appropriateness of control orders and preventative detention orders? .............................40
UK Review of Counter-Terrorism Powers .................................................................40
The Introduction of the Terrorism Prevention and Investigation Measures ................42
Question 43: Does non-use of control orders and preventative detention orders
suggest they are not necessary? .....................................................................................43
Question 44: Should control orders and preventative detention orders be more readily
available? ........................................................................................................................44
Question 45: Should control orders and preventative detention orders require a
relevant prior conviction and unsatisfactory rehabilitation?...............................................45
Conclusion .....................................................................................................................47
Attachment A:
Profile of the Law Council of Australia ............................................50
Acknowledgement
The Law Council thanks the Law Council’s National Criminal Law Liaison Committee for
its assistance in the preparation of this submission:
2012 09 10 S questioning and detention warrants Final
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Executive Summary
1.
The Law Council of Australia is pleased to provide the following comments in
response to the inquiry of the Independent National Security Legislation Monitor (the
Monitor). The Law Council welcomes the focus of the Monitor’s inquiry on the
questioning and detention powers of the Australian Security Intelligence
Organisation (ASIO) contained in Part III Division 3 of the Australian Security and
Intelligence Organisation Act 1979 (Cth) (the ASIO Act) and the control order and
preventative detention order regime contained in Divisions 104 and 105 of the
Criminal Code Act 1995 (Cth) (the Criminal Code). These provisions raise serious
rule of law and human rights concerns.
2.
When responding to the Monitor’s particular questions in relation to these
provisions, the Law Council reiterates its general concerns and recommendations
which are outlined in detail in its Anti-Terrorism Reform Project, a copy of which has
been provided to the Monitor. In particular, the Law Council recommends that:
•
The questioning and detention powers contained in Part III Division 3 of the
ASIO Act be repealed and replaced with a compulsory questioning regime that
incorporates a level of independent judicial oversight, accords with other
recognised criminal intelligence and investigation procedures (for example, the
compulsory questioning regime of the Australian Crime Commission (ACC)),
and contains the following features: questioning should be limited to a defined
period of four hours with a four hour extension; any further extension beyond
this should require approval from the judicial authority issuing the warrant for
questioning; and a person being questioned should be entitled to legal
representation during the process.
•
The control order and preventative detention order regimes in Divisions 104
and 105 of the Criminal Code should be repealed. If these provisions are to
remain, they should be amended to include greater safeguards and limitations
on the use of these powers, such as the introduction of a prescribed maximum
period for which a person can be held under successive preventative
detention orders in Division 105; and the ability to access full judicial review of
a decision to exercise these powers under the Administrative Decisions
(Judicial Review) Act 1977 (ADJR Act).
2012 09 10 S questioning and detention warrants Final
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Summary of the Law Council’s Responses to the Monitor’s
Questions on questioning warrants and questioning and
detention warrants
• Is the last resort requirement for a questioning warrant under the ASIO Act too
demanding?
No, the Law Council does not consider the “last resort” requirement for a
questioning warrant under Part III Division 3 of the ASIO Act to be too demanding.
To the contrary, this requirement is fundamental to the continued justification of
these extraordinary and coercive questioning powers.
• Are the time limits (eg. 7 days detention for 24 hours questioning) applicable to
questioning warrants too long, too short or about right?
The maximum time limits for detention and questioning under a warrant obtained
under Part III Division 3 of the ASIO Act are too long, and should be replaced with a
compulsory questioning regime that limits questioning to a defined period (such as
four hours with a four hour extension) and permits further extensions only following
consideration by a judicial authority.
• Are the time limits for questioning warrants where interpreters have been used
commensurate with the limits applying otherwise?
No, the current time limits (up to 48 hours) that apply to questioning a person under
a Part III Division 3 warrant where an interpreter is present are not commensurate
with the limits applying otherwise. The Law Council supports the suggestion by the
Monitor that any permissible extensions of time should be limited to those which are
reasonably attributable to the use of a foreign language during questioning. 1
• Are there sufficient safeguards including judicial review in relation to the
surrender or cancellation of passports, in connection with questioning warrants?
No, there are currently insufficient safeguards in relation to the surrender or
cancellation of passports in connection with questioning warrants. The Law Council
recommends that the ACC model be considered if it can be demonstrated that it is
necessary for the ASIO Act to include provisions for the surrender of passports or
for the restriction of overseas travel of a person subject to a Part III Division 3
warrant. Alternatively, the Law Council suggests that a mechanism to enable merits
review of decisions under sections 34W to 34Z be introduced into the ASIO Act.
• Is the 5 years imprisonment for failing to answer questions truthfully under a
questioning warrant appropriate and comparable to penalties for similar
offences?
While the penalties in the ASIO Act for failing to answer questions truthfully under a
questioning warrant appear comparable to some other similar offences, the Law
Council supports further consideration of whether the maximum penalty of five years
imprisonment is appropriate.
• Is the abrogation of privilege against self-incrimination under a questioning
warrant sufficiently balanced by the use immunity?
1
Bret Walker SC, Independent National Security Legislation Monitor Annual Report, 16 December 2011, pp.
31-32. Available from http://www.dpmc.gov.au/inslm/docs/INSLM_Annual_Report_20111216.pdf
2012 09 10 S questioning and detention warrants Final
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No, the abrogation of the privilege against self-incrimination is not sufficiently
balanced by the limited protections provided by the use immunity provision in
subsection 34L(9) of the ASIO Act. The Law Council recommends that section 34L
should be amended to make it clear that evidence obtained directly or indirectly from
a warrant issued under Part III Division 3 cannot be used to prove that the person
has committed a criminal offence.
• Do the conditions permitting use of lethal force in enforcing a warrant sufficiently
clearly require reasonable apprehension of danger to life or limb?
The Law Council is concerned by the provisions of the ASIO Act that authorise the
use of lethal force in certain circumstances to give effect to Part III Division 3
warrants. If these provisions can be shown to be necessary, the Law Council
supports efforts to clarify that lethal force should only be used in circumstances
where there is a reasonable apprehension of imminent risk of death or serious injury
to another person.
• Are the three several conditions for issue a questioning and detention warrant
stringent enough?
No, the Law Council does not consider the three several conditions relating to the
Minister’s consent to the issue of a questioning and detention warrant 2 to be
sufficiently stringent.
• Should the risk of non-appearance as a condition for issuing a questioning and
detention warrant require assessment by a judicial officer?
If a questioning and detention warrant regime is to be maintained, the Law Council
supports efforts to ensure that the conditions that must be satisfied before issuing
such warrants are appropriately stringent, including consideration of requiring the
risk of non-appearance to be assessed by a judicial officer.
• Does the possible resort either to a questioning and detention warrant or to arrest
for the same person for the same circumstances give an inappropriate discretion
to officers of the executive?
Yes, the Law Council is of the view that the Director-General of ASIO’s power under
Part III Division 3 to request a questioning and detention warrant and the availability
of police powers to arrest and detain the same person for the same circumstances
provide an inappropriate discretion to the officers of the executive.
• Should the issuing authority, being a judicial officer, rather than the AttorneyGeneral, or as well as the Attorney-General, determine the existence of a
condition for the issue of a questioning and detention warrant?
Yes, the Law Council supports authorisation and oversight of the use of questioning
and detention powers by a judicial officer.
• Should the offence of failing to produce records or things under a warrant
explicitly extend to deliberate destruction?
Yes, the Law Council supports the modification of the existing offence in section 34L
of the ASIO Act relating to the failure to produce things or records under a warrant,
2
Australian Security and Intelligence Organisation Act 1979 (Cth) (the ASIO Act) s34F(4).
2012 09 10 S questioning and detention warrants Final
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to include an offence of intentionally destroying or damaging material requested to
be produced under a Part III Division 3 warrant.
• Is the disparity between length of imprisonment for offences against secrecy
obligations in relation to questioning warrants and for offences of deliberate
contravention of safeguards in relation to questioning warrants appropriate?
No, consideration should be given to reducing the maximum penalty imposed for
contravention of the secrecy provisions in section 34ZS of the ASIO Act to more
closely align with the penalties imposed in relation to the deliberate contravention of
the limited safeguards contained in Part III Division 3.
• Is the degree and nature of permitted contact by a person being questioned
under a warrant sufficient?
No, the Law Council recommends that all persons who are the subject of a Part III
Division 3 warrant should have access to a lawyer of their choice, and that access to
this lawyer should not be subject to limitation. The lawyer of the person’s choice
should be entitled to be present during the entire questioning process and people
detained or questioned should be entitled to make representations through their
lawyer to the prescribed authority. All communications between a lawyer and his or
her client should be recognised as confidential and adequate facilities should be
provided to ensure the confidentiality of communications between lawyer and client.
• Should questioning and detention warrants remain available at all?
The Law Council is of the view that the questioning and detention powers under Part
III Division 3 of the ASIO Act should not remain available and should be repealed
and replaced with an alternative approach to gathering information about terroristrelated and other serious offences.
Summary of the Law Council’s response to the Monitor’s
questions on preventative detention and control orders
• Should anything be done about doubtful aspects of the constitutional validity of
control orders and preventative detention orders under the Criminal Code?
With the assistance of its National Criminal Law Liaison Committee, the Law Council
hopes to provide a supplementary submission addressing this important question in
the near future.
• Do international comparators support or oppose the effectiveness and
appropriateness of control orders and preventative detention orders?
The use of control orders in the context of counter-terrorism in overseas jurisdictions
such as the United Kingdom (UK) provides important lessons for Australia.
However, these lessons must also recognise the differences in the legal framework
governing the making and use of such orders, the different human rights protections
and the different historical context in the UK.
• Does non-use of control orders and preventative detention orders suggest they
are not necessary?
The Law Council is of the view that the non-use of preventative detention orders and
the limited use of control orders suggests that they should not form part of the
2012 09 10 S questioning and detention warrants Final
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counter-terrorism response in Australia. The need for these types of orders was not
demonstrated at the time of their introduction and remains unclear, particularly when
regard is had to the range of other powers available to law enforcement officers to
enable them to take a preventative approach to terrorist activity.
• Should control orders and preventative detention orders be more readily
available?
No, the Law Council does not consider that control orders and preventative
detention orders should be more readily available and recommends that Divisions
104 and 105 of the Criminal Code be repealed.
• Should control orders and preventative detention orders require a relevant prior
conviction and unsatisfactory rehabilitation?
The Law Council is opposed to the continued use of control orders and preventative
detention orders, but, if these orders continue to be available, the Law Council
would support the introduction of the requirements of a relevant prior conviction and
evidence of unsatisfactory rehabilitation for the making of such orders.
2012 09 10 S questioning and detention warrants Final
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Introduction
3.
The Law Council of Australia thanks the Monitor, Mr Bret Walker SC, for the
opportunity to make this submission to his inquiry into issues concerning:
• Questioning warrants and questioning and detention warrants under the ASIO
Act; and
• Control orders and preventative detention orders under the Criminal Code.
4.
For many years the Law Council advocated for the establishment of the Monitor’s
position; the Law Council is pleased to participate now in what is a critical
opportunity to review and reform certain parts of Australia’s counter-terrorism laws.
Such a review can assess whether these laws constitute a necessary and
proportionate response to the threats of terrorism faced by the Australian
community, and whether they comply with human rights and rule of law standards.
5.
Such a review is part of the Monitor’s statutory role, which includes reviewing the
operation, effectiveness and implications of Australia’s counter-terrorism, national
security and related legislation and considering whether the legislation:
•
contains appropriate safeguards to protect the rights of individuals;
•
remains proportionate to any threat of terrorism and/or threat to national security;
and
• remains necessary. 3
6.
The Law Council notes that the Monitor is required to submit an annual report to the
Prime Minister.4 This report must be tabled in Parliament. 5 The Monitor submitted
his first report to the Prime Minister on 16 December 2011 (the Annual Report).6 The
purpose of the current inquiry is to inform the Monitor’s 2012 Annual Report.
7.
The Law Council has a long-standing interest in counter-terrorism and national
security laws and has made over 50 submissions in relation to these laws since
March 2002.7
3
Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act), s 6
Ibid., s29(1).
5
Ibid., s 29(5).
6
Bret Walker SC, Independent National Security Legislation Monitor Annual Report, 16 December 2011.
Available from http://www.dpmc.gov.au/inslm/docs/INSLM_Annual_Report_20111216.pdf (Monitor’s Annual
Report)
7
These include submissions to the Senate Standing Committee on Legal and Constitutional Affairs in
response to its inquiry into the Intelligence Services Legislation Bill 2011 on 3 May 2011, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=417AA84D-E8CD-4FEF-4B1587BDA316CFB8&siteName=lca; Senate Committee on Legal and Constitutional Affairs Committee in
response to its inquiry into the Anti-Terrorism Laws Reform Bill in August 2009, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=3397DB8D-1E4F-17FA-D297BD5010231D6E&siteName=lca; Parliamentary Joint Committee on ASIO, ASIS and DSD in response to its
review of ASIO Questioning and Detention Powers on 4 April 2005; Parliamentary Joint Committee on ASIO,
ASIS and DSD and to the Senate Legal and Constitutional Legislation Committee in response to their inquiries
into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 on 29 April
2002, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=605628660623-D0CF-C884-AEEDFAC6ED75&siteName=lca. A full list of the Law Council’s advocacy on national
security and counter-terrorism issues is included at the end of the Law Council of Australia’s Anti-Terrorism
Reform Project, updated in June 2012, which is available at http://www.lawcouncil.asn.au/programs/criminallaw-human-rights/anti-terror/reform-project.cfm (the Anti-Terrorism Reform Project).
4
2012 09 10 S questioning and detention warrants Final
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8.
The Law Council has also outlined its concerns about a number of aspects of
Australia’s counter-terrorism and national security legislation in its Anti-Terrorism
Reform Project. This document, which was updated in June 2012, consolidates the
Law Council’s advocacy in relation to Australia's anti-terrorism measures.8 A copy of
this document was forwarded to the Monitor on 13 July 2012.
9.
The Law Council accepts the need, in principle, to provide intelligence, security and
law enforcement authorities with adequate powers to effectively investigate and
obtain intelligence and evidence in relation to appropriately defined terrorism
offences. However, the legislative response to the threat of terrorism over the last
decade has moved well beyond the boundaries of traditional criminal law responses
towards a pre-emptive approach, which includes preparatory offence provisions,
association-based offence provisions, expanded powers to investigate terrorist
activity and orders to detain or restrict the movement of persons who have not been
charged with an offence.
10.
The Law Council has consistently argued that this expansion of law enforcement
and intelligence agencies’ powers has increased the risk of unnecessary
infringements of fundamental rights. In many cases, little justification has been
presented for why law enforcement and intelligence agencies require these
additional powers to investigate, prosecute and prevent terrorist activity, particularly
in light of the scope of their ‘regular’ powers to investigate, prosecute and prevent
other forms of serious criminal activity.
11.
The Law Council is of the view that, if the Government seeks to justify restriction of
the rights of individuals on the basis of the need to pre-empt and prevent terrorist
activity, it must ensure that the legislative response:
• is necessary to counter the threat posed to the Australian community by
international terrorism, and constitutes a proportionate response to that threat;
• adheres to Australia’s international human rights obligations and rule of law
principles;
• contains clearly defined key terms to ensure clarity and certainty, to provide limits
on the scope of criminal liability and to avoid arbitrary or inconsistent application
of measures; and
• includes safeguards to protect against overuse or misuse of executive power,
such as:
12.
8
o
judicial oversight of the exercise of executive power;
o
full access to confidential legal advice by a legal adviser of a person’s
choice;
o
access to information supporting applications or decisions that affect a
person’s liberty, and the ability to effectively challenge orders restricting a
person’s liberty; and
o
independent review and monitoring of the use of executive power.
The Law Council notes that, for the purposes of this inquiry, the Monitor is
particularly interested in submissions that address Questions 7 - 21 and 41 - 45 in
Op.cit., Anti-Terrorism Reform Project
2012 09 10 S questioning and detention warrants Final
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Appendix 3 of his Annual Report to Parliament of 16 December 2011. 9 These
questions are separated into those that concern questioning warrants, and
questioning and detention warrants pursuant to Part III Division 3 of the ASIO Act
and those that deal with preventative detention and control orders, contained in
Divisions 104 and 105 of the Criminal Code.
13.
In this submission the Law Council provides comments in response to each of these
questions, with the exception of Question 41 concerning the constitutional validity of
control orders and preventative detention orders. With the assistance of its National
Criminal Law Liaison Committee, the Law Council hopes to provide a supplementary
submission on this issue in the near future.
Questions
relating
to
questioning,
questioning and detention warrants
and
Outline of the Questioning and Detention Regime in Part III
Division 3 of the ASIO Act
14.
Provisions relating to questioning warrants, and questioning and detention warrants
are found in Part III Division 3 of the ASIO Act and provide ASIO with the power to
obtain a warrant to:
a)
require a specified person to appear before a prescribed authority (such as a
Judge or Administrative Appeals Tribunal (AAT) member)10 for questioning
(known as a ‘questioning warrant’); 11 and
b)
authorise a specified person to be taken into custody by a police officer, be
brought before a prescribed authority for questioning, and be detained under
arrangements made by a police officer (known as a ‘questioning and detention
warrant’).12
A person can be subject to a questioning or questioning and detention warrant
without being charged with, or even suspected of, committing a criminal offence.
15.
Questioning warrants and questioning and detention warrants are issued by a
Federal Magistrate or Judge.13 Before applying for such a warrant, ASIO must first
obtain the consent of the relevant Minister, the Attorney-General.14 The Minister
may only authorise the Director-General of ASIO to seek a questioning warrant once
he or she is satisfied that:
a)
there are reasonable grounds for believing that the warrant will substantially
assist in the collection of intelligence that is important in relation to a terrorism
offence;15 and
b)
relying on other methods of collecting that intelligence would be ineffective. 16
9
Op.cit., Monitor’s Annual Report
Australian Security and Intelligence Organisation Act 1979 (Cth) (the ASIO Act) s34B.
11
Ibid., s34E(2).
12
Ibid., ss34E, 34G.
13
Ibid., s34AB(1).
14
Ibid., s34D.
15
Ibid., s34D(4)(a).
16
Ibid., s34D(4)(b).
10
2012 09 10 S questioning and detention warrants Final
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16.
Additional requirements apply to a request for a questioning and detention warrant.
In such cases, the Minister must be satisfied that there are reasonable grounds for
believing that, if the person is not immediately taken into custody and detained, the
person: may alert a person involved in a terrorism offence that the offence is being
investigated; or may not appear before the prescribed authority; or may destroy,
damage or alter a record or thing the person may be requested in accordance with
the warrant to produce. 17
17.
Once the Minister has consented and an application has been made to an issuing
authority for either a questioning warrant or a questioning and detention warrant, the
issuing authority only needs to be satisfied that there are reasonable grounds for
believing that the warrant will substantially assist in the collection of intelligence that
is important in relation to a terrorism offence in order to issue the warrant.18
18.
The issuing authority is not required to consider whether other methods are
available for gathering the information, or whether it is necessary to detain the
person in order to question them. These are matters which are considered only by
the Minister.
19.
Once before the prescribed authority for questioning, the person can be required to
provide information or produce records that are “… relevant to intelligence that is
important in relation to a terrorism offence.” 19 The person’s ability to contact other
people is limited. However, the person may access a single lawyer of their choice
and an interpreter, along with other prescribed persons. 20
20.
At any time that a person is before a prescribed authority for questioning, the
prescribed authority may issue a directive that the person be detained, further
detained, or released.21
21.
Questioning under a questioning warrant or a questioning and detention warrant
may not exceed eight hours without the permission of the prescribed authority, who
can grant permission for the questioning to be continued for an additional eight
hours at a time, up to a maximum of 24 hours (48 hours when an interpreter is
used).22 Permission to extend the time for questioning on other grounds can only be
granted where the prescribed authority believes that continued questioning will
assist in the collection of intelligence related to terrorism offenses and that there has
been no undue delay on the part of the questioners. 23 Certain time periods (for
example, periods required to address complaints, or for rest, religious practice or
medical attention) are not considered “questioning time” for the purpose of
calculating periods of questioning; however, a person may not be detained
continuously for more than 168 hours. 24
22.
Video recordings must be made of both a person’s appearance before the
prescribed authority for questioning and of any other matter directed by the
prescribed authority to be recorded. 25
17
Ibid., s34F(d)
Ibid., ss 34E(1)(b), 34G(1)(b).
19
Ibid., s34L
20
Ibid., ss34K(10)-34K(11), 34M, 34N
21
Ibid., s34K
22
Ibid., s34R
23
Ibid.
24
Ibid., ss34R(13), 34S
25
Ibid., s34ZA
18
2012 09 10 S questioning and detention warrants Final
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23.
It is a criminal offence for a detainee to refuse to answer a question and there is no
privilege against self-incrimination per se; however, information or documents
provided by a person under questioning may not be used against that person in
subsequent criminal proceedings. 26
24.
The police have a range of powers they can use when seeking to give effect to a
questioning warrant or a questioning and detention warrant, or a direction made by a
prescribed authority in respect of such a warrant. These include powers to search a
person, take a person into custody, and require the surrender of a person’s
passport. 27
25.
Part III Division 3 of the ASIO Act also contains a range of secrecy offences, for
example it is an offence to disclose information regarding the existence or contents
of a questioning warrant or questioning and detention warrant during the period in
which the warrant is in force and for two years afterwards. 28 There are also
offences relating to contravening a safeguard in this Part. 29
26.
The Inspector-General of Intelligence and Security (IGIS) or his or her
representative may be present at any time during which a person is taken into
custody or questioned under a questioning warrant or a questioning and detention
warrant and can raise concerns regarding the legality or propriety of action in
relation to the execution of the warrant. 30
27.
According to ASIO’s Annual Reports, questioning warrants have only been used on
a few occasions. For example, in 2009-2010, one questioning warrant was
issued.31 In 2004-2005, 11 questioning warrants were issued, involving 10 people. 32
Two of the people questioned under the warrants in 2004-2005 were subsequently
charged with the offence of providing false or misleading information. 33
Law Council’s General Concerns
28.
The Law Council recognises that intelligence gathering is an important component
of preventing terrorist actions and that this involves gaining information from
members of the community. The issue is how such information is obtained in a
manner consistent with rule of law principles and human rights obligations.
29.
The Law Council is concerned that the ASIO Act authorises the questioning and
detention of persons, even though they are not suspected of any involvement in a
terrorist offence, simply because they may have some knowledge about the
commission or possible commission of a terrorist related offence.
30.
The Law Council has previously submitted that the detention of persons not
suspected of criminal activity is not justified, and has raised concerns that ASIO’s
26
Ibid., s34L(8)-34L(9)
Ibid., ss34U-34Z
28
Ibid., s34ZS
29
Ibid., s34ZF
30
Ibid., s34P
31
ASIO Annual Report to Parliament 2009-2010, p.136. Available at http://www.asio.gov.au/img/files/ASIOAnnual-Report-to-Parliament-2009-10.pdf
32
ASIO, Annual Report to Parliament 2004-2005 pp.41-42 available at
http://www.asio.gov.au/Publications/Content/AnnualReport04_05/pdf/asio_annual_report_to_parliament_0405
.pdf
33
Ibid.
27
2012 09 10 S questioning and detention warrants Final
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questioning and detention powers severely limit a person’s right to challenge the
lawfulness of his or her detention. 34
31.
Similar concerns were raised by the United Nations Human Rights Committee
(UNHRC) in its Concluding Observations on Australia in April 2009 35 and by the
United Nations Convention Against Torture Committee in its Concluding
Observations in April 2008. 36 The controversial nature of these powers and their
impact on individual rights has also been noted by the Senate Legal and
Constitutional Review Committee 37 and the Parliamentary Joint Committee on
Intelligence and Security.38
32.
The Law Council is of the view that the questioning and detention powers under Part
III Division 3 of the ASIO Act should be repealed and replaced with an alternative
approach to gathering information about terrorist-related and other serious offences.
33.
Such an alternative approach should accord with other recognised criminal
investigation procedures (for example, the compulsory questioning regime of the
ACC) and contain the following features:
34.
•
questioning should be limited to a defined period of four hours with a four hour
extension;
•
any further extension beyond this should require approval from the judicial
authority issuing the warrant for questioning; and
•
a person being questioned should be entitled to legal representation during
the process.
If these recommendations are not adopted and the current questioning and
detention regime is retained, the Law Council recommends the introduction of the
following safeguards into Part III Division 3 of the ASIO Act:
•
the types of offence for which information can be gathered under a warrant
should be limited;
•
the person the subject of a Part III Division 3 warrant should be informed at
the time of arrest of the reasons for the warrant being issued, including
information specifying the grounds for issuing the warrant;
34
For example see Law Council of Australia Submission to the Parliamentary Joint Committee on ASIO,
ASIS, DSD & Senate Legal & Constitutional Legislation Committee, Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002, (29 April 2002); Law Council of Australia
Submission to the Parliamentary Joint Committee on ASIO, Review of ASIO Questioning and Detention
Powers (4 April 2005). A number of the Law Council’s constituent bodies have also engaged in advocacy on
this issue, see for example Law Institute of Victoria Submission, Proposed new counter terrorism measures
(15 September 2005); Law Institute of Victoria Submission, Parliamentary Joint Committee on ASIO, ASIS
and DSD (24 March 2005).
35
UN Human Rights Committee (HRC), Consideration of reports submitted by States parties under article 40
of the Covenant : International Covenant on Civil and Political Rights : 5th periodic report of States parties :
Australia, 2 April 2009, CCPR/C/AUS/CO/5, para [11].
36
Committee Against Torture, Concluding Observations – Australia, CAT/C/AUS/CO/1, 15 May 2008 at [10].
37
Senate Legal and Constitutional Review Committee, Report on the ASIO Legislation Amendment
(Terrorism) Bill 2002 and related matters, December 2002. Available at
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_
inquiries/2002-04/asio_2/report/contents.htm
38
Parliamentary Joint Committee on Intelligence and Security, Report on ASIO’s Questioning and Detention
Powers, (November 2005). Available at
http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjc
aad/asio_ques_detention/report.htm
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35.
•
all persons the subject of a Part III Division 3 warrant should have access to a
lawyer of their choice. That access should not be subject to limitation;
•
a lawyer of the person’s choice should be entitled to be present during the
entire questioning process;
•
persons detained or questioned should be entitled to make representations
through their lawyer to the prescribed authority;
•
all communications between a lawyer and his or her client should be
recognised as confidential and adequate facilities should be provided to
ensure the confidentiality of communications between lawyer and client; and
•
the period of detention under a questioning and detention warrant should be a
single period incapable of extension.
As ASIO questioning and detention powers rely on administrative protocols to guide
the conduct of officers exercising warrants, the Law Council further recommends the
publication of information on any complaints received from persons subject to
warrants in relation to their treatment in detention for the purpose of reviewing the
relevant protocols.
Question 7: Is the last resort requirement for a questioning
warrant under the ASIO Act too demanding?
36.
The Law Council does not consider the “last resort” requirement for a questioning
warrant under Part III Division 3 of the ASIO Act to be too demanding. To the
contrary, this requirement is fundamental to the continued justification of these
extraordinary and coercive questioning powers.
37.
As noted above, ASIO must first obtain the consent of the Minister 39 before applying
for a questioning warrant under Part III Division 3. The Minister may only authorise
the Director-General of ASIO to seek a questioning warrant once he or she is
satisfied that:
a)
there are reasonable grounds for believing that the warrant will substantially
assist in the collection of intelligence that is important in relation to a terrorism
offence;40 and
b)
relying on other methods of collecting that intelligence would be ineffective. 41
38.
The requirement for the Minister to be satisfied that alternative methods of collecting
the relevant intelligence would be ineffective recognises that these powers are
extraordinary in scope and in their impact on the rights of individuals.
39.
When these provisions were introduced, the public and the Parliament were assured
that they were designed to be used where pre-existing intelligence gathering
powers, including those that authorise ASIO to search premises, use listening and
tracking devices and access computers, 42 were ineffective. This is evident from the
Minister’s Second Reading Speech where it was acknowledged that:
39
ASIO Act s34D.
Ibid., s34D(4)(a).
41
Ibid., s34D(4)(b).
42
Ibid., Division 2 Part III.
40
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“The Government recognises the need to maintain the balance between the
security of the community and individual rights and to avoid the potential for
abuse.
These warrants are a measure of last resort.
It is anticipated that they will be used rarely and only in extreme
circumstances.”43
40.
As will be discussed later in this submission, it is important that stringent procedural
requirements continue to apply to the request for and issue of questioning warrants,
particularly given the ramifications that such warrants can have on the liberty of an
individual.44 These warrants must also be considered against the background of
other law enforcement and intelligence agencies’ powers designed to assist in the
gathering of intelligence about terrorist related activity, including those contained in
Part 1C of the Crimes Act 1914 (Cth) (Crimes Act) which also allow a person to be
detained for the purposes of investigating a terrorist related offence.
41.
As noted above, the Law Council’s primary recommendation is that Part III Division
3 of the ASIO Act be replaced with a system of compulsory questioning based on
other criminal intelligence questioning powers. Such a system should also be a
matter of “last resort” when other intelligence gathering powers have proven to be
ineffective.
42.
If this recommendation is not adopted, the Law Council cautions against any
relaxation of the current requirements contained in paragraph 34D(4) of the ASIO
Act.
Question 8: Are the time limits (eg. 7 days detention for 24 hours
questioning) applicable to questioning warrants too long, too
short or about right?
43.
The Law Council is of the view that the maximum time limits for detention and
questioning under a warrant obtained under Part III Division 3 of the ASIO Act are
too long, and should be replaced with a compulsory questioning regime that limits
questioning to a defined period of four hours with a four hour extension.
44.
Currently, questioning warrants and questioning and detention warrants are issued
for specified periods. Paragraph 34E (5)(b) provides that these warrants cannot be
in place for more than 28 days. Section 34S provides that a person must not be
detained for more than 168 hours (7 days) continuously.
45.
Questioning under these warrants is limited to eight hours initially, 45 but this is able
to be extended to 16 hours, 46 and then 24 hours if permitted by the prescribed
43
Minister’s Second Reading Speech, Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Bill 2002 (Cth), Senator Abetz (Special Minister of State), Hansard, Tuesday, 15 October 2002, p
5142. Available at
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F20
02-10-15%2F0074%22
44
ASIO Act s34K(1)(a).
45
Ibid., s34R(1)
46
Ibid., s34R(2)
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authority. 47 Where interpreters are required, the maximum period of time that a
person can be questioned under a warrant is 48 hours.48
46.
Before extending a period of questioning, the prescribed authority must be satisfied
that there are reasonable grounds for believing that permitting the continuation will
substantially assist the collection of intelligence that is important in relation to a
terrorism offence; and that the person exercising authority under the warrant has
conducted the questioning of the person properly and without delay. 49
47.
Certain time periods, for example, periods required to change recording equipment,
address complaints, or for rest, religious practice or medical attention, are not
considered “questioning time” for the purpose of calculating periods of questioning. 50
However, a person may not be detained continuously under a questioning and
detention warrant for more than 168 hours from the time the person is first brought
before the prescribed authority. 51
48.
The Law Council is of the view that the seven day maximum period for detention
and the 24 hour maximum period for questioning (or 48 hours where interpreters are
used) are too long. These are considerable periods to restrict a person’s liberty and
require them to answer questions or face criminal sanction for failing to do so,
particularly when the person need not be charged with or even suspected of a
criminal offence prior to detention and questioning. Insufficient evidence has been
made publicly available that would demonstrate that these maximum periods are
necessary for ASIO to fulfil its statutory functions and to combat threats to national
security, particularly in light of the range of other intelligence gathering powers
available to ASIO.
49.
In addition, the Law Council notes that the time periods under which a person can
be detained for questioning under Part III Division 3 are disproportionate to other
regimes designed to facilitate the investigation of terrorist offences. For example,
because a questioning and detention warrant can authorise the detention of a
person for up to seven days, a person who is not suspected of a terrorism offence
can be detained for longer than a terrorist suspect who is questioned by the
Australian Federal Police (AFP) under the Crimes Act.
50.
Under Part 1C of the Crimes Act, a person believed to have committed or to be
committing a terrorism offence may only be detained by the AFP for four hours prior
to being charged (with a possible extension of up to 24 hours). 52 By contrast, a
non-suspect under the ASIO questioning and detention regime may be detained for
up to 7 days. 53 As the Hon Michael McHugh AC has observed:
“…a questioning and detention warrant authorises the detention of persons,
not suspected of a terrorism offence, for seven times as long as a person
suspected of a terrorism offence and 14 times as long as a person suspected
of [a] non terrorist offence”.54
47
Ibid., s34R(6)
Ibid., s34R(11)
49
Ibid., s34R(1).
50
Ibid., s34R(13)
51
Ibid., s 34S
52
Crimes Act 1914, ss 23DB, 23DF
53
ASIO Act s34S.
54
Michael McHugh, 'Constitutional Implications of Terrorism Legislation' (2007) 8 The Judicial Review 189,
202. See also, Andrew Palmer, 'Investigating and Prosecuting Terrorism: The Counter-Terrorism Legislation
and the Law of Evidence' (2004) 27(2) University of New South Wales Law Journal 373 at 377.
48
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51.
The Law Council shares the views expressed by the Monitor that, at least on the
basis of his preliminary inquiries, there is:
“… no operational justification for regarding such a long period of detention as
reasonably necessary in order for useful intelligence to be gained.” 55
52.
The Monitor goes on to explain that:
“There can be (and has been) no reliance on psychological distress or
disorientation such as have been observed to follow some lengths of custody.
The procedures expressly require humane treatment. The crucial oversight
and checking functions of the prescribed authority and the Inspector‑General
of Intelligence and Security, also prevent – one hopes – the use of an
extended period of detention to “break” someone. “56
53.
The Law Council shares the view that:
“…[i]f a longer period cannot be said to have an appreciable operational
benefit, the interests of liberty run completely towards the shortest possible
period of detention.” 57
54.
The Law Council also agrees with the Monitor’s observations in relation to the
maximum period under which a person can be questioned (24 hours, or 48 hours if
an interpreter is present).
The Law Council endorses the adoption of a
“…necessary bias in favour of a shorter period in order to observe the value of
individual liberty, where there is little or no empirical justification for 24 hours …”58
55.
The Law Council suggests that an appropriate “shorter period” would be four hours
of questioning with a four hour extension, and recommends that questioning occur
under a regime subject to judicial oversight such as that available to the ACC, rather
than the regime currently available under Part III Division 3 of the ASIO Act. Under
such an approach, if eight hours of questioning is insufficient, any further extension
should require approval from the judicial authority issuing the warrant for
questioning.
56.
If, contrary to the Law Council’s recommendation, questioning and detention
warrants continue to be available to ASIO, the Law Council recommends that the
period of detention under a Part III Division 3 warrant should be a single period
incapable of extension, and should be limited to a period no longer than that shown
to be necessary for useful intelligence to be gained.
Question 9: Are the time limits for questioning warrants where
interpreters have been used commensurate with the limits
applying otherwise?
57.
The Law Council considers that current time limits (up to 48 hours) that apply to
questioning a person under a Part III Division 3 warrant where an interpreter is
present are not commensurate with the limits applying otherwise. The Law Council
supports the suggestion by the Monitor that any permissible extensions of time
55
Op.cit., Monitor’s Annual Report p. 31.
Ibid.
57
Ibid.
58
Ibid., p. 32.
56
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should be limited to those which are reasonably attributable to the use of a foreign
language during questioning. 59
58.
Pursuant to section 34M of the ASIO Act, a person exercising authority under a
questioning or questioning and detention warrant must arrange for the presence of
an interpreter, if the prescribed authority before whom a person appears for
questioning “… believes on reasonable grounds that the person is unable, because
of inadequate knowledge of the English language or a physical disability, to
communicate with reasonable fluency in that language.”60 Section 34N of the ASIO
Act also enables a person appearing before a prescribed authority for questioning to
request an interpreter.61 In either case, no questions can be asked under the
warrant until the interpreter is present. 62 The requirements to provide information to
a person subject to a warrant in a language they can understand and to provide an
interpreter are also reflected in the Statement of Procedures that apply to the use of
Part III Division 3 warrants.63
59.
As noted above, the ASIO Act limits the period of time for which a person can be
questioned under a warrant under Part III Division 3 of the Act to 24 hours.64
However, section 34R contains provisions that enable the maximum period of
questioning to be extended to 48 hours in circumstances where an interpreter is
needed, with certain trigger points (24, 32 and 40 hours) beyond which further
questioning requires approval by the prescribed authority. 65 Subsection 34R(13)
also outlines a range of time periods that must be disregarded when determining for
how long a person has been questioned, such as the time taken for the person to
contact his or her lawyer or to receive medical attention.
60.
As discussed above, the Law Council has general concerns about the length of time
permitted for questioning under a Part III Division 3 warrant. In line with this
position, the Law Council agrees with the observations of the Monitor that it appears
particularly arbitrary to permit a doubling of the maximum period for which a person
can be questioned (and in certain circumstances detained) on the basis of the
presence of an interpreter.
61.
The Law Council is of the view that individuals subject to these coercive powers
should not be dissuaded from accessing critical support services, such as an
interpreter, due to a fear of being held for questioning for a longer period of time
than someone who does not require an interpreter. 66 This view was also shared by
the Parliamentary Joint Committee on ASIO, the Australian Security Intelligence
Service and the Defence Signals Directorate in its 2005 review of these powers,
when it observed that:
59
Ibid., pp. 31-32.
ASIO Act s34M(1)-(2).
61
Ibid., s34N(1)-(2).
62
Ibid., ss34M(4), 34N (4).
63
Statement of Procedures — warrants issued under Division 3 of Part III, Australian Security Intelligence
Organisation Act 1979, made under subsection 34C (4) of the ASIO Act, 16 October 2006, para 7.2, available
at http://www.comlaw.gov.au/Details/F2006L03543.
64
ASIO Act s34R(6).
65
Ibid., s34R(9)-(12). Subsection 34R(13) also outlines a range of time periods that must be disregarded
when determining how long a person has been questioned for, such as the time taken for the person to
contact his or her lawyer or to receive medical attention.
66
See for example, Law Council of Australia Submission to Senate Legal And Constitutional References
Committee Inquiry into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism)
Bill 2002 (20 November 2002). Available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=C88690AD-1E4F-17FA-D208942C72CF5FFD&siteName=lca
60
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“…the extended time for questioning where an interpreter is used (48 rather
than 24 hours) is very likely to inhibit a subject asking for the use of one, even
where that might be advisable.”67
62.
The Law Council submits that the onus must be on the intelligence agencies to
demonstrate whether questioning people who require an interpreter necessitates
more time, and if so, what period of additional time is likely to be required.
63.
On this basis, the Law Council supports the suggestion outlined by the Monitor in
the Annual Report that:
“… the prescribed authority should explicitly be required to be satisfied that
any extension of time is no more than could reasonably be attributable to the
use of a foreign language during questioning.” 68
64.
In supporting this suggestion, the Law Council notes that other regimes designed to
gather information relevant to a terrorist offence do not contain provisions that
significantly extend or double the period of time a person can be detained for this
purpose on the basis of the use of an interpreter.
65.
For example, under Part 1C of the Crimes Act, the AFP can detain persons for the
purposes of investigating a Commonwealth offence, subject to certain time
limitations that differ depending upon whether the offence is a terrorism offence.
There is a right to an interpreter under this Part and a requirement to defer
questioning under this Part until an interpreter is present.69 However, the maximum
period under which a person can be detained for this purpose (the investigation
period) is not extended by virtue of the fact that an interpreter is being used. Rather,
the use of an interpreter may result in certain time periods being disregarded for the
purposes of determining the investigation period. 70
66.
Similar provisions have been adopted at the State level that exclude certain periods
from the calculation of the maximum investigation period, but do not double or
otherwise significantly extend the maximum period under which a person can be
questioned or detained on the basis of the presence of an interpreter. 71
67.
The Law Council has previously observed that the time limit for questioning under a
Part III Division 3 warrant using an interpreter should be commensurate with the
time limit where not using an interpreter. Notwithstanding this, if compelling
evidence is adduced that demonstrates that the maximum of 24 hours questioning is
insufficient when using an interpreter, the Law Council supports the Monitor’s
suggestion that subsections 34R(8)-(12) be amended to permit an extension of
time for questioning only where the prescribed authority is satisfied that any
extension of time is no more than could reasonably be attributable to the use of a
foreign language during questioning. A maximum limit should also be placed on the
extension of time that could be granted under this provision.
67
Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO’s Questioning and Detention Powers
Review of the operation, effectiveness and implications of Division 3 of Part III in the Australian Security
Intelligence Organisation Act 1979 (November 2005) p. 68. Available at
http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjc
aad/asio_ques_detention/report.htm
68
Op.cit., Monitor’s Annual Report ,pp. 31-32.
69
Crimes Act 1914 (Cth) s23N
70
Ibid., ss23C(7), 23DB(9)
71
See for example, Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) ss114-18, Police
Powers and Responsibilities Act 2000 (Qld) s433, Crimes Act 1985 (Vic) ss464A-464D
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Question 10: Are there sufficient safeguards including judicial
review in relation to the surrender or cancellation of passports, in
connection with questioning warrants?
68.
The Law Council is of the view that there are currently insufficient safeguards in
relation to the surrender or cancellation of passports in connection with questioning
warrants; the Law Council is concerned that existing options for review of these
decisions are unlikely to provide meaningful limitations on, or oversight of, the use of
these powers.
69.
Pursuant to sections 34W and 34Y of the ASIO Act, as soon as practicable after a
person has been notified that ASIO has requested a Part III Division 3 warrant in
relation to them, or that they are specified in an issued warrant, they must surrender
all Australian or foreign passports to an Australian Customs Officer, or to a person
exercising authority under the warrant. If the person fails to surrender his or her
passport, he or she faces a penalty of up to five years imprisonment.
70.
Any passports in the possession of the AFP, State or Territory Police, or Australian
Customs that have not been cancelled must be returned as soon as practicable if
the warrant is not issued or ceases to be in force. 72 Before returning any passport,
an ASIO officer or other person authorised under the warrant may examine and
make copies of the passport.73
71.
In addition, pursuant to section 34X of the ASIO Act, once a person has been
notified that the Director-General has sought the Minister's consent to request the
issue of a warrant under Part III Division 3, it will be an offence for that person to
leave Australia without the written permission of the Director-General except in
certain circumstances.74 The maximum penalty for this offence is five years
imprisonment. The Director-General is also authorised to impose conditions on the
permission to leave Australia or to revoke or amend that permission. 75
72.
The Law Council is concerned by the breadth of these provisions, which provide
ASIO with an open-ended power to restrict a person’s overseas travel. For
example, under these provisions:
73.
•
warrants can be issued in relation to any person who is believed to have
information that is important in relation to a terrorism offence, including
individuals who are not actually suspects themselves; and
•
there is no time limit within which the Minister must refuse or agree to the
Director-General’s request for a warrant (although the Law Council notes that
often this will only be a short period of time).
In light of the broad nature of these powers and their impact on the rights and
freedoms of persons subject to Part III Division 3 warrants, the Law Council is
concerned by the limited options for seeking review of decisions made under these
provisions.
72
ASIO Act ss34W(2), 34Y(2)
Ibid., s34W(4), 34Y(2)
74
Ibid., s34X (1)
75
Ibid., s34X(2)
73
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74.
For example, the Law Council notes that while common law judicial review76 may be
available for decisions made under these provisions, such as a decision by the
Director-General under section 34X to refuse permission for a person’s overseas
travel, it is unlikely that this form of review would have any practical utility for a
person subject to a Part III Division 3 warrant. This is because in most cases a Part
III Division 3 warrant, and any associated restrictions on a person’s travel, would
have already been issued and executed before the lengthy process generally
associated with obtaining judicial review is complete.
75.
The Law Council is also concerned by the lack of options for merits review of
decisions made pursuant to sections 34W-34Z of the ASIO Act. Currently, decisions
made under these provisions are not subject to review by the AAT. This can be
contrasted with Part IV of the ASIO Act, which provides that security assessments
made by ASIO under that Part are subject to review by the Security Division of the
AAT.77 The Security Division of the AAT operates under particular procedures
designed to protect information relevant to national security. 78 The Law Council
suggests that consideration could be given to introducing similar provisions into Part
III of the ASIO Act to enable merits review of decisions made under sections 34W34Z without prejudicing information relevant to national security.
76.
The Law Council notes that a system of merits review for decisions relating to
passports is available under the Australian Passports Act 2005 (Cth) (the Passports
Act). Pursuant to section 14 of the Passports Act, a competent authority 79 can
refuse a passport application or cancel a passport if it suspects on reasonable
grounds that the person would be likely to engage in conduct that might:
•
prejudice the security of Australia or a foreign country; endanger the health or
physical safety of other persons; or
•
interfere with the rights or freedoms of other persons (whether in Australia or a
foreign country) set out in the International Covenant on Civil and Political
Rights; or
•
constitute an indictable offence against a specified Commonwealth law.
77.
Decisions made pursuant to these provisions are subject to internal review under
the Passports Act, and can also be subject to review by the AAT.80 However, if the
decision involves matters of international relations or criminal intelligence, the
relevant Minister (the Minister for Foreign Affairs) can provide a certificate which
limits the review undertaken by the AAT to affirming the Minister's decision or
remitting the decision to the Minister for reconsideration in accordance with any
directions or recommendations of the AAT.81
78.
These provisions, which already allow the relevant Minister to restrict the travel of
people who may prejudice the security of Australia, raise questions about the
76
Decisions made under the ASIO Act are excluded from the operation of the Administrative Decisions
(Judicial Review) Act 1977 (see Schedule 1)
77
ASIO Act, Part IV Division 4.
78
See Administrative Appeals Tribunal Act 1975 (Cth) s39B.
79
Pursuant to Australian Passports Act 2005 (Cth) s12 a "competent authority" , in relation to a circumstance
mentioned in paragraph (1)(a) or (b), means: (a) a person who has responsibility for, or powers, functions or
duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory (other than a
person who is specified in a Minister's determination as not being a competent authority in relation to the
circumstance); or (b) a person specified in a Minister's determination as a competent authority in relation to
the circumstance.
80
Australian Passports Act 2005 (Cth) s48-50.
81
Ibid., s50(2).
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necessity of the provisions of the ASIO Act which require persons the subject of Part
III Division 3 warrants to surrender their passports and seek permission from ASIO
to travel.82 They also provide examples of how these types of decisions can be
subject to merits review without prejudicing national security or criminal intelligence.
79.
The Australian Crime Commission Act 2002 (Cth) (the ACC Act) provides a further
example of a procedure for restricting a person’s travel for the purpose of gathering
criminal intelligence. This procedure incorporates greater oversight than that
currently available under the ASIO Act provisions.
80.
Section 24 of the ACC Act provides that an examiner can apply to a Judge of the
Federal Court (in Chambers) for an order that a person required to appear at or
appearing at an examination, show cause as to why he or she should not be
ordered to deliver his or her passport to the examiner if there are reasonable
grounds to suspect that the person intends to leave Australia. Before making such
an order the Judge must be satisfied that a summons has been issued requiring the
person to appear at an examination to give evidence or produce documents or
things, and that:
•
there are reasonable grounds for believing that the person may be able to give
to the examiner evidence or further evidence that is, or to produce to the
examiner documents or other things or further documents or other things that
are, relevant to the special ACC operation/investigation and could be of
particular significance to the special ACC operation/investigation; and
•
there are reasonable grounds for suspecting that the person intends to leave
Australia and has in his or her possession, custody or control a passport
issued to him or her.
81.
Once an order for surrender of the passport has been made, it is an offence for the
person to leave Australia, punishable by up to two years imprisonment. The
maximum period for which the person’s passport can be held by the examiner is
three months.83
82.
The ACC Act also authorises a Judge of the Federal Court or of the Supreme Court
of a State or Territory to issue a warrant for the arrest of a person who has been
ordered under section 24 to surrender his or her passport, if it can be shown that the
person subject to the order is likely to abscond. 84
83.
While these provisions may still give rise to concerns about the scope of power
available to executive bodies to curtail the overseas travel of persons not charged
with or convicted of an offence, they are preferable to those currently contained in
section 34W-Z of the ASIO Act as they incorporate a more effective level of judicial
oversight of the use of this power.
82
The Law Council notes that previous passport applications made by Mamdough Habib’s were refused under
the Australian Passports Act on national security grounds following the making of an adverse security
assessment by ASIO under this Part, and were confirmed following review by the AAT and the Federal Court.
For an outline of the history of this matter see Habib v Minister for Foreign Affairs and Trade [2010] FCA 1203
(5 November 2010) per Flick J at [12]-[23 However, it appears that a passport was subsequently issued to Mr
Habib in March 2011 following a new application and the issue of a non-adverse security assessment by
ASIO. See Natalie O’Brien, ‘Habib cleared, gets passport back’ Sydney Morning Herald Online (27 May 2011)
available at http://www.smh.com.au/nsw/habib-cleared-gets-passport-back-201105271f7tg.html#ixzz25SX0c1Ba
83
Australian Crime Commission Act 2002 (Cth) s24(4)
84
Ibid., s31
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84.
The Law Council recommends that the ACC model be considered if it can be
demonstrated that it is necessary for ASIO to retain the power to require the
surrender of passports or to restrict the overseas travel of a person subject to a Part
III Division 3 warrant. Alternatively, the Law Council suggests that a mechanism to
enable merits review of decisions under sections 34W to 34Z be introduced into the
ASIO Act.
Question 11: Is the 5 years imprisonment for failing to answer
questions truthfully under a questioning warrant appropriate and
comparable to penalties for similar offences?
85.
While the penalties in the ASIO Act for failing to answer questions truthfully under a
questioning warrant appear comparable to some other similar offences, the Law
Council supports further consideration of whether the maximum penalty of five years
imprisonment is appropriate.
86.
Pursuant to subsection 34L(4) of the ASIO Act, a person who is bought before a
prescribed authority for questioning under a Part III Division 3 warrant commits an
offence if he or she “… makes a statement that is, to the person's knowledge, false
or misleading; and the statement is made in purported compliance with a request for
information made in accordance with the warrant.” Subsection 34L(5) provides that
the offence does not apply if the statement is not false or misleading in a material
particular. The maximum penalty for this offence is five years imprisonment.
87.
The Law Council notes that a similar maximum period of imprisonment is imposed in
respect of an analogous offence contained in section 33 of the ACC Act, where it is
an offence for a person, at an examination, to give evidence that is to his or her
knowledge false or misleading in a material particular. The ACC Act offence is
punishable by five years imprisonment or by a fine not exceeding 200 penalty units.
However, subsection 33(3) of the ACC Act also provides that a court of summary
jurisdiction may hear and determine proceedings in respect of this offence if the
court is satisfied that it is proper to do so and the defendant and the prosecutor
consent. If the person is convicted of the offence in these circumstances, the
maximum penalty that the court may impose is a fine not exceeding 20 penalty units
or imprisonment for a period not exceeding 1 year. 85
88.
A similar approach is adopted in the Royal Commissions Act 1902 (Cth), which also
contains an offence for intentionally giving evidence that the person knows to be
false or misleading with respect to a matter that is material to the inquiry by the
Royal Commission.86 This offence attracts a maximum penalty of five years
imprisonment,87 but can also be dealt with as a summary offence, in which case it
attracts a maximum penalty of one year imprisonment. 88
89.
As noted earlier in this submission, the Law Council recommends that Part III
Division 3 of the ASIO Act be repealed and replaced with a questioning regime
based on that currently available under the ACC Act. Such a questioning regime
provides greater legal safeguards and also permits offences relating to failing to
answer questions truthfully to be dealt with as summary offences. It may be
appropriate for matters to be dealt with summarily where the false or misleading
information has only a minor impact on the inquiry or investigation.
85
ACC Act s33(4).
Royal Commissions Act 1902 (Cth) s6H(1).
87
Ibid., s6H(2).
88
Ibid., s6H(3)-(4).
86
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Question 12: Is the abrogation of privilege against selfincrimination under a questioning warrant sufficiently balanced
by the use immunity?
90.
The Law Council does not consider that the abrogation of the privilege against selfincrimination is sufficiently balanced by the limited protections provided by the use
immunity provision in subsection 34L(9) of the ASIO Act.
91.
Under the ASIO Act, a person subject to a questioning warrant or a questioning and
detention warrant who does not appear before the prescribed authority, 89 or appears
but fails to give any information or to produce any record or thing requested in the
warrant,90 is subject to a penalty of five years imprisonment. 91 The fact that
answering a question may require a person to incriminate him or herself is no
defence.92 The right to silence cannot be claimed.
92.
Subsection 34L(9) of the ASIO Act provides that information obtained by ASIO
under a questioning or questioning and detention warrant is not admissible in
evidence against the person in other criminal proceedings (‘use immunity’).
However, there is no such bar on the use of further information or evidence
subsequently revealed as a result of the information obtained (‘derivative use
immunity’).
93.
This means that any evidence obtained as a result of information or items provided
by the person under a questioning or questioning and detention warrant is capable
of being used to prove that person has committed a criminal offence.
94.
The Law Council has previously raised concerns with these aspects of Part III
Division 3 of the ASIO Act which do not provide sufficient protection against the
abrogation of the privilege against self-incrimination.93
95.
The Law Council is also concerned that the mandatory presence of a police officer
throughout questioning, required by ASIO’s Statement of Procedures, 94 ensures law
enforcement agencies have ready access to information and material provided to
ASIO by the detained person, and increases the likelihood of the derivative use of
information that the detained person has been compelled to divulge.
96.
Accordingly, the Law Council does not consider that the abrogation of the privilege
against self-incrimination is sufficiently balanced by the use immunity. The Law
Council recommends that section 34L should be amended to make it clear that
evidence obtained directly or indirectly from a warrant issued under this Division
cannot be used to prove that the person has committed a criminal offence.
89
ASIO Act s34L(1). Note also that a prescribed authority is a person appointed in accordance with ASIO Act
s34B and includes judges of superior courts and members of the Administrative Appeals Tribunal.
90
Ibid., s34L(2), 34L(6).
91
Ibid., s34L.
92
Ibid., s34L(8).
93
Op.cit., Anti-terrorism Reform Project, pp. 99-100
94
Statement of Procedures — warrants issued under Division 3 of Part III, Australian Security Intelligence
Organisation Act 1979, made under subsection 34C (4) of the ASIO Act, 16 October 2006, para 7.2, available
at http://www.comlaw.gov.au/Details/F2006L03543
2012 09 10 S questioning and detention warrants Final
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Question 13: Do the conditions permitting use of lethal force in
enforcing a warrant sufficiently clearly require reasonable
apprehension of danger to life or limb?
97.
The Law Council is concerned by the provisions of the ASIO Act that authorise the
use of lethal force in certain circumstances to give effect to Part III Division 3
warrants. If these provisions can be shown to be necessary, the Law Council
supports efforts to clarify that lethal force should be used only in circumstances
where there is a reasonable apprehension of imminent risk of death or serious injury
to another person.
98.
Section 34V of the ASIO Act authorises a police officer to use such force as is
“necessary and reasonable” in a number of circumstances, including in relation to
warrants issued under Part III Division 3 of the ASIO Act.95 Subsection 34V(3)
provides that:
“Without limiting the operation of subsection (2), a police officer must not, in
the course of an act described in subsection (1) in relation to a person:
(a)
do anything that is likely to cause the death of, or grievous bodily harm
to, the person unless the officer believes on reasonable grounds that
doing that thing is necessary to protect life or to prevent serious injury
to another person (including the officer); or
(b)
if the person is attempting to escape being taken into custody by
fleeing - do such a thing unless:
(i) the officer believes on reasonable grounds that doing that thing is
necessary to protect life or to prevent serious injury to another
person (including the officer); and
(ii) the person has, if practicable, been called on to surrender and
the officer believes on reasonable grounds that the person
cannot be taken into custody in any other manner.”
99.
A similar provision exists in section 3ZC of the Crimes Act which authorises the use
of force when making an arrest.
100. The Law Council agrees with the observation of the Monitor in the Annual Report
that: “Some aspects of the provisions regulating the use of official force for
questioning warrants are of preliminary concern”.96
101. In particular, the Law Council queries whether it is necessary for the use of lethal
force to be authorised in this context and strongly supports the suggestion made by
the Monitor in the Annual Report to evaluate this provision in light of practical
experience from those authorised to use force for the purposes of giving effect to
warrants in other contexts. 97 The Law Council also notes that the exceptional
nature of the authorisation to use lethal force to give effect to a warrant has been
recognised by the Attorney-General’s Department’s Guide to Framing
95
ASIO Act s34V(1)-(2).
Op.cit., Monitor’s Annual Report, p. 33.
97
Op.cit., Monitor’s Annual Report, p. 29.
96
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Commonwealth Offences, Infringement Notices and Enforcement Powers 98 as an
example of a provision that departs from fundamental criminal law principles, and
requires close drafting attention.
102. If the use of lethal force is considered to be necessary, the Law Council supports
efforts to strictly limit the circumstances in which such force can be used. The Law
Council agrees with the observations of the Monitor that subparagraph 34V(3)(b)(ii)
does not add any weight to the necessity to protect life or prevent serious injury.
This subparagraph refers to an officer using lethal force if a person has been called
on to surrender and the officer believes on reasonable grounds that the person
cannot be taken into custody in any other manner. 99
103. For the Law Council, the test for whether lethal force should be used should
exclusively focus on whether it is necessary to save a life, or to prevent serious
injury. The fact that the person named in the warrant is fleeing custody, has refused
to surrender or is otherwise difficult to apprehend should not have a determinative
impact on whether lethal force should be used.
104. The Law Council suggests that consideration be given to removing subparagraph
34V(3)(b)(ii) from the ASIO Act on the grounds that it is not necessary in light of the
general authorisations in paragraph 34V(3)(a) and (b)(i).
Question 14: Are the three several conditions for issuing a
questioning and detention warrant stringent enough?
105. The Law Council does not consider that the three several conditions relating to the
Minister’s consent to issue a questioning and detention warrant 100 are sufficiently
stringent.
106. Before the Minister can authorise the Director-General’s request for a questioning or
a questioning and detention warrant to be issued, he or she must be satisfied
that:101
a)
there are reasonable grounds for believing that the warrant will substantially
assist in the collection of intelligence that is important in relation to a terrorism
offence;102 and
b)
relying on other methods of collecting that intelligence would be ineffective; 103
and
c)
there is in force under section 34C a written statement of procedures to be
followed in the exercise of authority under warrants issued under this
Division.104
107. For a questioning and detention warrant there are three several conditions in
paragraph 34F(4)(d) which are additional to the above conditions. These conditions
are that there are reasonable grounds for believing that, if the person is not
98
A copy of this Guide is available at
http://www.ag.gov.au/Publications/Pages/GuidetoFramingCommonwealthOffencesCivilPenaltiesandEnforcem
entPowers.aspx
99
Op.cit., Monitor’s Annual Report, p. 29.
100
ASIO Act s34F(4).
101
Ibid.
102
Ibid., ss 34D (4)(a), 34F(4)(a).
103
Ibid., ss 34D(4)(b), 34F(4)(b).
104
Ibid., ss 34D(4)(c),34F(4)(c).
2012 09 10 S questioning and detention warrants Final
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immediately detained, the person: (i) may alert a person involved in a terrorism
offence that the offence is being investigated; or (ii) may not appear for questioning;
or (iii) may destroy, damage or alter a record or thing required to be produced.
108. The Law Council has previously raised concerns about these three several
conditions.105 In the view of the Law Council, questioning and detention warrants,
which were introduced into the ASIO Act on the understanding that they would be
measures of “last resort”, must only be issued in circumstances where existing
intelligence gathering powers are not adequate. At present, without resort to a
questioning and detention warrant:
•
Law enforcement officers can apprehend a person who may alert a person
involved in a terrorism offence that the offence is being investigated, if the
person is suspected of assisting or being complicit in the planning or
preparation or financing of a terrorist act, and can detain and question that
person without needing to charge them.106
•
Law enforcement officers can also arrest and charge a person who is
suspected of associating with or providing support to a member of a terrorist
organisation. 107
•
The relevant Minister can cancel the passport of a person who is considered
to be a threat to national security.108
•
Intelligence officers can obtain a warrant to question a person who may have
information relevant to the investigation of a terrorist offence and compel him
or her to produce information or things;109 can conduct a personal search on a
person detained under Part III Division 3; 110 and require the surrender of the
passport of a person subject to a Part III Division 3 warrant.111
109. The Law Council does not consider that the three additional several conditions for a
questioning and detention warrant are sufficiently stringent to justify detention. The
condition relating to the person subject to the warrant possibly damaging a record or
thing that might be requested under the warrant has the potential to encompass a
range of relatively minor conduct and appears to be an unacceptably low threshold
for the issue of a warrant that can result in the detention of a person for up to seven
days.
110. The Law Council also shares the views of the Monitor that the authority responsible
for issuing a questioning and detention warrant under section 34G, and not just the
Minister consenting to the request for a warrant, must also be satisfied of the range
of matters outlined in paragraph 34F(4)(d). Currently, the issuing authority need
only be satisfied that the Director-General has requested the warrant in accordance
with subsection 34F(7) and 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.112 As the Monitor observed in the Annual Report:
105
Op.cit., Anti-Terrorism Reform Project, pp. 96-97.
See Crimes Act Part 1C.
107
See Criminal Code Divisions 101 and 102.
108
Australian Passports Act , s14.
109
ASIO Act s34L.
110
Ibid., s34ZB.
111
Ibid., s34W.
112
The Law Council notes that additional requirements apply if the person has already been detained, ASIO
Act s34G(2).
106
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“The issuing authority is not, in terms or perhaps at all, authorized to consider
[the possibilities outlined in paragraph 34F(4)(d)]. The attention of a judicial
officer to a matter of such moment to an individual’s personal liberty is highly
desirable, approaching the point of necessity. As a matter of policy, it is
difficult to see why bail in the administration of criminal justice involves judicial
decision, but not a potential 7 day detention for a possible 24 or 48 hour
questioning.” 113
111. As noted above, the Law Council’s primary recommendation is that Part III Division
3 of the ASIO Act be replaced with a system of compulsory questioning that is
subject to judicial oversight and would not require the use of questioning and
detention warrants such as those issued under section 34G.
112. As discussed below, the Law Council would also support:
•
the modification of the existing offence in section 34L of the ASIO Act relating
to the failure to produce things or records under a warrant, to include an
offence of destroying or damaging material requested to be produced. This
would address the need for questioning and detention warrants to be issued to
prevent the destruction of or damage to material requested to be produced;
and
•
the risk of non-appearance being assessed by a judicial officer.
Question 15: Should the risk of non-appearance as a condition
for issuing a questioning and detention warrant require
assessment by a judicial officer?
113. If a questioning and detention warrant regime is to be maintained, the Law Council
supports ensuring that the conditions that must be satisfied before issuing such
warrants are appropriately stringent, including consideration of requiring the risk of
non-appearance to be assessed by a judicial officer.
114. As noted above, one of the issues that the Minister must be satisfied of before
authorising the request for a questioning and detention warrant is whether there are
reasonable grounds for believing that, if the person is not immediately taken into
custody and detained, the person may not appear before the prescribed authority. 114
115. The authority responsible for issuing a questioning and detention warrant, which
must be a Federal Magistrate or a Judge, 115 is required to be satisfied that the
Director-General has made the request in accordance with the relevant provision
discussed above and must also 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 terrorism offence. 116
116. In the Annual Report, the Monitor noted that the risk of non-appearance was a
matter “… traditionally and best determined by an impartial judicial officer rather
than by an officer of the executive government that is seeking the person’s
detention.” 117
113
Op.cit., Monitor’s Annual Report, p. 35..
ASIO Act 1979 s34F(4)(d)(ii).
115
Ibid., s34AB.
116
Ibid., s34G.
117
Op.cit., Monitor Annual Report, p.34
114
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117. The Law Council agrees with this observation which supports the Law Council’s
general recommendation that the questioning and detention regime in Part III
Division 3 be replaced with a system of compulsory questioning that incorporates a
more effective level of judicial oversight.
Question 16: Does the possible resort either to a questioning and
detention warrant or to arrest of the same person for the same
circumstances give an inappropriate discretion to officers of the
executive?
118. This question reflects one of the most significant concerns held by the Law Council
in respect of the current counter-terrorism regime.
119. The Law Council is of the view that the Director-General of ASIO’s power under Part
III Division 3 to request a questioning and detention warrant and police powers to
arrest and detain the same person for the same circumstances give an inappropriate
discretion to the officers of the executive.
120. Under Part III Division 3, the Director-General of ASIO may request that a person be
detained and questioned for an extended period on the basis that he or she has
information that will substantially assist the collection of intelligence that is important
in relation to a terrorism offence. As discussed above, there is less effective
oversight of this questioning and detention regime than that provided by other
criminal intelligence gathering regimes such as that of the ACC.
121. Alternatively, police can utilise the powers contained in Part 1C of the Crimes Act to
arrest and detain a person they believe, on reasonable grounds, to be committing or
to have committed a terrorist offence. Once arrested pursuant to section 3W of the
Crimes Act, the person can then be detained for the purpose of investigating (a)
whether the person committed the offence for which he or she was arrested and/or
(b) whether the person committed another terrorism offence that the investigating
officer reasonably suspects the person to have committed. 118 While the maximum
period the person can be detained during this investigation period is 24 hours, this
can be significantly longer as a broad range of time periods are excluded from the
calculation of the investigation period.
122. The Law Council is opposed to the extended detention of persons who have not
been charged with a criminal offence. Officers of the executive have no common law
power to detain arrested persons for the purpose of furthering their investigations,
notwithstanding any detrimental effects this may have on the investigation of
criminal conduct or the collection of intelligence. The terrorism provisions of Part 1C
of the Crimes Act and the questioning and detention powers under Part III Division 3
of the ASIO Act both abrogate this common law principle.
123. The Law Council is particularly concerned that, when faced with the choice between
these two extraordinary investigative powers, officers of the executive may be
motivated to utilise questioning and detention warrants, which are subject to less
effective oversight.
124. The Law Council notes that the use of the Part 1C provisions was subject to
significant criticism in the Haneef case, which involved the detention of Dr Haneef
for 12 days without charge, and which was explored in some detail in the Clarke
118
Crimes Act 1914 (Cth), s23DB.
2012 09 10 S questioning and detention warrants Final
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Inquiry into the case.119 While many aspects of this criticism have been addressed
in the Government’s response to the Clarke Inquiry’s recommendations, 120 the fact
that the use of Part 1C may cause difficulties for officers of the executive may result
in the inappropriate use of discretion in favour of the use of ASIO’s questioning and
detention powers where that is possible. The Law Council notes that while Dr
Haneef was not of interest to ASIO, there are likely to be cases as foreshadowed by
the Monitor where persons are likely to be of interest to both ASIO and the police. 121
125. The Law Council welcomes the Monitor’s interest in this question and is of the view
that this issue requires careful consideration by the Government and the law
enforcement and intelligence agencies exercising these powers.
Question 17: Should the issuing authority, being a judicial officer,
rather than the Attorney-General, or as well as the AttorneyGeneral, determine the existence of a condition for the issue of a
questioning and detention warrant?
126. The Law Council supports authorisation and oversight of the use of questioning and
detention powers by judicial officers, and refers to its comments above in relation to
questions 14 and 15 in response to this question.
Question 18: Should the offence of failing to produce records or
things under a warrant explicitly extend to deliberate
destruction?
127. The Law Council supports the modification of the existing offence in section 34L of
the ASIO Act relating to the failure to produce things or records under a warrant, to
include an offence of intentionally destroying or damaging material requested to be
produced under a Part III Division 3 warrant.
128. The Law Council maintains its general concerns about the range and scope of the
offences contained in section 34L and queries the appropriateness of the maximum
penalty of five years imprisonment. However, the Law Council notes that such an
offence would be a means of addressing the risk of the destruction or damaging of
material requested to be produced under a questioning warrant rather than
addressing this risk through the detention of a person under a questioning and
detention warrant.
119
The Clarke Inquiry into the case of Dr Mohamed Haneef was established in March 2008. A copy of the
Report issued in November 2008 can be found at
http://www.haneefcaseinquiry.gov.au/www/inquiry/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5
C20)~Volume+1+FINAL.pdf/$file/Volume+1+FINAL.pdf. A copy of the Law Council’s submission to the Clarke
Inquiry is available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=8F91014D-1E4F-17FA-D2B0179B165CC7B9&siteName=lca
120
The Government issued its response to the recommendations in the Clarke Inquiry in December 2008.
They are summarised in a document available at
http://www.ag.gov.au/Publications/Pages/AustralianGovernmentresponsetoClarkeInquiryintotheCaseofDrMoh
amedHaneefDecember2008.aspx
121
Op.cit., Monitor’s Annual Report, p. 35.
2012 09 10 S questioning and detention warrants Final
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Question 19: Is the disparity between length of imprisonment for
offences against security obligations in relation to questioning
warrants and for offences of deliberate contravention of
safeguards in relation to questioning warrants appropriate?
129. The Law Council is of the view that consideration should be given to reducing the
maximum penalty imposed for contravention of the secrecy provisions in section
34ZS of the ASIO Act to more closely align with the penalties imposed in relation to
the deliberate contravention of the limited safeguards contained in Part III Division 3.
130. Section 34ZS of the ASIO Act contains a broad range of offences designed to
preserve secrecy relating to warrants and questioning undertaken pursuant to Part
III Division 3. For example, it is an offence punishable by a maximum of five years
imprisonment for a person to disclose information in prescribed circumstances
including information that a warrant has even been issued. 122 This offence relates to
the period before the warrant expires. There is also an offence for disclosing certain
information which relates to the period up to two years after the expiry of the
warrant.123 The maximum penalty for this offence is also five years imprisonment.
Certain forms of disclosure are permitted, such as disclosure to the Commonwealth
Ombudsman, but are limited to specific forms of disclosure outlined in this section.
131. Section 34ZF of the ASIO Act makes it an offence to contravene certain safeguards
contained in Part III Division 3 of the Act. For example, it is an offence for a police
officer to knowingly fail to make arrangements for a person who is in custody for the
purposes of a Part III Division 3 warrant to be immediately brought before a
prescribed authority for questioning. It is also an offence for a police officer to
conduct a strip search of a person detained under this Division without the approval
of a prescribed authority or the consent of the detained person. The offences in this
section attract a maximum penalty of two years imprisonment.
132. The Law Council agrees with the observations of the Monitor that the penalties
attached to the secrecy offence provisions in section 34ZS may need to be
reconsidered in light of the penalties attached to the offences of deliberate
contravention of safeguards in section 34ZF. 124
133. The Law Council has previously raised concerns about the secrecy offence
provisions.125
The Law Council considers that the penalty of five years
imprisonment in relation to the secrecy provisions is too high. In many cases,
contraventions of the secrecy offence provisions are likely to be relatively minor
(such as disclosure of the fact of questioning to a relative, close friend or colleague)
and may not have significant consequences for the collection of intelligence or
subsequent investigation.
134. The Law Council considers that the penalties for the safeguard offence provisions in
section 34ZF are consistent with the penalties for offences relating to the
contravention of safeguards in respect of the control order regime in Division 104 of
the Criminal Code. The Law Council considers this to be an appropriate penalty for
this type of offence.
122
ASIO Act s34ZS(1).
Ibid., s34ZS(2).
124
Op.cit., Monitor’s Annual Report, p. 35.
125
Op.cit., Anti-Terrorism Reform Project , p. 86.
123
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Question 20: Is the degree and nature of permitted contact by a
person being questioned under a warrant sufficient?
135. The Law Council is of the view that the degree and nature of permitted contact by a
person being questioned under a warrant is insufficient.
136. Individuals who are subject to a warrant under Part III Division 3 of the ASIO Act are
only able to enjoy limited contact with others. It is permitted, in certain
circumstances, for persons questioned and/or detained under a Part III Division 3
warrant to contact a single lawyer of their choice.126 However, this contact can be
tightly controlled and limited by the prescribed authority.127
137. Section 34G(5) provides that a questioning and detention warrant may identify
someone whom the person is permitted to contact by reference to the fact that he or
she is a lawyer of the person’s choice or has a particular legal or familial relationship
with the person.
138. Section 34ZO allows the prescribed authority to prevent contact with a particular
lawyer of the person’s choice (even when the person is being detained under a
warrant), or to limit that contact, if, for example, the prescribed authority is satisfied
that contact with the particular lawyer may cause a record or thing relevant to the
warrant to be destroyed or damaged.
139. In addition, subsection 34ZP(1) makes it clear that questioning under either warrant
can occur in the absence of a lawyer of a person’s choice.
140. Further, subsection 34ZQ(2) provides that contact with a specified lawyer by a
person subject to a questioning or questioning and detention warrant can be
“monitored by a person exercising authority under the warrant.”128
141. The Law Council considers that any person compelled to answer questions pursuant
to a warrant must be entitled to access a lawyer at all stages of the questioning
process, without that communication being monitored or otherwise restricted.
142. Such access is necessary to ensure that the person subject to the warrant can
exercise his or her right to challenge the legality of the detention, the conditions of
detention and any ill-treatment occurring during the questioning process.129
126
Subsections 34D(5) and 34E(3) of the ASIO Act make it clear that a questioning or questioning and
detention warrant must permit the person to contact ‘a single lawyer of the person’s choice at any time the
person is appearing before a prescribed authority for questioning under the warrant’ and at any time the
person is in detention in connection with the warrant and at a time after detention However, these provisions
also provide that the person being questioned and/or detained must inform the prescribed authority of the
identity of the lawyer and the person exercising authority under the warrant must be given the opportunity to
request that the prescribed authority direct that the person be prevented from contacting the lawyer.
127
For example, subsection 34G(5) of the ASIO Act provides that, as a person is generally prohibited from
contacting any persons not named in the warrant, a questioning and detention warrant must identify the single
lawyer of the persons choice. A questioning and detention warrant may also specify a time when the person
is permitted to contact the person identified as a lawyer.
128
ASIO Act s34ZQ. However, subsection 34ZQ(3) provides that subsection 34ZQ(2) does not apply in
relation to contact with a lawyer where that contact is covered by subsection 34E(3)(a). Section 34ZQ further
provides that although a legal adviser may provide legal advice in the breaks between questioning, a legal
adviser must not disrupt questioning. Pursuant to subsection 34ZQ(9), if a prescribed authority considers the
legal adviser’s conduct is unduly disrupting the questioning, the authority may direct the removal of the legal
adviser from the place where the questioning is occurring.
129
This view is supported by the UN Human Rights Committee, see UN Human Rights Committee, General
Comment No 20: Replaces General Comment No 7 concerning prohibition of torture and cruel treatment or
punishment, 10/03/92 at [11].
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143. Without access to independent legal counsel, the guarantee in section 34T - that
persons detained should be treated with humanity and respect for human dignity – is
rendered meaningless. Unless detainees can freely access legal advice and
communicate confidentially with their lawyer, there are no practical means to
challenge any ill-treatment.
144. The right to communicate with the IGIS and the Ombudsman,130 whilst a laudable
supplementary safeguard, is inadequate to ensure that detained persons, or
persons on behalf of detained persons, are able to bring proceedings challenging
the lawfulness of the detention and their treatment whilst being questioned or
detained.
145. The Law Council also notes that access by a lawyer to relevant information may be
further restricted by regulation. 131 For example, Regulation 3B of the ASIO
Regulations 1980 provides that access to security information 132 for proceedings
relating to a Part III Division 3 warrant, or the treatment of a person in connection
with such a warrant, must not be given to a lawyer unless:
•
the Attorney-General's Department has given the lawyer a security clearance
at the level considered appropriate by the Secretary [of the Attorney-General’s
Department] in relation to the information; or
•
the Secretary is satisfied that giving the lawyer access to the information
would not be prejudicial to the interests of security.
146. The Regulation also provides that access to security information may be given
subject to any conditions that the Attorney-General’s Department considers
appropriate such as conditions relating to the use, handling, storage or disclosure of
the information.133 It also provides that nothing in the Regulation entitles a lawyer
who is given a security clearance by the Attorney-General's Department to be given
access to security information. 134
147. As explained above, the Law Council is of the view that the questioning and
detention powers under Part III Division 3 of the ASIO Act should be repealed and
replaced with an alternative approach to gathering information about terrorist-related
and other serious offences. Central to this alternative approach is the need for
persons being questioned to be entitled to legal representation during the process,
and for ASIO’s processes to accord with other recognised criminal intelligence
procedures such as the compulsory questioning regime of the ACC.
148. If the current questioning and detention regime is retained, the Law Council
recommends that all persons the subject of a Part III Division 3 warrant should have
access to a lawyer of their choice, and that access to this lawyer should not be
subject to limitation. In addition, a lawyer of the person’s choice should be entitled
to be present during the entire questioning process and persons detained or
questioned should be entitled to make representations through their lawyer to the
prescribed authority.
Furthermore, the Law Council recommends that all
130
Section 34K permits the person to contact the Inspector General of Intelligence and Security , the
Ombudsman and a person referred to in the Australian Federal Police Act 1979 s40SB(3)(b) while the person
is in custody or detention.
131
ASIO Act s34ZT.
132
Pursuant to Regulation 3B of the Australian Security Intelligence Organisation Regulations 1980 ‘security
information’ means “information access to which is controlled or limited on security grounds, otherwise than by
this regulation.”.
133
Australian Security Intelligence Organisation Regulations 1980 Reg 3B(3)
134
Ibid., Reg 3B(4)
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communications between a lawyer and his or her client should be recognised as
confidential and adequate facilities should be provided to ensure the confidentiality
of communications between the lawyer and client. The Law Council also considers
that lawyers should not be subject to requirements of the Attorney-General’s
Department in relation to access to security information for proceedings or matters
relating to Part III Division 3 warrants.
Question 21: Should questioning and detention warrants remain
available at all?
149. The Law Council is of the view that the questioning and detention powers under Part
III Division 3 of the ASIO Act should not remain available and should be repealed
and replaced with an alternative approach to gathering information about terroristrelated and other serious offences.
150. If the Government seeks to justify restriction of liberty on the basis of the need to
pre-empt and prevent terrorist activity, it must ensure that its legislative response is
the least restrictive means of achieving that protective purpose.
151. The Law Council does not consider that the questioning and detention warrants
regime satisfies such a requirement. This view is shared by the UNHRC which has
noted that:
“… if so-called preventive detention is used, for reasons of public security, …. it
must not be arbitrary, and must be based on grounds and procedures established
by law…information of the reasons must be given … and court control of the
detention must be available…as well as compensation in the case of a breach
…“ 135
152. The Law Council is of the view that ASIO’s questioning and detention powers do not
meet these criteria, and accordingly, should no longer be available.
Preventative detention and control orders
Outline of Preventative Detention Orders and Control Orders
available under Divisions 104 and 105 of the Criminal Code
153. The Anti-Terrorism (No 2) Act 2005 (Cth) introduced a system of control orders and
preventative detention orders into the Criminal Code (Division 104 and 105
respectively). Under these Divisions, a person’s liberty can be controlled or
restricted without the person being charged or convicted of or even suspected of
committing a criminal offence.
154. When introducing these measures, the Government took the view that these
restrictions on the right to liberty were necessary to empower police to act to prevent
terrorist-related activity from occurring. 136 However, despite the bipartisan support at
135
UN Human Rights Committee, General Comment on Article 9, General Comment No 8, 30/06/82. Available
at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/f4253f9572cd4700c12563ed00483bec?Opendocument
136
See Hon. J. Howard (Prime Minister), Counter-Terrorism Laws Strengthened, Media Release, Canberra, 8
September 2005, available at http://pandora.nla.gov.au/pan/10052/200511210000/www.pm.gov.au/news/media_releases/media_Release1551.html; Hon. J. Howard (Prime Minister),
Anti-Terrorism Bill, Media Release, Canberra, 2 November 2005, available at
http://pandora.nla.gov.au/pan/10052/20051121-
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the time of their introduction, these powers have attracted considerable controversy
and a High Court challenge as to their constitutional validity. 137
155. The Law Council has expressed concern about these orders in previous
advocacy.138
Control orders
156. A control order is made by an issuing court (for example, the Federal Magistrates
Court).139 Before making an order, the court must be satisfied either: 140
•
that the order would substantially assist in preventing a terrorist act; or
•
that the person who is to be subject of the control order has provided training
to or received training from a terrorist organisation.
157. Interim control orders are obtained on application by an AFP officer after obtaining
the consent of the Attorney-General.141 The application may be made without
having to notify the person concerned of the application. 142 If the AFP officer applies
to confirm the order, the person subject to the order must be notified, and may
appear and give evidence before the issuing court.143 The issuing court may then
revoke, confirm or vary the interim control order. 144
158. If confirming the order, the court must be satisfied on the balance of probabilities
that each of the obligations, prohibitions and restrictions to be imposed on the
person by the order is reasonably necessary, and reasonably appropriate and
adapted, for the purpose of protecting the public from a terrorist act. 145
159. Control orders may limit a person’s liberty, freedom of movement and freedom of
association in the following ways: 146
•
a prohibition or restriction on the person being at specified areas or places;
•
a prohibition or restriction on the person leaving Australia;
•
a requirement that the person remain at specified premises between specified
times each day, or on specified days;
•
a requirement that the person wear a tracking device;
•
a prohibition or restriction on the person communicating or associating with
specified individuals;
0000/www.pm.gov.au/news/media_releases/media_Release1659.html. See further Patrick Walters, ‘Radical
youths in fear of arrest as law passed’, The Australian, 4 November 2005.
137
See Thomas v Mowbray (2007) 237 ALR 194.
138
See for example, Law Council of Australia, Shadow Report on Australia’s Common Core Document,
Reporting to the UN Human Rights Committee, 29 August 2008, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=5C22F5E8-005D-AA08-7133503A96CBB3B1&siteName=lca;
139
An issuing court is defined in s100.1 Criminal Code Act 1995 (Cth) (the Criminal Code) to include the
Federal Court, the Family Court or the Federal Magistrates Court.
140
Criminal Code s104.4 (interim order); s104.16 (confirmed order).
141
Ibid., s104.2.
142
Ibid., s104.3.
143
Ibid., s104.12.
144
Ibid., s104.14.
145
Ibid., s104.4 (interim order); s104.16 (confirmed order).
146
Ibid., s104.5(3).
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•
a prohibition or restriction on the person accessing or using specified forms of
telecommunication or other technology (including the Internet);
•
a prohibition or restriction on the person possessing or using specified articles
or substances;
•
a prohibition or restriction on the person carrying out specified activities
(including in respect of his or her work or occupation);
•
a requirement that the person report to specified persons at specified times
and places;
•
a requirement that the person allow himself or herself to be photographed;
•
a requirement that the person allow impressions of his or her fingerprints to be
taken; and
•
a requirement that the person participate in specified counselling or education.
160. These restrictions may be imposed on a person for up to 12 months.147
Preventative Detention Orders
161. A preventative detention order enables a person to be taken into custody and
detained by the AFP in a State or Territory prison or remand centre for an initial
period of up to 24 hours, with an option to have the order continued for a total period
not exceeding 48 hours.148
162. Preventative detention orders can be issued where there are reasonable grounds to
suspect that the person will engage in a terrorist act or engage in the preparation or
planning of a terrorist act.149
163. There are two types of preventative detention orders: (1) initial preventative
detention orders issued by senior members of the AFP;150 and (2) continued
preventative detention orders and extensions of continued preventative detention
orders, issued by an ‘issuing authority’ (such as a Judge, Federal Magistrate or
Tribunal member) on application by an AFP officer. 151
164. Continued preventative detention may last for a further period that is not more than
48 hours from the time the person was first taken into custody. 152 Before making a
continued preventative detention order, an issuing authority must be satisfied that: 153
•
there are reasonable grounds to suspect that the person will engage in a
terrorist act, possesses a thing that is connected with the preparation for, or
the engagement of a person in a terrorist act; or has done an act in
preparation for or planning a terrorist act; and
•
making the order will substantially assist in preventing a terrorist act occurring;
and
147
Ibid., s104.5.
Ibid., ss 105.8(5) and 105.12(5).
149
Ibid., s105.4.
150
Ibid., s 105.8(1).
151
Ibid., s 105.10 and 105.11
152
Ibid., s 105.14.
153
Ibid., s 105.4(4).
148
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•
detaining the subject for the period of the order is reasonably necessary.
165. Reporting requirements apply to both control orders and preventative detention
orders. Pursuant to sections 104.29 and 105.47 of the Criminal Code the AFP is
required to report annually to the Attorney-General and provide information on a
number of matters including the number and type of orders made, whether they
were confirmed and the particulars of any complaints made to the Ombudsman. 154
Since their introduction in 2005, no preventative detention orders have been made.
Control orders have only been issued on two occasions, once in the case of Jack
Thomas following his successful appeal against conviction and sentence,155 and
once in the case of David Hicks,156 following his release from prison.
Law Council’s General Concerns
166. Although the High Court has ruled that the control order regime contained in Division
104 of the Criminal Code is constitutionally valid and does not invest the judiciary
with powers contrary to Chapter 3 of the Constitution, 157 the Law Council continues
to hold serious concerns about the operation of the control order and preventive
detention regime. 158 These concerns relate to:
•
The absence of demonstrated necessity for such extraordinary powers,
particularly in light of the broad range of alternative provisions providing for the
prevention and prosecution of terrorist acts.
-
For example, under the Criminal Code it is an offence to attempt,
procure, incite or conspire to commit any offence, including terroristrelated offences,159 and such offences incur the same penalties as the
completed offence. Each of these ancillary offences allows police to
take pre-emptive action to prevent the commission of a terrorist act.
However, unlike the control order and preventative detention order
regimes, they require police to establish a connection between a suspect
and the planned commission of a particular offence before action can be
taken to arrest and charge a person.
154
An example of such a report can be found at the AFP website, see
http://www.afp.gov.au/__data/assets/pdf_file/62633/Preventative_Control06_07.pdf
155
R v Thomas [2006] VSCA 165 (18 August 2006). See also Thomas v Mowbray (2007) 237 ALR 194.
156
David Hicks is an Australian citizen who undertook combat training in al Qaeda-linked camps and served
with the Taliban regime in Afghanistan in 2001. Mr Hicks was apprehended and detained by the US
Government in Guantanamo Bay until 2007. In 2007 Mr Hicks pleaded guilty to a US charge of "providing
material support for terrorism” and was returned to Australia to serve the remaining nine months of a
suspended seven-year sentence. When Mr Hicks was released from prison in December 2007, he was
placed under an interim control order. The order was issued on the basis that Mr Hicks, having allegedly
trained with a terrorist organisation and once expressed support for a violent ideology, represented an
unacceptable risk to the community. The interim control order was confirmed (with some changes to the
conditions of the order) by a Federal Magistrate on 19 February 2008. See Jabbour v Hicks [2007] FMCA
2139.
157
In Thomas v Mowbray (2007) 237 ALR 194 the majority of the High Court upheld the validity of the control
order regime. It found that the legislation was supported by power to make laws with respect to the defence of
Australia, and that this included the power to make laws in response to international terrorism. The majority
also found that the type of power the control orders regime vested in the judiciary was not contrary to the
Australian Constitution.
158
See for example Law Council of Australia, Submission to the Senate Legal and Constitutional Committee,
Anti-Terrorism (No. 2) Bill 2005 (11 November 2005); Law Council of Australia Submission to the United
Nations Human Rights Committee, Shadow Report to Australia’s Common Core Document (29 August 2008);
Law Council of Australia Submission to the Attorney-General’s Department, Australia’s response to the
concluding observations of the UN Committee against torture (1 September 2008). A number of the Law
Council’s constituent bodies have also engaged in advocacy on this issue, see for example Law Institute of
Victoria Submission Anti-Terrorism Bill (No.2) 2005 (Vic) (09 November 2005).
159
Criminal Code (Cth) Part 2.4.
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•
Restriction of liberty based on suspicion rather than charge.
-
•
The control orders regime can provide the executive government with a
‘second chance’ to restrict the liberty of persons of interest where there
is insufficient evidence to convict them of a criminal offence. For
example, when former Guantanamo Bay prisoner, David Hicks, was
released from prison, he was placed under a control order. The order
was issued on the basis that Mr Hicks, having allegedly trained with a
terrorist organisation and once expressed support for a violent ideology,
represented an unacceptable risk to the community. All the evidence
relied upon to establish that risk was more than six years old. Mr Hicks’
long period of incarceration at Guantanamo Bay, his willingness to assist
police and other authorities during his detention, and his purported
change of views did not dissuade the authorities from applying for a
control order.
The absence of independent review.
-
For example, decisions made under section 104.2 or Division 105 of the
Criminal Code are excluded from judicial review under the ADJR Act. 160
This, coupled with inadequate access to information and limited access
to legal representation, makes it very difficult for a person subject to a
control order or a preventative detention order to ascertain the true basis
for the order being made, challenge the legality of the order, or
challenge the conditions of their detention.
167. On the basis of these concerns, the Law Council recommends that the control order
and preventative detention order regime in Divisions 104 and 105 of the Criminal
Code be repealed. If the provisions are to remain, the Law Council recommends
that amendments are made to:
160
•
prescribe a maximum period for which a person can be held under successive
continued preventative detention orders in Division 105;
•
ensure a person who is the subject of a control order or a preventative
detention order is provided with all the information and evidence that forms the
basis of the application for such an order, or at the very least, that the court
should be empowered to exercise discretion in this regard;
•
ensure a person subject to a preventative detention order is entitled to attend
an application hearing and present his or her case;
•
repeal section 105.38 which provides that any contact between a detained
person and his or her lawyer must be monitored. At the very least, the courts
should be given discretion to determine whether such monitoring is required;
•
subject the exercise of powers under Divisions 104 and 105 of the Criminal
Code to full judicial review under the ADJR Act; and
•
appoint an independent body such as a Public Interest Monitor with access to
all material upon which an application for control orders and/or preventative
detention orders is based.
Administrative Decisions (Judicial Review) Act 1997 (Cth) Schedule ,1 s3 (dab), (dac).
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Question 41: Should anything be done about doubtful aspects of
the constitutional validity of control orders and preventative
detention orders under the Criminal Code?
168. With the assistance of its National Criminal Law Liaison Committee, the Law Council
hopes to provide a supplementary submission addressing this important question in
the near future.
Question 42: Do international comparators support or oppose the
effectiveness and appropriateness of control orders and
preventative detention orders?
169. The use of control orders in the context of counter-terrorism in overseas jurisdictions
such as the United Kingdom (UK) provides important lessons for Australia.
However, these lessons must also recognise the differences in the legal framework
governing the making and use of such orders, the different human rights protections
and the different historical context in the UK.
170. Whilst it has been suggested that UK control orders have been effective in fulfilling
their primary aim of disrupting terrorist activity, 161 they have been criticised for their
impact on the collection of evidence for criminal prosecutions. 162 They have also
been criticised for the way in which they have permitted the executive to “… impose
intrusive measures on the individual, challengeable only by way of a closed material
procedure and after significant delay.” 163
171. When first introduced in 2005 the control order regime in the UK contained a
number of similarities to that in Australia. For instance, suspects had limitations
placed on their movement;164 could be prohibited from communicating or associating
with specified individuals; 165 and were prohibited or restricted from accessing or
using specified forms of telecommunications such as mobile phones and the
internet.166
172. However, significant changes to the control order regime have been made as a
result of a recent review of UK counter-terrorism powers. The results of this review
may assist in assessing the effectiveness and appropriateness of the Australian
control order regime.
UK Review of Counter-Terrorism Powers
173. On 13 July 2010, the Home Secretary of the UK announced a Review of Security
and Counter-Terrorism Powers. This review was carried out by the Office for
Security and Counter-Terrorism with the independent oversight of Lord Macdonald
of River Glaven QC (Lord Macdonald). 167 One of the issues that the review
161
D. Anderson QC, Control Orders in 2011 – Final Report of the Independent Reviewer on the Prevention of
Terrorism Act 2005, March 2012, p.6. Available from
http://terrorismlegislationreviewer.independent.gov.uk/publications/control-orders-2011?view=Binary
( Anderson Report)
162
Lord Macdonald of River Glaven QC, Review of Counter-Terrorism and Security Powers, January 2011,
p.9. Available from http://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-securitypowers/report-by-lord-mcdonald?view=Binary (the Lord Macdonald Review)
163
Op.cit., Anderson Report, p.7.
164
Prevention of Terrorism Act 2005 (UK), s.1(4)(f) – (h)
165
Ibid., s.1(4)(d)
166
Ibid., s.1(4)(b)
167
Op.cit., Lord MacDonald Review, p.1.
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considered was whether there was a continuing need for the control order regime in
the UK.
174. In his report, Lord Macdonald found that the restrictive nature of the control order
regime and the limits it placed on the freedom of suspects to move around, meet
other named individuals and access certain communications such as the internet
and phone, placed terrorism suspects in ‘evidence limbo’ and effectively acted as
“an impediment to prosecution.” 168
175. Central to his concerns was the impact that the use of control orders had on the
ability of law enforcement agencies to gather evidence that would lead to the
successful prosecution, conviction and imprisonment of a terrorism suspect. 169
176. Lord Macdonald acknowledged the need to protect the public from terrorism, but
suggested that this would best be achieved by a different scheme for control orders
with the primary objective of “… encouraging and facilitating the gathering of
evidence, and to diminish any obstruction of justice.” 170
177. The review made a number of recommendations in relation to the control order
regime. These included that:
•
The control order regime should be repealed and that the use of forced
relocation and lengthy curfews that prevent individuals leading a normal daily
life should come to an end.171
•
The Government should move to a new system to protect the public which
should be less intrusive, and facilitate further investigation as well as prevent
terrorist activities. 172
•
There should be no provision to impose conditions that would require
derogation from the European Convention on Human Rights – in other words
no provision for measures which would deprive a person of their right to
liberty.173
•
The High Court should undertake a mandatory full review of each case after
the measures have been imposed, with a power to quash or revoke the
measures.174
•
The new measures should be subject to a maximum time limit of two years.175
•
The new measures should allow greater freedom of communication and
association than the control order regime, placing only limited restrictions on
communications, including use of the internet, and on the freedom to
associate.176
168
Ibid., p.9.
Ibid.
170
Ibid., p.10.
171
Ibid.,p.41.
172
Ibid., p.41.
173
Ibid., pp.41-42.
174
Ibid., p.41.
175
Ibid.
176
Ibid.
169
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The Introduction of the Terrorism Prevention and Investigation Measures
178. The Terrorism Prevention and Investigation Measures (TPim) replaced the UK
control orders regime in January 2012. 177 TPims differ from control orders in a
number of ways. For instance, TPims are limited to a maximum duration of two
years; require a higher evidentiary test to be satisfied before they can be made; and
impose fewer restrictions on a person compared to the control order regime. 178
179. Under the Prevention of Terrorism Act 2005, control orders could be made by the
UK Secretary of State if he or she had a reasonable suspicion that an individual was
or had been involved in a terrorism related activity. 179 This ‘reasonable suspicion’
test has now been replaced by a test of ‘reasonable belief’ that a person is, or has
been, involved in terrorism-related activity.180 As noted by the UK Independent
Reviewer of Terrorism Legislation (the Reviewer), David Anderson QC, the latter
test is a more stringent test.181
180. In addition to this, the restrictions on electronic communications that existed under
the control orders regime have now been replaced by a provision which requires the
subject to be allowed to use fixed line and mobile telephones and a computer with
internet access.182
181. The power of authorities to confine controlled persons to a particular area has also
been replaced under the TPim system by the power to exclude them from particular
specified areas or places.183 As noted by the Reviewer, this power still allows a
controlled person to be prevented from visiting a particular street where an
associate lives, but no longer restricts the controlled person to a particular area of
the controlled person’s own town.184
182. In his March 2011 report on control orders, the Reviewer made a series of
recommendations for how the new TPim system should operate based on his
observations about the previous control order regime. Central to these was the need
to ensure:
a)
That TPims are used only as a last resort and when prosecution, deportation
or less intrusive executive measures are not a feasible alternative; 185
b)
That no individual measure is imposed unless the Secretary of State is
satisfied that it is necessary for purposes connected with preventing or
restricting the individual’s involvement in terrorism-related activity;186 and
c)
That there is the highest possible degree of fairness in the closed material
procedure, by giving sufficient information in all TPim cases to enable the
subject to give effective instructions.187
177
TPims are made under the Terrorism Prevention and Investigative Measures Act 2011 (TPIMA 2011).
Op.cit., Anderson Report, p.7
179
Prevention of Terrorism Act 2005 (UK), s.2(1)(a).
180
Terrorism Prevention and Investigative Measures Act 2011 (UK) s 3(1).
181
Op.cit., Anderson Report, p.64.
182
Ibid., p.67
183
Terrorism Prevention and Investigative Measures Act 2011 (UK) Schedule 1 para 3.
184
Op.cit., Anderson Report, p 67.
185
Ibid., p.7.
186
Ibid.
187
Ibid.
178
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183. The Law Council considers that the reviews relating to control orders in the UK 188
provide useful lessons for consideration of the Australian regime while
acknowledging the different context of the UK regime.
Question 43: Does non-use of control orders and preventative
detention orders suggest they are not necessary?
184. Since their introduction in 2005, no preventative detention orders have been
made.189 The Law Council is of the view that the non-use of preventative detention
orders and the limited use of control orders suggests that they should not form part
of the counter-terrorism response in Australia.
185. As the Law Council has previously submitted, the need for preventative detention
orders was not demonstrated at the time of their introduction and remains unclear,
particularly when regard is had to the range of other powers available to law
enforcement officers to enable them to take a preventative approach to terrorist
activity.
186. As discussed above, the Law Council has previously identified the following features
of the preventative detention regime that give rise to particular concern:
•
The regime displaces the safeguards inherent in the criminal justice system
and authorises the imprisonment and restriction of freedom of people in
relation to whom there is insufficient evidence to prosecute for a criminal
offence.
•
The regime effectively renders some individuals at constant risk of having their
liberty curtailed. Once branded a risk, a person remains forever vulnerable to
executive intrusion, since there is no obvious expiry date on a person's
'potential terrorist' status.
•
Preventative detention orders also restrict detainees’ rights to legal
representation by only allowing detainees access to legal representation for
limited purposes such as obtaining advice or giving instructions regarding the
issue of the order or treatment while in detention.190 Contact with a lawyer for
any other purpose is not permitted. In addition, both the content and the
meaning of communication between a lawyer and a detained person can be
monitored.191
187. In light of the above, the Law Council has previously recommended that the
preventative detention order regime in Division 105 of the Criminal Code be
repealed. The lack of use of such orders further confirms that there is little need for
such extraordinary powers.
188. If the provisions are to remain, the Law Council recommends that the provisions
should be amended to:
•
prescribe a maximum period for which a person can be held under successive
continued preventative detention orders in Division 105 of the Criminal Code;
188
Ibid.
As noted above, control orders have only been issued on two occasions - once in the case of Jack Thomas
following his successful appeal against conviction and sentence, Thomas v Mowbray (2007) 237 ALR 194
and once in the case of David Hicks Jabbour v Hicks [2007] FMCA 2139 following his release from prison.
190
Ibid., s105.37(1).
191
Ibid., s105.38.
189
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•
ensure a person who is the subject of a preventative detention order is
provided with all the information and evidence that forms the basis of the
application for such an order, or at the very least, that the court is able to
exercise discretion in this regard;
•
ensure a person subject to a preventative detention order is entitled to attend
an application hearing and present his or her case;
•
repeal section 105.38, that provides that any contact between a detained
person and his or her lawyer must be monitored. At the very least, the courts
should be given discretion to determine whether such monitoring is required;
and
•
subject the exercise of powers under Division 105 of the Criminal Code to full
judicial review under the ADJR Act.
Question 44: Should control orders and preventative detention
orders be more readily available?
189. As noted above, the Law Council does not consider that control orders and
preventative detention orders should be more readily available.
190. The Law Council is concerned about the point that the control order and
preventative detention order regimes are not based on the fact that a person is
suspected to have committed or is alleged to have committed or has been proven to
have committed a particular offence, but rather on the basis that they might commit
or facilitate the commission of an offence. As Professors Andrew Lynch and George
Williams explain:
“Both schemes represent an attempt to avoid the accepted judicial
procedures for testing and challenging evidence in criminal trials that are
normally applied before a person is deprived of their liberty. This is clearly so
in respect of the preventative detention orders, which may be issued by an
individual officer simply on the basis of reasonable suspicion, but also
applies to the use of a lower standard of proof by courts charged with issuing
control orders. The broad scope of the latter – as well as their longer
duration – makes this concern particularly strong.” 192
191. Such orders effectively provide the executive government with a ‘second chance’ to
restrict the liberty of persons of interest where there is insufficient evidence to
convict them of a criminal offence. The Law Council considers that preventative
detention and control orders undermine the safeguards that have traditionally
existed in the criminal justice system. 193 For example, control orders remove the
right to be presumed innocent until proven guilty according to law,194 and limit the
right of the person subject to the order to challenge the legality of the order by
restricting access to relevant information. 195 As the Law Council’s former President
192
Andrew Lynch and George Williams, What Price Security? Taking Stock of Australia’s Anti-Terror Laws
(2006). UNSW Press.
193
See Law Council submission to UN Human Rights Committee, Shadow Report to Australia’s Common
Core Document, 29 August 2008, pp.72-75. Available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=5C22F5E8-005D-AA08-7133503A96CBB3B1&siteName=lca
194
Criminal Code s104.5(3).
195
Ibid., s104.12A(3)(a).
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John North observed when the control orders and preventative detention orders
were introduced in 2005:
“Australia’s formal criminal justice system embraces critically important
guarantees and safeguards, including the right of an accused to a fair trial,
rules of evidence which are fair, the presumption of innocence and the
requirement that guilt be established beyond reasonable doubt. These
safeguards and minimum guarantees have been in place for centuries to try
and punish those who can be convicted beyond reasonable doubt. It is
unheard of in Australian law to have people held or detained for long periods
under very strict conditions unless we follow these legal safeguards.”196
192. The Law Council is also concerned about the absence of independent review in the
preventative detention and control orders regimes. Despite the extraordinary nature
of the control order and preventative detention orders, these powers exist without
adequate structures for independent review.
Question 45: Should control orders and preventative detention
orders require a relevant prior conviction and unsatisfactory
rehabilitation?
193. The Law Council is opposed to the continued use of control orders and preventative
detention orders, but, if these orders continue to be available, the Law Council
would support the introduction of the requirement of a relevant prior conviction and
evidence of unsatisfactory rehabilitation as a requirement for the making of such
orders.
194. The Law Council notes the Monitor’s observations that control orders are not unique
to counter-terrorism laws, but are a feature of many regimes designed to take a
preventative approach to protecting the community from criminal activity. For
example, apprehended violence orders can be obtained against persons at risk of
engaging in domestic violence, and continuing detention orders can be issued for
convicted sex offenders who have otherwise served their sentence but continue to
pose an unacceptable risk to the community.
195. These types of orders allow a court or an officer of the executive to proscribe
restrictions on a person’s liberty. The purpose of the restriction is to protect the
community or a particular person or group. They challenge the traditional ‘criminal
justice model’ which is primarily reactive and based upon 'prosecution after the fact’,
and punishment after determination of guilt in a public trial. However, they are
generally subject to conditions which are strictly necessary in the circumstances and
are able to be reviewed. 197
196. While the Law Council has consistently opposed the control order and preventative
detention order regime in Divisions 104 and 105 of the Criminal Code, if the regime
is maintained, the requirement for a relevant prior conviction and unsatisfactory
196
“ Rule of Law and Changes to Human Rights in the Age of Terror: The Impact of New Terrorism Law on the
Innocent” Speech given by John North, President, Law Council of Australia at the Western Australian
Summer School (22 February 2006) available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=A83111A2-1E4F-17FA-D20EDC9DC0FE2580&siteName=lca
197
For further discussion see Nicola McGarrity, ‘An Example of 'Worst Practice'?’ (2010) Vol4(3) International
Constitutional Law Journal p. 467 available at
http://www.internationalconstitutionallaw.net/download/95bab0811233ff3ee79fbcbb0f229dd0/McGarrity.pdf
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rehabilitation would appear to be appropriate requirements for the making of such
orders.
197. These requirements would also bring the anti-terrorism control order and
preventative detention regime into line with preventative detention regimes applying
in other areas of criminal law.
198. For example, in a number of States, control orders or continuing detention orders
can be obtained in respect of serious sex offenders. 198 However before these orders
can be granted, the court must be satisfied that the person has been convicted and
sentenced in respect of a prescribed sex offence, and that he or she has not yet
been successfully rehabilitated and continues to pose a risk to public safety. For
example, before an extended supervision order can be granted under the Crimes
(Serious Sex Offenders) Act 2006 (NSW), the Supreme Court must have regard to a
range of matters including: 199
•
the safety of the community;
•
expert reports about the health and rehabilitation of the offender, including the
results of any assessment prepared by a qualified psychiatrist, registered
psychologist or registered medical practitioner as to the likelihood of the
offender committing a further serious sex offence;
•
the results of any statistical or other assessment as to the likelihood of
persons with histories and characteristics similar to those of the offender
committing a further serious sex offence;
•
any report prepared by Corrective Services NSW as to the extent to which the
offender can reasonably and practicably be managed in the community;
•
any treatment or rehabilitation programs in which the offender has had an
opportunity to participate;
•
the offender’s criminal history and any pattern of offending behaviour
disclosed by that history;
•
the views of the sentencing court at the time the sentence of imprisonment
was imposed on the offender; and
•
any other information that is available as to the likelihood that the offender will
in future commit offences of a sexual nature.
199. These extended supervision orders and the associated continued detention orders
which also feature in these regimes raise rule of law and human rights concerns on
the grounds that they restrict a person’s liberty (potentially indefinitely) after they
have served their sentence for their criminal conduct. However, unlike the terroristrelated provisions, they contain features that operate to limit their use to those
circumstances that present a clear danger to public safety. Having regard to the
range of factors listed above helps to ensure that extended supervision orders or
continued detention orders are only issued when they constitute a necessary and
proportionate response to protecting the community from the risk of serious sexual
198
See for example, Crimes (Serious Sex Offenders) Act 2006 (NSW); Dangerous Prisoners (Sexual
Offenders) Act 2003 (QLD); Dangerous Sexual Offenders Act 2006 (WA ); Serious Sex Offenders (Detention
& Supervision) Act 2009 (VIC).
199
Crimes (Serious Sex Offenders) Act 2006 (NSW) s9(3).
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offending, and when they can be used as an alternative to prolonged incarceration
in prison. As Deane J explained in Veen v The Queen (No.2):
“The protection of the community obviously warrants the introduction of some
acceptable statutory system of preventive restraint to deal with the case of a
person who has been convicted of a violent crime and who, whilst not legally
insane, might represent a grave threat to the safety of other people by reason
of mental abnormality if he were to be released as a matter of course at the
end of what represents a proper punitive sentence. Such a statutory system
could, one would hope, avoid the disadvantages of indeterminate prison
sentences by being based on periodic orders for continuing detention in an
institution other than a gaol and provide a guarantee of regular and thorough
review by psychiatrists and other experts.”200
200. Although it generally opposes the use of control orders and preventative detention
orders, the Law Council considers that Divisions 104 and 105 of the Criminal Code
could be improved by introducing requirements to have regard to the person’s past
criminal conduct and prospects of rehabilitation before a control order or
preventative detention order is issued or confirmed.
201. Introducing these requirements also has the potential to narrow the scope of these
orders and impose some limits on the broad discretion currently invested in the
officers of the executive under these regimes, by requiring some evidence of the
person’s propensity to engage in terrorist activity. It may help focus the attention of
the officers applying for the orders and the courts confirming such orders on the
nature of the risk posed to the community, based on confirmed past conduct rather
than suspicion of future wrongdoing. In so doing, it might begin to address some of
the concerns raised by Kirby J in his dissenting judgment in Thomas v Mowbray
where his Honour observed:
“Div 104 of the Code contemplates the possibility of the loss of liberty,
potentially extending to virtual house arrest, not by reference to past conduct
or even by reference to what that person himself might or might not do in the
future. It is based entirely on a prediction of what is ‘reasonably necessary,
and reasonably appropriate and adapted, for the purpose of protecting the
public from a terrorist act’, a vague, obscure and indeterminate criterion if ever
there was one.”201
202. Although the introduction of the requirements to have regard to the suspect’s
criminal history and rehabilitation would not meet all of the Law Council’s concerns
with the control order and preventative detention provisions, they would at least
provide some meaningful limits on the use of these extraordinary powers.
Conclusion
203. The Law Council considers that ASIO questioning, and questioning and detention
warrants and control orders and preventative detention orders raise serious
concerns in relation to rule of law principles.
204. The Law Council is also of the view that there has yet to be adequate justification of
the need for these extraordinary powers by reference to the necessity to meet actual
and anticipated threats to national security. The onus to demonstrate the need for
200
201
Veen v The Queen (No.2) (1988) 164 CLR 465, 472 per Deane J.
Thomas v Mowbray (2007) 237 ALR 194 per Kirby J at p. 291
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these powers must rest on the agencies involved in investigating and prosecuting
terrorist activity.
205. The need for these powers must also be considered in light of the broad range of
other powers and offences that enable law enforcement and intelligence agencies to
take a pre-emptive and preventative approach to combating terrorist activity. As
noted above, without questioning and detention warrants, ASIO already has a raft of
intrusive covert powers to gather intelligence relevant to national security, including
the power to track a person’s movements and covertly search their home and
access their computer. Similarly, without control orders and preventative detention
orders, the police already have a vast array of powers to investigate a very broad
range of terrorist-related offences, including the power to detain and question a
person without charge for the purpose of investigating a terrorist offence.
206. It is against this background that the Law Council raises its general concerns with
the powers subject to this review and recommends their repeal. The Law Council
also shares the concern identified by the Monitor in the Annual Report that the
existence of these powers invests an inappropriate level of discretion in the
executive to choose between a range of pre-charge questioning and detention
powers when investigating terrorist offences.
207. Mindful that complete repeal of these provisions may be difficult to achieve in the
near future, the Law Council has also recommended the introduction of a range of
safeguards which would strike a better balance between the extraordinary nature of
the powers involved and the fundamental liberties infringed. For example, in
response to the Monitor’s questions in relation to ASIO’s questioning and detention
powers in Part III Division 3 of the ASIO Act, the Law Council supports efforts to:
•
reduce the maximum period available for questioning under such warrants,
including when interpreters are used;
•
enhance existing safeguards in relation to the surrender or cancellation of
passports in connection with questioning warrants and improve access to
meaningful review of these decisions;
•
strengthen protections relating to use immunity, to make it clear that evidence
obtained directly or indirectly from a warrant issued under this Division cannot
be used to prove that the person has committed a criminal offence; and
•
ensure that the conditions that must be satisfied before issuing such warrants
are more stringent.
208. In response to the Monitor’s questions in relation to ASIO’s questioning and
detention powers in Part III Division 3 of the ASIO Act, the Law Council supports
efforts to:
•
draw upon the lessons from the use of control orders in the context of counterterrorism in overseas jurisdictions such as the United Kingdom, while
recognising the differences in the legal framework governing the making and
use of such orders; and
•
introduce new requirements, such as the requirement of a relevant prior
conviction and evidence of unsatisfactory rehabilitation, before control orders or
preventative orders can be made.
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209. The Law Council has long called for the type of rigorous, independent, and
comprehensive review of Australia’s anti-terrorism laws that is foreshadowed in the
Annual Report and reflected in the questions identified in this review. The Law
Council is confident that over time this review process will identify those aspects of
Australia’s terrorism laws that have never been, or can no longer be, justified as a
necessary and proportionate means of addressing the threat of harm posed by
terrorist activity in Australia.
210. The Law Council looks forward to working with the Monitor and the Government
throughout this process to ensure that Australia preserves the principles that have
underpinned our system of criminal law and procedure, and have enabled our
intelligence and law enforcement agencies to successfully investigate and prosecute
criminal activity without unduly intruding upon individual liberties and freedoms.
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Attachment A: Profile of the Law Council of Australia
The Law Council of Australia exists to represent the legal profession at the national level,
to speak on behalf of its constituent bodies on national issues, and to promote the
administration of justice, access to justice and general improvement of the law.
The Law Council advises governments, courts and federal agencies on ways in which the
law and the justice system can be improved for the benefit of the community. The Law
Council also represents the Australian legal profession overseas, and maintains close
relationships with legal professional bodies throughout the world.
The Law Council was established in 1933, and represents 16 Australian State and
Territory law societies and bar associations and the Large Law Firm Group, which are
known collectively as the Council’s constituent bodies. The Law Council’s constituent
bodies are:
•
Australian Capital Bar Association
•
Australian Capital Territory Law Society
•
Bar Association of Queensland Inc
•
Law Institute of Victoria
•
Law Society of New South Wales
•
Law Society of South Australia
•
Law Society of Tasmania
•
Law Society Northern Territory
•
Law Society of Western Australia
•
New South Wales Bar Association
•
Northern Territory Bar Association
•
Queensland Law Society
•
South Australian Bar Association
•
Tasmanian Independent Bar
•
The Large Law Firm Group (LLFG)
•
The Victorian Bar Inc
•
Western Australian Bar Association
Through this representation, the Law Council effectively acts on behalf of approximately
56,000 lawyers across Australia.
The Law Council is governed by a board of 17 Directors – one from each of the
constituent bodies - and six elected Executive Directors. The Directors meet quarterly to
set objectives, policy and priorities for the Law Council. Between the meetings of
Directors, policies and governance responsibility for the Law Council is exercised by the
elected Executive, led by the President who serves a 12 month term. The Council’s six
Executive are nominated and elected by the Directors. Members of the 2012 Executive
are:
•
Ms Catherine Gale, President
•
Mr Joe Catanzariti, President-Elect
•
Mr Michael Colbran QC, Treasurer
•
Mr Duncan McConnel, Executive Member
•
Ms Leanne Topfer, Executive Member
•
Mr Stuart Westgarth, Executive Member
The Secretariat serves the Law Council nationally and is based in Canberra.
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