22 February 2015

Commonwealth-NSW Monis Review

The report of the Joint Commonwealth - New South Wales Review of the Martin Place Siege has been released, with a call to "maintain broadly the current balance in our existing regulatory and legislative framework".

The report states that
At around 8.33 am on 15 December 2014, Man Haron Monis walked into the Lindt CafĂ©, on the corner of Martin Place and Phillip Street, in the heart of Sydney’s commercial district. Shortly thereafter, he produced a gun and ordered that the customers and staff be locked inside as hostages. After a standoff lasting around 17 hours, the siege ended in gunfire. Three people died: two hostages and Monis. Several of the other hostages sustained injuries. The Martin Place siege has deeply affected the community.
The Review analysed the events that led up to the siege and the range of interactions Monis had with agencies including the criminal justice system, beginning with his arrival in Australia. It asked:
  • were the decisions of government agencies in respect of Monis reasonable given the laws and policies in place when the decisions were made? 
  • should decision-makers have had other information before them when making their decisions?
Overall, the Review has found that the judgments made by government agencies were reasonable and that the information that should have been available to decision-makers was available.
Changes to laws and policies in relation to national security involve judgments about public safety and personal liberty – i.e. the risk framework within which society operates. We expect that public discussion and consultation about these judgments will continue over the coming months as further information about the circumstances of the conduct of the Martin Place siege operation becomes available.
However, the Review has concluded that some modest changes are needed to our laws and government processes to mitigate the public security risks exposed by this case. Some of these changes are already being made. For example, new bail arrangements have now been introduced in New South Wales. New programmes to counter violent extremism in the community are being developed. Other initiatives, such as a review of immigration policies, laws and capabilities in relation to visa applications should be pursued.
The Review’s recommendations would maintain broadly the current balance in our existing regulatory and legislative framework.
The Review’s decision to not propose steps beyond this is based on our view that introducing substantial further controls involves a larger choice about the sort of society we wish to live in and is properly the province of the public and our elected representatives.
Any further controls would be based on judgments as to whether increases in policing, surveillance and controls and the related extra burden on the taxpayer and intrusions into Australians’ lives would make us appreciably safer.
Highlights are as follows
National Security threat level
At the time of the Martin Place siege, the general terrorism threat level was High – terrorist attack is assessed as likely. The threat level had been raised to High on 12 September 2014. While this was not based on any indication a terrorist attack in Australia was imminent, it recognised that the likelihood of such an attack had increased.
The decision to raise the threat level related to a range of factors indicating an escalation in the threat environment – in particular, increasing numbers of Australians connected with, or inspired by, terrorist groups such as the Islamic State of Iraq and the Levant, Jabhat al-Nusra, and al-Qa’ida which have a desire to attack Western countries, including Australia.
Law enforcement and security agencies’ assessments of Monis
Monis was the subject of many law enforcement and security investigations and assessments over the period of his residence in Australia. None of the results of these investigations, or the continuous assessment of information related to Monis in the intervening periods, provided any indication he had the intention to commit an act such as the Martin Place siege.
Of note, in the period April 2008 to January 2009, ASIO conducted a thorough investigation of Monis to determine if he was of concern from a terrorism threat perspective. It concluded that Monis:
  • was not involved in politically motivated violence and had not tried to incite communal violence 
  • had not expressed an intention to commit politically motivated violence 
  • was not in significant contact with known individuals or groups of security concern.
In addition, none of Monis’s immediate circle of acquaintances were themselves in contact with known individuals or groups of security concern. ASIO’s final assessment of Monis at the conclusion of the 2008 09 investigation was that Monis was not a threat to national security.
The conclusion of this investigation did not mean that ASIO no longer paid attention to Monis. Indeed, is should be emphasized that the notion that ASIO has some sort of a ‘watchlist’ whereby individuals on the list are subject to scrutiny and individuals off the list are not, is incorrect. ASIO will always investigate national security related information that it receives whether that information relates to an old target, an existing target or a potential new target.
In Monis’s case, following the conclusion of the 2008-09 investigation, ASIO and police agencies continued to assess all new information received on Monis. He remained the subject of consideration and information exchange in the NSW Joint Counter-Terrorism Team due to subsequent National Security Hotline referrals, active social media presence and progress of non-national security-related criminal investigations. He was the subject of Joint Counter Terrorism Team discussions on numerous occasions between 2008 and 2014.
Criminal investigations of Monis undertaken by AFP and NSW Police Force, while not undertaken on national security grounds, also provided coverage of Monis over following years. None of these investigations identified any information to indicate Monis had either a desire or an intent to undertake an act of terrorism in Australia.
The National Security Hotline received 18 calls in relation to Monis between 9 December 2014 and 12 December 2014. All of these 18 calls were complaints about the offensive nature of the content of Monis’s public Facebook page. None of the calls related to any intentions or statements regarding a pending attack – imminent or otherwise.
Importantly, these Hotline reports were all considered by ASIO, AFP and, when deemed relevant to NSW, the NSW Police Force, prior to the siege. All three agencies considered the Facebook posts contained no indications of an imminent threat. The postings were not assessed to meet the threshold for prosecution under new ‘advocacy of terrorism’ legislation.
Given his long history of provocative, attention seeking behaviour and unreliable or false claims, the Review was alert to the possibility that ASIO or the police might actually have been complacent or even dismissive about Monis. There was no evidence this was the case. Each time security or law enforcement agencies received new information, it was assessed in accordance with their policies and procedures.
The Review found that right up until the siege, and not withstanding their familiarity with Monis, ASIO and law enforcement agencies never found any information to indicate Monis had the intent or desire to commit a terrorist act. This included consideration of Monis’s known activities and statements in the period leading up to the siege. While his language and sentiments were offensive, they were not exceptional, either in terms of his previous conduct or other material which is readily available on social media and elsewhere.
Monis was assessed by ASIO in early December 2014. On the basis of the information available at the time, he fell well outside the threshold to be included in the 400 highest priority counter-terrorism investigations. He was only one of several thousand people of potential security concern.
Arrival, Protection Visa, Citizenship
Monis arrived in Australia on a Business Visa on 28 October 1996. Within a month he had sought asylum in Australia.
Over the course of the next eight years he was granted a Bridging Visa (1996), a Protection Visa (August 2000) and Australian citizenship (October 2004). Monis was interviewed by ASIO several times over this period as part of security assessments undertaken for immigration purposes. Ultimately, he was found not to be a risk to national security.
Decisions made to grant Monis visas and Australian citizenship were made in accordance with the laws, policy and procedures of the time. The Review was advised by the Department of Immigration and Border Protection (Immigration) that if the Monis situation presented itself again today, it seems likely that a visa and citizenship would still be granted.
The Review notes that the establishment of a single Department of Immigration and Border Protection with an Australian Border Force will support improvements in border security. The Review also notes that as part of this merger Immigration will review its internal connectivity and information sharing processes, and identify key policy and legislative changes necessary to support decisions on whether to grant an initial visa, subsequent visas and, citizenship. The Review sees this as a key issue.
Social support
Monis received government funded income support for about seven and a half of the 18 years he lived in Australia. He appears to have supported himself through a variety of jobs and businesses during the other eleven years.
He first received income support through the Asylum Seeker Assistance Scheme, and later through both Newstart Allowance and Austudy. Monis was generally a compliant income support client. The Review did not find evidence he attempted to defraud welfare, and did not receive welfare while in jail.
Monis received treatment at a community mental health centre in 2010 and 2011. The Health Records and Information Privacy Act 2002 (NSW) prohibits the Review from releasing details of Monis’s medical history. That said, the Review has had access to these records and they have informed the judgements reached in the Review. The NSW Chief Psychiatrist has reviewed the medical documentation and concluded that at no time in his multiple encounters with mental health professionals was Monis assessed to represent a potential risk to others or to himself, and at no time was it necessary to admit him to hospital for treatment of mental illness, or for him to receive coercive or more restrictive care.
NSW Justice System
In July 2011, Monis was charged with intimidating his ex-partner (now deceased). The police made a provisional Apprehended Domestic Violence Order against Monis and this was continued by the court on an interim basis. A final Apprehended Domestic Violence Order to protect his ex-partner was sought by NSW Police Force, but not supported by the court and the charges were dismissed.
Monis was on bail for serious violent offences at the time of the siege. He had been granted bail on charges of being an accessory before (and after) the murder of his estranged partner who died on 21 April 2013. He had also been granted bail in relation to charges for numerous sexual offences.
Monis encountered the victims of his alleged sexual offences while presenting himself as a spiritual healer between 2002 and 2010.
The bail decisions in relation to Monis had been carefully scrutinised by police and prosecuting authorities. Consideration had been given to challenging the decisions, however, under the law in force at the time, and given the circumstances of Monis’s case, it was considered that there was not sufficient basis for such challenges to be successful.
NSW bail laws have undergone an intensive period of reform during the last two years and the effectiveness of these laws continues to be closely monitored. New bail laws, which came into force on 28 January 2015, include a strict ‘show cause’ requirement before bail can be granted in cases where serious charges are alleged. Bail laws have been strengthened since the decisions to grant Monis bail were made. The Coroner will examine how Monis came to be granted bail for the charges he was facing at the time of the siege and how police and prosecuting authorities responded to this.
The Review did not consider bail legislation in jurisdictions beyond New South Wales. Nevertheless, the Review recommends that other jurisdictions may wish to consider Recommendations 4 and 5.
Access to firearms
Monis entered Martin Place with a pump action shotgun. It was short, having been sawn off at the barrel and at the end. The Coroner has announced that his inquiry will examine in detail the gun used by Monis. On the information available to the Review, it appears that the firearm used by Monis may have entered Australia lawfully and became a ’grey market’ firearm when not returned as part of the 1996 National Buy Back program. Monis was at no time issued a firearms licence, and at no time did he legally own or import a firearm.
He did hold a security guard licence from 1997 to 2000 which would have allowed him to carry a pistol while on duty from March to June 1997. Relevant laws were subsequently changed and from 1 July 1997, Monis would have no longer been able to carry a pistol in his capacity as a security guard.
Through its considerations of the issues in this area, the Review has identified shortcomings in the accuracy and consistency of firearms data in Australia. The Review recommends that State and Territory police forces should conduct an urgent audit of their firearms data holdings before the National Firearms Interface is operational where this has not already occurred.
The Review understands that Monis used an illegal firearm. The Australian Crime Commission has advised there are in the order of 250,000 illegal firearms in Australia. The Review recommends that the Commonwealth and the States and Territories should give further consideration to measures to deal with illegal firearms. Information sharing and coordination
Monis was well known to security and police agencies. He had been investigated a number of times and successfully convicted on 12 postal charges. He had met with police and ASIO representatives on numerous occasions and these agencies, along with others, held hundreds of thousands of pages of information on him. Relevant information was shared in a timely and appropriate fashion between the various agencies.
Within the time available to it the Review did not identify within Commonwealth or NSW systems any information which should have led to different decisions by agencies. The information that was available was shared effectively between national security agencies and between Commonwealth and State and Territory agencies. Given the scale of the task facing law enforcement and security agencies, the Review accepts the need for prioritisation of counter-terrorism efforts as essential. Not every lead or concern can or should be treated as a top priority.
The Review supports new measures currently being developed to identify and respond to individuals who may be susceptible to radicalisation but who do not meet the threshold for investigation on national security or criminal grounds.
The Review recommends that all States and Territories review relevant legislation, in particular with respect to privacy and health, to ensure appropriate access by ASIO.
Preventive measures – national security legislative powers
While Monis was consistently on the radar of national security agencies from the time he arrived in Australia, at no point did he do or say anything which would have enabled him to be successfully charged with a terrorism offence under the law.
Control orders and preventative detention orders deny an individual their liberty based on a suspicion that an offence may be committed rather than based on an actual offence. The threshold for use of these orders is therefore very high and Monis’s actions never reached it. To date, control orders have only been used four times and preventative detention orders have been used three times.
Public Communication
Public communication during and immediately after the siege was conducted effectively and in accordance with relevant protocols. There was a constant flow of relevant information to the public.
Public safety was properly addressed, and the public received timely messages from political leaders and NSW authorities. The media was responsible, and effective community outreach helped to ensure there was no subsequent significant community backlash.
Monis interacted with Government agencies under a significant range of identities, aliases and titles. His multiple identities were not a barrier to information exchange between agencies, nor did he use them to inappropriately access social entitlements. However, the Review has made recommendations for general improvement in this area.
The specific recommendations regarding identity are -
16. Agencies should adopt name-based identity checks to ensure that they are using the National Identity Proofing Guidelines and the Document Verification Service, and by improving arrangements for sharing formal name change information between Commonwealth and State bodies (timing and budgetary impacts to be identified by all jurisdictions).
17. Agencies that issue documents relied upon as primary evidence of identity (e.g. drivers’ licences, passports, visas) should explore the possibility of strengthening existing name-based checking processes through greater use of biometrics, including via the forthcoming National Facial Biometric Matching Capability.
Those recommendations reflecvt the following comments
Man Haron Monis was born Mohammad Hassan Manteghi in Iran in 1964 and this was the name on his travel documentation when he entered Australia on 28 October 1996. NSW has strong laws governing changing a person’s name. Three changes of name are permitted (unless an exemption is granted) and protocols are in place to share change of name information between NSW Registry of Births, Deaths and Marriages and the NSW Police Force. Common law allows a person to use a new name without formally registering a change with the NSW Registry of Births, Deaths and Marriages, although many government agencies will require evidence of a formal registered change of name.
On 16 September 2002, Monis formally changed his name to Michael Hayson Mavros. On 21 November 2006 he again formally changed his name to Man Haron Monis. The Review has also found that Monis was known by as many as 31 aliases, which were either his legal names or various combinations around a theme of names. However, the Review has not found that any of these aliases were used to defraud, evade or deceive any government agencies. No evidence has been found to indicate that he registered other names in other States or Territories.
While Monis used his current legal name when dealing with NSW agencies, he used aliases when dealing with other agencies such as Australia Post, Australian Business Registry and the Australian Electoral Commission as he was not always required to prove his ‘legal name’ with formal documentation.
Some automated information sharing did occur between agencies such as the NSW Police Force, Roads and Maritime Services and the NSW Registry of Births, Deaths and Marriages. These exchanges related to identity information such as name changes, licence information and car registration details. Despite these exchanges, Monis was able to provide non-formal name details to agencies indicating that more robust checks on identity are needed in Commonwealth and State and Territory government agencies.
Work to improve identity checking has already begun. The Document Verification Service (established in 2009) is a secure online system that allows government agencies to verify information on evidence of identity documents (visa, citizenship, change of name, birth, and marriage certificates, Medicare, Passports, Immigration Cards, Registry by Decent) against the issuing agency. The National Identity Proofing Guidelines (issued in October 2014) set out procedures for collecting and verifying evidence of a person’s identity, based on varying, risk-based levels of assurance.
The Commonwealth has also developed the National Facial Biometric Matching Capability to help mitigate the vulnerabilities in name-based identity checks. These systems have not yet been adopted by all Commonwealth or States and Territories government agencies.