13 May 2018

ASIO Questioning and Detention Powers

The report by the Parliamentary Joint Committee of Intelligence and Security on its review of the operation, effectiveness and implications of Division 3 of Part III (the questioning and detention powers) of the Australian Security Intelligence Organisation Act 1979 (Cth) considers
whether there is a need for an ASIO questioning power in the current security context, and the interaction of ASIO’s questioning and detention powers with other counter-terrorism powers that have more recently been introduced.
Those powers were discussed in ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’ by Lisa Burton, Nicola McGarrity and George Williams in (2012) 36(2) Melbourne University Law Review noted here

Division 3 of Part III of the Act allows ASIO, upon obtaining a warrant, to question a person under compulsion in order to obtain intelligence that is important in relation to a terrorism offence. With the Attorney-General’s consent, ASIO may request either a questioning warrant (QW) or a questioning and detention warrant (QDW) from an issuing authority (a judge acting in a personal capacity). Both warrant types require the person to appear before a prescribed authority for questioning in relation to the relevant terrorism offence/s. Under a QDW police officers take the person into custody and detain that person; under a QW the person is not initially apprehended or detained, instead appearing for questioning at a specified time. QDWs may be obtained where there are reasonable grounds for believing that, if the person is not immediately detained, the person may alert someone involved in a terrorism offence, may not appear for questioning, or may destroy or damage relevant records or things; and that relying on other methods of collecting that intelligence would be ineffective. 
The prescribed authority controls the questioning and detention process and may make a range of directions, including to detain the person or defer (or extend) questioning. Questioning may occur for up to eight hours, but this can be extended on request up to a maximum of 24 hours (or 48 hours if using an interpreter).7 Under a QDW, the person is detained until either the questioning has ceased, the above maximum questioning period is reached, or 168 hours (7 days) has passed from the time the person was brought before the prescribed authority, whichever is the earliest. 
During questioning, the person must provide any information, records or things requested. There is no privilege against self-incrimination—the person must answer the questions or produce the requested things even though it may incriminate them; however, any information provided cannot be used against the person in a criminal proceeding
The report notes
A range of safeguards apply. The [Inspector-GeneraI of Intelligence and Security] IGIS must be provided with a copy of any warrant requests, issued warrants, recordings made of questioning, and details of actions undertaken pursuant to a warrant. The IGIS may be present when a person is taken into custody under a QDW and during questioning under either warrant type.  The IGIS may raise concerns about any impropriety or illegality under the warrant and the prescribed authority must consider those concerns and may suspend questioning and other processes until the concerns are addressed. If the person wishes to make a complaint to the IGIS or the Ombudsman, then the person must be given facilities to enable them to make the complaint. 
The person may contact a lawyer. However, the person may be prevented from contacting a particular lawyer if the person is in detention and the prescribed authority is satisfied, on the basis of circumstances relating to that lawyer, that contacting that lawyer would mean:
a. a person involved in a terrorism offence may be alerted that the offence is being investigated; or 
b. a record or thing that the person may be requested to produce in accordance with the warrant may be destroyed, damaged or altered. 
A person’s contact with their lawyer can be monitored by ASIO. Reasonable opportunities must be provided for the lawyer to advise the person, and the lawyer may request permission to address the prescribed authority during breaks in questioning. The lawyer may not, however, intervene in the questioning or address the prescribed authority during questioning, except to clarify an ambiguous question. If the lawyer fails to comply with these restrictions, and is considered by the prescribed authority to be unduly disruptive of the questioning, the lawyer may be removed. If removed, the prescribed authority must permit the person to contact another lawyer. 
A range of criminal offences apply for non-compliance with the warrant, including for when the person fails to appear for questioning, makes a false statement, or fails to answer a question. Persons who commit these offences face a five year term of imprisonment. 
Secrecy offences also apply. During the life of a warrant, the person and their lawyer must not, on a strict liability basis, disclose the existence of the warrant, the fact of the questioning or detention or any operational information. In the two years following the expiry of the warrant, the person and lawyer also must not, on a strict liability basis, disclose any operational information obtained as a result of the questioning. The penalty for either offence is five years imprisonment
 The Committee makes four recommendations
R1 that the Australian Security Intelligence Organisation retains a compulsory questioning power under the Act. 
R2 that ASIO’s current detention powers, as set out in Division 3 of Part III of the Act, be repealed. 
R3 that the Government develop legislation for a reformed ASIO compulsory questioning framework, and refer this legislation to the Committee for inquiry and report. The Committee further recommends that proposed legislation be introduced by the end of 2018 and that the Committee be asked to report to the Parliament no sooner than three months following introduction. The Committee considers any proposed legislation should include an appropriate sunset clause. 
R4 that the Act be amended to extend the sunset date of 7 September 2018 by 12 months to allow sufficient time for legislation to be developed and reviewe