RACS argued that that ASIO officers had no legal basis to exclude lawyers from interviews, as
- there is no express statutory power in the Australian Security Intelligence Organisation Act 1979 (Cth) or Migration Act 1958 (Cth) to exclude legal representatives from security assessment interviews for protection visa applicants
- the exclusion of a legal representative from a security assessment interview could amount to a denial of procedural fairness
- there is no express power given to ASIO to require a lawyer who attends a security interview to sign a confidentiality undertaking
- case law indicated that investigative bodies (for example, the National Crime Authority and the Australian Securities Commission) could exclude a particular lawyer, for example where the organisation was satisfied on reasonable grounds that the particular lawyer would prejudice the proceedings.
ASIO provided me with detailed advice on the requirements of its current policies and procedures in respect of voluntary interviews, including security assessment interviews. The full text of these documents is afforded a national security classification and cannot therefore be included in this abridged report.
In summary, the guidance provides that ASIO officers cannot prevent an individual requiring the presence of their lawyer at a voluntary interview. Where an interviewee requires the presence of their lawyer, ASIO should request the contact details of the lawyer and their firm, as well as an undertaking of confidentiality. However, if interviewing officers assess that the presence of the lawyer is counterproductive to the conduct of the interview, they may inform the interviewee and, if appropriate, terminate the interview.
I understand the policy as instructing ASIO officers to work from a starting premise that the attendance of a lawyer will not be problematic, unless sound reasons exist for thinking otherwise.
I also understand that the attendance of legal representatives at ASIO interviews has not been a common occurrence, to date..IGIS goes on to conclude that
- Having regard to the legal opinion provided to me by RACS and other relevant material provided by ASIO, I consider that ASIO’s internal guidance is both sound and appropriate in the circumstances.
- the attendance of a legal representative at an ASIO interview is not likely to be necessary on the basis of the vulnerability of an interviewee, but their presence could protect ASIO from claims of inappropriate questioning or conduct by ASIO interviewing officers.
- Recorded interviews showed that, on occasion, ASIO officers discussed the proposed presence of a lawyer at an interview, with the interviewee and/or the lawyer, for up to 30 minutes. More than one lawyer who provided statements to this inquiry claimed they felt that ASIO had placed significant pressure on them to discontinue their request to attend the interview with their client.
- I believe that ASIO has had an apparent practice of discouraging the attendance of lawyers at interviews, which seems inconsistent with the intent of its internal guidance. In my view this practice is inappropriate unless the interviewing officers have a specific basis for believing that the lawyer’s attendance may be of security concern.
- the agreement sets out potentially relevant and complex statutory provisions, but is provided to the person at the interview who does not have time to consider it fully and understand obligations.
- the document is incomplete. In particular, subsections 79(2) and 79(3) of the Crimes Act 1914 (Cth) make no sense without a definition of what is ‘prescribed’. In any event, a prudent lawyer would need to have regard to the provisions in context to understand their obligations. This problem would not be so acute if the undertaking was provided prior to the interview so that a person had some time to examine it.
- as the confidentiality obligations are ongoing, there should be a clear requirement to provide the signatory with a copy so that they can continue to have regard to it.
- In a preliminary draft of this report, I noted that the unsigned template is not a confidential or classified document and, in my view, there is no reason why it could not be made generally available before the interview. ASIO has subsequently undertaken to provide new guidance to its officers, stipulating that interviewing officers must provide sufficient time at the start of an interview for the legal representative to read, clarify and understand the agreement; and they must take duplicates of the document with them to enable one copy to be left with the signatory.
R1: ASIO should work with the Department of Immigration and Border Protection (Immigration) to ensure that: (a) when making interview arrangements in Australia, visa applicants are specifically asked whether they want to have a legal representative attend (b) the lawyer’s personal details are obtained by Immigration and passed to ASIO (c) a decision is made about whether the lawyer may attend and is conveyed prior to the day of interview.
R2: ASIO should: (a) review its training to reinforce that the attendance of a lawyer at a security assessment interview is not to be considered problematic, unless sound reasons exist for deciding otherwise (b) ensure that decisions about whether a lawyer may attend an interview are considered and recorded on a case-by-case basis (c) ensure that in the absence of a specific cause for concern, interviews should commence without efforts by interviewing officers to discourage the attendance of a legal representative.
R3: ASIO should: (a) clarify the status of any person who wants to attend an interview to ascertain whether they are the interviewee’s legal representative (b) further consider whether migration agents should be accorded the same status as lawyers, with their attendance at interviews being addressed on a case-by-case basis.
R4: ASIO should: (a) provide guidance for interviewing officers on when a written or verbal confidentiality undertaking should be requested from a person (b) provide the template undertaking document to attendees before the interview commences (c) provide a copy of a written undertaking to the signatory.
R5: The details of this recommendation are afforded a national security classification and cannot be included in this abridged report.
