If the national broadcaster the ABC considered the new Dutton Bill to remove all rights and expand surveillance, perhaps this would be the headline, but no, the ABC gives MP Dutton a wide berth on this day.
Here is the Bill and some remarkable commentary from the Joint Select Scrutiny Committee and other news. Minister Dutton is still at large and there have been no further updates on his spectacular and treasonous attempted coup d’etat.
Australian Security Intelligence Organisation Amendment Bill 2020
This bill seeks to amend the Australian Security Intelligence
Organisation Act 1979 to modify the organisation’s compulsory
questioning and surveillance device powers
Implements the government’s response to the report of the Parliamentary Joint Committee on Intelligence and Security into ASIO’s questioning and detention powers by amending the Australian Security Intelligence Organisation Act 1979 in relation to compulsory questioning powers and tracking devices. Also amends four Acts to make consequential amendments, and makes amendments contingent on the commencement of the federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020
Transcript of speeches
All second reading speeches
Minister’s second reading speech
No proposed amendments have been circulated.
Schedules of amendments
No documents at present
Referred to Committee (14/05/2020); Parliamentary Joint Committee on Intelligence and Security. Considered by scrutiny committee (10/06/2020): Senate Standing Committee for the Scrutiny of Bills; Scrutiny Digest 7 of 2020. Considered by scrutiny committee (17/06/2020): Parliamentary Joint Committee on Human Rights; Report 7 of 2020 ( see response below)
Dutton Second Reading Speech – May 16
Mr DUTTON (Dickson—Minister for Home Affairs) (10:26): I move:
That this bill be now read a second time.
Keeping Australian communities safe from those who seek to do us harm is, and always will be, the government’s No. 1 priority.
An important way the government achieves this is by ensuring that our national security agencies have the powers they need to work in an increasingly complex national security environment.
The Australian Security Intelligence Organisation (ASIO) is facing a wider range of security challenges than at any time in its 70-year history. As the director-general recently noted in his recent annual threat assessment, the number of terrorism leads ASIO is investigating has doubled since this time last year. The director-general also noted that the threat to Australia from foreign interference and espionage is higher now than it was at the height of the Cold War.
The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO’s powers and, in doing so, improve ASIO’s capacity to respond to these threats.
The bill does this in two ways. First, the bill repeals ASIO’s existing questioning and detention warrant framework contained in division 3 of part III of the Australian Security Intelligence Organisation Act 1979(ASIO Act), and introduces a reformed compulsory questioning framework.
Second, the bill aligns the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004 and modernises the definition of tracking device to ensure ASIO is able to use the latest and safest technology to perform its functions.
Amendments to ASIO’s compulsory questioning framework
ASIO’s questioning and detention powers were introduced in 2003 in response to the growing threat from terrorism after the 11 September 2001 attacks in the United States.
These powers enable ASIO, upon obtaining a warrant, to question a person under compulsion to obtain intelligence in relation to terrorism, including a person with knowledge of, but not directly involved in, a terrorism matter.
ASIO has used these powers sparingly, with the last questioning warrant being used in 2010. No questioning and detention warrants have ever been sought by ASIO.
But although they are rarely used, these powers have produced valuable intelligence that could not have been obtained through other methods.
ASIO’s compulsory questioning powers remain a valuable intelligence collection tool, particularly in light of challenges posed by modern technology, such as encryption.
In 2018, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) reviewed these powers and recommended that ASIO retain a compulsory questioning power, but that the detention power should be repealed.
The committee also recommended that the compulsory questioning power be reformed and, in doing so, that consideration could be given to:
extending the questioning power to ASIO’s other heads of security such as espionage and foreign interference, lowering the minimum age of a questioning subject in relation to a terrorism matter from 16 to 14, while ensuring appropriate safeguards for minors; and empowering the Attorney-General to issue warrants, including orally in emergency situations.
The government accepted the committee’s recommendations, and the bill will implement these important measures to ensure these powers are fit for purpose in the current security environment.
Importantly, the bill will retain the existing safeguards and reporting requirements of the current questioning framework. To this end, the bill retains provisions permitting the Inspector-General of Intelligence and Security to be present at questioning and to raise concerns with the prescribed authority, who may then choose to suspend questioning in response.
The bill will retain the role of the prescribed authority as an independent person overseeing the execution of the warrant.
The bill also strengthens the right to legal representation during questioning. The bill ensures that a subject may contact a lawyer at any time during questioning, subject to very limited exceptions.
In the case of minors, it will be mandatory that a lawyer be present at all times during questioning of a minor, and the bill also provides that a parent or guardian may also be present.
Amendments to the surveillance device framework
I turn now to the amendments to ASIO’s surveillance device framework.
There is an increasing trend towards less sophisticated attack planning by small groups or lone actors using easily acquired weapons, who can move rapidly from planning to action.
The current authorisation level for the use of tracking devices does not provide ASIO with the operational agility it requires in this evolving security environment. It also increases risks to officer safety by requiring ASIO officers to conduct physical surveillance of potentially dangerous targets in circumstances where there may not be sufficient time to go through the current lengthy authorisation process to use a tracking device.
Currently, in order to use a surveillance device, ASIO must obtain a warrant from the Attorney-General. The bill proposes changing this arrangement to allow non-intrusive tracking devices, such as a device placed on a vehicle, or in a person’s bag, to be authorised internally by a delegated senior ASIO officer.
Devices that require ASIO officers to do something more intrusive, that would otherwise be unlawful, such as where a property or vehicle needs to be entered, will still need to be authorised by the Attorney-General.
This change will bring ASIO into line with law enforcement agencies, which are permitted to internally authorise non-intrusive tracking devices under the Surveillance Devices Act 2004.
The ability to internally authorise the use of tracking devices will enable ASIO to better respond to security threats, and in turn ensure that ASIO is better placed to protect Australians.
The internal authorisation framework will include numerous safeguards, such as oversight and reporting, while providing ASIO with capabilities to deal with the changing threat environment.
In conclusion, this bill will ensure that ASIO has the powers it needs to deal with current and emerging threats to our nation’s security.
The Morrison government is committed to ensuring our security agencies have the powers they need to operate effectively in an increasingly challenging and complex national security environment. I am sure that this sentiment is shared by all members in this chamber.
I commend the bill to the House.
This document was prepared by the Senate Standing Committee for the Scrutiny of Bills and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra
Membership of the committee – Current members
Senator Helen Polley (Chair) ALP, Tasmania
Senator Dean Smith (Deputy Chair) LP, Western Australia
Senator the Hon Kim Carr ALP, Victoria
Senator Perin Davey NATS, New South Wales
Senator Janet Rice AG, Victoria
Senator Paul Scarr LP, Queensland
Mr Glenn Ryall, Secretary
Ms Alexandra Logan, Principal Research Officer
Ms Katie Helme, Senior Research Officer
Ms Sarah Batts, Senior Research
1.5 The committee considers that the questioning warrant framework
established by this bill has the potential to significantly trespass on an individual’s rights and liberties and considers that the inclusion of such provisions should be sufficiently justified and appropriate safeguards surrounding the use of these provisions should be in place. The committee’s consideration of specific aspects of the bill is outlined in the paragraphs below.
1.8 The committee notes that while the statement of compatibility at various
points notes the role of the ‘independent prescribed authority’, there is little
information on the face of the bill or in the explanatory materials to ensure that a prescribed authority is sufficiently independent. The committee notes that there is no fixed term for a prescribed authority, the prescribed authority is both appointed and terminated by the Attorney-General and persons may be appointed as a prescribed authority who are not part of a body that traditionally maintains a robust
independence from the executive branch of government (ie former members of the judiciary).
1.9 The committee’s concerns regarding the independence of prescribed
authorities is heightened by the very significant powers that are provided to prescribed authorities under the bill, including allowing for the questioning of children under 14 and the significant limits that can be placed on a person’s choice of legal representation by prescribed authorities.
1.10 As a result, from a scrutiny perspective, the committee is concerned that there are not appropriate safeguards surrounding the use of broad coercive powers prescribed authorities under the bill. The committee does not consider that the explanatory memorandum adequately addresses this issue.
1.11 The committee, therefore, requests the minister’s more detailed advice
regarding whether appropriate safeguards are in place to ensure that any
prescribed authorities are independent, noting the significant coercive powers provided to them.
Issuing of warrants by the Attorney-General
1.12 As noted above, proposed section 34B provides that the Director-General may request that the Attorney-General issue a questioning warrant for either an adult or a minor. In addition, proposed section 26R provides that the Director-General may request that the Attorney-General issue a warrant for the recovery of tracking devices.
1.13 The committee has a long-standing scrutiny view that the power to issue warrants or orders relating to the use of intrusive power should only be conferred on judicial officers. In this regard, the committee does not consider that consistency with existing provisions is, of itself, a sufficient justification for allowing warrants or orders relating to the use of intrusive powers to be issued by non-judicial officers.
1.14 In light of the significant coercive powers that flow from the issuing of a questioning warrant or a warrant for the recovery of tracking devices, the committee would expect a detailed justification to be given as to the appropriateness of conferring such powers on the Attorney-General. In this instance, the explanatory memorandum provides no such justification. Additionally, the committee notes, that given the broad discretionary nature of the power, it may be difficult for an affected
person to obtain a judicial remedy.
1.15 The committee, therefore, requests the minister’s more detailed advice as to:
• why it is considered necessary and appropriate to allow the
Attorney-General to issue questioning warrants and warrants for the
recovery of tracking devices; and
4 Scrutiny Digest 7/20
• whether the bill can be amended to provide that questioning warrants and
warrants for the recovery of tracking devices are instead issued by judicial
Screening of persons
1.16 Proposed section 34D provides that a person who is due to appear before a prescribed authority for questioning under a warrant may be required to undergo a screening procedure, produce a thing in their possession for inspection or examination and undergo an ordinary search or a frisk search. A police officer may also request the person leave a dangerous item or a communication device with the officer for safekeeping while the person is being questioned. A person who fails to comply with a request from a police officer under proposed section 34D will be taken
to have failed to appear and will commit an offence under section 34GD(2).
The penalty for this offence is 5 years imprisonment.
1.17 The explanatory memorandum states:
The purpose of this section is to ensure the safety of those involved in
questioning and prevent the transmission of sensitive information
disclosed during questioning by preventing the possession of dangerous
items or communication devices at the questioning place.
1.18 The committee notes that these screening provisions contain no protections for circumstances where a request made by a police officer may be unreasonable or where a person, due to an intellectual disability or for whom English is a second language, may not understand the request being made of them. The committee’s concerns in this instance are heightened by the significant penalty that can be imposed on persons who have failed to appear. The explanatory memorandum contains no information on whether there are appropriate safeguards in place to ensure that requests made by officers are reasonable in the circumstances and that
persons who may have difficulty understanding a request that has been made of them are sufficiently informed of both their obligations and the consequences of failing to appear.
1.19 In light of the above, the committee requests the minister’s more detailed advice regarding whether there are appropriate safeguards in place to protect the personal rights and liberties of persons presenting to a place for questioning. In particular, the committee requests the minister’s advice as to whether the bill can be amended to include a defence to proposed subsection 34GD(2) so that the offence will not apply in circumstances where the request was unreasonable or the
person was not capable of understanding a request made of them.
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Share widely, Victoria has no democracy under the 1986 Act, State of Disaster and the Federal Government sits again on September 1, and this Bill is likely to be voted upon under a similar a fabricated disaster framework.