Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

7. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

8. The Australian Security Intelligence Organisation Amendment Bill 2020 amends the ASIO Act. It also makes consequential amendments to the Crimes Act 1914, the Criminal Code Act 1995, the Foreign Evidence Act 1994 and the Inspector-General of Intelligence and Security Act 1986 (IGIS Act).

9. The Bill contains high-priority amendments to address the changing security environment in which ASIO is expected to work. It is essential that ASIO has comprehensive human intelligence powers to assist in filling the gap posed by technological advancement, such as encryption and anonymising technologies.

10. Schedule 1 of the Bill reforms ASIO's compulsory questioning framework. The reforms will ensure the framework is fit for purpose, operationally effective and responsive to some of the most serious security threats facing Australia, namely, espionage, foreign interference and politically motivated violence. The ASIO Act's compulsory questioning framework was originally introduced following the 11 September 2001 terrorist attacks in the United States to improve ASIO's capacity to identify and counter threats of terrorism in Australia. The current threat environment has evolved considerably since 11 September 2001 and is steadily worsening. Accordingly, it is critical that these powers are reformed and remain available to ASIO, to ensure that ASIO has the appropriate powers to respond to evolving threats.

11. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) reviewed ASIO's questioning and detention powers in their 2018 report on the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (PJCIS report). The Commonwealth responded to this report, accepting all recommendations on 3 April 2019. The Bill implements the Government's response to the PJCIS report.

12. Part 3 of Schedule 1 makes consequential amendments to the Crimes Act 1914, the Criminal Code Act 1995, the Foreign Evidence Act 1994 and the Inspector-General of Intelligence and Security Act 1986. These amendments are in respect of video evidence in proceedings for terrorism and related offences, release from detention under a preventative detention order for questioning warrant, and oversight.

13. Schedule 2 of the Bill makes amendments to the surveillance device framework in the ASIO Act to improve ASIO's ability to monitor potential security threats and to bring ASIO's ability to use surveillance devices in line with those of its law enforcement partners. The amendments introduce the ability for ASIO to internally authorise the use of a tracking device without a warrant in limited circumstances. These amendments will ensure ASIO has greater operational ability to respond to time critical threats, mitigate the risk to ASIO operatives engaging in physical surveillance and help resolve the operational difficulties faced by ASIO when engaged in joint operations with law enforcement agencies, which already have equivalent powers.

14. The amendments also update the definition of 'tracking device' more generally. Under the new definition, a 'tracking device' will be any device capable of being used to determine or monitor the specific location of a person or object or the status of an object. The term 'device' will also be updated to include any electronic or non-electronic device, instrument, apparatus, equipment, and any other thing. The amendments remove the requirement for a tracking device to be 'installed' and will allow ASIO, subject to obtaining a warrant, to remotely track a person or object using modern technology, which will enhance the intelligence gathering techniques available to ASIO. Facilitating remote tracking will also improve safety protections for ASIO employees, who may become the target of violence if their identity or activities are discovered.

15. Schedule 2 also clarifies that the surveillance device framework requires ASIO to obtain a warrant or internal authorisation for the use of a surveillance device in circumstances where it would be unlawful.

Human rights implications

16. The Bill engages the following human rights:

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the right to freedom from torture, cruel, inhuman or degrading treatment or punishment in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);

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the right to humane treatment in detention in Article 10 of the ICCPR;

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the right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR and the right of the child to liberty and security of person and the freedom from arbitrary arrest, detention or imprisonment in Article 37 of the Convention on the Rights of the Child (CRC);

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the right to freedom of movement in Article 12 of the ICCPR;

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the right to fair trial in Article 14 of the ICCPR and Article 40 of the CRC;

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the right to protection against arbitrary and unlawful interferences with one's privacy or home in Article 17 of the ICCPR and non-interference with privacy in Article 16 of the CRC;

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the right to freedom of expression in Article 19 of the ICCPR and Article 13 of the CRC;

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the right to freedom of association in Article 22 of the ICCPR and Article 15 of the CRC;

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the right to respect for the family under Article 23 of the ICCPR;

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the right of the child to have their best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the CRC; and

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the right to support in exercising legal capacity for people with disabilities in Article 12(3) of the Convention on the Rights of Persons with Disabilities (CRPD).

Freedom from cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and Articles 2 and 16 of the CAT and the right to humane treatment in detention in Article 10 of the ICCPR<

17. Article 7 of the ICCPR and Articles 2 and 16 of the CAT provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 10 of the ICCPR provides that all people who are deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person. Division 3 engages these obligations, because people who are the subject of questioning warrants may be deprived of their liberty due to the requirement to attend questioning at specified times if the apprehension power is exercised in relation to that person.

18. Division 3 provides for an extensive range of safeguards to ensure the humane treatment of people who are subject to questioning warrants. This includes an express obligation, under section 34AG, on people exercising authority under a warrant (or implementing or enforcing a direction given by a prescribed authority) to treat the subject with humanity and respect for human dignity, and a prohibition on subjecting them to torture, cruel, inhuman or degrading treatment. Criminal offences, carrying maximum penalties of two years' imprisonment, also apply to people who knowingly contravene safeguards, including directions given by prescribed authorities.

19. In addition, the Statement of Procedures issued under section 34AF, and made in consultation with the Inspector-General of Intelligence and Security (IGIS) and the Australian Federal Police Commissioner, sets out a number of requirements in relation to the humane treatment of people subject to questioning warrants. These include requirements to ensure the health and welfare of people while in custody (including while being transported), to ensure that the manner of questioning is humane and courteous, and that people are offered appropriate breaks in questioning (30 minute breaks after every four hours of continuous questioning).

20. A person who is the subject of a questioning warrant has the ability to seek a judicial remedy in relation to the warrant, is permitted to contact the IGIS or the Commonwealth Ombudsman, and has the opportunity to make complaints about their treatment. They are also to be informed by the prescribed authority of their rights.

Freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR and the right of the child to liberty and security of person and the freedom from arbitrary arrest, detention or imprisonment under Article 37 of the CRC

21. The ability to apprehend a person aged 14 years and above who is the subject of a questioning warrant engages the rights in Article 9 of the ICCPR and Article 37 of the CRC. In addition, the requirement for the subject of a questioning warrant to appear for questioning, or otherwise commit a criminal offence, also engages these rights in the ICCPR and CRC.

22. Article 9 of the ICCPR provides that no one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedure as are established by law.

23. Article 9 regulates, rather than prohibits, detention. Only detention that is 'arbitrary' is prohibited. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and a lack of predictability. Arrest or detention must be reasonable and necessary in all circumstances with reference to the recurrence of crime, interference with evidence or the prevention of flight. Detention is not considered arbitrary where it is reasonable, necessary and proportionate to achieving a legitimate objective. The legitimate objective of the compulsory questioning powers is to protect Australia's national security interests.

24. Article 37(b) of the CRC prohibits arbitrary detention of children, and states that detention of a child should only occur as a measure of last resort and for the shortest appropriate period of time. Article 37(c) of the CRC provides the child's right to be treated with humanity and respect for their inherent dignity. Article 37(d) of the CRC provides the right to legal assistance and the right to challenge their detention.

25. The requirement for a person who is subject to a questioning warrant to appear before a prescribed authority for questioning, either immediately upon notification of the issuing of the warrant or at a time specified by the warrant, is a permissible limitation on the right to freedom of movement. These measures are directed at the legitimate objective of enabling ASIO to conduct questioning that will substantially assist in the collection of intelligence that is important in relation to the protection of people and protection of the Commonwealth and the States and Territories from espionage, politically motivated violence, or acts of foreign interference.

26. The ability to question a person for the purpose of obtaining intelligence in relation to these matters is necessary to ensure that ASIO has the capability to collect intelligence in relation to serious threats to Australia's security. Without this ability, and in circumstances in which ASIO's other intelligence collection powers may be less effective, ASIO would be dependent upon the goodwill of a person to provide necessary information about significant national security threats to Australia. If a person were to voluntarily cooperate with ASIO, there would be no need to utilise a questioning warrant.

27. The measures proposed in the Bill contain extensive safeguards to ensure that any limitation on the right to freedom of movement is proportionate to achieving the legitimate objective noted above. In order for a questioning warrant to be issued, the Attorney-General must 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 questioning matter, and that, having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued.

28. In addition, in requesting questioning warrants, ASIO must comply with the requirements in the Minister's Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions and the exercise of its powers (the ASIO Guidelines) issued under section 8A of the ASIO Act. The ASIO Guidelines relevantly provide that any means used for obtaining information must be proportionate to the gravity of the threat posed and the likelihood of its occurrence. The ASIO Guidelines further provide that, where possible, the least intrusive techniques for collecting information should be used before more intrusive techniques, and that where a threat is assessed as likely to develop quickly, a greater degree of intrusion may be justified. ASIO's compliance with the ASIO Guidelines, including in the making of requests for questioning warrants, is subject to the independent oversight of the IGIS.

29. Once a questioning warrant is issued, a number of safeguards apply to ensure that restrictions on the individual's right to freedom of movement are limited only to the extent necessary to achieve the legitimate objective noted above. A person can only be questioned for a cumulative maximum of 24 hours (approved by the prescribed authority in eight hour extendable increments up to the 24 hour maximum). Where an interpreter is present, the maximum permitted cumulative questioning time is 40 hours.

30. If the warrant is a minor questioning warrant, the minor may only be questioned for continuous periods of 2 hours or less, separated by breaks directed by the prescribed authority. Under the Statement of Procedures made under section 34AF of the ASIO Act, additional protections will apply to the conduct of questioning.

31. As a person who is subject to a questioning warrant is not in detention, that person is free to move as they choose when questioning is not taking place (subject to any directions of the prescribed authority, and limitations on leaving Australia).

32. In addition to the supervision of ASIO's questioning by an independent prescribed authority, the IGIS may also be present at questioning and has the ability to raise concerns about any impropriety or illegality. The person who is the subject of a warrant has the right to contact the IGIS at any time to make a complaint, and also has the right to contact a lawyer and have a lawyer present during questioning.

33. These oversight mechanisms are proportionate to the limitations on the freedom of movement and ensure that questioning is carried out for the purpose for which it is approved, within a fixed maximum time limit, and that the person is afforded opportunities (via the IGIS and their lawyer) to make representations or raise concerns if he or she considers that there is impropriety or illegality

34. The power to apprehend a person is a permissible limitation on the right to freedom of movement. The power to apprehend is distinct from detention, as it consists of immediately taking a person subject to a questioning warrant to the location of questioning in order for questioning to begin. The purpose of apprehension is to mitigate the risks of the questioning warrant being frustrated due to the person not attending questioning, alerting another person involved in an activity prejudicial to security that the activity is being investigated or destroying security relevant records or other things. This achieves the legitimate objective of ensuring the integrity of questioning and accordingly protecting Australia's national security interests. The apprehension power is reasonable, necessary and proportionate to achieving the legitimate objective, as it only lasts for such time as is necessary to bring the person before the prescribed authority for questioning, enabling ASIO to then obtain the relevant intelligence. That is, apprehension will be for the minimum time possible, as the police officer is required to take the person immediately (without unnecessary delay) to appear before the prescribed authority for questioning. A person is no longer apprehended when they appear before the prescribed authority for questioning.

35. The power to apprehend a person under an ASIO questioning warrant is further justified as it is appropriately limited to circumstances where:

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the Attorney-General has issued a questioning warrant with a notice for immediate attendance, which the Attorney-General may only do if satisfied that requiring immediate attendance is reasonable and necessary in the circumstances, and

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there are reasonable grounds for believing that, if the person is not apprehended, the person is likely to, or where the person makes a representation that they intend to:

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not appear, or continue to appear, before the prescribed authority for questioning

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alert a person involved in an activity prejudicial to security that the activity is being investigated, or

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destroy, damage or alter a record or thing, or cause another person to destroy, damage or alter record or thing the person has been, or may be requested to produce under the warrant.

36. In relation to children, the ability to obtain a questioning warrant, and apprehend the child, is limited to circumstances where the child is the target of an investigation in relation to politically motivated violence (including terrorism) and where the child is at least 14 years of age. There is no ability to obtain a questioning warrant, and subsequently apprehension, in relation to a child who is less than 14 years old. Lowering the minimum age to 14 was supported by the Parliamentary Joint Committee on Intelligence and Security in its 2018 review of the operation, effectiveness and implications of Division 3 of Part 3 of the Australian Security Intelligence Organisation Act 1979. The need for the lowered age is illustrated by the 2015 politically motivated shooting of New South Wales Police Force employee by a 15 year old. The exclusion of people under the age of 18 years from questioning warrants, including the apprehension power, would leave a significant gap in ASIO's ability to collect crucial intelligence on threats to Australia's security.

37. There are robust additional safeguards that apply to the questioning and apprehension of children. This includes the high threshold to obtain a questioning warrant, specifically the requirement that the person has likely engaged in, is likely engaged in or is likely to engage in activities prejudicial to the protection of Australia from politically motivated violence and that it is reasonable in all the circumstances that the warrant be issued, having regard to any other methods of collecting the intelligence that are likely to be as effective. The requirement to consider other methods available to collect intelligence, such as other warranted powers, before considering whether to issue a questioning warrant ensures that any apprehension flowing from the questioning warrant is a measure of last resort.

38. Australia's compliance with Article 37 is further supported by the requirement that the Attorney-General consider the best interests of the child as a primary consideration when issuing a questioning warrant in relation to a person aged between 14 and 18. The warrant must also meet all of the special requirements in subsection 34BD(2) and subsection 34FA(1). These requirements include the presence of a lawyer during questioning, as well as a parent, guardian or other appropriate person (which could include the lawyer in certain circumstances), and that questioning is only to occur for continuous periods of two hours or less, separated by breaks. Due to these safeguards, the measure also adheres to humane treatment obligations in relation to children in detention.

39. A person who is the subject of a questioning warrant, whether an adult or a minor, has the ability to seek a judicial remedy in relation to the warrant. The person is permitted to contact the IGIS or the Commonwealth Ombudsman, and has the opportunity to make complaints about their treatment. They are also to be informed by the prescribed authority of their rights. Division 3 remains consistent with Article 9 of the ICCPR and Article 37 of the CRC as it is reasonable, necessary and proportionate to achieving the legitimate objective of maintaining national security.

Freedom of movement in Article 12 of the ICCPR and right to the protection of the family in Article 23 of the ICCPR

40. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement. A questioning warrant restricts this right to the extent that the issuing of such a warrant requires the person to attend questioning at a time specified in the warrant, or requires the person to attend questioning immediately. The ability to apprehend the subject of a questioning warrant, in order to immediately take the person to the location of questioning in order for questioning to begin, also restricts the right to freedom of movement. Similarly, the requirements for the warrant subject to surrender their travel documents and not leave Australia, restricts the right to freedom of movement.

41. The limitation on the right to freedom of movement achieves the legitimate objective of protecting Australia's national security interests. The legitimate objective is reflected in the threshold that the Attorney-General must be satisfied that the warrant will substantially assist in the collection of intelligence that is important in relation to the questioning matter (paragraphs 34BA(1)(b) and 34BB(1)(c)) in issuing a questioning warrant.

42. The limitation on the right to freedom of movement is reasonable, necessary and proportionate. This is based on the safeguards already built into the questioning warrant framework. There are also specific guidelines - the ASIO Guidelines - which are issued to the Director-General of Security under subsections 8A(1) and 8A(2) of the ASIO Act that provide a safeguard for the appropriate use of ASIO's powers, including its Division 3, Part III powers. The ASIO Guidelines require ASIO to consider the intrusiveness and proportionality of its avenues for obtaining information and provide that:

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any means for obtaining and analysing information must be proportionate to the gravity of the threat posed and the likelihood of its occurrence;

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inquiries and investigations into individuals and groups should be undertaken using as little intrusion into the privacy of affected individuals as is reasonably required, consistent with the performance of ASIO's functions; and

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where possible, the least intrusive techniques for collecting information should be used before more intrusive techniques (where a threat is assessed as likely to develop quickly, a greater degree of intrusion may be justified)."

43. A person who is the subject of a questioning warrant is permitted to contact the IGIS or the Commonwealth Ombudsman, and has the opportunity to make complaints about their treatment. To the extent that questioning warrants restrict the right to freedom of movement, the restriction is reasonable, necessary and proportionate to achieving the legitimate objective of gathering important intelligence in relation to espionage, politically motivated violence and acts of foreign interference.

44. The requirements for a subject to surrender their travel documents and not leave Australia, or commit an offence, are necessary to ensure that warrants are not frustrated. As it is likely that a questioning warrant would be issued in relation to a person who is not voluntarily cooperating with ASIO, the flight risk of such a person is high, warranting the specific travel documents surrender and travel prohibition provisions in the Bill. Given that warrants are directed to the collection of intelligence relevant to politically motivated violence, espionage and foreign interference, there may also be significant security risks in enabling a person who is believed to have information relevant to such a security threat from leaving Australia.

45. These provisions are particularly significant given that questioning warrants may be issued to investigate threats of espionage and foreign interference. The maximum penalty of five years' imprisonment for committing the offence provides a strong deterrent to such behaviour, and is commensurate to the significance of ASIO's operations and the potential security risk presented by the departure of a person who is the subject of a warrant or warrant request. Further, the prohibition on leaving Australia is subject to an exception, where the person has obtained the Director-General's written consent, which allows for exceptional circumstances in which there is a legitimate need for the person to travel, and the Director-General is of the view that any flight risk is capable of being managed. The Director-General's decision-making in this regard is subject to the independent oversight of the IGIS.

46. The limitations on the right to freedom of movement is proportionate to the legitimate objective of ensuring that a questioning warrant is not frustrated by the subject leaving Australia, because they are enlivened only where a warrant is issued (and, in some instances, where a warrant application is on foot). In order to require the surrender of travel documents, the Director-General must believe on reasonable grounds that the person may leave Australia, and the person's leaving would be likely to impact on the person's ability to comply with the questioning warrant. Travel documents are only surrendered for the duration of the warrant (or the duration of the warrant application if a request is refused).

47. The Director-General is under a statutory obligation to cause the return of the travel documents to the person as soon as practicable after the earlier of the refusal by the Attorney General of a warrant request, or the end of the duration of a warrant if issued (the Director-General can also cause the travel documents to be returned earlier). Therefore, travel documents can only be confiscated for a finite duration that is specifically linked to a legitimate intelligence.

48. Article 23(1) of the ICCPR states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. In some circumstances, travel or prohibition on travel may result in the separation of family members as a direct consequence of action taken by the Commonwealth. In other circumstances, separation of family member will be a consequence of the choices made by the particular person.

49. To the extent that family members are separated as a direct consequence of action taken by the Commonwealth, it will not impermissibly limit Article 23. These rights can be subject to proportionate and reasonable limitations that are aimed at legitimate objectives. In the case of these measures, these objectives include the protection of Australia's security.

Right to fair trial in Article 14 of the ICCPR and Article 40 of the CRC

50. Article 14 of the ICCPR and Article 40(2) of the CRC relates to the right to a fair trial. The post-charge questioning provisions engage these articles. The legitimate objective is to obtain information that is available in the mind of the person subject to a questioning warrant in order to collect intelligence in relation to ongoing security threats, even where criminal proceedings are likely or have commenced. The ability to question a person where charges are likely, or where the person has been charged, is necessary to achieve the legitimate aim of intelligence collection in light of the potential harm caused by ongoing security threats.

51. The measure is reasonable in the context of ASIO investigations, particularly as ASIO's remit is not linked to criminal offences or prosecutions and questioning is not used for criminal justice purposes. There is also an obligation on the prescribed authority, who presides over the questioning, to make directions in relation to the use of questioning material where failure to give the direction might prejudice a person's safety or would reasonably be expected to prejudice the subject's fair trial. This safeguard, combined with the criminal immunity under subsection 34GD(6) and that questioning material can only be disclosed to a prosecutor under a court order, ensures that the measure is proportionate and represents the least rights restrictive means of achieving this necessary purpose.

52. The measure which enables a prescribed authority to prevent a person subject to a questioning warrant from contacting a specific lawyer (subsection 34F(4)) also engages Article 14. There is a legitimate objective in ensuring that a lawyer is not used to communicate information to others involved in the security matter that may result in detrimental outcomes for Australia's security. The potential impact on the subject's right to choose their lawyer is justified as it is necessary, reasonable and proportionate to the security objective and is supported by strong safeguards. Safeguards include the right of the person subject to a questioning warrant to seek legal advice, have a lawyer present, including the ability to contact another lawyer if their chosen lawyer is excluded, and the ability of the independent prescribed authority to appoint a lawyer. A person subject to an adult questioning warrant can only be questioned without a lawyer present in the following circumstances:

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where that person has waived their right to have a lawyer present; or

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where that person has not been required to immediately attend questioning, has had a reasonably opportunity to contact a lawyer and the prescribed authority has directed that the person may be questioned in the absence of a lawyer.

53. The ability of the prescribed authority to direct that an adult may be questioned in the absence of a lawyer, under section 34FB(3)(b) is necessary to ensure that the person does not frustrate the questioning process. The prescribed authority's ability to make this direction is only enlivened where the person has not been required to attend immediately, questioning has been deferred to enable a lawyer to be present and the person has already had a reasonable opportunity to contact a lawyer. It is imperative to ensure that questioning can occur in a timely manner in order to prevent any delay in obtaining time critical information from the subject of the warrant. Due to the limited application of the measure, it is reasonable, necessary and proportionate to achieving the legitimate aim of intelligence collection in relation to national security threats.

54. In contrast, the subject of a minor questioning warrant may only be questioned in the presence of a lawyer (subsection 34FA(1)). There is no ability for a child to waive their right to having a lawyer present. Where a warrant is issued under section 34BB, which is a warrant in relation to a person that is aged at least 14 but less than 18, the prescribed authority has the ability, under section 34FC, to appoint a lawyer for the minor. This ensures that in all circumstances, a minor will have a lawyer during questioning.

55. Any subject of a questioning warrant has the ability, under section 34JE, to apply to the Attorney-General for financial assistance in relation to the costs for their lawyer in appearing before a prescribed authority for questioning.

56. Subsection 34GD(5) also engages Article 14, as it requires the subject to provide information, records or things that are requested under a questioning warrant even where it might incriminate the subject. This measure achieves the legitimate objective of ensuring that a questioning warrant can be used to obtain crucial intelligence. It is reasonable, necessary and proportionate, as it is accompanied by subsection 34GD(6) which prevents anything said or produced by the subject from being admissible as evidence in criminal proceedings, except in limited circumstances, such as an offence for failing to give information under a questioning warrant.

Right to protection against arbitrary and unlawful interferences with one's privacy or home in Article 17 of the ICCPR and non-interference with privacy in Article 16 of the CRC

57. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy or home. The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee interpreted 'reasonableness' to imply that any limitation must be proportionate and necessary in the circumstances.

58. Article 16 of the CRC provides that no child shall be subject to arbitrary or unlawful interference with his or her privacy. Lawful and non-arbitrary interferences with a child's privacy are permissible limitations.

59. Section 34CC would enable a police officer to conduct a frisk or ordinary search of a subject who has been apprehended. While this search is primarily to ensure the safety of officers and ensure the integrity of a questioning warrant, police may also seize records or other things of intelligence value as part of the search if authorised by the Attorney-General in the warrant.

60. Section 34D would enable a police officer to request that a person seeking to enter the place of questioning undergo a screening procedure at the place of questioning. The officer may also request that a person undergo an ordinary search or a frisk search, if the officer suspects on reasonable grounds that it is prudent to conduct an ordinary search or a frisk search of the person in order to ascertain whether the person is carrying a dangerous item or a communication device.

61. This limitation on the right to privacy is necessary and proportionate to achieve the legitimate objective of ensuring that a person is not a danger to themselves or others while being apprehended or attending questioning. These powers will also ensure that a person does not alert others involved in security relevant activities, communicate sensitive information during or after, or destroy, damage or alter records or other things relevant to the questioning warrant.

62. There are a number of safeguards to protect an individual's right to privacy in the conduct of any search or screening procedure. An ordinary search or a frisk search of the subject must, if practicable, be conducted by a police officer of the same sex as the subject. In conducting an ordinary search or frisk search of the subject of a questioning warrant who is being apprehended, a police officer may only use such force as is necessary and reasonable. The IGIS may also be present at any search or screening of an individual, and the subject of a questioning warrant may make a complaint to the Commonwealth Ombudsman, or a State or Territory complaints agency in relation to the conduct of any search or screening procedure.

63. These safeguards aim to ensure that any search or screening of a person is proportionate and necessary to ensure the safety of officers involved in questioning and the integrity of the questioning process, and therefore Australia's national security.

64. Where a police officer is authorised under section 34C to apprehend the subject of a questioning warrant, and the officer believes on reasonable grounds that the subject is on a particular premises, section 34CA would provide the officer with the power to enter premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night, only for the purpose of searching the premises for the subject or apprehending the subject. This power is necessary and proportionate to ensure a questioning warrant is able to be executed.

65. Where a questioning warrant authorises an immediate appearance requirement, in order to also authorise the apprehension of the subject of the warrant, the Attorney-General must be satisfied that there are reasonable grounds for believing that, if the subject is not apprehended, the subject is likely to:

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alert a person involved in an activity prejudicial to security that the activity is being investigated, or

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not appear before the prescribed authority, or

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destroy, damage or alter, or cause another person to destroy, damage or alter, a record or other thing the subject has been or may be requested under the warrant to produce.

66. If police officers were not afforded the power to enter any premises, they would not be able to enforce a questioning warrant while the person is on the premises. Execution of the warrant would rely on the person voluntarily leaving the premises, which could hold up the process of enforcing the warrant and potentially jeopardise ASIO's investigation and Australia's national security. The imminence of some security threats requires ASIO to be able to respond quickly to ensure the preservation of information that may be important in relation to the particular security matter.

67. The power to enter any premises under section 34CA is a reasonable measure which is proportionate to the legitimate security concerns it aims to address. In enforcing a warrant, a police officer is confined to using force which is necessary (essential) and reasonable (objectively proportionate) in the circumstances. The police are also subject to their own guidelines in relation to the use of force. For example, the AFP are bound by the Commissioner's Order on Operational Safety (the Order), which provides guidelines as to what is considered reasonable or excessive force while emphasising principles of negotiation and conflict de-escalation as primary considerations prior to the use of physical force.

68. The Order is designed to ensure that AFP appointees effectively manage the response to conflict or potential conflict situations using the AFP use of force model and operational safety principles stipulated within the Order. For example, under these principles any application of force must be reasonable, necessary and proportionate to the threat or resistance offered, the primary consideration must be the safety of all persons involved and negotiation is the preferred means of confrontation management wherever possible.

69. Once a person is apprehended by a police officer, that officer is required to bring the person immediately before a prescribed authority, who must inform the person of their rights and obligations. If the subject of a warrant wishes to make a complaint about the police entering their premises, they may contact the Ombudsman at any time to make this complaint. The person must be provided with facilities to make such a complaint. The subject of a warrant also has the right to contact a lawyer and may seek judicial remedy in relation to any improper entrance to premises. These safeguards provide for a proportionate limitation on the right to privacy.

70. The framework also engages Article 17 of the ICCPR and Article 16 of the CRC as a questioning warrant may compel the person to provide information that would otherwise be private. A permissible limitation on Article 17 is by public authorities where the information about an individual's private life is essential in the interests of society, which includes national security. ^[2] The high threshold to obtain a questioning warrant, particularly that the Attorney-General must be satisfied that it will substantially assist in the collection of intelligence, ensures that the information to be obtained from questioning a person is indispensable to Australia's national security.

71. In addition to this, in the current national security environment, the powers are reasonable and proportionate measures that are necessary to ensure that ASIO can gather information in relation to matters of security. Security threats, including politically motivated violence, which poses an imminent threat to life by way of terrorism, and espionage and acts of foreign interference are now occurring at an unprecedented scale and level of sophistication. In addition, rapid technological advances, such as encryption, also hamper ASIO's technical tools resulting in potential intelligence gaps. Human intelligence is vital in assisting to overcome these challenges posed by technological advancements.

72. There are a number of safeguards that protect an individual's private information. In carrying out questioning, ASIO is bound by the ASIO Guidelines, which relevantly provide that information must be obtained by ASIO using as little intrusion into individual privacy as possible. This is consistent with the performance of ASIO's functions. ASIO's functions dictate that ASIO must only collect information that is relevant to security, meaning that ASIO will be precluded from collecting personal information which is not connected to a national security issue. The ASIO Guidelines also provide that the means used for obtaining information must be proportionate to the gravity of the threat and the probability of its occurrence.

73. If private information is obtained, specific safeguards exist which prevent it from being unlawfully disclosed. Under section 34HC, if the Director-General is satisfied that private information obtained under a warrant is not required for the purposes of ASIO's functions, ASIO must cause any record or copy of this information to be destroyed.

74. Questioning represents a legitimate objective, as there is a need to obtain information that is only contained in the mind of the person being questioned, irrespective of whether the person subject to questioning is an adult or a minor between 14 and 18 years old. The following safeguards, specific to minors, ensure the power is exercised in a manner that is reasonable, necessary and proportionate in relation to the objective of obtaining information that is only contained in the mind of the minor:

•

the extra threshold requiring the Attorney-General to be satisfied on reasonable grounds that the minor is the target of the investigation;

•

questioning may only occur in the presence of a lawyer and a parent, guardian or other acceptable person;

•

questioning may only occur for continuous periods of two hours or less;

•

the right to legal advice, including representation during questioning sessions; and

•

permitted disclosures to particular persons.

75. Before requesting a questioning warrant, ASIO considers the application of the ASIO Guidelines, including the requirement that the use of powers under the warrant is appropriate. The ASIO guidelines require ASIO, in the conduct of its inquiries and investigations, to ensure that:

•

the means used to obtain information are proportionate to the gravity of the threat posed and the probability of its occurrence

•

the more intrusive the investigation technique, the higher the level of officer required to approve its use

•

wherever possible, the least intrusive techniques of information collection should be used before more intrusive techniques, and

•

ASIO should conduct inquiries and investigations into individuals and groups:

o

with as little intrusion into individual privacy as is possible consistent with the performance of its functions, and

o

with due regard for the cultural values and sensitivities of individuals of particular cultural or racial backgrounds, consistent with the national interest.

76. The IGIS may be present at the questioning of an individual and it remains open to the IGIS to raise any concern about the impropriety or illegality of any exercise of the powers under Division 3. If such a concern is raised, the prescribed authority is required to consider the concern and may give a direction to suspend questioning under the warrant until satisfied that the concern has been satisfactorily addressed. The IGIS has broad powers under the IGIS Act to inquire into any matter relating to compliance by ASIO with laws of the Commonwealth, the states and territories or with ministerial directions or guidelines. The IGIS may also enquire into the propriety of ASIO's actions and the effectiveness and appropriateness of procedures relating to legality or propriety. The IGIS has significant powers to compulsorily obtain information and documents and enter premises, as well as obligations to provide procedural fairness and reporting obligations. Specifically, under sections 9A and 19B of the IGIS Act, the IGIS has the ability enter any place where a person is being questioned or apprehended in relation to a questioning warrant at any reasonable time.

77. These amendments to ASIO's compulsory questioning powers are subject to significant safeguards which ensure that these powers are used consistently with the right to protection against arbitrary and unlawful interferences with privacy. Safeguards include the high thresholds prescribed by the statutory criteria for the issuing of warrants and the exercise of powers under them, ministerial level issuing decisions, and the independent oversight role of the IGIS.

78. In relation to the tracking device framework, section 22 engages the obligation under Article 17 of the ICCPR and Article 16 of the CRC as it broadens the definition of 'device' to allow ASIO to use modern capabilities to track people which may interfere with people's privacy. The requirement for ASIO to seek a surveillance device warrant in relation to tracking devices that require ASIO officers to enter a premises or private vehicle in order to install the device, or use a remote tracking device, from the Attorney-General, in conjunction with a number of safeguards built into the surveillance device framework, ensures that ASIO acts lawfully and not arbitrarily. These safeguards include the high thresholds prescribed by the statutory criteria for the issuing of warrants and the exercise of powers under them, ministerial level issuing decisions, and the independent oversight role of the IGIS. An amendment to the definition of 'track' has been made to reflect the updated meaning of a 'tracking device' as something that enables the determination or monitoring of the location of a person or object or status of an object, such as whether the object is in working order. Given the less intrusive nature of these devices, ASIO will now have the ability to internally authorise the use of these devices in circumstances where a warrant is not required - in line with the powers of law enforcement agencies. That is, where there ASIO officers are not required to enter a private premises or vehicle to install the device and the device cannot be used to listen or record a person. There are a number of safeguards associated with these internal authorisations, including periodic reporting to the Attorney-General in relation to the number of internal authorisations and information pertaining to those activities, as well as the requirement to maintain a register of this information to allow IGIS oversight.

79. The legitimate objective of the amendment is to allow ASIO to use modern capabilities and technology to monitor an individuals' location by remotely deploying tracking devices. The limitation on the right to privacy achieves the legitimate objective of protecting Australia's national security interests. The power to track an individual is reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia's national security interests as it allows ASIO to monitor the movements of individuals who pose a risk to Australia's national security.

80. The power to track a person using modern capabilities under the new definition is further justified as it is appropriately limited to circumstances where the Attorney-General is satisfied:

•

the person is engaged in or is reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

•

the use by ASIO of a surveillance device in relation to that person will, or is likely to, assist ASIO in carrying out its function of obtaining intelligence relevant to security; and

•

if the warrant is requested in relation to an object or class of object:

o

that object, or an object of that class, is used or worn, or likely to be used or worn by a person engaged in or reasonably suspected by the Director-General of being engaged in, or of being likely to engage in, activities prejudicial to security; and

o

the use by ASIO of a surveillance device in or on that object, or an object of that class, will, or is likely to, assist ASIO in carrying out its function of obtaining intelligence relevant to security.

81. ASIO only requests the issuing of warrants after considering the application of the ASIO Guidelines, as referenced in paragraph 51 above, including the requirement that the use of powers under warrant is appropriate.

82. Under section 30 of the ASIO Act, if the Director-General is satisfied that the grounds on which a warrant was issued under Division 2 have ceased to exist, then he or she must take steps to inform the Attorney-General and ensure that action under the warrant is discontinued. If a surveillance device warrant is issued in relation to a combination of a person, premises, and an object under paragraph 26(2)(a) and the Director-General is satisfied that the grounds on which the warrant was issued continue to apply to at least one of those matters, the obligation to discontinue action and notify the Attorney-General applies only in relation to the matters for which the grounds have ceased to exist.

83. As outlined above at paragraph 52 and also applicable here, the IGIS has broad powers under the IGIS Act to inquire into any matter relating to compliance by ASIO with laws of the Commonwealth, the states and territories or with ministerial directions or guidelines. The IGIS may also enquire into the propriety of ASIO's actions and the effectiveness and appropriateness of procedures relating to legality or propriety. The IGIS also has powers to compulsorily obtain information and documents and enter premises, obligations to provide procedural fairness and reporting obligations, as well as the ability to conduct an inspection in relation to an intelligence agency at such time as determined by the IGIS, in consultation with the head of the agency.

84. These measures provide appropriate safeguards to ensure that interferences with privacy under tracking device warrants are reasonable, necessary and proportionate to achieving the outcome of protecting national security.

85. Section 26G provides ASIO the ability to rapidly deploy tracking devices, in certain circumstances, under an internal authorisation given by either the Director-General or a Senior Executive Service (SES) ASIO employee or ASIO affiliate. There are explicit protections, for example under section 26K, to ensure that internal authorisations for the use of tracking devices cannot be given where ASIO should in fact seek a warrant from the Attorney-General (see further paragraph 63, below). The framework engages Article 17 of the ICCPR and Article 16 of the CRC as the use of an internally authorised tracking device may be used to track a person's location and limits their right to privacy. The requirement for an ASIO employee or affiliate (a person performing functions or services for ASIO in accordance with a contract, agreement or other arrangement) to seek an authorisation from the Director-General or a SES employee of ASIO in order to deploy a tracking device, in conjunction with the safeguards detailed at paragraph 63, ensures that ASIO acts lawfully and not arbitrarily.

86. The legitimate objective of the ability to track people is to protect the Australian community and Australia's national security interests. The power to track a person is reasonable, necessary and proportionate to achieving the legitimate objective of protecting Australia's national security interests as it allows ASIO to monitor the location of a person who poses a risk to the Australian community. The power is limited to circumstances in which either the Director-General or a SES employee of ASIO is satisfied that the use of the device will substantially assist the collection of intelligence in relation to a security matter.

87. The framework protects an individual's right to privacy by prohibiting the internal authorisation of the following acts (section 26K), which all required warrants from the Attorney-General:

a.

entering premises or interfering with the interior of a vehicle without permission;

b.

the remote installation of a tracking device or enhancement equipment in relation to the device;

c.

the installation, use or maintenance of a tracking device, or enhancement equipment in relation to the device, to listen to, record, observe or monitor the words, sounds or signals communicated to or by a person;

d.

the doing of any thing by ASIO if, apart from section 26G, ASIO could not do the thing without it being authorised by a computer access warrant issued under section 25A.

88. Further, as mentioned above in paragraphs 48 and 57, ASIO is bound by the ASIO Guidelines, which require that the use of its powers are appropriate and the means for obtaining information must be proportionate to the gravity of the threat and the probability of its occurrence. The ASIO Guidelines also provide that information obtained by ASIO must be collected with as little intrusion to privacy as possible and that information may only be collected that is relevant to security.

89. Section 26P provides a further safeguard by requiring the Director---General or an SES ASIO employee or ASIO affiliate to take such steps as are necessary to ensure action under the internal authorisation is discontinued where that person is satisfied that the grounds for the internal authorisation have ceased to exist.

90. As outlined above, the IGIS has broad powers to oversee the activities of ASIO. In carrying out this oversight role, the IGIS has full access to information held by ASIO and undertakes regular inspections of ASIO's operational activities.

91. Section 26R provides the power for the Attorney-General to issue a warrant for the recovery of a tracking device. This engages Article 17 of the ICCPR and Article 16 of the CRC as it allows ASIO to recover tracking devices deployed by ASIO under an internal authorisation that may be on private premises or in the interior of a vehicle. The ability for ASIO to seek a warrant to recover a tracking device from the Attorney-General ensures that ASIO acts lawfully and the warrant framework has a number of safeguards in place to ensure that ASIO does not act in an arbitrary way.

92. The legitimate objective in allowing ASIO the ability to recover tracking devices under this warrant framework is to ensure that ASIO does not act unlawfully by trespassing onto private premises or interfering with the interior of a vehicle when recovering tracking devices. Pursuant to section 26R, the Attorney-General will have the power to issue a warrant to recover a tracking device or relevant equipment where failure to do so would be prejudicial to security. The ability to (under a warrant) recover tracking devices deployed under internal authorisations is reasonable, necessary and proportionate to achieving the legitimate objective of ASIO in acting lawfully and protecting Australia's national security interests by enabling ASIO to conduct its surveillance covertly.

93. ASIO only requests the issuing of warrants after considering the application of the ASIO Guidelines, as referenced in paragraph 57 above, including the requirement that the use of powers under a warrant is appropriate and within ASIO's functions provided under section 17 of the ASIO Act.

94. These measures provide appropriate safeguards to ensure that interferences with privacy under warrants that provide for the ability to recover tracking devices are reasonable, necessary and proportionate to achieving the outcome of protecting national security.

Right to freedom of expression in Article 19 of the ICCPR and Article 13 of the CRC

95. Article 19 of the ICCPR and Article 13 of the CRC provide that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media. Division 3 engages this right through its compulsory questioning powers, including secrecy provisions and the limitations it places on making disclosures to other people such as family members or contacting specified legal representatives. Article 19 of the ICCPR and Article 13 of the CRC also relevantly provide that the right to freedom of expression may be limited on grounds of national security, provided that any limitation is necessary and has been prescribed by legislation.

96. The compulsory questioning framework contains secrecy provisions which engage the right to freedom of expression by restricting the disclosure of information. These secrecy provisions are necessary to ensure the effectiveness of intelligence gathering operations which are conducted in relation to particular matters of security. While a warrant is in force, subsection 34GF(1) prevents the disclosure of information that could have significant implications for the integrity of the questioning process under the warrant and the effectiveness of related investigations. The additional protections provided under subsection 34GF(2) operate to protect ASIO's sources, holdings of intelligence and its method of operations, as the release of this information could seriously affect ongoing and related investigations, which can be long-running.

97. These secrecy laws also contain a number of safeguards that allow them to function in a reasonable and proportionate manner. Persons who are subject to a warrant may disclose information that would ordinarily be subject to secrecy laws if authorised to do so by the prescribed authority, Director-General or the Attorney-General. A person may also disclose information to a lawyer for the purpose of seeking legal advice, to a court for the purpose of seeking a remedy in connection to a warrant or to the IGIS or the Commonwealth Ombudsman for the purposes of making a complaint in relation to a questioning warrant. In relation to a minor, disclosures about the existence of the warrant or operational information may be made by the minor, a parent, guardian or sibling to a range of people including to a parent, guardian, sibling, prescribed authority, the IGIS and the Commonwealth Ombudsman. These permitted disclosures ensure that the rights of the subject of a warrant are maintained while appropriately protecting sensitive information.

Right to freedom of association in Article 22 of the ICCPR and Article 15 of the CRC

98. Article 22 of the ICCPR and Article 15 of the CRC protect the right of all persons to freedom of association, with the exception that this right may be limited for the purpose of national security.

99. Under a questioning warrant, the subject is limited in their abilities to freely associate with others during the scheduled questioning sessions, and, if authorised, during apprehension. This limitation on the right to freedom of association achieves the legitimate objective of protecting Australia's national security interests. This legitimate objective is reflected in the legislative requirement that the Attorney-General must be satisfied that there are reasonable grounds for believing the warrant will substantially assist in the collection of intelligence that is important in relation to security and that it is reasonable in all the circumstances for the warrant to be issued. The legitimate objective in relation to apprehension is further reflected by the requirement that the Attorney-General must be satisfied that it is reasonable and necessary for the person to attend questioning immediately. There must also be reasonable grounds for believing the person is likely to not attend, alert another person or destroy, damage or alter relevant records or things if not apprehended. By ensuring that the Attorney-General is satisfied of these requirements, the framework ensures that any limitation on the right to the freedom of association is appropriate to the threat and necessity of the situation. The right is only limited for the duration of questioning, and apprehension, if applicable, and only when the above criteria have been satisfied.

100. As established above, the questioning warrant framework contains a multitude of safeguards which ensure that any limitation on the right to freedom of association is reasonably adapted, necessary and proportionate. Any contravention of these safeguards may constitute an offence under section 34GE, which is punishable by imprisonment for up to two years.

101. In addition to this, the person may also seek a remedy from a federal court in relation to the warrant or their treatment in connection with the warrant, and under paragraph 34DC(1)(k) the prescribed authority is obliged to inform the person of this right.

Right of the child to have their best interests as a primary consideration in all actions concerning them in Article 3 of the CRC

102. Article 3 of the CRC requires that the best interests of the child shall be a primary consideration in all actions. The best interests of the child are not the sole consideration, and other legitimate considerations such as national security, including the gathering of intelligence, may be considered alongside the best interests of the child.

103. The questioning warrant framework engages Article 3 as questioning warrants are available in relation to persons who are at least 14 years old. There can be a legitimate need to issue a warrant in relation to a child where the child is themselves engaged in activities prejudicial to security in relation to politically motivated violence.

104. In deciding whether to issue a questioning warrant in relation to a person who is at least 14 but less than 18 years old, the Attorney-General must consider the best interests of the person as a primary consideration (section 34BB). In considering the best interests of the child as a primary consideration, the Attorney-General must take into account the following matters, to the extent known:

•

The age, maturity, sex and background of the person;

•

The physical and mental health of the person;

•

The benefit to the person of having a meaningful relationship with the person's family and friends;

•

The right of the person to receive an education;

•

The right of the person to practise their religion; and

•

Any other matter the Attorney-General considers relevant.

105. Subsections 34BD(2) and 34FA(1) protect the best interests of the child during questioning by providing that questioning cannot occur without the presence of a parent, guardian or other appropriate person and a lawyer, and that questioning can only occur for continuous periods of two hours, separated by breaks. In addition to this, further protections are provided by the independent prescribed authority, who has directions powers in relation to the conduct of questioning, including the ability to suspend questioning, and the oversight role of the IGIS.

106. These measures ensure the ability to issue a warrant in relation to a minor is reasonable, necessary and proportionate.

Right to support in exercising legal capacity for people with disabilities in Article 12(3) of the CRPD

107. Article 12(3) of the CRPD provides that appropriate measures should be taken to provide persons with disabilities access to the support they may require in exercising their legal capacity. The ability to obtain a questioning warrant in relation to any person, provided they are at least 14 years of age, may engage this right.

108. There may be circumstances where it is appropriate to issue a questioning warrant in relation to a person who has a disability. The exclusion of people with disabilities from questioning warrants would leave a significant gap in ASIO's ability to collect crucial intelligence on threats to Australia's security. Therefore, the legitimate objective is to obtain information that is available in the mind of the person subject to a questioning warrant in order to collect intelligence on security threats relating to espionage, foreign interference and politically motivated violence.

109. The compulsory questioning framework contains various measures to support the exercise of legal capacity for people with disabilities. In issuing a questioning warrant, under either section 34BA or 34BB, the Attorney-General must meet a high threshold, including the requirement that it is reasonable in all the circumstances for the warrant to be issued. Further to this, the Attorney-General may also authorise ASIO to question a person subject to restrictions or conditions. Such restrictions or conditions could include the requirement that the person only be questioned in the presence of a lawyer. As detailed above in paragraphs 39 and 40:

•

the independent prescribed authority has the ability to appoint a lawyer for adults who have been apprehended and minors to ensure that a lawyer will be present;

•

a subject under 18 must be questioned in the presence of a lawyer; and

•

a subject over the age of 18 may only be questioned without a lawyer present where they waived their right to have a lawyer present or, where the subject has not been apprehended, if the prescribed authority has directed that the adult subject may be questioned in the absence of a lawyer on the basis that the subject has had a reasonable opportunity to contact a lawyer.

110. Once at questioning, the prescribed authority is required to explain various matters under section 34DC. These matters include, but are not limited to, the subject's right to a lawyer and the ability to make complaints. The prescribed authority must also inform the subject of the prescribed authority's role to supervise the questioning and give appropriate directions and, under paragraph 34DE(1)(d), to make a direction to defer questioning. The oversight role of the IGIS is also important here, particularly the ability for the IGIS to be present at questioning or apprehension under section 34JB and the ability to raise a concern under section 34DM which may result in the suspension of questioning.

111. These measures ensure that the ability to question a person with a disability is reasonable, necessary and proportionate and supports such a person to exercise their legal capacity.

Conclusion

112. While the Bill engages a range of human rights, it is compatible with human rights because to the extent that it limits any rights, those limitations are reasonable, necessary and proportionate to achieving a legitimate objective.