Transcript of Proceedings: Terrorism Questioning and Web viewAO DSC CSC. Ms Heather Cook. Dr Natasha...

TRANSCRIPT OF

PROCEEDINGS

INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR PUBLIC HEARING

CONDUCTED AT: One National Circuit, Barton ACT

DATE: Friday 19 August 2016

PRESENT: The Honourable Roger Gyles AO QCDr Cosmas MoisidisDr Nicola McGarrityMr Stephen BlanksDr Lesley LynchMs Kelly WilliamsMr Anthony ColesMr Julie TaylorMr Peter WhowellMr Duncan Lewis AO DSC CSCMs Heather CookDr Natasha MoltMr Arthur Moses SCMs Julia GallucioMr Mark Woodberry Mr Mark Mooney

MR GYLES: Good afternoon all. This is a hearing pursuant to section 21 of the INSLM Act pursuant to a review which I'm conducting of certain questioning and detention powers of the Commonwealth. So far as this

INSLM HEARING 19/08/20161

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review is concerned, I have invited and received a number of submissions, and to the extent possible, they have been posted on the website. Some have a classification which doesn't permit that and discussions will be continuing as to the disclosure of as much of the submissions as possible. There have been some relatively late submissions, open submissions, from the AFP and AGD which I think have been provided to those parties who are here and they are or will be on the website.

In relation to certain private hearings, we will be looking at the transcript of those hearings to make public those parts which are appropriate in due course. I'd like to thank everybody who has made a submission. Your submissions are of a high standard and these will be very helpful to me. This hearing is an opportunity for those that wish to speak to their submission to do so. I apologise for the limited time. I think we had, what Mr Mooney has described as a sudden rush of interest, which has meant that we've perhaps foreshortened the time a little. However, if the afternoon is regarded as an opportunity for people to expand and highlight matters in their own submissions, I think the time available should be well used. And we have allowed at the end a period of time for what might be called a question and answer session, which can be done quite informally and to see if there is the opportunity for answering what's been said or to put some further things on the record.

If I could just run through the participants, generally speaking. Dr Cosmas Moisidis will firstly speak by telephone in support of his submission. Then Mr Stephen Blanks and Dr Lesley Lynch from Civil Liberties will have a session. And then Dr Natasha Molt and Mr Arthur Moses who are here will have their session. And then Dr Nicola McGarrity by telephone. After that, Mr Duncan Lewis and Ms Heather Cook from ASIO will be present. We will have a representative of the Australian Federal Police who will speak to their position, and also a number of representatives of the Attorney General's Department are also present.

Are there any questions about the procedure?

[No questions asked, or further statements made, by participants]

MR GYLES: Right. Well we shall hear from Dr Moisidis. Are you on the telephone, sir?

DR MOISIDIS: Yes I am. Thank you your Honour and thank you for inviting me to make the submission and to speak to it. Can I start by saying that this submission is given in a personal capacity and not in my current professional role as the Criminal Law Adviser for the Australian Taxation Office. My written submission focuses on the self- incrimination


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privilege and in short it argues that the privilege should be limited to police interviews and at trial. And it argues for a balance between ascertaining the truth and protecting the individual. In my view, the High Court has gotten this balance wrong in cases such as X7 and Lee (No 2), and I'd go so far as to say that these decisions were made per incuriam, because they were based on an incorrect understanding of the history of the self-incrimination privilege.

The High Court failed to consider why His Honour, Justice McHugh, described the traditional view of the privilege as 'dead wrong'. The self-incrimination privilege was shaped not by the claimed horrors of the Court of Star Chamber, for which we have repeated references – and that was a court which did not even have the power to impose the death penalty – but it was shaped by the horrors of the ‘Waltham Black Act’ of 1722 or ‘Bloody Code’, which eventually made over 200 offences punishable by death. The over prescription of capital punishment by that statute turned an essentially inquisitorial criminal trial into an adversarial one.

And it resulted in steps being taken to reduce the incidence of the imposition of the death penalty, such as the charging of non-capital instead of capital offences, judges and juries down-valuing stolen goods, and judges developing exclusionary rules of evidence such as the corroboration and confession rules, the hearsay rule, and the beyond reasonable doubt standard of proof. It was as Professor John Langbein of Yale who said 'an era in which too much proof meant too much death ', and the philosopher Jeremy Bentham has commented that ‘it would be a strange mode of reasoning to set out with the supposition that the laws are to be oppressive and that we are to seek for the modes of procedure best fitted to paralyse them’.

And it's fair to ask now, how do the unique historical circumstances in the 18th and 19th century that shaped the adversarial criminal trial in that era define the values and principles that should underpin terrorism investigations in the 21st century? This background explains why the High Court has not embraced truth seeking as a goal of the adversarial criminal trial. By contrast, the United States Supreme Court in Williams v Florida, and other cases — in Williams v Florida, it stated: 'the adversary system of trial is hardly an end in itself. It is not yet a poker game in which players enjoy an absolute right to always conceal their cards until played’.

The failure to consider the comparative jurisprudence from the United States adds to the per incuriam argument. If coercive examinations in relation to terrorism offences are a search for the truth with use indemnities and derivative lines of inquiry being permitted, then a


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compelled witness should not be able to complain about the loss of a sporting chance of an unmeritorious acquittal. As long as we guard against miscarriages of justice, a compelled witness who is suspected of terrorism offences must, in my view, in Locke’s Social Contract Theory terms, ‘part with as much of his natural liberty in providing for himself as the good prosperity and safety of the society shall require, which is not only necessary, but just, since the other members of the society do the like’.

If our criminal trials are a search for the truth, then there would be no meaningful distinction between pre and post charge examinations and no reason to withhold examination transcripts from the prosecution. However, in my view, a search for the truth does not simply mean that the prosecution gets the upper hand and the defence is defeated. Our adversarial system is partisan in nature and this requires checks and balances to ensure that we arrive at the truth without miscarriages of justice. This means that inquisitorial or coercive examinations by ASIO or the Australian Criminal Intelligence Commission need to be judicially supervised, with the presiding officer sufficiently empowered to control the proceedings and ensure that the questioning is fair.

Use indemnities should continue. In the case of Crimes Act interviews as well as, in the case of criminal trials, all suspects and accused should enjoy a right to silence without any adverse inferences being drawn. Criminal trial discoveries should be reciprocal in nature and defence disclosure should apply to all affirmative defences and not just defences based on alibi or expert evidence. A full right to a contested committal hearing should continue.

In the United States the combination of the abolition of the committal hearing, that is the oral contested committal hearing, and the rise of plea bargaining has resulted in only two to three percent of defendants going to trial.

The committal hearing has failed in part due to the difficulty of fully cross examining prosecution witnesses without disclosing the defence case. American defendants have lost their committal hearing and their right to trial has been seriously compromised. Reciprocal discovery is necessary to revive and reinvent the committal hearing in Australia. And in my view the High Court's decisions on the self-incrimination privilege do not take account of these wider ramifications. This is why I argue in my submission that we not only need statutory reform in the particular way that I've referred, but also that the High Court's decisions on the self-incrimination privilege needs to be reopened.

And I'll just conclude by briefly stating, that in an example of this


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problem, in Lee (No 1), Justice Hayne, in his Honour's strong dissenting judgement, stated that no party or intervener suggested in the case that the decision in X7 was given per incuriam. No party or intervener submitted that the majority in X7 failed to consider any relevant considerations or overlooked any apposite decision or principles. As I've already stated, McHugh — Justice McHugh's strong judgement in Azzopardi was clearly overlooked and his Honour, Justice Hayne, makes significant and repeated references to X7 being based on Hammond.

Now, if your Honour considers the case of Hammond, and just citing from – I haven't referred to this in my submission – the Australian Law Reports, Volume 42, page 327, particularly at page 337, his Honour stated in relation to the privilege that neither the arguments of counsel nor the time available allow for an exploration of these questions in the present case. In other words, that decision was arrived at on the material available at that time, and the knowledge that we now have about the self-incrimination privilege needs to be taken into account by way of reopening the decision.

MR GYLES: Thank you. Just one miscellaneous matter: would you mind sending through a very short CV?

DR MOISIDIS: Yes. Certainly.

MR GYLES: And I also just note without taking it further at the moment that you do however in a separate matter point to the undesirability of an ASIO interview being utilised to, as it were, cross examine a person under the police provisions in Part IC.

DR MOISIDIS: Yes, that is correct and the prospect of an ASIO interview leading to a Part IC rights and cautions interview and whether or not there ought to be a statutory requirement that in such a situation the suspect must have legal representation present throughout the Part IC interview. And in my view consideration would need to be given to specifying that that type of interview would effectively need to be an interview de novo, not an interview for the purpose of seeking to put inadmissible admissions subject to a use indemnity in the ASIO interview — effectively putting them into evidence via the back door.

MR GYLES: Yes. All right. Well thank you very much for that and much appreciated. I've got to be a bit tight on time so thank you for your contribution.

DR MOISIDIS: Thank you.

MR WOODBERRY: Can we just confirm that Mr Blanks and Dr Lynch


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are on the line?

MR BLANKS: Yes we are.

MR WOODBERRY: Thank you.

MR GYLES: Good. Thank you. Well I ask each of you to speak to the very helpful submission that I've received.

MR BLANKS: Thank you. Look, I'll speak briefly and then perhaps if you have any particular questions, I can either try and address those questions or at least take those questions on notice, bearing in mind that I'm not one of the principal authors of the report.

MR GYLES: Yes.

MR BLANKS: It's been a very collaborative effort between the different councils of civil liberties. So in fairness to others, if there are questions of a technical nature, I'd prefer to be able to have the opportunity to consult.

DR LYNCH: And, sorry, could we just register apologies from the main writer who has a trial running today.

MR GYLES: Yes. Right. Thank you. I must say that the editing is good because one can't really pick up what's been done by whom.

MR BLANKS: Yes.

MR GYLES: And I do invite you to flesh out the parts which you wish to do so.

MR BLANKS: Yes. Good. Obviously the detailed arguments and recommendations are there, but perhaps what I can add to it, just by way of general observation, and not so much as a lawyer but as an observer of civil society — that is, cohesion of civil society depends on respect for freedoms and there being appropriate restraints on the authority of the state. And the freedoms which these powers – detention and questioning powers, and coercive questioning powers – represent are significant intrusions on freedoms which are held by many to be fundamental to a free society. And so, the incursions as they presently stand in the legislation with all of the forms which have been identified in detail in the report of the previous Monitor and in the various submissions, particularly that of the Law Council — they are all flaws which magnify the intrusion on fundamental freedoms and liberties.


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And of course, so long as the powers remain unused, those intrusions are perhaps, or could perhaps, be seen as theoretical but not practical. But if these powers were to be used — and one of the interesting features of these powers is at least some of them appear not to have been used at all and therefore their utility can be questioned just on a utilitarian basis. If these powers were to be used in a way that was perceived by even some groups within society as being unwarranted then that is going to magnify divisions in society rather than — and make society unsafe rather than tend to resolve problems caused by the threat of terrorism. And I suppose the most significant example of how that works in practice in the current environment is the way in which ISIS and Al Qaeda use the existence of Guantanamo Bay and what has happened at Guantanamo Bay as a source of inspiration for their movements.

One has to be extraordinarily careful not to set up systems which are going to act as beacons for those trying to destroy our society and these powers have the potential to do just that. We've recommended that the detention and questioning power being repealed together. We've made recommendations to substantially narrow both of the coercive questioning powers. But I remain concerned that the coercive questioning powers could even, if narrowed in the ways recommended, still be, in a practical way, counterproductive to the interests of society and peaceful society. If those powers were used to target say, family members of a suspect – children, parents or siblings or cousins of a suspect – who themselves are not under any suspicion of any wrongdoing, including wrongdoing of a kind concealing an offence and then such use of the powers, which would divide families and be controversial within families, that will become known within communities and it will be counterproductive to what the security agencies ought to be trying to achieve, which is a more cohesive society with lower threat levels. So I think that's what I wanted to say in a general sense. If there are any specific issues that we could assist with I'd be happy to try.

GYLES: Well, I think the submission is relatively clear in itself. It may be a convenient time just to mention that – and this is for the benefit of everybody – it will be seen from the submission from the Attorney–General's Department that ASIO is suggesting that the procedures surrounding the questioning and questioning and detention warrants ought to be made less bureaucratic in order to assist flexibility. It's also been foreshadowed, although I haven't seen any detail about this, that the Australian Federal Police suggest that experience in the field shows that the time limits under Part IC both to terrorism offences and other offences are too restrictive in the current circumstances, and that may be taken up later, so if people might just like to bear that in mind. It's not just a one way ticket here.


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Secondly, and this is a more general question that occurs to me: the Crime Commission's powers, or the Australian Criminal Investigation Commission powers and procedures have less safeguards than the ASIO powers by quite a long way. That's quite an interesting phenomenon because those powers relate to all manner of criminal activity. Admittedly, it's supposed to be with serious planned organised crime, but at one level it is rather anomalous that the ASIO powers in relation to terrorism should be much more restrictive than the Crime Commission’s powers. Now that can lead in two directions but I just note that as being something that you've brought to mind.

MR BLANKS: Yes. Traditionally of course as an intelligence gathering organisation, one wouldn't countenance that ASIO has powers to compel the provision of information. ASIO already has extensive surveillance powers and now all manner of different kinds of surveillance. Our position, as is apparent from the submission, is that the powers for detention and questioning ASIO has here are not just justified, and cannot be justified, and we agree with the previous submitter to the extent that he suggested that there is a unwarranted blurring of ASIO's role with law enforcement. And I think some of the problems that are occurring with these powers arise from the blurring of the intelligence gathering and the law enforcement functions, which are really distinct and ought to be kept distinct.

MR GYLES: Yes. All right. I don't think there's anything particularly that I want to raise arising out of your submissions; they're pretty clear.

MR BLANKS: Well thank you very much for the opportunity to make the submission.

MR GYLES: Thank you. You can stay on the line or not as the case may be. Now if we turn to the Law Council. Can I just say by general comment, further to what I said a moment ago. You will have observed from the submissions which are public that there have been no questioning or questioning and detention warrants issued by ASIO in the time since Mr Walker's reports, but that there have been a number of Crime Commission transcripts which have been taken in relation to terrorism matters and provided to ASIO. And that's part of the backdrop to the point I made a few minutes ago. If you would take up the cudgels now.

MR MOSES: Yes of course. Thank you Mr Gyles. The Law Council is - - -

MR GYLES: Sorry to interrupt you, so I won't interrupt you again, at least


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for a while. The point made about the blurring between intelligence and law enforcement is of particular interest, it seems to me. Because if one's traditional idea of intelligence were what was involved – and I imagine that was the result of the thinking of the legislature back when this was introduced – there is a possible anomaly in that the legislation as drafted speaks about a terrorism offence, and it was put by the Civil Liberties in their submission and noted elsewhere that that may not relate to a prospective act at all. One would have expected that the ASIO intelligence powers would be related to the future rather than the past, albeit there may be a link between the two. So over to you.

MR MOSES: Yes. Thank you. The Law Council acknowledges the critical responsibility of the Parliament to ensure the security of Australia and its people, and of course in that regard, it takes the view that it's vital that our security and law enforcement agencies have appropriate powers to detect, prevent and prosecute terrorist activities to protect the Australian community. The Law Council also recognises that intelligence gathering is key to preventing terrorist actions and garnering information from members of the community who may hold relevant information. However, we must of course remember that in the case of the legislation that you're being asked to examine, that the Australian public through their parliament has sacrificed certain civil liberties in the name of national security.

And, of course, I've noted what my friend from the Council of Civil Liberties has said, but of course these laws unlike, for instance, the Japanese internment laws here in the Second World War, do not discriminate on the basis of religion or race. They can equally be exercised against all Australians in the name of national security. Now such powers of course must be proportionate to the potential threats and not unduly impact upon the values and freedoms on which our democracy is founded and which Australians rightly expect parliamentarians to protect at the same time. And for our part, we say that the Parliament has attempted as best it can as it finds its way through this area and the legislation to attempt to legislate in good faith and moderately to deal with threats.

And we also say that there are no instances that we can point to of any agencies acting in bad faith in respect of the exercising their powers or certainly in recent times. So our concerns are that in the counter-terrorism context, the Law Council remains of the view that the detention of persons not suspected of terrorist activity can't be justified. We've considered this very carefully, but we just can't see how the detention powers can be used in respect of a person who is not suspected of terrorist activity. We think that a regime should be put in place that allows the appropriate authority


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to question such persons given what may be a particular threat to the security of the nation. But as a minimum, this should only be exercised after an Australian court has examined the sufficiency of the evidence supporting the detention, and there be a full review or an official review of the decision.

And the Law Council picked up, Mr Gyles, what Mr Walker noted in the 2012 report, as at page 21, about submissions that the questioning provision should be amended to make clear that a person who has been charged of a criminal offence cannot be subject to questioning until the end of their criminal trial. Now, that of course is said in the previous Monitor’s report and in our submission, to the Monitor’s office, that really recognises the line of authority in X7 and Lee.

In Lee (No 1) it could be argued that Parliament could consider putting in place legislation so that the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act, which made amendments to the Proceeds of Crime Act — that allowed certain examinations to take place with protections in place to not allow the dissemination of that material to investigative or prosecutorial bodies, so as to ensure that there was no threat to the right to a fair trial.

And of course, as the High Court has reminded us on the 10th of March this year in R v IBAC, those principles in X7 and Lee do not extend to pre-charge investigation, and as a consequence, in that case, the High Court found that a person examined under the IBAC Act in the course of an investigation is not immune from answering questions relevant to the offence where the examinee has not been charged. And as Justice Gageler made the point in that case, legislation is sometimes harsh but it should not be reduced to incoherence by judicial construction. I think always that legislation, of course means what it means, and one should not adopt an interpretive technique which involves applying a common law principle or presumption of interpretation to read down legislation plain on its face.

So what we say is that Parliament, could, I think, made provisions clearer to ensure that both the accused, their lawyers, and of course agencies, know exactly what they can and cannot do. And that is a problem at the moment, I think, that some of the legislation that is in place — and that brings us to our concern about the overlap of certain powers amongst the agencies. We've made certain recommendations about that. We do think that there needs to be a clearer distinction between the different agencies and the powers that they exercise to ensure that there is no unnecessary duplication or confusion about these matters because as we've said we don't think anybody is acting in bad faith. We think people come at it acting in the best interests of all concerned. - - -


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MR GYLES: You've got to take into account the possibility of that happening.

MR MOSES: Of course and we accept that. We accept that. But the starting point here of course is we think the legislation could be improved. We set out in our submissions how we think it can be improved, and you are right, people can act in bad faith in respect of their powers, but the recommendations we make are not in the context of accusing anybody of that. We're making an assertion that merely from a viewpoint of what is good law, does it protect the public because it's used in crimes but also to protect the individuals at the agencies who have very difficult jobs to do, so that they are not then later the subject of assertions or allegations that they have then acted unlawfully? I’m happy to answer any questions you may have.

MR GYLES: Yes, well again the submission by the Law Council is an excellent one and quite detailed.

MR MOSES: I think the credit has to go to our National Criminal Law Committee with very experienced senior counsel, junior counsel, and solicitors, who as it were, have experience on both sides of the fence.

MR GYLES: Yes, and that adds to the necessity to consider it very carefully. What is your comment, if any, about the dilemma I mentioned or the fact that I drew attention to, that you have the Crime Commission powers on the one hand, ASIO powers on the other, both with intelligence largely, not law enforcement, roles, contrary to what a lot of people seem to think. They're both expressed in precisely the same way and they really are not comparable in these terms and one is being exercised and one is not.

MR MOSES: In terms of ASIO?

MR GYLES: And this goes to what I said earlier, that ASIO is suggesting that their regime ought to be, as it were, modified to make it more flexible and less bureaucratic and less time consuming.

MR MOSES: As I understand the observation that you've made, the concern relates to — not concern, but the query relates to, as it were, the overlapping powers that both ASIO and the Australian Crime Commission have, and in the context where ASIO does not seem to be using the powers that it has whereas the Australian Crime Commission has, and there may be a number of reasons for that. I don't profess to know why for instance the Australian Crime Commission determines to exercise certain


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of its powers in relation to the gathering of evidence, but with the Australian Crime Commission of course, it plays more of a role than ASIO in respect of feeding into security — law enforcement agencies, information which they then use in relation to dealing with criminal activity and serious organised crime.

Whereas ASIO doesn't necessarily investigate matters that are purely criminal activity, which is what the Australian Crime Commission's jurisdiction is. So there may be different reasons as to why they deploy — their powers were not deployed in certain circumstances, but it would be speculative.

MR GYLES: Yes. Quite. And there's no — it's not a complete overlap, because there really is to an extent different – and it may be difficult to put – I suppose, one can deduce from what you've said here or what's been said here, but what would the Law Council's view be about lowering the bar in relation to ASIO questioning and questioning and detention warrants, taking on board the fact that your submission is that the questioning and detention law should go altogether?

MR MOSES: Just in relation to that question, just so that I'm clear Mr Gyles, in terms of ASIO's request of lowering the bar in terms of - - -

MR GYLES: Well what in essence, they're saying is, and the Attorney–General's Department has perhaps had some list — that they're really suggesting that the necessity of going through the Attorney–General, the issuing authority and the prescribed authority is too - - - -

MR MOSES: Bureaucratic?

MR GYLES: Very bureaucratic and time consuming and they would prefer to see it done — and I'm summarising inadequately here — in–house, and perhaps along the lines of the ACIC. Admittedly the examiner there is not in–house in the true sense but...

MR MOSES: Don't you mean through the Australian Crime Commission, Mr Gyles?

MR GYLES: No. No. I'm saying that they maybe — the model might be rather more like the Crime Commission's than the current ASIO regime.

MR MOSES: I think if there was oversight in respect of those matters that are the subject of such applications that then come before something similar to an examiner, where individuals are being questioned before an examiner or if there are records and safeguards, that would not be a


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difficulty, if it meant that ASIO was able to of course balance the need to get things done quickly, but also if they need to ensure that individuals are being questioned in an environment where their rights are being as best protected as possible.

MR GYLES: Yes.

MR MOSES: I don't think necessarily jumping a number of hurdles will necessarily increase the rights of individuals.

MR GYLES: Yes, well, I take on board what's been — what you say about the ability to get legal advice and so on. And of course one's attitude to the questioning warrant might be affected by whether or not the detention and questioning warrants remain.

MR MOSES: What's the current position in respect of detention warrants? Do they still wish for those detention warrants to remain in place?

MR GYLES: Well, I think it's fair to say there's been no submission to the contrary, and the AGD are nodding.

MR MOSES: I think at the end of the day though what needs to be considered is a holistic approach, to ascertain whether there can be some form of standardised approach that is taken in respect of the exercise of power by each of the agencies. We need to ensure that we don't create a situation where there are inconsistent approaches being taken by other agencies which I think then leads to more confusion within the community, but also the inability of those agencies to properly understand the limits of coercive questioning in terms of subsequent proper criminal investigations and prosecutions. That's how we saw difficulties unfold in Lee (No 2), where in effect the conviction was quashed because information was found by the High Court to have unlawfully disseminated from one agency to the prosecution, because of a misunderstanding of their powers.

MR GYLES: Yes. Well it's perhaps worth observing that where there is a perceived need for — an accepted need for cooperation between the agencies, a joint taskforce type approach, it becomes difficult to separate intelligence from law enforcement and it gives rise to a fairly acute form to the problems that you have drawn attention to.

MR MOSES: There are measures that can be put in place such as in the proceeds of crime area where, for instance, the Federal Police have units which are in effect — operate as a silo so that information is then not disseminated from those units to the investigative police looking into the


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criminal matter to feed it to the prosecution, and of course, the amendments made by the Parliament to the proceeds of crime legislation actually provide for that in section 319 and so there are abilities, as it were, to hive off that information from being disseminated so that it doesn’t impact upon the individual’s right to a fair trial.

MR GYLES: It's accepted, but that's a separate remedy. It's not what the the normal situation would be, that if you were dealing with offences — that the joint task forces are there to pursue all remedies available including criminal remedies.

MR MOSES: Of course.

MR GYLES: And therefore, there is the difficulty of what you do with the information and how you — and this is, I suppose, what's been going on with the Crime Commission over the last four or five years.

MR MOSES: But if they're alleged, the regimes that are put in place for instance, such as section 319 that I refer to, then the agencies can set up organisations and units to ensure that they minimise any contamination, as it were, to the prosecution scenario and certainly in my experience, that has been happening in effect with the police.

MR GYLES: Now, can I just turn to the topic of the Australian Federal Police powers Part IC. And with the backdrop, the AFP may well put forward the point of view that the time limits are too restrictive, whereas, traditionally the view of the Law Council and others has been that it's — that there is the potential for oppression because of them, because you're going to have — with a combination of extensions and dead time, you end up with a fairly long period.

MR MOSES: And individuals through that process became exhausted in detention in ten days, which can lead to – in some cases it has been said that certain admissions have been made, which were made because of pressure.

MR GYLES: Yes. Well now it's fair to say, I think that, neither your submission or any other submission that I've received has cited any particular case of that happening and it doesn’t appear, to put it bluntly, there's a great ground swell of concern about this at the moment, at least if there is it hasn't surfaced.

MR MOSES: As you may recall, footnote 75 in our submission, page 15, refers to the Dr Haneef case.


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MR GYLES: Yes, sorry, of course.

MR MOSES: That at specified times he was held for 12 days because there was no cap. There are, of course, concerns about persons being detained in circumstances where they had yet to be charged with a criminal offence, and you've outlined those concerns, and that the starting point is that the amount of time spent in custody prior to the charge should be kept to a minimum.

MR GYLES: Yes. All right. As to the time it's — I'm not sure whether the Law Council has any prima facie reaction to the argument that – particularly in relation to these offences, with both the necessity to make inquiries overseas on some occasions, the necessity to have a fairly extensive electronic retrieval and analysis, and so on – whether there is prima facie a proper basis for extension of these periods.

MR MOSES: I think it's fair to say that the immediate reaction of any lawyer is as I've indicated earlier, that there would be a minimal amount of times for an individual in detention who is not the subject of a criminal charge - - -

MR GYLES: Yes.

MR MOSES: Having said that, one can understand there are certain types of offences that may require inquiries to be made which may necessitate the period of time an individual being in detention in order to facilitate those inquiries being made. But if that were to be the subject of some form of extension, then that should be the subject of judicial result. MR GYLES: Now you suggested at paragraph 87 in the submission a redrafting of IC or a user guide. Is there a recent indication as to what it is thought needs to be done?

DR MOLT: Well we noted before the previous INSLM noted the complexity of Part IC and so in terms of addressing that complexity, one possibility would be legislative amendment to aid clarity. That might not be immediately apparent though; how you might amend the legislation to aid the clarity and an alternative could be a plain language guide that could be developed to explain how the provisions work.

MR GYLES: Sort of like the Tax Act Guide

DR MOLT: That's right.

MR GYLES: Where you have sort of charts, but there's no sort of draft in


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existence which you're proposing?

DR MOLT: No. We don't have a draft, no.

MR MOSES: If your office would be assisted, we could give consideration to some way we maybe could come up with suggestions.

MR GYLES: Right. Well we'll perhaps take that on board. All right. I think I've touched on the matters that are significant for us and obviously I'll be looking at the whole of your submissions.

MR MOSES: Well thank you for the opportunity. I think the key for all the Councils is proportionality in relation to legislation, recognising the need for the various pieces of legislation to be able to (indistinct) — proportionality, the ability of oversight and review and exercise, those powers both as you said in the interest of those charged, to the public, and of course, the officers of the agencies who down the track might themselves come under the attack for misuse of those powers.

MR GYLES: Thank you very much. Now, is Dr McGarrity on the telephone?

DR MCGARRITY: Yes, that's right.

MR GYLES: All right. Well are you ready to swing into your submission?

DR MCGARRITY: Absolutely. I just want to thank you first of all, for the opportunity to participate in the public hearing today and also to apologise on behalf of both Professor Williams and myself that we've been unable to attend in person. The written submission that we have provided you, which really builds on the extensive research that Professor Williams and I, as well as a number of other colleagues at the University of New South Wales, have undertaken into the ASIO special powers regime, and also the oversight of that regime, and I would say that with a few exceptions taking into account recent events, it's substantially the same as the submission we made to the former Monitor in 2012. In our written submission, we have concentrated most heavily upon the ASIO questioning and detention regime.

MR GYLES: Yes.

DR MCGARRITY: For today's purposes I thought that I'd just highlight what we think are probably the three main points that we'd like you to take from the submission. And the first of those is really, and this is something that the members of the Gilbert + Tobin Centre have been particularly


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consistent with since the introduction of the legislation in 2003, and that's our concern about the detention warrant aspect of the special powers regime. And in many ways our submissions largely overlap with those you've already heard and have in the written submissions of the Law Council, but just to reiterate a couple of those, it's important to us to note that to the best of our knowledge no detention warrant has ever been issued, and nor has one ever been sought, and we note that the former Monitor recommended the repeal of this particular aspect of the regime.

We do acknowledge that the threat that Australia faces today from terrorism isn't identical to that which is existed at the time that the former Monitor issued his report. But we think that the fundamental point that Brett Walker made remains the same, and that's that in our minds, coming to these issues as public lawyers, executive detention should only be permitted in exceptional circumstances where a clear and persuasive justification has been put forward. And I echo the comments of the former Monitor when he noted that he had in 2012 been presented with no scenario, whether hypothetical or real, that would require the use of a detention warrant where no other alternatives existed to achieve the same purpose.

So our issue in relation to the detention regime really relates to its necessity: whether there is a gap that the detention regime is filling or whether this is an unnecessary aspect of the special powers regime. The second point that I'd like to highlight is that if the detention warrant aspect to the regime is to be retained, we think that there needs to be some tightening up of the issuing criteria in relation to such warrants. In our minds, the potential risks that a person might not appear for questioning, which of course is something that is a common occurrence before the courts, or that the person being questioned might destroy or damage evidence.

They really have only a tangential relationship in the investigation, We believe that executive detention in these circumstances should only be allowed if the criteria upon which it is based is along the lines of the detention being reasonably necessary and appropriate to protect the public from a terrorist act. And indeed, that's really the ostensible purpose which sits behind the special powers regime, and yet elements like that are nowhere mentioned as criteria for the basis of issuing a detention warrant.

And the third point that I want to make, and again this is something that was echoed in the former Monitor's report, is to do with the level of scrutiny of each of the criteria: whether the criteria is for the issuing of a questioning warrant, or equally the criteria is for the issuing of a detention warrant. And the point that, we wanted to make, is in relation to the fact


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that there are a number of criteria built into the special powers regime at present which are only scrutinised by the Attorney–General and not by the issuing authority. I guess the most prominent of those, given the fact that it was amended in 2014, is what, was originally the last resort requirement.

And I note that albeit the former Monitor recommended that that requirement be loosened, he nevertheless at the same time said that there was no justification for leaving scrutiny of that requirement – the amended requirement or the original one – to the Attorney–General rather than requiring both the Attorney–General and the issuing authority to examine it. I'd say that although we're generally supportive of the questioning aspect of the special powers regime, we are concerned that the former Monitor's recommendation in relation to the importance of independent and impartial scrutiny of all of the criteria seems to have been ignored.

In our minds, the adoption of that – the duel level of scrutiny by both the Attorney–General and also by the issuing authority – ensures much greater transparency and accountability for the issuing of what's under the special powers regime, and also in our minds — the independence and impartiality which members of the judiciary bring to the role of issuing authority also goes a very long way towards ensuring public confidence in the process by which a questioning or a detention warrant is issued. And they're really the three main points from our submission that I would like to bring to your attention today, although of course, they're expressed in far more detail in our written submission and also especially in annexure A to our written submission, which is an article written by Professor George Williams, myself, and a colleague, Lisa Burton, on the questioning detention powers regime.

MR GYLES: Thank you very much. Is it still the case, as far as you know, that there's no overseas precedent for a, at least in Commonwealth countries - - -

DR MCGARRITY: Yes.

MR GYLES: The questioning and detention powers?

DR MCGARRITY: As far as I'm aware there is not. I previously wrote an article which is published in the Journal of Policing, Intelligence and Counter Terrorism, which comes out of Macquarie University, examining five different Western democracies to determine whether any of them had adopted anything along the lines of the ASIO question and detention regime. That was published, I think, two years ago. As at that point, there was nothing that was analogous to these powers, at least to the extent that


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we're talking about domestic intelligence agencies and powers; especially those of detention being vested by legislation in a domestic intelligence agency. So that particular survey looked at the United Kingdom, United States, Canada, New Zealand and Israel as well.

MR GYLES: Thank you. Now you were on the line earlier I think?

DR MCGARRITY: Yes, I was. Yes, for the last 20 minutes or so.

MR GYLES: Yes. I don't know whether you heard the matters I put to the earlier speakers about contrasting and comparing the position between the ASIO power and the Crime Commission power.

DR MCGARRITY: Yes.

MR GYLES: Do you have any comments about that?

DR MCGARRITY: I don't.

MR GYLES: About that issue?

DR MCGARRITY: I don't, and that's simply because for both Professor Williams and myself, the Crime Commission really lies outside our area of expertise, so we're not really in a position to be able to draw a comparison between the two.

MR GYLES: Yes. Right. Now assume for a moment that you had questioning warrants and not questioning and detention: what's the view about the criteria that should trigger that?

DR MCGARRITY: I guess we've got two main submissions that we make, and one is about really tightening up the connections — the direct connection between the prevention of prosecutions, terrorism and the content of the criteria of the — in our mind, criteria like reasonable grounds for believing the warrant, or assist the collection of intelligence, imposes quite a low threshold which fails to differentiate between imminent terrorist threats versus those that have occurred in the past. It fails to differentiate between the terrorism offences which are on the less serious end of the spectrum, as opposed to those that are more serious.

So, certainly in our mind, we would prefer to see what we regard as being a more proportionate form of working which restricts the circumstances in which a person can be coercively questioned to those where it is closely related to the prosecution or prevention of terrorism. And I think we've mentioned in our written submission, and we expand on this in our article,


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that we would prefer to see criteria along the lines of a requirement that there be a reasonable rule for issuing the warrant, that it would substantially assist the prosecution or prevention of a terrorism offence.

And in our minds that would still have the extent that we are aware of – the circumstances in which questioning warrants have been issued – we believe that criteria along those lines would still have enabled ASIO to seek all of the questioning warrants that it has issued to date but also at the same time restrict the circumstances in which questioning warrants are able to be issued in the future, to those where there is a direct connection between the threat of terrorism and the coercive questioning. And the other point that I make is along the lines of what I said before about our belief that it's critical that the criteria are scrutinised not simply by the Attorney–General, but by both the Attorney–General and also by the issuing authority, both to provide a measure of substantive accountability, but also to provide the necessary perception that the members of the judiciary are acting as issuing authorities and bringing both impartiality, and independence to the process, and thus ensure public confidence in a way in which the special powers regime is carried out. So those are the two points that we would make in relation to the questioning regime: that we think that there does need to be some tightening of the criteria; and also that the process by which those criteria are examined should be done at the very least on each count by the issuing authority, and in addition, by the Attorney–General as well.

MR GYLES: And you argued for a derivative use immunity, is that correct?

DR MCGARRITY: Yes, we do. We always have, and I would say that including a derivative use immunity is something that we have come to as a fall-back position. Certainly, the position of myself and colleagues in the Gilbert + Tobin Centre, it's for a long time been that the privilege against self-incrimination is fundamentally important as a protection in our criminal justice system. But we believe — we accept the need for there to be some circumstances, such as in the interests of national security, where it may not be possible to accord that privilege. But we do believe that if that privilege is to be abrogated in these circumstances, especially where the consequences as in the national security context are potentially so severe in terms of the sanctions that may be imposed, we would far prefer to see both a use immunity, but also a derivative use immunity, being attached to the regime.

MR GYLES: Well just to explore that for a moment - - -

DR MCGARRITY: Sure.


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MR GYLES: Assume that you had a criteria or criterion that — of the sort that you are arguing for. You're trying to prevent a more serious thing than something — some of the acts which we've thought of in the definition.

DR MCGARRITY: Yes.

MR GYLES: And it's aimed at preventing something serious - - -

DR MCGARRITY: Yes.

MR GYLES: How do you do so if you can't use it either actively or derivatively?

DR MCGARRITY: The information?

MR GYLES: And assume you've got a joint taskforce trying to interdict or disrupt what's going on. How does it affect you without derivative use? That's a question, not a comment.

DR MCGARRITY: Yes, of course. I mean, I accept — really what we're looking at here is trying to find a balance between the fair trial or what's traditionally been the fair trial rights of a person being questioned and the interests in national security, and we'd acknowledge that there are other avenues available for – such as pre-charged detention, Part IC – which don't go so far as to even abrogate the privilege against self-incrimination in the first place. So our attitude is, yes it may make it harder, but it still strikes the right balance, in our minds, between protecting the interests of the person being questioned and also the interests of national security.

In our minds, it seems to be a spectrum and this is — we accept the privilege of self-incrimination is not one that's appropriate to adopt in these circumstances. However, we do believe that a derivative use immunity should exist to strike that appropriate balance.

MR GYLES: Okay. Now one matter you do raise, I think others have raised it also, is 34ZS, the non-disclosure provision, and so you draw attention to the strict liability aspect of it.

DR MCGARRITY: Yes.

MR GYLES: You may not have it in front of you, but it's — I'm wondering what, and this would be directed to others here too, the — what is meant by ‘indirect disclosure’ in 1(d) and whether the strict liability provisions in subsection 3 effectively only apply to the subject


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and lawyer, rather than the officers of ASIO who are present or who may know about it.

DR MCGARRITY: Yes.

MR GYLES: I'm not sure whether that's something that you draw attention to.

DR MCGARRITY: We haven't. However, I'm very happy to take that on notice and also to speak to Professor Williams and respond to your advisers on our interpretation of that. I haven't looked at it in detail.

MR GYLES: No. I'm noting here that in subsection 11 this prohibition clearly applies to a press statement or a republication.

DR MCGARRITY: Yes.

MR GYLES: So I'm just — I want to get my head around just how far this goes and what type of criticisms, if there are any, that can be made of it.

DR MCGARRITY: Absolutely. As I said, it's something I haven't looked at in detail before. However, I'll take that on board and speak to the co-author of my submission and respond to your advisers if that would be useful on those questions.

MR GYLES: Yes. Again one needs to look at this in relation to ICAC, crime prevention and all these other bodies with similar provisions to see whether it's out of line or not out of line.

DR MCGARRITY: Yes. I think one of the things that we have — and again this is coming from a slightly different perspective to a lot of other people in terms of our backgrounds of predominantly public lawyers. One of the issues that we have always taken in relation to the coercive questioning detention powers of ASIO and the ability to draw analogies with law enforcement bodies is about the quite different functions and role that ASIO plays. And of course, one can't, given the nature of preparatory offences and the increasing pre-emptive responses to terrorism, completely divorce law enforcement agencies from intelligence agencies.

However, I would say that our attitude has always been that powers that have been given to law enforcement bodies cannot necessarily simply be transposed over to the intelligence context, given the breadth of the role and functions that intelligence agencies play and the quite different manner in which they carry out those activities in terms of the level of oversight and transparency. So it would just make — albeit that we


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haven't been able to provide comments specifically on analogies to be drawn from these other bodies, we would note that that is something that we have always been quite careful to emphasise in our submissions; that we're reluctant to see there being a neat comparison to be drawn between law enforcement and intelligence agencies. There is something distinct about the nature of those two bodies that needs to be recognised in deciding what powers to give to each.

MR GYLES: All right. Well, I follow that. However, as I said earlier, if you actually read the statutes for these bodies, and I include in that the Crime Commission as it then was, and ICAC and similar bodies, none of them are law enforcement bodies either, so - - -

DR MCGARRITY: Absolutely. And that's the reason why we have — I know before that something that's remained consistent in submissions made by the Gilbert + Tobin Centre has been our opposition to the detention aspects of the ASIO's special powers regime. However, where our attitude has shifted is in terms of the recognition that coercive questioning powers are increasingly being recognised as a legitimate tool for both intelligence agencies and law enforcement agencies to use in somewhat unusual circumstances, and it's for that reason that we have taken the approach that we're not opposed to the questioning aspect of the regime, but rather we would prefer to see a tightening up of the criteria to ensure that the criteria only address circumstances in which it is absolutely necessary to use coercive questioning.

MR GYLES: Well, I thank you very much indeed for your contribution in this matter and in others.

DR MCGARRITY: Thank you very much.

MR GYLES: All right. Well, we'll take a short break now and following which the Director–General of ASIO will be speaking.

MR MOSES: Mr Gyles, just in relation to the section 34ZS, I think in my client's — section 35P of the ASIO Act, that the Law Council could put in a note to your office in respect of the issue that you've raised.

MR GYLES: Yes.

MR MOSES: So I think the concern that you’ve raised is whether or not this will in some way inhibit the press for instance being able to publish.

MR GYLES: Well, I just want to understand what the implications are. Having spent some time looking at 35P, I've looked at this incidentally on


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the way through - - -

MR MOSES: Yes.

MR GYLES: I'm just curious to make sure that I understand the ramifications without having any particular view about it at the moment.

MR MOSES: Yes. I think we've looked at this previously, but we'll prepare a note for you and send it through to your office in respect of the issue you’ve raised.

MR GYLES: All right. Thank you. We'll just have a short break until 3.30 pm.

ADJOURNED [3.19pm]

MATTER RESUMED [3.26pm]

MR GYLES: It's a little ahead of 3.30, but I think everybody who is going to be involved is still here. We might check phones.

MR WOODBERRY: Hello. Do we have everybody on the phone?

[no response received]

MR GYLES: All right. Well the sessions we're about to commence will involve contributions from ASIO, the Australian Federal Police and the Attorney–General's Department, and firstly I would ask that Mr Duncan Lewis, Director–General of ASIO, and Ms Heather Cook, who are both here — give you the opportunity of saying what you would wish to say in relation to the matters of issue before us. I have received submissions from ASIO, and I've had a private session and will, as I've said earlier, endeavour to keep as much in the public as we can, but there are severe limitations upon that. But here is the public face of ASIO and its position in relation to this significant matter.

MR LEWIS: Mr Gyles, thank you very much. Duncan Lewis, Director–General, ASIO. Thank you first of all for the opportunity to publicly address the questions of your review on certain questioning and detention powers in relation to terrorism. As you have said, we made a classified submission to you on the 15th of June in response to your questions and I note just for the record that that submission was only on factual issues due


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to the caretaker arrangements. We then came back subsequently, attended a private hearing with you on the 26th of last month, where we were able to hopefully answer your questions in more detail in a classified environment. And on the 12th of August, the 12th of this month, a second classified submission was provided to you in writing, to provide additional details in response to questions that you had raised subsequently.

We are also responsible, or we are responsible as an organisation, as you know from our legislation, for obtaining, correlating and evaluating intelligence relevant to security, and that is done with the aim of protecting Australians and Australian interests. That particular role has endured through the 66 years of the organisation's history. Counter-terrorism is one of our key functions and in the years since the last INSLM review done by your predecessor, of the review of these powers, which was back in 2012, there's been what I would describe as an unprecedented number of counter-terrorism investigations by our organisation. In fact, two thirds of all the terrorist planned attacks that occurred since 9/11 back in 2001 have occurred since the country went to a higher state of alert less than two years ago.

We went in September 14 to the heightened level of terrorist alert of ‘probable’. That word has meaning. There are definitions around of what it entails. It means that credible intelligence assessed by security agencies indicate that individuals or groups have developed both the intent and the capability to conduct a terrorist attack in Australia. And I think, the fact that we've had three terrorist attacks and 10 major disrupted terrorist attacks in the last two years, since I took over this job in September of 2014, bears witness to that. It certainly reinforces the wisdom of the decision to heighten the terrorist alert level back in September 2014.

Counter-terrorist investigations in the current high threat environment must be responsive and fast moving. It's important for me to point out that of the 10 major disruptions that have taken place in the last two years, several of those were disruptions that occurred within one to, sort of three, hours of the actual attack being executed. They were last minute disruptions. The point I want to make here is that as one gets close to the point of disruption, there's an increased requirement for flexibility and agility to be available to the security agencies to respond. And so for us, as we come to understand in the last few hours the potentiality of a terrorist attack, we need to have as many instruments available to us and the flexibility to be able to react accordingly, particularly for the preservation of material or information to be able to understand what immediate colleagues of the potential terrorist might be doing, thinking, by way of support to that individual. There is requirement for, as I say, high levels of agility and responsiveness. Common attack methodology


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does not involve significant planning in most cases. It's got a single participant frequently, although that single participant has inevitably got one or two friends that are associated with the thought of executing an attack. Perhaps small numbers of individuals involved in most cases carrying out what I'd describe as relatively unsophisticated attacks. The fact that they're unsophisticated almost ipso facto means that they can be launched at fairly short notice. There's not a lot of lead time in preparing for them.

Now to counter the very real threats posed by terrorism in this country, we require, in my view, an effective suite of investigative measures, and this includes for my organisation, questioning warrants and questioning and detention warrants. We have received extended powers, as you're well aware, over the last two or three years to address what has been a fairly new challenge for the Australian community. Who would have thought three or four years ago that we would have a 14 year old engaged in a terrorist activity, and who would have thought we would have contemplated as a society the imposition of a control order on such a child? So there has been a significant shift in the circumstances that we face as a community.

While there are other agencies in Australia with compulsory questioning regimes, our own legislation, our own legislative framework, has been designed – and this is an important point – with the unique security intelligence function of ASIO in mind. The framework has stood in many ways the test of time and it is quite specific to the task that we have. Now other agencies with compulsory questioning regimes have alternative focuses and this is the point that I just want to stress here. For example the Australian Criminal Intelligence Commission, the ACIC, recently renamed, their questioning regime is focused on criminal intelligence. It's quite clear in their charter that they are there to collect, to assess and to disseminate criminal intelligence information.

I understand that Mr Dawson spoke to this issue recently with you and I just want to stress how our business is security intelligence as defined in the ASIO Act, particularly focusing in this instance on the issue of counter-terrorism. ASIO's security intelligence function enables what I describe as a unique focus on a broad range of security related activities. It includes the collection of intelligence on lone actors or small groups who may be involved in carrying out or planning to carry out relatively unsophisticated attacks. Now, further I want to stress that ASIO's security intelligence role is focused on activities that, while relevant to security, may not necessarily amount to criminality. That's an important distinction.

ASIO's compulsory questioning powers can potentially be used to obtain


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information from individuals who are not directly involved in the conduct of the acts prejudicial to security; it can be associates of the individual in question. For example, in the event of a hostage incident involving a single perpetrator and the belief that that individual may have, say, an improvised explosive device at their disposal and an intention to use it, without there being a trigger for a serious and organised crime indicator, which might trigger ACIC powers, ASIO may be the only agency able to respond to obtain critical information. Under the current arrangements, we would be permitted to compulsorily question peripheral associates about the circumstances surrounding the event to help inform a resolution of the incident.

Like all of our investigative tools, a decision to use our questioning powers is made based not only on getting an effective outcome, but given that we are regularly dealing with fast-paced imminent threats to life, in investigations we have to be pragmatic and timely in how we go about our work. In these rapidly evolving cases, questioning powers have not been the most appropriate disruption or investigative method, due to the mismatch between the efficiency of gaining a questioning warrant on the one hand, and the pace of our highest priority CT investigations on the other. We've made a number of recommendations in our submission to this review on how the current authorisation process for our questioning powers could be streamlined. This would make them more efficient in responding to the current fast-paced threat environment.

I should try to be clear here that it's simply incorrect to presume that ASIO's non-use of questioning powers is an indication of the ineffectiveness of the warrant power. I don't think that is a correct judgement. We've used these powers in the past. We expect the evolving security environment will likely necessitate the use of ASIO questioning powers again in the future. And a key challenge for us is the increasingly difficult nature of traditional investigative techniques when we employ them against modern terrorist targets. For example, our targets are becoming more operationally secure; they are more savvy in terms of their operational security. It's mainly enabled by ease of access to encrypted communications through mobile phones and so forth that are now highly encrypted. They're freely available and there's a wide range of these applications available.

A compelling concern is the threat that's posed against officers and representatives of Australian counter-terrorism agencies, and our own is included in that. We saw most tragically a demonstration of this with the shooting of the New South Wales police employee Curtis Cheng up in Parramatta, and the stabbing of the Joint Counter Terrorism Team officers by Numan Haider down in Melbourne outside the Endeavour Hills police


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station. Now that could easily have been ASIO officers. We are operating in a very similar environment to those officers of other agencies. We work collaboratively with our other investigative entities to coordinate the whole of government counter-terrorism response because that is our role.

Clearly defined roles and responsibilities under legislation, combined with formal cooperative arrangements, work to ensure appropriate information sharing on investigations optimising inter-agency capability and efficiency. This integrated approach yields a net benefit of proportionate and timely response. We conduct our work in accordance with the publicly available Attorney–General's guidelines, of which you will be very aware, and we stress the overriding consideration of proportionality and propriety in all that we do, particularly within the framework of those guidelines. I should also note that in relation to burden-sharing, where ASIO is the recipient of information obtained through another agency's questioning powers, this doesn't diminish the importance of agency specific powers which enable ASIO to fulfil our own unique statutory functions.

An effective suite of legislative powers, including questioning warrants and questioning and detention warrants, is in my view fundamental to ASIO's work in responding to the terrorism threat that we face. And noting this critical importance, ASIO would support amendments to the legislation to make the regime more efficient and effective for use in the current security environment. I think, Mr Gyles, with that I will finish and take your questions.

MR GYLES: The main clarification that is needed today is the last point you make. I mean, I've raised elsewhere some questions which have been answered but the suggestions for the reform of the procedure. The Attorney–General's submission, which is public, has given a summary of that and that can be discussed within this context, but I think it would be appropriate that the public know what you say would be beneficial — the amendments.

MR LEWIS: We have, of course, put forward some of these suggestions in other correspondence with you.

MR GYLES: Yes.

MR LEWIS: But as you say, for exposure in a public setting, there are really — I guess there's three things that I would like to say. Firstly, it would be most desirable, in our view, for there to be a streamlining of the warrant authorisation process, whereby authority for the warrants was provided in much the same system as for the other warrants that we


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execute on a routine basis. That is, the Attorney–General being the authority that could give us these warrants. Secondly, the removing of the requirement for questioning to take place before a prescribed authority. As you would be aware, there is a requirement for the statutory office holder of the IGIS to oversee the questioning process in any case. So we have, in my view, an unnecessary belt and braces situation here.

And finally, the issue of amending the ASIO Act to ensure that ASIO's questioning powers can be deployed against all relevant terrorism offences in the performance of our function. And this could include a number of things in line with the recommendations of your predecessor. Amending the definition of terrorism offence: that would promote better consistency across the Commonwealth as to what constitutes a terrorist offence. Ensuring that the legislative regime supports post–charge questioning: the questioning of a person post–charge can result in most valuable intelligence collection, particularly if there are a number of associates that are involved in a string of terrorist attacks, and if you have a look at what's happened recently in Europe, there is quite often a sort of a series of attacks that might occur in quick time one after another, and to be able to follow that through post–charge questioning I think is very important.

And ensuring that the legislative regime allows intelligence obtained under warrant to be used for further investigations into ongoing threats. So they were the kind of the three areas: the streamlining of the authority; the removing of the requirement for an additional prescribed authority to be present; and the amendment to our own Act.

MR GYLES: Thank you very much. All right. Well, I think I'll then call upon Mr Peter Whowell, the Manager, Counter-Terrorism, Engagement and Operations Support, with the Australian Federal Police, to outline your position.

MR WHOWELL: Thank you, your Honour. Thank you for the opportunity for the AFP to appear at this public hearing of your reviewing of the questioning and detention powers in relation to terrorism. The AFP is committed to cooperating to the fullest extent possible with your office in this inquiry, noting a lot of the matters that we are drawing on are current investigations or going through the prosecution process. The AFP has already appeared before you today and earlier on the 30 th of May in a confidential hearing to answer questions around our use of Part IC, and the interaction the AFP has between the Australian Criminal Intelligence Commission powers and the ASIO powers in relation to questioning and detention.

I would like to take this opportunity to confirm that the AFP will be


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making a submission in relation to this inquiry and it will focus on our use of Part IC in the investigation of terrorism offences. Part IC is a vital aspect of our investigation process for terrorism investigation, and as well as non-terrorism investigations, more broadly. It sets out the parameters, in timeframes, within which a person arrested for a Commonwealth offence can be detained for the purpose of an investigation, and sets out importantly, the safeguards for the arrested person balancing their needs against the investigative requirements of law enforcement. Part IC was introduced in 1991 and, to my mind, has not been subject to holistic review since then.

The operational environment in which Part IC applies, particularly for terrorist investigations, has changed considerably over the last 25 years, and even as the Director–General has just outlined, in the last two years. The investigation of terrorism offences has become increasingly complex. The current threat environment is fast-paced and dynamic. Plots materialise quickly and with little opportunity for law enforcement to intervene. The Joint Counter Terrorism Teams that the AFP and others are members of often need to make arrests very soon after becoming aware of the threat. Arrests in these situations often represent the commencement of an investigation rather than a culmination of investigation.

These investigations can now involve large amounts of forensic and electronic digital materials seized under warrant and it can take forensic teams many hours to access devices, construct material and analyse the result in order for those results to be put before the arresting person in an interview under Part IC. Despite this changed environment, as I mentioned earlier, Part IC has not changed significantly since its initial introduction in 1991. In particular, the initial four hour investigation period remains unchanged. These time constraints mean it's often necessary for the AFP to begin to seek an extension to an investigation period almost concurrent with the investigation period commencing, and that's probably the focus of what we'll be coming forward with. So thank you for the opportunity to make these opening remarks, and I'll take any questions.

MR GYLES: All right. Well I think — so that will be spelled out in your submission you’re foreshadowing?

MR WHOWELL: Yes. Yes, it will.

MR GYLES: And then people will have the opportunity of responding to that in due course? So I think it's probably best to await that. It's fair to say that the provisions of Part IC have been utilised on a number of occasions?


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MR WHOWELL: Yes, they have.

MR GYLES: And I think the details for that are probably in the submission. All- right. Well those details also should, without descending to details linked to the cases, be known as well. So it's probably best to await that. Now, across to the Attorney–General's Department. Who is leading off on?

MR COLES: Your Honour, I will. I think it's the case that we don't really have too much further to add beyond what's already been said by the Director–General, and my colleague from the AFP. As you'll know, our role really is to administer the legislation into which you are looking, and also to work very closely with the agencies around the table to make sure that to the extent we can, the legislation is remaining flexible and keeping up to date with the kinds of operational challenges they face. We were thinking about what we might say today, and I think all the points have already been made, so I'll not propose to say anything further.

MR GYLES: All right. Well that being the case, I think most of the points have been discussed, and if you wish to expand on them, then that's fine. If you don't, well that's also fine. We were going to provide, as it were, the opportunity for an interactive arrangement. I think we've lost most of our telephone listeners.

MR COLES: We seem to have, yes.

MR GYLES: Just double check, I guess. But it maybe the Law Council has some matters that may want to raise.

MR MOSES: I think just the general observation, in respect of the proposed streamlining that ASIO is asking, in the context that the Attorney–General is then given the sole power as it were to authorise questioning and detention. I think one has to pause and reflect on whether this is necessarily a good idea to be giving a politician, admittedly, the first law officer, but a person which is first of all, also a politician, the power to issue warrants to an agency such as ASIO to detain individuals without proper judicial scrutiny of that process. I think that would put at risk, in due course, both officers of ASIO and potentially that politician, as to how those powers came to be exercised and what information was provided to that individual. Regrettably, what history has taught us is that there needs to be some form of independent authorisation of such measures and that would need to be reflected on, and if implemented will put an Attorney–General in a difficult position — I'm not saying the current one. They may be confronted with a scenario where the Attorney–


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General may not be available at the particular time, they require a warrant. Does that then go to the Solicitor–General as the second law officer? How does that work? And what will be the process? In fact, it might be too closely aligned to the organisation because they have authority or responsibility for that organisation, so if something happens, they have to it wear politically, the consequences.

MR GYLES: Yes, I think those who've followed the website will know, but I should just say that we have received submissions from interested parties including, for example, the IGIS and her office, which is a relevant part of the architecture, if I could put it that way, and from the Commonwealth DPP, and we've made inquiries of parties such as ACLEI and the Ombudsman who have, as with IGIS, oversight responsibilities in relation to some of these bodies. I think it's fair to say there have been no complaints about the use of Part IC, and the IGIS indicates no complaints about the use of the questioning and detention powers. Although, of course, that goes back to before Mr Walker's last report. Well, I think if there's no further desire to say anything on anybody's part — thank you very much for your attendance, it's much appreciated. This public hearing is at an end. If there is new material coming forward with submissions, then I'm quite happy to receive them.

MATTER CONCLUDED [3:54pm]


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Transcript of Proceedings: Terrorism Questioning and Web viewAO DSC CSC. Ms Heather Cook. Dr Natasha...

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Transcript of Transcript of Proceedings: Terrorism Questioning and Web viewAO DSC CSC. Ms Heather Cook. Dr Natasha...