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ASIO (TERRORISM) BILL

DETENTION SCHEME

The Detention Scheme envisaged in the Bill is unnecessary and is seriously disproportionate to the problem at which it is supposedly directed.

The effect of the Scheme is to:-

1. Cause a person to be detained largely under conditions specified by the Attorney General, not by a Federal Magistrate or the AAT;

2. In certain circumstances the detained person can be held incommunicado;

3. The person is required to answer questions under penalty of being liable to be jailed for a maximum of five years;

4. A person being detained will not be restricted to the facts situation of someone who is suspected of knowing details of a serious terrorist offence that is about to be committed but extends to a much wider class of persons;

5. Detention can be authorised beyond the 48 hours referred to by the Attorney General in his media comment and on my calculation can well extend to a period of eight days;

6. The role of the Federal Magistrate or AAT member is severely circumscribed to the extent that in many situations posited under the Bill it is the Attorney General who issues the warrant, controls what subsequently happens and in many respects the Magistrate or AAT member performs something akin to a figurehead role.

The Attorney General in his Second Reading Speech described these proposals as “a measure of last resort”.

The Attorney General has not spelt out why the existing detention measures under the Federal Customs Act are insufficient to deal with all terrorist situations other than where a person is said to have information which may prevent the imminent commission of a terrorist act, e.g. the flying of a plane into a building.

In this latter situation where a fellow terrorist has knowledge of a plan to fly a plane into a building or some similar scenario that fellow terrorist is unlikely to be fazed by the prospect of being jailed for failure to answer questions.

The legislation is considerably wider than that which the Attorney General has indicated since September 2001. The Attorney General’s public pronouncements have been that the Detention Scheme will relate to holding persons incommunicado in relation to serious terrorist acts that are about to occur.

In view of the fact that the relevant legislation has been six months under preparation, it must be questioned as to why the Attorney General’s Department have not produced a Discussion Paper listing the existence of Detention Schemes in countries with a similar legal regime to Australia so that an examination of the regime contained in the current bill can be carried out by reference to examining the situation in countries with a similar legal regime to Australia.

Therefore, while the Detention Scheme is strongly opposed, the following submissions are made on the basis of trying to ameliorate some of the more objectionable features of the proposed detention regime.

SECTION 34B PRESCRIBED AUTHORITIES

While the Attorney General in the Second Reading Speech describes the warrants for detention as a measure of last resort he then proceeds to allocate the supervision regime to the lowest tier of the Federal Judiciary.

It is contended that having regard to the novelty, seriousness and far reaching consequences of the proposed detention regime the Prescribed Authority should be a Federal Court Judge and not a Federal Magistrate or the AAT.

Appointing the lowest tier of the Federal Judiciary to supervise the detention regime reflects what has happened in relation to the telephone tapping regime, namely when introduced it was said that the novel procedures and civil liberties consequences of telephone tapping would be supervised by the senior level of the judiciary, namely the Federal Court. Over time that protection has been lessened so that the lowest tier of the Federal Judiciary, namely the AAT is now involved in phone tapping supervision.

Some concern attaches to Section 35B(5) that provides that if a Federal Magistrate has a function, power or duty that is not judicial then the Magistrate has the function, power or duty in a personal capacity and not as a Court or as a member of a Court.

The rationale underlining this section is unclear. Is it meant to reflect the decisions in Kable and Grollo?

In any event, it is contended that the Federal Court should supervise such a draconian and unprecedented extension of police powers as contained in the detention regime of this Bill.

SECTION 34C – REQUESTING WARRANTS

This section appears to require the Director General of ASIO to seek the Attorney General’s consent to approach a Federal Magistrate so that that Magistrate may issue a warrant.

If all that Section 34C does is to require the ASIO Director General to seek the permission of the Minister prior to asking the Federal Magistrate to issue a warrant then there is no objection to the terms of Section 34C.

SECTION 34D – WARRANTS FOR QUESTIONING

Section 34D(1) provides that a Federal Magistrate may issue a warrant for detention if satisfied that there are reasonable grounds for believing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.

This appears to allow the Magistrate to issue a warrant for the apprehension of a person who may be able to substantially assist the collection of intelligence in relation to a terrorism offence that has already happened, as well as one that may be about to happen.

Section 34D(2) appears to significantly circumscribe the power of the Federal Magistrate.

If the Magistrate has decided pursuant to Section 34D(1)(b) that a warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence, sub section 2 then appears to require the Magistrate to issue the warrant in the same terms as the draft warrant which has been prepared by both the Director General and the Minister.

To circumscribe the Magistrate’s power in this regard is unacceptable.

Put differently, to require a Magistrate to issue a warrant in terms drafted by the Director General and the Minister, where the Magistrate considers those terms to be inappropriate is to seriously derogate from the proper decision making role of the Magistrate.

It is contended that Section 34D(2) should be amended to make it clear that the Magistrate has the power to ultimately decide the terms of the warrant to be issued.

Particularly is this so in relation to the important issue of persons whom the person is permitted to contact while in custody or detention.

Section 34D(2) appears to give the Director General and the Minister the power to prepare the terms in the draft warrant, including specifying the persons whom the person in custody can contact whilst at the same time preventing the Magistrate from bringing his own mind to bear as to whether the terms of the draft warrant specifying the persons whom the detained person is able to contact is justified.

While Section 34D(4) provides that the warrant to be issued by the Magistrate may specify someone whom the person to be detained is permitted to contact by reference to the fact that he or she is the detained person’s legal adviser, this sub-section does not make it clear that if the draft warrant prohibits contact with a legal officer that the Magistrate has the power to strike out that prohibition.

SUPERVISION OF DETENTION REGIME

In addition to amending Section 34D to make it absolutely clear that the Federal Magistrate has the power to alter any of the terms of the draft warrant, it is most important that there be a scheme for monitoring both the application for a warrant for detention by a Magistrate and everything that happens during the period of a person’s detention.

To this end the concept of a Public Interest Monitor must be a necessary pre-condition to the issue of a warrant to detain a person and to regulate and monitor the entire period of detention.

It is clear that when a person is detained for 48 hours ASIO will seek to question/interview that person prior to the detained person being brought before the Federal Magistrate for formal questioning.

The Bill is entirely silent on this aspect of the matter.

The scheme of the Public Interest Monitor is outlined in the enclosed extract from the Police Powers and Responsibilities Act (Queensland).

It is envisaged that the Public Interest Monitor concept will have to be adapted to the scheme of this Act, both to enable the Public Interest Monitor to be present and make submissions at the time the Magistrate makes a decision about issuing a detention warrant and also in relation to the period of formal questioning of the detained person before the Magistrate.

It is vital that the combination of the role of a Public Interest Monitor and a Custody Officer be inserted into the Act to ensure that when a person is under detention but not physically before the Magistrate for questioning, the possibility of threats and assaults can be minimised.

While it is provided that in Section 34J that the detained person must not be subject to cruel, inhuman or degrading treatment by anyone exercising authority under the warrant, there is no provision for real time monitoring of the person’s treatment to ensure that mistreatment does not occur.

A Custody Officer of the type envisaged in the UK Police and Criminal Evidence Act must be incorporated into the proposed detention regime and that Custody Officer desirably should be a member of the Public Interest Monitor’s staff.

Having a Custody Officer who is drawn from the AFP or ASIO will be no real protection at all in circumstances where police and ASIO personnel are mistreating a detained person.

If the seriously draconian powers contained in the Bill are to be implemented then there must be incorporated into the Bill an oversight regime to be implemented by the Public Interest Monitor.

The Bill provides that a person can complain to IGIS or the Ombudsman but in reality such a complaint is going to be after the event and will not prevent actual mistreatment of a detained person during the time he is under detention.

It is notorious that the investigation of complaints by both IGIS and the Ombudsman takes months to be concluded. Accordingly, permitting the detained person to complain to IGIS and the Ombudsman is no protection against preventing mistreatment while the mistreatment is actually occurring.

It is to be observed that a concept somewhat similar to the Public Interest Monitor exists in the UK in relation to the Prescribed Organisations Appeal Commission.

SECTION 34F – DETENTION OF PERSONS

Section 34F(1) enables among other things for the Magistrate to direct that a detained person contact a lawyer but Section 34F(2) appears to permit such a direction only to be given if it is consistent with the warrant or the direction have been approved in writing by the Minister.

If this reading of Section 34F is correct, it is absolutely unacceptable that the decision as to whether a detained person can obtain legal advice is not permitted to be made by the Magistrate and that an order as to access to legal advices can only be made if it is consistent with the terms of the draft warrant or has been approved by the Attorney General.

This interpretation appears to be supported when regard is had to Section 34F(8) and (9) which provides that a person taken into custody is not permitted to contact anyone while in custody unless the warrant permits that person to contact, say, a lawyer.

If this interpretation is correct it is fundamentally objectionable that the power of the Federal Magistrate should be so circumscribed as to not permit the Magistrate to change the terms of the draft warrant which is presented to him so as to allow the Magistrate to order access to a lawyer if the terms of the draft warrant prohibits such access.

MULTITUDE DETENTION PERIODS

Section 34C(5) provides that the Director General of ASIO may request a warrant for further detention from the Deputy President of the AOT for persons being detained for a continuous period of more than 48 hours and appears to allow a period of detention for at least 96 hours and possibly for 192 hours i.e. eight days.

This appears to be in circumstances where during multitude detention periods particularly where those periods are cumulative, a person can be denied access to a lawyer.

This is totally unacceptable.

The point is again remade that a Federal Magistrate or for that matter the Deputy President of the AAT should have the absolute power to decide whether a person should be detained and whether any detention period should be extended and what conditions should apply to the detention.

There should be an absolute and untrammelled right to legal representation and advice on the point of detention and that right to legal advice should not be subject to any derogation either by the Attorney General, the Federal Magistrate or the Deputy President of the AAT.

SECTION 34G(9)

This appears to provide that even though a person cannot refuse to answer questions on the grounds of possible incrimination the answers given by a person can be used against that person in respect of a terrorism offence.

Having regard to how widely drawn the definition of terrorism is, considerable reservations must be expressed about this provision.

Further while this sub-section provides that anything said by a person under detention who is required to answer questions not be used in “ordinary” criminal proceedings, the sub-section is entirely silent on the issue of derivative incrimination.

CONCLUSION

This submission has been prepared under conditions of considerable haste having regard to the unacceptably short deadline which has been imposed in respect of submissions.

The legislation is extremely draconian and very complex.

Because of these matters I must reserve the right to make a supplementary submission if I either come to the conclusion that any part of the submissions I have made are wrong or if further and new insights into the Bills provisions arise.

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