INSLM Review August 2016

Opening Statement by Mr Duncan Lewis, AO, DSC, CSC Director-General of Security to Independent National Security Legislation Monitor (INSLM) Review into Terrorism Questioning and Detention Powers Public Hearing

Friday, August 19 2016

Thank you for the opportunity for ASIO to publicly address questions on your review of certain questioning and detention powers in relation to terrorism.

ASIO has made a classified submission to you on 15 June 2016 in response to your letters and questions. I note this submission responded only to factual questions, due to caretaker arrangements.

Subsequently, representatives of the Organisation attended a Private Hearing with you on 26 July 2016, where they were available to answer your questions in more detail in a classified environment.

On 12 August 2016, a second classified submission was provided to you in writing to provide additional detail in response to questions you have raised in your letters and to answer queries taken on notice from the Private Hearing.

ASIO is responsible for obtaining, correlating and evaluating intelligence relevant to security. We aim to protect Australians and Australian interests. 
Counter-terrorism is one of ASIO’s key functions and in the years since the last INSLM review of these powers in 2012 there has been an unprecedented number of counter-terrorism investigations by ASIO.

In September 2014, the national terrorism threat level was raised to PROBABLE, which means that credible intelligence, assessed by security agencies, indicates that individuals or groups have developed both the intent and the capability to conduct a terrorist attack in Australia.

Since this date there have been three attacks and ten major disruption operations in relation to imminent attack planning in Australia. Of the ten major disruptions, several were disrupted one to three hours prior to the attacks, increasing the requirement for agility to respond. 

Counter-terrorism investigations in the current high threat environment must be responsive and fast moving.

Common attack methodology does not involve significant planning and in many cases has single participants or small numbers of individuals involved carrying out relatively unsophisticated attacks.

To counter the very real threats posed by terrorism in Australia ASIO requires an effective suite of investigative measures, this includes Questioning Warrants and Questioning and Detention Warrants.

These powers were extended to address new and challenging problems.

Who would have thought that a 14 year old child would engage in terrorist activity to the point where a control order would be contemplated? 

While there are other agencies in Australia with compulsory questioning regimes, ASIO’s legislative regime has been designed with the unique security intelligence function of ASIO in mind.

Other agencies with compulsory questioning regimes have alternative focuses. For example, the Australian Criminal Intelligence Commission’s (ACIC) questioning regime is focused on criminal intelligence.

I understand Mr Dawson, CEO ACIC, spoke to this issue recently and I want to stress our business is security intelligence to counter threats as defined in the ASIO Act particularly those focussing on countering terrorism.

ASIO’s security intelligence function enables a unique focus on a broad range of security related activities, including 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.

ASIO’s security intelligence role is focussed on activities that, while relevant to security, may not necessarily amount to criminality, which is an important distinction.

ASIO’s compulsory questioning powers can potentially be used to obtain information from individuals who are not directly involved in conduct prejudicial to security.

For example, in the event of a hostage incident in progress involving a single perpetrator and a belief the individual may have an improvised explosive device, without serious and organised crime indicators to trigger ACIC powers; ASIO may be the only agency able to respond to obtain critical information.

Under current arrangements, ASIO 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 ASIO’s 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 threat-to-life investigations, we must be pragmatic and timely in how we do our work.

In 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 and the pace of our highest priority counter-terrorism investigations.
ASIO has made a number of recommendations in our submissions to this review on how the current authorisations process could be streamlined for our questioning powers. This would make them more efficient in responding to the current fast paced threat environment.

I should be clear here, it is simply incorrect to presume that ASIO’s non-use of questioning powers is an indication of ineffectiveness of the warrant powers. 
We have used these powers in the past, and we expect the evolving security environment will likely necessitate the use of ASIO questioning powers in the future.

A key challenge for ASIO is the increasing difficulty of traditional investigative techniques against our counter-terrorism targets.

For example, our targets are becoming increasingly operationally secure, enabled by the ease-of-access to encrypted communications through a wide range of popular, readily available applications.

A compelling concern is the threat posed against representatives of Australia’s counter-terrorism agencies.

This includes ASIO officers, as well as law enforcement officers and other officials, as most tragically demonstrated by the shooting of NSW Police employee Mr Curtis Cheng and the stabbing of Joint Counter Terrorism Team officers by Numan Haider outside the Endeavour Hills police station in Melbourne.

Where ASIO believes a terrorism offence may be committed by individuals or groups with a stated intent to harm our officers, effective and efficient questioning powers provide important means for ASIO to fulfil its mission.

ASIO works collaboratively with other investigative entities to coordinate the whole of government counter-terrorism response.

Clearly defined roles and responsibilities under legislation, combined with formal, cooperative arrangements works 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 publicly available Attorney-General’s Guidelines which stress the overriding considerations of proportionality and propriety in all that we do.

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 does not diminish the importance of agency-specific powers enabling ASIO to fulfil its own unique statutory functions.

An effective suite of legislative powers—including Questioning Warrants and Questioning and Detention Warrants—is fundamental to ASIO’s work in responding to the terrorism threat facing Australia.

Noting this critical importance, ASIO would support amendments to legislation to make the regime more efficient and effective for use in the current security environment.

I welcome the opportunity to answer further questions, although I note there are limitations on the level of detail I can provide you today in this unclassified forum.