Opening statement – PJCIS review – ASIO Amendment Bill

Mr Mike Burgess

30 October 2020

Thank you for the opportunity to appear before the Committee today. I’m joined by one of my Deputies, Heather Cook.

Can I begin by offering some remarks about the tragedy that continues to unfold in France. I have been horrified by the latest act of calculated, pre-meditated murder.

My thoughts and those of all ASIO officers go to the families and loved ones of those killed and our colleagues in the French and broader European intelligence and law enforcement community who are working so tirelessly at this time. Attacks such as this, targeting some of society’s most innocent, causes my officers at all levels, both here in Australia and overseas to redouble our focus and our effort to counter this menacing threat.

The ASIO Amendment Bill is critically important to enable ASIO to continue to protect Australia and Australians from threats to their security.

When I last appeared before the Committee in July, I outlined the nature of the security environment, particularly those aspects that necessitate these important legislative reforms.

The threats I identified have not gone away. Indeed, some have intensified.

Just this month, terrorist attacks in Germany and France – the latter involving the beheading of a teacher – were chilling reminders of the threat posed by lone actors and the associated need for security services to have operational speed and agility.

Right wing extremists now represent between thirty and forty per cent of ASIO’s priority caseload. Many of these individuals and groups have seized on COVID19 as “proof” of their ideology, and are using the pandemic to amplify their messages of hate on-line. We are seeing young Australians – some just 14 years old – being radicalised.

Faced with elevated levels of espionage and foreign interference, ASIO has stepped up its activities to disrupt attempts to steal Australia’s secrets and undermine its sovereignty. Compulsory questioning warrants would have proved useful in several of our recent operations.

In my opinion, the measures in the Bill form an appropriate, necessary and balanced response to these concerning trends.

I’d also like to emphasise the rigorous safeguards and oversight that has been built in to the new legislation – including in relation to the questioning warrants.

The safeguards from the current questioning regime will be continued and in some regards strengthened. Compulsory questioning will require a warrant. It will be conducted under the independent supervision of a retired judge, senior lawyer with a decade or more of experience, or a senior member of the Administrative Appeals Tribunal.

Minors will only be able to be questioned if the Attorney-General is satisfied that they are or will be likely to engage in politically motivated violence—not if they merely may have knowledge of a threat.

In issuing the warrant, the Attorney-General must consider the “best interests of the child” and whether compulsory questioning is reasonable and necessary given all the circumstances.

ASIO’s use of the questioning powers will be governed not only by the safeguards in the Bill but also by ASIO’s Ministerial Guidelines, which set out the parameters in which ASIO must operate.

In particular, they provide clear direction on how ASIO must consider the proportionality of its actions. These guidelines are a legal instrument, and provide assurance that ASIO will use its powers judiciously, and with careful regard to the intrusiveness of the activity relative to the threat. 

Finally, all activities will be subject to inspection and inquiry by the Inspector-General of Intelligence and Security, who has powers akin to those of a royal commission. The IGIS will scrutinise ASIO’s use of these powers to ensure our compliance with the law, giving due regard to propriety and human rights. And the IGIS (or their staff) are also able to observe questioning– should they wish to do so.

I am aware that some commentators have raised concerns that the proposed powers will be used to disrupt peaceful protests. This is not the case. Peaceful protest is a part of any healthy democracy. The powers contained in the ASIO Act, including the questioning powers, are expressly confined by section 17A of the ASIO Act, which protects the right of persons to engage in lawful protest and dissent. These new powers do not override that longstanding protection.

In previous hearings you have asked me who should authorize questioning warrants. I’d like to reiterate my support for the model presented in the Bill, and previously accepted by this committee, where the Attorney-General issues questioning warrants in the same way as the Attorney-General issues warrants for ASIO’s other intrusive powers.

In my opinion, this approach makes sense in terms of policy and practice.

The model in the Bill imposes a single point of Ministerial accountability on the Attorney-General.

I can attest to the fact that the current and previous Attorneys-General bring a high level of independence and legal rigour to this function.

And it is important to note that having the Attorney-General issue a questioning warrant  imposes a higher level of authorisation than applies to other Commonwealth bodies with comparable questioning powers. I do not believe ASIO should be held to a different standard.

In terms of practice, the current security environment requires ASIO to have the confidence and capacity to respond to threats with speed and agility.

The time required to obtain a duplicate or multi-step authorisation could undermine our operational impact in extreme circumstances, with potentially serious consequences.

Minutes matter – particularly in lone actor cases where the period from ‘flash’ to ‘bang’ is often accelerated, or when a capable foreign intelligence service is trying to make off with national secrets or destroy evidence of its operations.

I’d like to conclude my opening statement by noting that ASIO has not sought these amendments lightly.

The security challenges facing our country are significant. Consequently, it is important that ASIO has the appropriate powers to protect Australia and Australians from the threats to their security.

Given the robust safeguards and high-levels of oversight that are proposed as part of the legislation, in my view the Bill represents a balanced and proportionate response to the serious security challenges facing our nation.

Thank you.