The extraordinary questioning and detention powers of the Australian security intelligence organisation.

• Jurisdiction: Australia
• Author: Burton, Lisa
• Date: 01 August 2012

3 Coercive Nature of Questioning

Questioning under the Special Powers Regime is coercive. Failure to appear for questioning, to answer ASIO's questions or to give ASIO the requested records or things, or to give ASIO false or misleading information is a criminal offence punishable by five years' imprisonment. (180) Such a regime is unusual. Australians are generally understood to enjoy a right to silence. A person is not, for example, obliged to answer questions asked by a police officer. (181) This is, of course, only a general rule and is, at times, subject to exceptions. (182) Certain federal, state and territory bodies, such as the Australian Crime Commission and the Independent Commission against Corruption, are also given coercive questioning powers. (183) Even where a person is subject to a regime of coercive questioning, he or she will generally be entitled to refuse to give information on the basis of the privilege against self-incrimination. That is, that giving the information would tend to expose him or her to conviction for a crime or, in some cases, the imposition of a civil penalty. (184) The privilege against self-incrimination is absent from the Special Powers Regime.

In his 2011 report, the INSLM stated that the circumstances in which coercive questioning is permitted are so broad that 'there is no objection in principle to such compulsory powers of questioning.' (185) There can be no doubt that, at times, the right to silence and privilege against self-incrimination are restricted in order to serve more pressing purposes. However, the INSLM did not appreciate the fundamental difference between the Special Powers Regime and the other circumstances in which coercive questioning is permitted. The Special Powers Regime gives coercive questioning powers to an intelligence-gathering--rather than a law enforcement--body in a non-criminal context. The right to silence and privilege against self-incrimination lie at the heart of liberal democracies. They protect the privacy and autonomy of the individual against the state. They also support the presumption of innocence and the idea that the state should bear the burden of proving criminal guilt. It would therefore be very dangerous to look at coercive questioning as the new norm. Instead, we should only accept its extension to new circumstances where there is a clear justification. (186)

The coercive nature of the questioning power was justified by the then Coalition government on the following basis:

In some situations, a person with highly relevant information may refuse to volunteer it. For example, a terrorist sympathiser who may know of a planned bombing of a busy building but who will not actually take part in the bombing may decline to help authorities thwart the attack. In order for the new powers to be effective, it is necessary that penalties apply in relation to the failure to answer questions accurately or produce documents or other requested things. (187) More recently, coercive questioning was said to be 'particularly useful where the threat of terrorism is immediate and other methods of intelligence collection will be ... too slow'. (188) In relation to the privilege against self-incrimination specifically, the Explanatory Memorandum accompanying the ASIO Bill (No 1) explained that it was removed

to maximise the likelihood that information will be given or records or things produced that may assist to avert terrorism offences. The protection of the community from such violence is, in this special case, considered to be more important than the privilege against self-incrimination. (189) The problem with these justifications is that they are not reflected in the criteria for issuing a Questioning Warrant. The legislation does not require any proof of imminent danger or that the intelligence sought is capable of preventing a terrorism offence before coercive questioning is permitted. (190)

There are significant restrictions upon what ASIO may do with the information once it has been obtained through the questioning process. '[A]nything said by the person' or records or things produced by the person 'while before a prescribed authority for questioning under a warrant, in response to a request made in accordance with the warrant for the person to give information' cannot be used in criminal proceedings against the person ('use immunity'). (191) The conferral of use immunity is a clear improvement on the ASIO Bill (No 1). This Bill would have allowed information obtained through the questioning process to be used against the person in a criminal prosecution. (192)

The information may still be used in four ways. First, it may be used in proceedings for failing to comply with the terms of the warrant or giving false or misleading information. (193) Secondly, the use immunity only applies to criminal proceedings. The information may therefore be used in civil proceedings, for example, as the basis for deporting the person, cancelling their passport or obtaining a control order. (194) Thirdly, the use immunity only applies to proceedings against the person giving the information. The information may still be used as evidence in the criminal prosecution of another person. Finally, there is no derivative use immunity. This means that information obtained during questioning may be used to gather other information which may, in turn, be used as evidence in criminal proceedings. For example, if the name of an associate was given during questioning, ASIO could then contact that person and ask him or her to give evidence in criminal proceedings. Similarly, if the location of explosive materials was revealed, ASIO could use those physical materials as evidence in criminal proceedings. This stands in sharp contrast to Canada's now-lapsed investigative hearing regime, which is the closest international comparator to the Special Powers Regime. Information obtained under the investigative hearing regime was protected by both use and derivative use immunities. (195)

B Detention

Citizens in modern, liberal democratic states have a fundamental expectation that they will not be deprived of their liberty without good reason. One of the authors of this article wrote in 2002 that '[t]his principle underpins Australia's democratic system and the separation of powers entrenched by the Australian Constitution'. (196) As a general rule, the involuntary detention of a citizen may only be ordered by a court after a finding of criminal guilt or as an adjunct to the judicial process. (197) There are some well-established exceptions to this in Australia. Hence, the executive may order the 'non-punitive' detention of a citizen for a pressing public purpose, in particular, to protect the community from non-criminals who nevertheless pose a risk to public health or safety. For example, the executive may quarantine people with infectious diseases or confine people with serious mental illnesses. (198) Despite these exceptions, executive detention continues to be viewed warily, and is generally only permitted where it is justified on strong grounds.

The Special Powers Regime empowers ASIO to request the detention of a non-suspect for the purpose of intelligence-gathering. This is an unprecedented development. No other democratic country in the Western world has given a power of detention to its domestic intelligence agency. (199) In introducing the ASIO Bill (No 1), the Coalition government insisted that the power to detain was a necessary tool for preventing terrorist attacks. Without it, 'terrorists could be warned before they are caught, planned acts of terrorism known to ASIO could be rescheduled rather than prevented, and valuable evidence could be destroyed.' (200) The ability to detain non-suspects will, in some circumstances, 'be critical' to protect public safety. (201) Furthermore:

Those at the front line in meeting this threat tell us that, in order to protect the community from this kind of threat, they need the power to hold a person incommunicado, subject to strict safeguards, while questioning for the purpose of intelligence gathering. We accept this need ... (202) The power to detain has not yet been used. Nevertheless, it is important to understand, even in the abstract, the scope and operation of this power. A Detention Warrant, as the name suggests, provides that the person subject to the warrant is to be taken into detention. It is not ASIO who takes the person into custody. Nor is it ASIO who holds the person for the period of the Detention Warrant. Rather, these functions are performed by police officers. (203) Given this, it might be argued that there is no problem with the extension of the power to detain, which obviously already exists in the law enforcement context, for the purpose of intelligence gathering. However, this argument cannot be sustained. There is a fundamental difference between the power of law enforcement officers to detain and the Special Powers Regime. The former are only permitted to detain persons suspected of committing an offence. (204)

Under the Special Powers Regime, police officers may enter and search any premises where they reasonably believe the person is, and may also use reasonable force in order to take the person into custody. (205) These powers are broadly similar to those granted to the AFP in arresting a person suspected of committing a crime. (206) However, there is a critical difference. When arresting a person, the AFP officer must usually inform him or her of the nature of the crime of which they are suspected. (207) In executing a Detention Warrant, the AFP officer need not give the person any information about the grounds for the warrant.

As already noted above, once a person is detained, he or she must be 'immediately' brought before a Prescribed Authority. (208) This ensures that the Prescribed Authority is in charge of the detention and questioning process right from the beginning and guards...