The Dangers of Sunsets in National Security | Law

The Dangers of Sunsets in National Security

OPINION: Jessie Blackbourn and Nicola McGarrity, Australian Public Law, 8 August 2016.

The Independent National Security Legislation Monitor (the Monitor), Roger Gyles QC, is currently undertaking a reviewinto the coercive questioning and detention powers of the Australian Security Intelligence Organisation (ASIO). These powers are subject to a sunset clause which means they will lapse, unless renewed by the federal Parliament, in just over two years. The Monitor’s report – which is due in early September 2017 – is ostensibly intended to inform the parliamentary debate on whether these powers should be renewed. Unfortunately, however, past experience suggests that the sunset clause and corresponding review framework are unlikely to have any meaningful impact upon the legal regime governing the coercive questioning and detention powers. The decision whether to renew these powers or allow them to lapse will almost certainly be based upon political considerations.

The Special Powers Regime

In June 2003, the federal Parliament passed what continues to be characterised as Australia’s most controversial anti-terrorism law – the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) (ASIO Amendment Act). Its provisions were described variously during public and parliamentary debate as ‘the sort of law you’d expect to see in General Pinochet’s Chile’, ‘draconian’, ‘rotten at its core’ and ‘a fundamental abrogation of our civil and political rights in this country’. In essence, this legislation permitted Australia’s domestic intelligence agency, ASIO, to apply for a warrant to coercively question a person for the purposes of collecting intelligence believed to be relevant to a terrorism investigation. A warrant could also be sought for the person to be held in detention for up to seven days. These questioning and detention powers have become known as the ‘Special Powers Regime’.

The final form of the Special Powers Regime was a significant improvement upon the Bill that was introduced into the Parliament in March 2002. In its original form, the Regime would have applied to children as young as 10-years-old, permitted indefinite detention by way of rolling two-day periods and prohibited detainees from making contact with friends or family. These extraordinary provisions were partially remedied through a combination of lengthy parliamentary debate – a rarity in the anti-terrorism context – and rigorous scrutiny by several parliamentary committees (see, for example, the report of the Senate Legal and Constitutional Affairs Committee).

The inclusion of a sunset clause

Despite these changes, the fundamental problem with the Special Powers Regime remained untouched throughout the extensive parliamentary process. The ASIO Amendment Act vested ASIO with the type of coercive questioning and detention powers that have historically been bestowed only upon law enforcement agencies. There are at least two in-principle reasons for maintaining the difference between the powers of domestic intelligence agencies and their law enforcement counterparts. First, the latter are limited to investigating the activities of individuals and organisations suspected of falling within the definition of a crime. In contrast, intelligence agencies are assigned the broader and inherently more subjective task of identifying areas of potential (and future) threat to national security. Furthermore, law enforcement agencies are meaningfully constrained by the existence of several overlapping layers of accountability – to the executive, to independent office-holders and to the courts – whereas ASIO’s intelligence-gathering activities are of necessity shrouded in a veil of secrecy with only very limited external oversight.

The controversy surrounding the Special Powers Regime ultimately meant that bipartisan support was guaranteed only through the inclusion of a sunset clause. The ASIO Amendment Act specified that the Regime would cease to have effect three years after it received Royal Assent. Prior to that date, the Parliamentary Joint Committee on ASIO, ASIS and DSD (now known as the Parliamentary Joint Committee on Intelligence and Security (PJCIS)) was charged with conducting a review of its operation, effectiveness and implications so as to inform parliamentary debate about renewal.

The inclusion of this sunset clause was characterised by the then Leader of the Opposition, Simon Crean MP, as allowing a ‘test run’ to see how the Regime functioned. Another member of the Opposition, Michael Danby MP, went on to explain that: ‘Many of us can have different views about whether, analytically, in three years time the terrorist situation will be the same. I think, given the commonsense and high-level consideration that all members have brought to this issue, that we will determine that when we come back in three years time’. In other words, the inclusion of the sunset clause was put forward as a way of assuring concerned parliamentarians and members of the public that the controversial powers bestowed upon ASIO would be re-examined by the federal Parliament and its committees.

Unfortunately, this has not proven to be the case. The only real purpose served by the sunset clause in the ASIO Amendment Act was as the political ‘spoonful of sugar’ which made the Special Powers Regime palatable to the Opposition. The clause did not guarantee that the Regime would be permitted to lapse once the threat posed by terrorism subsided. Nor did it even achieve the far more modest goal that the federal Parliament would give careful attention to the appropriateness of the questioning and detention powers. At the end of the three year sunset clause, the Special Powers Regime was re-enacted by the Parliament. Furthermore, instead of accepting the recommendation made by the Parliamentary Joint Committee on ASIO, ASIS and DSD that the subsequent sunset clause be limited to five years, a clause of double that length was adopted.

Reviews of the Special Powers Regime

Independent and parliamentary review bodies have conducted detailed investigations into both the form and practical application of the Special Powers Regime. Most notably, in his 2012 Annual Report, the former Monitor, Bret Walker SC, expressed strong opposition to the detention aspects of the Regime on both human rights and practical grounds. He concluded that ‘[n]o scenario, hypothetical or real, was shown that would require the use of [detention] where no other alternatives existed to achieve the same purpose’. The balanced and carefully-considered character of the former’s Monitor report is demonstrated by the conclusion that he reached in relation to the questioning power. Walker found that this power was effective as ‘an intelligence collection tool’ and therefore should be retained. He even stated that ‘the safeguards … are impressive’.

Unfortunately, with only a small number of exceptions, the federal Parliament has failed to make a meaningful response to these reviews of the Special Powers Regime. Any legislative changes have tended to expand its reach rather than ensuring it goes no further than is strictly necessary in order to prevent terrorism and prosecute those suspected of terrorism-related activities. Of the nine recommendations made by the former Monitor to improve the power to coercively question, only three have been implemented by the federal Parliament (see attachment B, Attorney General’s Department submission to PJCIS here). One of these aimed at greater efficacy by repealing the requirement that questioning be a ‘last resort’ only. Another expanded the existing offences for failing to comply with the provisions of a warrant. However, six of the nine recommendations made by the former Monitor sought to constrain the operation of the Special Powers Regime. Of these, only one – the scope of which was narrow and its importance beyond question – has been implemented. This removed the power of an ASIO officer to cause the death of a person trying to avoid being taken into custody under a questioning warrant where ‘the officer believes on reasonable grounds that the person cannot be taken into custody in any other manner’.

The politics of anti-terrorism law reform

The enactment of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) (Foreign Fighters Act) provides striking evidence of the federal Parliament’s dismissive attitude towards both the sunset clause and any inquiries held thereunder.

In the first place, this legislation pre-empted the upcoming review of the Special Powers Regime by extending the sunset clause for a further three years, until 7 September 2018. The only vague rationale which was provided by the Government was:

In light of the increasing threat the escalating terrorist situation in Iraq and Syria poses to the security of all Australians, both here in Australia and overseas, it is vital that law enforcement agencies continue to have access to all tools that could be required to combat this threat and protect Australia and Australians from terrorist threats.

The Foreign Fighters Act also demonstrated a disturbing willingness on the part of the federal Parliament to engage in ‘forum shopping’. Despite the comprehensive review of the Special Powers Regime conducted by the former Independent National Security Legislation Monitor just a few years ago, the Foreign Fighters Act nevertheless requires his successor, Roger Gyles QC, to conduct a second review by 7 September 2017. The Government has indicatedthat a review of the Special Powers Regime by the Monitor is necessary in order to inform – yet another – review which the PJCIS is required to conduct by 7 March 2018. The purpose of the latter review is to inform parliamentary debate on whether to renew the Special Powers Regime prior to its expiry in late 2018.

Whilst a review by an independent office-holder is a positive step towards ensuring evidence-based debate before both the PJCIS and the federal Parliament, the basic question remains why Walker’s previous report is insufficient to achieve this. Although there may have been changes in the precise nature and extent of the threat posed by terrorism to Australia and Australians over the past four years, this has no bearing upon the fundamentals of the former Monitor’s recommendations. For example, it is still the case that detention under the Special Powers Regime has never been sought by ASIO and nor has it been able to point to any useful function which it might serve in the future.

One conclusion that would seem to logically follow is that the federal Parliament was simply unprepared to accept the recommendations made by the former Monitor to the effect that the Special Powers Regime should be substantially revised. It has therefore pushed these recommendations into the arena of history by establishing a new review framework. Furthermore, to pre-empt any pressure in the future to repeal the Regime, it has created a scheme of overlapping inquiries that will potentially – and, given the subjective nature of the anti-terrorism context, almost certainly – come up with conflicting recommendations. The consequence of this is that the Parliament will be able to pick and choose between the recommendations, giving weight only to those that complement the policy objectives of the major parties.

The establishment of such a scheme represents, in the first place, a clear waste of financial and human resources. However, more disturbing than this is the disingenuous way in which the Liberal, National and Labor Parties have suggested that the inquiries have any real weight in and of themselves.

Read the article here.