The Australian Security Intelligence Organisation ('ASIO') has told a parliamentary inquiry that the federal government ought to scrap laws which allow intelligence officers to request warrants to question children aged 14 to 18 during terrorism investigations.
ASIO's Director-General Mike Burgess stated that it would be 'appropriate' to repeal the expanded powers in the current security climate, as only a handful of minors have been charged with terror offences since 9/11.
The laws under review essentially allow ASIO to seek a warrant to compel an individual to attend questioning and can apply to those as young as 14 years old.
Burgess noted: "The radicalisation of our youth remains deeply concerning and ASIO will respond when we know there is a direct terrorism threat to Australia.
"However, in the case of children or teenagers on the path to radicalisation, our last resort compulsory questioning power is not the answer."
The former federal government led by Scott Morrison introduced laws overhauling ASIO's rules for compulsory questioning in 2020 which lowered the age threshold from 16 to 14.
At the time, the changes were backed by the Labor opposition government.
ASIO's questioning and detention powers were first introduced in 2002 in response to the 9/11 terrorist acts in the United States in 2001. ASIO is Australia's intelligence gathering agency, with its main role being to gather information enabling it to notify the Government about activities that may endanger Australia's national security.
In its submission to the parliamentary inquiry, ASIO stated that only one terrorist attack and three-counter terrorism disruptions had involved minors since 2015. Furthermore, only seven minors had been charged with terrorism offences since 2014.
ASIO noted that it has not asked for such a warrant to be issued in the last four years.
The Australian Human Rights Commission, Law Council of Australia and Home Affairs Department have also called for the warrants in relation to minors to be scrapped.
Specifically, the 'Parliamentary Joint Committee on Intelligence and Security' is reviewing the operation, effectiveness, and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth).
Committee Chair, Mr Peter Khalil MP, said: "the Committee has received mixed evidence regarding ASIO's compulsory questioning powers. We look forward to hearing from a range of Government and non-Government witnesses to inform our review and report to Parliament."
Division 3 of Part III of the Act outlines ASIO's compulsory questioning powers. Currently, a 'minor questioning matter' refers to a matter that relates to the protection of Australia and its people, from politically motivated violence, whether directed from, or committed within, Australia or not.
A minor questioning warrant means a warrant issued under section 34BB of the Act, which outlines the test for issuing a questioning warrant to persons who are at least 14.
For a warrant to be issued, the Director-General must request that the Attorney-General do so.
The Attorney‑General may issue a warrant in relation to a person if they are satisfied that:
- the person is at least 14 years old,
- there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of Australia and its people from politically motivated violence, whether directed from, or committed within, Australia or not,
- there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a minor questioning matter, and
- having regard to other methods (if any) of collecting the intelligence that are likely to be as effective, it is reasonable in all the circumstances for the warrant to be issued.
If the warrant is to be issued after the person has been charged or a confiscation application has been instituted, it must be deemed necessary for the purposes of collecting the intelligence, even though they have been charged or a confiscation proceeding has commenced, or that such actions are imminent. Confiscation applications refers to those under the Proceeds of Crime Act 2002(Cth), as well as corresponding laws under state and territory legislation.
It is also required for there to be a written statement of procedures to be followed in the exercise of authority under a questioning warrant, prepared by the Director-General and approved by the Attorney-General.
The Director-General must also consult the Inspector‑General of Intelligence and Security and the Commissioner of the Australian Federal Police in producing this statement.
In deciding whether to issue the warrant, the Attorney‑General must consider the best interests of the person as a primary consideration.
This will include reference to their age, maturity, sex, background (including lifestyle, culture, and traditions), physical and mental health, as well as the benefit to the person of having a meaningful relationship with their family and friends and the right of the person to receive an education, practise their religion, and any other matter considered relevant.
If granted, the questioning warrant will require the subject of the warrant to appear before ASIO for questioning, enabling the agency to obtain information and mandate that the subject answers questions, as well as produce a record or other thing, that is, or may be, relevant to intelligence.
This may include the subject matter of any charge, or imminent charge, against the subject.
A minor must be questioned in the presence of their representative, which may include a parent or guardian. Furthermore, it must only be for continuous periods of 2 hours or less, separated by breaks.
It is a criminal offence to fail to appear before ASIO, as well as to fail to comply with ASIO's request to give any information or produce any record or other thing, in accordance with the warrant.
A maximum penalty of 5 years imprisonment is applicable.
There is a defence available where the subject does not have the information, or possession or control of the record or thing. The burden is on the defendant to prove this.
The subject of a questioning warrant is not excused from giving information or producing a record or other thing on the ground that this might tend to incriminate the subject in relation to an offence.
However, anything said by the subject or the production of a record or other thing before ASIO under the warrant is not admissible in evidence against the subject in a criminal proceeding.
Despite this, exceptions apply to a confiscation proceeding, if the thing was said, or the record or thing was produced, at a time when the proceeding had not commenced and was not imminent, as well as proceedings for offences related to the compulsory questioning powers, including giving false or misleading information or documents to a Commonwealth entity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.