ASIO powers to question children: a difficult balancing act

Australia’s parliament is considering a bill that will, among other things, lower the age at which a minor can be questioned by the Australian Security Intelligence Organisation during a terrorism investigation from 16 to 14.

It’s always difficult to balance enhancing the powers of national security agencies with maintaining democratic rights and freedoms. Lowering the age threshold makes us question why such powers are necessary, and many find it difficult to imagine teenagers engaging in violent terrorist actions.

Sadly, the number of teenagers involved in terrorism is significant in Australia and internationally. In 2015, 15-year-old Farhad Jabar shot and killed NSW Police employee Curtis Cheng. Overseas, children have been forced into terrorist groups and given weapons training or been used as suicide bombers. Often, children recruited into militia and terrorist forces were radicalised online. Others were groomed by a trusted adult.

Australia has introduced 18 tranches of new security legislation since the national threat level was raised to ‘probable’ in September 2014. Over the same period, the nation experienced seven terrorist incidents that resulted in people being killed or severely injured. Another 16 planned attacks were disrupted. In our changing security landscape, this latest bill has been considered necessary to secure Australia’s future.

In his 2018 report on the prosecution and sentencing of children for terrorism, Australia’s Independent National Security Legislation Monitor, James Renwick, noted the heightened risk of minors committing terrorism offences, citing the marked increase in investigations, charges and convictions involving young people. Approximately 10% of people convicted of terrorism offences between 2014 and 2018 were under 18 when they offended, and a further 25% were aged 18 to 25. Renwick also noted that, while the overall numbers were small, the threat was real.

Some children convicted of plotting terrorist acts in Australia have received long sentences—including a 13-year term for a person who was 14 at the time of the offence.

In its 2018 review of ASIO’s questioning and detention powers, the Parliamentary Joint Committee on Intelligence and Security noted that reducing the questioning age to 14 was extraordinary, but supported it in principle. The committee said use of the new powers must be based on clear evidence, should be limited to those being investigated and must contain safeguards for minors.

The PJCIS is reviewing the proposed new legislation, and safeguards and oversight will clearly be a strong focus.

While it’s vital for ASIO to have appropriate questioning powers, checks and balances are equally crucial to protect society’s freedoms. They also protect ASIO officers by ensuring their behaviour accords with the nature of our society and is subject to oversight and regulation. Key safeguards include a requirement for ASIO to obtain a warrant from the attorney-general before compulsorily questioning a child.

The attorney-general must be satisfied that there’s a credible threat and that the child has ‘likely engaged in or is likely to engage in politically motivated violence’. The attorney-general must also consider the best interests of the young person, taking into account matters such as age, maturity, background (including lifestyle, culture and traditions), and physical and mental health.

The PJCIS must consider in its review whether it’s appropriate for such a warrant to be granted by the Commonwealth’s first law officer, a political figure, rather than by an independent judicial authority such as a judge or a magistrate.

It’s a long-held tenet of our judicial system that such decisions must be based on the facts of an individual case removed from political interference. Authorisation by the attorney-general fails to provide such assurance and could lead affected communities to challenge the motives behind investigations and the questioning of alleged offenders.

The bill also requires that a minor be questioned before a ‘prescribed authority’ appointed by the attorney-general. That person must have served as a judge of a superior court, been an Administrative Appeals Tribunal president or deputy president, or worked as a lawyer in a federal court or a state or territory supreme court for at least 10 years. There’s a risk, albeit minimal, that the attorney-general could appoint a prescribed authority who is lenient towards ASIO or who has worked for ASIO.

The bill provides for a minor’s representative to be present during questioning. This can be a parent, guardian or other person who can represent the child’s interests, or a lawyer appointed by the prescribed authority. This raises concerns about the representative’s independence and ability to represent the minor’s best interests, although these risks are largely mitigated by lawyers’ professional obligations.

The bill allows for periods of continuous questioning of up to two hours, punctuated by breaks, over a total of eight hours. It’s not clear, though, how long the breaks must be. Specific guidance is required to avoid confusion and allegations of unfair treatment.

This safeguard is modelled on the requirements of the Crimes Act, although those provisions limit questioning time for minors and other vulnerable individuals to a maximum of two hours. A magistrate can allow longer sessions in limited circumstances.

Robust oversight mechanisms include the right of the Inspector-General of Intelligence and Security to be present during questioning; an obligation on the prescribed authority to explain that the minor may seek a remedy from the federal court in relation to their treatment during the execution of the questioning warrant; and scrutiny by the PJCIS, the Independent National Security Monitor and the parliament.

It’s highly likely that these questioning powers will be used sparingly, given that only a handful of minors in Australia have been found to have committed a terrorism offence. While the powers may not prevent further attacks, they provide an important additional tool for ASIO’s counterterrorism effort.

So, while there’s a reasonable case for the new powers and for the safeguards for minors, the PJCIS’s consideration of the bill needs to be informed by public views and external analysis. Expanding state power is never trivial, and when that expansion applies to minors, proposals need careful testing and scrutiny against society’s values and standards.

In addition to the parliamentary process, the government must explain the need for this law clearly to the public and describe how it struck the balance between security and freedom. Introducing the bill is the start, not the end, of that process of public communication and debate.