Committee on Intelligence and Security; Law Council's Submission on ASIO's Powers
Monday 14 August 2017 @ 12.36 p.m. | Crime | Legal Research
The Parliamentary Joint Committee on Intelligence and Security (the PJCIS) has been reviewing the operation, effectiveness and implications of the Australian Security Intelligence Organisation Act 1979 (Cth) Division 3 of Part III (the ASIO Act). This review of the special powers relating to terrorist offences, including questioning warrants and detention warrants under Part III Division 3 of the ASIO Act commenced on 27 February 2017 and is due for report by 7 March 2018.
The review of the ASIO powers with respect to Part III Divison 3 is the first of several reviews of the ASIO Act that the PJCIS is required to undertake under the Intelligence Services Act 2001 (Cth) section 29, by 7 March 2018. Submissions to this review have closed and public hearings on those submission are now underway.
The most recent hearing (9 August 2017) involved the Law Council of Australia (the LCA) addressing the PJCIS with respect to its submission to the review, and the LCA in broad terms saying:
In the LCA's view it is "not satisfied" as to "the sufficiency of the safeguards" against arbitrary interference with the liberty of citizens which are allowed under the current ASIO Act provisions.
About the Review
The PJCIS review is about the operation, effectiveness and implications of ASIO’s special powers relating to terrorism offences. Powers which include:
- the ability for ASIO to seek and obtain a questioning warrant, which requires a specified person to appear before a prescribed authority for questioning immediately after the person is notified of the issue of the warrant, or at a time specified in the warrant; and
- the ability for ASIO to seek and obtain a questioning and detention warrant, which authorises a specified person to be taken into custody immediately by police, brought before a prescribed authority immediately for questioning, and to be detained by the police for up to 168 hours.
In both cases, the warrant may only be issued in circumstances where a Judge (the issuing authority) “. . .is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence”.
In a PJCIS Media Release the Chair, Mr Andrew Hastie MP, is quoted as saying that “ . . . While there are strict safeguards built into the existing legislation, these are extraordinary powers that deserve close scrutiny.”
And further:
“The Committee will use its review to examine the ongoing effectiveness of ASIO’s special powers in the fight against terrorism, and whether the existing set of safeguards gets the balance right between security and individual liberties . . . The Committee will also take into account the recent findings of the Independent National Security Legislation Monitor (INSLM).”
The last review of the provisions was in 2005, following which the existing sunset provision on the legislation was extended to 22 July 2016. With the passage of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the sunset date was further extended to 7 September 2018, subject to reviews by the PJCIS and the INSLM.
The INSLM concluded its review in October 2016, in which Roger Gyles AO QC, concluded in his report, that the provisions for questioning and detention warrants should be repealed or allowed to sunset, and that the remaining provisions, including questioning warrants, should be repealed and “. . .replaced with a questioning power following the model of coercive questioning available under the Australian Crime Commission Act 2002 (Cth) as closely as possible”.
The LCA Response
In general terms the LCA has expressed concerns that the ambit of powers given to the ASIO under the law ". . . fails to strike the right balance between protecting the community and preserving fundamental rights".
The LCA has has in its submission to the PJCIS indicated that Parliament must rethink certain compulsory questioning and detention powers given to ASIO.
Tim Game SC, co-chair of the LCA's National Criminal Law Committee is reported as appearing before the PJCIS along with LCA president Fiona McLeod SC who is reported as indicating that current questioning and detention powers
". . . did not bolster the potency of other powers to tackle a potential terrorism threat . . . ASIO’s Questioning and Detention Warrants have not been used since they were introduced, which should raise questions around their efficacy as an intelligence tool, . . . ”
The LCA suggested that the Australian Criminal Investigation Commission (ACIC) Model should be used to develop an alternative to the compulsory questioning and detention powers. The ACIC model requires a legal representative for any person giving evidence, and also provides a more transparent and formal process with the appointment of examiners. The ACIC approach would however, need to be modified to ensure "robust safeguards". Any alternative model should be subject to consultation.
The LCA also suggested that the protection of ASIO decisions from judicial review under the Administrative Decisions Judicial Review Act must also be reconsidered and of particular concern was that ". . . examination of an accused person should only be permitted to occur once charges have been made". Failing this being accepted, ". . . authorisation should be required from the Federal Court before a summons is issued to a person who is subject to criminal proceedings, and for that judge to prescribe limitations on the matters which may be covered by the examination. . .”
The LCA's response to a proposal that ASIO’s questioning and detention powers be extended
to children as young as 14 was that a proper regime would have to be implemented to
accommodate how such minors were treated.
The PJCIS's review continues. The review can be tracked here.
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