A report from the Independent National Security Legislation Monitor (the “INSLM”) has recommended that the Commonwealth Government revoke ASIO’s power to issue questioning and detention warrants under Part III of the Australian Security Intelligence Organisation Act 1979 (Cth). The report notes that the power has never been used by ASIO, but calls the case for the power’s abolition “compelling”, saying:
“A warrant enabling a person to be ‘detained in custody, virtually incommunicado without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention’, to use the words of former High Court Chief Justice Sir Gerard Brennan (on the basis of possession of intelligence in relation to a terrorism offence), 161 is an extraordinary power. Further, the decision on whether the grounds to make a QDW application rather than a QW application lies with a member of the executive. No precedent in any comparable country has been identified.”
The report suggested the powers should be replaced with a questioning power similar to the model of coercive questioning available under the Australian Crime Commission Act 2002 (Cth).
The report was released by the outgoing Independent National Security Legislation Monitor, the Hon Roger Gyles AO QC, in February 2017. Under the Independent National Security Legislation Monitor Act 2010, the INSLM is appointed on a part-time basis for a period not exceeding three years. The role of the INSLM is to:
“review the operation, effectiveness and implications of Australia’s counter‑terrorism and national security legislation on an ongoing basis. This includes considering whether legislation contains appropriate safeguards for protecting the rights of individuals, remains proportionate to any threat of terrorism or threat to national security or both, and remains necessary.”
On February 24, the Federal Government announced the appointment of Dr James Renwick SC as Australia’s acting Independent National Security Legislation Monitor.
The report also makes a number of other recommendations for legislative amendment, including:
A press release issued by the Attorney-General on the tabling of the report said the Government “is carefully considering the report’s recommendations”, while re-iterating that the Government would “continue to ensure our national security agencies have the powers they need to keep Australians safe while protecting our freedoms.”
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