Independent National Security Legislation Monitor Calls For Repeal of ASIO’s Questioning and Detention Powers

Thursday 9 March 2017 @ 11.54 a.m. | Crime

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).

Role of the INSLM

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.

Recommendations

The report also makes a number of other recommendations for legislative amendment, including:

  • Increasing the initial investigation period available under subdivision B of Part IC of the Crimes Act 1914 (Cth) from four hours to eight hours;
  • Setting a reasonable outer limit to the period for detention without charge, regardless of ‘dead time’, so that the investigation does not become a de facto preventative detention power;
  • Reviewing procedures in making applications under subdivision B of Part IC of the Crimes Act 1914 to ensure they are up to date with electronic capability;
  • Repealing s 23DB(9) of the Crimes Act 1914, which deals with what is considered to be 'dead time' not counted in the calculation of time periods, unless there is a compelling justification;
  • A review into how many arrests with periods of extended detention do not lead to a charge of a terrorism offence or lead to a charge that is dropped before trial; and
  • Providing ASIO’s questioning and detention powers are repealed or ceased at the sunset date, the definition of a ‘terrorism offence’ under the Australian Security Intelligence Organisation Act 1979 (Cth) should be amended to include the foreign incursion and recruitment offences in pt 5.5 of the Commonwealth Criminal Code and the terrorism financing offences in the Charter of the United Nations Act 1945 (Cth).

Government Response

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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