Joint Committee on Intelligence and Security Releases Report Into ASIO’s Questioning Powers

Tuesday 15 May 2018 @ 10.16 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Parliamentary Joint Committee on Intelligence and Security (“the Committee”) has released their report into the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth), which covers ASIO’s compulsory questioning and detention powers.  The Review was required by section 2 of the Intelligence Services Act 2001 (Cth) and was commenced in 22 February 2017.  The Review received 22 submissions by the closing date of 21 April 2017.  For more information on the submissions made by the Law Council of Australia, see TimeBase’s earlier article.

In a media release issued on Friday 11 May, Chair of the Committee Andrew Hastie said:

“the Committee carefully examined ASIO’s ongoing need for a compulsory questioning power and concluded on the basis of evidence received that it is appropriate that ASIO retain this power…

On the question of detention, however, the Committee concluded that questioning and detention warrants should be repealed and replaced with an alternative apprehension framework that ensures attendance at questioning, prevents contact with others, and prevents the destruction of information.”

The Committee’s Recommendations

The Committee made four recommendations:

  • "that the Australian Security Intelligence Organisation retains a compulsory questioning power under the Australian Security Intelligence Organisation Act 1979.
  • that ASIO’s current detention powers, as set out in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, be repealed.
  • that the Government develop legislation for a reformed ASIO compulsory questioning framework, and refer this legislation to the Committee for inquiry and report. The Committee further recommends that proposed legislation be introduced by the end of 2018 and that the Committee be asked to report to the Parliament no sooner than three months following introduction. The Committee considers any proposed legislation should include an appropriate sunset clause.
  • that the Australian Security Intelligence Organisation Act 1979 be amended to extend the sunset date of 7 September 2018 by 12 months to allow sufficient time for legislation to be developed and reviewed."

Committee’s Comments and Findings

The Committee recommended that the Attorney-General be able to issue questioning warrants:

“The Committee accepts that ASIO requires an agile framework in the current threat environment. The Committee notes ASIO’s evidence that it considers the current multi-step authorisation process to be inefficient and to impede timely and effective operations. The Committee also observes that other comparable compulsory questioning frameworks do not have multi-step authorisation processes.

The Committee recognises that removing the issuing authority from the warrant issuing process may be viewed as reducing independent scrutiny.

However, the Committee notes that the issuing of warrants by the Attorney-General would be a higher level of authorisation than that required for some other domestic compulsory questioning regimes, some of which provide for internal authorisations.

The Committee finds it appropriate that a questioning warrant be authorised by the Attorney-General.

In addition, the Committee finds it appropriate that the Attorney-General be able to separately authorise apprehension when this may be required.”

However, the Committee also recommended that in issuing the warrant:

“the Attorney-General, when considering the authorisation of a questioning warrant, should be in a position to press ASIO as to the specific requirements and arrangements for questioning a person. Such intrusive powers should not be requested, nor authorised, until a clear operational need has arisen and a specific case for their use at that particular time has been demonstrated. A questioning warrant should not be issued on a speculative or multi-use basis.”

The Committee also considered that “any person subject to compulsory questioning should be afforded appropriate access to legal counsel.” 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.


Related Articles: