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Law Council of Australia


Time to rethink ASIO’s compulsory questioning and detention powers

9 August 2017

The Law Council today told a Parliamentary Committee that ASIO’s current questioning and detention powers appear unnecessary to prevent or disrupt a terrorist act, given other powers already in operation.

These existing powers include: ASIO’s other powers, powers of federal, state and territory police, and those of the Australian Criminal Intelligence Commission (ACIC).

The Law Council was represented at the hearing by Tim Game SC, Co-Chair of the Law Council’s National Criminal Law Committee and Dr Natasha Molt, Senior Legal Advisor, Policy Division.

The President of the Law Council, Fiona McLeod SC, said that the current ASIO questioning and detention powers fail to strike the right balance between protecting the community while upholding the rule of law.

“It’s crucial our security and law enforcement agencies have appropriate powers to detect, prevent, and prosecute terrorist activities," Ms McLeod said.

“But the appropriate balance must be struck between ensuring national security and safeguarding the fundamental legal rights central to our democracy. 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.”

Ms McLeod said it was time to rethink ASIO’s compulsory questioning and detention powers. She said a better approach would be to use the ACIC powers as a starting point. Under the ACIC model, a person giving evidence may be represented by a legal practitioner and the appointment of examiners is more transparent and formal.

“There is significant benefit in adopting an ACIC Model for ASIO’s questioning powers, instead of going down the current path,” Ms McLeod said.

“There would be the potential for judicial oversight of the exercise of the coercive powers, greater consistency in the powers given to intelligence agencies and greater certainty as to their operation.

“That said, there should be some modifications to the ACIC Model should it be used as a basis for ASIO’s compulsory questioning powers to ensure appropriately robust safeguards are in place. Any new model for ASIO’s questioning and detention powers should be first released as an exposure draft bill with an adequate consultation period.”

Ms McLeod said the Law Council also had concerns over ASIO’s proposal to extend questioning and detention powers to children as young as 14.

“While we are not convinced that this step is necessary, if children as young as 14 are to be questioned and detained then there must be a special regime for minors,” Ms McLeod said.

“Such a regime, for example, would ensure the best interests of the child were protected and that the child was provided with an independent government-funded lawyer.”

The Law Council also called for a review of the blanket ban of ASIO’s decisions from judicial review under the ADJR Act.

“Examination of an accused person by ASIO and the ACIC should be deferred until after the disposition of any charges. If this is not 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,” Ms McLeod said.

Media contacts:

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