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Review of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth)

The Law Council of Australia provided a submission to the Parliamentary Joint Committee on Intelligence and Security for its review of the Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth).

The Law Council acknowledges the important role of the Australian Security Intelligence Organisation (ASIO) in keeping Australia and Australians safe from national security threats, and the need for its powers to be adequate to support this function. However, such powers should not exceed what is necessary and proportionate to respond to identified security threats. This extends to the questioning and detention powers set out in Division 3 of Part III of the ASIO Act.

There have been significant changes to ASIO’s operating environment, including changes to the threat environment, rapid technological changes, and numerous expansions of ASIO’s intelligence collection powers. The Law Council welcomes this review, which is the result of a Committee recommendation to amend the Intelligence Services Act 2001 (Cth), to allow the Committee to commence a review of the provisions by 7 September 2023.1 It is important to conduct these reviews regularly to ensure the legislation is fit-for-purpose in the contemporary environment, and that the public can be assured of this.

The Law Council acknowledges that the Committee and successive reports from the Independent National Security Legislation Monitors (INSLM) supported the conferral of a compulsory questioning power on ASIO, subject to appropriate limitations and safeguards.2 The Law Council welcomed, in its previous submission, the retention of a number of important safeguards in the re-designed compulsory questioning regime, especially an ongoing role for the Inspector-General of Intelligence and Security (IGIS) to attend compulsory questioning to conduct ‘real-time’ oversight.3

In this submission, the Law Council focuses on five main issues:

Read the full submission below.


1 Parliamentary Joint Committee on Intelligence and Security (PJCIS), Advisory Report on the Australian Security Intelligence Organisation Amendment Bill 2020 (December 2020) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ASIOAmendmentBill2020/Report> Recommendation 5.
2 PJCIS, 2018 Report, 26-27 at [2.15]-[2.22] and recommendation 1; and Independent National Security Legislation Monitor (INSLM), 2016 Report, 43 at [9.13] and recommendation 8.
3 Law Council of Australia, Australian Security Intelligence Organisation Amendment Bill 2020 (3 July 2020) <https://lawcouncil.au/resources/submissions/australian-security-intelligence-organisation-amendment-bill-2020> 8.

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