The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation

Article excerpt

[The Australian Security Intelligence Organisation Legislation (Terrorism) Amendment Act 2003 (Cth) is the most controversial piece of anti-terrorism legislation passed by the Commonwealth Parliament. The Act created a system of warrants that permit the Australian Security Intelligence Organisation to question and detain non-suspects for the purposes of gathering intelligence about terrorism offences. This regime is subject to a sunset clause and will expire in July 2016, unless renewed by Parliament. This article provides a comprehensive overview of the process by which warrants are issued and the powers conferred by them. It finds that the regime is insufficiently tailored to its purpose of protecting Australians against terrorism. In light of this, and evidence about how the powers have been used, the article concludes that these extraordinary questioning and detention powers should not be renewed without significant amendment.]

CONTENTS

 I  Introduction
 II Development of the Special Powers Regime
III Process of Issuing a Warrant
      A  Basic Criteria for Warrants
      B  Additional Criterion for Detention Warrants
      C  Additional Criteria for Repeat Warrants
      D  Additional Criterion for Warrants against Minors
 IV Nature of the Powers
      A Questioning
          1 Questioning Process
          2 Time Limits on Questioning
          3 Coercive Nature of Questioning
      B Detention
      C Access to a Lawyer
      D Secrecy Provisions
          1 Restrictions on Communications Per Se
          2 Restrictions on the Content of Communications
  V Use of the Special Powers Regime
 VI Conclusions

I INTRODUCTION

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) ('ASIO Amendment Act') conferred extraordinary new powers on Australia's domestic intelligence agency, the Australian Security Intelligence Organisation ('ASIO'). It did so by inserting a new pt III div 3, 'Special Powers Relating to Terrorism Offences', into the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act'). The ASIO Amendment Act was part of a package of anti-terrorism legislation introduced by the then Coalition government after the 9/11 terrorist attacks in New York and Washington, DC. Among other things, the package introduced into Australian law a definition of 'terrorist act', (1) criminalised terrorist acts and a broad range of preparatory conduct, (2) provided for the proscription of terrorist organisations, (3) established a new regime for dealing with national security information in court proceedings (4) and vested new powers in intelligence and law enforcement agencies to investigate terrorism. (5)

The ASIO Amendment Act is one of the most controversial pieces of legislation ever passed by the Commonwealth Parliament. (6) It was, and remains, unique in the Western democratic world in that it establishes a system ('Special Powers Regime') whereby an intelligence agency may coercively question and detain a non-suspect citizen. (7) The controversial nature of the Special Powers Regime is demonstrated by the long and tumultuous process of its enactment. Few pieces of legislation have been the subject of such a high level of scrutiny by the Commonwealth Parliament, parliamentary committees and the public generally. (8) At a total of 15 months from introduction to passage, (9) the parliamentary debate on the Special Powers Regime was the second longest in Australia's history. (10)

As enacted, the Special Powers Regime was temporary in nature. A sunset clause was included such that the powers expired after three years. (11) However, in 2006, the Commonwealth Parliament renewed the powers and added a new 10-year sunset clause. (12) The then Coalition government justified the length of the renewed sunset clause on the basis that there was still a threat of terrorist attack and it was undesirable to distract ASIO from its operations any more frequently than necessary. …