ASIO powers out of line, LCA says

By Naomi Neilson|06 December 2020
Pauline Wright

Australia’s premier legal body is concerned that the new ASIO powers are “out of line”, with plans to significantly expand on them without crucial safeguards.

The Law Council of Australia (LCA) has welcomed the recommendations to alter ASIO powers but has warned that they do not go far enough to ensure they can be exercised where necessary and proportionate. The LCA said it is “deeply concerned” the powers will be “out of line” with other nations in the Five Eyes alliance.

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President Pauline Wright said she was especially troubled by their proposal to remove judicial involvement from the process of using these extraordinary warrants.

“Intelligence operatives work in complex and dynamic security environments and need appropriate and adequate powers to keep the community safe, but the flip side of that social compact is extraordinary powers must be subject to extraordinary safeguards,” she said.

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“That includes judicial approval, which will ensure that decisions to authorise coercive questioning and the apprehension are subject to the highest degree of independence.”

The laws mean that the Attorney-General will be solely responsible for its authorisation of compulsory questioning and, in some cases, the apprehension of a person to bring them into questioning. The critical approval role that is currently played by judges, and was introduced by the Howard government, would be repealed.

Ms Wright said Australia is already an outlier among the Five Eyes alliance from being the only jurisdiction to confer compulsory questioning powers on a security agency for intelligence collection purposes. It is also alone in not having any judicial authorisation in the insurance of highly intrusive surveillance warrants.

The LCA is pleased that the committee endorsed recommendations for a short sunset period for the laws of five years and having additional criterion for issuing questioning warrants for children that requires the Attorney-General to take into account the best interests of the child as a primary consideration.

The committee has also made attempts to strengthen requirements for qualifications of lawyers who can be appointed to supervise compulsory questioning.

Overall, however, these recommendations do not come close to giving the Bill reasonable prospect of compliance with Australia’s human rights obligations and essential requirements of the rule of law, Ms Wright said.

ASIO powers out of line, LCA says
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