The ambit of powers given to the Australian Security and Intelligence Organisation (ASIO) under the law fails to strike the right balance between protecting the community and preserving fundamental rights, the LCA has told a parliamentary committee.
The Law Council of Australia has said Parliament must rethink the certain compulsory questioning and detention powers given to the nation’s top intelligence agency.
On Wednesday, Tim Game SC, co-chair of the LCA's National Criminal Law Committee appeared on behalf of the group before the Parliamentary Joint Committee on Intelligence and Security. He was joined by senior legal advisor Dr Natasha Molt.
LCA president Fiona McLeod SC said that the current questioning and detention powers did not bolster the potency of other powers to tackle a potential terrorism threat.
“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.
The existing powers available to prevent and deal with terrorism include powers of federal, state and territory police, and those of the Australian Criminal Intelligence Commission (ACIC), as well as all of ASIO’s other powers under the law.
Ms McLeod said that the extra powers, created with the aim of preventing or disrupting a terrorist act, had not been used by ASIO since the laws were introduced by Parliament. Those new powers, subject to review of the parliamentary committee, are provided for under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
The LCA suggested that the ACIC model be used as the basis for an alternative to the compulsory questioning and detention powers that Ms McLeod hoped the government would drop. The ACIC model requires that for any a legal representative of any person giving evidence, and also provides a more transparent and formal process with the appointment of examiners.
However, Ms McLeod also noted that the approach taken by ACIC would need to be modified to ensure robust safeguards and recommended that any alternative model should be subject to consultation.
“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.”
The protection of ASIO decisions from judicial review under the ADJR Act must also be reconsidered moving forward, Ms McLeod said. Of particular concern for the LCA is that examination of an accused person should only be permitted to occur once charges have been made.
“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.
As the law currently stands, the LCA said that ASIO’s existing questioning and detention powers do no provide sufficient safeguards. They also fly in the face of an adequate balance of national security interests and the individual freedoms citizens of a democracy system are entitled to.
“It’s crucial our security and law enforcement agencies have appropriate powers to detect, prevent and prosecute terrorist activities.
“But the appropriate balance must be struck between ensuring national security and safeguarding the fundamental legal rights central to our democracy,” Ms McLeod said.
In response to a proposal that ASIO’s questioning and detention powers be extended to children as young as 14 years old, the LCA said a proper regime would have to be implemented to accommodate how minors are treated.
“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.
In a statement released earlier this year ahead of the review, inquiry chair Andrew Hastie MP said that the extraordinary powers deserved close scrutiny. He added that the group is committed to examining the extent and effectiveness of ASIO’s questioning and detention powers.
“The committee will use its review to examine the ongoing effectiveness of ASIO’s special powers in the fight against terrorism, and whether the existing set of safeguards gets the balance right between security and individual liberties,” Mr Hastie said.
“The committee will also take into account the recent findings of the Independent National Security Legislation Monitor.”
Last year, a review of the legislation was concluded by Roger Gyles AO QC, who was the Independent National Security Legislation Monitor at the time. The report concluded that provisions for ASIO’s questioning and detention warrants should be repealed or allowed to sunset, and that the remaining provisions, including questioning warrants, should be repealed and “replaced with a questioning power following the model of coercive questioning available under the Australian Crime Commission Act 2002 (Cth) as closely as possible”.