Certain questioning and detention powers in relation to terrorism

8 Feb 2017


This report is to review the operation, effectiveness, and implications, of the relevant legislation, including consideration as to whether it: contains appropriate safeguards for protecting the rights of individuals; remains proportionate to the threat of terrorism, or threat to national security, or both; and remains necessary. Assessment as to whether the legislation is being used for matters unrelated to terrorism and national security is required.

I must have regard to Australia’s obligations under international agreements and to the arrangements agreed from time to time between the Commonwealth, the States, and the Territories, to ensure a national approach to countering terrorism.

A review of div 3 of pt III of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) and any other provision of that Act as far as it relates to that division, pursuant to s 6(1)(b) of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act) is required to be completed by 7 September 2017. That division provides the Australian Security Intelligence Organisation (ASIO) with special powers relating to terrorism offences, being questioning warrants (QWs), and questioning and detention warrants (QDWs), and related matters. That time limit requires that the review take place notwithstanding s 9 of the INSLM Act.

A review of pt IC of the Crimes Act 1914 (Cth) (Crimes Act) is also one of the functions of the office. That part provides for the detention (and questioning) of persons arrested for Commonwealth offences. Subdivision B of div 2 deals with terrorism offences.

The Australian Criminal Intelligence Commission (formerly the Australian Crime Commission) (ACIC) has compulsory questioning powers. The arrangements that are in place mean that those powers apply to certain terrorism offences, and to that extent, may be reviewed pursuant to s 6(1)(b) of the INSLM Act.

Combining those reviews provides a better perspective than separate reviews and is the best use of limited resources.

The existence and exercise of other powers relating to counter-terrorism and national security vested in federal and state bodies form part of the backdrop to this review and report.

The previous Independent National Security Legislation Monitor (INSLM), Mr Bret Walker SC, reviewed and made recommendations about ASIO QWs, and QDWs, in chs IV and V of his 2012 Annual Report. He dealt with police powers of questioning post-arrest and pre-charge in Appendix F of the same report, but made no recommendations as to them. He touched on pre-emptive detention for questioning by the then Australian Crime Commission, and the New South Wales Crime Commission, in ch V of that report.

The principal recommendation was that QDWs be abolished by repeal of the relevant statutory provisions. That recommendation has not been acted on. Several changes to the QW procedures were recommended, some based on the assumption that QDWs would be abolished. Only some have been adopted.

These powers are revisited in this report in light of experience over recent years and the current security situation. This review has involved public and private written submissions, public and private hearings, private consultations, and the voluntary and compulsory provision of information. As much material as possible has been published on the INSLM website. The submissions published there give a comprehensive account of the considerations and arguments that have been advanced and taken into account. It is unnecessary to reproduce all of that information in this report. An account of the review process may be found at Appendix 1.

I should immediately say there is no evidence any of the powers under review, the use of which has been based on terrorism or national security, have been used for matters unrelated to terrorism or national security.

Roger Gyles
Independent National Security Legislation Monitor

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