Administrative Review Council - Admin Review
In 2002 the Federal Government introduced a package of anti-terrorism legislation designed to respond to the new terrorist environment by creating new terrorism-related offences. The package was passed by parliament in June 2002. The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is one element of that package. The Bill seeks to empower ASIO to obtain a warrant to detain and question a person who may have information important to the gathering of intelligence in relation to terrorist activity. The aim is to ensure that Australia is in the best possible position to prevent and deter terrorist activity wherever possible by augmenting ASIO’s intelligence capabilities.
The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 seeks to amend the Australian Security Intelligence Organisation Act 1979. The Bill was laid aside by the House of Representatives on 13 December 2002 and then passed by that House on 27 March 2003. It was introduced into the Senate on 20 May 2003 and at the time of going to press is awaiting debate.
During 2002 the Bill was subject to extensive scrutiny by three parliamentary committees. It was referred to both the Senate Legal and Constitutional Legislation Committee and the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Defence Signals Directorate. The Parliamentary Joint Committee reported on 5 June 2002 and the Senate Committee reported on 18 June 2002. The Bill was also reviewed by the Senate Legal and Constitutional References Committee, which tabled its report on 3 December 2002.
The Parliamentary Joint Committee made a number of recommendations—relating to the issue of warrants, the detention regime, and accountability measures—for changes to the Bill. The Senate Legal and Constitutional Legislation Committee agreed with these recommendations. On 24 September 2002 government amendments to the Bill, responding to the recommendations of the committees, were passed by the House of Representatives.
As amended, the Bill would allow the Director-General of Security, with the Attorney-General’s consent, to seek a warrant from a federal judge, a federal magistrate or another authority prescribed in regulations. The warrant would authorise the questioning and, if necessary, the detention of a person for up to 48 hours. Questioning under a warrant would take place before a ‘prescribed authority’. Depending on the circumstances, a prescribed authority could be a former judge of a superior court, a current judge of a state or territory supreme or district court, or a president or deputy president of the Administrative Appeals Tribunal.
A person detained under consecutive warrants would not be able to be held for longer than seven days. In addition, warrants that would result in a person being held for longer than 96 consecutive hours must be sought from a federal judge.
Other than in exceptional circumstances, the person detained would be able to contact a lawyer. The warrant may require that the lawyer be security cleared. In exceptional circumstances, where the Attorney-General is satisfied that a terrorism offence is being or is about to be committed, access to a lawyer could be delayed for up to 48 hours. After 48 hours, however, the detained person would have the absolute right to contact a lawyer.
At any time a detained person would be able to contact the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman. The Inspector-General of Intelligence and Security is an important accountability mechanism for Australia’s intelligence agencies: it operates independently of government and has extensive investigatory powers. If it were concerned about an illegal act or an impropriety occurring during questioning it could advise the prescribed authority. The prescribed authority might then suspend questioning until it is satisfied that the Inspector-General’s concerns have been addressed.
The Parliamentary Joint Committee also made recommendations concerning the Bill’s application to children. As amended, the Bill would not apply to anyone under the age of 14 years. Young people between the ages of 14 and 18 years could, in exceptional circumstances, be subject to a warrant. This would occur only if the Attorney-General were satisfied that the young person will commit, is committing or has committed a terrorism offence. Young people who are subject to a warrant would be entitled to have a lawyer and a parent or guardian present at all times when questioned.