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PJCAAD Review of ASIO detention and questioning powers 2005 Print E-mail
Sunday, 24 April 2005

 

In 2004 the then Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD) conducted a review of the operation, effectiveness and implications of Division 3, Part III of the Australian Security Intelligence Organisation Act 1979 (‘the Act').  The provisions empower ASIO to obtain questioning and detention warrants in relation to persons believed to have information about terrorist offences. This review was legally required under a clause included in the Australian Security Intelligence Organisation Amendment (Terrorism) Act 2002.

 

AMCRAN submitted that Division 3 be allowed to lapse on 23 July 2006. Acknowledging that it may be difficult for the Committee to recommend the excision of Division 3 altogether, AMCRAN made the following key recommendations:


  • Recommendation 1: In view of the uncertain constitutionality as well as the broad basis for these provisions, the detention and questioning powers under Division 3 should be allowed to lapse on 23 July 2006.


In the alternative, that substantial changes to the Criminal Code are made to limit the potential reach of the powers i.e. by delimiting the definition of ‘terrorism' that is the basis of the detention and questioning powers.


  • Recommendation 2: ASIO's detention and questioning power should be allowed to lapse on 23 July 2006, as this appears to be outside of ASIO's charter. Once a person is questioned and has provided the information requested by ASIO, he or she should be released, and should not be held.


In the alternative, only people who are suspected of having committed an offence should be detained. Further, it should not be sufficient grounds that a person "may" do something in violation of S34F(2A), but that they are "reasonably likely" to do so.


  • Recommendation 3: Should ASIO's detention and question powers be not removed, ASIO must only be able to detain people for a period of less than, or at least equal to, the maximum period of time that the AFP can detain a person under suspicion of having committed a crime, i.e. 12 hours for normal offences and 24 hours if they are suspected of involvement in a terrorist offence.


  • Recommendation 4: That the provisions for strip searching be tightened, and the police officer must provide evidence to the prescribed authority as to why he or she believes the detained person may be in possession of a sizable item that could not be detected by an ordinary search or the use of widely available equipment such as metal detectors or infrared cameras.


  • Recommendation 5: That the ‘secrecy offences'-such as those contained in s34VAA which make it an offence to disclose that a questioning/ detention warrant has been issued-be removed from the Act


  • Recommendation 6: That another review of ASIO's detention powers be conducted three years hence with specific allowance for those people who have been detained and questioned to make submissions with the assistance of legal practitioners and community groups.


  • Recommendation 7: That the Minister not be allowed to disclose matters relating to the questioning or detention of a person publicly; that if the Minister, or any member of the executive government do make disclosures relating to the questioning or detention of an individual, then the limits on disclosure are taken to be null and void.


  • Recommendation 8: That the provisions that impose a penalty for not providing information and reverse the burden of proof i.e. requiring the defendant to prove they do not know something or do not posses something, be removed.


  • Recommendation 9: That a person detained or questioned pursuant to either a detention or questioning warrant must have access to a lawyer of their choice, who must be present during questioning. Any contact with the lawyer must not be monitored, and the lawyer must be free to advise his or her client during questioning without fear of removal.


  • Recommendation 10: That the power to confiscate a person's passport under s 34JBA should be removed from the Act.


In the alternative, that the passport of a person against whom a warrant is sought should not be surrendered immediately on application for a warrant.

 

This submission was prepared by Agnes Chong and Waleed Kadous. 

 

A community resource kit was produced by the UTS Community Law Centre to inform the community about the issues.  AMCRAN created an Action Alert promoting the community to read the Kit and to make suubmissions. Over 90 submissions were received by the Committee. A full list of submissions is available from the from the Parliamentary Committee website.

 

AMCRAN appears before PJCAAD regarding ASIO's detention and questioning powers

PJCAAD conducted public hearings as part of its Review. AMCRAN worked together with the National Association of Community Legal Centres as well as the Public Interest Advocacy Centre in preparing for our appearances, ensuring that we had a well-coordinated response. We also provided background briefing and assistance to the Islamic Council of NSW as well as the Islamic Council of Victoria to assist with their appearances.

 

The transcripts of the appearances for the Inquiry are now available from the Committee website.

To access the transcript for the 6 June 2005 hearing including appearances from AMCRAN, Islamic Council of NSW and the National Association of Community Legal Centres, click here.

 

To access the transcript for the 7 June 2005 hearing including appearances from Federation of Community Legal Centres (Vic) and the Islamic Council of Victoria, click here.

 

On 6 June 2005, Agnes Chong and Waleed Kadous appeared before the then PJCAAD in its Review of Division 3 Part III of the ASIO Act 1979 - Questioning and Detention Powers.

 

In their testimony, AMCRAN's representatives raised the following key points:

  • The definition of "terrorism" in the legislation is very broad. Consequently, when something is related in any way to terrorism, a wide swathe of powers become available to ASIO. ASIO was originally set up as a policing institution, but was given police-like powers, such as the ability to to detain someone for up to 7 days. It is not ideally suited to this role.
  • The secrecy provisions of the ASIO act (which can lead to someone being jailed for up to 5 years if they disclose "operational information") were unworkable because the definition of "operational information" was not clear and would lead to self censorship of individuals affected. Prior to the appearance of AMCRAN, AMCRAN sought guidance from the committee about whether people who were affected by the secrecy provisions could actually make submissions or not. The opinion was not conclusive.
  • AMCRAN gave examples illustrating the "coerced cooperation" where ASIO says to people "we can do things the easy way or the hard way." This has been a pattern of much of the legislation.

In the final report, PJCIS devoted a chapter examining the disproportionate impact on the Muslim community, extensively quoting from our submission and appearance, and recommended that parliamentarians consider carefully their public statements in the current inflamed environment. They accepted that the laws had a disproportionate impact on the Muslim community.

 

 
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