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Senate Inquiry into ASIO (Anti-Terrorism) Bill 2002 Print E-mail
Wednesday, 02 June 2004
 
 The Australian Security Intelligence Organization Legislation Amendment (Terrorism) Bill 2002 (Cth) sought, amongst other things, to allow detention without charge for a period up to seven days, possibly longer, and to allow ASIO and AFP officers to search anyone "near" premises.  In addition, the Bill would adversely affect individuals' right to silence and the right to not self-incriminate.

 

 AMCRAN's submission examined the potential impact of the Bill and made its critique under six key heads :

Searching people ‘near' a premises
Amendment 23 (part 25(4A)(ii)) allows the frisk search of any person ‘near' a premises subject to a warrant, however does not delimit the meaning of ‘near' thereby potentially exposing a large number of people to this power.

Detention for arbitrary periods of time and indefinite detention
Sections 34D and F allow the detention of an individual for up to 48 hours where this may be of assistance in the investigation of a terrorist act. This period may be extended up to 7 days. There is no provision to prevent the issuing of successive warrants. The implication is that an individual who is not suspected of having committed a crime may be detained for rolling periods of time without charge.

Strict liability for failure to appear before a prescribed authority
Sections 34G(1) and 34G(2) prescribes up to 5 years imprisonment and strict liability for failure to appear before a prescribed authority once a warrant has been issued.

Refusal to disclose information and refusal to hand over something in possession
Section 34G allows someone to be imprisoned for up to five years for knowing something but refusing to disclose it to the prescribed authority; saying something deliberately misleading or having something but refusing to hand it over. However it would appear logically impossible to prove that one does not know something, or does not posses something.

Unbounded Ministerial power under the legislation
The legislation as drafted would provide Ministerial power to define ‘terrorist organisations' and to select a Federal or State court as the issuing authority of a warrant.

Search powers and special impact on the Muslim community
The conduct of frisking searches may be particularly offensive to Muslims who adhere to the strict limitation of contact between males and females.

As the legislation would constitute a radical departure from rule of law norms, the submission argues that it must be shown that such powers are necessary in the fulfilment of ASIO's duties. Using the example of ASIO raids on homes of suspected JI collaborators, the submission suggests that existing ASIO powers may in fact be sufficient for the conduct of ASIO activities or even constitute an excessive grant of power.

The submission concludes that legislation such as that proposed would adversely affect Australia's standing amongst the international community.

 

This submission was prepared by Waleed Kadous and Agnes Chong in 2002 who would later found AMCRAN.

 

AMCRAN Appearance at Committee Hearing and Report

Waleed Kadous was requested to make an appearance.   The Senate Inquiry Report is available here

 

This Bill was ultimately enacted. The text of this amended ASIO Act 1979 is available here.

 

 

 
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