The extraordinary questioning and detention powers of the Australian security intelligence organisation.

• Jurisdiction: Australia
• Author: Burton, Lisa
• Date: 01 August 2012

[The Australian Security Intelligence Organisation Legislation (Terrorism) Amendment Act 2003 (Cth) is the most controversial piece of anti-terrorism legislation passed by the Commonwealth Parliament. The Act created a system of warrants that permit the Australian Security Intelligence Organisation to question and detain non-suspects for the purposes of gathering intelligence about terrorism offences. This regime is subject to a sunset clause and will expire in July 2016, unless renewed by Parliament. This article provides a comprehensive overview of the process by which warrants are issued and the powers conferred by them. It finds that the regime is insufficiently tailored to its purpose of protecting Australians against terrorism. In light of this, and evidence about how the powers have been used, the article concludes that these extraordinary questioning and detention powers should not be renewed without significant amendment.]

CONTENTS I Introduction II Development of the Special Powers Regime III Process of Issuing a Warrant A Basic Criteria for Warrants B Additional Criterion for Detention Warrants C Additional Criteria for Repeat Warrants D Additional Criterion for Warrants against Minors IV Nature of the Powers A Questioning 1 Questioning Process 2 Time Limits on Questioning 3 Coercive Nature of Questioning B Detention C Access to a Lawyer D Secrecy Provisions 1 Restrictions on Communications Per Se 2 Restrictions on the Content of Communications V Use of the Special Powers Regime VI Conclusions I INTRODUCTION

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) ('ASIO Amendment Act') conferred extraordinary new powers on Australia's domestic intelligence agency, the Australian Security Intelligence Organisation ('ASIO'). It did so by inserting a new pt III div 3, 'Special Powers Relating to Terrorism Offences', into the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act'). The ASIO Amendment Act was part of a package of anti-terrorism legislation introduced by the then Coalition government after the 9/11 terrorist attacks in New York and Washington, DC. Among other things, the package introduced into Australian law a definition of 'terrorist act', (1) criminalised terrorist acts and a broad range of preparatory conduct, (2) provided for the proscription of terrorist organisations, (3) established a new regime for dealing with national security information in court proceedings (4) and vested new powers in intelligence and law enforcement agencies to investigate terrorism. (5)

The ASIO Amendment Act is one of the most controversial pieces of legislation ever passed by the Commonwealth Parliament. (6) It was, and remains, unique in the Western democratic world in that it establishes a system ('Special Powers Regime') whereby an intelligence agency may coercively question and detain a non-suspect citizen. (7) The controversial nature of the Special Powers Regime is demonstrated by the long and tumultuous process of its enactment. Few pieces of legislation have been the subject of such a high level of scrutiny by the Commonwealth Parliament, parliamentary committees and the public generally. (8) At a total of 15 months from introduction to passage, (9) the parliamentary debate on the Special Powers Regime was the second longest in Australia's history. (10)

As enacted, the Special Powers Regime was temporary in nature. A sunset clause was included such that the powers expired after three years. (11) However, in 2006, the Commonwealth Parliament renewed the powers and added a new 10-year sunset clause. (12) The then Coalition government justified the length of the renewed sunset clause on the basis that there was still a threat of terrorist attack and it was undesirable to distract ASIO from its operations any more frequently than necessary. (13) Similarly, the Director-General of ASIO insisted that the threat of terrorism 'is a long-term, generational threat' and 'it is inevitable that we will have further attacks'. (14) The Special Powers Regime will now expire on 22 July 2016. No later than six months prior to its expiry, the Parliamentary Joint Committee on Intelligence and Security ('PJCIS') must report to the Commonwealth Parliament on the operation, effectiveness and implications of the Special Powers Regime. (15) This review will be critical. If the PJCIS recommends that the Special Powers Regime remain in effect, it is likely that the legislation will be made permanent or, at the very least, renewed with another lengthy sunset clause attached.

A considerable amount has been said and written about the Special Powers Regime. Nevertheless, there are significant and problematic gaps in the literature. During the enactment of the Regime and in the early years of its operation, much of what was said and written was highly polemical--either brimming with outrage at the significant intrusions the Special Powers Regime makes into fundamental human rights or expressing frustration at the delays and political compromises required in order to enact measures regarded by the executive as necessary to protect Australians against a terrorist attack. On the one hand, it was said that the Regime, at least in the form in which it was first introduced into the Commonwealth Parliament, would not be out of place 'in former dictatorships such as General Pinochet's Chile' (16) or Suharto's Indonesia. (17) On the other hand, those who opposed or delayed the Regime were said to be to blame if any Australian blood was spilt by terrorism as a result. (18)

Even years after the enactment of the Special Powers Regime, most of the literature still analyses the Special Powers Regime in a piecemeal fashion. For example, some commentators have focused upon the process by which it was enacted. (19) Others have examined constitutional issues, such as the legislative powers underpinning the Regime and the Regime's implications for the separation of powers. (20) Still more have examined the adequacy of the accountability mechanisms incorporated into the powers (21) and whether the framework in place to supervise use of the Special Powers is adequate to ensure the integrity of the Regime. (22) Finally, commentators have sought to explain how Australia came to enact a Regime that differs so significantly from the responses of other countries threatened (often to a much greater extent) by terrorism. (23)

For the most part, the literature has been strongly critical of ASIO's special powers. However, there has also been support for the Regime (and not just from the parliamentarians who sponsored it). Most notably, in 2005, the Parliamentary Joint Committee on ASIO, ASIS and DSD ('PJCAAD') (24) found that the Regime continued to be justified by the threat of terrorism. The Committee also found that the questioning that had so far occurred under the Special Powers Regime had been useful in monitoring potential terrorists in order to prevent attacks. (25) To date, the PJCAAD is the only body to have reviewed the Regime. (26)

Almost a decade has passed since the enactment of the Special Powers Regime. More than 50 other pieces of anti-terrorism legislation have been enacted since 9/11, reflecting the fact that Australian governments, from both sides of politics, view terrorism as an ongoing threat. There is every likelihood that the 'war on terror' will never come to a close. For this reason, the Special Powers Regime cannot be dismissed as a temporary or extraordinary response to the threat of terrorism. Instead, it is time to conduct a fresh evaluation of the Regime on the basis that it is (or, at least, may become in the near future) a permanent feature of the Australian legal landscape. Our intention in doing this is to start the debate--in advance of the PJCIS' 2016 review--about whether the Special Powers Regime should continue in operation as is, be amended or even repealed. We consider questions such as whether the Special Powers Regime has served an important security function over the past decade and whether its impact upon basic human rights has been necessary and proportionate. The answers to these questions shed light on whether the Special Powers Regime is sustainable over the longer term, and compatible with Australia's democratic values and public law principles.

This article adopts a holistic, first-principles approach to the Special Powers Regime. In Part II, we examine how the Special Powers Regime was brought about and the justifications provided for its enactment. Parts III and IV then examine the process by which a warrant is issued and the nature of the powers conferred by a Special Powers Warrant. Part V then sets out how the Special Powers Regime has been used to date. In 2005, the PJCAAD noted that the Regime had been in existence for 'only a very short time' and the 'whole range of the powers [had] not yet been exercised'. As a result, the Committee was reluctant to conclude whether the powers were 'workable', 'reasonable', 'would be used widely' and 'whether they are constitutionally valid.' (27) There is now a much greater body of evidence upon which to judge the practical operation of the Special Powers Regime. Finally, in Part VI we set out our conclusions about the current state and future of the Special Powers Regime.

II DEVELOPMENT OF THE SPECIAL POWERS REGIME

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) ('ASIO Bill (No 1)') was introduced by then Commonwealth Attorney-General, Daryl Williams, into the Commonwealth Parliament on 21 March 2002. Williams justified the Regime on a number of bases. First, he said ASIO required new powers to respond to the threat of terrorism. The events of September 11 marked 'a fundamental shift in the international security environment' and demonstrated that 'no country is safe from ... terrorism'. (28) The Coalition government needed to take...