ASIO's detention and questioning powers offend international human rights principles

Australia’s counter terrorism laws unnecessarily restrict fundamental human rights and undermine the rule of law, a research article ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’ published this month in the Melbourne University Law Review has found. Since ‘September 11’ 2001, over 40 pieces of counter terrorism have been passed in Australia.  In 2003, the Australian Security Intelligence Organisation (ASIO) Legislation Amendment (Terrorism) Act 2003 (Cth) bestowed extraordinary ‘special powers’ on ASIO to obtain warrants to question and detain Australian citizens, even if those people are not suspected of having committed a terrorism offence.

Under international human rights law, any limitation on fundamental freedoms, such as the rights to a fair trial and not to be arbitrarily detained, can only be justified if they are strictly necessary, proportionate, evidence-based and rationally connected to the threat posed.  This was the key message in the HRLC’s submission to the Council of Australian Governments when it reviewed related counter-terrorism powers under Commonwealth crimes legislation in 2012.

While the powers were put forward as necessary in the fight against terrorism, the article by Lisa Burton, Nicola McGarrity and Professor George Williams of the Gilbert & Tobin Centre of Public Law shows questioning powers have only been used 16 times since 2003 and at the time the research was conducted no special powers detention warrants had been issued.  The fact ASIO has been able to question suspects and lay charges without having to resort to using the special detention power leads the authors to conclude this power is simply not necessary for protecting national security, the stated basis for establishing the power.

When the questioning powers have been used, the authors found there was no statistical correlation between the use of the power and prosecutions for terrorism offences, undermining the asserted need for such powers.  There are very few legal restrictions on the use of these powers.  The fact they have rarely been employed does not legitimise these powers given the potential for abuse.

The authors of the report call on the Federal Government to repeal the detaining power or tighten the threshold for use by requiring ASIO to establish that it is strictly necessary to detain a person under the special powers to protect national security before a warrant will be issued.  To restore the principle that rights shall only be restricted where it is strictly necessary and proportionate to the risk posed, they also argue questioning warrants should only be able to be issued if the issuing authority can be satisfied it will substantially assist ASIO to collect intelligence that is reasonably believed capable of preventing a terrorism offence or enabling prosecution.

The regime imposes a low threshold for issuing repeated warrants, restricts a person’s access to legal representation and confidential communication with a person’s chosen and prevents a person issued with a warrant to disclose that fact to the public inhibiting public scrutiny of use.  These exceptional restrictions on fundamental protections should only be available in exceptional circumstances, the authors argue.  Like the power to issue a warrant for questioning or detention, the authors call for these restrictive conditions to be rolled back to meet the proportionality requirement.

A copy of the journal article is available here.