The Law Council of Australia has thrown its full support behind the push from the Parliamentary Joint Committee on Intelligence and Security to repeal the Australian Security Intelligence Organisation’s detention power and revise its questioning power.
The committee recommended that ASIO’s current detention powers under the Australian Security Intelligence Organisation Act 1979 be repealed and that new legislation be drafted for a reformed ASIO compulsory questioning framework.
“The Law Council has long argued that the current ASIO questioning and detention powers fail to strike the right balance between protecting the community while upholding the rule of law,” LCA president Morry Bailes said.
“The Committee has recognised this imbalance and we welcome these recommendations.”
Mr Bailes went further, noting that ASIO’s Questioning and Detention Warrants had not been used since their inception, which should raise questions about its efficacy as an intelligence tool.
“It is crucial for our security and law enforcement agencies [to] have appropriate powers to detect, prevent, and prosecute terrorist activities,” he said.
“But the appropriate balance must be struck between ensuring national security and safeguarding the fundamental legal rights central to our democracy.”
Moving forward, LCA argued that any reform of ASIO’s questioning powers should use the Australian Criminal Intelligence Commission (ACIC) model as a starting point.
“Adopting the ACIC model would allow for greater judicial oversight of the exercise of the coercive powers,” Mr Bailes said.
“It would also create greater consistency in the powers given to intelligence agencies and offer greater certainty as to their operation.”
In addition, in the revision of questioning powers, he said it is critical that the examination of an accused person by ASIO be deferred until after the disposition of any charges.
“If this is not accepted, authorisation should be required from the Federal Court before a summons is issued to a person who is subject to criminal proceedings,” he concluded.