Parliamentary inquiry submission makes case for wider powers to detain without charge and jail people for refusing to answer questions

This article is more than 5 years old

This article is more than 5 years old

Asio will gain broader powers to secretly detain Australians without charge and conduct “coercive questioning”, even when less intrusive measures are available, under proposed national security laws.

In a submission to the parliamentary inquiry examining the federal government’s second tranche of national security legislation, Asio welcomed the changes and noted that a previous requirement to exhaust other methods of collecting intelligence first had been softened.

The bill seeks to substantially increase the powers of the security agency and police to detain people without charge.

It would extend the controversial preventive detention order, control order and Asio questioning and detention regimes for 10 years, and lower the thresholds for obtaining the different orders.

Under the current scheme Asio may detain and question a person without charge for up to seven days, during which time refusing to answer questions may lead to imprisonment. People can essentially be held without contact with the outside world, may lose the right to silence and may be subject to coercive questioning.

The former independent national security legislation monitor Bret Walker recommended the regime be abolished as a result of concerns about its use.

Currently the extraordinary powers can be used only as a last resort, if the attorney general believes less intrusive methods of gathering intelligence will not be effective.

The new laws, if passed, would allow the attorney general to grant a warrant for the use of the orders in a much broader range of circumstances, when it is reasonable to do so.

In its submission, Asio wrote: “The new threshold will require the attorney general, in making this assessment, to have regard to whether there are other methods of collecting the intelligence sought to be collected under the warrant, and whether those other methods are likely to be as effective.

“The existence of other, less intrusive methods of obtaining the intelligence will continue to be a relevant but non-determinative consideration in decisions.”

Asio rejected Walker’s assessment that the regime was unnecessary, and wrote that there were “realistic and credible circumstances in which it may be necessary to conduct coercive questioning of a person for the purposes of gathering intelligence about a terrorism offence”.

Asio has never sought a questioning and detention warrant – questioning warrants alone have been sought only 16 times. Asio wrote that in the “current environment” the powers “will continue to play an important role in intelligence collection”.

Oversight of the regime would be limited. The inspector general of intelligence and security, Vivienne Thom, noted in her submission to the inquiry that the attorney general’s decisions were not subject to review by her office.

University of Sydney law professor Ben Saul and the Gilbert + Tobin Centre of Public Law both lodged submissions expressing serious concerns about the extension of the regime.

Saul wrote: “ASIO detention powers should be repealed, not extended. Detaining non-suspects for up to seven days, virtually incommunicado and without effective review at the time, removing the right to silence on penalty of imprisonment, and criminalising any disclosure of detention, is excessive and disproportionate in view of existing powers, the level of terrorist threat, and the absence of any declared public emergency justifying derogation from protected human rights. “

The Tobin centre also said the powers were problematic due to their “significant impact on civil liberties”.

“We believe that they should not be renewed, and certainly this should not even be considered without an appropriate opportunity to determine whether their extension is warranted,” the centre wrote.

Thom wrote: “It would be my expectation that Asio would notify me at the earliest possible time and it is my intention that I, or a senior member of my staff, would be present during any questioning under warrant.”

On Friday several members of the parliamentary joint committee on intelligence and security also raised concerns about the justification given to continue the preventive detention orders and control regimes without charge.

The inquiry is due to report on 17 October.