This article is more than 2 years old

This article is more than 2 years old

The Australian Security and Intelligence Organisation’s (Asio) powers to detain people for questioning for up to seven days should be repealed, a bipartisan parliamentary committee has said.

In a report tabled on Thursday, the parliamentary joint committee on intelligence and security report recommended Asio keep its powers of compulsory questioning but lose powers of compulsory detention, which have not been used since they were introduced in the wake of the 11 September 2001 terrorist attacks.

The committee is reviewing the powers before they automatically sunset in September. It recommended this deadline be extended a further 12 months to allow time to replace the questioning powers. The recommendations were supported by both Liberal and Labor members.

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The report comes after the passage of a bill on Wednesday that formally transferred Asio from the attorney general’s portfolio into Peter Dutton’s home affairs department.

The 2003 law under review gave Asio powers to obtain warrants to question or detain and question a person under compulsion to seek intelligence in relation to a terrorism offence.

Detention warrants are available where there are reasonable grounds to believe relying on other methods of collecting intelligence would be “ineffective” or if the person may alert someone involved in a terrorism offence or may destroy or damage records if they are not immediately detained.

Questioning can occur for up to eight hours, or 24 hours with an extension, and detention can last up to seven days.

Reviews by the independent national security legislation monitors Brett Walker in 2012 and Roger Gyles in 2016 both recommended repeal of the compulsory detention powers as they were “not necessary to prevent or disrupt a terrorist act”.

Since it gained the powers Asio has been issued 16 warrants for compulsory questioning, most of which were in 2005 and only one was since 2006. None have been requested for compulsory detention.

Asio gave evidence that although the powers were introduced in an “unprecedented security environment”, Australia is still facing a “significant threat from terrorism”.

The committee accepted that the questioning powers were little used, because other means such as police arrest could disrupt attacks, but concluded they were useful for Asio’s counter-terrorism work. It recommended they be retained.

All non-government submitters, including the Law Council, opposed retention of detention powers. The committee said that one of the most “extraordinary aspects” of the questioning and detention powers was the ability to detain people who were not suspected of involvement in a terrorism offence.

Asio submitted that the “unique circumstances” when a detention warrant may be needed had not yet arisen. It provided hypothetical scenarios that would call for them – including the unexpected arrival in Australia of a returnee from Syria or a complex terrorist attack using “multiple attack vectors”.

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The committee said the detention powers were meant as a tool of intelligence collection not preventative detention, which would “not be acceptable” for an intelligence agency. Law enforcement agencies are preferred to disrupt and prevent attacks.

The committee suggested compulsory detention could effectively be replaced by compulsory attendance at questioning and other powers to prevent contact with others or the destruction of information.

“The committee accepts that there may be limited and exceptional circumstances where the power is required in order to ensure a person attends questioning, and consequently there is the need to provide a power of attendance,” the report said.

“However, noting the seriousness of ongoing detention, the constitutional and human rights concerns with the current framework and the non-use of the powers, the committee is of the view that the current provisions are no longer the appropriate response to the threat of terrorism.”

The Law Council president, Morry Bailes, said it had “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”.

“Today the committee has recognised this imbalance and we welcome these recommendations,” he said.



The shadow attorney general, Mark Dreyfus, said the report showed the usefulness of sunset clauses for “extraordinary powers granted to our security agencies ... to keep Australians safe”.

“As the report says, these powers are not intended to be permanent and it is right that they are subject to review,” he said.