Australian Security Intelligence Organisation Amendment Bill 2020
17 July 2020
On 10 July 2020, the Law Council appeared before the Parliamentary Joint Committee on Intelligence and Security inquiry into the Australian Security Intelligence Organisation Amendment Bill 2020 (ASIO Bill). The ASIO Bill proposes two major expansions to ASIO’s intelligence collection powers.
First, the Bill proposes to extend ASIO’s compulsory questioning powers for a further 10 years, with significant expansions to those powers. This includes a broadening of the matters that can be the subject of questioning to cover foreign interference, espionage and politically motivated violence (in addition to the existing coverage of terrorism offences). The Bill also proposes to lower the minimum age of questioning from 16 years to 14 years, and to explicitly permit the questioning of charged persons about the subject matter of their criminal charges.
Secondly, the Bill proposes to permit ASIO to self-authorise its use of tracking devices in public places, rather than seeking a warrant from the Attorney-General.
The Law Council made a comprehensive written submission to the Committee, with the valuable input of its constituent bodies and advisory committees. The submission identified numerous elements of the Bill that were not necessary for, or proportionate to, a legitimate national security-related objective. It made 78 recommendations for amendments to the Bill. Key concerns include:
- the absence of judicial involvement in the process for issuing questioning warrants;
- inadequate safeguards for the compulsory questioning of children, to ensure that the best interests of the child are treated as a primary consideration in the issuing and execution of warrants;
- the proposal to permit post-charge compulsory questioning, which raises an unacceptable risk of irreparable harm to the rights of an accused person to a fair trial;
- extreme limitations on the role of lawyers for questioning warrants subjects during questioning; and
- overbreadth in the scope of the proposed power of internal authorisation to use tracking devices for intelligence collection purposes, and potential unintended consequences.
The Law Council was represented at the public hearing by the President, Ms Pauline Wright, National Criminal Law Committee Co-Chair, Dr David Neal SC, and Director of Policy, Dr Natasha Molt. Questioning focused on the key issues listed above. Several Committee members expressed gratitude for the Law Council’s detailed submission, and acknowledged the work of all contributors.