Australian Security Intelligence Organisation Act 1979
ASIO
ASIO’s main role is to gather information and produce intelligence that will enable it to warn the government about activities or situations that might endanger Australia’s national security. The ASIO Act defines ‘security’ as the protection of Australia and its people from espionage, sabotage, politically motivated violence, the promotion of communal violence, attacks on Australia’s defence system, and acts of foreign interference.
ASIO Questioning and Detention Powers
Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 enables ASIO to obtain warrants to question, and in limited circumstances detain, a person who may have information relevant to a terrorism offence.
There are two types of warrants. One type of warrant is available for questioning a person (without detention), and the other type of warrant is used to detain a person for questioning.
A warrant can only be obtained if there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence, and that relying on other methods of collecting that intelligence would be ineffective. An additional requirement for a warrant authorising detention is that the Attorney-General must be satisfied that there are reasonable grounds for believing that if the person is not immediately taken into custody and detained the person may alert a person involved in a terrorism offence that the offence is being investigated; or may not appear for questioning; or may destroy, damage or alter a record or thing the person may be requested to produce in accordance with the warrant.
A warrant authorises ASIO to question a person before a prescribed authority (currently a retired judge) by requesting a person to give information, or produce records or things, that are or may be relevant to intelligence that is important in relation to a terrorism offence. A warrant allows a person to be questioned for a maximum total of 24 hours (or 48 hours where an interpreter is used). ASIO may initially question a person for up to 8 hours, and must then obtain the prescribed authority’s permission to continue for up to another 8 hours each time. The prescribed authority may only permit questioning to continue if the prescribed authority is satisfied that: there are reasonable grounds for believing that permitting the continuation will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and questioning of the person under the warrant is being conducted properly and without delay.
The time limits and process for questioning under a questioning and detention warrant are essentially the same as for questioning only warrants. The key difference is that a person is held in detention, for up to a maximum of 168 hours, for the purpose of the questioning.
The questioning and detention process is subject to a strict legislative regime with clear time limits, safeguards and requirements set out in the legislation. These include:
- rigorous requirements that must be satisfied before questioning or detention warrants can be issued
- a warrant is issued by an independent issuing authority, who is a federal judge or Federal Magistrate
- strict time limits on the period of questioning (24 hours, or 48 hours if an interpreter is used) and length of detention (168 hours)
- further detention would require another warrant based on new information
- access to a lawyer
- the right to seek a remedy in a federal court at any time
- a protocol setting out procedures when questioning or detaining someone
- a special regime for young persons between 16 and 18 years of age
- a requirement for the humane treatment of the subject of a warrant
- criminal offences for officials who breach safeguards set out in the Act, and
- the ability of a subject of a warrant to contact the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman, or other relevant complaints body, at any time to make a complaint about ASIO or the AFP.