ICJ AUSTRALIA
GPO Box 173
Sydney NSW 2001
Australia
+61 (0)2 8249 3221
+61 (0)2 8249 3223
e info@ICJ-Aust.org.au
WWW.ICJ-AUST.ORG.AU
ICJ GENEVA
President
Professor Pedro Nikken
former President of the Inter-American Court
of Human Rights
Secretary-General
Wilder Tayler
Vice President
The Hon John Dowd AO QC
10 September 2012
Australian Commissioner
The Hon Justice Evatt AC
ICJ AUSTRALIA
Mr Bret Walker SC
Independent National Security Legislation Monitor
PO Box 6500
CANBERRA ACT 2600
NATIONAL SECTION
President
The Hon John Dowd AO QC
National Vice-President
The Hon Justice Bongiorno
Supreme Court of Victoria
Dear Mr Walker,
Chairperson
Steve Mark
Legal Services Commissioner, NSW
Submission on powers relating to questioning warrants and questioning
and detention warrants under the Australian Security Intelligence
Organisation Act 1979 (Cth) and control orders under the Criminal
Code Act 1995 (Cth)
Thank you for provising the International Commission of Jurists (Australia)
with the opportunity to make a submission in relation to the on the powers
relating to questioning warrants and questioning and detention warrants
under the Australian Security Intelligence Organisation Act 1979 (Cth) and
control orders and preventative detention orders under the Criminal Code
Act 1995 (Cth).
During times of crisis, governments are wont to capitilise on emotional
groundswells of public opinion in order expediently pass legislation which
would otherwise merit more careful deliberation. This is very often marked
by shifting demarcations between the respective roles of the judiciary and
the executive, and restrictions of civil liberties which would have been
unpalatable to the public in stabler times. Australian counter terrorism
The International Commission of Jurists, founded in Berlin in 1952, is an international non-governmental organisation with
consultative status to the United Nations, UNESCO, the Council of Europe, and the Organisation of African Unity.
Its headquarters are in Geneva, with autonomous national sections and affiliates around the world.
The Australian Section was founded in 1958 by the then Chief Justice of the High Court of Australia, Sir Owen Dixon, OM, GCMG
Secretary-General
Tahlia Gordon
STATE BRANCH PRESIDENTS
Australian Capital Territory
The Hon Jeffrey Miles AO
New South Wales
The Hon Judge O’Meally AM RFD
Northern Territory
Mr Colin McDonald QC
William Forster Chambers, NT
Queensland
The Hon Justice Atkinson
Supreme Court of Queensland
South Australia
The Hon Justice Bleby
Supreme Court of SA
Tasmania
The Hon Justice Blow OAM
Supreme Court of Tasmania
Victoria
The Hon Justice Lasry
Supreme Court of Victoria
Western Australia
The Hon Robert Nicholson AO
Administrative Appeals Tribunal
ICJ AUSTRALIA
legislation – in particular the creation of questioning warrants under the Australian Security
Intelligence Organisation Act 1979 (Cth), and control orders and detention warrants under the
Criminal Code Act 1995 (Cth) – constitutes one such example. It is the position of the International
Commission of Jurists, Australia that the counter-terrorism legislation represents a fundamental
miscalculation of the appropriate balance between legitimate concerns of national security, civil
liberties and the rule of law.
Questioning Warrants under the Australian Security Intelligence Organisation Act 1979 (Cth).
As has been noted on several occassions, the very definition of ‘terrorism’ which founds the basis
for the relevant powers is inherently broad, and therefore susceptible to be applied in an arbritrary
fashion. This lack of precision was inherited by the myriad legislative changes which reference
‘terrorism’ as a criminal offence. The power to authorise a warrant for the purposes of legislation
relies on the unnecessarily broad definition of ‘terrorist act’ found in s100.1 of the Criminal Code.
Under the Criminal Code, an act constitutes a ‘terrorist act’ if it ‘causes serious harm that is
physical to a person’, ‘causes serious damage to property’ or ‘seriously interferes with, seriously
disrupts or destroys, an electronic system’. The terrorist offences enumerated in the Code include,
inter alia, providing or receiving training connected with terrorist acts (s101.2), directing
organisations concerned with terrorist acts (s101.3), possessing things connected with terrorist acts
(s101.4), collecting or making documents likely to facilitate terrorist acts (s101.5), and other acts
done in preparation for, or planning, terrorist acts (s101.6)), for making declarations of proscribed
organisations (ss102.1 - 102.3), and offences in relation to proscribed organisations (viz. directing
the activities of a proscribed organisations, directly or indirectly receiving funds from or making
funds available to a proscribed organisation, membership of a proscribed organisation, providing
training to or training with a proscribed organisation, and assisting a proscribed organisation
(s102.4(1)(a) to (e))).
The definition of ‘terrorist’ act thus covers an anamolous range of activities but contains insufficient
qualification. There is evidently a danger that it will extend to such activities as public and political
protest and impromptu industrial action Moreover, because the provisions governing questioning
warrants in the Australian Security Intelligence Organisation Act 1979 (Cth) capture questioning
which is ‘in relation to’ a terrorism offence, the degree of necessary proximity to an actual terrorism
offence is unacceptably ambiguous, and lends itself to tenuous claims about the possibility of
possession of relevant knowledge. The scope of the words ‘in relation to’ is fundamentally unclear
and should be clarified.
The legislation further sets down inconsistent criteria for issuing warrants, rendering the threshold
for satisfaction uncertain. As the Independent National Security Monitor’s Report correctly noted,
under s34C, before the Minister can approve a request for a warrant, he or she must be satisfied that
alternative means of collecting the intelligence would be ineffective, and that “issuing the
warrant...will substantially assist the collection of intelligence that is important in relation to a
terrorism offence.” Under s34D, however, the ‘issuing authority’ need only be satisfied that there
are ‘reasonable grounds’ for believing the warrant will procure information ‘that is important in
relation to a terrorism offence.’ The latter criterion gives leeway for an impermissible amount of
discretion given the significant qualification of civil rights that the legislation allows. Since the
extensive secrecy provisions mean that neither the detainee nor the public have access to the
reasons for the decision, we cannot assume that the more stringent standard is, in fact, the one that
is used in practice. More clarity – and transparency – within the legislation is needed in order for
the law to gain legitimacy.
The National Security Monitor’s report enumerated a number of procedural safeguards in place to
guard against abuse of discretionary powers in relation to questioning warrants. These included the
threshold requirements to be addressed by the Director-General, The Minister and the issuing
2 of 4
ICJ AUSTRALIA
authority; the involvement of the Inspector General of Intelligence and Security who has a right of
presence and a right to raise concerns; and, the broad discretion of the prescribed authority – a
retired judicial officer in most cases. However, these procedural safeguards do little to enhance the
transparency of the process outside of ASIO beauracracy. The increase of discretionary power,
indeed, does little to quell well-founded qualms about the inherently intrusive nature of the
legislation. True, in requesting a warrant, the Director-General must set out the ‘facts and other
grounds’ upon which he or she considers the warrant necessary. The issuing authority must ‘take
account of those facts when deciding whether to issue the warrant.’ However, the extraordinarily
extensive secrecy provisions in Division 3 would appear, prima facie, to deem the disclosure of
such reasons a federal offence. Moreover, the extensive exemptions for documents affecting
national security and defence under Freedom of Information legislation make it unlikely that this
would be a legitimate avenue to pursue for detainees or interested parties seeking such information.
Ease of access to reasons for administrative decisions is at the cornerstone of transparent
governance. The fact remains that there is little real evidence upon which to assess the true
effectiveness of the safeguards put in place.
Indeed, the secrecy provisions, in applying to all ‘operational information’ goes well beyond what is
reasonably necessary to achieve the purpose of the legislation, severely restricting freedom of
political communication, political discourse, and scrutiny of the practices of government. S34B sets
out a range of offences for ASIO officers and issuing authorities, however given the restrictions on
access to legal advice, it remains highly likely that detainees will remain unaware of their legal
rights in relation to these safeguards. Moreover, given the secrecy provisions enumerated above, it
is doubtful that a detainee would be able to establish a case for mistreatment to found a
contravention offence under s34NB.
Involuntary detention is a serious imposition on the right to life and liberty, and can be tolerated
only where a careful balance is struck between national security, Australia’s human rights
obligations, and the rule of law. The time limits established, allowing questioning for up to a period
of up to 24 hours and detention for up to 7 days, are extreme given that the detainee may neither be
the suspect of a crime, nor have even a very close connexion with the commisison of a crime. The
legislation includes provisions for strip searches, and secrecy provisions which prohibit former
detainees from revealing any details of their experiences for two years after their detention. The
overturning of the right to silence by the abrogation of privilege is, in itself, cause for concern,
notwithstanding the immunities protection. The lack of proportionality in the ASIO questioning
and detention regime is perhaps best illustrated by the fact that ASIO may detain a non-suspect for
questioning for up to 20 hours longer than the Australian Federal Police may detain a terrorism
suspect pre-charge. The provisions in the ASIO legislation are so intrusive and severe as to perhaps
be classed as punitive in character, despite a purposive reading of the legislation; see Chu Kheng
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176. CLR 1, 27, per
Brennan, Deane and Dawson JJ: “[P]utting to one side the exceptional cases to which reference is
made below, the involuntary detention of a citizen in custody by the State is penal or punitive in
character.”
Under s34, a person would only be entitled to legal advice where the warrant expressly allowed it.
Even where a lawyer is present, s34U sets down significant restrictions on the lawyer’s capacity to
provide effective advice. A lawyer may intervene only to “request clarification of an ambiguous
question” and may be removed if the prescribed authority considers their presence ‘unduly’
disruptive. This can be considered a gross violation of due process – access to independent legal
counsel is fundamental to the rule of law in a modern liberal democracy.
Finally, warrants for questioning and detention can be issued in relation to a person aged between
16 and 18 years if it is likely that he or she will commit, is committing, or has committed a
3 of 4
ICJ AUSTRALIA
terrorism offence. However, these provisions arguably still contravene the United Nations
Convention on the Rights of the Child, to which Australia is a party.
The Consitutionality of Control Orders and Preventative Detention Orders under the Criminal Code
Act 1995 (Cth)
There is substantial doubt over the constitutional validity of control orders and preventative
detention orders. No existing authorities support the involvement of Chapter III constitutional
courts in making orders purely for the protection of the community. Rather, the unclosed category
of ‘exceptional cases’ in the common law suggests that detention for a non-punitive purpose may in
special circumstances be ordered by the executive without offending the separation of judicial from
executive power. Moreover, where a protective function has been validly conferred upon the
judiciary it has been at the State level (see Thomas v Mowbray (2007) 27 ALR 194, 20), and a
majority of the High Court has therefore been able to abstain from direct consideration of whether
such a power is judicial per se. Notwithstanding this, the International Commission of Jurists,
Australia suggests that control orders and preventative detention orders embody a fundamental –
and detrimental – shift from the conception of judicial power as a power to create restriction’s upon
an individual’s freedom based on past wrongdoing. Post R v Kirby; Ex parte Boilermakers’ Society
of Australia (1956) 94 CLR 254, jurisprudence has constructed a clear division between judicial and
non-judicial power, precise expression of which continues to elude the High Court. However,
empowering the courts to impose control orders and preventative detention orders diminishes the
integrity of the courts as institutions of justice and further perverts the separation of powers doctrine
upon which our democracy is founded.
Yours sincerely,
The Hon John Dowd AO QC
PRESIDENT
ICJ Australia
4 of 4