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Minister moves to extend detention powers

One of 14 men arrested during terrorism raids in Sydney in 2014. ASIO's detention powers were not used in this situation. Photo: Australian Federal Police


The Law Council of Australia has expressed concern about the COVID-19 situation being “used as an excuse” to extend controversial detention policies which are unrelated to the ongoing pandemic. 

The Law Council say the emergency COVID-19 powers have been used to extend the powers of the Australian Security Intelligence Organisation (ASIO) to detain people for up to seven days to question them in relation to terrorism. This is despite the government’s plan to repeal these powers.

“We appreciate that these are unprecedented times but given the extraordinary nature of ASIO’s detention powers they should not be further extended. We need to strike a balance between community safety and protecting individual freedoms,” Law Council President Pauline Wright said.

“Australians expect our security agencies to respond proportionately to terrorism threats and it’s time the Federal Government repeals these powers once and for all.”

The legislation gives ASIO the power to seek “questioning and detention warrants” which allow people to be held for up to a week without being charged. Detention warrants may be approved if a person is likely not to appear for questioning, alert someone involved in terrorism or tamper with evidence. So far these powers have not been used. 

None of Australia’s closest intelligence partners including the United States, United Kingdom, Canada and New Zealand have equivalent powers within their laws.

The law came into effect in 2003 and was subject to a sunset clause- meaning after a set amount of time the law would be repealed. The law, which had already been extended several times, was due to expire on the 7th of September this year. 

However, Minister for Home Affairs Peter Dutton has put forward a new legislative instrument to extend these powers for another six months. This is against the recommendations of Independent National Security Legislation Monitor (INSLM), the Hon Roger Gyles AO QC, who recommended in 2016 that the detention regime sunset without renewal.

Reviews by the Parliamentary Joint Committee on Intelligence and Security and the COAG review of counter-terrorism legislation also recommended the detention powers be repealed.

“It is a matter of concern to the Law Council that ASIO’s detention powers have once again been extended,” Ms. Wright said. 

“This is the second extension since the Government committed to letting the detention powers expire, and the third extension since former INSLM Gyles recommended that those powers should not be extended.”

Due to the imminent sunsetting of the old bill, in May this year a new bill called the “The Australian Security Intelligence Organisation Amendment Bill 2020” was introduced to the Australian Parliament. 

While the new bill includes many controversial additions, the current detention framework would be repealed and replaced with an “apprehension” framework. The changes will allow for persons of interest to be questioned, but will remove the department’s power to detain people before charges have been laid. 

Ms. Wright said given the government’s plan to repeal the powers in the new legislation there is “no credible justification for extending the detention warrant regime”. 

She said that the instrument put forward by the minister for Home Affairs could be disallowed through a parliamentary motion.

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