Friday, 27 June 2003
the Australian Security Intelligence Organisation Legislation Amendment
Last night, the Commonwealth Parliament passed the
Australian Security Intelligence Organisation Legislation Amendment (Terrorism)
Act (the ASIO Act).
The Commission made a submission to the Parliamentary
Joint Committee on ASIO, ASIS and DSD regarding the original form of the
Bill which preceded that Act. The Commission’s submission appears
on its website at www.humanrights.gov.au/human_rights/terrorism_sub/asio_asis_dsd.html.
The Commission's concern in making that submission was
to seek to ensure that an appropriate balance was struck between the implementation
of measures for the prevention of terrorism and the protection of human
There is no doubt that the ASIO Act represents a more
appropriate balance between those matters than the original form of the
Bill. The Commission notes, by way of example, that the amendments agreed
upon by the Opposition and Government better protect the human rights
of children, include limitations on the periods during which a person
can be questioned, and provide for access to a legal representative.
However, the Commission remains concerned by aspects
of the final outcome of the balancing process.
In particular, the ASIO Act applies to minors aged between
16 and 18. This is contrary to the recommendations made by the Parliamentary
Joint Committee on ASIO, ASIS and DSD and the Senate Legal and Constitutional
Committee. Both Government and Opposition members of those committees
recommended that the provisions of the then Bill not apply to anyone under
the age of 18.
That feature of the ASIO Act also raises issues of Australia’s
compliance with the Convention on the Rights of the Child, which
requires that detention of a child (meaning a person under the age of
18) should be used only as a measure of last resort and for the shortest
appropriate period of time. Those obligations apply even to children convicted
of serious crimes. They apply with more force where, as is the case under
the ASIO Act, one is dealing with the detention of unconvicted children,
who need not be charged with any offence and may ultimately be found to
be innocent of any wrongdoing.
It is also relevant to note that the ASIO Act provides
for significantly greater periods of detention than the Crimes Act
1914 (Cth), which already makes careful and measured provision for
the detention and questioning of children arrested on suspicion of having
committed a crime. Under the ASIO Act a person aged between 16 and 18
may be detained for periods of up to seven days under any one warrant.
In contrast, the Crimes Act 1914 (Cth) provides for a maximum
of two hours detention (not including time taken for matters such as consulting
legal representatives of people aged under 18 years for the purposes of
The Commission will continue to monitor the new provisions
and their implementation, subject to constraints of secrecy and legislative
limitations on the Commission’s functions in respect of intelligence
agencies. The Commission also notes that the detention provisions of the
ASIO Act are subject to a sunset clause, as recommended in the Commission’s
submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD.
The Commission hopes that this may provide an opportunity for further
consideration of the balance between security concerns and human rights.
Media Contact: Paul Oliver (02) 9284 9880 or
0408 469 347
updated 27 June 2003.