Statement on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act
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 rights.
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 criminal investigations).
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