The Councils for Civil Liberties (NSWCCL, QCCL, Liberty Victoria) have come together to make this joint submission in opposition to the proposal to make permanent division 3 of Part III to the Australian Security Intelligence Organisation Act 1979 (“the Act”). We submit that division 3 of Part III should be repealed, or allowed to lapse when its sunset date is reached, in accordance with the recommendations of the INSLM in 2016.
The submission will proceed through the following issues in broadly the following terms:
a. that Questioning Warrants (“QWs”), whether or not they require the arrest and
immediate appearance of a subject, constitute a form of administrative detention
without suspicion or conviction of criminal guilt. This is unacceptable in a
democratic society subject to the rule of law. Of particular concern is that children
as young as 14 can be subject to these warrants;
b. that coercive questioning and the permitted uses of derivative material, including
its disclosure to an actual or potential prosecutor of the subject, seriously
diminishes the right of accused persons to a fair trial. Read in the context the
division as a whole, the provisions on derivative use tend to characterise ASIO as
a secret police force, rather than an intelligence gathering agency; and
c. linked to this, the qualifications on the right of an accused to legal representation
and advice, violate the subject’s right to a fair trial and place the subject on an
unequal footing with the state, in circumstances where the subject may suffer
serious penal sanctions as a result of the interrogation.
