The New South Wales Council for Civil Liberties considers that the powers contained in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth) (Division 3) disproportionately infringe on fundamental civil liberties, create a serious threat to the rule of law in Australia, and moreover, no longer have the utility which precipitated their creation. The NSWCCL submits that Division 3 should be repealed in full.
The Division 3 powers, when introduced, were cast as a transient response to an exceptional set of events, as a response to the perceived terrorism threat following the 9/11 attacks. However, more than two decades on, and what were once powers of unprecedented and exceptional reach, are now a permanent feature of Australia’s legal landscape. Given the reduction in the threat of terrorism, coupled with the fact that Division 3 powers have rarely been utilised, the powers given to Australian Security Intelligence Organisation (ASIO) under Division 3 are now well beyond the scope of what is reasonably necessary. They overstep intelligence collection and veer into investigatory powers that are properly the purvey of law enforcement agencies.
In addition to the lack of utility we maintain there are also specific concerns with Division 3, such as the abrogation of the common law right not to self-incriminate and breaches of Australia's international obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. In particular, the questioning warrants which may be granted under the ASIO Act allow a person to be questioned in eight-hour blocks for up to a maximum of 24 hours or be detained for up to a week for questioning. These questioning warrants may be issued against non-suspects, including family members, journalists, children between the ages of 16 and 18 and innocent bystanders. The NSWCCL submits these powers should not be permitted in respect of non-suspects, journalists, innocent bystanders and especially, in relation to children. Further, the right to hold persons for questioning should be limited. A fundamental right under criminal law is that persons should not be held for questioning without charge except for a limited period, usually some hours without a court order.
The NSWCCL holds a strong view that in no circumstances should children be subject to any apprehension powers. In particular, the apprehension powers for minors aged 14 years or over as part of the issuing of questioning warrants under Division 3 should be completely repealed. The NSWCCL submits that the apprehension of minors, who are subject to the same powers and conditions as adults with only minor modifications, is a serious violation of human rights and a disproportionate measure that is not justified by any evidence of necessity or effectiveness.
In the absence of a national human rights charter, it is important that the Government provide a robust justification for any encroachment on civil liberties. Previous justifications for these powers have been superficial and tokenistic, and having rarely gone further than the rhetorical assertion that the limitations on civil liberties are necessary, reasonable, and proportionate. The NSWCCL submits that this attempt at justification is inadequate and that no persuasive evidence for retaining the Division 3 powers has been provided. The purported utility of the Division 3 powers when they were first conceived has not come to bear. In circumstances where there is deficient justification and negligible utility to Division 3, the disproportionate encroachment upon civil liberties and fundamental rights are unwarranted.
A complete repeal would allow for the adoption of measures that strike a more appropriate balance between national security and the preservation of individual rights and liberties. The failure to repeal Division 3, risks undermining the foundations of Australia's democratic society and its commitment to upholding international human rights standards. It would also leave Australia as the only country in the Five Eyes alliance to permit compulsory questioning powers. This is despite having experienced fewer terrorist attacks than some of the other countries in the Five Eyes alliance, particularly the US, Canada, and the UK. There are no justifiable reasons to retain Division 3, the NSWCCL therefore advocates for a complete repeal.
Read our submission here.