Independent National Security Legislation Monitor’s (INSLM) inquiry into certain questioning and detention powers

The Councils for Civil Liberties (“CCLs”)[1] have made a joint submission to the Independent National Security Legislation Monitor’s (INSLM) inquiry into certain questioning and detention powers (CQDPs) in relation to terrorism. Specifically, the review encompasses:

1. The Australian Security Intelligence Organisation (ASIO), under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth) (questioning and questioning/detention warrants);
2. The Australian Federal Police (AFP), under Part IC of the Crimes Act 1914 (Cth) (investigation of Commonwealth offences, including detention powers); and
3. The Australian Crime Commission (ACC), under the Australian Crime Commission Act 2002 (Cth) (coercive examination powers used in relation to terrorism).[2]

Consistent with our previously argued views, the CCLs maintain their opposition to detention warrants and recommend they be repealed.

Accepting that questioning warrants will be retained, the CCLs argue that the criteria for their issue should be tightened, that persons charged, suspected, or under investigation for a criminal offence should not be subject to coercive questioning, that further safeguards should be in place to restrict the potential use of answers given under a questioning warrant, and that there is a need to  provide more effective access to legal advice and representation for persons subject to such warrants.

In relation to the AFP powers under the Crimes Act 1914 (Cth), the CCLs adopt the position taken by the Law Council of Australia in its submission.

In relation to coercive questioning by the ACC, the CCLs recommend that persons charged, suspected, or under investigation for a criminal offence should not be subject to coercive questioning.

[1] New South Wales Council for Civil Liberties, Liberty Victoria, Queensland Council for Civil Liberties, South Australia Council for Civil Liberties, Australian Council for Civil Liberties

[2] INSLM site http://www.inslm.gov.au/current-review-work#review1. The TOR explicitly exclude ‘powers contained in the Criminal Code (including preventative detention orders) or in Division 3A of Part 1AA of the Crimes Act 1914 (stop, search and seizure regime relating to Commonwealth places), although the existence of these powers will be taken into account’.