Certain Questioning and Detention Powers in Relation to Terrorism

The initial investigation period available pursuant to subdiv B of pt IC of the Crimes Act 1914 (Cth) be increased to eight hours (four hours if the person appears to be under 18 years of age, or an Aboriginal person or a Torres Strait Islander).

There should be a reasonable outer limit to the period for detention without charge, regardless of dead time pursuant to pt IC of the Crimes Act 1914 (Cth) — a period for investigation should not be an indefinite de facto preventative detention power. In my view, 10 days is that outer limit.

The procedures in and pertaining to making applications under subdiv B of pt IC of the Crimes Act 1914 (Cth) should be revised to ensure they are up-to-date with electronic capability.

In the absence of a compelling justification, s 23DB(9) of the Crimes Act 1914 (Cth) and related provisions ought to be repealed. If justified, the section should be redrafted to clearly indicate the basis on which it should be exercised, and distinguished from s 23DF of the Crimes Act 1914 (Cth) and related provisions.

The substance of the application of pt IC of the Crimes Act 1914 (Cth) to terrorism cases should be reviewed together with control orders and preventative detention orders when those powers are reviewed pursuant to the Independent National Security Legislation Monitor Act 2010 (Cth). A part of that review should be to see how many arrests with periods of extended detention do not lead to a charge of a terrorism offence or lead to a charge that is dropped before trial. This will assist in judging whether the power is being misused. Another part should be to review the natural justice issue referred to in para 7. 32 of this report.

The adoption of an alternative approach to investigative detention based on the New South Wales model should be kept under active consideration.

Subdivision C of div 3 of pt III of the Australian Security Intelligence Organisation Act 1979 (Cth) should be repealed or cease when the sunset date is reached. Successive extensions of the sunset date since 2006 should end.

The balance of div 3 of pt III of the Australian Security Intelligence Organisation Act 1979 (Cth) should either be repealed, or not extended beyond the present sunset date, and should be replaced by a questioning power following the model of coercive questioning available under the Australian Crime Commission Act 2002 (Cth) as closely as possible. A sunset clause should not be necessary for such a questioning power.

In the context of recommendation 8, the definition of a ‘terrorism offence’ in the Australian Security Intelligence Organisation Act 1979 (Cth) should be amended to include the foreign incursion and recruitment offences in pt 5.5 of the Commonwealth Criminal Code and the terrorism financing offences in the Charter of the United Nations Act 1945 (Cth), and the phrase ‘important in relation to a terrorism offence’ should be amended to read ‘important in relation to an actual or threatened terrorism offence’ wherever appearing.

A protocol should be developed between the Australian Security Intelligence Organisation, the Australian Criminal Intelligence Commission, and any relevant state body which shares information obtained by compulsory questioning, to avoid oppression by successive examinations. This protocol should then be approved and given appropriate status by the Attorney–General. The Independent National Security Legislation Monitor and other supervisory bodies such as the Inspector–General of Intelligence and Security and the Commonwealth Ombudsman should be able to monitor how this protocol operates in practice.