15.91 Some provisions in criminal and national security laws deny concerned parties the right to a hearing or to access evidence against them. These provisions include the following:
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 29(3)(c), 31, 38L and 38I(3) set out the closed hearing requirements— including closed hearing certificates—that apply to certain federal criminal proceedings and civil proceedings respectively, whereby a court may exclude a defendant’s legal representative on the grounds that a disclosure of information may lead to a national security risk.
ASIO Act s 35 empowers ASIO to issue an adverse security assessment against an Australian citizen in order to recommend administrative action be taken against an individual’s interest, such as cancelling their passport. An adverse assessment of a citizen may be challenged in the Administrative Appeals Tribunal under s 54, but the Attorney-General may issue public interest certificates under s 38(2) that require any sensitive national security information to be withheld from the applicant.
ASIO Act s 34ZQ(4)(b) provides that the lawyer of a person subject to a questioning or detention warrant under ASIO’s special powers regime is only entitled to view the warrant conditions and is not therefore able to view any of the supporting evidence.
ASIO’s powers under questioning and detention warrants
15.92 Several stakeholders raised concerns about the operation of s 34ZQ(4)(b) of the ASIO Act on the grounds that it limits an individual’s rights to hear the evidence supplied in a warrant for their questioning or detention.
15.93 The Human Rights Law Centre submitted that, in practice, this provision means that the person who is the subject of a warrant is not informed of the reasons put forward for the issue of the warrant. The Centre went on to argue that the denial of procedural fairness posed by this provision goes ‘far beyond what is necessary’.
15.94 The Law Council raised general objections to pt III div 3 of the ASIO Act, arguing that
the secrecy surrounding detention under an ASIO warrant makes it very difficult for a detained person to both know and challenge the lawfulness of detention.
15.95 In assessing the effects of this regime on individual rights and freedoms, the Gilbert and Tobin Centre for Public Law argued that
The infringement of these rights and privileges is unjustified not only on principled grounds, but also because the provisions appear to have little practical benefit in preventing terrorism. After repeatedly questioning government agencies as to why ASIO’s warrant powers are necessary, the Independent National Security Legislation Monitor (INSLM) was presented with ‘[n]o scenario, hypothetical or real … that would require the use of a QDW [questioning and detention warrant] where no other alternatives existed to achieve the same purpose’. He recommended that ASIO’s questioning power be retained, but its detention power be repealed.
15.96 The Independent National Security Monitor (INSLM) has recommended the repeal of questioning and detention warrants. The INSLM found that they are an unjustifiable intrusion on personal liberty and either violate, or are dangerously close to violating, the right to freedom from arbitrary detention under art 9(1) of the ICCPR.
Gilbert and Tobin Centre of Public Law, Submission 22; UNSW Law Society, Submission 19.
Law Council of Australia, Submission 75; Human Rights Law Centre, Submission 39; Gilbert and Tobin Centre of Public Law, Submission 22.
Human Rights Law Centre, Submission 39.
Law Council of Australia, Submission 75.
Gilbert and Tobin Centre of Public Law, Submission 22. See also Independent National Security Legislation Monitor, Australian Government, Declassified Annual Report (2012) 105.
Independent National Security Legislation Monitor, Australian Government, Declassified Annual Report (2012) 106.