Appendix C– History of the legislation

Parliamentary Joint Committee on ASIO, ASIS and DSD

Committee activities (inquiries and reports)

ASIO’s Questioning and Detention Powers

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Appendix C– History of the legislation  

The ASIO Legislation Amendment (Terrorism) Bill 2002 was part of a suite of anti-terrorism legislation introduced into the Parliament in March 2002. 

The following summarises the purpose of the legislation, its passage through both Houses of the Parliament with a particular focus on the reviews carried out by Parliamentary Committees, and some of the more contentious aspects of the proposed legislation.

Purpose of the legislation

The purpose of the ASIO Legislation Amendment (Terrorism) Bill 2002 was to amend the ASIO Act by expanding the special powers available to ASIO to collect intelligence relating to the threat of terrorism. The Attorney-General, in his second reading speech, stated:

Importantly, we have introduced a range of new terrorism offences. In order to ensure that any perpetrators of these serious offences are discovered and prosecuted, preferably before they perpetrate their crimes, it is necessary to enhance the powers of ASIO to investigate terrorism offences.1

Specifically, the Bill proposed:

The Bill was referred to the PJCAAD for review and an advisory report. In conjunction with a suite of other counter-terrorism legislation, the Bill was also referred to the Senate Legal and Constitutional Legislation Committee. Both Committees were given until 3 May 2002 to report.

The proposed legislation, in its original form, provided for the questioning of persons without legal representation and with the right to silence removed. It provided for the incommunicado detention of persons without charge for up to 48 hours, and, by allowing for warrants to be repeatedly sought and issued, provided for the possibility of indefinite detention.

Passage of the legislation through both Houses of Parliament

PJCAAD Review June 2002

The ASIO Legislation Amendment (Terrorism) Bill 2002 was the most contentious review undertaken by the PJCAAD with over 150 submissions being received from ASIO, other government departments and agencies, non-government organisations and interested individuals. The Committee had a private briefing from ASIO and conducted public hearings in Sydney and Melbourne. Most of the non-government witnesses were opposed to the introduction of the legislation or critical of various aspects of it.

On 14 May 2002, the House of Representatives and Senate resolved that the time for the PJCAAD to present its report on Bill be extended to 11 June 2002. The Committee reported to the Parliament on 5 June 2002.

The PJCAAD report entitled An Advisory Report on the Australian Security Intelligence Organisation Amendment (Terrorism) Bill 2002, made recommendations in relation to three main areas:

In summary, the Committee’s proposals were:

Issue of warrants,

The detention regime

Accountability measures

The text of the PJCAAD report can be found on the Committee’s website at:
http://www.aph.gov.au/house/committee/pjcaad/terrorbill2002/terrorindex.htm.

Senate Legal and Constitutional Legislation Committee Reviews

The Senate Legal and Constitutional Legislation Committee reported on 18 June 2002. The Senate Committee made a number of additional observations on certain issues dealing with legal and constitutional matters. These issues included:

Noting that the Government had not yet responded to the Joint Committee’s report, the Senate Committee made the recommendation that if the Government accepted all the Joint Committee’s recommendations, the Bill as amended should proceed without further review.

The text of the Senate Committee’s June report can be found at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/2002-04/asio/report/report.pdf.

The Government did not accept all of the Joint Committees recommendations. Subsequently, the Senate Legal and Constitutional Legislation Committee completed a further and more detailed report which was tabled in the Senate in December 2002.

In this second report the Senate Committee reinforced the JCAAD recommendations and extended them, inter alia recommending that:

Issue of warrants

Detention regime :

Accountability measures

The text of the Senate Committee’s June report can be found at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/2002-04/asio_2/report/contents.htm.

Final passage of the proposed legislation.

In December 2002, the Senate amended the Bill to reflect the recommendations of the PJCAAD and the Senate Committee. The Government accepted many of the recommendations, made by the PJCAAD and the Senate Committee with the notable exception of those relating to:

Following the tabling of the Senate Legal and Constitutional Legislation Committee report, the Bill was the subject, along with other unrelated matters, of long debate in both Houses on the 12-13 December 2002. In the absence of agreement between the House of Representatives and the Senate on various proposed amendments at 11.42 am on the 13 December the Bill was laid aside by the House of Representatives.

Subsequently, in March 2003, an extensively amended Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No.2] was introduced into the House of Representatives. (Amendments included, the application of the legislation to minors between 16 and 18 only, a three-year sunset clause, and an amendment to the Intelligence Services Act empowering the PJCAAD to review the questioning and detention provisions before their expiry). After considerable debate and little amendment from the previously proposed Senate amendments, the Bill finally passed both Houses in June 2003 and commenced operation after Royal Assent on 23 July 2003.

December 2003 amendments

Less than four months after the commencement of the ASIO Legislation Amendment (Terrorism) Act 2003, the newly appointed Attorney-General, the Hon Philip Ruddock MP, announced in early November 2003, that he had asked for a report on what he considered to be the ‘shortcomings’ of the legislation.2

On 27 November 2003, the Government introduced the Australian Security Intelligence Organisation Legislation Amendment Bill 2003. The purpose of this legislation was to amend the new Division 3, Part 111 of the ASIO Act to:

After comparatively brief debate and passage through the House of Representatives and the Senate, the ASIO Legislation Amendment Act 2003 received Royal Assent on 17 December 2003 and commenced on the following day.


Footnotes

1 The Hon Daryl Williams MP, Second Reading Speech, ASIO Legislation Amendment (Terrorism) Bill 2002, House of Representatives Hansard, 21 March 2002 , p. 1930. Back
2 Comments of the Attorney-General on the Nine Network ‘Sunday’ program, 2 November 2003 , http://sunday.ninemsn.com.au/sunday/political_transcripts/article_1434.asp?s=1 Back

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