Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.

 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate


On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.


RSS 2.0

ASIO bill has passed the Senate but may not pass the constitutional test

By George Williams - posted Wednesday, 25 June 2003

Federal Attorney-General Daryl Williams has come a long way on the ASIO bill. He has accepted in substance most of the Opposition amendments and for the first time the bill is in the ballpark of improving the capacity of ASIO to gather intelligence about terrorism without unduly undermining our democratic freedoms.

However, further amendments should have been made before the bill is passed this week by the Senate. Indeed, unless this occurs, the bill may be unconstitutional.

The ASIO bill was introduced in March 2002, six months after the September 11 attacks. It provided that Australians who were not terrorist suspects could be detained for rolling two-day periods that could be extended indefinitely. While in detention, a person could be strip-searched and denied access to family members and even to legal advice. A failure to answer questions could also lead to a five-year jail term.


The proposal was unprecedented in its attack on basic rights and went beyond any law in Britain, Canada or even the United States.

The bill has since been the subject of two major parliamentary inquires, many amendments, and protracted and sometimes bitter negotiations. However, even as amended to include a three-year sunset clause, it remained flawed in applying to children as young as 14, denying detainees access to a lawyer of their choice, and in focusing on the lengthy detention of non-suspects rather than a regime for their questioning.

At the close of Parliament last December, it seemed that agreement was out of reach and that the bill could become a trigger for a double-dissolution election.

The breakthrough came when the Attorney-General announced a shift on each of the main sticking points. First, the bill now will apply only to those aged 16 and over. Although it would be better if the bill applied only to adults, the detention of a 16 or 17-year-old is a far cry from the regime applying even to 10-year-olds, as was originally proposed.

Second, detainees will have access to a lawyer of their choice. There will also no longer be an initial two-day period during which a person might be denied legal representation. ASIO may still request that access be denied to a particular lawyer, but only where the lawyer poses a security risk. This represents a fair and sensible balance.

Finally, a person now can only be questioned for a maximum of 24 hours in eight-hour blocks. This is not far from the Opposition's position last December of a questioning regime limited to 20 hours.


I have reservations about the length of questioning under both proposals, especially when suspects can be questioned by police under federal law for only 12 hours before being charged. However, both shift the focus away from the detention of non-suspects to their questioning. Compulsory questioning regimes are not unknown in other parts of the law, such as before royal commissions or in regard to corporate crime.

A questioning regime can be justified in the gathering of intelligence about terrorism. However, when the questioning stops, a person must be free to go. Unfortunately, the government wants ASIO to be able to have a person held for a week. Yet, if a person is questioned for eight hours a day over three days, what will happen over the remaining four?

The bill also leaves open the possibility of indefinite detention through a person being held under rolling week-long warrants. This is even worse than the original proposal for rolling two-day detention.

  1. Pages:
  2. Page 1
  3. 2
  4. All

This article was first published in The Age on 24 June 2003.

Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

Share this:
reddit this reddit thisbookmark with Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Other articles by this Author

All articles by George Williams
Related Links
Gilbert & Tobin Centre of Public Law
Photo of George Williams
Article Tools
Comment Comments
Print Printable version
Subscribe Subscribe
Email Email a friend

About Us Search Discuss Feedback Legals Privacy