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

The bill should provide for the questioning of people with information about terrorism and no more. To seek further powers of detention could jeopardise the constitutionality of the legislation. The separation of powers may be infringed because it is the role of the courts and not government to order a person's detention beyond the time needed for their questioning.

What may appear to be a shield against terrorism could prove flimsy indeed if struck down by the High Court.

Some believe that the ASIO bill should not be passed in any form because the civil liberties concerns cannot be overcome. I have never held this view. After September 11 and the Bali attack, national laws are needed to better protect the Australian people and to fulfil our international obligations to fight terrorism.

However, new laws must strike the right balance between our national security and important public values and fundamental democratic rights.

While it must make further amendments to the ASIO bill, the government is nearing this goal.