Like other investigative agencies, legislation grants ASIO powers to collect intelligence under warrant. The criteria for warrants are strictly prescribed and complemented by the Attorney-General’s Guidelines. Warrants are available, for a limited duration, to use listening and tracking devices, access computers remotely, enter and search premises and examine postal articles. There are also questioning and detention warrants, subject to very stringent criteria, for use in serious counter-terrorism matters. ASIO must seek agreement from the Attorney-General satisfying tests set out in the relevant legislation before a warrant will be issued. The Attorney-General’s approval is also sought before warrants can be renewed. ASIO’s warranted activities are regularly scrutinised by the Inspector-General of Intelligence and Security.
A questioning warrant can be obtained under ASIO’s special powers relating to terrorism offences (Part 3 Division III, Australian Security Intelligence Organisation Act 1979). It obliges a person to appear before a prescribed authority for questioning under the warrant immediately after the person is notified of the issue of the warrant, or at a time specified in the warrant. A person served with a warrant will be provided with a detailed explanation of the basis for questioning and their rights.
Questioning and detention warrants can only be sought by ASIO for the purpose of investigating a terrorism offence where other means of investigation would be ineffective. To date, ASIO has not used the power to detain.
Who can be present during questioning?
Questioning is supervised by a prescribed authority (a former or serving Judge of a superior court or the President or Deputy President of the Administrative Appeals Tribunal). The Inspector-General of Intelligence and Security (IGIS) or an Australian Public Service employee assisting the IGIS may also be present. All interviews are video-recorded. Ordinarily, a lawyer may attend to represent the person being questioned.
For how long can a person be questioned?
ASIO questioning is conducted for the minimum amount of time necessary in order to fulfil the objectives outlined in the warrant. ASIO is able to question people under warrant for a maximum of 24 hours in eight-hour blocks. Where an interpreter is required, a person can be questioned for a maximum of 48 hours, subject to review by a prescribed authority.
In what circumstances can a person be detained?
In some limited circumstances, a person can be detained for the purpose of questioning. Detention can be for no longer than necessary, up to a maximum of seven days, if the Attorney-General and external Issuing Authority (Federal Magistrate or Judge) are satisfied of the need for the person to be brought into custody. ASIO does not have the power to arrest people – this can only be done by a police officer. A person who is detained is not charged with a crime, but is subject to questioning and investigation during that time. To date, ASIO has not used the power to detain.
Do these powers apply to persons under 16 years?
These powers do not apply to people under the age of 16. Those who are over 16, but under 18, can be questioned in the presence of a parent, guardian or appropriate other person. To date, ASIO has not used the power to detain.
Do people have to answer ASIO’s questions?
Under a questioning warrant persons are obliged to answer questions and can be charged if they refuse to answer or provide misleading answers.
Who can authorise a detention warrant?
The first step in the authorisation process is the consent of the Attorney-General allowing ASIO to request such a warrant. Once this is obtained, an Issuing Authority (Federal Magistrate or Federal Judge) is responsible for issuing a warrant to detain a person. The police would be responsible for managing the detention under warrant, not ASIO.
What is the difference between the power of arrest and questioning and detention under an ASIO warrant?
The power of arrest is an executive power conferred on police officers to take individuals into custody in certain circumstances and does not always require the existence of a warrant. For example, police usually arrest a person for committing an offence, such as burglary, and the purpose of the arrest is to put the person before a court to have the charges heard.
The special power to detain someone under the ASIO Act is only authorised under a warrant signed by an issuing authority. An issuing authority is a judge or magistrate who has been appointed in writing by the Attorney-General. The purpose of a questioning and detention warrant is not to prosecute the person detained, but to obtain intelligence. ASIO officers do not have the power of arrest.