Detaining questions or compromising constitutionality?: The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth)

The extensively amended Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) (‘ASIO (Terrorism) Act 2003’), having first been introduced into Parliament in March 2002, was eventually passed after a Government ‘compromise’ aimed at achieving Opposition support. The final version of the legislation is remarkable not only because the Commonwealth Parliament has enacted a secret, renewable,incommunicado regime of detention and questioning of persons not suspected of any terrorism offence (for the purposes of the gathering of intelligence), but also because significant questions of constitutionality persist following the June 2003 amendments made to the Bill.

This article commences with a discussion of several contextual matters providing important background for an examination of the Act’s constitutionality. These include a reticence in articulating and defending constitutional issues in the protracted debate around the legislation – significant because the Act overturns familiar civil rights standards and invites constitutional challenge. Fresh constitutional issues arise in relation to the extended nature of the powers given to the Australian Security Intelligence Organisation (‘ASIO’) following the Government’s ‘compromise’ regarding the original Bill, and the influential role of the High Court in assessing the purposive aspect common to the constitutional powers said to support the legislation.

An analysis is then made of the jurisprudence relating to the constitutional heads of power seen as providing the legal foundation for the detention powers enshrined in the ASIO (Terrorism) Act 2003. Whilst it is most likely that the Commonwealth Constitution does furnish power to support measures for interrogative counter-terrorism intelligence-gathering, the detention provisions in the present scheme, and their public justifications, are demonstrated as being open to question in their relationship with the defence, external affairs, implied protective and incidental powers.

The further issue of the legislation’s interaction with Chapter III principles, which ordinarily reserve to the judicial process the power to order detention, is then explored. The increased relevance of Chapter III, following key changes in the final version of the legislation, is highlighted, and Commonwealth assertions – that the tests of purpose both in characterising laws and in characterising judicial power and punitive detention should be significantly contracted – are examined. A detailed identification and critique of relevant detention provisions in light of the Chapter III prohibitions concludes the article.

The application of the ASIO (Terrorism) Act 2003 to non-suspects is as much of practical significance as symbolic and normative. The removal of the need to demonstrate culpability or involvement in terrorism offences as a precondition for the authorisation of a warrant marks a significant transformation in relations between the citizen and the state.2 It moves substantially towards more authoritarian state characteristics, particularly in the removal or diminution of procedural rights and protections. The breaching of the non-suspect threshold is likely to be exponential and may facilitate further claims to erosions of democratic rights, particularly as the nature of the terrorist threat is unpredictable, unknown, inevitable and indefinite.