The Australian Security Intelligence Organisation (ASIO) gathers information and produces intelligence so it can warn the government about activities or situations that might endanger Australia’s national security.
ASIO’s powers are found in the Australian Security Intelligence Organisation Act 1979. The Attorney-General is responsible for issuing warrants under the Act.
ASIO questioning and detention powers
ASIO can question people to gather information for preventing terrorist attacks. In limited circumstances, a person can be detained for this purpose.
ASIO must have a warrant issued by a federal judge or federal magistrate before it can use its questioning and detention powers. Before ASIO can request a warrant the Attorney-General must give consent.
Questioning is done in the presence of an independent retired judge. This person’s role is to explain the process and oversee and control the questioning process.
There are two types of warrants:
- for questioning a person (without detention)
- to detain a person for questioning.
A person can be questioned for a maximum of 24 hours, or 48 hours if they need an interpreter.
A person can be detained for a maximum of seven continuous days, but must be released at an earlier time if the questioning has finished. Children under 16 years old cannot be detained or questioned.
A person who is questioned or detained by ASIO has the right to:
- be treated humanely and not be subjected to cruel, inhuman or degrading treatment
- have access to a lawyer
- make a complaint at any time about ASIO or the Australian Federal Police to the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman
- contact a parent or guardian if the person is 16 or 17 years old and have their parent or guardian present during questioning.
There are serious penalties if officials breach these safeguards.
A person who is the subject of an ASIO questioning warrant must:
- answer all questions permitted by the warrant
- surrender their passports
- not leave Australia without permission
- not tell others, while the warrant is on foot, that they are being questioned or detained by ASIO, unless they are permitted to do so
- not tell others, for two years after the expiry of the warrant, about any operational information relating to the warrant, unless they are permitted to do so.
The penalty for not complying with these conditions is five years imprisonment.