The integrity function and ASIO's extraordinary questioning and detention powers

Abstract

The Australian Security Intelligence Organisation Act 1979 (Cth ) permits ASIO to coercively question and detain non-suspects in order to gather intelligence about terrorism offences. This article examines the extensive checks and balances that constrain these powers, and whether they meet the standard embodied in the emerging concept of the ‘integrity function’. This involves elaboration of the content of the integrity function and its application in a problematic context, as ASIO must be permitted to act with some degree of secrecy, and executive judgments on matters of national security have long been considered unsuited to external scrutiny. This study illustrates the difficulty of holding national security powers to account. It also reveals extant questions about the integrity function, including: whether it incorporates a law reform component; how independent the integrity branch must be; the intersection between the integrity function and judicial review, and whether and how the integrity branch can be silenced to protect national security. In turn, this article raises broader questions about the proper scope of ASIO’s powers.