No Sunset for ASIO


Federal Attorney-General Philip Ruddock is at it again. He is moving to extend the life of ASIO’s post-9/11 powers to compulsorily question and detain ‘non-suspects.’

In March 2002, amid the heat and paranoia of the post-9/11 period, the Howard Government introduced a Bill into Parliament that proposed giving ASIO the power to compulsorily question persons and if necessary detain them for that purpose, in relation to terrorism offences.

Originally, the Bill allowed incommunicado detention without charge for 48 hours, but by allowing repeated warrants to be obtained, indefinite detention was possible, without the detainees having access to legal assistance or having a right to silence.

The Bill was strongly opposed by the Opposition and, after scrutiny by several parliamentary committees, was considerably watered down before finally being passed the next year coming into effect from July 2003.

The result? ASIO was given powers to compulsorily question non-suspects and detain them for seven days, if it would ‘substantially assist in the collection of intelligence which is important in relation to a terrorism offence.’

Terrorism offences are defined widely and could include relatively minor acts like making a small donation to a terrorist organisation like the IRA or HAMAS. There is no right to silence and refusing to answer questions may result in a five-year prison sentence. The same penalty applies if ‘operational information’ about the warrant is disclosed within two years of its expiry.

These powers do not exist in the Federal or State police forces or in the intelligence organisations of any comparable country including Bush’s USA and Blair’s Britain.

The new provisions converted ASIO, at least in part, into a secret police force. To be fair, the Senate insisted that ASIO’s questioning be supervised by a retired judge of at least District or County Court standard, and that questioned persons have the right to a lawyer being present. These safeguards at least minimise the possibilities of abuse of the questioning process itself.

The legislation’s other saving grace is that the Senate insisted on a sunset clause of three years, which ensures it expires in July 2006.

However, on 29 March 2006, Ruddock introduced the ASIO Legislation Amendment Bill 2006 designed to extend the legislation’s life by imposing a new sunset clause of 10 years, meaning it expires in 2016.

Ruddock’s second reading speech to the Bill was a casual, cursory, eight-minute gloss on the content as though he is legislating to shift a bus stop.

Apart from the general objection that a secret intelligence organisation should not have any police powers, a second objection is that the draconian detention power has not been used in the last three years and is simply unnecessary. (The questioning power has been used 10 times in the last financial year.)

There are also grave doubts about whether Parliament has the constitutional power to confer on ASIO a detention power at all.

In 1992, the High Court said that, exceptional cases aside, Parliament cannot give any arm of the Executive Government the power to detain a person for punitive purposes that power being reserved for courts dealing with criminal charges. The rationale for that position is the separation of powers principle underlying our Constitution, which requires that the Executive and the Judiciary have separate and distinct responsibilities. This principle is fundamental and goes to the heart of our system of governance.

Thanks to Fiona Katauskas.

Back in 2003, it was thought that ASIO’s week-long detention power may be valid because the High Court might conclude it was not punitive or, alternatively, that it was an exceptional case like Parliament’s power to detain the seriously mentally ill or those with contagious diseases.

However, in late 2004, the High Court’s Justice Bill Gummow handed down a decision in the case of Fardon v Attorney-General of Queensland that detention by the Executive did not need to be for a punitive purpose to be unconstitutional. Justice Michael Kirby strongly agreed and Justice Ken Hayne made a comment which seems favourable to the same view. The other four judges did not need to decide the point and remained silent on the issue.

A further objection to this legislation is that ASIO is increasingly likely to use these unprecedented powers because, in the wake of the 9/11 attack, it has been given massively increased resources. In 2001 it had a staff of just 584, by June this year it will have 1150 staffers and in four years time it is planned to have 1860.

There has been little debate about the merits of giving such increased funding to ASIO rather than the Federal Police, which has not been so favoured. The danger is that ASIO will operate more and more as a police force but in secret, with extraordinary powers that the police do not possess and without the public scrutiny that police forces endure.

The removal of the right to silence is also objectionable because it is common for people with imperfect English skills resulting from say, modest intelligence or foreign extraction to say things they do not mean under persistent questioning.

A final objection to the Bill is that the detention provision is in breach of the right to personal liberty contained in article 9 of the International Covenant on Civil and Political Rights (ICCPR) which is also clause 15 of New Matilda‘s draft Human Rights Bill. That is because the power is disproportionate to the evil said to be cured by a week-long deprivation of liberty. That is clear when you consider that people can be detained even though they are not suspected of an offence and the only involvement they may (allegedly) have is to possess information relating to what might be a relatively trivial matter like someone else’s donation to the IRA.

Of course, the Howard Government has ensured that the ICCPR is not enforceable in Australia even though Australia is a signatory to it. We have an obligation to implement it but, with no Australian Bill of Rights, this has not happened.

Ruddock’s Bill richly deserves to fail but may be passed this week by the Howard-dominated Parliament, slipping through without much attention in Budget Week.

The Opposition should be careful to make some or all of the obvious objections to it, even if the mainstream media and the public are not interested. It is vitally important that debate occur about this Bill, dealing as it does with absolutely fundamental rights.

As for Philip Ruddock, he is behaving true to form. A derisory eight-minute speech for this Bill, a nine-minute speech for the Anti-Terrorism Bill (No 2) 2005 last December, and a 10-minute speech in February for the Bill which allowed easy tapping of emails, text messages and the phones of innocent third parties.

All of these Bills were extremely important, controversial, and contained extensive provisions worthy of full and careful debate. Ruddock was only interested in ramming them through Parliament in the shortest time possible.

Meanwhile, a high-powered committee set up six months ago by the Attorney-General to report on the anti-terrorism laws, has reportedly called for ‘sweeping changes’ to those laws, including that Ruddock be stripped of his power to determine which groups constitute ‘terrorist organisations.’ It is understood t he Security Legislation Review (or Sheller) Committee’s report was handed to the Government last month and will be released to Parliament in June.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.