ASIO’s recently published annual report for 2005-6 provides further evidence that some of the Howard Government’s most controversial anti-terror laws are little-used and unnecessary. Not that the document actually says so, of course. In fact, it tries to argue the opposite.
Turn to the page after the report’s Contents and you’ll find two photographs. On top is our Federal Attorney-General, Philip Ruddock, smiling wanly. And below is the unsmiling Paul O’Sullivan, the former Howard staff adviser who is now ASIO’s high profile Director-General.
Why is Ruddock’s photo there? This is supposed to be a report to the Attorney-General, not by him. The document itself supplies the answer it sticks so faithfully to the Government line that if it wasn’t actually written by the A-G, it could have been.
For instance, it repeats the Howard Government’s assertion that terrorism by Islamic extremists exists (and has existed for a decade) as a global phenomenon. Nowhere is there any suggestion that Australia’s involvement in the Iraqi invasion has even slightly increased the risk of terrorism in Australia. Perhaps ASIO thinks the Islamic world did not take it personally when our FA-18 Hornets bombed Iraq during a war which, according to The Lancet‘s recent estimate, may have resulted in 655,000 Iraqi deaths.
The Government’s line, however, is subtly changing. So, the report recognises that al-Qaeda’s ‘ability to undertake operations itself, outside certain strategic areas, is reduced.’ This is O’Sullivan-speak for there being no evidence of al-Qaeda activity in Australia. Its primary role is now said to consist of ‘inspiring and encouraging others to engage in terrorist acts.’
However, the most surprising thing about the report is something the mainstream media has completely missed. In its annual report, ASIO is required to state the number of times its extraordinary and much-criticised detention and questioning powers have been used in the preceding 12 months. Those powers allow the organisation to interrogate a person if it would ‘substantially assist in the collection of intelligence which is important in relation to a terrorism offence.’ In real life, this means ASIO can haul in non-suspects (including minors) and, if necessary, detain them without charge for up to a week of interrogation while depriving them of the right to remain silent.
Neither the CIA, Britain’s MI5, nor the intelligence agencies of any other democratic country, have powers this wide. They constitute a fundamental breach of civil liberties.
The report reveals that in the last financial year, ASIO exercised its questioning (interrogation) power just once, compared to 10 times the year before. This is surprising because there were almost five times as many people arrested for terror offences in that year (to 30 June 2006) than in the four years preceding it.
Why, when at least 23 people were arrested within the period, was only one interrogated assuming that person was actually one of those 23?
The report is silent on the reasons for this significant decrease in the number of interrogations, so New Matilda sought answers from ASIO last week. Its media liaison officer declined to comment.
One suspects the reason is that conventional means of obtaining intelligence are now sufficient for ASIO, given that its resources have been so massively increased by the Howard Government. It has doubled in size since September 2001 and in the last 12 months, its budget increased by $39 million.
The questioning/detention powers may now be unnecessary. Whichever way you look at it, this is a pleasing development. It’s clear that additional resources, not repressive new powers, were what we needed to fight terrorism.
Thanks to Fiona Katauskas
The report also reveals that the detention power, which has been available to ASIO since 2003, has still not been used. And on top of that, the Commonwealth has yet to use its new sedition and treason laws or its preventative detention powers. It has used its control orders only once against Jack Thomas and that to little effect, since the Federal Court imposed a virtually useless midnight-to-dawn curfew.
There are several alternative explanations for ASIO’s not using its new powers. One is that they continue to be so condemned, particularly by the legal profession, that ASIO may now regard the powers to be an embarrassment. (Former NSW Premier Neville Wran attacked the powers last week, and prominent academic lawyers Andrew Lynch and George Williams did the same in their superb new book, What Price Security? a concise and readable ‘must read’ for anyone interested in the subject.)
Resentment of the new provisions by the Islamic community, against which these laws are inevitably focused, may also have convinced ASIO that their use would be counter-productive.
And finally, it is possible that the powers are unconstitutional. In May this year, Abdul Hasan was to face trial in NSW for allegedly making false statements under ASIO interrogation. After his defence team made a series of applications including a challenge to the constitutional validity of the detention/questioning powers, the prosecution dropped the charges on the day the trial was due to commence. Was this because of an unwillingness to test the powers in the High Court?
The timing here may be significant for another reason. At the time the charges against Abdul Hasan were dropped, a Bill was before Federal Parliament which sought to extend the detention/questioning regime by 10 years, as the powers were due to expire under a sunset clause in July. The Bill passed all stages in the Senate in June with very little debate or attention from our somnolent Senators. The last thing the Government needed was publicity a constitutional challenge may have resulted in a much rougher passage for the legislation.
On 11 May 2006, during parliamentary debate on the Bill, Ruddock said: ‘I conclude by saying that there has been and the reports from ASIO indicate this a number of people questioned. That has proved very helpful to the agency in its work ‘
Was Ruddock unaware of the frequency of recent use of ASIO’s new powers? How could that be, Mr Attorney? By law, you have to approve every application for questioning in advance!
Ruddock therefore knew on 11 May that over the previous year ASIO had only used the questioning power once or perhaps not at all, if the one use occurred between then and 30 June. He said nothing about the frequency of use of the power none of the Government speakers in the debate did.
If the Parliament had known ASIO was barely using these powers, would the numbers have been there in the Senate to extend them?
But perhaps I am being unfair in keeping silent, our ‘crusader’ Attorney-General may just have been trying to ensure that his photo appears in next year’s ASIO report. Whatever the reasons, for all the past claims by the Government that these extraordinary anti-terror laws were vital and necessary to stop terrorists in their tracks, they are not being used.
Why is that Mr Ruddock? Now is the time to tell us.
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