Terrorism - Hot Topics 58 - Legal Information Access Centre

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ausTralian seCuriTy inTelligenCeOrganisaTiOn pOwersAmendments to the Australian Security Intelligence Act1979 (Cth) in 2003 gave ASIO (Australia’s domesticintelligence agency) new powers to question and detainpeople over 16 years in terrorism investigations. ASIOobtain the Attorney-General’s consent to apply toan ‘issuing authority’ (a federal magistrate or judgeappointed by the Attorney-General) for a warrant toquestion a person before a ‘prescribed authority’ (suchas an experienced retired judge). The warrant can beissued if there are reasonable grounds for believing thatit will ‘substantially assist the collection of intelligencethat is important in relation to a terrorism offence’.Other methods of collecting the intelligence must also beineffective. If a person is aged between 16 and 18 years, itmust also be likely that the person has, is or will commita terrorist act.A person need not be suspected of any crime orinvolvement of terrorism. It is enough that the personmay have information relevant to investigating terrorismby others. A warrant may last for 28 days, within whicha person can be questioned for up to 24 hours in total(in periods of no more than eight hours at a time). Thetotal questioning period is extended to 48 hours if aninterpreter is used. There are criminal penalties of fiveyears’ imprisonment if a person refuses to answer aquestion (even if it incriminates the person), or gives falseor misleading answers.ASIO may also apply for a warrant to detain a personfor up to seven days, based on grounds similar to thosefor questioning warrants (the duration of questioningpermitted is also the same). An additional requirementis that the Attorney-General must be satisfied that if theperson is not detained, he or she‘(i) may alert a person involved in a terrorism offencethat the offence is being investigated; or(ii) may not appear before the prescribed authority; or(iii) may destroy, damage or alter a record or thing theperson may be requested … to produce’.After a person is released, a new warrant may be issued ifnew evidence arises.Following extensive community and parliamentarydebate, amendments to the original ASIO Bill proposed in2002 made substantial improvements. These included:> raising the minimum age of detainees to 16 years andgiving special protections to minors;> allowing detainees access to a lawyer (except where thelawyer poses a security threat);> reducing the maximum questioning period to 24hours over seven days;> a three-year sunset (or expiry) clause.In addition, the process of issuing warrants and supervisingquestioning now provides essential protections. Judicialauthorisation of questioning and detention is required, asis supervision of questioning by a retired Federal or Statejudge or Administrative Appeals Tribunal member.People under warrant must be treated with humanityand with respect for their dignity, and cruel, inhumanor degrading treatment is forbidden. A Protocoldetails standards on questioning and detention andthe independent Inspector-General supervises mostquestioning sessions. The Inspector General observedthat questioning has been conducted professionally andappropriately; that subjects have been accorded dignity,respect, physical comfort and religious needs; andfacilities have been appropriate.Important concerns remain about the ASIO laws. First,the duration of detention (up to seven days) is arguablyexcessive, since non-suspects may be detained for aperiod seven times longer than the already prolongedinvestigative period for terrorist suspects (24 hours).Secondly, the availability of legal advice and representationis limited, since lawyers cannot intervene in questioningor be present when people are in detention, and maybe removed for ‘unduly disrupting’ proceedings. Whilelegal professional privilege is protected, lawyer-clientconfidentiality is not. These restrictions may prevent alawyer from adequately representing and protecting hisor her client’s interests.Thirdly, there are harsh criminal penalties of up tofive years imprisonment for disclosing ‘operationalinformation’ about ASIO interrogations within twoyears after the expiry of a warrant. This offence wouldmake it a crime to tell a police officer or a journalistabout abuses of a person in detention. It prevents publicscrutiny of the propriety of the investigative process andreduces the accountability of ASIO, particularly sincejudicial review under existing laws may be limited.Detention is the most invasive restriction on personalliberty and is usually only used as part of the criminalprocess, and not solely to gather intelligence. In ademocracy, detention should be a means of last resort, to beused after all feasible alternatives have been exhausted. IfASIO detention aims to prevent absconding, destructionof evidence, or a person alerting others that terrorismis being investigated, then those purposes can probablybe achieved by less invasive means – such as electronicmonitoring, home detention or surveillance, telephonereporting, or restrictions on visitors, computers andtelephones (consider control orders on p 23).australian anti-terrorism laws 21
As at November 2005, no-one had been detainedunder the new powers, but 14 questioning warrantshad been issued against 13 people. In June 2006,the Parliamentary Joint Committee on ASIO, with amajority of government members, found that the powershad been useful in monitoring potential participants interrorist acts, and that the powers had also been usedlawfully and professionally. It is difficult for the publicto judge for itself, since little information is releasedby ASIO on the effectiveness of usefulness of the newpowers.Despite this, in June 2006, the powers were extendedfor a further ten years, rather than the 5.5 yearsrecommended by the Parliamentary Joint Committee.It appears that exceptional, emergency powers, initiallyadopted in response to the specific threat of terrorismafter 9/11, have become normalised as a semi-permanentfeature of Australian law. In addition to its new powers,ASIO’s budget increased exponentially from $63 millionin 2000-01 to $153 million in 2004-05, with staffincreasing from 584 to 1000 between mid-2001 andmid-2006.image u navailableUnderground platform, London.Michael Duerinck.anTi-TerrOrism aCT (no. 2) 2005On 7 July 2005, a series of suicide bombings in Londontriggered a new debate in Australia about whethermore anti-terrorism laws were needed. While the PrimeMinister released a short summary of proposed newlaws in September 2005, the details of the law were keptsecret, making it difficult for the public to evaluate ifthey were necessary or appropriate. The governmentplanned to release the Bill on 31 October 2005, andrequire a Senate committee to report on it by 8 November– allowing only one week to consider 100 pages of laws,300 public submissions and countless amendments, at atime when the Senate and public were also consideringmajor changes to workplace relations laws and studentunionism in universities. Even the leaking of the Bill tothe public by the ACT Chief Minister allowed only threeweeks for debate on complex changes, in contrast to thethree inquiries over 15 months which preceded the newASIO laws after September 2001.When the Bill reached Parliament, the governmentallowed only 2 hours and 19 minutes of debate in theSenate (which it gained control of in July 2005) beforeforcing a vote on the Bill. In Opposition, the Labor Partymade little criticism of the Bill and ultimately voted for itin the Senate. Although Labor moved a censure motionin the Senate to protest the hurried manner of lawmaking,the government blocked the censure motion forthe first time since Federation a century ago.There was some scepticism in the community and thelegal profession that new laws were needed, althoughopinion polls suggested many Australians felt the need formore security from terrorism. Some critics believed thatexisting anti-terrorism laws were adequate, particularlygiven the wide scope of the ASIO powers and terrorismoffences (which have been little used). Others arguedthat the terrorist threat facing Australia is less thanin Britain or the US, and that there was no publicemergency threatening Australia which could justifysuspending basic human rights. Still others thought thatfocusing on new law making deflected attention frompractical measures against terrorism, including enforcingexisting laws, gathering intelligence, or even addressingthe causes of some terrorism – such as Australia’s supportfor the internationally illegal invasion of Iraq.Since Australia has suffered little from terrorism, therewas also concern that Australia might overreact to itdue to a lack of experience in combating terrorism – justas Britain and France overreacted to Irish RepublicArmy and Algerian violence in the 1960s and 1970s. Inaddition, unlike those countries, Australia has no billof rights which could allow the courts to independentlysupervise the impact of terrorism laws on the rightsof people in Australia. This raises the possibility thatexcessive anti-terrorism measures could not be properlychecked by the independent courts.22HOT TOPICS 58 > Terrorism
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