Many people have been very vocal with a new proposal from an arm of the Australian government to detain people for up to a week without a warrant from a judge.
In other words you can be tortured illegally (without a warrant) on the basis of someone's misguided decision, without the interaction of a court.
ASIO now wants to detain people without a warrant.
There is a common catch phrase that people use with regards to law namely:
"Innocent until proven guilty",
but this does not apply in Australia.
In Australia the legal system functions on strict and absolute liabilities, basically Roman law.
In a nutshell:
Absolute liability - First and foremost you are guilty and a penalty is enforced,
Strict liability - You are guilty and you must prove your innocence.
Good example of these is 'owner onus' and parking fines, where your matter is listed in the court system as criminal and not civil.
Another lesser known aspect of law is that among all the deceptive Acts, treaties and statutes is that Australia is a colony of the British empire.
Many a QC, constitutional lawyer or law researcher would sure have plenty to say about the above statement, maybe calling reference to Sue v Hill, an entity called the 'Queen of Australia', the Balfour Declaration, Treaty of Versailles, Unidroit Treaty, Lima Declaration or even entry into the U.N.
From the paperwork that we have obtained there is no debate nor 'interpretation' of law, with regards to Australia still being a colony.
This is reflected by the laws that are
instilled forced on the people and not voted as required by law on certain matters.
See article from 27 Aug 2016 by smh.com.au of the headline:
ASIO asks for detention powers without warrant from judge
ASIO has proposed scrapping the need for judge-approved warrants to
detain and question Australians for up to a week without charge in
terrorism investigations, in a watering down of safeguards that has
alarmed lawyers and rights advocates.
The power to grant the
security agency a controversial "questioning and detention warrant"
would rest instead with the Attorney-General – a situation the Law
Council of Australia has branded "unprecedented".
Concerns over ASIO questioning powers
Australia's intelligence agency - ASIO - has
asked for detention powers without warrant from judge. Fairfax's David
Wroe explains.
The changes being requested by ASIO would also remove a current
separate requirement that an independent legal authority, such as a
retired judge, is present when a person is being questioned. Rather,
oversight of questioning would rest with the intelligence watchdog, the
Inspector-General of Intelligence and Security.
Under
laws passed in the wake of the September 11 and Bali bombing attacks,
ASIO has the power to hold someone for up to seven days and question
them if it may "substantially assist the collection of intelligence that
is important in relation to a terrorism offence", even if the person
isn't a terrorism suspect themselves.
ASIO head Duncan Lewis says a streamlining of the process "would be most desirable". Photo: Andrew Meares
ASIO head Duncan Lewis told a review inquiry last week into the laws
that the organisation would "support amendments to the legislation to
make the regime more efficient and effective for use in the current
security environment".
While ASIO's submission to the inquiry by
the Independent National Security Legislation Monitor is confidential,
Mr Lewis told the hearing that "it would be most desirable in our view
for there to be a streamlining of the warrant authorisation process"
whereby authority for the warrants was given by the Attorney-General.
Currently ASIO needs an "issuing authority" in the form of a serving judge to approve the warrant.
The
laws include both "questioning warrants", which make it an offence to
refuse to answer ASIO's questions and also "questioning and detention
warrants", which allow ASIO to have the Australian Federal Police arrest
and hold someone so ASIO can question them.
The agency, in this building, wants powers of detention described as "unprecedented" by alarmed lawyers and rights advocates.
Mr Lewis told the hearing these powers were "fundamental to ASIO's work in responding to the terrorism threat that we face".
Police
and intelligence agencies say that terrorism plots in the Islamic State
era are increasingly rudimentary and fast-moving, which means processes
such as obtaining warrants need to be streamlined as much as possible
so authorities can swoop to protect the public.
But the detention
warrants have never actually been used in the 11 years they've been in
place. Questioning warrants have been used 16 times since 2004, though
not since 2009.
The Attorney-General already has the power to approve intelligence-gathering methods such as phone intercepts and surveillance.
But
Law Council of Australia director Arthur Moses, SC, who also gave
evidence to the inquiry, told Fairfax Media: "We're talking here about
persons being detained in custody and deprived of their liberty. That
takes it to an entirely different level."
"Western democracies
have always taken the position that we do not in effect have a situation
where a politician can give that authority … Usually people have the
protection of a judicial officer … In my view it's unprecedented.
"We
accept and understand that in respect of an evolving security threat
environment, sometimes legislation and procedures need to be amended …
but we are not aware of any issue that has arisen where ASIO has
attempted to obtain a detention warrant and it has not been able to."
Mr
Lewis told the inquiry just because they had not been used recently did
not mean they weren't vital. They could be used in the future, he said.
He
also said it was an "unnecessary belt and braces situation" to require a
retired judge or magistrate to sit in the questioning sessions, given
the Inspector-General of Intelligence and Security could provide
oversight anyway.
University of New South Wales law professor
George Williams said countries such as the United States and Britain did
not permit such detention for questioning.
"To my knowledge,
Australia is the only Western democracy that enables people who are not
suspects to be held for up to a week coercively for
intelligence-gathering purposes," he said.
"The thought of removing what is one of the few significant checks on the powers is deeply concerning."
But
Jacinta Carroll, a counter-terrorism expert at the Australian Strategic
Policy Institute and former security official, said the last nine plots
disrupted had all posed imminent threats and there was therefore a
"logical and compelling case" for streamlining the process.
She said the fact that detention powers had never been used showed ASIO was extremely cautious in the way it used its powers.
She
said while this was a "pretty heavy power", it made as much sense for
the Attorney-General as first law officer to authorise warrants as a
judge.
Bret Walker, SC, the former monitor, said he would want
ASIO to show the inquiry examples of where the current law had proved
deficient.
"The nature of the powers in some sense are drastic . .
. so I would really like to look at real-life, demonstrated deficiency
before we look at relaxing safeguards," he said.