New ASIO law one more step towards a totalitarian state

With Federal Parliament flat out dealing with the social and economic fallout of the COVID-19 pandemic, now is hardly the right time for a government to introduce legislation giving ASIO the power to question 14-year-old children, interfere with the rights of legal advisers, and enable the tracking of individuals without the need for a warrant. But Home Affairs Minister Peter Dutton has no such qualms. On Wednesday he introduced the benignly titled Australian Security Intelligence Organisation Amendment Bill 2020.

Minister for Home Affairs Peter Dutton has introduced new laws to Parliament overhauling ASIO's questioning powers.CREDIT:ALEX ELLINGHAUSEN

This proposed legislation represents a further attack on the rule of law in Australia and requires the full attention of a properly-functioning federal Parliament, not one which under current arrangements, fewer members of the House of Representatives and the Senate are attending because of social distancing requirements.

Peter Dutton’s law would allow ASIO to seek a warrant so they can question young people between 14 and 18 if that young person is a target of an ASIO investigation into politically-motivated violence: broad criteria to say the least.

Then there is a serious attack on the fundamental right of a person, whether they be 14 or 40, to choose their own lawyer when they are subject to investigation by ASIO. The bill allows for a prescribed authority, which is a judge or Administrative Appeals member selected by the government, to stop a person ASIO is seeking to question from contacting their lawyer if “satisfied, based on circumstances relating to the lawyer, that, if the subject is permitted to contact the lawyer, a person involved in activity prejudicial to security may be alerted that the activity is being investigated, or that a record or other thing the subject may be requested to produce might be destroyed, damaged or altered.” This power is sweeping and allows for hearsay "evidence" to be used. All ASIO would have to do is tell the judge or AAT member that they have heard from "sources" that the lawyer requested by the detainee is a security risk.

But even if the lawyer passes muster and sits with his or her client, the ASIO officers doing the questioning can have the lawyer removed. The Explanatory Memorandum of the Bill says that can happen, “if the lawyer’s conduct is unduly disrupting questioning. This may be the case where, for example, a lawyer repeatedly interrupts questioning (other than to make reasonable requests for clarification or a break to provide advice), in a way that prevents or hinders questions being asked or answered.” So if the ASIO officers are badgering or harassing a frightened 14-year-old, or asking questions that are completely irrelevant, they have carte blanche.

Under Dutton’s law, not only are their restrictions placed on the rights of individuals and their lawyers but there will be an “independent prescribed authority” established, a judge or member of the Administrative Appeals Tribunal, that will pick a suitable (for which read tame) lawyer to advise the individual when they are in ASIO custody.

As a lawyer, one hears and reads stories about colleagues in authoritarian states where such powers are given to and used by security agencies, but one never expected it in democratic Australia.

Not only does Dutton’s bill impinge significantly on the rights of lawyers and their clients, it reduces independent scrutiny of ASIO’s surveillance activities. ASIO officers will have the power to track individuals and will only have to get the OK to do so from another ASIO officer rather than having to file paperwork for a warrant from an independent judicial officer. This approval can be oral, so long as paperwork is filed two days later. And what sort of tracking technology is allowed? Any technology ASIO “has access to” albeit with the usual toothless caveats about it being “appropriate and subject to strict accountability requirements and restrictions".

While the new ASIO bill builds on the post 9/11 suite of laws that have vastly expanded the powers of the security state in Australia, this particular proposed law takes matters in an even more sinister direction. It deserves our legislators’ full attention, and must not be waved through the parliament as an afterthought to a coronavirus debate.

Greg Barns is a barrister and Criminal Justice Spokesman for the Australian Lawyers Alliance.

Source: The Age 13 May 2020