SPENCER ZIFCAK. The New Asio Powers: The Good, the Bad and the Ugly

May 28, 2020

The Minister for Home Affairs, Peter Dutton, has introduced new, comprehensive powers for ASIO. The Australian Security Intelligence Organisation Amendment Bill 2020 repeals ASIO’s existing questioning and detention warrant framework and introduces a reformed and extended compulsory questioning scheme. The Bill is not all bad. But there is quite enough in it to cause those with a concern for the protection of civil liberties, sleepless nights.

The repeal of aspects of the existing questioning and detention provisions is very welcome. Introduced in the aftermath of the September 11 attacks, these questioning provisions were draconian. They authorised a person to be detained incommunicado for questioning for a week, with the option of a further week’s detention. Detention and questioning of a person could be approved in order to obtain intelligence in relation to terrorism, and could include the interrogation of a person who may have knowledge of but was not directly involved in suspected terrorist activity This detention power has never been used. The Independent National Security Legislation Monitor recommended it be repealed. Now, it will be.

The 2020 ASIO Bill establishes a new and extensive framework for questioning. The legislation broadens the grounds in relation to which questioning warrants may be issued. It will apply not only to suspected terrorism activity but also to activities involved in espionage, politically motivated violence and foreign interference.

Two new questioning warrants will be introduced, an adult questioning warrant and a minor questioning warrant. An adult questioning warrant may be issued to a person over the age of 18. A minor questioning warrant may be issued to a person over the age of 14. Warrants are issued by the Attorney-General on the request of the Director-General of Intelligence.

Different tests apply for the issue of the two warrants. The test for issuing an adult questioning warrant is broad. The warrant may be issued if ‘there are reasonable grounds for believing that the warrant will substantially assist in the collection of intelligence that is important in relation to an adult intelligence matter.’ This is a sweeping authority. In effect, it provides no criteria for the warrants’ issue at all. The Attorney-General may issue a warrant, which is an act that has severe consequences for its subject, whenever he or she believes it is ‘important.’ It reposes in the Attorney-General a dangerously wide discretion.

The contrast with the test for the issue of a minor questioning warrant is instructive. A minor questioning warrant may be issued where ‘there are reasonable grounds for believing that the person has likely engaged in activities prejudicial to the protection of…people of the Commonwealth, the States and Territories, from politically motivated violence…and there are reasonable grounds for believing that the warrant will substantially assist in the collection of evidence.’ Even this discretion is wide, but at least one knows its terrorism related objective.

Next, there is the matter of issuing questioning warrants to minors aged as young as 14. This seems extreme and has already raised considerable concern. The President of the Law Council said that ‘Young people go through a significant development between the ages of 14 and 18 and their understanding of consequences is limited even in that short period of time. I think it’s of real concern.’

The penalties for not cooperating with questioning are severe and include gaol terms of up to 5 years. Young people might never recover their balance after having been subject to the coercive procedure under such a grave threat. Their parents and communities are likely to be profoundly alienated. Plainly the shooting of Curtis Cheng by a 15 year old boy was deeply tragic. But one case provides insufficient justification for such a radical measure to be applicable generally to young people of still, mostly, immature judgment.

To be fair the Bill does provide protections for young people. A young person subject to a warrant must not be questioned in the absence of a lawyer. If the warrant requires a young person’s immediate appearance, a lawyer must be appointed to represent him or her pending the briefing of a lawyer of their choice. A young person may also invite an additional non-lawyer to provide him or her with support during questioning.

People subject to adult questioning warrants are also entitled legal representation during questioning. Except in the case where the warrant requires their immediate attendance for questioning, the subject of the warrant may request a lawyer of their choice, subject to certain restrictions. Beyond this however, a person who is apprehended for questioning is not allowed to contact, and may be prevented from contacting, any person at any time during the maximum 8 hour questioning period.

The ASIO Bill contains an entire section devoted to constraining what lawyers can do during questioning. This is remarkable. There is no parallel in any other legislation for lawyers to be subjected to substantial control when representing their clients. It is another strike at the heart of Australia’s legal system, the legal profession’s rights and duties, and therefore at the protection of fundamental civil liberties.

The subject of a warrant may be prevented from contacting a lawyer if the questioning authority believes that by contacting the lawyer another person involved in some activity prejudicial to security may be alerted that the activity is under investigation. A lawyer will be entitled to receive a copy of the questioning warrant but the Director-General may, in certain circumstances. redact parts of the document.

More concerningly, interventions by lawyers in the course of proceedings are strictly limited. Lawyers may intervene in only two circumstances: to request clarification of an ambiguous question, or to request a break in questioning to consult with their client. This will, for the most part silence a lawyer representing the subject of a warrant.

As if that were not enough, a questioning authority may remove a lawyer altogether if he or she believes that a lawyer is acting disruptively. The lawyer of a minor may be removed on a similar ground. It well known and accepted that lawyers will on occasions represent their clients assertively, and effectively thereby.

In combination these provisions will diminish if not remove altogether the entitlement of a person being questioned to be properly legally represented. The constraints are entirely unacceptable and should be removed from the Bill.

The Bill has a sunset clause of 10 years. Given that it has significant adverse implications for civil liberties in Australia, the period should be no more than three years prior to comprehensive parliamentary review.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and formerly President of Liberty Victoria

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