Dutton’s ASIO Bill Further Erodes Legal Protections

As a reduced Australian parliament met for a series of special sitting days this week to deal with matters that couldn’t wait until after it resumes normal duties post-pandemic, home affairs minister Peter Dutton introduced some new rights-eroding laws, hoping nobody noticed.

The Australian Security Intelligence Organisation Amendment Bill 2020 (Cth) (the ASIO Bill) seeks to revoke the power the national security agency has to detain people for questioning. However, Dutton has also drafted a suite of provisions that enhances ASIO’s existing questioning regime.

The security agency’s director-general “noted in his recent annual threat assessment, the number of terrorism leads ASIO is investigating has doubled since this time last year,” Dutton said, as he justified the ramping up of the spy organisation’s powers during his second reading speech on the bill.

The legislation allows officials to detain 14-year-old kids for questioning, it removes the need for agents to obtain an independent warrant to track citizens, and it broadens the scope of the regime from just terrorism to encompass espionage, foreign interference and politically motivated violence.

And the home affairs minister takes a massive sweep at the rights of legal professionals and their clients, so that agents can bar any lawyers they don’t approve of, while any that do make the grade, can be turfed out mid-questioning if they appear too unruly in the opinion of ASIO officials.

Broadening the reach

“Our concerns are that the timing of the introduction of the legislation is deliberately designed to avoid scrutiny,” said Australian Lawyers Alliance (ALA) spokesperson Greg Barns. “The parliament is operating at a suboptimal level. It is distracted and focused on COVID-19.”

“The proposals in this legislation, particularly in relation to the lawyer-client relationship, are extremely disturbing, and represent a major shift towards authoritarianism in Australia,” the barrister told Sydney Criminal Lawyers.

Barns pointed to a number of alarming measures in the bill, including allowing the use of “non-intrusive” tracking devices – such as those attached to cars or slipped into bags – to no longer require a warrant from the attorney general, but rather a nod of approval from an ASIO official.

Other key encroachments involve allowing the attorney general to approve questioning warrants orally in an emergency, empowering police officers to arrest and search the subject of a questioning warrant, while broadening the pool of people that can be nominated as a prescribed authority.

“And you can have individuals as young as 14 being questioned by ASIO. There is no need for that. It’s inherently unfair,” Mr Barns underscored. “And it’s inherently dangerous, as you might get a 14-year-old who will say anything to simply end the interview and get back to their family.”

The right type of lawyer

In regard to lawyers, the bill’s explanatory memorandum states that it strengthens “the right to legal representation during questioning while retaining the ability to prevent contact with specific lawyers due to security concerns, and to remove a lawyer who is unduly disruptive during questioning.”

Proposed subsection 34F(4) of the ASIO Bill allows a prescribed authority to prevent the subject of questioning from “contacting a particular lawyer” if in doing so a person who poses a security threat could be alerted or evidence could be destroyed.

The second change “means that if a lawyer is advocating on behalf of their client and preventing ASIO from harassing their client or asking inappropriate questions, they can be removed from the interview room,” Mr Barns explained.

Proposed subsection 34FF(6) outlines that if a “prescribed authority considers the lawyer’s conduct is unduly disrupting the questioning of the subject”, they “may direct a person exercising authority under the warrant to remove the lawyer from the place where the questioning is occurring”.

The third major change to lawyer-client relations is that if a person doesn’t have a lawyer, ASIO will then approve one. “This is the sort of regime one gets in countries where the rule of law is not adhered to,” the barrister made clear. “It is extraordinary that you would see it in Australia.”

Spies on the beat

ASIO was provided with the powers to obtain a warrant to question an individual or to detain and question a person in 2003, at a time when there was a heightened focus on terrorism following the 2001 September 11 attacks in New York, and the 2002 Bali Bombings.

These powers are contained in part 3 division 3 of the Australian Security Intelligence Organisation Act 1979 (Cth). A questioning warrant allows for 8 hours questioning, with the ability to apply for an extension of up to 24 hours, while a detain and question warrant provides for 7 days detention.

In March 2018, the Parliamentary Joint Committee on Intelligence and Security released its statutorily required review of these specific ASIO powers. It found that the detention powers had never been used, while a total of 16 questioning warrants have been issued – the last being in 2010.

The committee recommended that ASIO retain its compulsory questioning powers, but that its current detention powers be revoked. It also called for the questioning framework to be reformed.

Incrementally eroding freedoms

The newly proposed ASIO Bill doesn’t appear in isolation. Since 9/11, successive Australian governments have been passing laws in the name of counterterrorism that have been slowly whittling away at the rights of all Australians.

The tally being kept by the UNSW Law School put the number of pieces of legislation containing antiterror laws passed at the federal level since September 2001 at 85 by mid-March this year. And there were five more bills on the boiler at the time.

“This is a deliberate strategy on the part of the government, particularly the Department of Home Affairs, to weaken the rule of law in Australia even further,” Mr Barns said of the new bill. He added that many of the counterterrorism measures passed since 9/11 have increased ASIO powers.

“It’s all about reducing the accountability of ASIO, increasing its powers, disrupting the capacity of individuals to exercise their fundamental right to engage a lawyer of their choice, and further to be able to track every movement of a person without scrutiny,” the barrister concluded.