Friday, 2 September 2016

ASIO wouldn't be asking for these extensions to its coercive powers if Australian Attorney-General George Brandis hadn't already given the nod

If Labor and the crossbenches agree to this demand then there is little hope left that Australians will have adequate protection under law.

The Sydney Morning Herald, 27 August 2007:
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".

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…..

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…..

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."…..

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