"The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats [by]....lowering the minimum age of a questioning subject in relation to a terrorism matter from 16 to 14...empowering the Attorney-General to issue warrants, including orally....allow non-intrusive tracking devices, such as a device placed on a vehicle, or in a person's bag, to be authorised internally...." [Minister for Home Affairs & Liberal MP for Dickson Peter Dutton in House of Representatives Hansard, 13 May 2020]
Law Council of Australia, media release, 13 May 2020:
Statement on proposed amendments to the ASIO Act by Law Council President, Pauline Wright
The Law Council of Australia is very concerned with some aspects of the proposed amendments to the Australian Security and Intelligence Act 1975 (Cth) (ASIO Act) released today in parliament.
If adopted, the amendments would redesign the Australian Security and Intelligence Organisation’s (ASIO’s) compulsory questioning warrant regime and repeal its specific detention powers.
It would also make some significant changes to ASIO’s surveillance powers, including permitting warrantless (that is, internally authorised) surveillance in relation to the use of certain tracking devices.
The Law Council welcomes the repeal of the ASIO detention regime in relation to the investigation of terrorism, which is consistent with its longstanding policy position. However, the amendments propose a re-design of the use of questioning warrants and we are concerned that there may be very limited time to scrutinise the proposed laws, which are lengthy, complex and highly intrusive on individual rights.
The proposal to reduce the age of minors who may be subject to questioning from 16 to 14 years and the conferral of powers on police to apprehend and detain persons for the purpose of bringing them in for compulsory questioning also requires detailed scrutiny by the Law Council, amongst the many other amendments.
The Law Council is concerned that the government is now rushing the Bill, despite having had over two years to develop the re-designed questioning legislation since the PJCIS tabled its report in May 2018.
Now there is a sense of urgency given that ASIO’s current questioning powers are due to sunset in 7 September, and the amendments are set to commence by or before that date.
This is not a Bill to be hurried through.
The Law Council will need to carefully scrutinise the Bill and we look forward to providing a comprehensive submission to the inquiry.
~~~~~~~~~~~~~~~~~
The Australian Security Intelligence
Organisation Amendment Bill 2020 can be found here.
The Sydney Morning Herald, 14 May 2020:
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.....
Dutton's law would allow ASIO to seek a warrant so it can question young people aged 14 to 18 if they are 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 it has 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.
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....
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