Opinion piece: Australians’ personal freedoms could be under serious threat with the new ASIO bill
14 May 2020
Opinion piece by Law Council of Australia President, Pauline Wright – published in The Guardian, Thursday, 14 May 2020.
Questioning children as young as 14 and the use of tracking and surveillance devices can hardly be described as ‘nonintrusive’.
No one should be surprised that the introduction of the Australian Security and Intelligence Act 1979 (Cth) (Asio Act) into the parliament has been met with some trepidation.
The idea of Asio being able to question children as young as 14 or having the power to slip a “nonintrusive” tracking device into, for example, an open handbag, without so much as a warrant does not sit well with many Australians.
The government will argue that these amendments are necessary to ensure the continued safety of Australia and its people. And it is inarguable that our security and law enforcement agencies must have appropriate powers to detect, prevent and prosecute terrorist activities to protect the Australian community.
But the conferral of coercive questioning powers on an intelligence agency is a highly extraordinary and unusual measure, which has no equivalent under the laws of Australia’s counterparts in the Five Eyes alliance.
Our anti-terrorism laws must strike the appropriate balance between community safety and protecting individual freedoms. They must be a necessary and proportionate response to potential threats and not unduly impinge on those very values and freedoms that we seek to protect from such threats, on which our democracy is founded – and which Australians rightly expect parliament to protect.
There are elements within this bill that tend towards balance. The repeal of the power to detain for questioning is most welcome. Universally condemned, the detention power should never have been conferred in the first place. Thankfully it was never used, perhaps a clear signal that the detention elements of the bill were an overreach.
But there is a proposed power to apprehend for questioning that may effectively amount to detention and there is an increased scope of matters for which people can be questioned, beyond terrorism alone.
The proposed redesigned questioning warrant scheme contains many different elements with voluminous and complex statutory requirements, each of which will require close scrutiny and assessment.
This assessment is particularly critical when accompanied by the proposed lowering of the minimum age of children who may be subject to coercive questioning, from 16 years to 14 years. The bill includes a specific “minor questioning warrant regime” with some welcome additional safeguards for children. This includes limitations on the issuing of questioning warrants to minors who are, themselves, the targets of security investigations, and provisions enabling the presence of lawyers and other persons at questioning.
However, we will need to consider whether these special measures are, in fact, adequate to protect children – including very young children who are particularly vulnerable by reason of the stage of their cognitive development. It is critical that priority is given to the best interests of the child in the making of decisions about them.
Another aspect of the bill requiring close attention is the proposed limitations on a person’s right to have a lawyer of their choice present during questioning, and an ability to remove lawyers from questioning sessions.
Expanding the powers of search and seizure available to, or for the benefit of, Asio in connection with questioning warrants is also a concern. These include powers of personal search and seizure in relation to people subject to questioning warrants, and the power to search premises. Combine those with the expansion of Asio’s powers to use surveillance and tracking devices, including without external authority or a warrant in some circumstances, and it should come as no surprise that there is concern that Australians’ personal freedoms are seriously under threat. The use of tracking and surveillance devices represents a very high degree of intrusion on a person’s privacy and can hardly be described as “nonintrusive”.
Ensuring appropriate safeguards and oversight of the proposed bill is essential. There must be careful investigation as to the adequacy of the powers conferred on the prescribed authority to supervise questioning, and the provisions made for the inspector general of intelligence and security (Igis) to conduct real-time oversight of questioning by being present, as well as reviewing relevant documentation. It will be especially important that adequate arrangements are made for the independent oversight by Igis of urgent or fast-moving questioning operations.
This bill has been in the wings for some time. The parliamentary joint committee on intelligence and security and the former independent national security legislation monitor recommended major changes to these powers as part of their respective pre-sunsetting reviews in 2018 and before that in 2016.
Now there is a sense of urgency given that Asio’s current questioning powers are due to sunset on 7 September, and the amendments are set to commence by or before that date.
This is not a bill to be rushed and hurried through the parliament. To do so would be detrimental to all Australians.
President, Law Council of Australia