Does the War on Terror still justify ASIO’s extraordinary power?

This piece was originally published in the first 2018 edition of The Full Bench: Fear Itself. To take a look at the rest of the magazine, please visit https://issuu.com/utslawstudentssociety/docs/tfb_draft_final_bleed_7_single_page

On 22 February 2017, the Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) commenced a review of the operation, effectiveness and implications of Australian Security Intelligence Organisation’s (‘ASIO’) questioning and detention powers relating to terrorism offences under Pt III Div 3 of the ASIO Act 1979 (Cth). The sunset date was set to September 2018. The PJCIS expects to finalise their report shortly. In light of this, it appears time to re-consider whether the war on terror justifies the extension of ASIO’s extraordinary powers at the cost of our civil liberties. We must also consider whether there are adequate safeguards in place to prevent ASIO’s abuse of power and ensure its accountability to the Australian public.

ASIO and its Powers

ASIO was established in 1949 by the Chifley Labor government. They were granted special powers to undertake intelligence functions to protect the Commonwealth from acts of espionage, sabotage, and subversion. These special powers included the interception of telecommunications, the examination of postal and delivery articles, the use of clandestine surveillance and tracking devices, the remote access to computers, and covert entry to, and search of, premises with a warrant signed by the Attorney-General.

In 1974, the Hope Royal Commission highlighted that the nature of security intelligence would inevitably encroach upon civil rights. In addition to these concerns, they outlined three fundamental principles which should govern the operation of ASIO:

• ASIO must operate within the terms of its statute, and be concerned only with matters that are relevant to security;
• ASIO must comply generally with the law; and
• ASIO should not intrude upon the rights and freedoms or upon the privacy of persons except to the extent that the requirements of the nation’s security.

Honourable Justice Hope emphasised that ASIO’s special powers may only be used in proportion to the immediacy and gravity of the threat or harm and where other less intrusive methods were inadequate or inoperable under the circumstances. However, after the September 11, 2001 attacks and the Bali Bombings in 2002, ASIO’s powers were expanded to include questioning warrants (the compulsory questioning of persons in order to collect intelligence in relation to a terrorism offence) and detention warrants (the detention by the police of a person to be questioned in relation to terrorism). These warrants could be issued from an independent judicial authority.

Encroachment upon Civil Rights

The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth) was controversial as ASIO’s extraordinary powers to protect national security against terrorist threats undermined our liberal-democratic nation, specifically:

• Permitting ASIO to detain in secret and coercively question Australian citizens not suspected of any crime. There was no need for ASIO to demonstrate a detainee’s culpability or involvement in terrorism. The Attorney-General simply had to be satisfied on ‘reasonable grounds’ that interrogation would ‘substantially assist the collection of intelligence in relation to a terrorism offence.’
• Limiting an Australian citizen’s right to independent legal advice during detention to breaks in questioning and/or clarification of ambiguous questions;
• Charging any Australian citizen with up to five years’ imprisonment if he/she refused to answer their questions and no defence of the privilege against self-incrimination;
• Charging any Australian citizen with up to five years’ imprisonment for disclosing information in relation to an ASIO warrant and/or ASIO officer; and
• Permitting ASIO to detain an Australian Citizen over a seven-day period.

ASIO’s extraordinary powers were a reaction to the anger, fear, and grief caused by September 11 and the Bali Bombings. Unfortunately, they came at the expense of our civil liberties. Namely, freedom of speech, freedom of political association, freedom from arbitrary detention and the rule of law. As George Williams argued, ASIO’s extraordinary powers were not necessary given they could already sufficiently combat terrorism under their current scope. Given ASIO was granted extraordinary powers that were coercive, it should be subject to the same level of political and public scrutiny when applying these powers.

ASIO’s Standpoint

ASIO remains adamant that their extraordinary powers are necessary to carry out its investigate functions, in order to combat the increase in terrorism over the past couple of years. ASIO alleges their capacity to compulsory question and detain prevents other targets being informed and destroying valuable and relevant documents. But since ASIO’s submission to the PJCIS remains classified, it is difficult to ascertain whether this is the case.

Despite no terrorist attack in Australia comparable to September 11, the Bali Bombings or even the recent attacks in London and Paris, ASIO emphasises that planned terrorist acts in Australia were prevented by ASIO and its law enforcement partners.

The secrecy of ASIO’s operations has always been imperative. Although the normal processes of checks and balances to other governmental organisations are not applicable, ASIO remains accountable to the executive government as:

• ASIO’s special powers to protect the Commonwealth from acts of espionage, sabotage, and subversion can only be exercised under a warrant issued by the Attorney-General such the interception of telecommunications and the use of surveillance and tracking devices. ASIO’s extraordinary powers to detain and question non-suspects in order to protect national security against terrorist threats can be exercised under a warrant issued by a federal magistrate or judge.
• The Inspector-General of Intelligence and Security (IGIS), an independent statutory official, has access to ASIO’s operational and administrative activities, including all files and decisions. The IGIS conducts inspections of agency activities and can also investigate complaints.
• The PJCIS has the responsibility to review ASIO’s budgetary and administrative affairs.
• Independent National Security Legislation Monitor (INSLM) reviews anti-terrorism legislation and its operation.

Concerns with ASIO’s Power

Given a non-suspect of a terrorist offence under a questioning and/or detention warrant could face up to five years imprisonment for disclosing any information, the public is unlikely to be made aware of any concerns with ASIO’s power. However the case where a Kuwaiti refugee in 2004 was falsely classified as a security risk and detained without trial for two years highlighted the significant roadblocks to appeal ASIO’s assessment as well as the general lack of transparency and accountability regarding ASIO’s processes. The applicant and the AAT were not entitled to obtain any information regarding the assessment of the security risk as ASIO and IGIS are exempt from Freedom of Information Act 1982 (Cth). ASIO paid $200,000 in compensation to this refugee following IGIS’s investigation, which concluded that ASIO breached its guidelines by accepting ‘the foreign service’s version of events without corroboration or serious question.’

It is concerning that ASIO seeks to increase its extraordinary powers to any reasonable grounds that will substantially assist the collection of intelligence in a matter that is important to security and remove the ‘last resort threshold’ for questioning and detention orders. In addition, ASIO wishes to remove judicial review of extraordinary powers by having a Minister of Parliament as the Issuing Authority. ASIO believes these measures are ‘suitably tailored to a fast-paced, high-threat environment to support time-critical opportunities to collect vital intelligence’.

Recommendations

Dr Nicola McGarrity and Professor George Williams AO’s recommendations to the PJCIS as outlined below arguably balance effectively the demands of national security and civil liberties:

• The repeal of detention warrants. Detention warrants continue to infringe a fundamental national right despite no questioning and detention warrant being issued by ASIO since the enactment of the ASIO Legislation Amendment (Terrorism) Act 2003 (Cth).
• Coercive questioning should only be permitted if there is a reasonable belief that issuing the warrant will substantially assist the prosecution or prevention of a terrorism offence. However, a non-suspect that informs a person involved in a terrorist offence and/or destroys information requested in questioning should be charged with an offence under the ASIO Act 1979 (Cth).
• ASIO is unable to question a non-suspect without a lawyer being present and legal advice being received. The lawyer should not be inhibited from representing their client such as asking questions and undertaking cross examination.
• Reduction in the time limit on detention from seven days to forty eight hours. The maximum detention period for a non-suspect is seven times longer than the time the Australian Federal Police can detain a person suspected of committing a crime.
• Greater judicial review over the extraordinary powers regime, particularly the Attorney General’s decisions. The Attorney General has oversight over the activities and reports of ASIO, IGIS and INSLM.

Conclusion

It is crucial that we ensure that counter terrorism legislation continues to balance the demands of both national security and civil rights. In order to realise this, the appropriate frameworks and safeguards must be put in place to ensure ASIO’s accountability and effectively mitigate against the risk of any abuse of its extraordinary powers.