Home Affairs Minister Peter Dutton is using the COVID-19 pandemic to push through amendments to security laws that would further erode people’s rights and which are not proportionate to any particular threat.
Critics say, the new laws, if passed, would give greater powers to spy agencies to apprehend and question suspects while simultaneously removing transparency and independent oversight.
Among the 28 bills introduced to parliament on May 13 was the Australian Security Intelligence Organisation Amendment Bill 2020 which amends the Australian Security Intelligence and Organisation Act (1979).
Ostensibly aimed at “modernising” the Australian Security Intelligence Organisation’s (ASIO) powers, the bill grants the spy agency new powers to: detain and question terrorism suspects as young as 14 years old; block lawyers from representing clients; prevent detainees from contacting lawyers; and remove legal representatives they deem to be “unduly disruptive” from interrogations.
It would also allow the federal Attorney-General to approve an ASIO request for tracking warrants, without judicial oversight, to conduct surveillance directly. According to the bill’s explanatory notes, these approvals could even be issued orally “in an emergency”.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) reviewed ASIO’s detention and questioning powers in 2018 and while it recommended the compulsory questioning power be retained, it said the detention power should be repealed.
Neither recommendation was adopted at that time. The government chose to take another look in two years; the sunset clause for those recommendations will expire on September 7, which is why Dutton is pushing to have the new powers passed.
Legal, digital and human rights groups are alarmed.
Spokesperson for the Australian Lawyers Alliance Greg Barns said the amendments excessively increases ASIO’s powers, and are not necessary.
He said the changes are dangerous and continue to strip away individuals’ rights by giving “more extensive and intrusive powers to ASIO”. The timing of the bill, under the parliament lockdown, also limits the public’s “capacity for scrutiny”.
Barnes is particularly worried that the changes would ban lawyers “from acting for clients at ASIO’s discretion” if ASIO believes that the lawyer is “disrupting the questioning”. He said this would give “enormous and completely inappropriate discretion to an interrogating officer”.
He also said the amendments are “in no way proportionate to the threats facing Australia”.
Law Council of Australia president Pauline Wright is also concerned. In an opinion piece for May 14 The Guardian, she said that giving ASIO “coercive questioning powers” is “highly extraordinary”. She said there is “no equivalent” in the laws the nations in the Five Eyes alliance — the intelligence alliance comprising Australia, Canada, New Zealand, Britain and the United States.
“Expanding the powers of search and seizure available to, or for the benefit of, ASIO in connection with questioning warrants is also a concern,” Wright said. These new powers would allow security agencies to conduct personal searches and seizures with a warrant that had been issued verbally.
She said it is no surprise that people are concerned about their rights being further eroded. “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.”
She said 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’”.
The Greens have stated their opposition to the proposed changes. Tasmanian Senator Nick McKim said on May 13 that there is no “possible justification for the need to interrogate children as young as 14” and that Australia is becoming “even more of a police state”.
Dutton argues that the new ASIO powers are critical to combat domestic terrorism. This is despite 82 anti-terror laws enacted since 2001.
There is support for the repeal of the current detention provisions, which no other Western country has in place. These detention powers allow ASIO to seek a questioning and detention warrant that allows it to detain people for up to one week, during which they can be questioned in eight-hour blocks up to a maximum of 24 hours.
But removing these does not justify Dutton’s efforts to expand apprehension and questioning powers that would still allow for detainees to be coerced.
The joint parliamentary committee has begun its review and will report back to federal parliament on June 26.
Predictably, shadow Attorney-General Mark Dreyfus has talked up the amendments favourably by pointing to the 2015 shooting of IT technician Curtis Cheng outside the Parramatta Police Station by a 15-year-old, saying it can be necessary to detain and question terrorism suspects as young as 14 years old.
Labor said it is entrusting its faith in the parliamentary committee’s “rigorous scrutiny”. But this sidesteps the politics of whether Australia really needs more anti-terror laws.
Labor’s history of standing shoulder-to-shoulder with the Coalition on these laws does not inspire confidence. It looks like it will go silent while Dutton increases the power of security agencies in his super-home affairs portfolio.
It is yet another reason why we need greater ability for public scrutiny as well as a bill of rights to give our civil rights some modicum of protection.
[Vivien Miley is a member of the Socialist Alliance.]