ASIOland: changes to Australia’s national security legislation

By Elizabeth O’Shea

Originally published by Overland, 1.Oct.14

There has been plenty of hype over the recent changes to Australia’s national security legislation, and rightly so. But it is worth spending a moment to work out what actually is already on the books, what is new, and what’s coming.

Prior to the recent amendments, the biggest and most controversial set of reforms to the Australian Security and Intelligence Organisation Act 1979 were passed in 2003. In the wake of the 11 September terrorist attacks, ASIO was given a sweeping new set of laws to work with.

The reforms created a set of terrorism offences. They also allowed the government to proscribe organisations, which then criminalised certain activities in association with those organisations, including providing funds, becoming a member of, or training with, the organisation.

Controversially, the 2003 reforms also created two new kinds of warrants: one for questioning and one for detention of a person where that was necessary to effectively question them. There is no requirement for ASIO to explain why they are detaining the person.

A person detained under a detention warrant is not permitted to contact anyone at any time while being detained, even a family member. The only exceptions are if the detained person wants to contact persons specified in the warrant, or make a complaint to the relevant authority. The person can be questioned for up to eight hours, and that time can be extended. According to one commentator, extensions of time have been requested and granted each time, with extensions on at least five, and possibly six, occasions. A person cannot be detained for more than seven days continuously. Compare this to the powers of the AFP to detain a suspect, where the limit is generally four hours, but cannot be more than 20 hours.

The warrant must specify that the person detained can contact a lawyer of their choice but there is a curious provision that allows a veto on the person’s choice of lawyer. The veto is permitted if the authority granting the warrant is satisfied that contacting the lawyer may result in a person involved in a terrorism offence being alerted that the offence is being investigated or that a record may be destroyed, damaged or altered. This is particularly galling to me as a lawyer. If ASIO is concerned a lawyer might do something of that nature, there are professional regulations to deal with the situation.

The reforms also compel a person who is subject to these warrants to answer questions, by making it an offence not to do so. In other words, they remove the privilege against self-incrimination that otherwise is a foundation of criminal law. Evidence obtained in this manner is admissible in respect of terrorism offences, though not in respect of other types of offending. It’s also relevant to note the very limited role of the person’s lawyer (if one is appointed without veto – and there no requirement for the person’s lawyer to be present during questioning). The legal advisor must not intervene in questioning, and can be removed if found to be ‘unduly disrupting the questioning.’

In 2012, a number of academics noted that this arrangement was ‘unique in the Western democratic world in that it establishes a system whereby an intelligence agency may coercively question and detain a non-suspect citizen.’ It’s hard to see how such an extreme set of powers is actually needed. None of these warrants were issued last year. In the last seven years, only two were issued (in 2010 and 2006), and 11 of the last 16 were issued in 2005.

The 2003 reforms also allowed the detention of minors between 16 and 18 years old, against the recommendations made by the Parliamentary Joint Committee on ASIO, ASIS and DSD and the Senate Legal and Constitutional Committee.  The Convention on the Rights of the Child permits detention of children only as a matter of last resort and for the shortest possible period of time. Australia is already in breach of this requirement in respect of minors held in immigration detention (especially unaccompanied minors, for whom the minister is guardian). This was extended to anyone under the 2003 reforms.

With approval, minors are also able to be strip searched, including using such force as is necessary and reasonable. The bill at one time permitted strip searching of anyone over 10 years of age, but this was raised to 16 years of age.

Round 1

In this context, ASIO and friends will very shortly have a general immunity from civil and criminal liability when carrying out special intelligence operations. Save for some limited exceptions, any participant in a special intelligence operation – or SIO – will not have to face justice if they break the law. A SIO is basically just an operation that been approved as such (s 35C(2)) – there is no requirement that the substance of the operation is particularly secret or time sensitive, or that there is an imminent risk to life or health. Indeed the defining characteristic seems to be that an SIO is an operation where ASIO is going to be breaking the law (s 34B).

It will be an offence for any person to disclose information about a special intelligence operation punishable by five years jail (s 35P). If the disclosure endangers health or safety or prejudices the effective conduct of an SIO, the jail term rises to ten years. There are no public interest exceptions.

This bill also has a range of provisions relating to warrants. ASIO is permitted to apply for a warrant to access a computer, and, controversially, the definition of computer is about to change. Currently, ‘computer’ means a computer, a computer system or part of a computer system.  When this bill becomes law, computer will be defined as one or more computers, computer systems, computer networks or any combination of these.

Round 2

The second set of amendments deals with so-called foreign fighters. The bill creates all sorts of new provisions under the Criminal Code, including an offence of advocating terrorism (s 80.2C), while extending control orders, preventative detention provisions and prohibitive contact orders.

The bill also creates a large number of new offences punishable by life imprisonment. Any Australian citizen or visa holder who is found to have engaged in a hostile activity in that or any other foreign country, or who enters a foreign country with the intention of doing so can be imprisoned for life (s 199.1(1)). (I was a bit worried for the government that these people might be caught by the provision – but there is an exclusion if the person is serving in the armed forces of another country (s 199.1(4)).) The sentence of imprisonment for life also attaches to a range of associated offences, including engaging in preparatory acts, accumulating weapons, providing or participating in training, giving or receiving goods, allowing buildings, vessels or aircraft to be used to commit either of these two offences. Some of these offences already existed, in similar but not identical form, in the Crime (Foreign Incursions and Recruitment) Act 1978 but all had much lesser penalties.

The kicker here, and a marked change from the previous incarnation of these offences, is what actually constitutes ‘engaging in hostile activity’. The definition includes ‘the engagement, by that or any other person, in subverting society in that or any other foreign country.’ So what is it to ‘engage in subverting society’? According to the bill, it includes conduct that causes serious harm, serious damage to property, death or endangers life and conduct that creates a serious risk to the health or safety of the public. Troublingly, it also includes conduct that seriously interferes with, disrupts, or destroys, an electronic system.

This is very broad. An electronic system can be an information system, a telecommunications system, a financial system, a system used for the delivery of essential government services, a system used for, or by, an essential public utility and a system used for, or by, a transport system.

There is an exception for advocacy, protest, dissent or industrial action. But arguably, denial of service attacks and even potentially mass Snowden or Manning-type leaks could fall foul of these provisions. It is interesting to ponder whether a court would find that they satisfied any of the exceptions.

You can also face ten years in prison for entering or remaining in an area of a foreign country that the foreign minister has declared to be a place where a listed terrorist organisation is engaging in a hostile activity. This provision has exceptions but the evidential burden falls to the individual to raise these exceptions.

Under s 3ZZAA and s 3ZZCA, the AFP will be able to apply for a delayed notification search warrant, which authorises the entry and search of premises without them having to produce the warrant at the time of entry and search. Again, it would be interesting to know how or why this provision was being used. But that’s unlikely to happen, given that disclosing information about a delayed notification search warrant is also an offence, punishable by two years imprisonment (s 3ZZHA).

It’s also curious to note that under the bill, persons who might prejudice the security of Australia or a foreign country may lose family assistance, parental leave payments and social security payments. This can happen if the Minister for Foreign Affairs or the Minister for Immigration issues a security notice. The Minister for Foreign Affairs can issue such a notice if the minister has cancelled the person’s passport. The Minister for Immigration may issue such a notice if the person has been given an adverse security assessment. There is no ability to obtain reasons for this decision – that means in practice ƒdit is unreviewable.

The increasingly broad effects of an adverse security assessment by ASIO is a very concerning trend. If you are an asylum seeker, you can lose your liberty (indefinitely); if you are a visa holder, you can lose your visa; if you are a citizen, you can lose your passport. Now you and your family may also lose tax and social security benefits.

ASIO is making decisions about security assessments without reference to the consequences of such an assessment. That is, ASIO just issues the assessment and the government determines what flows from it. But this creates an accountability vacuum. ASIO must make mistakes. Indeed, they often base decisions on contradictory and diffuse information. Such is the nature of intelligence gathering. But the Minister for Immigration has never given a visa to a refugee who has had an adverse security assessment (though one has been granted to a refugee who had such an assessment in the past). The failure to offer any proper form of review for ministerial decisions that are made as a result of adverse security assessments represents a significant increase in the seriousness of these assessments without any correlating checks and balances.

Round 3

Data retention has already been promised as next on this list of reforms. It will be interesting to see how this is received by the public and the press, given the negative reaction when it was floated by the last Labor government.

What’s next?

Law enforcement agencies are getting more powers to prosecute crimes. The terror fever means that powers associated with terrorism are finding their way into our social security system and establishing themselves more fully in an immigration context. ASIO is increasingly being given powers that are commonly reserved for law enforcement agencies, despite enforcement not being one of the functions of the organisation. Basically, the building blocks of our democratic system are being attacked in the name of terrorism. We have to resist and demand repeal.

Elizabeth O’Shea is a public interest lawyer, working on cases that address issues of community concern and further the public good. She has also worked at the International Labour Organisation in Geneva and in Louisiana, USA with a capital defence office representing indigent prisoners on death row. Lizzie conducts social justice litigation on behalf of refugees, workers who have been underpaid, and persons who have been unfairly targeted by national security legislation.

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