Australia’s new security law removes all limits to detention — even for 14 year old kids not suspected of a crime

In December 2020, while Australia and the rest of the world were grappling with a global pandemic, the Australian parliament quietly passed the new far reaching Australian Security Intelligence Organisation Amendment Bill 2020.

The Australian Security Intelligence Organisation (ASIO) is Australia’s domestic spy agency. It’s equivalent to the National Security Branch of the FBI.

Only the Sydney Morning Herald and The Guardian expressed any sort of concern over the bill before it was proposed — mainly because it extended ASIO’s powers to detain 14 year old kids — and since being passed there’s been a deafening silence. They are a bunch of ostriches with their heads in the sand.

The Law Council of Australia seemed to be under the impression that the new bill would repeal ASIO’s ability to detail people for up to seven days and just allow questioning without detention (Questioning Warrants). They clearly didn’t read the legislation, which extends the maximum detention period from seven days to up to 48 hours of interrogation over 28 days and removes all limits on sequential 28 day warrants. It also removes all geographic limitations on where offenses were committed.

There’s widespread agreement that ASIO should have the powers to fight terrorism. However, there seems to be very little concern about the rights of non-terrorists who will inevitably be swept up in any investigation. Moreover, this bill greatly expands ASIO’s powers beyond terrorism to “politically motivated violence.” A kid smashing an egg on a politician’s head will now fall into the same category as a terrorist.

One of the key points is the ability of ASIO to issue Questioning Warrants in

a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from any of the following:
(a) espionage;
(b) politically motivated violence;
(c) acts of foreign interference;
whether directed from, or committed within, Australia or not.

Australian Security Intelligence Organisation Amendment Bill 2020

The important distinction between an ASIO Questioning Warrant and a criminal arrest warrant is that the person named in a questioning warrant doesn’t have to be accused nor even suspected of committing a crime (or planning one).

For example, if one of your acquaintances is suspected of politically motivated violence (such as BLM related violence, anti-BLM violence, or a Greenpeace activist planning to blow up the electricity connection to a coal mine) and ASIO reasonably suspects that you have some pertinent information on that person or action, ASIO can issue a Questioning Warrant requiring you to submit to questioning by intelligence officers.

Similarly, if you have knowledge of someone who is suspected of “foreign interference” who has never set foot in Australia, ASIO can issue a Questioning Warrant.

The term foreign interference isn’t even defined in the bill, which means it can be interpreted to mean just about anything related to non-Australians who could be involved in a matter that is seen to harm the country.

The only difference between adults (persons over 18) and minors (persons between 14 and 17) is that when issuing a warrant for minors, the Attorney General (yes, a politicians issues warrants, not a judge) needs to be satisfied that

there are reasonable grounds for believing that the person has likely engaged in, is likely engaged in, or is likely to engage in activities prejudicial to the protection of, and of the people of, the Commonwealth and the several States and Territories from politically motivated violence, whether directed from, or committed within, Australia or not

Australian Security Intelligence Organisation Amendment Bill 2020

To put it another way, is it likely that this adolescent kid will do something stupid? For most of the kids I’ve met and went to school with, the answer is a resounding yes.

So what are these questioning warrants?

While “detention warrants” that were included in temporary legislation have been removed, “questioning warrants” amount to the same thing. The powers this gives to ASIO seem difficult to justify in a democracy.

A questioning warrant can be issued by the AG for 28 days. The subject of a questioning warrant is required to present himself at a certain place at a certain time as determined in the warrant and remain there until allowed to leave. Technically, it isn’t detention, but trying to leave without permission is a crime punishable with a 5-year prison sentence, so it certainly fits most definitions of detention.

Moreover, the ASIO officer requesting the warrant can include an “immediate appearance requirement” which really does mean immediate. Under such a warrant, state or federal police can be tasked with serving the warrant and escorting the subject to the place of questioning. Specifically, the police officer has the power to enter ANY premises using such force as is necessary and reasonable in the circumstances, at any time of the day or night, for the purpose of searching the premises for the subject or apprehending the subject.

If the police think that the person may be visiting you, they can break in a search your house from top to bottom.

Once delivered to the place of questioning, the subject is subject to 24 hours questioning (or 48 hours if an interpreter is required).

This doesn’t sound too bad right? Except that the subject can be detained for up to 28 days, during which time he can be subject to up to 24 hours interrogation.

The maximum actual questioning time (interrogation) is 24 hours — or 48 hours if you need an interpreter — over however many days it takes (up to 28). The questioning time excludes:

a) the time taken by a prescribed authority to inform the subject of the matters referred to;

b) any time during which a prescribed authority has deferred questioning of the subject;

c) any time during which a prescribed authority has suspended questioning of the subject;

d) any other time determined by a prescribed authority before whom the subject appears for questioning;

Australian Security Intelligence Organisation Amendment Bill 2020

Quite simply, a) b) and c) aren’t even needed. The interrogators have carte blanche to stop the timer whenever they like.

This far exceeds the maximum detention time allowed in other countries such as the US (7 days) and the UK (14 days). And in both cases, you need to be suspected of involvement in a terrorist act — not just be an innocent person who may have information the government wants to squeeze out of you.

The detention time, believe it or not, is the least of the overreach of this bill. It gets worse.

You get a lawyer, right?

Maybe. If you’re fast enough. Under this law, the subject of the questioning warrant can

be prevented from contacting a lawyer if the prescribed authority is satisfied that the subject has had reasonable opportunity to contact a lawyer.

Australian Security Intelligence Organisation Amendment Bill 2020 p63

It doesn’t take long to make a phone call right? Spending 5 minutes contemplating who to contact (you can only contact one lawyer) could waste your “reasonable opportunity.”

But it won’t make much difference if ASIO doesn’t like your lawyer. Any lawyer you contact has to be approved by the people interrogating you:

A prescribed authority may direct that the subject of a questioning warrant be prevented from contacting a particular lawyer

Australian Security Intelligence Organisation Amendment Bill 2020 p63

Even if you get your lawyer of choice, who can afford to pay a lawyer for about 60 hours of work (keeping in mind that the interrogators can decide how much time they spend with you is “questioning time” and how much is just conversation.

They are required to appoint a lawyer to be present in the case of an immediate appearance warrant, but in the case of a normal questioning warrant, ASIO can interrogate the subject if

a lawyer for the subject is not present during the questioning

Australian Security Intelligence Organisation Amendment Bill 2020 p65

This may also happen if you were lucky enough to find a lawyer approved by ASIO and can afford him, but then the officers decide to kick him out of the interrogation permanently for “unduly disrupting” the interrogation by giving you legal advice or telling the interrogators that they have already asked a certain question. The only time a lawyer is allowed to speak during questioning is to clarify a question or request a break. It totally defeats the purpose of even having a lawyer present. And he certainly can’t say, “Don’t answer that question.”

No right to silence

In every cop show you hear the police reading the Miranda rights (or equivalent) “You have the right to remain silent. Anything you do say will be used against you…”

But with ASIO’s new question warrant powers, there’s no right to silence. And Australia doesn’t have anything like the US Fifth Amendment. Instead:

The subject of a questioning warrant is not excused from:
(a) giving information; or
(b) producing a record or other thing;
that the Organisation requests, in accordance with the warrant, the subject to give or produce, on the ground that the information, or production of the record or thing, might tend to incriminate the subject in relation to an offence.

Australian Security Intelligence Organisation Amendment Bill 2020 p80

Albert Einstein once said, “If I remained silent, I would be guilty of complicity.” Under the new ASIO bill, he would be guilty of a lot more than that, and get five years in the clink to boot:

The subject of a questioning warrant commits an offence if the Organisation requests, in accordance with the warrant, the subject to:

i) give any information; or
ii) produce any record or other thing

and the subject fails to comply with the request.

Penalty: Imprisonment for 5 years

Australian Security Intelligence Organisation Amendment Bill 2020 p80

That’s right folks. You can be totally innocent of any criminal activity, not even be suspected of criminal activity, be totally unaware of any crimes that may have been committed, and sentenced for five years in prison for not talking. It gives the term guilty silence a whole new meaning.

Any dirt ASIO digs up on you can be shared with prosecutors

Yes, ASIO officers can share whatever information they received from the 24 hours of forced interrogation (most of it without a lawyer present) with any court or prosecutors. In fact, a court can demand that any and all information obtained during interrogation is shared with either prosecutors or defense lawyers, or both. ASIO officers can’t share the information obtained with defense lawyers unless directed to by a court.

Under this bill, any information obtained through this interrogation process is admissible in court.

So, anyone charged with an offense or suspected of an offense who is exercising their right to silence loses that right. Instead they have the choice of giving up the goods and going to prison or not giving up the goods and going to prison.

And if you aren’t even suspected, it opens the door for ASIO and the police to embark on a fishing expedition to see what offenses you may have committed. It shouldn’t be hard. The average American professional commits three crimes a day without realizing it. Australia probably isn’t far behind.

You get five years in jail if you tell your wife

Once you’re the subject of a questioning warrant, you can contact certain officials (such as the ombudsman) and an ASIO-approved lawyer ONLY. The fact that you have been served the warrant is a state secret that you can’t tell anyone without express permission. Not while the warrant is in force (up to 28 days) and not for two years after the warrant expires.

The idiots who wrote this legislation didn’t really think this one through. Or maybe they did…

You disappear without a trace, get interrogated by ASIO for 28 days, and were only able to contact your lawyer (if ASIO allowed it), who isn’t permitted to inform your wife.

Then you arrive home after 28 days and say, “Sorry honey, but for national security reasons I can’t tell you where I’ve been for the past month. Let’s talk again in two years.”

If you decide to risk a five year prison sentence to save your marriage and tell your wife, and then she mentions it to one of your kids, you are both guilty and can be banged up for 5 years.

It’s right up there with Hong Kong’s new Security Law

Under the widely criticized Hong Kong Security Law, police can hold people for up to 37 days before laying charges. Amusingly, or not, ASIO’s Director General, Mike Burgess, claimed to be offended by the comparison between ASIO’s new powers and the Hong Kong Security Law.

Let’s go through what offended him:

Mr Burgess said the Hong Kong law made it a terrorism offence to damage public transport, granted life immunity from prosecution to Chinese security agents and could subject peaceful protesters to a term of life imprisonment if they had foreign links.

“That is ridiculous, nothing like this amendment bill,” he said.

Sydney Morning Herald: Beyond the pale’: ASIO boss rejects comparisons with HK security law

First, let’s start with a terrorism offense. The term terrorism offense was removed from the new ASIO bill and replaced with acts that are offences punishable under Subdivision A of Division 72, or Part 5.3, of the Criminal Code. This includes damage done to public transport if it is done with the

intention of advancing a political, religious or ideological cause; and the action is done or the threat is made with the intention of  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country.

Part 5.3, of the Criminal Code

It does NOT exclude protests where damage is done that may endanger lives (e.g. to public transport). Furthermore, the damage doesn’t even have to be done. Just planning an attack without a specific target, without a specific time, and without a bomb or any means to create damage can land you a 15-year jail term. And, if you have served your sentence as required by law (“done the time”) then the government can STILL keep you locked up beyond the initial sentence… indefinitely.

So he’s pretty much wrong on that count.

Most ironically, because the law has removed all geographical and national boundaries, many Uighurs in China who are detained under China’s draconian security laws — which Australia has been protesting against — also broke Australian law because of their affiliation with the Turkistan Islamic Party, set up by Chinese Uyghurs, and designated as a terrorist organization by the Australian government under the name of Islamic Movement of Uzbekistan. If these Uyghurs escaped to Australia, they could potentially be arrested and charged under Australian law for precisely the same thing they are being charged with in China which is being seen as a massive human rights violation.

The same would apply to any politically motivated violence by anyone in any country in the world — they have broken Australia’s laws without even knowing the country exists.

That’s how insane these laws are becoming.

Second, immunity to prosecution. According to the ASIO Bill, officers found to be in contravention of the law by, for example, denying sleep or waterboarding subjects, can be prosecuted and sent to jail for up to two years. So at least they don’t have total immunity, although complaints against police officers have a pretty poor run rate of terms of actual prosecutions (let alone convictions).

We’ll give him that one. I wouldn’t expect to die while being interrogated by ASIO, but I wouldn’t like my chances with the Chinese secret police.

As for foreign links, that’s one of the three things you can get picked up for with a questioning warrant (i.e. anything that is considered to be a questioning matter:

questioning matter means a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from any of the following:
(a) espionage;
(b) politically motivated violence;
(c) acts of foreign interference;
whether directed from, or committed within, Australia or not.

Australian Security Intelligence Organisation Amendment Bill 2020 p5

Given that the US government publicly earmarked $3 million for Hong Kong democracy and internet freedom (i.e. dissident groups promoting democracy) in the December 2020 stimulus package, you can sort of see the Chinese government’s point. If the Chinese publicly budgeted $3 million for Australian Socialist groups promoting socialism, Australia may do the same thing. Actually, the Chinese already do this and the Australian government has responded in kind and passed the legislation.

One big difference is that the Australian law requires a warrant issued by the Attorney General and lasts a maximum of 28 days. The Hong Kong Security allows a law maximum of 37 days, and doesn’t require a warrant. Requiring a warrant is a significant difference, as long as Australia has a responsible AG.

However,

Duration of warrant
(4) A questioning warrant may remain in force for a period of no more than 28 days, although the Attorney-General may revoke the warrant before the period has expired.
Issue of further warrants not prevented
(5) Subsection (4) does not prevent the issue of any further warrant.

Australian Security Intelligence Organisation Amendment Bill 2020 p28

Which means the AG can issue consecutive 28-day warrant the moment the previous one expires (or when the 24 hour interrogation limit is met) and detain innocent people potentially for months.

So, the two laws do have important differences. It’s just a question of whether or not the government decides to abuse the law for political purposes. It’s a massive risk and takes a massive chunk out of Australians’ guaranteed freedoms. Specifically, the word “guaranteed.”

But it’s all justified of course. We don’t want to risk another 14 deaths

Australia’s history of terrorist attacks dates back to the 1971 bombing of the Soviet embassy in Canberra, which consisted of a pipe bomb being thrown over the fence and exploding harmlessly. A string of other “terrorist attacks” since then has left 14 people dead. That’s nearly one every three years!

The horror.

Compare this to around 500 Australian deaths in police custody over the same period. Yes, we definitely need to give the police more power. And make no mistake: with these new powers and expanded jurisdiction, ASIO is essentially a third police force.

Can we trust ASIO to not abuse their powers?

Yes we can. Until we can’t.

Since ASIO was given enormously expanded powers granted through these extraordinary warrants, they haven’t officially used them. We know this because ASIO is required to publicly announce the number of warrants issued each year.

Even if we could be 100% sure that the current administration and ASIO leadership won’t abuse these wide ranging powers, it’s only a matter of time before someone with less respect for democracy and more hunger for power has the opportunity to abuse them.

But this wouldn’t happen in Australia would it?

Yes.

The Ostrich Head