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Issue #1916      May 25, 2020

QUESTIONING POWERS OF ASIO SET TO EXPAND

The questioning and detention warrant (QDW) and the questioning warrant (QW) were first introduced into Australia’s legislation in the early 2000s as a response to the perceived threat of terrorism after 9/11 and the Bali bombings of 2002. In 2017, over ten years after the warrants were introduced, the Parliamentary Joint Committee on Intelligence and Security was tasked to review the effectiveness of the division of the Australian Security Intelligence Organisation Act 1979 that covered questioning and detention warrants. On 13th May 2020, Peter Dutton brought a bill to parliament to amend the ASIO Act based on recommendations from the committee.

Arguably the most significant change proposed by the bill is the complete scrapping of QDWs. Only QWs would remain and function similarly to the original legislation introduced in the early 2000s. However, there are some aspects of the current version of the bill and the expansion of powers under QWs that must be questioned.

ORIGINAL QUESTIONING POWERS

First, let us look at the history of QDWs and QWs. In Issue forty-three of the Australian Marxist Review (2006), Anna Pha wrote about ASIO powers in a piece titled “Fighting terrorism or fighting democracy?” This piece looks at how anti-terrorism legislation ropes in all kinds of political dissent into the definition of “terrorism offences.” To receive a warrant under this legislation, you had to have been a suspect of terrorism, connected to terrorism or just have a vague knowledge of a terrorist organisation, even something as seemingly benign as gossip.

Under QDWs you could be detained for up to seven days, and like under a QW, questioned for a minimum of eight hours, but up to twenty hours with an extension or forty-eight hours with an extension if an interpreter is present. There is no explanation as to why those who do not speak English or have a disability should be punished with double the amount of allowed questioning time. There is no right to silence under these warrants, and the penalty for not answering a question is five years in jail. The onus on proof is on the subject. There is also no law that prevents further warrants.

Another disturbing aspect of these warrants is that you are not allowed to reveal that you have been detained and questioned by ASIO to either your family or the media for up to two years after the warrant loses effect. If a detainee under these warrants broke this condition, the penalty is five years in jail.

Your right to a lawyer is maintained under these warrants, however, the legislation waives your right to a choice of lawyer and gives the questioning authority the ability to remove your lawyer if they are seen as too disruptive.

The then Attorney-General, Daryl Williams, excused these warrants by stating that “These measures are extraordinary, but so too is the evil at which they are directed.” Since the legislation passed, there have been no requests for a QDW. However, there were a total of 16 QWs used: three times in 2004, eleven times in 2006, and once in 2006 and 2010.

PROPOSED AMENDMENTS TO ASIO’S QUESTIONING POWERS

The proposed amendments replace the detention abilities with apprehension abilities. Apprehension powers come into effect in a few situations. They can be included in the QW, but they can also be used at the discretion of police, with force if necessary, if the subject is to be immediately brought for questioning; if they attempt to alert another of their QW; if they fail to attend questioning; or if they make attempts to destroy or alter records. Since the proposed amendments now include “communication devices” as a seizable item, you could be apprehended by force if you tried to destroy information on your phone after receiving a QW.

Apprehension is considered a more “humane” way of ensuring that someone turns up for questioning since freedom of movement is only restricted from the time it takes for you to be brought to the place of questioning. The bill considers that you regain your freedom once you step into the place of questioning. However, this cannot be the case since if you do not comply with questioning, then you are penalised with five years in prison.

As stated above, questioning can last up to twenty-four hours or forty hours with an interpreter. This time does not include breaks, changing of recording equipment, time to rest, time waiting for a lawyer, etc. All up you could find yourself spending days in questioning under the threat of five years imprisonment.

Another change to QWs that has received some attention from the media is the lowering of the minimum age a child can be to receive a QW. The bill claims that it is necessary to lower the minimum age from sixteen to forteen because of an increased threat of terrorist acts by children. The bill and the recommendations from the Parliamentary Joint Committee on Intelligence and Security both justify lowering the age with the 2015 incident where a 15-year-old boy shot a NSW police officer.

The bill claims that it does not violate any rights since apprehension powers only apply to children if they are directly connected to politically motivated violence. To further protect children’s rights, the bill states that minors have no ability to waive their right to a lawyer, that a guardian must be present, and only two hours’ maximum of continuous questioning time. However, a lawyer chosen by the authority can act as the child’s guardian representative and questioning can go for up to forty hours if an interpreter is present, spanning days in which a child is in custody.

Another change to the legislation is the addition of “oral warrants”. This addition allows the Attorney-General to orally approve a request for a QW to save time for the spy agency.

TRACKING DEVICES

Another major addition that has slipped through is that there is now no requirement under certain situations for a warrant to be able to plant a tracking device. Instead of a warrant, an authority within ASIO can internally authorise the use of tracking devices for up to ninety days, with no limit on additional approvals. This tracking device may not record or listen to any communication (words, sounds, etc.) and it may not be installed by entering the subject’s home or vehicle. However, the tracking device may be placed in an object you might use such as a bag or a jacket and used to monitor your location and movements. The logic behind this change is to give ASIO more flexibility in responding to national security threats and to better coordinate with police who already have such powers.

EXPANDING OF ASIO’S SCOPE

Previously, QWs and QDWs were specifically for politically motivated violence or terrorist acts as part of the West’s War on Terror. This bill, however, expands the scope of ASIO’s QWs to also include foreign interference and espionage, whether inside or outside Australia. When introducing this bill to parliament, Peter Dutton explained that ASIO’s Director-General reported that investigated terrorist leads have doubled since this time last year. The Director-General’s annual report also stated, according to Dutton, that “the threat to Australia from foreign interference and espionage is higher now than it was at the height of the Cold War.”

By expanding the scope of ASIO’s questioning powers, the number of investigations are bound to increase even further. This bill is creating more national security threats, which means in the future it may justify a further expansion of ASIO powers.

CONCLUSIONS

It is likely that the bill will be rushed through since the current questioning powers are set to end on 7th September this year. In the 2000s, the Communist Party of Australia produced a pamphlet titled “Are you a terrorist?”, which states that the current function of ASIO has moved from “being a spy agency” to “a secret police.” While the ability to detain innocent people for seven days is removed in the proposed amendments, there have been additions to the ASIO Act with the clear intention to give ASIO similar powers as the police. Some media outlets have opposed the current version of the bill, because of how it infringes on personal freedoms and human rights. While the bill should be opposed because of these reasons, we also need to criticise the expanded scope of ASIO’s questioning powers. These powers are self-justified by a new Cold War mentality that, if the bill is passed, will create more investigated cases and will later become evidence that ASIO’s powers are justified.

According to the bill, the infringements on human rights are justified by the “legitimate objective […] to protect Australia’s national security interests.” These interests will always be, at their core, the interests of the bourgeoisie, and so we must be on alert for how these interests manifest and impact the lives of the rights of people, whether inside or outside Australia.

Next article – Editorial – WAGE FREEZE? NO WAY!

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