The Guardian • Issue #2048

ASIO powers revisited


Image: Setreset – Wikimedia Commons (CC BY-SA 3.0)

In 2002 legislation introduced by the Howard Coalition government represented the most dangerous offensive against civil liberties and democratic rights yet seen in Australia. The Espionage and Related Offences Bill gives the government and its agencies, particularly the spy organisation ASIO, broad powers to arrest, detain, and interrogate suspects.

Law enforcement bodies and spy organisations were given free rein to trample on basic freedoms. These laws remain on the books today.

The legislation shifted the burden of proof onto defendants, allows for the prosecution and jailing of public servant “whistle-blowers” and takes away the right to remain silent.

These new powers effectively turned ASIO into a secret police body, totally unaccountable while adding to the draconian “shoot to kill” powers the Howard government gave the military in the lead-up to the 2000 Sydney Olympics.

The “shoot to kill” powers were contained in the Defence Legislation Amendment (Aid to the Civil Authorities) Bill, which allows for the use of the armed forces against Australian citizens engaged in “domestic violence,” a vague term which includes strikes, demonstrations, and riots.

It allows the military to use “deadly force,” i.e. shoot people with impunity. It contains a new offence of terrorism which is a deadly catch-all. According to the then Attorney-General Philip Ruddock, “These offences will cover violent attacks and threats of violent attacks intended to advance a political, religious or ideological cause which is directed against or endanger Commonwealth interests.”

The offence of terrorism will carry a maximum penalty of life imprisonment. This wide-ranging definition directly attacks fundamental democratic rights, such as the right to political discourse (freedom of speech), dissent – all basic rights, including trade union protests and non-government organisations who are “ideologically” opposed to the government of the day.

The right to remain silent was scrapped. Refusal to answer questions under interrogation can bring a penalty of five years’ jail. “Interrogation” is open-ended to take on different forms, including torture.

It allows ASIO to detain suspects for 48 hours without charge and be allowed to question people not themselves suspected of terrorist activity but who “may have information that may be relevant to ASIO’s investigations into politically motivated violence.”

The legislation also “authorises the State or Federal police, acting in conjunction with ASIO, to arrest a person and bring that person before the prescribed authority.” ASIO will merely have to go through the formality of obtaining an arrest warrant from a federal magistrate.

Previously ASIO had no powers of arrest. The only reason to give ASIO these new powers is so that they fall under the veil of secrecy surrounding the organisation.

The legislation contains a section that allows the government of the day to use the threat of jail to silence potential whistle-blowers, and journalists who publish the leaked information:

“Information concerning the security or defence of another country, being information that is, or has been, in the possession or control of the Commonwealth; and …

“(b) the person does so intending to prejudice the Commonwealth’s security or defence; and

“(c) the person’s act results in, or is likely to result in, the information being disclosed to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.”


Further down the Bill we find:

“A person commits an offence if the person communicates, or makes available, an official record of information, or official information:

“(a) to a person to whom he or she is not authorised to communicate it or make it available; or

“(b) to a person to whom it is, in the interest of the Commonwealth, his or her duty not to communicate it or make it available. Penalty: Imprisonment for 2 years.”

A public servant may also be jailed for six months if they hold onto potentially damaging information even if it has not been leaked. The Attorney-General also claims that the Bill was: “simply intended to restate the existing provisions under the Crimes Act in more modern language…”

“That’s a load of rubbish”, Cameron Murphy, at the time president of the NSW Council for Civil Liberties, told the Guardian. “It’s not modernising at all. It’s extending it in a new way by removing a defence of public interest.

“Previously if you published an unauthorised government document, you could mount the defence that it was ‘in the public interest’ to do so. That will be removed. It increases the penalty for people who pass on this information to 25 years. So it’s a significant stick to wave at people who might be thinking of leaking information.”

Said Murphy: “The objective of the legislation is to stop anyone who comes across government information which is damaging to the government, from exposing it through the media.”

The Attorney-General assured the public that: “In each case, safeguards apply to ensure that legitimate transfers of information can continue.”

Yet no safeguards are apparent in the Bill. Just the opposite. It says: “A prosecution under this Chapter may be instituted only by, or with the consent of, the Attorney-General,” but that “a person charged with an offence against this Chapter may be arrested … even if the consent of the Attorney-General … has not been obtained.”

It also contains provisions for trials held in secret: “At any time bft, the judge or magistrate … may, if satisfied that it is in the interest of the security or defence of the Commonwealth:

“(a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

“(b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published.”In some sections of the Bill it also states: “The defendant bears a legal burden in relation to the matter.”

(A legal burden of proof on the defendant in this case must be discharged on the balance of probabilities, a lesser burden than “beyond all reasonable doubt.”)

This legislation, along with beefed up police and military forces that have been given broad new powers to search, detain arrest and use force against “suspects,” will not be used to protect Australia from an external threat.

It will inevitably be used to suppress the growing discontent of the people themselves.

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