Since 2003, the Australian Security Intelligence Organisation (ASIO) has had the power to detain people for up to seven days, without charge, for questioning in relation to a terrorism investigation.
That person does not have to be a terrorism suspect or even an associate of a terrorism suspect; is compelled to answer questions; and is forced to keep the detention and interrogation secret.
Such a detainee has no clear right to legal representation. ASIO can veto that person's lawyer of choice and monitor any communications between lawyer and detainee. This power has been strongly opposed by civil liberties groups, the Law Council and even by the former Independent National Security Monitor Bret Walker QC, who formally recommended its repeal in his 2012 annual report.
While it has yet to use this power, ASIO is now asking for this power to be expanded by allowing such a detention warrant to be issued without judicial approval and for the detainee to be questioned without judicial oversight.
In the limited public part of ASIO's submission to a review of this power by the new Independent National Security Legislation Monitor, ASIO Director-General of Security Duncan Lewis suggested that ASIO had not sought to use this power because it would take too much time to obtain such a warrant.
“It's simply incorrect to presume that ASIO's non-use of questioning powers is an indication of the ineffectiveness of the warrant power,” Lewis warned ominously. “We've used these powers in the past. We expect the evolving security environment will likely necessitate the use of ASIO questioning powers again in the future.”
The combined submission from the NSW Council for Civil Liberties, Liberty Victoria, Queensland Council for Civil Liberties, South Australian Council for Civil Liberties and Australian Council for Civil Liberties said: “The CCLs are of the view that the administrative detention of an individual upon executive action constitutes an erosion of the separation of powers and is an intolerable incursion upon fundamental rights.
“The CCLs are of the view that in a free and democratic society no individual should be deprived of his or her liberty other than by a court of law, after evidence-based determination, and after the individual has been afforded due process.”
As the detention for questioning power stands, ASIO may seek such a warrant if it believes “there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence” and “that relying on other methods of collecting that intelligence would be ineffective”.
It then has to obtain the Attorney-General's approval and the endorsement of a judge. However, that judge does not have the power to scrutinise a finding by the Attorney-General that the warrant is needed on those grounds.
The CCLs argued that that this is a power to detain someone purely on “basis of an assessment by the Attorney-General and not a court of law. Such executive detention is an extraordinary departure from fundamental rights. It constitutes an erosion of the separation of powers and is an intolerable incursion upon individual liberty.”
As it is, the present requirement for a judge to sign such a detention order “gives a ‘veneer’ of judicial approval to an executive-controlled process”, the CCLs’ submission said.
But it appears that even this is too much bother for the increasingly more powerful and resourced ASIO.
Even more worrying is that the Attorney-General “Right-to-Bigotry” George Brandis may already have the power to end this veneer of judicial approval for an executive detention order, University of Western Australia law lecturer Tamara Tulich pointed out in an article in The Conversation.
“The Attorney-General already has the power to 'declare that persons in a specified class are issuing authorities'. This power has not been used, but is problematic.” Tulich explained. “The Coalition government first proposed a special powers regime in a 2002 bill. This bill contained extraordinary powers, including for incommunicado detention, initially for two days and renewable indefinitely, and strip-searching of non-suspects (adults and children).
“This bill was laid aside in December 2002. A similar, however more limited, regime passed parliament in 2003. This act included key safeguards, such as that a person could only be questioned and detained following an order by a judge, and any questioning must occur in the presence of a retired judge.”
Lewis made it clear in his submission that he wants even these limited safeguards removed: “Firstly, it would be most desirable, in our view, for there to be a streamlining of the warrant authorisation process, whereby authority for the warrants was provided in much the same system as for the other warrants that we execute on a routine basis. That is, the Attorney-General being the authority that could give us these warrants.
“Secondly, the removing of the requirement for questioning to take place before a prescribed authority. As you would be aware, there is a requirement for the statutory office holder of the IGIS [Inspector-General of Intelligence and Security] to oversee the questioning process in any case. So we have, in my view, an unnecessary belt and braces situation here.”
Basically, ASIO wants another security authority to have oversight of its secret interrogation of a detainee.
Australian Human Rights Commission president Gillian Triggs has warned that counter-terrorism laws were "disproportionate to any legitimate aim to protect national security”.
“Indeed Australia has been accused of hyper-legislating counter-terrorism laws, enacting far more such laws than comparable states like the United States and United Kingdom,” she said in the Derek Fielding Memorial Lecture on August 31.
She called for a charter of rights to enshrine protections in law.