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

From The Ostrich Head

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…

Read the rest of the story at The Ostrich Head