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Head, Michael --- "Another threat to democratic rights: ASIO detentions cloaked in secrecy" [2004] AltLawJl 34; (2004) 29(3) Alternative Law Journal 127

ASIO detentions cloaked in secrecy[#]


Supported by the Labor Party and with barely a mention in the media, the Howard government late last year pushed laws through parliament that effectively gag all public protest against, or even reporting of, the use of the new detention and interrogation powers of the Australian Security Intelligence Organisation (ASIO). It is now a crime, punishable by up to five years jail, to publicly mention any operation involving ASIO's unprecedented powers -given to it less than six months earlier -to detain and interrogate people without charge, simply on the allegation that they may have information relating to terrorism.

Under last December's amendments to the Australian Security Intelligence Organisation Act 1979 ('AS/0 Act), the very fact that someone has been detained cannot be talked about publicly for up to 28 days, until after the detention warrant expires. No other information about the detention can be disclosed for two years. The ASIO Legislation Amendment Act 2003 represents a fundamental attack on the freedom of the press. Even if ASIO itself breaks the law, for example by detaining someone for more than seven days without obtaining a new warrant, any journalist who reports the case could be imprisoned. In effect, these measures outlaw political campa1gns against arbitrary or illegal detentions. If someone sees a person being hauled away by ASIO or the federal police for questioning, they cannot disclose that fact to anyone -not even a family member, friend, civil liberties group, member of parliament or political party. If a detainee's family or associates somehow find out about the detention, they cannot publicly comment on it in any way.

The ASIO detention laws passed earlier 1n the year already prohibited detainees or their lawyers from alert1ng the1r families, the media or anyone else that they had been detained.[1] This gag has now been broadened to cover all people, not just detainees and lawyers, and extended for the full 28-day period of a warrant The new Section 34VAA of the AS/0 Act provides:

Secrecy relating to warrants and questioning
Before the expiry of the warrant
(1) A person (the discloser) commits an offence if:
(a) a warrant has been issued under section 34D; and
(b) the discloser discloses information; and
(c) either or both of the following apply
(i) the information indicates the fact that the warrant has been issued or a fact relating to the content of the warrant or to the questioning or detention of a person in connection with the warrant;
(ii) the information is operational information; and

(d) if subparagraph (c)(ii) applies but subparagraph (c)(i) does not -the discloser has the 1nfomnation as a direct or indirect result of:
(i) the issue of the warrant; or
(ii) the doing of anything authorised by the warrant, by a direction given under subsection 34F(1) 1n connect1on w1th the warrant or by another provision of this division in connection with the warrant; and
(e) the disclosure occurs before the end of the period specified in the warrant as the period for which the warrant
is to be in force; and
(f) the disclosure is not a permitted disclosure. Penalty: Imprisonment for 5 years.

A further two-year prohibition has been imposed on the public disclosure by anyone of 'operational information' that was obtained, directly or indirectly, from the questioning process. 'Operational information' is defined in the w1dest possible terms. It covers all information that ASIO has or had; sources of ASIO information; and any 'operational capability, method or plan' of ASI0.[2] Section 34VAA (2) provides:

In the 2 years after the expiry of the warrant
(2) A person (the discloser) commits an offence if:
(a) a warrant has been issued under section 34D; and
(b) the discloser discloses information; and
(c) the information is operational information; and
(d) the discloser has the information as a direct or indirect result of:
(i) the issue of the warrant; or
(ii) the doing of anything authorised by the warrant, by a direction given under subsection 34F(1) in connection w1th the warrant or by another provision of this division in connection with the warrant; and
(e) the disclosure occurs before the end of the 2 years starting at the end of the period spec1fied 1n the warrant as the period during which the warrant is to be in force; and
(f) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 5 years.

Such serious offences normally require a criminal intent. But strict liability has been imposed on detainees and lawyers -it will be no defence if they inadvertently disclose information or were not aware that it was 'operational information'. Other people can be convicted if they were 'reckless' -1f they were aware of a substantial risk that they were disclosing operational information, and were not justified in taking that risk.[3]

The only exceptions are for 'permitted disclosures' - essentially those that are authorised by the ASI0 Act and regulations, or by the Attorney General or the ASIO director-general. Noticeably there is no exception for disclosure by a member of parliament.[4] This may mean that MPs, as well as journalists, could be jailed for disclosing Information about the use of ASIO's powers.

Parliamentary privilege might protect disclosures in parliament or before a parliamentary committee, but the relevant minister could give no guarantee of this point during the brief Senate debate.[5]

It is now possible for ASIO to cloak virtually all its operations in secrecy, simply by obtaining a questioning warrant from the Attorney General. For that reason alone, the latest legislation makes it more likely that ASIO will use, and abuse, its detention powers, which can easily be exploited for political purposes to victimise government opponents. (ASIO has a long record of abusing its powers for such purposes. Sioce the Chifley Labor government established the intelligence service in 1949, it has been used by successive governments, Labor and conservative alike, to monitor, d1srupt and harass a wide range of political opponents, Including Labor Party members, trade unionists, anti-war activists, students and socialists.[6])

The ASJO Legislation Amendment Act strengthened ASIO's powers in two other major respects. First, it doubled the time that a detainee can be interrogated, from 24 to 48 hours during a week-long detention, if the prisoner requires an interpreter because they are not fluent in English or have impaired hearing or any other disability. This means that they can be questioned throughout six eight-hour blocks within seven days.[7] Given that the interrogation can begin without a lawyer being present, that ASIO can veto a detainee's choice of lawyer and that a lawyer cannot interrupt or object to the questioning in any case (see below), this provision can be abused to browbeat and intimidate detainees. It is also breaches article 26 of the International Covenant on Civil and Political Rights, which states that all persons are equal before the law and requires 'equal and effective protection against discrimination' on a number of grounds, including language.

Second, the legislation requires all those subjected to a questioning warrant to surrender their passport and makes it an offence for them to leave the country before the 28-day warrant expires.[8] The Passports Act already permitted the foreign minister to cancel or withhold a passport from anyone who 'might prejudice the security of Australia or of a foreign country' but those affected could at least appeal to the Administrative Appeals Tribunal.[9] The new laws grant ASIO virtually unfettered power to strip anyone of their right to travel freely, with no right of appeal, except by way of complaint to the Ombudsman or the Inspector-General of Intelligence and Security, neither of which have any legally binding or determinative power.

ASIO's detention powers

The breadth and implications of these secrecy provisions can only be fully gauged by reference to the previous amendments to the ASJO Act, passed in June 2003, giving ASIO the power to detain and question people without charge or trial. ASIO and federal police officers can now raid anyone's home or office, at any hour of the day or night, and forcibly take them away, interrogate and strip-search them and hold them incommunicado, effectively indefinitely through the issuing of repeated warrants.[10] Detainees did not need to be suspected of a terrorist offence, or any other criminal offence. The Attorney General can certify that their interrogation would 'substantially assist the collection of Intelligence that is important in relation to a terrorism offence,' even if no act of terrorism has occurred.[11] This power can be used to detain journalists and political activists, as well as the children, relat1ves or acquaintances of supposed terrorism suspects.

Those detained have no right to know why they are being hauled off for interrogation. If they resist, violent force, including lethal force, can be used against them. Section 34JB permits police officers to use 'such force as is necessary and reasonable' in breaking into premises and taking people 1nto custody. This clause gives police the power to kill or cause 'grievous bodily harm,' as long as they believe it necessary to protect themselves. In addition, officers may use 'reasonable and necessary' force to conduct strip-searches.[12] If anyone refuses to answer any question or hand over any material that ASIO alleges they possess, they face five years jail. In a significant departure from established law, the Act effectively reverses the burden of proof, overturning a basic protection against police frame-up. If ASIO alleges a person has information or material, the onus is on the individual to prove otherwise.

If detainees know the name of a lawyer, they can contact them for legal advice, but only if ASIO does not object to the lawyer. Even if ASIO accepts a detainee's choice of lawyer, questioning can commence without the lawyer being present In any case, the lawyer cannot object or intervene during questioning -if they do, they can be ejected for 'unduly disrupting' the questioning. If they inform a detainee's family or the media about the detention, they too face up to five years in jail. A lawyer who is provided information by a cl1ent may also be detained for interrogation.

Initial detention can last for up to seven days, including three eight-hour blocks of questioning over three days, but the Attorney General can easily approve further seven-day periods. To justify serial extensions, ASIO and the government simply have to claim that 'additional to or materially different' information has come to light.[13] Interrogation must be videotaped [14] and conducted in the presence of a 'prescribed authority,' that is a judge, retired judge or presidential member of the Administrative Appeals Tribunal.[15] Videotaping of questioning, currently required for police questioning in most Australian jurisdictions, is no guarantee against the planting of evidence and extraction of false confessions.[16] And a government can readily appoint retired judges or tribunal members, with no judicial tenure, who may be amenable to its requirements.

The legislation radically extended ASIO's powers. The agency previously had no powers of arrest or interrogation. The state and federal police can detain people, but only on suspicion of committing a criminal offence and those suspects must be either charged or released within a short period, and generally cannot be detained for interrogation.[17] Prisoners have the right to legal counsel, who can be present during questioning, and to remain silent.[18] With the notable exception of the detention of asylum seekers, detention without trial is regarded as unconstitutional.[19] A citizen is entitled to decline a request to attend a police station 'to assist police'.

Protests over secrecy ignored

The government insisted on pushing the ASIO secrecy provisions through unamended in the last parliamentary session before Christmas 2003, despite strong protests from civil liberties and media organisations. Amnesty International stated: 'The legislation establishes a system under which a person wishing to make public comment on the actions of ASIO would first need to get approval from the government ... The level of secrecy and lack of public scrutiny provided for by this Bill has the potential to allow human rights violations to go Unnoticed and in a climate of impunity.'[20] Liberty Victoria stated: 'ASIO's activities pursuant to jud1c1ally granted investigative warrants are to be covered in a veil of secrecy unprecedented in Australian history ... These secrecy offences pose a grave threat to Australia's democracy and could enable the government of the day to impose a 'war of terror' against its political opponents or vulnerable sections of the community.'[21]

In a letter to Attorney General Philip Ruddock, Australia's main media proprietors' groups -Fairfax, News Ltd, SBS, the ABC, the Australian Press Council and Commercial Radio Australia -warned:

This has the potential to completely remove from public scrutiny all discussion of ASIO's activities in relation to terrorism. Such a measure to address threats of terrorism is capable of being used by the government against Australian c1t1zens while providing little tangible benefit, save for a complete media blackout of those matters that are so important in this political climate.[22]

Lawyers representing Sydney families whose homes have been raided by ASIO in recent months had already complained to the media of heavy-handed and unlawful ASIO and federal police tactics, including threats to detain occupants if they did not answer questions.[23] Under the new laws, such complaints themselves are illegal.

Attorney General Ruddock, echoed by Labor and the media, cla1med that the new laws were needed to remedy weaknesses in ASIO's detention powers revealed by the Willie Brigitte affair. Brigitte, a French citizen, was removed from the country in October 2003 on alleged visa violations after the French intelligence services advised ASIO that he was suspected of terrorist connections. The minister maintained that because Brigitte was a French speaker and required an interpreter, ASIO could not have held him long enough to interrogate him effectively. Mr Ruddock's claims are patently false. The government decided not to use its detention powers aga1nst Brigitte because it had no evidence against him -not even enough to justify a questioning warrant.[24]

Labor blocked with the government to reject a series of minor amendments by the Greens and Australian Democrats that would have referred the legislation to a parliamentary committee, or partly exempted media organisations (provided that their reports were not a 'threat to national security').[25] Speakers from both the government and the Labor Party expressed contempt for media freedom and the public's right to know. Finance Minister Nick Minchin said the government would not 'place the media above the law,' while Labor's Senator Robert Ray insisted that journalists were not a 'protected species'.[26]

Labor's support for the legislation, just days after' the election of Marik Latham as its new leader, suggests that the pattern of bipartisan support for the erosion of democratic rights will continue. Since the September 11, 2001 attacks in the United States, Labor has repeatedly joined hands with the government to overturn fundamental rights on the pretext of combatting terrorism. 'Terrorism' -defined so widely that it covers many traditional forms of political action and protest -has become a crime punishable by life imprisonment; the government has been given the authority to ban political parties that allegedly support terrorism; and ASIO has been handed previously unthinkable powers, such as detention without trial.[27]

None of these provisions has anything to do with protecting ordinary people against terrorism. Every conceivable terrorist act, including murder, hijacking, kidnapping, bombing and arson, was already a serious crime. ASIO also had a vast array of powers to tap phones, instal listening devices in offices and homes, Intercept telecommunications, open people's mail, monitor online discussion, break into computer files and databases, seize computers and use tracking personal devices.[28]The ASIO Director-General or his delegated officers could already 1ssue emergency search and entry warrants, allowing officers wide scope to conduct operations against political activists and organisations, as well as to infiltrate them.[29] Moreover, ASIO is part of an extensive security and intelligence network, which incorporates ASIO, the Defence Intelligence Organisation (DIO), the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD), the Office of National Assessments (ONA) and special state police units (formerly called Special Branches).[30]

This suggest that the real purpose of the new powers is to utilise the 'war on terror' to cloak in secrecy a broader use of what are essentially police-state style measures, under conditions of widespread opposition to the wars in Afghanistan and Iraq and considerable domestic social and political discontent

Constitutional doubts

Of course, Australia has no Bill of Rights preventing such measures. During the 1990s, the High Court cautiously ruled that the constitution contains an 1mplied freedom of political communication.[31] The AS/0 secrecy provisions attempt to s1de step any constitutional challenge by stating that they do not apply 'to the extent' that they would infringe the implied freedom.[32] Nevertheless, to pass the constitutional test, a law must be 'proportionate' or 'reasonably adapted' to the requirements of national security. This makes particularly questionable the lengthy and sweeping two-year ban on disclosing any ASIO 'operational information'.

However, in the past the High Court has refused to call into question ASIO's assessment of what constitutes a threat to security. In 1982, in Church of Scientology v Woodward [33] the court rejected an attempt by the Church of Scientology to challenge ASIO's assessment that the church presented a possible threat to security. A similar result was reached two years later in A v Hayden,[34] with regard to the operations of ASIS, ASIO's overseas sister agency.

Wider constitutional doubts remain. In April 2002 the leaders of the Australian states and territories, all currently run by Labor governments, agreed at a Conference of Australian Governments summit to formally refer their powers over terrorism to the federal government Their decision has the potential to give the Commonwealth law-making and police enforcement power over politically-related crime for the first time since Federation in 1901, possibly freeing the Howard government of the need to find precise constitutional heads of legislative or executive power for its measures.[35]

Even so, the potential constitutional problems with the laws are manifold,[36] arising from the Commonwealth parliament's lack of general power to legislate with respect to criminal law[37] or 'terrorism',[38] as well as the constitution's implied right to political communication and, perhaps, freedom of association.[39] In addition, detention without trial may infringe on judicial power and the separation of powers.[40] The freedom of religion protected by s 116 of the constitution could also be infringed if the measures interfere with the free practice of a religion, although the High Court has interpreted s 116 as only invalidating laws that specifically target religious practice.[41]

Taken together, these possibly unconstitutional laws represent a grave threat to essential civil liberties. Serious inroads have been made into long-standing principles such as no detention without trial, the presumption of innocence and freedom of speech and association. The 'war on terror' has been exploited to set the stage for measures that substantially expand the powers of the security agencies, at the expense of basic democratic rights.

[#] *An earlier abridged version of this article was first published on the World Socialist Website

[*] MICHAEL HEAD teaches law at the University of Western Sydney.

© 2004 Michael Head email:

[1] The ASIO Amendment Legislation Act 2003 repealed the relevant provisions of the ASIO Act -s 34U (7), (8), (9), (10) and (11) and s 34V (4), (5) and (6) -and replaced them by s 34VAA

[2] ASI0 Acts 34VAA (5)

[3] ASI0 Acts 34VAA (3), Criminal Code Act (Cth) 1995 ss 54, 6.1. For strict liability offences, the Criminal Code Act s 9 2 provides for a defence of ‘mistaken but reasonable belief’ about facts.

[4] ASI0 Act 3 34VAA (5)

[5] Australia, Debates, Senate, 4 December 2003, 18790 (Finance Minister Nick Minchin)

[6] This record has been documented in several works and official inquiries See, for example, D McKnight. Australia's Spies and their Secrets (1994), R Hall, The Secret State, (1978), F Cain, The Origins of Political Surveillance in Australia, (1983); F Cain, ASIO, an Unofficial History, (1994), J Hocking Beyond Terrorism, The Development of the Australian Security State, (1993), Commonwealth of Australia, Royal Commission on Intelligence and Security Fourth Report, (1977), vols 1 and 2

[7] ASIO Act s 34HB (8), (9), (11) and (12)

[8] ASIO Act s 34JC

[9] Passports Act 1938 (Cth) ss 8 11A

[10] ASIO Act ss 34A to 34Y

[11] Ibid s 34C

[12] Ibid s 34L

[13] Ibid s 34C.

[14] Ibid s 34K.

[15] Ibid ss 34B and 34DA

[16] See M Chaaya, 'The Right to Silence Reignited Vulnerable Suspects, Police Questioning and Law and Order in NSW,' (1998) 22 Criminal Law Journal 82. On police 'verballing' and videotaping in general see Brown, Neal, Famer and Weisbrot, Criminal Laws, (2nd ed, 1996) 203-34

[17] Williams v R [1986] HCA 88; (1986) 66 ALR 385

[18] S Bronitt and M Ayers, 'Criminal law and human rights,' in D Kinley (ed), Human Rights in Australian Law, (1998)

[19] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

[20] Australia, Debates, House of Representatives, 2 December 2003, 23126 (Michael Organ MP)

[21] Ibid.

[22] 'Claims ASIO bill will gag the press', The Age, 3 December 2003

[23] Australia, Debates, House of Representatives, 2 December 2003, 23126 (Michael Organ MP).

[24] M Head, 'More sensational 'terror cell' claims· but where is the evidence?' World Socialist Web Site, 4 November 2003 < www­n04shtml> at 10 June 2004.

[25] Australia, Debates, Senate, 4 December 2003, 18785 -18799.

[26] Ibid 18795 and 18798

[27] M Head, "Counter-terrorism' laws a threat to political freedom, civil liberties and constitutional rights', (2002) 26 Melbourne University Law Review 266

[28] See generally, Australian Security Intelligence Organisation Act 1979 (Cth)

[29] See J Hocking, above n 6, Chapter 8

[30] Ibid and H Lee, P Hanks and V Morabito, In the Name of Notional Security, The Legal Dimensions, (1995) ch 3

[31] Nationwide News Pry Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106

[32] ASIO Act s 34VAA (12)

[33] [1982]154 CLR 25

[34] [1984] HCA 67; (1984) 156 CLR 532

[35] Most states have legislated accordingly· D Williams, 'Reference of Terrorism Powers' (Press Release, 27 March 2003)

[36] M Head, above n 27.

[37] Per Higgins J in R v Kidmon [1915] HCA 58; (1915) 20 CLR 425, 448 'There is not in our Constitution any power to make laws as to "the criminal law" '

[38] Royal Commission on Intelligence and Security (Commissioner Justice Robert Hope), Fourth Report Volume 1 (1978)

60 -65, Royal Commission on Australia's Security and lntelligence Agencies (Commissioner Justice Robert Hope), Report on the Australian Security lntelligence Organisation (1985) 88 -89, and V Windeyer, above n 18 at 291

[39] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1

[40] Chu Kheng Lim v MILGEA (1992) 176 CLR 1

[41] See Krygger v Williams (1912) 12 CLR 366 and Adel01de Company of Jehovah's Witnesses v Commonwealth [1943] HCA 12; (1943) 67 CLR 116

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