By Keiran Hardy
Home Affairs Minister Peter Dutton has introduced a new bill that will amend the controversial questioning and detention powers held by the Australian Security Intelligence Organisation (ASIO).
While some changes are welcome, others are a cause for concern. One major change is that the legislation will allow ASIO officers to coercively question children as young as 14.
For this bill to be passed, Home Affairs must offer a stronger justification as to why the expanded powers are needed in the current security climate.
Calls for new counter-terrorism powers have become commonplace in Australia, to the point where we now have more than 80 laws directed at the threat of terrorism.
Repealing controversial detention powers
One of the biggest changes in the bill is that it would repeal ASIO’s power to detain people for questioning. Currently, ASIO has the power to seek a questioning and detention warrant (QDW) that allows people to be detained for up to one week. Detention can be approved if a person is likely to fail to appear for questioning, alert someone involved in terrorism, or tamper with evidence.
During that period, a person can be questioned in eight-hour blocks up to a maximum of 24 hours. This is purely an intelligence-gathering exercise, and is not related to any investigation for a criminal offence. The questioning can be approved if it would
substantially assist the collection of intelligence that is important in relation to a terrorism offence
The questioning is coercive, in that a person faces five years in prison for failing to answer any of ASIO’s questions. The powers are also highly secretive: it’s five years in prison for anyone who reveals anything about a warrant.
These powers are some of Australia’s most controversial anti-terror laws, as no democratic country has granted its domestic intelligence agency the same power to detain people for questioning.
Reviews by the Independent National Security Legislation Monitor, the Parliamentary Joint Committee on Intelligence and Security and the COAG review of counter-terrorism legislation have all recommended this power be repealed. Such a move would be welcome.
Expanded powers to question minors
At the same time, the bill will expand ASIO’s power to seek questioning warrants (QWs). These trigger all the same questioning processes and criminal offences as QDWs, they just don’t allow ASIO to detain the person outside the questioning period.
If the bill passes, QWs will be split into “adult questioning warrants” and “minor questioning warrants”. Minor questioning warrants will be available for children as young as 14 who are “likely to engage in” politically motivated violence.
This significantly widens the current thresholds. QWs are currently available for 16-year-olds only when the attorney-general is satisfied the person “will commit, is committing or has committed a terrorism offence”.
Some additional safeguards will protect minors under the new measures. Before issuing a questioning warrant, for instance, the attorney-general will need to consider the “best interests” of the child.
This is consistent with international law requirements and Australia’s expanded control order regime, which can include electronic tagging and curfews.
Under the proposed laws, a young person can only be questioned in blocks of two hours or less, and a lawyer must be present during all questioning.
However, restrictions currently placed on lawyers will be retained. Lawyers, whether acting for young people or adults, are not allowed to intervene in questioning, except to clarify an ambiguous question. They can even be kicked out of the room, and a new lawyer appointed, if they “unduly” disrupt the questioning.
These restrictions will significantly undermine the ability of lawyers to protect children from any forceful or inappropriate questioning by ASIO officers.
Are the changes even needed?
Dutton has justified the proposed changes by claiming Australia faces a significant threat of terrorism from young people. While we cannot know the intelligence on which this assessment is based, the urgent need for these changes is doubtful.
The statistics show that questioning warrants are used very rarely. The last QW was issued in 2010, and the last one before that in 2006.
Only 16 QWs have ever been issued since their introduction in 2003, and none since the threat from Islamic State emerged.
Given this record, it is difficult to see how QWs for 14-year-olds are suddenly needed to prevent acts of terrorism.
Indeed, in a recent PJCIS inquiry, ASIO explained their lack of use by saying the powers were difficult to approve on a short timeframe. This made them not very useful for the kinds of low-tech attacks seen in recent years, such as stabbings and shootings, which require little advance planning.
If the new powers are passed in the bill, they should at least be sunsetted to expire after three years, rather than the proposed ten. Without this amendment, more extraordinary counter-terrorism powers will be on Australia’s statute books for the foreseeable future.