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Dutton's ASIO bill goes Kafkaesque

  • 18 May 2020

The new ASIO Powers Amendment Bill 2020 is being rushed through Parliament in a time of pandemic, guaranteeing that it will lack even the minimal level of scrutiny normally accorded to legislation dealing with ‘national security’.

It is no wonder. Among the many treasures in this innocently titled bill are oral arrest warrants – including for children (s.34B). Questioning warrants that allow anyone over the age of 14 to be detained and questioned can be issued orally, ignoring the need for nasty paper trails which could later prove inconvenient in court (although the Director General has two days to write up a summary).

The subject of a warrant may be arrested, searched or detained by ‘such force as is necessary and reasonable under section 34CD.

There’s also the duration of the warrant (s.34DL). While the warrant nominally runs for 28 days (with a maximum of 40 hours of continuous questioning in a session), the limit is more notional than real. There is no limit on how many warrants can be issued and the warrant is not regarded as running for any time which the subject is given to 'rest and recuperate' or complain about conditions, or consult with a lawyer or even to request a lawyer (amongst other exclusions).

As if this were not enough, the Attorney-General’s appointed questioner may also exclude 'any other time' from the running of the warrant. Accordingly, the eventual period of unsupervised detention could potentially run indefinitely.

'It goes without saying that this represents a substantial incursion on individual liberties. Once more, Australia’s lack of basic human rights protections is made obvious.'

Warrants are not approved by a judge and so there are limited, if any, effective means to challenge them.

Entry, search and seizure (s.34CA, 34CC and 34CD) would mean once a questioning warrant is in force, police need no further powers to enter premises, search the subject of the warrant and the premises and seize anything they find which might be ‘relevant’ to the warrant.

There is no need to set out any particulars of what may be searched for – something which would, for example, make it a lot easier to shakedown pesky journalists for poking their noses into alleged war crimes committed by Australians abroad and to secure any embarrassing information they may have found.

Of particular concern is limitation on access to counsel. Someone chosen for questioning has no right to communicate with anyone except a lawyer (or a minor’s