Dutton's ASIO bill goes Kafkaesque

39 Comments

 

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’.

Minister for Home Affairs Peter Dutton ahead of a press conference at Parliament House on May 14, 2020 in Canberra, Australia. (Getty images/Sam Mooy)

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 representative, if under 18) before questioning – s. 34CB. The Attorney-General’s delegate may also deny access to those lawyers of which he or she disapproves and remove a lawyer at any stage during the questioning process – part 34D. In addition, if the warrant is to be executed immediately, the delegate may choose the lawyer to be assigned to the subject – s.34FC. All of this, too, can be done orally. Those questioned may therefore be denied the right to effective, or any indeed any, legal representation.

In part 34G failure to appear for questioning under a warrant carries a five year prison term and failure to surrender travel documents carries a two year term. This is likely to lead to Kafkaesque results — since disclosing that someone is the subject of a warrant in the first place also carries a five year prison term. Even disclosure of the fact of a warrant within two years after expiry carries a two year term.

In summary, then, we have indefinite detention without trial for questioning on the basis of a warrant which cannot be disclosed but which allows forcible arrest, search and seizure and can be issued orally and used against children as young as fourteen. Lawyers are optional at the questioner’s discretion.

There are other, lesser, delights here which others have mentioned, for example the unrestricted rights of ASIO to attach tracking devices or use other methods of surveillance without legal restriction.

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.

Admittedly, this is only the first draft, and much could change before the bill becomes law. That said, given the Opposition’s supine response to past tranches of such legislation, there is absolutely no reason to assume that they will leap to the citizenry’s defence.

To give an idea of just how far the idea of democratic control of the executive has fallen, here is a poignant comparison for the week after the celebration of the 75th anniversary of Victory in Europe.

 

ASIO Powers Amendment Bill 2020 (Cth): 34GF  Secrecy relating to warrants and questioning

Before warrant ceases to be in force

             (1)  A person (the discloser) commits an offence if:

                     (a)  a questioning warrant is issued; 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 apprehension of a person in connection with the warrant;

                             (ii)  the information is operational information; 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.

 

Nacht und Nebel (Night and Fog) Decree: General Keitel, 7 December 1941 

III…… In case German or foreign authorities inquire about such prisoners, they are to be told that they have been arrested but that the proceedings do not allow any further information. 

 

Under s. 34GF (1)(c)(i), even the disclosure of the arrest mandated by this, one of Keitel’s most infamous decrees, would be an offence carrying a five-year prison term.

 

 

Justin GlynFr Justin Glyn SJ has a licentiate in canon law from St Paul University in Ottawa. Before entering the Society he practised law in South Africa and New Zealand and has a PhD in administrative and international law.

Main image: Minister for Home Affairs Peter Dutton ahead of a press conference at Parliament House on May 14, 2020 in Canberra, Australia. (Getty images/Sam Mooy)

Topic tags: Justin Glyn, COVID-19, democracy, civil liberty, auspol, ASIO, Peter Dutton

 

 

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Existing comments

Justin please keep writing about this issue. Our Home Affairs is anything but homely and seriously out of whack with what the man in the street would deem democracy. Please keep on.
Henri | 18 May 2020


Thank you for this clear explanation Justin. "National security" is used as the excuse for so much now. Bernard Collaery is facing yet another hearing in the ACT Supreme Court 25 May -3 June. The court will be closed and the decision will be made as to how much of the "evidence" Collaery will be allowed to see in his coming trial. Labor is dragging its feet on all of this. I'm worried that cosmetic changes may be made in the case of the ASIO bill, e.g. changing the age of children allowed to be treated in this way, but allowing equally bad components to go through. Like a sale, really. Put the price up to start with, then "cut" it to where you really wanted it in the first place.
Susan Connelly | 18 May 2020


Thank you for this clear explanation. I can now sign a petition against this policy coming into law through the Australian Parliament which does not represent me or my principles in this matter. Heaven forgive us.
Tricia | 18 May 2020


Thanks, Justin. As you indicate, "the Opposition’s supine response to past tranches of such legislation" is of grave concern. Democracies depend on opposition parties to ensure accountability of governments. We suffer from a lack of leadership in our governments.
Peter Johnstone | 18 May 2020


Horrifying. And 'given the Opposition’s supine response to past tranches of such legislation,' - more than horrifying. Thanks for this article. Scary times.
Michele Madigan | 18 May 2020


And who says that history does not repeat itself? I've always thought that the ambers of an "Antipodean Fourth Reich" are fuel to a reprise of a world war. With Trump at the helm, with Dutton as the leader of our Indo-Pacific country, this is more than just a conspiracy theory.
Alex Njoo | 18 May 2020


Well done The opportunity for authoritarian government brought by COVID cannot be overstated. NZ beckons. It has a Human Rights Act and commissioners who aren’t cowed out of advocacy. And a prime minister with courage empathy and grace in full measure.
Moira | 18 May 2020


Just sent this off to my local member, thank you for the clear analysis.
Denise Playoust | 18 May 2020


"The price of Freedom is eternal vigilance" - no more true than in this kind of context. While trust of politicians is at an all-time low- and deservedly, in my opinion - the Home Affairs Minister is near the bottom in my book. But as Justin's article notes, the miserable lack of fortitude among politicians - and not only in the opposition - allows such horrendous legislation to pass without anything resembling proper debate. I have no doubt that bringing it up now is an opportunistic ploy to exploit the current state of abnormal emphasis elsewhere, namely on all aspects of the pandemic.
DENNIS GREEN | 18 May 2020


Thanks Justin for such a clear and detailed analysis of this ASIO Powers Amendment Bill. Besides its contents being very disturbing, the fact that the Bill has lain dormant for the last 18 months only to have been resurrected as urgent government business amid the confusion and drama of the Covid 19 situation is equally a worry. Besides using the AFP to harass the journalist who first raised concerns about this bill in 2018, the government now uses the smoke screen of "national security" and in the "national interest" during this second sitting of parliament in this period of Covid trauma to rush this through both houses! Many thanks from those who have little or no voice! Regards, Mike Schell
Michael & Sharyn schell | 18 May 2020


So where are the bishops ? Asleep at the wheel ?
Ginger Meggs | 18 May 2020


Dutton's dumbest deed is revealed- by word of mouth. To me the only comparable dumb thing I heard many years ago was when a bank manager was challenged by the bank auditor as to how he had obtained a customer's consent to an action taken by the bank manager. The bank manager said he had a verbal agreement signed by the customer.
John Willis | 18 May 2020


How old was Curtis Chang’s killer?
Robert Jury | 18 May 2020


Surely this is contrary to the intention of Habeas Corpus? Dutton is obsessed with gathering ever more power to himself and needs to be carefully watched. God help us if he ever makes it to PM.
David Callard | 19 May 2020


Never mind Kafkaesque, it's downright dangerous. Whether you view Ned Kelly as a national hero or a villain, it is worthwhile remembering he had a court appointed barrister who wasn't across his brief properly. Allowing the Attorney-General's delegate to select a lawyer to represent the accused is against human rights, and in Ned Kelly's case, impacted upon his right to a fair trial. And limiting the right of a lawyer is also wrong. This legislation must be blocked.
Cool Pete | 19 May 2020


Dutton’s opportunistic disproportionate ASIO bill is worrying. Coming as it does under cover of the plague and desperate to distract from Home Affairs and ABF monumental error in allowing mass disembarkation from plague ship, this legislation represents multipurpose repression . It is crudely disproportionate and irrelevant to the real and current threat to our nation. But I guess a virus is a less politically useful target than a “terrorist” even if it is a child! The mind of this political architect is disturbing- what would he not do?
Pamela | 19 May 2020


Thank you for writing this piece. We are already seeing the practice of indefinite detention on Australia’s asylum seekers. Seven years and no end in sight. A number of men being detained in Hotels in Preston, Melbourne and Kangaroo Point. These men are the guinea pigs before we also become victims of these policies.
Sarah | 19 May 2020


Mr Dutton will loose Scomo next election if he is still in power.Looking at Duttons past record is not impressive at all with criminal acts committed.Start with child abuse to indigenous kids,sacked by Qld police for misconduct,Threats to others,allowing people to enter from Princess ship without health checks,Getting joint funds with his wife for millions of dollars to his child centres.His record at Xmas island and his treatment of people detained,trying to change laws into young offenders rights,WE all know the rest.Dutton needs to be held accountable and removed from any government organisations and charged.Scomo will NEVER win an election with Dutton breathing over his shoulders
David | 19 May 2020


No way!!!
Chelsea McGuffin | 19 May 2020


We are Australian citizens who have rights and freedoms. We do not consent!
Gloreen Andersen | 19 May 2020


Even Batista’s pre-revolution Cuba would have baulked at such police-state legislation. It allows effectively indefinite imprisonment for any reason. Yet such interrogations are almost certainly pointless; this is all about creating a threat, to terrify those who need to be brought to heel. Where in the name of press freedom is the media criticism of these evil laws, apart from The Guardian, Crikey and Eureka Street? A strikingly supportive media is no doubt driven by fear for itself if it criticises such laws – media loves demonising decision-makers (including fellow editors) who didn’t seem tough enough to demand ever more repressive laws, demand the gunning-down of someone who might be a threat, demand stripping of citizenship from someone who might be a threat, or is too much of a wimp to demand the brutal, indefinite imprisonment of desperate refugees. “If they hate us for our freedoms, perhaps removing that freedom will make us safer” was once a joke. Anzac Mythology pronouncements on “how the Anzacs fought for freedom” is just sad psychological cover for our grovelling to abuses of State power.
R. Ambrose Raven | 19 May 2020


NO WAY.
Polly | 19 May 2020


Every person in this country is entitled to their freedom and rights.
Rhonda Livingstone | 19 May 2020


The notion of sending Justin's article to one's local MP is a good one; I have taken it up from the existing comment on this thread. For my part, I wonder how much of this pestilential stuff is pure idiosyncrasy on the part of one particular psychopathic redneck, and how much of his legacy will endure once he is out of the scene (God willing soon). Some years ago I read Terry Eagleton's "On Evil", and his Freudian analysis is even scarier than the good old doctrine on Satan. According to Eagleton, evil, hating the very dependency implicit in its own existence, will lash out whenever it can to affirm itself. It sums up this situation for me, on a spiritual level. What baffles me is why Morrison keeps Dutton and his semi-Fascist coterie on, now that he is so high in popularity (not to forget the immolation we endured while he was missing in action).
Fred Green | 19 May 2020


As Andrew Wilkie said some months ago, “.... and then one morning you wake up in East Berlin.”
Peter Downie | 19 May 2020


Ginger Meggs: “So where are the bishops ? Asleep at the wheel ?” Good question. Easy answer. Not their business. Intrinsic evils and prudential ‘evils’ are two different things. The business of the bishops is to declare against intrinsic evils. The business of the laity is to accept the judgement of the bishops on intrinsic evils and formulate their own judgements on prudential ‘evils’.
roy chen yee | 19 May 2020


This is just wrong on every level. We are looking more like Nazi Germany than the Australia that the diggers fought for. I have become very sus about the trend of the right wing all over the world,and people like Dutton are doing everything to create an us and them world. 40 hours questioning without a break is the same as torture. Forget about your franking credits and start thinking about your freedoms, or whats left of them.
Chris Apthorpe | 19 May 2020


My constitutional rights allows me to refuse entry without a warrant from police. Also to be searched without a warrant. Also we have the right to legal council at any time.
Anna Kartsounis | 19 May 2020


Thank you Justin for this great analysis about the Home Affairs Ministers' latest attempts to further attack the civil rights of Australian citizens. As Justin says our Home Affairs Department is not very homely which I suspect is because the minister us far from homely. We only have to recall Peter Dutton's treatment of asylum seekers when he was minister for immigration to know that he holds human rights in contempt.Ut is very scary that some LNP Coalition MPs thought that he was PM material! Heaven forbid! Susan Connelly reminds us what is currently happening to Bernard Gollaery and Witness K- the two men whose actions helped stop our leaders from robbing Timor-Leste - the poorest nation in SE Asia - from its resources in the Timor Sea. This came after Australian governments aided and abetted the Indonesian fascist dictation during its illegal and brutal occupation of that country. ALP governments were no better and the ALP opposition have done nothing to support Witness K and Bernard and Bernard Collaery of to take an effective stand against the attempts to cut back our civil rights. Australians concerned about these issues musr push for an Australian declaration on human rights and only support candidates in future elections who support such a document. Australia was involved in the formulation of the Universal Declaration on Human Rights and yet we lack one for Australia.
Andrew (Andy) Alcock | 19 May 2020


I do not consent to the ASIO bill and stand with the people for our rights and freedom.
Rut Frohlich | 19 May 2020


It is not ok to lose our civil rights. No authority should have the right to arrest you without due cause. If arrests are being made under a police state we should be able to sue the police person personally and then maybe they will think twice before acting. This is not ok. Far from ok. Police were people we could trust and now I don’t feel safe.
Helen Kyriakopoulos | 20 May 2020


This is a careless article. The Bill has been ‘introduced’. It isn’t going through any legislative stage as such. Check the Home Affairs website: “On 13 May 2020, the Bill was introduced to the Australian Parliament. To facilitate parliamentary consideration and public consultation of the proposed reforms, the Bill was immediately referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 17 July 2020.” Incidentally, when someone comes to your door saying but not showing any proof that they have a warrant for your arrest, you can always make a paper trail by waving a gun in their face (or punching it). Either you’ll have to go to court to assert self-defence caused by a reasonable fear against kidnapping or they’ll have to go to court to get a piece of paper they can show you. That is why the US has the Second Amendment. Perhaps that is why Australia should have one too if we want to go down the let’s-document-all-our-human-rights road. And that is why ‘oral’ warrants are a furphy. A paper warrant shows the arrestee that he is not being kidnapped, and minimises the possibility of harm to the arresting officers.
roy chen yee | 20 May 2020


Where does Queensland get 'em from? At least they can't be let loose into the rest of the country with the border closed. Long may it last!
john frawley | 20 May 2020


Justin, for once I agree wholeheartedly with you. These draconian draft laws are characteristic or reminiscent of the oppressive or nightmarish qualities of Franz Kafka's fictional world. Probably the best thing to happen to this draft bill is for it to ceremoniously burnt on the Parliamentary lawns together with Dutton's old police uniform.
Francis Armstrong | 20 May 2020


For those interested in the progress of this frightening bill (which is now in process of its second reading), the Parliamentary website is a good place to look:https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6554
Justin Glyn SJ | 21 May 2020


The argument that Roy Chen Yee employs here - subtler than a split hair - is termed 'extrinsic rethink', which is to revisit the scene of a crime after the event and reposition oneself so as to hose the muck off. Clemens von Galen, Bishop of Munster, was the only member of the 28-strong German episcopate to take the Nazis on, while his brother bishops employed Roy's argument in their defence. Pius XII (one of Roy's original 'intrinsicalists') changed his mind immediately after the war and made von Galen a Cardinal on his deathbed. Pius shortly afterwards provided the UNO with its most powerful justification for the Declaration of Human Rights, almost certainly in critical reflection (and rejection!) of his prior fence-straddling position. It might also amaze Roy to know that Vatican II and especially 'Gaudium et Spes' specifically addresses the question of Human Rights while stripping the Bishops off the canonical fig-leaf that Roy provides: 'The joys and the hopes, the griefs and the anxieties of the (people) of this age, especially those who are poor or in any way afflicted, these are the joys and hopes, the griefs and anxieties of the followers of Christ.' Go Fr Justin!
Michael Furtado | 21 May 2020


No way, this country is getting more like Germany 1939 onwards. Oppose this decision.
Margaret | 21 May 2020


I know someone that this happened to, by raptor !!!! Bikers have been subject to this for at least 2/3 years ....
Trea | 23 May 2020


This government is looking more and more like a totalitarian regime. I hope this legislation does not succeed
Bernadette Touhy | 23 May 2020


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