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Why ASIO shouldn't be given more power

By George Williams
November 4, 2003

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The deportation of French al-Qaeda suspect Willie Virgile Brigitte has raised questions about whether our laws are strong enough to destroy any terrorist cells in Australia. Attorney-General Philip Ruddock has taken up where his predecessor Daryl Williams left off. He wants to make it easier to ban organisations and for ASIO to hold and question terrorist suspects.

Clearly, the law must meet the threat posed by terrorism. However, any new proposal to limit the rights accepted as part of our democracy must be carefully scrutinised.

The protection of national security is not something to be achieved at any cost. We must not pass laws that undermine the same freedoms and way of life that we are seeking to protect from terrorism.

Australian law has already been greatly strengthened after September 11. The federal Criminal Code now contains a range of new offences, such as committing a terrorist act. The law also criminalises anyone who does any act in preparation or planning for a terrorist act. These offences attract life imprisonment, the strongest penalty under our law.

There are also new offences for receiving training or even possessing a thing connected with terrorist acts. These latter offences apply even if a terrorist act does not occur.

Parliament rejected the proposal to give a general, largely unfettered power to the Attorney-General to ban organisations and to enable their members to be jailed. Instead, the law now contains jail terms for involvement with a terrorist organisation as determined by a court, including for recruiting members or providing support or funds. An organisation can also be banned by the Attorney-General where it has been identified as a terrorist organisation by the Security Council of the United Nations.

Parliament was right to establish tough new offences. It was also correct to reject the idea that a wide banning power be given to a politician.

As enacted, the law provides safeguards for our rights while ensuring that the police can arrest terrorist suspects and people involved with terrorist organisations. If convicted at a trial, they can be jailed for up to life.

As John Howard said on the first anniversary of September 11 on these changes to the law, "through the great parliamentary processes that this country has I believe that we have got the balance right".

ASIO has also been given new powers. They allow the secret organisation to gather intelligence about terrorism, including on the formation of terrorist cells and on the planning of a terrorist attack. Suspects and non-suspects can be questioned for 24 hours during detention of one week. They must then be released, but can be questioned again if a new warrant can be justified by fresh information.

The law also provides for a person to be jailed for five years if they refuse to answer a question or mislead ASIO in their answers.

The powers given to ASIO are unprecedented in Australia. Before they were passed by Parliament in June, a person could be questioned and detained by a government agency such as the police only where they were suspected of a crime, and even then only for a maximum of 12 hours.

For this reason, and because the powers go further than those granted to any equivalent organisation in the US, Canada and Britain, Parliament has provided that they expire after three years. The ASIO powers would thus need to be re-enacted to continue after then.

We do not know why these new criminal offences and the ASIO powers were not applied to Brigitte. If the evidence existed that he was involved in planning a terrorist attack or had created a terrorist cell, he could have been charged and potentially jailed for life.

If ASIO needed more information, it could have sought to have him detained and questioned over a week, and then jailed if he refused to answer questions or was misleading.

ASIO could also have sought to question and, if need be, detain people who are not terrorist suspects but who may merely have had contact with Brigitte.

After September 11 and the Bali attack, Australia has introduced tough laws dealing with terrorism. It would be a mistake to think they could not be improved over time. But it is difficult to see why or how they should be changed even before ASIO's detention power has been used.

In these circumstances, enacting even more stringent laws makes little sense.

George Williams is the Anthony Mason professor and director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales.
