Australian spy agency Asio's proposed new powers 'overreach', legal expert says
The Morrison government is facing pushback from leading academics and from a major Muslim advocacy group about new powers allowing the domestic spy agency to question people as young as 14.
The dean of law at the University of New South Wales, George Williams, said the government’s proposed new law was a case of “overreach” and agency powers kept being increased “in what typically is a one-way street without any sense of what the endgame is”.
He said aspects of the bill were “troubling” and were the latest chapter in the continual ratcheting-up of national security laws.
A group advocating for Australian
Muslims has also voiced alarm over the bill – which would allow the attorney general to issue certain warrants orally in emergency situations – while calling on the government to explain why it has yet to list any white nationalist groups on the list of terror organisations.
The government introduced a bill to parliament last week that would overhaul the Australian Security Intelligence Organisation’s existing rules for compulsory questioning – measures that were originally brought in after the 11 September 2001 terrorist attacks in the United States.
The bill would broaden the types of Asio cases that could trigger questioning to include espionage, politically motivated violence and acts of foreign interference – rather than just those regarding terrorism.
The agency would also be allowed to seek to question minors aged 14 to 18 – down from the current age minimum of 16 – but the government argues this would be subject to safeguards, including that a lawyer is present as well as a parent, guardian or other appropriate person.
Williams welcomed part of the bill – the abolition of a certain type of warrant that allowed people to be detained for long periods for Asio questioning – but said that “extreme” power had never been used.
“I think it would have been better to remove that without then embarking on what I think is a further overreach by extending other powers in this area,” he told Guardian Australia.
“We’re really now at the sharp end of the most concerning powers, you know, when you get to intelligence agencies operating in secret, being able to exercise coercive powers with respect to Australian citizens who aren’t even suspected of terrorism.”
Williams said the rest of the bill removed safeguards, made it easier to exercise powers, and extended the reach of the agency.
“This has been the pattern since 2001: a steady increase and ratcheting up of these powers in what typically is a one-way street without any sense of what the endgame is,” he said.
“What is the line we don’t cross? It’s just this gradual encroachment, sometimes faster, sometimes slower.
“It begs a larger conversation about what sort of security powers do we think are appropriate, what are the limits, what is the community happy to put up with? But instead, we’ve just got this ad-hoc legislation which on its own merits is troubling.”
The Australian Muslim Advocacy Network – which was set up after the massacre against Muslims in Christchurch, New Zealand – argued the ongoing increase in national security powers was “getting more and more alarming”.
Rita Jabri-Markwell, a lawyer and adviser to the network, said Australian Muslims had already disproportionately suffered as a result of a raft of laws that had been introduced over the past two decades.
“It’s had huge impacts on our community and our trust in the justice
system and police. Now they’re talking about reducing oversight … it’s very scary for us but it should alarm all Australians.”
While Asio powers were already very extensive, Jabri-Markwell argued, the government had not yet given any indication “that it’s at all interested in protecting Australian Muslims from the threat of white nationalist terrorism”.
“We have white nationalist terrorist groups listed in the UK, Germany and Canada, and the US has just listed its first one under the Trump administration, and Australia hasn’t got a single one on its proscribed terror list,” she said.
“How is this blind spot happening in Australia?”
The head of Asio has previously revealed that “the extreme rightwing threat is real and it is growing” in Australia and is on the agency’s radar.
Mike Burgess, the director general of security, said in a speech in February that “violent Islamic extremism” remained the agency’s principal concern – but it was also focused on small extreme rightwing cells who met regularly in suburbs around Australia to salute Nazi flags, inspect weapons, train in combat and share their hateful ideology.
The following day, the home affairs minister, Peter Dutton, said he would ensure agencies were dealing with threats from both “rightwing lunatics or leftwing lunatics” – the latter of which was not specifically mentioned in the speech.
In March, at a parliamentary committee hearing, Burgess was asked why Australia had not followed other western countries in listing extreme rightwing groups as terrorist organisations.
He said Australia constantly reviewed the situation, but listings depended on “the intelligence that we have, the legal threshold for which we can do so, and the purpose that that would allow us to achieve by listing such organisations”.
The Parliamentary Joint Committee on Intelligence and Security said this week it had launched a review into the effectiveness of the proposed new Asio bill. Dutton has asked the bipartisan committee to hold public hearings and produce a report by July, which will pave the way for parliamentary debate.
Comment was sought from Dutton’s office on Wednesday regarding the criticism of the bill.
But in a speech to parliament last week, the minister said the government was moving to ensure Australia’s national security agencies had the powers they need to work in an increasingly complex national security environment. He said Asio was “facing a wider range of security challenges than at any time in its 70-year history”.