ASIO — new terror powers

by Jules Andrews and Marcus Browning

New legislation to be introduced by the Howard Government represents the 
most dangerous offensive against civil liberties and democratic rights yet 
seen in Australia. The new Espionage and Related Offences Bill, to come 
before Parliament at an as yet unspecified time, gives the Government and 
its agencies, particularly the spy organisation ASIO, broad powers to 
arrest, detain and interrogate suspects. Law enforcement bodies and spy 
organisations will be given free rein to trample on basic freedoms.

The legislation shifts the burden of proof onto defendants, allows for the 
prosecution and jailing of public servant "whistle-blowers" and takes away 
the right to remain silent. 

These new powers will effectively turn ASIO into a secret police body, 
totally unaccountable and add to the draconian "shoot to kill" powers the 
Government gave to the military in the lead-up to the 2000 Sydney Olympics. 

(The "shoot to kill" powers were contained in the Defence Legislation 
Amendment (Aid to the Civil Authorities) Bill, which allows for the use of 
the armed forces against Australian citizens engaged in "domestic 
violence", a vague term which includes strikes, demonstrations and riots. 
It allows the military to use "deadly force", i.e. shoot people with 
impunity.)

The new offence of terrorism is a deadly catch-all. According to the 
Attorney-General, "These offences will cover violent attacks and threats of 
violent attacks intended to advance a political, religious or ideological 
cause which is directed against or endanger Commonwealth interests."

The offence of terrorism will carry a maximum penalty of life imprisonment.

This wide-ranging definition directly attacks fundamental democratic 
rights, such as the right to political discourse (freedom of speech), 
dissent — all basic rights, including trade union protests and non-
government organisations who are "ideologically" opposed to the government 
of the day.

The right to remain silent has been scrapped. Refusal to answer questions 
under interrogation can bring a penalty of five years jail. "Interrogation" 
is open-ended to take on different forms, including torture.

ASIO will be able to detain suspects for 48 hours without charge and be 
allowed to question people not themselves suspected of terrorist activity 
but who "may have information that may be relevant to ASIO's investigations 
into politically motivated violence."

The legislation also "authorises the State or Federal police, acting in 
conjunction with ASIO, to arrest a person and bring that person before the 
prescribed authority." ASIO will merely have to go through the formality of 
obtaining an arrest warrant from a federal magistrate.

Previously ASIO had no powers of arrest. The only reason to give ASIO these 
new powers is so that they fall under the veil of secrecy surrounding the 
organisation.

Major concerns have arisen about the section that allows the government of 
the day to use the threat of jail to silence potential whistle-blowers, and 
journalists who publish the leaked information:

"Information concerning the security or defence of another country, being 
information that is, or has been, in the possession or control of the 
Commonwealth; and (b) the person does so intending to prejudice the 
Commonwealth's security or defence; and c) the person's act results in, or 
is likely to result in, the information being disclosed to another country 
or a foreign organisation, or to a person acting on behalf of such a 
country or organisation. 

"Penalty: Imprisonment for 25 years"

Further down the Bill we find:

"A person commits an offence if the person communicates, or makes 
available, an official record of information, or official information:

"(a) to a person to whom he or she is not authorised to communicate it or 
make it available; or

"(b) to a person to whom it is, in the interest of the Commonwealth, his or 
her duty not to communicate it or make it available. Penalty: Imprisonment 
for 2 years".

A public servant may also be jailed for six months if they hold onto 
potentially damaging information even if it has not been leaked.

The Attorney-General also claims that the Bill was: "simply intended to 
restate the existing provisions under the Crimes Act in more modern 
language..."

"That's a load of rubbish", Cameron Murphy, President of the NSW Council 
for Civil Liberties, told "The Guardian". "It's not modernising at all. 
It's extending it in a new way by removing a defence of public interest.

"Previously if you published an unauthorised government document, you could 
mount the defence that it was `in the public interest' to do so. That will 
be removed. It increases the penalty for people who pass on this 
information to 25 years. So it's a significant stick to wave at people who 
might be thinking of leaking information."

The legislation covers government information so broadly that it includes 
any document: "...a person doing a thing with an official record of 
information, or with official information, is taken to be a reference to 
the person doing the thing with an official record of information in 
relation to the person, or with official information in relation to the 
person, as the case requires, within the meaning of subsection (1)".

"This clearly targets those people doing it for the public interest", said 
Mr Murphy. "The objective of the legislation is to stop anyone who comes 
across government information which is damaging to the government, from 
exposing it through the media."

The major media houses are up in arms about the new laws, saying they 
threaten the ability of journalists to perform their duty to the public.

"The new laws could land whistleblowers and journalists in jail. They would 
see the end of the leaking of embarrassing information such as that which 
exposed [former Minister] Peter Reith's culpability in the Telecard 
affair", said an editorial in The Australian.

"The new laws are so broad, experts say they could prevent the release of 
the documents that skewered John Howard's ministers in the travel rorts 
affair."

In a letter to the Attorney-General, the owner of the Financial 
Review and Sydney Morning Herald, Fairfax Ltd, stated: "The 
legislation as written can indeed be used to plug leaks, and we believe it 
will.

"The bill may not be aimed at preventing public discussion, but it would 
clearly have that effect. [It] hampers public discussion by criminalising 
receipt — that is today legal — of information about the workings of 
government."

The Attorney-General assured the public that: "In each case, safeguards 
apply to ensure that legitimate transfers of information can continue".

Yet no safeguards are apparent in the Bill. Just the opposite. It says: "A 
prosecution under this Chapter may be instituted only by, or with the 
consent of, the Attorney-General", but that "a person charged with an 
offence against this Chapter may be arrested ... even if the consent of the 
Attorney-General ... has not been obtained".

It also contains provisions for trials held in secret: "At any time before 
or during the hearing, the judge or magistrate ... may, if satisfied that 
it is in the interest of the security or defence of the Commonwealth:

(a) order that some or all of the members of the public be excluded during 
the whole or a part of the hearing; or

(b) order that no report of the whole or a specified part of, or relating 
to, the application or proceedings be published".

In some sections of the Bill it also states: "The defendant bears a legal 
burden in relation to the matter".

(A legal burden of proof on the defendant in this case must be discharged 
on the balance of probabilities, a lesser burden than "beyond all 
reasonable doubt".)

This legislation, along with our own beefed up police and military forces 
that have been given broad new powers to search, detain arrest and use 
force against "suspects", will not be used to protect Australia from an 
external threat.

It will inevitably be used to suppress the growing discontent of the 
Australian people.