|
Date: Thu, 27 Nov 2003 23:10:56 +0000
From: Damien Lawson <clewsls@vicnet.net.au>
Subject: call to action
Dear Members,
Don't turn Australia into a Secret Police State
The Federation of Community Legal Centres calls on the
Senate to
protect
Australia from becoming a secret police state.
The proposed new ASIO Bill, currently
being rushed through the
Federal
Parliament at an alarming speed, threatens to make it virtually
impossible
for the general community to monitor the use of the security legislation
by
ASIO.
Spokesperson for the Federation of Community Legal
Centres, Peter
Noble,
said "Provisions purporting to deny interviewees the right to talk
to
their
friends and family about their
interrogation by ASIO means that
ASIO
activities will be completely shrouded in a cloak of secrecy.
As with
the
original provisions relating to the interrogation of
children as young
as
ten, the proposals regarding communication must be treated
cautiously."
Journalists, doctors, lawyers, friends and
family members would all
be
prevented from speaking out about any knowledge
they may have of
ASIO's
activities for a full two years
after someone has been detained
or
questioned. "The public has a right
to know about how our
intelligence
agency is using the broadranging powers it has been given", Mr
Noble
said.
Further, the Federation of Community Legal Centres is
concerned that
this
ASIO Bill may breach the International
Covenant on Civil and
Political
Rights insofar as it discriminates against people from non-english
speaking
backgrounds. "Bearing in mind the ethnicity
of individuals who are
most
likely to be targeted by ASIO under
their questioning regime, we
are
concerned about further exposing
this community to a system
of
interrogation which capitalizes on their 'difference'" Mr Noble
said.
The Federation of Community Legal Centres
is calling on the Senate
to
ensure that this matter is not rushed through Parliament in
this
sitting,
but is referred to a Senate
Committee for adequate review and
public
consultation. The Opposition parties were resolved to tread cautiously
when
the original ASIO powers legislation was being debated, and it is
now
time
for the Opposition to again demonstrate this resolve.
You can help by contacting the following politicians to put pressure on
both the ALP and the
Democrats to support the Greens-motion to refer the Bill to the Senate
Legal
and Constitutional References Committee.
S.Crean.MP@aph.gov.au
R.McClelland@aph.gov.au
senator.faulkner@aph.gov.au
senator.bartlett@aph.gov.au
senator.greig@aph.gov.au
For further information please contact Peter Noble, Legal Projects
Officer
from the Fitzroy Legal Service, on 9419 3744 or 0412 088 403.
--------------------------------------------------------------------------------
-------------------------
------------------------------
Date: Fri, 28 Nov 2003 03:14:07 +0000
From: Damien Lawson <clewsls@vicnet.net.au>
Subject: ASIO amendments
Dear friends,
I am writing to seek your urgent help in relation to the ASIO
Legislation
Amendment Bill 2003 (Cth).
A copy of this Bill can be found at
http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=1480&TABLE=BILLS
This Bill was introduced in the House of Representatives yesterday. The
Attorney-General has, however, indicated that he wants it passed by next
week.
I have attached three documents relating to this Bill:
a) a note analysing the secrecy provisions of the Bill;(TO FOLLOW ON
ANOTHER EMAIL)
b) a pro-forma letter stating opposition to these provisions; and
c) an opinion piece.
I would ask your help in two respects.
Firstly, it is important that this Bill and its details be publicised as
widely as possible.
Secondly, it is imperative that pressure be put on both the ALP and the
Democrats to support the Greens-motion to refer the Bill to the Senate
Legal
and Constitutional References Committee. If you have the time, it would
be
great if you could write to:
S.Crean.MP@aph.gov.au
R.McClelland@aph.gov.au
senator.faulkner@aph.gov.au
senator.bartlett@aph.gov.au
senator.greig@aph.gov.au
If you wish to discuss this Bill, please do not hesitate to call me
(9479
2463).
regards, Joocheong
New ASIO Bill poses grave threat to Australia's democracy
By Joo-Cheong Tham
Consider the following scenario:
The Australian Security Intelligence Organisation (ASIO) exercises its
newly acquired detention powers and detains, Jim, a person ASIO suspects
of having information related to terrorism. Soon after, Jim's detention
comes to the knowledge, Samsara, an Age journalist, who suspects certain
irregularities. She suspects that Jim might, in fact, be fifteen and
hence, cannot be legally detained by ASIO. She also has evidence that
Jim has been kept in detention for more than seven days; the legally
prescribed maximum. Kay then writes up a feature article highlighting
Jim's circumstances.
As a result of Kay's article, Jim's case is then taken up Lim, a federal
parliamentarian, who publicises details of Jim's detention and calls for
ASIO to act within the confines of the law. Jim is eventually released
with ASIO conceding that Jim has no present or past connection with
terrorist activity.
If a Bill that is presently before federal Parliament is passed, the
actions of both Kay and Lim will be illegal. More than this, such
actions will remain illegal for two years after Jim's detention.
The ASIO Legislation Amendment Bill 2003 proposes to criminalise public
discussion of much of ASIO's activities by introducing broad-ranging
offences.
This Bill, if passed, will mean that it will generally be illegal to
disclose information relating to ASIO's conduct in detaining and
questioning persons while a detention/questioning warrant is in force.
For instance, recent reporting by Martin Chulov, an Australian
journalist, on the compulsory questioning by ASIO of Willie Brigitte's
acquaintances will be illegal under this Bill.
More importantly, for two years after the expiry of such a warrant, it
will generally be an offence to disclose information related to such a
warrant which is 'operational knowledge'. This innocuous-sounding term
is, however, defined to mean, in effect, all knowledge relating to
ASIO's activities.
So, for example, if Martin Chulov decided, because of the compulsory
questioning of Brigitte's acquaintances, to continue reporting on ASIO's
ongoing investigations, he will be committing an 'operational knowledge'
offence under the Bill. What more, such reporting will be illegal for
two years after the compulsory questioning.
It is clear then that if these offences become law, they will severely
trench upon the freedom of the press and the freedom of public
discussion.
This effect has two consequences.
Firstly, it is questionable whether the 'operational knowledge' offence
will survive constitutional scrutiny. The High Court has stated that it
will accept limitations on the freedom of political discussion only if
these limitations are reasonably adapted to pursuing a legitimate
objective.
It is clear that this offence limits the freedom of political
discussion. The crucial question is whether it is reasonably adapted to
the aim of protecting the integrity of ASIO's intelligence-gathering
activities. There is a serious argument that the 'operational knowledge'
offence by defining 'operational knowledge' so broadly and imposing a
prohibition for two years will fail this test. In other words, its gross
disproportionality will spell constitutional invalidity.
Secondly, much of ASIO's activities cannot be subject to open
discussion. Given that ASIO is invariably involved in domestic
anti-terrorism measures, the secrecy offences will have the knock-on
effect of insulating of the domestic 'War on Terror' from the public
gaze. If these offences become law, one of the most significant policy
issues in Australia will then be carved out from public debate. It is
for this reason that these secrecy offences pose one of the gravest
threats to Australia's democracy since the launch of the 'War on
Terror'.
Joo-Cheong Tham is an Associate Law Lecturer at La Trobe University and
has appeared as a witness before parliamentary committees inquiring into
anti-terrorism legislation (Email: J.Tham@latrobe.edu.au)
DRAFT LETTER
Dear name of parliamentarian
Opposition to the ASIO Legislation Amendment Bill 2003
I am writing to express my strong opposition to the ASIO Legislation
Amendment Bill 2003's secrecy provisions.
These provisions, if passed, will generally mean that it will be
illegal:
 to disclose information relating to ASIO's conduct in
detaining
and questioning persons while a detention/questioning warrant is in
force; and
 for two years after the expiry of such a warrant, to
disclose
information related to such a warrant which is 'operational knowledge'.
This term is, however, defined to mean, in effect, all knowledge
relating to ASIO's activities.
These offences are punishable by a maximum of five years' imprisonment.
My opposition is based on the following grounds:
1. These secrecy provisions will severely restrict the freedom of the
press and the freedom of public discussion
If these provisions are passed, the following will be illegal:
 journalists reporting on:
- the issue of a warrant soon after it was issued even if the warrant
was issued illegally;
- while such a person is being detained, the conditions of detention
even if such conditions might not comply with the Act;
- investigations conducted by ASIO following upon the execution of a
warrant for two years after the expiry of such a warrant; and
 a parliamentarian highlighting the conditions under which
persons are presently detained under the Act.
These examples make clear that these secrecy provisions will severely
impair the freedom of the press and the freedom of public discussion.
2. These provisions will mean that ASIO's activities and the domestic
'War on Terror' cannot be subject to public discussion
These offences will mean that much of ASIO's activities cannot be
subject to open discussion. Given that ASIO is invariably involved in
domestic anti-terrorism measures, these offences will have the knock-on
effect of insulating of the domestic 'War on Terror' from the public
gaze. If these offences become law, one of the most significant policy
issues in Australia will then be carved out from public debate. It is
for this reason that these secrecy offences pose one of the gravest
threats to Australia's democracy since the launch of the 'War on
Terror'.
3. The 'operational knowledge' offence is likely to be
constitutionally
invalid
It is questionable whether the 'operational knowledge' offence will
survive constitutional scrutiny.
The High Court has stated that it will accept limitations on the freedom
of political discussion only if these limitations are reasonably adapted
to pursuing a legitimate objective.
It is clear that the 'operational knowledge' offence by restricting the
communication of information relating to the activities of ASIO limits
the freedom of political discussion. The remaining question is whether
it is reasonably adapted to the aim of protecting the integrity of
ASIO's intelligence-gathering activities. There is a serious argument
that the 'operational knowledge' offence by defining 'operational
knowledge' so broadly and imposing a prohibition for two years will fail
this test. In other words, its gross disproportionality will spell
constitutional invalidity.
I would urge you on these grounds to oppose these secrecy provisions.
Finally, I understand that the Green Senators moving for this Bill to be
referred to the Senate Legal and Constitutional References Committee.
Given the above concerns, it is imperative that this Bill, especially
its secrecy provisions, be subjected to proper public scrutiny. I would
urge you then to support this referral.
Yours sincerely,
name
------------------------------
Date: Fri, 28 Nov 2003 03:15:06 +0000
From: Damien Lawson <clewsls@vicnet.net.au>
Subject: Analysis of ASIO amendments
Analysis of ASIO Legislation Amendment Bill 2003 secrecy provisions
By Joo-Cheong Tham
Introduction
The ASIO Legislation Amendment Bill 2003 (Cth) ('the Bill') proposes to
amend the Australian Security Intelligence Organisation Act 1979 (Cth)
('the Act') in a far-reaching manner by inserting additional secrecy
provisions into the Act's detention and questioning regime.
This regime presently allows persons suspected of having information
related to a 'terrorism offence' under the Criminal Code Act 1995 (Cth )
to be either detained or subject to compulsory questioning. Both
detention and compulsory questioning need to be authorised by a warrant
issued by a prescribed authority.
The Act presently restricts the communication of certain information by:
 the person detained or being questioned while in custody or
detention;
 the legal adviser of the person being detained/questioned;
and
 the representative, parent, guardian or sibling of person
being
detained/questioned.
This note will:
 describe the secrecy provisions of the Bill;
 provide examples of offences under the Bill;
 discuss the practical impact of these offences (if they
become
law); and
 discuss the constitutional validity of the Bill's secrecy
provisions.
Description of secrecy provisions of the Bill
The secrecy provisions of the Bill essentially comprise of two separate
criminal offences. Both offences are punishable by a maximum of five
years' imprisonment.
Offence to disclose information relating to the issuing of a warrant and
conduct connected to a warrant
The Bill, if passed, will generally make it an offence for any person to
disclose information that reveals:
 that a warrant has been issued;
 the content of such a warrant; or
 facts relating to the detention or questioning of person
under
such a warrant;
while such a warrant is in force.
A warrant can be in force for a maximum of 28 days so this ban on
disclosure can be in place for a 28-day period for each warrant.
An offence is not committed if a disclosure is a 'permitted disclosure'.
A 'permitted disclosure' is narrowly defined to include disclosures made
by a person:
 exercising powers under the Act including disclosures made
in
the course of questioning a person under the Act;
 for the purpose of obtaining legal advice or representation
in
relation to a warrant;
 for the purpose of the conduct of legal proceedings in
relation
to a warrant; and
 which have been authorised by a prescribed authority, the
Director-General of ASIO or the Attorney-General.
Offence to disclose 'operational information'
The Bill, if passed, will generally make it an offence for any person to
disclose information that is 'operational information':
 if such information in/directly resulted from the issuing
of a
warrant or conduct pursuant to such a warrant; and
 the disclosure takes place while the warrant is in force or
two
years after the expiry of the warrant.
As with the above offence, a disclosure is not illegal if it is a
'permitted disclosure'.
The Bill proposes a broad definition of 'operational information'. This
term is defined to mean one of the following:
 information that ASIO has or had;
 a source of information that ASIO has or had;
 an operational capability, method or plan of ASIO.
In effect, 'operational information' is defined to mean information
relating to ASIO's knowledge and activities.
Strict liability 'operational information' offences for lawyers and
person detained/question
The Bill also proposes to introduce strict liability 'operational
information' offences:
 persons detained/questioned; and
 lawyers present during such person's detention or
questioning;
 lawyers contacted by such persons for the purpose of
seeking
legal advice.
Examples of offences under the Bill
Examples of offences to disclose information relating to the issuing of
a warrant and conduct connected to a warrant
The following will clearly be offences:
 journalists reporting on:
- the issue of a warrant soon after it was issued even if the warrant
was issued illegally;
- while such a person is being detained, the conditions of detention
even if such conditions might not comply with the Act;
 a parliamentarian highlighting the conditions under which
persons are presently detained under the Act; and
 groups publicising the conditions under which persons are
presently detained under the Act.
Examples of offences to disclose 'operational information'
The breadth of this offence can be illustrated by reference to the
following scenario:
ASIO, in conjunction with Australian Federal Police, detains a person
under the Act because s/he is suspected of having relevant information.
Details of such detention come to the knowledge to a journalist who
suspects certain irregularities in ASIO's investigation.
The Bill, if passed, will make it an offence for such a journalist to
report on:
 the conditions of the detention for two years after the
expiry
of the warrant;
 ASIO's subsequent investigation into the detainee for two
years
after the expiry of the warrant whether or not such investigation
involves conduct pursuant to a warrant.
These offences are committed because the above information:
 resulted in/directly from conduct pursuant to a warrant,
i.e.
detention; and
 clearly involves 'operational information' as the
information
will relate to ASIO's activities.
In effect, the 'operational knowledge' offence will prohibit the
disclosure of most information relating to ASIO's activities where a
warrant under the Act has been issued.
Practical impact of secrecy provisions
The offences proposed by the Bill, in particular, the 'operational
knowledge' offence, will mean that much of ASIO's activities will be
cloaked in secrecy and cannot be subject to public discussion.
Given that ASIO is invariably involved in domestic anti-terrorism
measures, these offences will have the knock-on effect of insulating of
the domestic 'War on Terror' from the public gaze. If these offences
become law, one of the most significant policy issues in Australia will
then be carved out from public debate.
Constitutional validity of the secrecy provisions
The Bill provides that the secrecy provisions do not apply 'to the
extent (if any) that it would infringe any constitutional doctrine of
implied freedom of political communication'.
This provision does not, however, render otiose the issue of the
constitutional validity of the provisions. It just means that the issue
is intertwined with question of the scope of the provisions.
Present High Court jurisprudence states that a legislative provision
will be invalid if:
 it burdens the freedom of political communication; and
 it is not reasonably adapted to pursuing a legitimate
objective.
The secrecy provisions, if passed, will clearly burden freedom of
political communication; a freedom which extends to communication
regarding the exercise of power by public bodies like ASIO.
The question then is whether these provisions which are aimed at
protecting the integrity of ASIO's intelligence gathering are reasonably
adapted to this aim.
These offences which prohibits the communication of certain information
will likely be subjected to greater level of judicial scrutiny.
It is likely that the first offence will be seen as reasonably adapted
to this aim because it:
 imposes a prohibition on disclosure for a relatively short
period, i.e. when the warrant is in force; and
 is confined to a narrow category of information, i.e.
information relating to issue of warrant and conduct pursuant to
warrant.
The 'operational knowledge' offence, on the other hand, is of
questionable constitutional validity. It is seriously arguable that it
is not reasonably adapted to the aim of protecting the integrity of
ASIO's intelligence-gathering activities because it:
 criminalises disclosure of information for an inordinately
long
period, i.e. two years; and
 embraces a very broad range of information.
------------------------------
TerrorLaws
A list for information and action on the proposed terrorism laws in
Australia.
For more information check out www.getsmart.org.au
To subscribe send a BLANK email to: TerrorLaws-subscribe@topica.com
End of TerrorLaws@topica.com
digest, issue 105
|
