The Guardian 9 March, 2005
ASIO powers to question and detain
ASIO can ask you questions at any time and it can use the information you give them in reports or in evidence against you or others later. Until recently there was no obligation to tell ASIO anything. You had the right to say nothing, go away, think about it, consult a lawyer for advice or just forget they ever asked. That was until amendments were passed to the ASIO Act in 2003. Since then, it has become a criminal offence not to answer ASIO questions where ASIO has obtained a warrant.
These changes allow ASIO to obtain a warrant when there are reasonable grounds for believing that its issuing will substantially assist the collection of intelligence that is important in relation to a "terrorism" offence. The warrant is granted by a government minister.
A warrant can also allow ASIO to get the Australian Federal Police (AFP) to detain you if there are reasonable grounds for believing that you may alert someone involved in a terrorism offence or may not appear before the "prescribed authority" or may destroy or damage evidence.
This applies to people aged 18 or over. ASIO warrants can be issued for 16- and 17-year-olds, but only if they are likely to or have committed an offence.
You can be detained for up to seven days under a warrant and can be questioned in blocks of up to eight hours for adults with a limit of 24 hours if you are questioned for a week (double those times where an interpreter is involved).
ASIO can seek renewal of a warrant when new information has come to light which justifies it. That 'new information' might be the first questioning period — so it is possible to argue that one warrant can follow another, allowing virtual indefinite detention. An amendment to the ASIO Act preventing rolling warrants was suggested by the Greens when it was clear that the legislation would pass. The Greens amendment was defeated on the combined vote of the Coalition and Labor parties.
Under an ASIO warrant, there is no automatic right to a lawyer. If you are to be questioned under a warrant (possibly at a police station or in an office) you have no automatic right to contact anyone — lawyer, family member or friend included. If you are allowed a lawyer, your conversation with that lawyer can be monitored. You do have a right to contact the Inspector-General of Intelligence and Security and the Ombudsman if you so request.
Lawyers can only give legal advice during breaks in questioning and "unduly disruptive" lawyers can be removed.
You must provide information and records or other things relevant to the "terrorism offence" if requested by ASIO.
The ASIO officers present during questioning do not have to give you their names. AFP officers, any interpreter and the "prescribed authority" will also be present. The "prescribed authority" is suppose to make sure that ASIO and the AFP plays by the rules, however, as the prescribed authority will come from a list of retired judges, it can be assumed that the government will quickly make up a list of ex-judges who are known for their conservatism. The questioning should be video recorded. There are certain specified protocols regarding access to water, meals, toiletries, minimum undisturbed sleep, breaks during questioning, lighting, religious practices, etc.
No right to remain silent
Failing to appear after receiving a warrant or failure to answer questions is punishable by up to five years' imprisonment. If you are asked a question and do not know the answer, you must be able to show that you really don't know the answer or that you really don't have the thing you are being asked to produce. This is a power that the Australian Federal Police and state police do not have — the right to remain silent is a long-standing right which goes to the heart of the criminal justice system.
When an ASIO warrant has been issued against you, a police officer may enter your home (by force), arrest you and seize your passport and those of your family and any others in your possession.
One of the most disturbing features of the legislation is its secrecy provisions when ASIO warrants are issued. These provisions remain in force for two years after the warrant is issued. It means that a person who has been arrested under a warrant may not be able to talk to friends, lawyers or journalists about their detention and treatment.
Things that can't be talked about include:
disclosure of contents of warrant
disclosure that questioning took place or any information about the questioning
telling your partner where you have been
disclosing any information to journalists or friends.
Even if you break the law and tell a journalist that you have been questioned, that journalist would be break the law if he or she passed the information on by writing a story.
It was already a crime to reveal the name of any ASIO agent, except for the head of ASIO.
So far, according to ASIO's 2003-2004 annual report, only three people have been questioned under a warrant. The low level of usage so far should not be taken to mean that the ASIO Terror Act and other laws will not be heavily used in the future. As the number of people questioned and detained only has to be reported publicly in ASIO's annual report, there could be a gap of a year before anyone knows. In the last month, for example, literally hundreds of people could have been picked up and detained: no one would know till the next annual report.
If, for example, the government decided to take in members of a political party or other organisation, even the act of alerting someone would be punishable by imprisonment.
The government is in the process of setting in place a whole new "security" regime which it expects to use in the future to deal with refugees, migrants, political opponents, trade unions, and other dissidents. There are more laws to come.