SECURITY - ASIO bill may not pass the constitutional test

After questioning, a person’s detention should be decided by the courts, not government, writes George Williams FEDERAL Attorney-General Daryl Williams has come a long way on the ASIO bill. He has accepted in substance most of the Opposition amendments and for the first time the bill is in the ballpark of improving the capacity of ASIO to gather intelligence about terrorism without unduly undermining our democratic freedoms. However, further amendments must be made before the bill is passed this week by the Senate. Indeed, unless this occurs, the bill may be unconstitutional. The ASIO bill was introduced in March 2002, six months after the September 11 attacks. It provided that Australians who were not terrorist suspects could be detained for rolling two-day periods that could be extended indefinitely. While in detention, a person could be strip-searched and denied access to family members and even to legal advice. A failure to answer questions could also lead to a five-year jail term. The proposal was unprecedented in its attack on basic rights and went beyond any law in Britain, Canada or even the United States. The bill has since been the subject of two major parliamentary inquires, many amendments, and protracted and sometimes bitter negotiations. However, even as amended to include a three-year sunset clause, it remained flawed in applying to children as young as 14, denying detainees access to a lawyer of their choice, and in focusing on the lengthy detention of non-suspects rather than a regime for their questioning. At the close of Parliament last December, it seemed that agreement was out of reach and that the bill could become a trigger for a double-dissolution election. The breakthrough came when the Attorney-General announced a shift on each of the main sticking points. First, the bill now will apply only to those aged 16 and over. Although it would be better if the bill applied only to adults, the detention of a 16 or 17-year-old is a far cry from the regime applying even to 10-year-olds, as was originally proposed. Second, detainees will have access to a lawyer of their choice. There will also no longer be an initial two-day period during which a person might be denied legal representation. ASIO may still request that access be denied to a particular lawyer, but only where the lawyer poses a security risk. This represents a fair and sensible balance. Finally, a person now can only be questioned for a maximum of 24 hours in eight-hour blocks. This is not far from the Opposition’s position last December of a questioning regime limited to 20 hours. I have reservations about the length of questioning under both proposals, especially when suspects can be questioned by police under federal law for only 12 hours before being charged. However, both shift the focus away from the detention of non-suspects to their questioning. Compulsory questioning regimes are not unknown in other parts of the law, such as before royal commissions or in regard to corporate crime. A questioning regime can be justified in the gathering of intelligence about terrorism. However, when the questioning stops, a person must be free to go. Unfortunately, the government wants ASIO to be able to have a person held for a week. Yet, if a person is questioned for eight hours a day over three days, what will happen over the remaining four? The bill also leaves open the possibility of indefinite detention through a person being held under rolling week-long warrants. This is even worse than the original proposal for rolling two-day detention and should be strongly opposed. The bill should provide for the questioning of people with information about terrorism and no more. To seek further powers of detention could jeopardise the constitutionality of the legislation. The separation of powers may be infringed because it is the role of the courts and not government to order a person’s detention beyond the time needed for their questioning. What may appear to be a shield against terrorism could prove flimsy indeed if struck down by the High Court. Some believe that the ASIO bill should not be passed in any form because the civil liberties concerns cannot be overcome. I have never held this view. After September 11 and the Bali attack, national laws are needed to better protect the Australian people and to fulfil our international obligations to fight terrorism. However, new laws must strike the right balance between our national security and important public values and fundamental democratic rights. While it must make further amendments to the ASIO bill, the government is nearing this goal. George Williams is the Anthony Mason Professor and director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales. This article originally appeared in the Ag