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Spying an opportunity to entrench power

By George Williams and Ben Saul - posted Tuesday, 31 May 2005

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (ASIO Bill) (pdf file 115KB) was passed by Federal Parliament in June 2003 after 15 months of sometimes bitter debate. At issue was whether the law should allow the questioning and detention of Australian citizens not suspected of any crime in order to assist ASIO with gathering intelligence about terrorism. That debate has now reopened.

The parliamentary process led to many changes to the original ASIO Bill. They included removing the possibility of indefinite detention, with only one week now possible, and applying the regime to those 16 years and older rather than to much younger children. The final Bill included a sunset clause that will terminate the questioning and detention provisions after three years.

With the end of the ASIO powers in sight, debate has begun anew as Parliament grapples with whether the ASIO Bill should be made permanent, renewed for another limited period or repealed. This raises fundamental questions about how vulnerable Australia remains to terrorism and what powers government should have when some level of threat will always be present.


The focus of debate is the Parliamentary Joint Committee on ASIO. The committee has received nearly 100 submissions, with only a few - notably by the Attorney-General, Philip Ruddock, and ASIO itself - arguing for the regime to continue. When this same committee looked at the original Bill in 2002, it recommended changes after unanimously finding that the Bill "would undermine key legal rights and erode the civil liberties that make Australia a leading democracy".

The ASIO Bill was an extraordinary law passed in the heat of an extraordinary time. After the attacks in the United States on September 11, 2001, a difficult assessment had to be made about just how far laws should affect the basic liberties of Australians to protect the community. A key problem then, and now, is that the nature of the threat to Australia is largely unknown, at least to the public, making it difficult to determine what laws can be justified.

None the less, the onus is squarely on the Government and ASIO to demonstrate the need for continuing this law, and to justify its impact on Australia' s hard-won freedoms. In particular, they need to overcome the concern that laws such as this, especially if made permanent, can do long-term damage to our freedoms and way of life.

ASIO has used its powers sparingly. Only eight people have been questioned and none detained since the Bill came into effect. This demonstrates a commendable prudence by ASIO in not using powers that might have been extensively applied to many Australians, particularly Muslims.

On the other hand, this may also suggest that such powers are not needed and that the better way of dealing with terrorism is through the ordinary criminal process and the existing powers of the police.

Some are calling for ASIO's powers to be retained permanently, others for their removal.


We sit somewhere in the middle. It makes sense for ASIO to have the power to question Australians about what they might know about terrorism, and to compel them to answer. On the other hand, the power to detain people not suspected of any crime for up to a week should go. That power was always at odds with long-standing democratic traditions that suggest Australians should only be detained in very limited circumstances, such as when found guilty by a court or pending trial.

Detaining Australians as part of the war on terrorism when they have not committed a crime sets a dangerous precedent. This is especially the case where someone can be taken into custody at the behest of the Government and its secret intelligence service. The problem is further illustrated by the strict secrecy provisions in the ASIO Bill. They make it a crime, punishable by up to five years in jail, to reveal information for two years after a warrant has been issued.

It seems likely that the Government will get its way once it controls the Senate from July 1. However, the last time that such significant terrorism laws were debated, the Prime Minister, John Howard, applauded the role played by Parliament in achieving compromise and a better balance in the legislation. We can only hope that, in this next round of debate, the community's voice is again heard. Parliament should not follow the easy course of legislating at whatever the cost to our democratic traditions and fundamental liberties.

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First published in the Sydney Morning Herald on May 23, 2005.

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About the Authors

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Dr Ben Saul is Director of the Sydney Centre for International and Global Law, Coordinator of the Master of International Law Program, a Senior Lecturer and barrister (including in the International Criminal Tribunal for the former Yugoslavia). Ben specialises in public international law, particularly anti-terrorism law, humanitarian law, international criminal law and human rights law. He has published widely in international law journals and his recent book, Defining Terrorism in International Law (Oxford University Press, Oxford, 2006), is the first scholarly work on the subject. He has taught law at UNSW, Oxford and in Cambodia and is Editor in Chief of the Australian International Law Journal.

Other articles by these Authors

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