By Tim Dick
Australia's top spy thinks ASIO shouldn't have to bother convincing a judge to lock someone up for interrogation, someone who isn't doing or plotting anything bad but might know someone who is.
ASIO can already ask to have someone detained if it thinks he knows something about a terrorism offence. That it now has the nerve to seek to dispense with judicial oversight shows the state of liberty in Australia today.
Prime Minister Malcolm Turnbull greets ASIO director-general Duncan Lewis earlier this month. Credit: Alex Ellinghausen
It's part of a disturbing tendency of law enforcement when given new powers with safeguards, to quickly want either more powers or fewer safeguards.
Basic protections against the security state are blithely dismissed as an irritant to be made more "efficient", or in the misappropriated words of the Attorney-General's Department, more "agile".
Judicial oversight is no mere inefficiency. It is a bulwark protecting the freedom from arbitrary detention. It ensures liberty is real, as it is fundamental to our democracy that the government can't easily lock people up.
Yet too often liberty loses to security, and the spies now want to take a little more away.
Duncan Lewis, the ASIO director-general, told a parliamentary hearing in Canberra on Friday he wanted its questioning powers "streamlined", but only vaguely sought to justify his desire. They should be "more efficient in responding to the current fast-paced threat environment."
How these extraordinary powers of detention are hindering the spies wasn't properly explained, not according to the transcript on the ASIO website. Perhaps it was hidden in its secret submission, and maybe it was compelling. But I doubt it.
ASIO already has a method to get information through interrogation which might prevent a terrorist attack. Its compulsory questioning power has only rarely been used. Its ability to seek a warrant to detain someone for a week for questioning has neither been sought nor refused.
It may be easier to ask a politician, the Attorney-General, to allow it to detain a non-suspect than a judge, but that doesn't mean we should allow it. Efficiency is no justification to remove what constraints there are on these unparalleled executive powers.
It should be hard to lock someone up, especially someone who hasn't done anything wrong. Putting people in custody for interrogation should only done in the most exceptional circumstances. That we even have to say that to ASIO shows the fragility of the liberal democratic project.
When ASIO first got the right to dragoon people to answer questions even if not suspected of a crime, and hold them for seven days, the Howard government praised itself for protecting both Australia and civil liberties.
The then attorney-general, Daryl Williams, told Parliament that civil rights must not be eroded in the name of security, even though his bill did precisely that.
"The extensive safeguards in the bill are designed to ensure that the right balance is maintained," Williams said. If anyone was confused, he said it again: "The balance that has been achieved in the bill is the right one."
Yet not according to the country's spymaster, who appears irritated at the inefficiency of liberty, annoyed at the details of the democracy he's given enormous power to protect.
Of course it would be more efficient if the intelligence agencies didn't have to bother with civil liberties, or with any restrictions on their power. But if the impatience of spies justifies ending the oversight of their draconian powers, we're doomed.
Australians are not nearly as conscientious as they ought to be about protecting liberties. We have given away protections to fears about security, to those about crime, to those about asylum seekers.
All Australians are now subject to the default surveillance of mobile phones, whereby the logs are kept for two years for the police to fetch when they see fit, without bothering a judge to determine whether such intrusion is justified.
Police now routinely search the phones of people they arrest. They fish through people's messages, emails, call logs, photos – through any app on the phone – with only the most tangential of restrictions. In the US, they need a warrant.
In NSW, people allowed the State Parliament to change the law making those who trespass against businesses worse than trespassing against private property. Those who protest by interfering with coal seam gas operations are even worse.
Most people aren't worried about limiting such civil liberties, because most people aren't affected – if you've got nothing to hide, etc. It's hard to get a groundswell of agitation when Australia remains a solid liberal democracy, and when those most affected by relatively minor incursions into liberty are petty criminals.
But every time we erode a protection, we erode a little more of the freedom we're supposedly so eager to protect.