And you should know that in my heart you fill every corner… ASIO Legislation Amendment Bill 2020

There’s a familiar rhythm to public discussion about national security legislation: too few people understand what’s going on, so every change to legislation seems radical and new.  Without specialist journalists, legislation is discussed in terms of press releases and slogans.

If you know nothing else about the Australian Security Intelligence Organisation Legislation Amendment Bill 2020, you know that it has something to do with 14-year olds.  Perhaps you’ve even gone so far as to read an opinion piece from one of the usual suspects, even though their previous claims about national security law have consistently been inaccurate.

Part of the problem is that journos get interested in the legislation reform cycle at the end and then hurridly craft an opinion like an undergraduate philosophy student who hasn’t done the reading.

In 2017, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) undertook a review of ASIO’s questioning and detention orders. It tabled its report in 2018.  There were public hearings, a bunch of media releases, but not even a little bit of informed commentary in the media.  So, of course, a legislative reform process that started three years ago is now being described as ‘rushed’.

Actually, it was more than three years ago.  The story starts with a 2016 report of the Independent National Security Legislation Monitor (INSLM).

Division 3 of Part III of the ASIO Act 1979 is the legislative ground for questioning warrants and questioning and detention warrants by ASIO.  These are two different warrants that are available for different purposes related to terrorism.  And not just ‘Oh, it’s available for a range of things including terrorism’: it’s there in black and white that these powers are only for dealing with a terrorism offence.

The Australian Criminal Intelligence Commission separately has powers that look like they’re performing a similar function as the ASIO powers.  These powers are in Division 2 of Part II of the Australian Crime Commission Act 2002.  But although they were performing a similar function, the processes were different.

To cut a long story short, the INSLM says: ‘Hey, this is unnecessarily complex: why don’t we align these powers so that they function the same way?’

INSLM recommends that Division 3 of Part II of ASIO Act be abolished and replaced with something like Division 2 of Part II of the Australian Crime Commission Act 2002.  So far so good, except the Australian Lawyers Alliance (Greg ‘Assange has a supple and nuanced intellect‘ Barns) read the first bit of the recommendation (abolish pt III div 3) and got so excited that he stopped reading the second bit (replace it with pt II div 2).

C-c-c-combo breaker: the Inspector-General of Intelligence & Security reads the recommendation and says, ‘Wait up.  You missed a bit.  One of the reasons for the complexity in the ASIO Act is that there is a lot of oversight by my office of ASIO’s use of the power.  If you go down this path, I want to make sure my office still retains its oversight function.’

Lots of debate follows, and the PJCIS says: ‘Okay, Attorney-General’s Department, go away and draft some legislation before the end of 2018.’

But let’s stay at this point in the cycle.  Anybody reading the above would say, ‘Hang on, Mark.  You haven’t really explained the difference between a questioning warrant and a questioning and detention warrant.  And what’s the deal with 14-year olds?’

The main difference between a questioning warrant and a questioning and detention warrant is that one of them provides ASIO the power to take a person into custody; the other does not.  In effect, a questioning warrant is a questioning and detention warrant lite: the Attorney-General must be satisfied of additional facts before issuing a questioning and detention warrant.

Record scratch: the Attorney-General issues the warrant?!  You read that right.  It’s a warrant issued by the Attorney-General.  But isn’t that a breach of the separation of powers?  Nope.  Should you be worried about it?  Maybe.

But this is the space where reasonable minds differ and should be the space where the public is most engaged in the debate.  In extraordinary circumstances, who should authorise State violence (accepting an extremely wide definition of ‘violence’ to include tapping a phone line)?  Should the judiciary have a strict oversight function of the executive?  Why?  Are judges in a better place to make these decisions instead of the Attorney-General, as First Law Officer of the Commonwealth?  Does the political nature of the Attorney-General influence this discussion, and how?  All good questions that somebody should do an extremely well-funded PhD on, combining legal research and political science methods, I reckon (please find my Patreon link below).

Anyway, one of the other very prominent (academic) voices in the debate about national security legislation said that the Attorney-General issuing questioning and detention warrants would be unconstitutional.  It wasn’t.

But we still haven’t got to the bit about 14-year olds.

ASIO Act allows both questioning warrants and questioning and detention warrants to be issued against a person as young as 16. There is special threshold applies to any person between the ages of 16-18, so that a warrant can only be sought against a minor if that minor will commit, is committing or has committed a terrorism offence.  This is a stricter standard than for adults, where they just have to be related to the offence.

To the best of my knowledge, there’s no age restriction in Division 2 of Part II of the Australian Crime Commission Act 2002.  This creates a puzzle: if you’re knocking out the ASIO provision and replacing it with the ACIC provision, does that give ASIO freedom to seek warrants against children?

Best be clear, I reckon.  But what should the minimum age be?  In the absence of anything else, I think the minimum age should be consistent with other legislation.

Criminal Code Act 1995, s.104.28 has a minimum age of 14 for control orders. Terrorism (Police Powers) Act 2002 (NSW), s. 25F has a minimum age of 14 for investigative detention.  So things are looking reasonable for 14.

Preventative detention orders under Criminal Code Act 1995, s. 105.5 has a minimum age of 16. So it could be reasonable to keep it at 16.

The very public reason to have the lower age was the terrorist attack by a 15-year old in October 2015: the murder of NSW Police employee Curtis Cheng.

So, again, reasonable minds can differ but it’s not extraordinary or novel to apply these provisions to younger cohorts.  We could reasonably ask if the entire framework is wrong to apply to 14-year olds, but that debate moves us away from the emotive hyperbole of ‘unprecedented creeping fascism’ towards teenagers.

If the debate is worth having, it’s worth having well.  It’s also worth having a balance of voices so we don’t get a media debate that looks like Big Mean Government v Sensitive New Age Civil Society.  Especially when the voices from Civil Society are not particularly informed.