On Thursday, 20 August the Federal Senate passed the ASIO Amendment Bill (No. 2). A compulsory questioning warrant lets ASIO require a person who has never been charged, and may never be, to appear and answer questions. Refusing is a criminal offence carrying a potential sentence of years in prison. So is telling anyone it happened: a husband, a mother, a grown child – the law does not merely silence the citizen; it forbids her from explaining the silence.
It was rushed through under a guillotine, the procedure that cuts off debate and forces a vote.
The vote went 26 to 15, and not a single government senator rose to defend it.
The 15 who voted ‘no’ came from opposite ends of the spectrum, The Greens, One Nation, David Pocock and two South Australian Liberals, Alex Antic and Andrew McLachlan.
‘You don’t even have to be suspected of anything’ Shoebridge told the Senate.
‘You might just be someone they want to talk to’.
A person that has been charged has a lawyer, a court, and a right to silence. A person charged with nothing has a lawyer ASIO can remove at will, questioning that may run 24 hours, no exemption for children as young as 14, and a warrant signed not by a judge but by the Attorney General, with the all partisan interests of their governing party.
The right to silence
The right to silence is among the oldest protections in the common law: the state must prove its case, not extract it from the mouth of the accused. A power that compels answers on pain of prison does not sit at the edge of that system; it sits outside it. And in Australia this right has no constitutional shield. Nothing holds it up but common law, and common law yields to any parliament that writes clearly enough. No court can save it; the right survives only as long as parliament is willing to spare it. This week parliament did not.
The grounds now reach past espionage to sabotage and, elastically, the promotion of communal violence. Read the definition, Shoebridge said and ‘you could drive a bus through’ it. Advocacy that offends? A protest that turns hot? A sermon? Nobody in that chamber could say, which is the objection.
‘Vague drafting’ in Antic’s phrase, ‘is the enemy of the rule of law’. A line you cannot see is not a law. It is a discretion.
None of this pretends security does not matter. ASIO’s job is difficult and vital. The objection was never the mission but the price.
Whose laws?
These are Howard’s laws, forged in the panic after 11 September, when the line between the reach of the state and the liberty of the citizen was redrawn in the state’s favour and never drawn back. Even then they were sold as temporary, their sunset clause a promise that parliament would look again. This bill removed the sunset clause, and the permanence is not an oversight but a decision. In 2003 a Labor frontbencher called the legislation ‘without precedent in Australia’s post-war legal history’ warning it could allow ‘the mistreatment of ethnic minorities, the suppression of dissent, and the detaining and investigations of wholly innocent Australians’. A struggle for democracy, he said ‘cannot be won by giving up democratic values, freedom and respect for civil liberties’.
That frontbencher was Anthony Albanese.
A Labor government out-hawing the Coalition on ASIO powers looks like one of the stranger reversals in our history. However, this was never Labor policy. The party’s national platform, adopted by its own conference, endorses the principle that people ‘are not compelled to incriminate themselves’. That is the right to silence, the precise protection this bill destroys. It commits Labor to security powers ‘reviewable by court’; the ASIO Amendment Bill (No. 2) is a warrant signed by a politician.
What passed the senate did not come up from the membership but down from the leadership, endorsed by a pledge that makes crossing the floor an expulsion offence or the cost of dissent being their own preselection. So the party that invokes the solidarity of the many is, increasingly, the instrument of a few.
The bill forbids a citizen from telling their own family that ASIO questioned them; Labor forbids their own members from rigorously debating or publicly opposing it. A leadership practised at silencing its own caucus has now voted silence onto every citizen.
What is left?
Neither Labor or the Coalition campaigned on these powers. Neither would dare put them to a plebiscite. And in the final debate not one senator stood up to defend them, because to defend this bill, you would have to describe it; to say aloud, on the record, that a citizen suspected of nothing may be taken, questioned for 24 hours, and jailed for telling his wife. No such sentence of that description survives contact with the public. A bill that can win a vote but not an argument must be passed without one. This is what the guillotine was for.
Australian’s are leaving the major parties in numbers that ought to frighten them; they have noticed how often the two of them agree on things that are against the interests of those who elected them. When the parties meant to check each other, instead reach for the same powers, that is not competition; it is a cartel. Governments are elected to govern, but a law that was never put to the people, passed by government senators forbidden to dissent, under a procedure that cut off debate, may be legal. Whether it is democratic is a different question.
‘Extraordinary powers should never become ordinary’ Antic told the Senate.
But this is how they become ordinary; not by proclamation, but by procedure, on a Thursday, the numbers settled in advance with nobody obliged to explain. A parliament that would not be questioned about this bill has voted to expand its power to question you.
♦ Chaiy Donati is a former President of Queensland Young Labor.
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