Brandis Agrees To Amend National Security Bill To Explicitly Ban Torture; Debate Continues
Tuesday 23 September 2014 @ 11.06 a.m. | Crime | Legal Research
Attorney-General George Brandis has announced that he will introduce an explicit ban on torture in the National Security Legislation Amendment Bill 2014 (Cth). Liberal Democratic Party senator David Leyonhjelm had threatened to withdraw support for the bill, due to his concerns about section 35K of the Bill, which would grant immunity from prosecution to ASIO agents and participants in intelligence operations. He had received legal advice that the provision was drafted so widely that it would allow agents to participate in some forms of torture and remain protected.
Attorney-General Brandis initially dismissed the claims as “absolute rubbish”, but yesterday announced that he would move an amendment to prevent the issue from being a further distraction. He told the Sydney Morning Herald:
“No operation which authorised torture could ever be validly authorised under the powers that ASIO has. Nevertheless, I don't want the discussion of this important issue to be diverted by an issue that is effectively a red herring."
Senator Leyonhjelm said he “welcomed the announcement”, but told The Australian he still had concerns about the bill, especially section 35P. As previously discussed on Timebase, the provision would insert a new criminal offence for disclosing information relating to “special intelligence operations”, and critics have raised concerns about how this would apply to civilians and journalists. Senator Leyonhjelm said:
“It’s a serious threat to freedom of speech and freedom of the press. I don’t like it and I would like it to be removed.”
Sunset Clauses
Attorney-General Brandis also announced yesterday that after feedback from the community and Muslim leaders, the government had agreed that removing the sunset clauses from key parts of its anti-terrorism legislation would “send a bad message”, but said he did not believe that it would “weaken the legislation in any respect, whatsoever”. The Government had planned to remove the sunset provisions for preventative detention and control orders, which would have originally expired at the end of next year. Instead, they will now be extended to sunset in December 2025.
Travel Bans
Sunset clauses will also apply to the controversial provisions that would allow the Minister for Foreign Affairs to ban Australians from travelling to a particular locality, unless they have a defence of having a “legitimate purpose”. The provisions are set to be introduced in the Counter Terrorism Foreign Fighters Bill that will be introduced this week, and have attracted a large amount of criticism. Attorney General Brandis, in an interview on the ABC, said “there’s been a lot of misunderstanding about the question of the onus of proof”. He said that the onus of proof remained with the prosecution to prove beyond reasonable doubt that a person has visited the area, and that it was then up to the person to provide a defence that they were there for a legitimate person. He also said the Government was “not talking about prescribing [whole] countries”, and that “in my view… prescribed areas should be quite narrowly defined”. He did acknowledge that the public could have suspicions about why the government wanted to increase its powers, but said that:
“The public should expect any government that wants to increase the power of the state to make the case and that is what we are doing. We've approached this in a careful way, I have personally approached this with a presumption against extending the power of government and the power of the police and security agencies beyond what is absolutely necessary.”
The Australian also reported that Senator Brandis said the provisions would be “unusual in our law” and felt applying a 10-year sunset clause to them was “reasonable”.
Labor has said that it will not guarantee support for the bill until it has reviewed the details in the full text.
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