ASIO’s most controversial powers allow it to forcibly question people if they may have information that could help prevent a terrorist attack. Based on ASIO’s annual reports, here is a table of how often it has used these coercive questioning powers, followed by some observations on whether it should be allowed to keep them.

For a questioning warrant, someone is summoned by ASIO to be questioned. For a questioning and detention warrant, ASIO physically arrests someone to take them in for questioning. In both cases, the person questioned can face jail for refusing to answer.

In itself, that tells us little about whether these powers are a sinister and excessive form of state control or are a necessary and justified tool to prevent terrorism. Currently, my personal view is that they are justified. In light of re-emerging opposition to these powers, I make the following five points about how these powers have been used.

First, these powers have not been used very often.

ASIO has not used its detention powers at all, and has used its questioning powers 16 times, only once in the past six years. When these powers were introduced, critics charged that they would be abused and have disastrous effects. Now critics are more likely to argue that because these powers have rarely been used, there must be little need for them (particularly the detention warrants) and so they should be taken away.

Second, there are several likely reasons why they haven’t often been used.

One is that Australia, relative to other liberal democracies, particularly the US, UK, France and Spain, faces only a low-level threat of terrorism. Another is that ASIO is no longer the unrestrained organisation that it was up until the 1970s. Two Royal Commissions, internal reforms, new legislation, and the creation of accountability mechanisms such as the Security Appeals Tribunal, the Inspector General of Intelligence and Security, and the Parliamentary Joint Committee on Intelligence and Security, have made ASIO a more professional and trustworthy organisation. That said, several problems with ASIO remain and their accountability mechanisms fall short of those in some other democracies.

In addition, when these powers were first proposed by the Howard government, they were to have few safeguards. Eighteen months of negotiation with the Opposition resulted in several safeguards being put in place. These safeguards, which I’ve written about elsewhere, include the following:

–          They must get approval from the Attorney-General before questioning you.

–          They must get further approval from an independent issuing authority, which will be either a judge or magistrate from a federal court.

–          Another independent authority, usually a retired superior court judge, will monitor the entire interrogation.

–          They must ensure you are aware of your right to complain to the Inspector‑General of Intelligence and Security, the Ombudsman and to a police complaints agency.

–          The interrogation must be videotaped.

–          You can have a lawyer with you, though it might not be the lawyer of your choice.

–          Anything you say cannot be used in a prosecution against you, though it may influence the direction of an investigation.

(These are detailed in section 34 of the ASIO Act, and the Independent National Security Legislation Monitor Annual Report.)

These safeguards hopefully helped prevent the powers from being overused or misused. Unfortunately some other ASIO activities, particularly its security assessments of refugees, lacked this sort of accountability.

Third, Operation Pendennis is the likely reason these powers were used 11 times during 2004-2005.

Officially, ASIO has never given a reason why the powers were used extensively in their first few years and only once in the seven years since. However, we can take a safe guess that this is explained by Operation Pendennis. This was a joint operation between ASIO, Federal and State police which resulted in the arrests of 22 people between November 2005 and March 2006. 13 Melbourne men and nine Sydney men were charged over terrorist plots, for which six pleaded guilty and 12 were found guilty by juries. ASIO’s involvement was semi-public and they likely would have been most concerned with the Sydney cell.

The subsequent trial showed that the Sydney cell had acquired tens of thousands of rounds of ammunition, firearms, detonators, chemicals, lab equipment, and instructions on how to use the chemicals to make bombs. There were also indications (never proven in court) that they were acquiring fully automatic weapons and rocket launchers stolen from the army. No terrorist plan in the country since has been as serious as the Sydney Pendennis cell, which is likely why ASIO’s questioning powers were rarely used afterwards. For example, the 2009 Holsworthy Barracks plotters did not get very far by comparison.

Fourth, there is some information available on who ASIO has questioned.

The cloak of secrecy surrounding ASIO is often exaggerated. It is often thought that we have no way of knowing what they are up to, but it’s possible to find some things out. People questioned by ASIO can not talk about it for two years afterwards, but then they are free to. One person coercively questioned by ASIO (probably in the 2009-2010 period) spoke to The Age anonymously. I’m not sure if Zaky Mallah was coercively questioned by ASIO, but this video he made makes it sound like he was (presumably in the 2003-2004 period). Sometimes, the identity of who has been coercively questioned by ASIO can be revealed by a decision to press charges against them for allegedly lying, as happened with Sydney Pendennis cell member Abdul Rakib Hasan (questioned during the 2003-2004 period).

Fifth, overall the case for removing these powers is weak.

Noted earlier, there is currently a campaign to remove these powers, with a prominent role being played by Professor George Williams, who likened them to Pinochet’s Chile. While George Williams has written excellent articles on Australian terrorism law, this claim is completely over-the-top. Coercive questioning powers are quite common in Australia (for example in Royal Commissions), and can be justified if they are used with restraint and if there are adequate safeguards.

Based on Operation Pendennis, it appears likely that these powers have helped prevent at least one terrorist attack. Australia does currently face a small but significant threat from jihadist terrorism and potentially terrorism inspired by other ideologies, particularly far-right extremism. While the terrorist threat is currently quite low by international standards, and looks likely to remain that way in the near-term, it could also escalate unexpectedly as Norway experienced.

Furthermore, there is no current evidence that these powers have been misused. While several injustices have resulted from counter-terrorist action in Australia (see Izhar ul-Haque and Dr. Mohamed Haneef for starters), none are known to have resulted from ASIO’s coercive questioning powers.

Of course, there is not much information to base a judgement on one way or the other. Fortunately, there are currently two independent inquiries examining the appropriateness and effectiveness of Australia’s counter-terrorism laws. There is no doubt that these inquiries will be independent; one is led by former judge Anthony Whealy (who oversaw Sydney Pendennis trial) and the other is led by Bret Walker, who not long ago was a defence lawyer for an accused terrorist. These inquiries will not be shams.

If there is evidence that ASIO’s coercive questioning powers have been used unjustly, hopefully these inquiries will uncover it (and if so, the case for removing these powers will be far stronger than it currently is). For example, there have been persistent claims about ASIO officers inappropriately forcing compliance by threatening to use these powers. Hopefully these inquiries will also reveal whether these powers have in fact helped prevent attacks, so that we no longer have to rely on informed guesswork.