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ASIO wants power to detain family members of terror suspects without a judicial warrant -

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PETER LLOYD: The national spy agency, ASIO, wants the power to arrest and detain family members of terror suspects for up to seven days without a judicial warrant.

At the moment, a judge has to sign off on this type of arrest and detention and be present for questioning.

ASIO says that, in future, the Attorney-General's go-ahead should be sufficient authority.

It made the case in a submission to the Government's National Security Monitor, Roger Gyles QC, but met with strong opposition from civil liberties organisations.

Stephen Blanks is president of the New South Wales Council for Civil Liberties:

STEPHEN BLANKS: Well, the argument that we heard was that it's too much trouble for ASIO to get a warrant from a judge; that they find that inconvenient to have to go to a formal process before a judge to get a warrant.

And so they want a simple process, where just the Attorney-General can approve, or perhaps even just internal ASIO approval for these very draconian powers.

PETER LLOYD: Was there any evidence presented to this hearing that you were involved in that suggested that there's any evidence that ASIO has attempted to do this over the years?

STEPHEN BLANKS: One of the curious things is that this power is very rarely used, if at all: the power to detain for questioning.

And it's not difficult to get a warrant if the circumstances are appropriate. There are almost zero cases of judges ever refusing warrants. But of course, there is a bit of paperwork involved and ASIO has to, on record, justify the use of a draconian and fundamental anti-freedom power to detain people for questioning.

ASIO shouldn't have that power at all but, if it is going to have that power, it should only be under the strictest judicial supervision.

PETER LLOYD: One of the points that you made in your submission was that one has to be extraordinarily careful not to set up systems which are going to act as beacons for those trying to destroy our society. What did you mean by that point?

STEPHEN BLANKS: Look, what I meant by that is that if you destroy the fundamental freedoms which are inherent in a democratic system, you're giving victory to our enemies: to the terrorists. And they will be able to point to the fact that we don't live in a free society and, therefore, there is not a significant change for the kind of system which they advocate for, which is not a free society.

You can't beat opponents of freedom by undoing our freedom.

PETER LLOYD: But just to draw you out again on the point: ASIO is seeking more detention powers, not for people who are suspects: for people who are not suspects but have information?

STEPHEN BLANKS: Yes. ASIO is seeking these powers, which it will use against people who they believe have information against suspects.

And when you decode what that means: it means family members, so that they can take in teenaged children to try and get information on other members of the family. They can bring in mothers to try and get information on their husbands and sons. They can bring in cousins to get information on other family members.

That kind of prospect is terrifying. That is the kind of thing that happens in societies where freedoms are not respected. And we're at risk of giving that all away in Australia.

PETER LLOYD: And this idea of executive detention - that is, by the writ of a minister - does it exist in the United States, in the UK and our other states which are also on the same side of this argument against terror?

STEPHEN BLANKS: One thing about the Australian system that is unique and is not shared by the UK system or the US system is that there is no bill of rights in Australia. There is no law entrenching individual human rights.

And so when you look at what happens in other jurisdictions, although they are democratic jurisdictions, their laws are subject to fundamental human rights principles. And we just don't have that in Australia.

So what we'd be setting up in Australia would be a uniquely dangerous situation. I don't know whether the Attorney-General has made a decision about whether or not to give these additional powers. It's probably just on a list of things that he could do when he wants to tighten the screws and have a bit of a public splash against terrorism.

But in a fair society, in a free society, in a society where the Attorney-General actually wanted to uphold the rule of law: he would reject any request for powers of this kind.

PETER LLOYD: So the fact that the Monitor is held a hearing about it means that he has been instructed or he has been asked by the Government to test this proposition in a hearing. Is that right?

STEPHEN BLANKS: Well, look, the Monitor as I understand it has been reviewing the existing legislation and what has occurred during the monitor's hearings is that ASIO has come along with proposals for even wider powers than it already has. That's not really in the spirit of a review of the existing legislation, which is bad enough as it is.

It's curious that ASIO uses this opportunity to advance an argument for even wider powers, but that seems to be the situation we're in.

PETER LLOYD: So they sort of slipped this one in on the sidelines?

STEPHEN BLANKS: Look, one is always alert to the various ways in which ASIO tries to increase its powers. It's like any public service agency: there is an inherent interest in the agency expanding and extending its powers.

No federal agency ever seems to say, "Society would be better off if we had less powers and did less." But that would be the true position in relation to ASIO.

PETER LLOYD: That's Stephen Blanks, the president of the NSW Council for Civil Liberties.