This post is a criminal act.
It happened when I was coming back from the bank in Mosman, that a black Jeep pulled up out the front of a coffee shop, two chaps in black suits who were armed got out, announced to a man sitting at a table on the sidewalk that they were from ASIO, and then took him away.
I have no idea who this man was, nor why ASIO wanted him but under the provisions of the ASIO Act, the fact that I have just published this, is a criminal offense and potentially could land me in prison for up to ten years depending on the circumstances.
At first I thought that this was really creepy and that it is scary that we live in that kind of a police state. As I am curious though, I was keen to know what kind of powers ASIO had and what had become criminal offences as a result of legislation.
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/asioa1979472/s35p.html
Disclosures by entrusted persons
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a special intelligence operation.
- Section 35P, ASIO Act 1979
The whole ASIO Act is an object lesson in cloak and dagger. The powers conferred on officers of ASIO require zero judicial oversight for the most part and zero accountability for the exercise of those powers.
The ultimate power of who can declare that there is an ASIO operation rests with the Attorney General. Furthermore, I can't find anything to suggest that an operation has to be declared ahead of time; which says to me that they can declare it retrospectively if they want to. When you couple that with the power to detain someone without warrant for up to 90 days, the potential to abuse this power silently is immense.
The ultimate power of who can declare who is an entrusted person, also rests with the Attorney General. Again, there isn't anything to suggest that that declaration can not be made retrospectively; which says that if the Attorney General wanted to really nail someone, then they could very easily do so.
The series of offences under the ASIO Act, mean that anyone who discloses any information whatsoever about an ASIO operation (which I have just done by reporting this incident), can be imprisoned for up to five years and if
anyone's safety is either endangered or you happen to have an opinion about the ASIO officer's conduct, that penalty blows out to ten years.
The standard of proof to say that there was an offence is so simple as to be laughable, except that this is no joke. To have committed an offence under the act, you only need to have told someone about an ASIO operation. Actual knowledge about the particulars of the operation isn't even required; there only needs to be the disclosure that there was an operation.
The provisions of the ASIO Act mean that there could be a very real and serious censure motion placed upon someone. Admittedly, as a blogger who very much flies under the radar I am not likely to be prosecuted but for anyone who makes a living, this is potentially financially ruinous.
What I find really chilling about this is that it is similar powers to these which saw the offices of both a News Corp journalist and the offices of the ABC raided by ASIO. It means that technically, if the Attorney General wanted to, they could infer entrusted person status onto someone that they were raiding (without warrant) and then charge them with an offence, simply for having the audacity to report what had happened.
This goes far beyond any freedom of the press issues, this strikes right at the heart of the rule of law. ASIO now have full and unrestricted ability to enact and enforce the arbitrary exercise of power and worse, arbitrary exercise of prosecution. Moreover, they are backed by the weight of legislation. I have broken the law in posting this.
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