ASIO and the Rule of Law

The ‘khaki’ budget increased ASIO's budget from 65 million dollars to 82 million dollars: Attorney-General's Department, Portfolio Budget Articles (2002) 473, available at <http://www.ag.gov.au/publications/Budget2003/welcome.html> on 31 July 2002.

Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth). The government has proposed amendments to the original Bill which adopt various recommendations of the Joint Parliamentary Committee on ASIO, ASIS and DSD's report on the Bill (Parliamentary Joint Committee on ASIO, ASIS and DSD, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002)), see Williams Daryl Attorney-General, News Release: Labor Refuses to Engage on Community Safety, 19 September 2002.

The question whether a security service should exist at all is, of course, controversial. For arguments advocating the abolition of ASIO, see the articles contained in Flanagan Pat (ed.), Big Brother or Democracy? The Case for the Abolition of ASIO, 1980.

Commentators have identified the rule of law as a key political principle to govern ASIO's operations, see Hocking Jenny , Beyond Terrorism: The Development of the Australian Security State, 1993, p.196 and Lee H.P. Hanks P.J. and Morabito V. , In the Name of National Security: The Legal Dimensions, 1995, pp.16–7. The principle of legality was also identified by Justice Hope as one of three fundamental principles to be observed by ASIO: Royal Commission on Intelligence and Security, Fourth Report: Volume 1 1978, pp.70–3. On the importance of the rule of law in the ‘war on terrorism’, see Kirby Michael Justice, ‘Australian law — After 11 September 2001’ (2001) 21 Australian Bar Review 253, 264. See also McCulloch Jude , ‘War at Home: National Security Arrangements post 11 September 2001’ (2002) 27(2) Alternative Law Journal 87.

Shklar Judith , ‘Political Theory and The Rule of Law’, in Hutchinson Allan and Monahan Patrick (eds), The Rule of Law: Ideal or Ideology, Carswell, 1987, p.1.

See, for example, the collection of essays in Hutchinson and Monahan , above.

Royal Commission on Intelligence and Security, above, ref 4, pp. 82–6, 92–3.

Royal Commission on Intelligence and Security, above, ref 4, p.79.

Raz Joseph , ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, at 195–6.

Raz Joseph , above, ref 9, p.196.

Thompson E.P. , Whigs and Hunters: The Origin of the Black Act, Allen Lane, 1977 edition, p.263. For a recent left-wing endorsement of Thompson's argument, see Sypnowich Christine , The Concept of Socialist Law, Oxford University Press, 1990, pp.69–70 and Sypnowich , ‘Christine, Utopia and the Rule of Law’ in Dyzenhaus David (ed.), Recrafting the Rule of Law: The Limits of Legal Order, 1999, pp.178, 184.

The most famous proponent of this line of reasoning is, of course, Friedrich Hayek. See Hayek Friedrich , The Constitution of Liberty, University of Chicago Press, 1960. The qualified tone of my argument clearly indicates that I do not subscribe to Hayek's exaggerated belief in the importance and value of the rule of law. In this, the freedom that the rule of law promotes is limited in two important respects. It is confined to governmental action and does not extend to exercises of power by private bodies like corporations. Further, it is an instance of negative freedom and does not ensure that individuals will have the positive freedom to plan their lives.

For a discussion, see Craig Paul , ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, (1997) Public Law 467–87. For an attempt to transcend the distinction between formal and substantive conceptions of the rule of law, see Dyzenhaus David , ‘Recrafting the Rule of Law’, above, ref 11, pp.5–10.

Gleeson Murray Chief Justice, Courts and the Rule of Law, speech given as part of the University of Melbourne Rule of Law Series, 7 November 2001, p.5 (copy on file with author). In Dicey's formulation of the rule of law, the ‘ordinary courts’ had a monopoly over the enforcement of the law, see Dicey A.V. , Introduction to the Study of the Law of the Constitution, 1959 edn, p.202. That the rule of law should be so rigidly confined should be doubted, see Gleeson , above, pp.15–6.

Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act), s.18.

ASIO Act, s.92.

Freedom of Information Act 1982 (Cth), s.7(1), and Part 1 of Schedule 2.

Australian Security Intelligence Organization Amendment 1986 (Cth).

These offences are primarily found in the Security Legislation Amendment (Terrorism) Act 2002 (Cth). This Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 seeks to expand ASIO's mandate by extending the definition of ‘politically motivated violence’ to include the so-called terrorism offences, see clause 4.

Royal Commission on Intelligence and Security, above, ref 4, p.14.

For a similar argument, see McKnight David , Australia's Spies and their Secrets, Allen & Unwin, 1994, p.297.

The concept of ‘national security’ has been criticised for ‘its intrinsic tendency to be productive of, or to serve as a justification for inanities’: Editors, ‘Scope and content of concept of national security’, (1984) 58 Australian Law Journal 67, at 68. See generally Lee and others, above, ref 4, Chapter 2. For ASIO's mandate or functions as the Act terms it, see s.17 of the ASIO Act.

These are termed special powers by the Act: Division 2, Part III.

Apart from being loosely confined by the statutory functions of ASIO, the collection of intelligence through such methods is only regulated by guidelines issued by the Attorney-General: Attorney-General's Guidelines in relation to the performance by the Australian Security Intelligence Organisation (ASIO) of its function of obtaining intelligence relevant to security (Security Guidelines), available at <http://www.asio.gov.au/About/Content/attorney.html> on 3 January 2002.

Hayek Friedrich The Road to Serfdom, Dymock's Book Arcade, 1945, p.72.

Hayek Friedrich , above, ref 25, p.213.

Davis Kenneth , Discretionary Justice: A Preliminary Inquiry, 1969, p.30.

Davis Kenneth , above, ref 28, pp.36–42.

The line of inquiry identified by Davis has been further pursued by Galligan D.J. , Discretionary Powers: A Legal Study of Official Discretion, 1990.

Davis , above, ref 27, p.51 (emphasis original).

Davis , above, ref 27, p.55.

Davis , above, ref 27, p.97.

Davis , above, ref 27, p.142.

ASIO Act, ss.17(1)(a)-(ca).

ASIO Act, s.4.

There are two sets of guidelines which have been issued, namely, the Security Guidelines, above, ref 24 and Attorney-General's Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions relating to politically motivated violence (Politically Motivated Violence Guidelines), available at <http://www.asio.gov.au/About/Content/attorney.html> on 3 January 2002.

ASIO Act, s.17A.

Politically Motivated Guidelines, above, ref 36.

Politically Motivated Guidelines, cl 3.2, 3.6, 3.9; and Attorney-General's Guidelines in relation to the performance by the Australian Security Intelligence Organisation (ASIO) of its function of obtaining intelligence relevant to security cl 2.12–2.13.

Bailey Peter , Human Rights: Australia in an International Context, Butterworths, 1990, pp.296–7.

Royal Commission on Intelligence and Security, above, ref 4, p.130.

Australian Security Intelligence Organisation, Report to Parliament: 2000–2001, 2001, p.17.

ASIO Act, s.8A.

Inspector-General of Intelligence and Security Act 1986 (Cth), s.8(a)(iv).