The Attorney-General's office also pointed out that the laws would compel all operations to be pre-approved by the Director-General of ASIO or a deputy director-general in the ASIO chief's absence. "These provisions are shameful": Senator David Leyonhjelm. Credit:James Alcock The bipartisan committee did not take issue with the scope of immunity from prosecution for spy agents included in the bill. His National Security Legislation Amendment Bill, which could be voted on as early as Monday, provides extra latitude for the Australian Security and Intelligence Organisation to detain and interrogate persons of interest who are suspected of having knowledge of terrorist activity. Senator Leyonhjelm is concerned by Section 35K of the Bill. Under the heading, "Immunity from liability", its states: "A participant in a special intelligence operation is not subject to any civil or criminal liability for or in relation to conduct if … the conduct does not involve the participant engaging in any conduct that: (i) causes the death of, or serious injury to, any person; or (ii) involves the commission of a sexual offence against any person; or (iii) causes significant loss of, or serious damage to, property."

"If the bill passes, ASIO will have the power to authorise its agents to torture people as long as the torture does not involve murder, serious injury or the commission of a sexual offence against the person," Senator Leyonhjelm, of the Liberal Democratic Party, told Fairfax Media. "These provisions are shameful. As a nation we should be better than this. Australia is engaged in a fight against barbarism, but that does not justify becoming barbarians ourselves." "Temperature extremes, sensory bombardment, sensory deprivation, sleep deprivation, drugging and other psychological and physical torture techniques that fall short of causing death or serious injury will be allowed under this bill," Senator Leyonhjelm said. "Even electrical shocks may be permitted." The two senior legal experts who advised the Liberal Democratic Party on the legislation have spoken to Fairfax Media, and asked not to be named, but confirmed that the immunity provisions open a wide legal grey area and are broader than any such state power in the United Kingdom, Canada or New Zealand. Labor has a number of members on the Parliamentary Joint Committee on Intelligence and Security that scrutinised the legislation, including its deputy chair Anthony Byrne, Tanya Plibersek, Penny Wong, John Faulkner and Stephen Conroy but shadow attorney-general Mark Dreyfus said the opposition was "seeking clarification from the government" on the extent of the powers.

"While I am confident of the professionalism and integrity of our security agencies, if acts of torture might be permitted under these laws, then that's entirely unacceptable," he said. "If there's ambiguity here, we will seek an amendment to the bill to make clear that nothing in the act allows torture in any form. "The bill should not overrule Australia's obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, or Australia's implementing legislation under the Commonwealth Criminal Code." Senator Leyonhjelm, one of the minor party senators who hold the balance of power in the Senate, said the legal advice he had received confirmed that the bill would empower ASIO to kidnap and hold suspects in solitary confinement, and placed under physical and mental duress, without a requirement that they be a suspected of a crime. "Any torture would not be limited to a terrorist suspect but could extend to anyone associated with a suspect, including family members," he said. "Victims of torture, their families, and journalists face 10 years imprisonment if they don't keep the torture secret."

The bill provides ample protection for the Attorney-General, who need only be advised of a "special intelligence operation" after six-months, or at the end of the operation. No ministerial or judicial approval is required. That decision is made by the director-general of ASIO or his deputy. The immunity granted in the draft bill is much wider than that given the Australian Federal Police. It lowers the requirements for external authorisation and oversight, and public scrutiny. It also lowers the requirement for compensation to victims. The immunity provisions can be extended not just to ASIO agents but can be extended to any person delegated by ASIO to take part in an intelligence operation. Loading "This is not some fringe concern of bleeding hearts or being soft on terrorism," Senator Leyonhjelm said. "This is about officers of the state being authorised to engage in something that most Australians would find abhorrent. The Liberal and Labor sides of politics are each trying to prove that they are tough on terrorism, but ASIO already has plenty of power to do its job without trampling on our basic rights."