The government has been urged to drop legislation that would give greater anti-terrorism powers to Asio, with an independent senator and lawyers warning that it would allow suspects to be tortured with impunity.



A NSW senator, David Leyonhjelm, said he had received legal advice that the national security legislation amendment bill would allow intelligence officials to inflict physical and psychological harm on terrorism suspects.

Section 35K of the bill, entitled “Immunity from liability for special intelligence conduct during special intelligence operations”, exempts operatives from civil or criminal prosecution in the course of their work.

This exemption from the law would only apply, the bill states, if “the conduct does not involve the participant engaging in any conduct that causes the death of, or serious injury to, any person; or involves the commission of a sexual offence against any person; or causes significant loss of, or serious damage to, property”.

Leyonhjelm said this left open a “huge range” of things that Asio operatives could do to suspects.

“That includes sensory deprivation, noise, physical abuse not causing serious injury, waterboarding, electrical shocks, this sort of stuff,” he told the ABC.

“We were gobsmacked that this could be coming up for an Australian parliament to be voted on. We just didn’t think it would be possible.”

The legislation, which the Senate is due to vote on on Monday, comes in the wake of raids on houses and vehicles in Sydney and Brisbane, involving more than 800 police officers.

Two men have been charged with offences following the raids. It has been alleged there were plans to carry out a public beheading of a randomly chosen member of the public.

Security has been noticeably stepped up at Parliament House in Canberra, after the prime minister said there had been “chatter” among extremists that suggested an attack might be launched on the building.

Leyonhjelm said: “No one is saying these barbarians shouldn’t be controlled, but we don’t need to engage in barbarity ourselves in order to do that.

“The attorney general has good intentions, he’s a nice guy, but he’s not looking at this from the perspective that this is Australia, we are not a barbaric country.”

There are also fears about the legislation’s implications for the freedom of the press to report anti-terrorism activities. The bill stipulates a prison term of 10 years where “disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation”.

Greg Barns, a barrister and spokesman for the Australian Lawyers Alliance, told Guardian Australia the legislation was unnecessary.

“It effectively means the executive sanctions violence,” he said. “Torture is more than twisting arms and dunking heads in water, it’s about psychological torture and this bill allows Asio officers to behave in this way.

“To have Asio or the minister sign off on this isn’t independent oversight. It will mean people are subjected to appalling violence.

“This will mean that Asio can take someone to a remote location for five days with no communication with the outside world, which is a form of violence, and if the Guardian or anyone else reports on it, you’d go to jail.

“This wouldn’t pass muster in the US and Canada, which protect freedom of speech. This bill will only pass because there are grossly inadequate human rights protections in Australia.”

On Friday, Tony Abbott said it would only take a “determined individual, a knife, an iPhone and a victim” for Islamic State to commit a terrorist attack. He said his advice from police and security agencies was that an attack such as a public beheading could have happened “within days” if the raids had not happened.

The prime minister did, however, stress that Australia remained opposed to torture.

“Well look, the last thing anyone wants to see is Australians lose their freedom in the fight to preserve freedom and I’m confident that we can manage these things,” he told the ABC.

“I am very confident that we can manage these things. And just at the moment I am determined to err on the side of keeping our community safe.”

The attorney general, George Brandis, denied that the legislation would permit torture, but added: “When agents go undercover to penetrate networks sometimes they have to engage in activities which would seem to be unlawful activities.”

Mark Dreyfus, the shadow attorney general, told Guardian Australia that Labor would “seek clarification” from the government on the provisions in the bill.

“Australia has international obligations around the prevention of torture and it’s up to the government to make clear that it won’t allow torture in any form,” he said. “If the government is unable to do that, there should be appropriate amendments.”