Duncan Lewis breached Section 20 of the ASIO Act-Liberal MPs looking at the wrong section of the Act

by Ganesh Sahathevan

The Australian has reported this morning :

Liberal MPs have countered suggestions that Australia’s spy chief has breached the spirit of the law by phoning backbenchers over their comments about Islam, as a dispute rages over the way Malcolm Turnbull has handled dissent within the Coalition.

In a new controversy over the affair, former Liberal minister Neil Brown warned that the head of the Australian Security Intelligence Organisation had no power under the ASIO Act to deny “lawful advocacy” by MPs or others.

The MPs in question are concerned only with Section 17 A which states: 

“This Act shall not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security.”

However ,as demonstrated in the article below published  yesterday, Mr Lewis has probably breached Section 20(a) and (b) of the Act .Section 20,as explained, is concerned with perception of bias,and in that sense an offence is easier to prove,compared to Section 17A. 

In addition, Section 20 is concerned with conduct, intentional or otherwise.Put in another way, it does not matter if one intended to  fail in one's duties prescribed under the Act.

Coming back to Section 17A, while the MPs who are said to have come to Lewis's defence say they do not "feel" Lewis actions in any way interfered with their lawful advocacy, their feelings are clearly not terribly relevant, What is relevant for the purposes of the Act is whether there has been interference in lawful advocacy protest or dissent ,based on an objective assessment of the facts. In this case, quite apart from Lewis's interference with the work of MPs, there were his public statements in the Daily Telegraph that were addressed to the public at large.That was clearly an  interference in lawful advocacy protest or dissent. To paraphrase Neil Brown:

If members of the public  fall out of line with Malcolm Turnbull's call for a "change in language" when discussing Islam and jihadism, they can expect a call from ASIO and if they still refuse to get into line after that warning, the implied threat is that they will have been noticed by ASIO and may be noticed in the future.

It is about us,not Turnbull and his MPs.

END 

Duncan Lewis " I don’t buy that at all" comment on Islam,jihadism , may have breached ASIO Act 1979-Sacking is inevitable

by Ganesh Sahathevan

ASIO chief Duncan Lewis made these comments on his own volition,and did so despite evidence  to the contrary here and overseas that goes back at least 40 years:

“I don’t buy the notion that the issue of Islamic extremism is in some way fostered or sponsored or supported by the Muslim ­religion. I don’t buy that at all. I think it’s blasphemous to the extent that I can comment on someone else’s religion.’

By doing so Lewis appears to have breached Section 20 of the ASIO Act 1979 which prohibits the Director General (which Lewis remains) from saying or doing anything that might lead to a perception of bias:

20  Special responsibility of Director‑General in relation to functions of Organisation

                   The Director‑General shall take all reasonable steps to ensure that:

                     (a)  the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions; and

                     (b)  the Organisation is kept free from any influences or considerations not relevant to its functions and nothing is done that might lend colour to any suggestion that it is concerned to further or protect the interests of any particular section of the community, or with any matters other than the discharge of its functions.

It might well be that Lewis' intention was to keep us all safe,and not "further or protect" the interests of the Muslim community (whose demands are many, are public, and include complaints against our ally, the State of Israel). However, Section 20 is clearly concerned with perception, hence the words "any suggestion"  and Lewis has clearly failed  that test. That being the case, Malcolm Turnbull must now contemplate Section 13 of the ASIO Act.

13  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Director‑General by reason of physical or mental incapacity, misbehaviour or failure to comply with a provision of this Act.

         the Governor‑General shall terminate his or her appointment

https://www.comlaw.gov.au/Details/C2015C00535

There are many reasons why intelligence chiefs do not give interviews, eschew public comment  and a public profile, and otherwise stay very much in the background. Lewis was never a spy, and did not seem to understand this, despite the provisions of the ASIO Act that contain a clear warning of the consequences. For these and the reasons stated previously (see below) he needs to be sacked immediately. 

END