Assessing Damage, Urging Action leading lawyers, civil society representatives, and even former intelligence officials, argued that this development amounted to a significant and worrying intrusion into law enforcement functions. ASIO questioning and detention powers contain an obligation on the individual concerned to answer all questions truthfully, and a failure to provide accurate information is a criminal offence punishable by up to five years imprisonment (with the evidentiary burden of proof lying on the person subject to the warrant).171 Participants at the Australia Hearing recognised that there are some important internal oversight mechanisms, such as oversight by the Inspector-General of the Intelligence and Security Services and the Ombudsman’s Office. However, while these powers carry important implications for the individual concerned, there is no protection equivalent to that required in ordinary interrogations. For example, the law provides for: (a) the possibility of beginning to question a person in the absence of a lawyer; (b) the lawyer’s right to intervene is restricted to seeking clarification on ambiguous or unclear questions; (c) the right of the individual concerned to a lawyer of his or her own choice can be limited;172 (d) restricted rights to communicate in confidence with counsel; and (e) ambiguity as to whether those subject to “detention warrants” (which can apply for up to 7 days) remain entitled to the right of habeas corpus before the ordinary courts.173 A similar extension to the powers of the intelligence services in Indonesia was under consideration at the time of the South East Asia Hearing. These proposals were met with great anxiety since they raised the spectre of the past: under Suharto, the intelligence agencies had powers of arrest and detention and engaged in serious human rights violations.174 Witnesses reported on a draft intelligence bill that would provide for the arrest and detention for 30 days of a person “strongly suspected to carry out activities that are directed towards becoming threats to the nation”.175 It was apparently envisaged that the person concerned would neither have the right to remain silent, nor the right to a lawyer during interrogation by the Indonesian State Intelligence Agency (BIN).176 171 Section 34F(5) of the ASIO Act. 172 Section 34 ZP (1) of the ASIO Act, Section 34 (ZQ (6) of the ASIO Act. 173 See also UN Committee against Torture, Concluding observations and recommendations on Australia, UN Doc. CAT/C/AUS/CO/1, 15 May 2008, para. 10; and Special Rapporteur on Human Rights and Terrorism, Australia, Study on Human Rights Compliance While Countering Terrorism, UN Doc. A/HRC/4/26/Add.3, 14 December 2006, para. 42. 174 See summary of the EJP South East Asia Hearing. Written and oral submissions by Imparsial; written submission by Sidney Jones, Southeast Asia Project Director, International Crisis Group. Participants at the Hearing raised concerns about the dilution of law enforcement and intelligence functions, in particular the use of intelligence reports under the anti-terrorism law during pre-trial detention, the investigation and trial of terror suspects. Serious concerns were also raised about the lack of accountability over the intelligence services BIN and the Military Intelligence Agency. 175 Ibid., based on translations contained in Human Rights Watch, “Indonesia’s Draft Law on Intelligence: a Threat to the Life of the Nation, A Human Rights Watch Briefing Paper”, July 2005. 176 At the time of writing discussions about new intelligence and state secrecy laws continued. 75