The Claim
“Legislated to permit ASIO operatives and associates to commit torture, and any other crime aside from murder, serious injury infliction, sexual assault and property damage.”
Original Sources Provided
✅ FACTUAL VERIFICATION
The claim refers to the National Security Legislation Amendment Bill (No. 1) 2014, specifically Section 35K which provided immunity from civil and criminal liability for ASIO operatives conducting "special intelligence operations."
Original draft provisions (July 2014):
Section 35K stated that ASIO participants would have immunity from liability for conduct that did NOT involve:
- (i) causing death of, or serious injury to, any person
- (ii) commission of a sexual offence against any person
- (iii) causing significant loss of, or serious damage to, property [1][2]
Critical omission in original draft:
Torture was not explicitly excluded from the immunity provisions in the original bill tabled in July 2014 [2][3]. Legal experts and crossbench senators raised concerns that the drafting created a potential loophole where torture could fall within the scope of permitted conduct [2].
Government response:
Following criticism from crossbench Senator David Leyonhjelm and media scrutiny, Attorney-General George Brandis announced on September 22, 2014 that the government would amend the legislation to "add an explicit prohibition in relation to torture" [1][3]. Brandis stated this change was made to "avoid the debate being diverted" and called the torture concern "effectively a red herring" [1].
Final legislation:
The bill was subsequently amended to explicitly prohibit torture before passing into law [3][4].
Missing Context
The claim omits several crucial facts:
The legislation was amended before passing to explicitly prohibit torture after concerns were raised [1][3]. The final law did not permit torture.
The immunity was not unlimited carte blanche - it applied only to "special intelligence operations" that were specifically authorized, and excluded death, serious injury, sexual offences, and significant property damage [2].
The policy rationale: The immunity provision was designed to address situations where covert intelligence operations might expose personnel to legal liability for minor offences committed in the course of authorized operations - not to enable torture [2]. Brandis explained: "Covert operations may expose intelligence personnel or sources to legal liability in the course of their work. For this reason, some significant covert operations do not commence or are ceased" [2].
ASIO's public position: New ASIO Director-General Duncan Lewis stated publicly: "The Australian Security Intelligence Organisation has never practised torture, it does not practise torture and it never will" [1].
The claim uses present tense ("legislated to permit") implying this is current law, when in fact the final legislation explicitly banned torture.
Source Credibility Assessment
The original sources provided with this claim are primarily opinion/commentary pieces, not factual news reporting:
Vice Media - The Vice article is from Vice's commentary/opinion section. Vice has faced criticism for sensationalist journalism and has a stated editorial position that is often critical of government security policies [5].
Sydney Morning Herald (Paul Sheehan) - This is an opinion piece by a columnist, not straight news reporting. Sheehan has a history of controversial opinion pieces [2].
The Guardian (Comment is Free) - This is explicitly a commentary/opinion section, not news reporting [5].
SMH (second piece) - Also appears to be commentary [5].
Assessment: The sources are opinion pieces from commentators with known skepticism toward security legislation. They represent legitimate concerns raised during the debate but frame them as definitive fact rather than one perspective in a policy debate. The sources do not acknowledge that the government amended the legislation in response to these concerns.
Labor Comparison
Did Labor expand ASIO powers similarly?
Yes - Labor significantly expanded ASIO powers:
2011 Labor expansion: The Rudd/Gillard Labor government moved to "significantly expand the surveillance powers of ASIO" including enhanced monitoring capabilities [6].
2024 Labor legislation: The Albanese Labor government (2022-present) has made ASIO's compulsory questioning powers permanent and sought to expand the offences covered by these rules [7].
ASIO questioning powers: Labor has consistently supported and expanded ASIO's extraordinary questioning and detention powers. The 2020 amendments (passed with Labor support) extended these powers and expanded their scope [8].
2025 expansion proposals: ASIO is currently seeking to expand questioning warrants to cover broader "security" definitions under the Labor government [7].
Conclusion: Both major parties have consistently expanded ASIO powers when in government. The Coalition's 2014 legislation followed this pattern. While the initial drafting created legitimate concerns about torture, the Labor party itself has supported and expanded similar national security frameworks.
Balanced Perspective
What the claim gets right:
- The original draft of the National Security Legislation Amendment Bill (No. 1) 2014 did not explicitly exclude torture from the immunity provisions [2]
- Legal experts and crossbench senators raised legitimate concerns about this drafting oversight [1][2]
- The immunity did exclude murder, serious injury, sexual assault, and property damage [2]
What the claim gets wrong or omits:
- The claim implies torture was intentionally permitted - there's no evidence this was the government's intent; it appears to have been a drafting oversight
- The government amended the bill to explicitly prohibit torture before it became law [1][3]
- The final legislation did not permit torture
- The immunity only applied to authorized "special intelligence operations," not unlimited conduct
- Both Labor and Coalition governments have expanded ASIO powers, making this a bipartisan pattern rather than a unique Coalition overreach
Key context:
The drafting of Section 35K created a legitimate concern that legal experts identified - the exclusion of torture should have been explicit from the outset. However, the claim's framing as "legislated to permit torture" implies intentional authorization rather than a drafting oversight that was subsequently corrected. The government responded to criticism by amending the legislation, which is how the parliamentary process is supposed to work.
This is not unique to the Coalition - Labor has consistently supported and expanded ASIO powers when in government, including making compulsory questioning powers permanent and seeking to expand their scope [7].
PARTIALLY TRUE
5.0
out of 10
The claim is factually accurate in that the original draft legislation did not explicitly exclude torture from the immunity provisions - creating a potential loophole that legal experts identified. This was a legitimate criticism raised during the parliamentary debate.
However, the claim is misleading because:
- It implies the government intended to legalize torture, when evidence suggests it was a drafting oversight
- It fails to mention the government amended the bill to explicitly prohibit torture before passage
- It uses present tense implying this is current law, when the final legislation banned torture
- It ignores that Labor governments have similarly expanded ASIO powers
The original sources are opinion pieces that present one side of the debate without acknowledging the subsequent amendments or the broader bipartisan context of national security expansions.
Final Score
5.0
OUT OF 10
PARTIALLY TRUE
The claim is factually accurate in that the original draft legislation did not explicitly exclude torture from the immunity provisions - creating a potential loophole that legal experts identified. This was a legitimate criticism raised during the parliamentary debate.
However, the claim is misleading because:
- It implies the government intended to legalize torture, when evidence suggests it was a drafting oversight
- It fails to mention the government amended the bill to explicitly prohibit torture before passage
- It uses present tense implying this is current law, when the final legislation banned torture
- It ignores that Labor governments have similarly expanded ASIO powers
The original sources are opinion pieces that present one side of the debate without acknowledging the subsequent amendments or the broader bipartisan context of national security expansions.
📚 SOURCES & CITATIONS (8)
-
1
abc.net.au
New counter-terrorism laws to bolster the powers of security agencies will be changed to allay crossbench fears the original legislation would have allowed suspects to be tortured. MPs have returned to Canberra after a two-week break to find tighter security measures at Parliament House amid increased concerns about potential threats to the building. Key Senate crossbencher David Leyonhjelm has raised concerns the provision could allow Australian Security Intelligence Organisation agents to torture suspects. Prime Minister Tony Abbott is set to make a statement to Parliament later today about national security.
Abc Net -
2
smh.com.au
The proposed national security law is filled with 150 shades of grey, including immunity for the use of torture .
The Sydney Morning Herald -
3
afr.com
Afr
-
4
smh.com.au
New laws set to be passed by Canberra this week will make it a crime for the media or anyone else to disclose the death of an innocent bystander caught up in a bungled covert spy agency operation, the government’s dumped Independent National Security Legislation Monitor has warned.
The Sydney Morning Herald -
5
vice.com
Vice
Original link unavailable — view archived version -
6
wsws.org
ASIO will have the power to monitor anyone overseas, who is considered a threat to “national economic well-being,” “security” or “foreign relations.”
World Socialist Web Site -
7
theguardian.com
Exclusive: Tony Burke also introduced legislation to add sabotage, promotion of communal violence and serious threats to Australia’s border security to the rules
the Guardian -
8PDF
3332 ASIO's Questioning and detention powers
Lawcouncil • PDF Document
Rating Scale Methodology
1-3: FALSE
Factually incorrect or malicious fabrication.
4-6: PARTIAL
Some truth but context is missing or skewed.
7-9: MOSTLY TRUE
Minor technicalities or phrasing issues.
10: ACCURATE
Perfectly verified and contextually fair.
Methodology: Ratings are determined through cross-referencing official government records, independent fact-checking organizations, and primary source documents.