October 4, 2005
On
September 27, 2005, Australian democracy surrendered to terrorism. On
that day, a coalition of willing federal and state leaders agreed to
anti-terrorism legislation that will enable police persecution of the
Muslim community and threaten dissidents with imprisonment. In a
country without a Bill of Rights, the prospect of more draconian Terror
Laws delivers ultimate control through fear. Australia, with its
history of penal colonies, racism and detention centers, is now set to
become a police state.
When Prime Minister Howard
announced that he would meet with the State premiers about the need for
harsher counter-terrorism measures, Labor state leaders were critical
of the proposal and called the proposed laws 'totalitarian’. The secret
briefing, given by ASIO, the Australian Security and Intelligence
Organisation, had the desired impact. Within two hours, the Premiers
had agreed to surrender our democratic rights to fight a subjective
noun, terrorism. Assuming the state leaders were bribed with the
promise of increased funding for their police forces, all Premiers
agreed enthusiastically to use their own police to search, control, and
detain 'terror suspects’. The agreement gave John Howard the ability to
circumvent the Australian constitution and enable detention of citizens
for up two weeks without charge. ASIO’s reach into the community
multiplies by 30 when state police began to operate as secret police.
Australians, who have lost basic rights in the closed-door meeting, are
expected to 'trust’ that the Howard Government is protecting them from
an invisible enemy in the American war on terror. The one concession
gained by state leaders was a ten-year sunset clause on the new Terror
Laws. This means citizens will only have a decade of surveillance,
control orders, preventative detention, and thought police.
The new 'regime’ of tougher laws that John Howard presented[i]
has alarmed Australian Muslims, journalists, peace activists, and
dissidents who fear they will be victimized by ASIO raids and 'fishing
expeditions’. Protestors may be subjected to more police harassment,
surveillance, and detention without charge. It will become a crime to
'incite’ violence against the community, or against Australia’s forces
overseas who fight in an unpopular war. It will also be a crime to
communicate messages that 'support’ Australia’s enemies’. The new
crimes carry seven-year prison terms. Moreover the laws shift from a
presumption of innocence to presumption of guilt. Writers and activists
will have to prove that their articles or speeches did not 'incite
violence. Understandably, civil libertarians, constitutional lawyers,
Muslims, journalists, and anti-war campaigners are worried.
With the devil in the detail, it is important to be both alert and alarmed[ii] about John Howard’s and the State Premiers’ twelve-step plan to totalitarianism:
1. Control orders:
'People who pose a terrorist risk’ will have year-long control orders
placed on them. Tracking devices, travel restrictions, and 'association
restrictions’ are included. While the Government has argued that
similar control orders already exist with Apprehended Violence Orders
(AVO), legal critics have pointed out that the new terror control
orders are significantly more restrictive and can be imposed with no
public accountability because of secrecy restrictions that hide ASIO’s
activities from public scrutiny.
2. Preventative detention:
'suspects’ can be detained for up to two weeks without charge. This
step by-passes the judicial system and would have been unconstitutional
if enforced by the Australian Federal Police. State police will be able
to detain 'suspects’ who might have information or might be intending
to commit a terrorist act. Less than 2,000 Federal Police will no
longer limit ASIO’s invasiveness. The intelligence organisation will be
able to use 45,000 police from the states and territories to detain
suspects for up to two weeks without charge. This extraordinary
power runs the risk of being used in criminal cases and the harassment
of activists and protest leaders.
3. Notice to produce: The AFP may request and obtain virtually any information on any citizen under the banner of 'national security’.
4. Access to passenger information:
Provide access to airline passenger information for ASIO and the AFP.
If John Howard follows the American example, Australians can expect
'no-fly’ lists that will be used to disrupt the activities and restrict
travel options for known activists and dissidents.
5. Extensive stop, search and question powers:
Federal police will have the power to stop, search and question any
citizen whom they believe 'might have just committed, might be
committing, or might be about to commit a terrorism offense’. The subjective judgment of police will determine what someone might be thinking of doing. The loose definition of terrorism makes this particular power easy to abuse.
6. Extending search and interrogation powers to state police at transport hubs:
People at bus stops, taxi ranks, railway stations, and airports can and
will be subjected to random searches and the subjective judgment of
police.
7. ASIO warrants regime:
ASIO search warrants will be extended from 28 days to three months,
while mail and delivery service warrants extend from 90 days to six
months. Moreover, ASIO will be able to remove and keep anything they
take from premises that have been searched ' for as long as needed’ for
purposes of security. Organisations opposing the Government on issues
such as industrial relations or student rights are aware of the
potential for this power to be used to spy on them, disrupt activity
and remove records. Lawyers have argued that the extended warrants
enable ASIO to go on 'fishing expeditions’ that will see innocent
Australians being watched.
8. Create new offences:
The existing sedition offence will be scrapped, and replaced with the
broader, new crime of 'inciting violence against the community’.
Journalists and internet writers who 'communicate inciting messages
directed against Australia’s forces overseas and groups who 'support
Australia’s enemies’ could face up to seven years in prison. The new
warrants regime combined with ASIO’s unfettered access to private
emails, computer searches, on-line forums, may impact on
cyber-journalism’s resolve to report the truth.
9. Strengthen offences for financing terrorism or providing false or misleading information under an ASIO questioning warrant.
The right to remain silent is removed, and anyone refusing to answer
questions can be imprisoned. Former Liberal Prime Minister, Malcolm
Fraser, publicly opposed this regime when he spoke at a symposium
addressing global leaderships and ethics, 'The legislation is
contrary to the Rule of Law. It is contrary to Due Process, to Habeas
Corpus, to the basic rights which we have come to understand are
central to a free and open society.’[iii]
Lawyers have also asked what 'strengthens’ means in relation to
financing terrorism, given that under the Criminal Code this offense
already incurs life imprisonment.
10. Criteria for listing terrorist organizations will be extended. Organisations that 'advocate terrorism’ can be banned.
Community lawyers, policy workers, advocates and legal academics have argued[iv]
that 'the extension of the unprecedented powers to ban terrorist
organisations …poses the danger that many organisations that publicly
support independence movements like Fretilin and the ANC will be
vulnerable to proscription.’ The potential for this list to grow to
include organizations that oppose the Government is self-evident.
11. Citizenship:
The Government will extend the waiting period for citizenship from two
to three years and will refuse citizenship on 'security grounds’. As a
critical electorate and organizations such as Amnesty International
draw unwanted attention to the Government’s inhumane treatment of
refugees, the Immigration Department will be able to make secret
decisions based on 'national security’. The recent case of Scott Parkin
demonstrated how joint exercises between ASIO and the Department of
Immigration can quickly and legally expel dissidents or unwanted
refugees. The only explanation that needs to be given is 'for reasons
of national security’.
12. Terrorist financing:
More invasive processes to ensure that charities are not used to fund
'terrorist organisations’ will be extended to institutions and couriers
involved in the process. What ASIO will deem to be a terrorist
organisation is as open-ended as the definition of terrorism itself.
Similar legislation in the UK has already resulted in legitimate Iraqi
orphanage charities being banned and having their funds seized.
Civil libertarians have argued
in numerous media debates and talkback radio shows that Adolph Hitler
introduced similar legislation for Gestapo police to detain,
interrogate, monitor and imprison Jews who were considered 'potential
enemies of the German people’. Counter-terrorism measures adopted by
the United States, Britain and Australia have unfairly persecuted
innocent Muslims with home raids, interrogation, and prolonged
detention. In response, some Australian lawyers established a website [v]offering
free advice to the Muslim community, who have been profiled as a
consequence of the war on terror. Bypassing anti-discrimination laws,
senior government officials have made public statements like 'not all Muslims are terrorists, but all terrorists are Muslims’.
Despite the clear danger of this generalization, the NSW Police
Commissioner has gone on public record requesting indemnity for his
police officers: 'The reality is that we will stop and search people of
middle eastern appearance, not 65 year old Caucasian women.’ he said in
several media interviews after the Terror Summit.
Lawyers fear that the terror
laws will also target high-profile dissidents, peace activists, trade
unionists, student leaders, and protestors…virtually anyone who loudly
and effectively opposes the Government. Howard’s intention to use these
powers to silence protest is clear, as he has consistently followed
both Tony Blair and George Bush as role models. Journalists have
suggested that London’s public disgrace of seeing an 82 year-old
pensioner manhandled and interrogated under the British Terror Laws is
likely to be repeated in Australia. The pensioner’s 'crime’ was that he
shouted 'not true’ as Jack Straw was defending Britain’s
involvement in Iraq. Even conservative media say that the new Terror
Laws go too far with the sacrifice of basic democratic rights. The
Sydney Morning Herald, traditionally an establishment newspaper, warned,
'The war on terrorism has
gone a step too far. The offence of supporting terrorism raises very
serious problems. Many political dissenters could fall within the
operation of such a law. Just what will be considered support for
violence will be a most difficult question. In 2003, 500,000 people
marched in Sydney to oppose Australia's pending invasion of Iraq. Were
they supporting an enemy?’[vi]
The brutal police killing of an
innocent Brazilian on his way to work in London was a dramatic reminder
to Australians of the ultimate consequence of fighting terrorism with
terror powers. These powers have compelled lawyers like Professor
George Williams, a law lecturer at the University of New South Wales,
to speak out. In his March 2005 submission[vii] to Government, Professor Williams expressed concerns
'about both the need for
these special powers and the nature of the powers themselves. Three
years after their adoption, there is a danger that these exceptional,
emergency powers, adopted in response to a specific threat, may become
regularised or normalised as a permanent feature of Australia’s legal
landscape. It is vital to view these powers as temporary, exceptional
measures so that they do not serve as a precedent for the adoption of
more invasive powers in the future, or make it easier to justify other
exceptional powers in less exceptional circumstances.’
When the first round of Terror Laws
were hurriedly introduced in 2002, John Howard did not control the
Senate which was able to 'tone down’ the laws to exclude children and
shorten detention times. The laws were heatedly debated in the public
arena with public protests making it clear that Australians condemned
the laws as an over-reaction to unknown terrorist threats. In his
Foreword to Jenny Hocking’s book 'Terror Laws’[viii] , Professor Williams warned, 'Terrorism
was part of Australian life before September 11, and will continue to
be so even after the current 'war against terrorism’ has been waged.
Today, however, we can only hope that our new terror laws do not do
more damage to our democratic rights than the threat of terrorism
itself’.
A basic flaw with both the 2002
legislation and the proposed 'greater’ powers lies with the difficulty
of defining terrorism, and therefore a terrorist act. Last month, the
United Nations was unable to agree on an acceptable definition of
terrorism. The ASIO Anti-Terrorism Act actually defines 'terrorism’ by
specifying what is not classified as 'terrorist acts’. The exception of
'legal and non-violent protest’ within the Act gives little comfort to
protest groups who have been involved in peaceful protests that have
become violent following police intervention or harassment as happened
with recent student protests in Sydney and Melbourne. While the public
debate heats up about the potential and real impact of ASIO terror
laws, the focus of terrorism has shifted from Muslim extremists, who
have yet to commit a terrorist act within Australia, to Government
extremists who have surrendered basic democratic rights in their war on
a subjective noun.
Attorney-General Philip Ruddock admitted [ix] that
in the past year ASIO made 44,000 assessments of 'persons who are
potential security risks’. ASIO’s well-documented history of keeping
files on peace activists, trade unionists, and Labor MPs suggests that
a few thousand assessments would include people who have expressed
strong views opposing the Howard Government’s policies. The numbers of
dissenters swell as the list of issues angering Australians grows: the
unpopular war on terror, the invasion and occupation of Iraq, the
mandatory detention of refugees seeking asylum, the new industrial
relations legislation that removes workers’ rights, and the
privatization of Telstra.
The burgeoning of dissent and
the move to give ASIO stronger powers has compelled the Victorian Law
Foundation and the Fitzroy Legal Service to establish the informative Activists Rights website [x]. This time the lawyers didn’t couch their warnings in careful legalese. 'Danger!
New laws criminalise protestors…The Australian Security Intelligence
Organisation (ASIO) now has unprecedented powers to compulsorily
question and detain persons suspected of having information related to
a 'terrorism' offence. Furthermore, the exercise of such powers by ASIO
is now virtually cloaked with secrecy, with the law now making it
illegal to disclose information relating to most of ASIO's activities.’
The site gives practical and detailed advice on what to do if ASIO comes calling.
The Howard Government has
continued to ignore the masses of Australians who have loudly protested
Australia’s involvement in the American 'war on terror’. Now John
Howard is ignoring public opposition to the Terror Laws, likely to be
passed by a Senate he controls. Angry Australians have flooded radio
talkback shows to the point where radio hosts have had to beg for calls
from supporters of the Terror Laws. The question asked by every caller
is why are we surrendering the same democratic freedoms that those who wage the war on terror claim to protect?
The Government’s response to
terrorism seems to have given unknown terrorists their first victory.
John Howard has surrendered our basic democratic rights for the next
decade. However, there is one glimmer of hope – perhaps some smart
constitutional lawyer can mount a case against John Howard and his
Attorney General for 'supporting the enemy’.
Terrorism has finally outlawed
democracy. If the new round of Terror Laws passes through the Senate,
Australians can look forward to ten years of legal terror.
© Copyright 2005 by AxisofLogic.com
*Wanda Fish is an
Australian freelance journalist who dedicates her research and writing
to the building of a more equitable and just world. Wanda has lived and
worked in the United States, Southeast Asia, and Australia. After a
30-year career in corporate marketing and public relations, Wanda left
the corporate world and began to campaign for humanitarian rights,
peace, and the creation of a world where people of all races and
religion are entitled to a free and dignified life. Wanda’s articles
are offered copyright free as part of her contribution towards a better
world.
These articles are also available on http://www.eftel.com/~cleverfish
For more information about Australia’s Terror Laws and your rights, please see these websites:
Civil Rights Network, Melbourne and Sydney
Council for Civil Liberties – links to Australian and international civil liberty groups
Activists Rights site with special section on Terror Laws
The Civil Rights Network
has published a two-page summary of Australia's anti-terrorism laws
(current at December 2004), which provides a good overview of the laws.
The Australian Muslim Civil Rights Advocacy Network (AMCRAN) has published a booklet called ASIO, The Police and You.
The University of Technology, Sydney Community Law Centre has produced a detailed information kit Be Informed: ASIO and Anti-Terrorism Laws.
Footnotes and References Article:
[i] Media Release from Prime Minister, 'Counter-Terrorism Laws Strengthened’, 8 September 2005.
[ii] ASIO advertising campaign for Terror Hot Line uses the slogan, 'Be alert, but not alarmed’.
[iii] Malcolm Fraser, 'Responsibilities and Human Rights in the Age of Terror’,
address given to InterAction Council Symposium, Global Leadership and
Ethics Program, Markkula Center for Applied Ethics, Santa Clara
[iv] Laws for Insecurity? A Report on the Government’s Proposed Counter-Terrorism Measures,
by Agnes Chong, Patrick Emerton, Waleed Kadous, Annie Pettitt, Stephen
Sempill, Vicki Santas, Jane Stratton and Joo-Cheong Tham. Published on
23 September 2005 and sent to all State Premiers prior to the
Government summit on 27 September 2005.
[v] Australian Muslim Civil Rights Advocacy Network
[vi] Daryl Melham, 'The war against terrorism goes a step too far’, published Sydney Morning Herald, September 15, 2005, and later published on Online Opinion website.
[vii] Professor George Williams’s submission to the Parliamentary Secretary for the Joint Committee on ASIO, ASIS, and DSD. Review of Division 3 Part III of the ASIO Act 1979 – Questioning and Detention Powers. Posted on Parliament Website (see Parliamentary Reviews)
[viii] Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and The Threat to Democracy, UNSW Press, 2004.
[ix] Interview broadcast on ABC Radio National morning show on September 20, 2005,
[x] Activist Rights