Anti-terrorism legislation strips civil liberties

June 21, 2019
Image: Van T Rudd

The recent intimidatory police raids on the ABC and a journalist’s home for publicising matters of community concern are a wake-up call that press freedoms can no longer be taken for granted.

Looking wider, personal freedoms we thought we enjoyed are also fast disappearing, thanks to the National Security Legislation Amendment (Espionage and Foreign Interference) Act and other laws passed with bipartisan support in June last year.

Professor of International Law at the University of Sydney Ben Saul said: “Never has an Australian government talked so much about freedom while doing so much to undermine it. When it comes to national security and refugees, we are increasingly pathetic.

“The truth is that Australia already has enough laws to deal with terrorism. Since 9/11 the parliament has been among the most hyperactive and invasive counter-terrorism lawmakers on the planet. Much of it is never used, or goes too far — from preventive police detention, to ASIO's incommunicado detention of non-suspects, to control orders.

“The new laws also go too far. They criminalise innocent travel to places the foreign minister does not want you to go. They criminalise free speech. They criminalise whistleblowers and the media that report them. They allow mass surveillance of innocent Australians on the internet. They deny procedural fairness. They violate the right to social security and therefore potentially leave people destitute. All of this comes without the binding human rights safeguards that every other self-respecting democracy imposes on its security agencies.”

University of NSW Dean of Law Professor George Williams has pointed out a number of concerns arising from the terrorism legislation:

• The possession of a “thing” that could be used for a terrorist act is punishable by 15 years in jail. “Thing” is not defined: it could be a pamphlet;

• The definition of terrorism as causing widespread harm is very wide and could be interpreted as including protest against the government;

• Joining or attempting to join an organisation that is a “prohibited organisation” carries a jail term of 15 years, even if you don’t do anything;

• The Act gives ASIO power to detain for questioning a person who is not connected to any crime but is detained for intelligence. That person can be held for up to seven days;

• Metadata on persons can be accessed by government without a warrant;

• A range of laws allow searches without a warrant;

• ASIO can ignore criminal law except for torture;

• Any journalist who writes a story about a particular use of these laws can be jailed for five years; and

• The government can remove a citizen even if a court makes no finding of guilt but the government believes a crime has been or will be committed.

Speaking at a meeting of the at a meeting of the NSW Council for Civil Liberties last year, Williams said: “In the witness K case, the court is closed and the judicial officer is required to give the greatest weight to the protection of the community over the right of the individual to a fair trial.

“In the US much of this Australian law would be illegal because the US has a Bill of Rights protecting individuals from such laws. We do not have such a Bill of Rights (US) or Charter of Rights (Britain) in Australia, although a survey has showed that 61% of Australians think we have one.”

Williams said a surprisingly high number of Australians think they can invoke the Fifth Amendment to protect themselves from self-incrimination. The Fifth Amendment is part of the US Constitution, not Australia’s. Perhaps this finding says something about the influence of US TV dramas on community understandings.

Apart from the terrorism legislation, other laws remove or restrict some fundamental freedoms and rights.

The NSW Council for Civil Liberties (CCL) released a statement in June last year condemning regulations banning public gatherings: “On 1 July 2018, new regulations came into effect, granting the NSW state government incredibly wide powers to disperse or ban protests, rallies, and virtually any public gathering across approximately half of all land across the state. CCL strongly opposes these regulations.”

The Crown Land Management Regulation 2018 includes a provision that public officials have broad power to “direct a person” to stop “taking part in any gathering, meeting or assembly”. This means that police, local council officials and so-far unspecified categories of people or government employees will have the power to ban people from holding public gatherings on public land.

“The territory where these incredibly broad powers apply is Crown Land — land owned by the state government. This includes town squares, parks, roads, beaches, community halls and more.”

Police powers to stop peaceful protest became real to one member of the public last year on Armistice Day. A member of the Marrickville Peace Group was “escorted” by police away from the War Memorial in Sydney and told to stay away for six hours. He was wearing around his neck a sign that simply said: “Honour the dead by ending war”.

[Bevan Ramsden is a long-time peace activist and NSW representative on the National Coordinating Committee of the Independent and Peaceful Australia Network, IPAN]

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