ASIO laws: Don't be silenced


Dale Mills

The secrecy surrounding the proposed national anti-"terror" legislation stands in stark contrast to previous ASIO and "anti-terror" laws that have been subject to scrutiny by parliamentary committees and public hearings.

The September 27 Council of Australian Governments meeting agreed to the draft bill. What is to become law in Australia was given in secret to the state premiers, who agreed to keep it under wraps.

Then, just before federal parliament adjourned on October 13, the Legal and Constitutional Legislation Committee was given a single day to review the legislation, or to conduct public hearings. This was too much for ACT Chief Minister Jon Stanhope, who put the draft legislation on his website.

The Anti-terrorism Bill (2005) is more than 100 pages long. It re-numbers offences in the Criminal Code, introduces detention without charge, restricts communication and places other controls on individuals.

Many countries have some sort of sedition law, but in industrialised countries these laws are balanced with a Human Rights Act or an equivalent. Lacking this legal counterbalance makes any sedition laws in Australia extremely harsh and prone to abuse.

Sedition is an ancient law dating back to at least Elizabeth I. It was put into statute form in Australia by the federal Crimes Act 1914, and the offence of sedition still exists, along with sections on treachery, sabotage and mutiny. Until now, the law of sedition has been left to gather dust. Now it is being brushed off by the Howard government and made harsher.

The proposed new offense of sedition is defined, in part, as bringing the sovereign (Queen Elizabeth) into hatred or contempt, or urging another person to attempt, other than by lawful means, to achieve a change by breaking any of Australia's laws, or to promote feelings of ill-will or hostility between different groups that threaten the peace, order and "good government" of the country.

The maximum penalty for sedition is being increased from the current three years' imprisonment to seven years.

There are further offences, similarly wide in scope, that are open to abuse by the state. These include where any person urges another to overthrow, by force or violence, the Australian government or government of any state or territory (maximum penalty seven years' jail); to interfere by force or violence in respect of parliamentary elections (seven years' jail); to engage in conduct that intends to assist, by any means whatever, an organisation or country that is at war with Australia, whether formally declared or not (seven years' jail); and to engage in conduct to assist, by any means whatever, an organisation or country engaged in armed hostilities against the Australian Defence Force (seven years' jail).

These offences are not aimed at the person or persons doing these things, but at those "urging" others to do them.

One offence, which is very widely defined, is to urge a (racial, religious, national or political) group to use force or violence against another (racial, religious, national or political) group, such as to threaten the peace, order and good government of Australia (seven years' jail).

This replaces and changes the current 1914 Crimes Act, with its antiquated wording, under which it is an offence "to promote feelings of ill-will and hostility between different classes of Her Majesty's subjects".

A common element of these offences is that it is not necessary to show that a person "intended" to urge others, but only if they were "reckless" in urging others — a much easier way to convict someone.

There is a "good faith" defence to many of these offences. But there isn't much detail as to how this would work in practice. "Good faith" does, however, include pointing out "any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters" — a very narrow defence.

Another "good faith" defence includes doing "anything in good faith in connection with an industrial dispute or an industrial matter". This indicates that industrial disputes or industrial matters may be labelled seditious, where there is an absence of "good faith".

Proceedings may only begin in relation to sedition with the attorney-general's written consent. With the offences so broadly worded, anyone charged is virtually guaranteed a conviction. The requirement of the attorney-general's written consent essentially shifts power from the courts to the government, allowing it to target those it doesn't want to tolerate. It only needs to bring a prosecution (on the advice of ASIO?) and conviction almost automatically results.

The sedition laws could apply to anyone: anti-war protesters, religious fundamentalists, shock jocks, journalists and republicans bringing the sovereign into contempt.

It is a charter for crushing dissent. If used to target Muslims, it will be a weapon to criminalise and terrify a specific ethnic and religious community, and Australian Muslims will join Indigenous Australians as a group targeted for special treatment by the government and state.

But it would be wrong to think that the government is alienating the Muslim community simply because the government is stupid, incompetent or out of touch. The reason for such an approach is that it is helpful for the state to have the Muslim community living in fear, increasingly isolated and regarded with suspicion by non-Muslim Australians.

Sections in the proposed legislation allow a police officer to shoot to kill in some circumstances. This has been greeted with alarm by some media, however these parts of the bill really spell out what is already the law.

The proposed section 105.23 says that an Australian Federal Police officer may use force to prevent a person fleeing if that person has a preventative detention order against them, if the person has refused to give him or herself up, and if the officer believes that using that force is necessary to protect life or to prevent serious injury to another person. The force that can be used includes deadly force.

Now that the power is spelled out in the proposed laws, every police officer might believe that he or she has "reasonable grounds" to suspect that every person against whom a preventative detention order has been made would be a danger to others.

Once the preventative detention order has been made, the police officer has the legal authority to detain a person or, if the person runs away, to use lethal force against them.

So under this section it's conceivable that we will see a lot more tragedies such as that of Jean Charles de Menezes, the Brazilian man who was shot by police at point blank range in London on July 22. Menezes was suspected of being connected to the London bombings; he was innocent.

Control orders can be made against any individual; you don t have to be a suspect, just someone whose control will probably "substantially assist in preventing a terrorist act". But if there was enough evidence to bring a charge, control orders would not be relevant — you would simply be arrested and remanded in prison until trial.

The person that a control order is made against will have no idea that the application is being made. It won't be possible to brief a lawyer to oppose the making of the order. The control order may last for 12 months (three months for 16-18 year-olds).

It can also order specific measures to "control" you. According to schedule 4 of the act, these include that you: remain at specified premises between specified times each day or on specified days (e.g. house arrest); wear a tracking device; are banned from communicating or associating with specified individuals (including certain lawyers or journalists, or all known friends and relatives); are banned from using specified forms of telecommunication or other technology (the telephone or internet); and report to specified persons at specified times and places.

After the first 12 months, another 12-month order can be issued, and so on, so that detaining a person for years without charge or trial would be perfectly legal. Breaching the control order carries a five-year penalty.

The public will never know who and how many people are under house arrest except by the annual report to parliament, where only the number will be given.

Preventative detention orders are also designed for those against whom there is no evidence, or not enough, to bring a charge. It allows for a person to be taken off the streets and detained for 14 days when authorities suspect that it will prevent a terrorist act within the next 14 days, or to preserve evidence.

If interned under a preventative detention order, you can only ring your family or employer to say that you are safe. Telling them that you have been detained by the Australian Federal Police or anything else would be a criminal offence.

The preventative detention orders are what most people have in mind when they think of a "police state". The initial order (for 24 hours) is not made by a judge, but by a police superintendent or someone of higher rank. After that, the police obtain another order from a judge acting in a personal capacity.

Some judges may be more willing to grant these orders than others. As the judge is acting in a personal capacity, there is no right of appeal. This is so close to bringing the judge to act in a way incompatible with his or her status that the legislation might be ruled invalid if it reaches the High Court. By then, of course, it would be too late.

In any event, it is not constitutionally clear whether the federal government has the power to allow the making of preventative detention orders that are more than 48 hours long. That is why the Labor state leaders have come to Howard's rescue, agreeing to change state laws to allow for 14 days detention. The proposed laws are likely to be introduced into parliament on October 31.

From Green Left Weekly, October 26, 2005.

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