Criminal lawyer Rob Stary has represented many people accused under Australian “counter-terror” laws. Green Left Weekly’s Karen Fletcher spoke to him about the police raids in Sydney and Brisbane on September 18.
Last week you commented that the raids gave you a sense of “deja-vu”. What is repeating here?
I have been involved in all the terrorism cases in Victoria, from the Tamil Tigers to Jack Thomas and the “homegrown jihadists” in the Holsworthy Army Barracks case, and one thing is always the same: the police, despite what [Attorney-General George] Brandis says, always embellish and overstate the case at the time of the arrests.
They called Jack Thomas “Osama bin Laden's White boy in Australia” and “a sleeper waiting to be activated”. Of course there was absolutely no evidence of any of that. In fact the contrary was true. When Jack Thomas came home he tried to re-integrate into the community and reunite with his family. He was working three jobs at the time of his arrest, and buying a very modest home in Werribee.
But there was a massive fanfare. They brought out the paramilitary police. They had helicopters hovering over the court. His arrest was pure theatre. Although he was ultimately acquitted, he had to go through a process over years at enormous cost.
Then we saw the same thing with the arrest of the “Barwon 13”. The authorities said they had thwarted an imminent terrorist attack on iconic landmarks — the MCG — and there was talk about the Westgate Bridge and the Royal Children’s Hospital. The fact of the matter was that there was no imminent threat. There was no plan to attack those sites. There was some swaggering talk and false bravado but there was nothing close to being put into place.
Of course, it had the desired effect of completely alarming people. You might remember — and the government would say that this is just a coincidence of timing — that when those raids were taking place in 2005, the infamous WorkChoices legislation was before the Senate and risked being rejected. The Senate was recalled to change a word in the Prevention of Terrorism legislation because of this “urgent threat” and looking back on that case its easy to be cynical about the way it was conducted and what was its real purpose.
The case against the 10 Tamil Tigers was another notorious prosecution that was ultimately withdrawn. It was alleged that members of the Tamil community in Australia had diverted money that had been raised for the tsunami relief effort in 2004 and 2005 for military purposes in the north and east of Sri Lanka. In the end no one was ever charged and no evidence was ever produced that it had ever occurred. But they aroused massive angst in the community.
Then there was Holsworthy Barracks case [in Sydney’s west] where people were charged with a conspiracy that could never have come to fruition. Eventually half the alleged conspirators were acquitted. So their strike rate is very poor, and yet we deal with this embellishment and overstatement all the time.
And that is what happened last week too. All that drama and theatre at the beginning, and we’ll see what the evidence will show in the end. Already only one person is in detention and the others have been released because of lack of evidence.
The police and politicians put out their press releases and hold press conferences about “thwarting terrorist attacks” and the public doesn’t know, and can’t know, the true detail. My experience is that the facts that emerge at the end of the day never bear much resemblance to what was said at the time of the arrests. This is a routine, it hasn't just happened once.
How have the outcomes of the cases you have been involved with been reported by the media at the end of the day? When the years have passed and the evidence has been sifted through?
There's virtually nothing. After three years of litigation all the charges against the Tamils were withdrawn but there might have been one report in the Age. Certainly nothing in the Herald Sun or the Murdoch press. What happens is we have all the fanfare of the arrests then the person gets charged and a veil of secrecy descends on the whole litigation and there is negligible reporting and then there is virtually no reporting when people are acquitted.
There were up to 15 pages of coverage of last weeks’ raids in all the major metropolitan dailies, mainly consisting of photographs provided by the NSW police media unit.
That's consistent with their approach. They are highly politicized authorities, both the police and ASIO, no matter what they say. They have the media in tow. They have a direct link to the Australian, which is really the unofficial journal of the Australian Federal Police. You may remember that the Australian broke the “home-grown jihadists” Holsworthy Barracks story before the warrants were even executed.
If it were a genuinely serious operation you wouldn't be publishing in the Australian before people were even arrested. The journalist, Cameron Stewart, was reprimanded but nothing was done about the leaks from the AFP or ASIO.
This has to be seen in the context of those agencies wanting more power. There is not one police or intelligence agency that says it's got sufficient power.
This time they want to ensure that preventive detention orders – which have been available for 10 years but were used for the very first time last week – are permanently on the statute books.
The former Independent National Security Legislation Monitor, Bret Walker, has criticized preventive detention. Now his office is being abolished.
Since 9/11 there has been this assurance from Australian governments that these successive tranches of repressive “counter-terror” laws will not be permanent, that they will include “sunset” clauses and be subject to close and independent review. Now the independent reviewer is being abolished and there doesn’t seem to be much talk of “sunsetting”.
Brandis initially said this latest tranche would be permanent but there has been such a backlash he's said today they will sunset after 10 years.
It is no coincidence that Bret Walker's position has not been filled for months and is now set to be abolished. I think the politicians have been absolutely seduced by the AFP and ASIO. They are caught up in the intrigue and the operations of those organisations. There is no objectivity.
Can you comment on the threat the government originally said was the main reason for these new powers, that 160 alleged “foreign fighters” who may come back to Australia, skilled and radicalised, and commit terror offences here.
Are you talking about those fighting with the Israeli Defence Force? No? That figure of 160 “foreign fighters” for IS is plucked out of the air. [Justice Minister Michael] Keenan said on [the ABC’s] Q&A last night that the figure was 160 but is actually about 60 people who have gone to fight in Iraq and Syria.
And you have to remember Australia was initially supporting what was described as the Free Syrian Army and “freedom fighters” in Syria, which included all the various al Qaeda offshoots and other Sunni fundamentalists, because we thought it was appropriate to depose the [Bashar al] Assad regime. So at one point those people were encouraged to be there. I don't know how many people went over at that time and have stayed to fight in Northern Iraq.
There may well be a problem if some of those people come back and engage in clerico-fascist politics or religion. But there is already a Foreign Incursions Act under which people can be monitored and charged for recruiting people to fight in Syria. It should be illegal to go and fight in any foreign conflict, whether on the side of the government or the opposition, but curiously Israel seems to be exempt from that.
There's a policy decision that has obviously [been] made. No one fighting for Israel will be charged even though they might be involved in an unlawful war, as when Lebanon was occupied a few years ago.
I currently have two clients who have been charged under the Foreign Incursions Act, one in Sydney and one in Melbourne. They are both alleged to have recruited people to go to Syria, either to support Assad or the opposition. So there is already power to charge such people.
As Bret Walker has said, there's overwhelming power to monitor and charge people for such offences. So I can't see where there is a need for more powers. We should be extremely cautious when the intelligence agencies say they need more power.
We should also be concerned about legislation that criminalises people who go to a designated “hot spot”. At one stage Brandis said that under the new laws they would be able to designate entire towns, like Mosul in northern Iraq. Once you are charged under terrorism legislation, bail is refused and you are remanded in custody until the matter is resolved or it is established there are “exceptional circumstances” justifying bail.
There is a great risk that a person could go just to visit family and be charged and remanded in custody simply for visiting a “hot spot”. That would be a terrible injustice for what could be an innocuous family visit.