Patrick Emerton
The September 11 attacks on the World Trade Centre have resulted in a burst of legislative activity in Australia. A host of new laws has been passed, ostensibly to respond to the threat posed by terrorism. The latest proposal to come from the Coalition government is the Criminal Code Amendment (Terrorist Organisations) Bill 2003.
If passed, this would give the federal attorney-general the power to ban any organisation if "satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)".
Once an organisation is banned, it would become an offence — punishable by 25 years in prison — to support it financially or otherwise, or to be involved in recruitment for, leadership of or training with the organisation. Simply being a member, or even taking steps towards becoming a member, would also be a criminal offence, punishable by 10 years in prison.
At the moment, it seems likely that this bill will become law. The ALP has indicated that it will support the government, perhaps subject to consultation and review mechanisms being implemented.
This would be a tremendous blow to political freedom in Australia.
As with many of Australia's "anti-terrorist" laws, the threat posed by this proposal is two-fold. The first threat flows from the definition of terrorism. Terrorism is notoriously difficult to define. Are terrorists political fighters who attack innocent civilians instead of soldiers and police? Who is a civilian, and who is innocent?
The Australian law sidesteps these deep questions of morality and politics, and defines terrorism with astonishing breadth: any religiously or politically motivated action, aimed at intimidating any government anywhere in the world, or any public or the section of any public, if that action is violent or poses a serious risk to health or safety.
Under this definition, there are no freedom fighters — everyone's a terrorist: the African National Congress (ANC) in South Africa; the East Timorese Fretilin; the Tamil Tigers in Sri Lanka; the Australian Defence Force, which has engaged in politically motivated violence intended to intimidate the government and (at least some members of) the public of Iraq; even striking nurses, who disrupt the smooth function of hospitals. It is likely that many readers of this article are terrorists under Australian law!
Such a wide definition of terrorism means that, under the proposed power to ban organisations, the government could ban any organisation supporting a resistance movement anywhere in the world. In days gone by, such powers could have been used by a government to attack the members of groups supporting the ANC, Sinn Fein or Fretilin. Today, it could be used to ban organisations that provide support or assistance to Palestinian organisations, the Free Papua Movement, or even anti-globalisation demonstrators who are prepared to resist strong-arm tactics. The government could ban any business that sells arms intended for use by their purchasers against the soldiers of any country, or any union planning a strike that might disrupt basic infrastructure.
The threat posed by the definition of terrorism is compounded by the way in which the proposed laws operate. The power to ban organisations is based on vague, extremely broad criteria, able to be exercised on the basis of secret and untested evidence. If passed, the law would significantly increase the power of the government to make criminals of people who have never gone to court and never been convicted.
This is not unique to "anti-terrorist" laws: mandatory detention under the migration act has meant that asylum seekers have been detained like criminals since the early 1990s. But post-September 11 laws represent a significant extension of this sort of treatment. In July, the Australian Security Intelligence Organisation (ASIO) was given the power to detain and interrogate individuals, whether foreigners or Australian residents or citizens, without the need to establish guilt in a court, or even to suspect the individual of having broken any laws.
It is enough that the authorities believe interrogating the individual "will substantially assist the collection of intelligence that is important in relation to a terrorism offence". That is, it is now lawful for the government of Australia to disappear somebody because they might know something connected in some fashion to potentially violent political action somewhere in the world!
Can the government be trusted to exercise these powers wisely? History suggests otherwise — vesting governments with these sorts of arbitrary powers is a recipe for abuse. We have already seen this in the migration field — dissatisfied with the scrutiny that mandatory detention had attracted from the media and the courts, the government has located substantial numbers of detainees off-shore, in Nauru and Papua New Guinea.
The same desire to avoid scrutiny can be seen for ASIO — in December last year it was made a criminal offence to reveal any information related to ASIO detentions or interrogations under its anti-terrorism powers. Now, the federal government wants to be able to ban organisations and to criminalise the conduct of innocent people, whose business or politics it objects to.
On June 16, Senator John Faulkner condemned the proposed law in the Senate: "Proposals to erode our freedoms and our rights will ultimately erode our security as well. For this reason, we do not accept and will not accept the government's executive proscription bill. We will not accept a regime of secret proscriptions, of decisions in closed rooms, of such significant and potentially destructive power in the hands of one person and one person alone. To have that kind of power exercised by one person in secret, particularly a member of a government executive . . . is not acceptable in a democratic society and it should never be allowed on the statute books."
Under pressure to be strong on "national security", it now seems the ALP will give in to the government. But Senator Faulkner's words remain true eight months later. These laws do not target terrorists, or even terrorist organisations — the breadth of the definitions, and of the grounds on which the attorney-general may act, means that they target anyone involved in political activity. The mere presence of such arbitrary power in the hands of the government undermines political freedom. More than this, its arbitrary nature makes its exercise liable to lead both to mistakes and abuse. In either case, the fundamental political right to organise is put in jeopardy.
[Patrick Emerton is an assistant law lecturer at Monash University. For more information, and to find out how to campaign against the new law, visit the web site of the Civil Rights Network <http://www.civilrightsnetwork.org>.]
From Green Left Weekly, February 25, 2004.
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