When terrorism outlaws democracy

October 12, 2005
Issue 

Wanda Fish

On September 27, 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 centres, is now set to become a police state.

When Prime Minister John Howard announced that he would meet with the state premiers about the need for harsher counter-terrorism measures, Labor state leaders were critical and called the proposed laws "totalitarian".

The secret briefing, given by ASIO, 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 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 US "war on terror". The one concession gained by state leaders was a 10-year sunset clause on the new 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 Howard presented on September 8 has alarmed Australian Muslims, journalists and peace activists who fear they will be victimised by ASIO raids and "fishing expeditions". Protesters 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.

Presumption of guilt

The new crimes carry seven-year prison terms. Moreover, the laws shift from a presumption of innocence to a 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 about Howard's and the ALP premiers' 12-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 (AVOs), 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 bypasses the judicial system and would have been unconstitutional if enforced by the Australian Federal Police (AFP). State police will be able to detain "suspects" who might have information or might be intending to commit a terrorist act. ASIO, previously rerliant on less than 2000 federal police officers, 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: ASIO and the AFP will be given access to airline passenger information. If Howard follows the US example, Australians can expect that "no-fly" lists will be used to disrupt 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 offence". 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, and mail and delivery service warrants will be extended 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 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 and online 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 opposed this regime at an April 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", he said. Lawyers have also asked what "strengthen" means in relation to financing terrorism, given that under the Criminal Code this offence already incurs life imprisonment.

10. Criteria for listing terrorist organisations will be extended: Organisations that "advocate terrorism" can be banned. Community lawyers, policy workers, advocates and legal academics have argued that "the extension of the unprecedented powers to ban terrorist organisations ... poses the danger that many organisations that publicly support independence movements such as Fretilin and the ANC will be vulnerable to proscription". (See <http://www.civilrightsnetwork.org>.) The potential for this list to grow to include organisations 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 organisations 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 deportation of US peace activist 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 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 (<http://amcran.org>) offering free advice to the Muslim community, which has been profiled as a consequence of the war on terror.

Bypassing anti-discrimination laws, senior government officials have made statements like "not all Muslims are terrorists, but all terrorists are Muslims". Despite the clear danger of this generalisation, 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 after the September 27 Council of Australian Governments terror summit.

Lawyers fear that the terror laws will also target high-profile dissidents, peace activists, trade unionists, student leaders and protesters — virtually anyone who loudly and effectively opposes the government.

Silencing dissent

Howard's intention to use these powers to silence protest is clear, as he has consistently followed British PM Tony Blair and US President George Bush as role models. London's public disgrace of 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 some of the corporate media say the new terror laws go too far. For instance, the September 15 Sydney Morning Herald published a piece by Daryl Melham warning: "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?"

The brutal police killing of an innocent Brazilian on his way to work in London was a dramatic reminder of the ultimate consequence of fighting terrorism with terror powers.

When the first round of terror laws were hurriedly introduced in 2002, the Senate was able to exclude children and shorten detention times. Many Australians condemned the laws as an overreaction to unknown terrorist threats.

In his foreword to Jenny Hocking's Terror Laws: ASIO, Counter Terrorism and the Threat to Democracy (UNSW Press, 2004) Professor George Williams warned, "Terrorism was part of Australian life before September 11, [2001] 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 flaw in 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 defines "terrorism" by specifying what are not classified as "terrorist acts". The exception of "legal and non-violent protest" within the act gives little comfort to groups who have been involved in peaceful protests that have become violent following police intervention or harassment.

As the public debate heats up about the potential and real impact of the ASIO terror laws, the focus of terrorism should shift 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 on ABC Radio National on September 20 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 others 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 privatisation of Telstra to name just a few.

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 Activist Rights website at <http://www.activistrights.org.au/terror_laws.asp>. This time the lawyers didn't couch their warnings in careful legalese. "Danger! New laws criminalise protesters", it says, giving practical and detailed advice on what to do if ASIO comes calling.

The Howard government has continued to ignore those protesting Australia's involvement in the US-led "war on terror". Now Howard is ignoring public opposition to the terror laws, likely to be passed by a Senate he controls.

Angry Australians have flooded radio talk-back shows to the point where the hosts have had to beg for calls from supporters of the 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. Howard has surrendered our basic democratic rights for the next decade. Perhaps some smart constitutional lawyer can mount a case against Howard and his attorney-general for "supporting the enemy"?

[Wanda Fish has lived and worked in the US, South-East Asia and Australia. After a 30-year career in the corporate world, Wanda turned to the campaign for human rights and peace. This article was first published on <http://sydney.indymedia.org> Wanda's articles are also available on <http://www.eftel.com/~cleverfish>. For more information about Australia's terror laws and your rights, see <http://www.civilrightsnetwork.org/contact.htm>; <http://www.nswccl.org.au/publications/links.php>, and < http://www.activistrights.org.au>]

From Green Left Weekly, October 12, 2005.
Visit the Green Left Weekly home page.

You need Green Left, and we need you!

Green Left is funded by contributions from readers and supporters. Help us reach our funding target.

Make a One-off Donation or choose from one of our Monthly Donation options.

Become a supporter to get the digital edition for $5 per month or the print edition for $10 per month. One-time payment options are available.

You can also call 1800 634 206 to make a donation or to become a supporter. Thank you.