On June 26, the federal parliament passed the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. This bill marks the end of some of the most basic civil liberties that until now were considered undeniable in liberal democracies. The new laws are completely without precedent in peacetime, and arguably make Australian security laws the most repressive in the western world.
Under the new laws, people can be detained who are not suspected of being involved in any crime. You don’t have to have committed, be committing or be suspected of any involvement in, a terrorist incident. The suggestion that they have passively acquired information will be enough.
Australians could be held under the ASIO Bill, not because they have engaged in terrorism or are likely to do so, but because they may (as Attorney General Daryl Williams said on March 20) “substantially assist the collection of intelligence that is important in relation to a terrorism offence”.
This would affect lawyers assisting a client, journalists working on a story, GPs listening to their patients, priests in the confessional, teachers going about their work, people using the Internet and, of course, political activists.
Nicole Bieske from Amnesty International also pointed out that innocent people could be detained simply for being near a terrorist suspect in a restaurant. She noted: “Somebody next to you, at the next table, is being surveyed by ASIO. You get picked up the next day because ASIO suspects you may have overheard something, and you can be detained for seven days.”
However, after the warrant expires another can be issued, and another, continuing the detention indefinitely. The original proposal by the Liberal Party was for rolling two-day detention periods, but Labor capitulated that it be up to a week- on the condition that a new warrant was still granted.
Essentially, the fundamental legal principle of habeas corpus, or freedom from arbitrary detention, is gone.
While in the custody of ASIO, you can be denied access to your family and friends, and they need not know that you have been detained. ASIO is not obliged to let anyone know of your whereabouts, or even that you are safe from harm.
Those detained can be given a full strip search, which, for the first time, can be given by a member of the opposite sex “if practicable”.
Your automatic right to a lawyer during detention has also been revoked. If you are allowed access to a lawyer, they can only see you if they have passed a security check (at the discretion of the same people who requested your detention), and he or she can be removed again for being ‘disruptive’.
As the Victorian Law Institute president Bill O’Shea explained to a Melbourne press conference, “Even if ASIO approves the lawyer, he or she can only provide advice between eight-hour questioning blocks and not while the questioning is going on. In addition, ASIO has no obligation to inform the arrested person of the grounds on which they are being detained, so it will be very difficult for a lawyer to object to the detention.”
In fact, if your lawyer were believed to have information passed on to him or her by you, your lawyer too would probably be detained under the same act.
The new law demands you answer ASIO’s questions. Saying “no comment” is no longer an option- your right to silence is gone. Failure to do so incurs a maximum penalty of five years? prison. The burden of proof has been reversed; you must prove you don?t know the answers.
If ASIO alleges you have information or material, the onus is on you to prove that you do not. Essentially, you are guilty until proven innocent. According to Justice Minister Chris Ellison this merely reverses an “evidentiary burden”, not the onus of proving guilt. But the burden is always one of evidence.
This overturns the basic protection against police frame-up. Your right against self-incrimination has been abolished; enabling unlimited interrogations until an admission is made. Furthermore, there are no rules for the interrogation of detainees. Will torture be used? Assumedly not (officially at least), but there is a marked absence of information regarding such processes in the bill.
Children are not exempt, and as such, the United Nations Convention on the Rights of the Child has been completely ignored.
Again, the Victorian Law Institute slammed such a notion. “Detaining children between the ages of 16 and 18 years for up to 7 days on suspicion of committing an offence with no right to silence, limited access to a lawyer and no presumption of innocence is totally unacceptable and a breach of the human rights of children.”
Unbelievably, it was originally proposed the laws even apply to 10-year-olds.
The initial warrants are granted by judges, some of which will be more inclined to do so than others. But given that the information presented to the judge is only from ASIO, and you don?t have the right to be represented or to cross-examine evidence, it is not clear how the judge could do anything but grant the warrant.
If you wish to complain, you have no legal redress. You do however have the right to write a letter of complaint to the Director-General of Security (the person who originally requested the warrant).
The new ASIO powers are beyond any existing legal boundaries- they are supra federal. Under general law, if a person is suspected of being involved in terrorist activity they can be arrested by the police, questioned, charged and, if guilty, convicted.
This act challenges the legal and political structures designed to prevent autocratic government. The ‘Separation of Powers’ constitutionally demands that a person’s detention should be decided by the courts (the Judiciary)- not the parliament (the Legislative). Today we are also hearing talk by frustrated Liberals to the complete abolishment of the Senate (the Executive, and third of the powers).
ASIO is not a suitable body to be given police powers. ASIO is a covert intelligence-gathering agency, not a law enforcement body, and with these laws moves from being a spy agency to becoming the first Australian secret police. If ASIO holds coercive police powers, it must be subject to the political and community scrutiny and controls that need apply to any other police force.
One last-minute government amendment, Section 34JB, permits police officers to use ?such force as is necessary and reasonable? in breaking into premises and taking people into custody. This clause gives police the power to kill or cause ?grievous bodily harm? as long as they believe it necessary to protect themselves.
ASIO already had every conceivable power it could want to detect terrorists, including the power to raid homes and offices, place bugging devices, tap phones, intercept mail, hack into computers, infiltrate organisations and inspect postal articles.
The new laws, for all its repressive aspects, puts in place no new measures to stop terrorists. Federal law has existed for decades to detain, arrest and prosecute terrorists. Professional terrorists have nothing new to fear from the act.
Such a law does not exist in the US and in Britain and ASIO’s equivalent in these countries are not attempting to gain such a law.
By contrast, at the US prison camp on Guantanamo Bay, Cuba, where detainees can be held without trial and without access to family or lawyers, the laws apply only to non-US citizens, as abhorrent as that is. The new ASIO laws, however, allow for the indefinite detention without trial of foreigners and Australian citizens alike.
The definition of terrorism inserted into the Criminal Code last year via Howard’s package of sweeping “counter terrorism” laws covers anyone ?with the intention of advancing a political, religious or ideological cause?. It is so broad that it would cover union pickets and strikes, civil disobedience by peace groups, anti-globalisation blockades and similar activities.
The Attorney General will be able to ban organisations ‘likely to endanger, the security or integrity of the Commonwealth or another country.’ Before voting in favour of the bill, Bob Brown gave the example of his involvement with the Franklin River blockade of 1982, where the Fraser government called for the army to be brought in because of what it saw as a security threat to infrastructure in Tasmania.
He mocked: “Is the Wilderness Society going to be listed as a threatening group?” But it is no joke. Members and those ?assisting? a banned organisation may be sentenced to 25 years jail.
Under the new law, Australia’s attorney general can authorise legal hacking into private computer systems, as well as copying or altering data, as long as he has reasonable cause to believe it’s relevant to a ‘security matter’.
In addition, the new law could introduce tricky new issues into legal cases. The Victorian Law Institute noted, “It opens to question all computer evidence if there’s been the potential for legalised tampering of it. Computer evidence already poses problems of validation, and that’s before you even open up these legal avenues of tampering.”
A representative of Attorney General Daryl Williams stated: “This just brings ASIO’s powers in line with new technologies. It doesn’t give them increased powers at all.” Juxtaposed, the University of New South Wales’ Professor George Williams (one of the nation’s leading constitutional academics) described the act as “a law that would not be out of place in former dictatorships such as General Pinochet?s Chile.”
The potential for political harassment and victimisation is vast. They attack our democratic rights and criminalise militant unionism, direct action by social movements and other social dissent. And these laws will be used to further harass and intimidate the Islamic and Arab communities and other minorities in Australia.
One amendment agreed to by the government is a sunset clause; the law must be renewed in three years time. But before that, it’s possible the laws may face a constitutional challenge in the High Court. Previous laws, which have been found to be legal during times of war (such as petrol rationing or wage fixing) may be found to be inappropriate during peacetime.
It breaches the separation of powers in conferring a power on the government to detain Australian citizens who have not committed an offence (or even are suspected of having committed an offence). This argument is sufficiently strong that a High Court challenge is probable in the event of a detention (assuming of course that there is knowledge of the detention).
The High Court famously refused to allow the banning of the Communist Party in the early 1950s, saying that the laws were too extreme even while Australian troops were in Korea.
However, as shown in parliament, the institutions of capitalism cannot be relied upon to defend democratic rights. Be it in parliament, the courts, the law enforcement agencies, or even international forums such as the United Nations- all have shown their true colours time and time again.
The passing of this bill has been hailed as “a triumph of the Senate and joint parliamentary committee process” by all parties in parliament. But nothing could more clearly express the conflict of interests between parliamentarians and ordinary working class people. To defeat such repressive laws, those same working class people must win the victory on the streets, not by an amendment of the act through the system, but by replacing the system entirely.
By Greg Bradshaw