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Justice Dowd discusses the anti-terrorism legislation.

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National Interest

Sunday 28 April 2002

Justice John Dowd, President, Australian Section, International Commission of Jurists


Security laws  


Terry Lane: The federal government’s proposal to increase the powers of the Australian Security Intelligence Organisation will be up for public discussion this week. Public hearings are starting, at which the hoi polloi can make their opinions known. Organisations like the International Commission of Jurists and the civil liberties organisations around the country are ringing the alarm bells about the draconian bill before parliament. In fact I should say bills, because it’s not only the one that relates to ASIO but there are some other bills as well, which make up a package of anti-terrorism laws.  


Well, what is at stake here? Are we, as some people say, in danger of losing important civil liberties if the ASIO and the other bills pass through Parliament? On the phone I have Judge John Dowd, the President of the Australian section of the International Commission of Jurists. Judge Dowd, good afternoon. 


John Dowd: Good afternoon.  


Terry Lane: Now could you give us a précis of what the ASIO legislation amendment proposes, that is new as far as ASIO powers are concerned? 


John Dowd: Remembering that this is only one peripheral part of the whole package, the ASIO Bills seek to allow the detention of people without legal advice and without being a power to be released for 48 hours, and that can be renewed because they may have information concerning terrorist activities.  


Now the principal difficulty about this is that the anti-terrorism Bill couches these effects in the widest of terms. They’ve copied some UK legislation, which is rarely these days a guarantee of protection of human rights. But it’s very dangerous to talk about human rights when in fact it’s a matter that can affect you and me, and people that we know, because if you talk about human rights, people don’t relate to these things as being matters that are closely affecting them. The anti-terrorism definition is in very wide terms, and a lot of ordinary Australians may in fact come within that definition without having the slightest idea that they’re doing so. 


Terry Lane: Yes, and we should point out that the definition terrorism is common to a number of these bills which are before the parliament at the moment, and one of the definitions is ‘any organisation in Australia or in another country which engages in acts of destruction against property’. Now this would automatically mean that an organisation like Fretelin for instance, or the African National Council would come under the definition of a terrorist organisation, so presumably anybody in Australia who supported Fretelin or the ANC could be deemed to be a terrorist. 


John Dowd: Or, for that matter, people who are trying to do something about Aceh and West Papua. The definition of ‘public’ includes the public of other nations. Therefore if people were trying to highlight the cause of the people of West Papua, and were raising money for any particular purpose, suddenly in Australia they become guilty of an offence under Indonesian law which presumably is going to be the same. A lot of people are just carrying about lawful activities here, and suddenly become criminals. Just to take an example, if you were raising money for relief of health problems in the Tamil-held areas of Sri Lanka, that becomes an offence, and if in fact the Attorney-General gets the power that he’s sought to proscribe particular organisations, suddenly you’re a criminal when you’re merely trying to get medical relief to people who are refused medical relief by the Sri Lankan government. 


Terry Lane: This is another feature of the bills which are controversial and that is that an organisation will be deemed to be a terrorist organisation if the Attorney-General says it is. 


John Dowd: Yes, and we learnt back in the days of the anti-communist referendum, that in a referendum even with the anti-communist hysteria of that time, the Australian public said No. Well the Australian public aren’t being asked here. They’re using the anti-terrorism world hysteria to increase powers of organisations that ordinary Australians don’t want to have. If you remember back at the Olympics when we were going to the World Economic [Forum] conference in Victoria, the federal government sought the power then to bring out the army independently of the perfectly workable arrangements that we already had whereby police control things and bring the army on request if necessary. They took to themselves that by saying “Shock, horror, this could happen to us and the Olympics is going to be disaster at the end of the known world”. Nothing happened. But they’ve still got the powers. 


Terry Lane: Yes. Of course the background to this being the events of September 11th, events that didn’t happen in Australia. There is no suggestion that they could or would happen in Australia. We don’t have any history of terrorist activity in Australia, in fact I think the one and only terrorist action in Australia was the Hilton Hotel bombing, and that was decades ago. 


John Dowd: And what needs to be remembered is that the Attorney-General conceded that there is no intelligence indicating that we have a problem at the moment. Now I’m not saying it isn’t going to happen, anything could happen, but we don’t at the moment have the problem. Why give to our spying organisation powers we don’t give to policemen? 


Terry Lane: Well, let’s get back to the spying organisation, because what is new about this is that ASIO at the moment, and before the passage of this bill, if it happens, ASIO has new powers of arrest and detention. So it is an extraordinary extension of ASIO’s powers. 


John Dowd: And for no real justification. I mean, the main people faintly at risk could be journalists and members of parliament. I know in my activities involving human rights that I go to meetings, I meet people of all ethnic origins, it’s very easy for someone to come along and say “Well, Dowd attended this meeting, and such-and-such a person was there, and we want to arrest this person, and Dowd might let him know”. If we had this same power going in the United States and suddenly an Australian citizen is arrested over there, we’d say that’s shocking. Yet it’s going to happen here. 


Terry Lane: The more, of course, that the ASIO bill is scrutinised, the more frightening it becomes, because initially it was thought that it gave ASIO powers to hold a person in communicado for interrogation for 48 hours, but it now seems that the bill might allow ASIO to hold a person indefinitely. 


John Dowd: It’s theoretically. But it’s going to be relatively easy to get extensions of that power for a period, and therefore if… the warrant is sought to extend it, if it was good enough in the first place to get it, it’s good enough for it to happen again. So in fact there is a likelihood of a number of extensions. I ask people to think if it’s your child that’s being held by ASIO, if it’s someone’s elderly parents who are being held because they might know something about the activities of their son, if it’s a child being held, a landlord or landlady being held because they might now something about the movements of their tenants, because they might let them know that the police are on to them and ASIO’s on to them and so on. It means that people can identify very clearly with what happens. And it can happen to you. 


Terry Lane: Perhaps people are not aware of the fact that you do not have to be suspected yourself of any terrorist activity or even of any connections with a terrorist organisation, you only have to be suspected of knowing of another person who has such connections. I’m not sure whether that power exists in any other law, does it? 


John Dowd: Well, I haven’t inspected or read the UK law on which it’s supposed to be based. It may be that they’ve done the same thing there, that they’ve taken such a wide power, but whether it is elsewhere, it’s not in very many countries, and it oughtn’t to be in very many countries. These are not career policemen; because you become a spy, it doesn’t mean you’re there forever. We don’t know what protections there are, what level of person is to authorise this. Over the years we’ve built up procedures whereby a policeman of a certain stage can do something, and it’s got to be at a level of a sergeant and so on. There are no safeguards here. I’m not reflecting on our spy organisations at all, it’s perfectly normal for organisations such as that to take this sort of hysterical atmosphere to extend their powers for what they perceive to be perfectly good reasons. And in no way am I reflecting on them; the reflection is on the government, and I suspect a fairly politically sensitive opposition who will allow such powers to be given against the interests of the citizens they’re elected to protect. 


Terry Lane: What do you reckon would happen if somebody complained about the way they were treated while in ASIO detention? I think it’s true that the ASIO Act itself makes it an offence to disclose the name or identity of any ASIO agent, so presumably you couldn’t complain. 


John Dowd: Yes, I haven’t really contemplated that yet in the present raft of Bills, I haven’t looked at that. But I suspect there are the normal protections that you would get in ASIO-type legislation to prevent you making complaints. But obviously that complaint, if made to a proper authority, would be investigated and there would be a power to investigate such a complaint. But the trouble is, the ordinary citizen isn’t going to know, and the terrible thing about power is, once it is given, it changes the chemistry because the ASIO officer who holds somebody, it’s very easy for them to say “Well look, I’m not going to release you, I don’t have to release you, I can keep you here for X hours unless you tell us this”. Police sometimes abuse such powers, and we have to accept that ASIO, given such powers, particular officers will in fact tend to abuse the powers that are there. 


Terry Lane: Well, one of the dangers in giving the Attorney-General the power to proscribe organisations is that it tends to come down to simply the name of the organisation. Just in case people think that what we’re talking about is something theoretical and improbable, there has already been the case of the Melbourne businessman whose company is called Shining Path who had his bank accounts frozen on order of the Attorney-General. As everybody knows, Shining Path is the name of the Maoist Terrorist organisation in Peru, but the Melbourne businessman in question was carrying on a perfectly innocent business and was having his cheques bounced. So it is already happening, and already producing its own absurdities. 


John Dowd: The Attorney-General will be inevitably a politician. The evidence of the way the federal government has operated in relation to David Hicks, who’s an Australian citizen against whom there is no evidence that’s been published of any offence thus far, yet they refuse to assist him. Now if in fact there were proceedings involving, where an Attorney-General has to make a decision, it’s going to be very easy for an ASIO-type organisation to persuade the Attorney-General that this is what has to be done. 


Terry Lane: In reporting your comments on the ASIO Legislation Amendment Bill you said that it will set an appalling example for the Asia-Pacific region. What did you mean by that? 


John Dowd: It’s a very important point. When places like Burma or any of the other places in the region seek to have extension of powers which are there to be used and abused, it’s going to make it very easy for them to say “Well, we’ve just modelled this on Australian law”. Once you get a model they’ll say, “Well they’re doing it, why shouldn’t we do it?” This means it is a worry for people going to those countries because if we want to say “Shock, horror, that oughtn’t to occur, this Australian citizen ought to be released, and the press are regularly doing that sort of thing”, they’re going to be able to say, “Well, it’s the same power that you’ve got”. And even though we may not use it, and I think it’s likely that most of these powers won’t be used, nevertheless they can be used to justify the most appalling infringements on Australian citizens who may be just going to a country to want to talk to people for human rights purposes, maybe just going about their lawful business. 


Terry Lane: So you’re representing the International Commission of Jurists, who’ll be making a submission to the public hearings? 


John Dowd: Yes, there’ll be a hearing on Wednesday. I’ll probably be overseas then, but Mr Rodney Lewis and other members will be attending to argue the case for the submission, and to ask that members of parliament remember who they’re elected by and not to be carried away with the present hysteria to give away powers that traditionally Australians don’t want given to people such as spy organisations.  


Guests on this program:


Justice John Dowd  

Judge of the Supreme Court of NSW 

President of the Australian Section of the International Commission of Jurists  


Terry Lane  



Peter Browne