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Thursday, 12 August 2004
Page: 26473


Senator NETTLE (11:36 AM) —In the hour since we found out that the Anti-terrorism Bill (No. 3) 2004 and the Anti-terrorism Bill (No. 2) 2004 were to be debated now—and I was going to take responsibility for the legislation for the Australian Greens—I have been reading a number of speeches made by government members about the legislation. I have been reading about the concerns of Mr Georgiou in the House of Representatives and Senator Brandis and Senator Mason in the Senate. I have been reading about the concerns that Mr Georgiou had about the guilt by association components of the Anti-terrorism Bill (No. 2) 2004 and how the provisions go further than what was originally proposed by the government after September 11.

In his speech on the second reading of this legislation in the House of Representatives, Mr Georgiou listed a number of different examples of people who would be caught under the legislation and went through four different scenarios. He went through a scenario about a journalist who is writing about a terrorist organisation—and who is thereby associating with that organisation—and who makes more than one phone call to that organisation being jailed for three years as a result of the legislation that is proposed. He also talked about an example where a community leader appears at a meeting next to a terrorist leader or somebody who is defined as a terrorist leader. Under the legislation this could be defined as helping the organisation or supporting the organisation, and therefore such a person would be liable for three years in jail despite the fact that they merely shared a platform with the individual concerned. He went on to list examples about an uncle, a schoolteacher, a caterer or a person who rents a hall to a member of a terrorist organisation. He talked about religious leaders, social workers and lawyers also being caught by the legislation. He also raised the same concerns that Senator Greig raised about exemptions relating only to direct family members and not including uncles, aunts, nephews, nieces, mothers-in-law or fathers-in-law but including people who are part of a same-sex couple.

It is interesting to read through the concerns put on the record by Mr Georgiou and also the concerns that Senator Brandis and Senator Mason raised during the debate in the committee stage of this bill. There are components of the committee hearings where Senator Brandis is talking about the wide definition of terrorism that exists in laws we currently have around terrorism, and there is also discussion between witnesses and Senator Mason and Senator Brandis about organisations. The examples that they give are branches of the Greens, the Labor Party or the Liberal Party who have given financial support to organisations such as Fretlin being caught under this legislation if this legislation had come in before we saw the independence of East Timor. There is clearly a large amount of opposition to these bills, not just on this side of the chamber but also from government members.

Let me go to the detail of what is in the Anti-terrorism Bill (No. 2) 2004. The bill introduces a new offence of associating with a person linked to a terrorist organisation. It allows the Attorney-General to transfer convicted and remand prisoners to another state in the interests of security. Australia already has far-reaching antiterrorism laws. The Commonwealth Criminal Code criminalises such acts as being a member—even an informal member—of an organisation that the government prescribes as a terrorist organisation. Now, the bill proposes to make it an offence to even associate or communicate with people connected to such organisations. This will disproportionately infringe freedom of association and imposes guilt by association. Furthermore, the offence depends on the exercise of executive discretion in declaring an organisation to be a terrorist organisation under the Criminal Code; this is an exercise of discretion which is itself based on an overly broad existing definition of terrorism.

As a result, the police and the government have very broad discretion on how the law is applied, and it is of grave concern that it may be selectively exercised. For example, there is already evidence that antiterrorism laws have been selectively applied to Muslim members of the community. In other areas of the law, selective application is regarded as objectionable and undesirable, so why should it be allowed in this case? What is particularly alarming is the combined effect of this amendment and the newly introduced bail provisions—which were supported through this parliament by both major parties—where a person charged will be granted bail only in exceptional circumstances. A person could very easily be charged and locked up in jail on the thinnest of evidence even before it is tested in a court of law. This means a person could end up being in jail for doing nothing more than phoning somebody twice, even if he or she is later found to be innocent.

Other issues raised in the bill include the minister's decision to transfer prisoners not being open to judicial review. Limits are also placed on the Administrative Appeals Tribunal's ability to review decisions of the minister if he or she issues a certificate in relation to a decision to seize a person's passport. Fundamental to the concept of democratic government is the fact that all administrative decisions must be reviewable in order to instil and ensure public confidence.

Some of the provisions that are outlined in the Anti-terrorism Bill (No. 3) 2004 relate to a person's passport. They grant the authorities the power to prevent people from leaving Australia even before an ASIO warrant has been issued against them. They grant to authorities the power to seize foreign passports from suspects. Existing laws already give ASIO more powers than an intelligence-gathering agency should have, in the view of the Greens. ASIO will be given further powers to seize a person's passport even before a warrant has been issued against them. ASIO's role is to gather intelligence, not to have the unconstrained power to be able to prevent a person from leaving a country simply by making a request for a warrant to be issued for that person's questioning or detention. ASIO's functions and operations are not easily open to scrutiny, which makes the vesting in ASIO of this sort of power particularly dangerous and open to abuse. Concerns have also been raised by the Human Rights and Equal Opportunity Commission about giving ASIO the power to seize foreign passports from suspects, as in schedule 1 of the Anti-terrorism Bill (No. 3) 2004. These concerns relate to the impact on everybody's right to freedom of movement, particularly that of asylum seekers. Asylum seekers may face criminal penalties for using false travel documents to seek asylum.

The war on terrorism has ushered in some of the most significant changes to our civil and political rights since the beginning of the last century. In some cases, important principles of law hundreds of years old and designed to protect the innocent have been swept aside. Rights such as the right to a lawyer, a fair and open trial, to be innocent until proven guilty and to avoid detention without charge or trial are all under threat. Terrorism is a real threat, but removing civil rights not only will undermine our democracy but also can contribute to even greater hostility, which fuels support for terrorism. Like Western policies in the Middle East and Central Asia which are driving support for terrorism, repressive domestic laws risk intensifying the conflict and undermine the very freedoms which our leaders purport to be protecting.

Terrorism will never be prevented through military means or undermining democracy and removing civil rights. This is something the government clearly does not understand, despite the mess in Iraq which it helped create. The Minister for Foreign Affairs, Alexander Downer, recently gave a speech on the government's white paper on terrorism in which he highlighted again the myopic vision of this government when he claimed that there are no `root causes' of terrorism. Of course there are underlying causes as to why there is support for organisations such as al-Qaeda. We know what some of these are. They are the Israel-Palestine conflict, the US strategic energy policies in the Gulf backing authoritarian regimes, and now, of course, the illegal invasion of Iraq. To deny these not only denies reality but condemns us all to an endless cycle of conflict that could last, as Mr Downer has said, as long as the Cold War.

Since September 11, the federal government has passed almost 30 separate pieces of terrorism legislation. The government now has the power to ban organisations. A raft of new offences have been created based on the broad and subjective definition of terrorism. ASIO and the police have been given extensive new powers to detain and question people without charge. And new powers have been put in place to freeze and confiscate assets. This is a global problem, with security agencies in the United States and Europe also grabbing more unaccountable power. Many national liberation movements have been criminalised, and in countries like China and Indonesia past repressive policies are gaining new legitimacy as part of the war on terrorism. The most notorious example of this global problem is the detention without charge or trial of the people being held at Guantanamo Bay. The Howard government, through its terrorism legislation, has backed President Bush's prison camp and his kangaroo courts, the military commissions. The opposition has backed the government at almost every step down this road. Despite widespread opposition from community and legal groups, both major parties have refused to protect human rights and civil liberties. Like the law and order auction that occurs at a state level, we see both the major parties competing to be tough on terrorism, following each change with a plan for another.

There are, of course, more bills in the running, not just the two bills that we have before us. The National Security Information (Criminal Proceedings) Bill 2004 will allow secret evidence to be used in trials for terrorism offences. The Human Rights and Equal Opportunity Commission has recently found that the Muslim, Arab and Asian communities in Australia have been experiencing growing racism and discrimination since September 11. In part, this is caused by the government's refugee and terrorism policies. In fact, the fear that new terrorism laws will be used for racial profiling is a part of the problem. Communities have responded in different ways to this. One example is the establishment of the Australian Muslim Civil Rights Advocacy Network. A brochure which they produced was launched in Sydney during the hearings into this legislation. The Terrorism laws: ASIO, police and you guide provides useful information to the community and is a positive response that that community has made to try to explain what will be the impacts on Muslim communities of the legislation that is being proposed.

I want to read out some comments that have been made by Joo-Cheong Tham, who is an associate law lecturer at La Trobe University and has appeared as a witness before the inquiry into this and other terrorism legislation put by the government. He says in an article that he wrote:

Two and half years after September 11, it is clear that the Coalition government has developed a distinctive modus operandi when proposing new anti-terrorism laws. Its formula rests on five key strategies.

First, capitalise on terrorist incidents by proposing new anti-terrorism measures in the wake of such events and justifying them on the basis of being `tough on terror'. So a raft of anti-terror legislation was proposed shortly after the September 11 attacks. Similarly, the Brigitte affair prompted far-reaching offences which have the effect of cloaking much of ASIO's activities in secrecy. The Madrid bombings provide the justification for the latest tranche of changes.

The second key strategy of the government that he identifies is:

... propose changes which have nothing or very little to do with these terrorist incidents. It is hard, for example, to see the link between the Brigitte affair and making secret the exercise of ASIO's powers to compulsorily question and detain without trial when these powers could but were not used against Willie Brigitte. What the proposal to ban persons who have trained with terrorist organisations from publishing their memoirs has to do with the Madrid bombings is equally a mystery.

The third strategy he identifies is:

... fetishise proposed anti-terrorism measures by depicting them as imperative in the `War on Terror'. Imply that failure to adopt such measures will mean, in the extreme case, the murder of innocents. Insinuate that those who fail to support such measures are, at best, unintentional allies of terrorists. In December 2002, for instance, the Coalition government strongly hinted that the ALP's delay in supporting a detention without trial regime would result in further terrorist attacks and that blood would be on the ALP's hands if these attacks occurred in the ensuing summer.

The fourth strategy he identifies is:

... ignore the existing panoply—

or raft—

of anti-terrorism powers. Imply that measures are needed because a gap exists. Hence, the present proposal to extend the detention/interrogation time of persons suspected of `terrorism' offences to 24 hours is made without any public acknowledgment of ASIO's extensive powers. These are powers which can result in a person not suspected of any criminal wrongdoing being detained incommunicado for rolling periods of seven-days and interrogated for up to 24 hours with no right to silence and only a heavily circumscribed right to legal representation.

The fifth strategy he identifies is:

... pretend that the proposals only target persons engaged in extreme acts of political/religious violence. Ignore the fact that the proposals and current laws impose guilt by association by making illegal conduct peripherally connected with acts like bombing and hijackings. Obscure the fact that these laws draw in their net certain acts of industrial action and political activity.

The current proposal—

this is one that has now gone through parliament—

to extend the detention/interrogation period, for example, is portrayed as if it only targeted terrorist suspects when it, in fact, catches persons suspected of committing a `terrorism' offence; an offence that can be committed merely by possessing a thing related to a `terrorist act'. `Terrorist act', in turn, embraces certain acts of industrial action. Thus, a person holding a leaflet promoting picketing by nurses is, arguably, committing a `terrorism' offence.

We have, in sum, a formula based on opportunism, exaggerations and misrepresentations. It is these elements that lend substance to the charge that the Coalition government is exploiting the real fears that the Australian public has of terrorism and taking advantage of community perception that it is better at handling security issues than the ALP—

or anybody else—

It is this formula that makes up the politics of fear in the `War on Terror'.

Such politics might prove to be an electoral winner for the Coalition but there will be clear losers. The health of Australia's democracy will be eroded by the acidic effect of fear and misrepresentations. Laws that trench upon established rights and liberties and do very little in preventing extreme acts of political violence will be on the statute books—

and they are appearing on the statute books—

Most of all, there will be the sharp irony of Australians being no less safe from extreme acts of political violence but, in fact, all the more vulnerable to the arbitrary state power.