The Guardian 9 March, 2005
Terrorism laws take away your rights
More than 20 federal ASIO and "anti-terrorism" laws have been passed in Australia since September 11, 2001 when the World Trade Centre in New York was destroyed in a terrorist attack. A number of states in Australia have also passed "anti-terrorism" legislation. Dale Mills*, from the Community Legal Centre at the University of Technology in Sydney, said that "the government's case is that the laws apply to 'terrorists'. But the definition of terrorism is so wide, and the powers of ASIO so broad, that it is not just 'terrorists' who have to worry about the laws. It is every Muslim, every activist, and every person who is concerned about civil rights."
Western world leaders claim that September 11 has changed the world and, as a consequence, Australia is at risk of a terrorist attack.
The new laws give ASIO, police and other authorities wide-ranging powers, which could be applied not only to terrorists or would-be terrorists, but to anyone who might possess some information that ASIO or other authorities believe might "assist" them in relation to suspected individuals or groups.
These powers remove many important democratic rights, bypass courts and may be executed in complete secrecy. The penalties for breaches include life imprisonment.
In fact the introduction of these laws began well in advance of September 11, 2001. The government has used the World Trade Centre bombing to justify passing further legislation.
Pre-September 11 agenda
The present "anti-terror" measures can be traced back to the pre-Olympic period, when the Howard government passed legislation (slightly amended but supported by the ALP) to give the military certain powers to be used against civilians when there is a possibility of violence. These powers include giving the military the right to shoot to kill civilians.
The NSW state government also introduced a number of bills increasing police powers, in particular those of private police (security personnel). That was in the lead-up to the 2000 Games in Sydney. Further "temporary" laws were introduced which eroded civil liberties relating to the right to protest around the Sydney Harbour Foreshore. These laws subsequently became permanent and are now in force.
In early 2002, the federal government introduced a number of bills, including the Australian Security Intelligence Organisation Amendment (Terrorism) Bill 2002 (ASIO Terrorism Bill). The ASIO Terrorism Bill was eventually passed in 2003 with the government forced to concede some relatively minor amendments to it to get it through the Senate. It became law on July 22, 2003.
The bill was strongly opposed by civil rights groups, left political parties, some ethnic and religious groups, and sections of the legal fraternity. Opposition to it never gained the momentum necessary to challenge and defeat the bill.
The Bali bombing on October 12, 2002, was also used by the government to defend its pursuit of anti-democratic ASIO and terrorism laws. The government warned Australians that they were at risk of a terrorist attack, and spent millions of dollars on a fear campaign, running television commercials and distributing an anti-terrorism kit (with the infamous fridge magnets) to all households. Just five months later the Howard government committed Australia to the illegal war on Iraq in collaboration with the US and Britain.
As for concrete arguments or evidence as to why Australia might be such a target, nothing was offered — although the World Trade Centre and Bali were often cited. When it was suggested that Australia's role in the war on and occupation of Iraq may have created a real risk of a terrorist attack on Australians or in Australia, the government frantically denied any such link, to the point of gagging the Federal Police Commissioner Mick Keelty when he raised the possibility that Australia faced a bigger risk because of the war.
Objectively, the "war on terrorism" has resulted in the invasion and occupation of two countries, Afghanistan and Iraq. The stated reason for the invasion of Afghanistan was the pursuit and capture of Osama bin Laden, and for the invasion of Iraq that country's alleged possession of "weapons of mass destruction", both of which have been shown to be bogus.
Battery of Bills
The ASIO Terrorism Bill gave ASIO police-state powers. ASIO's official role was intelligence-gathering — collecting and "analysing" information obtained from open sources such as newspapers, combined with gossip, wiretapping and plants in the field. The more powerful parts of the state surveillance and disruption, were usually carried out by the discredited police "special branches".
ASIO has now been drawn into a policing role, with the power to obtain warrants which will allow for the forcible detention and questioning of people who ASIO claims might have information that it wants. ASIO can also demand things (membership lists, diaries, mobile phones) and non-compliance has a maximum penalty of 5 years' imprisonment. ASIO can also tap into people's computers — either internally or from the outside — with a warrant. It may copy, alter, add to or delete data on a computer for the purpose of gathering security information.
Are you a terrorist?
There have been successive amendments to the Criminal Code Act 1995 (Criminal Code) over the past three years. The most significant of these is inclusion of the criminal offence of "terrorism" which is defined for the first time in Australian law. The Criminal Code says that a "terrorist act" occurs when:
1. a person commits an act with the intention to advance a political, ideological or religious cause; and
2. by doing the act they intend to coerce the government or intimidate the public; and
3. the act causes death or serious physical harm to a person, endangers life (other than the life of the person carrying out the action), creates a serious health or safety risk to the public (or a section of the public), causes serious damage to property, or interferes with, disrupts or destroys an electronic system.
In the above Criminal Code definition "government" refers to federal, state, local or foreign. Threatening to do any of these things is also a terrorist act. The maximum penalty is life imprisonment.
The Act states that advocacy, protest, dissent or industrial action is not a terrorist act providing that it is not intended to cause serious physical harm, death, danger to another's life, or a serious health or safety risk.
That does not mean that the charge of terrorism could not be applied to such action. For example, if a serious safety risk or physical harm arises on a picket line or on a protest march to pressure the government on its policies, then it would become a matter of police opinion and legal wrangling on the question of intent.
This could affect individuals or organisations such as trade unions or political parties. It is not difficult to imagine such a scenario which is the result of police or military violence or provocateurs.
There are also related criminal offences for providing or receiving training in relation to terrorist acts, possessing a "thing" (undefined) or making or collecting documents connected with a terrorist act — even if no such act occurs. Preparing a plan for a terrorist act is also a criminal offence (maximum penalty life imprisonment).
Under the Workplace Relations Act, anyone who is convicted of a criminal offence that carries a potential penalty of 12 months or more is banned from holding official union positions for a period of five years from the date of conviction.
The Howard government presently has a list of 18 organisations that are defined as terrorist organisations. These organisations include Al Qaida, Abu Sayyaf Group, Egyptian Islamic Group, Ul-Majahideen, Jemaah Islamiyah, and Islamic Movement of Uzbekistan. The full list can be found at the government website: http://www.nationalsecurity.gov.au
Intent to join, membership of, directing, recruiting for, participation in the activities of, training for a terrorist organisation or supporting financially or in any other way an organisation on the government's list is an offence. The onus of proof is on the individual that he or she did not know it to be a terrorist organisation. Again long prison sentences apply.
In some circumstances, you will break the law if you meet or communicate with a member of a listed terrorist organisation. If you did not know that the organisation was one that had been listed, and your ignorance was not the result of carelessness on your part, this may be a defence. There are a number of circumstances where it is not an offence, such as if the person you associate with is a close family member, you are in a public religious space or receiving certain legal advice.
Funding of organisations
In 2002 new laws came into force which made it a criminal offence to raise money for, or to deal with the assets of, terrorist organisations.
It is against the law to intentionally or recklessly collect funds that will be used to facilitate or engage in a terrorist act. A person can be guilty even if a terrorist act does not occur.
It is also against the law to give money to, or receive money from, a terrorist organisation. Apart from the list of 16 "terrorist" organisations referred to below, there is another much longer list called the Consolidated List. This list has over 500 individuals and organisations on it from around the world, including in Australia.
Membership or political support for an organisation on the Consolidated List is not necessarily illegal. It is, however, illegal to fund such organisations or to deal with their assets.
The Minister for Foreign Affairs can add any person or organisation to the Consolidated List where the Minister is satisfied that the person or organisation is associated with terrorism. The complete list is kept up to date on the Department of Foreign Affairs and Trade website: http://www.dfat.gov.au
Dale Mills told The Guardian, "There is so much wrong with the legislation it is difficult to know where to start. Some commentators have argued that better safeguards need to be in place, that the definition of terrorism is too broad, and so on. Other commentators have adopted the position that the legislation needs to be totally overturned.
"It was already illegal to fly planes into tall buildings, set off bombs, or plan to blow up a building before the new laws were introduced. Why, then, the new laws? Some would say that the new laws have not been introduced to make otherwise legal behaviour illegal, but it is to make it easier for the government to exercise its discretion as to when and whom to charge, and then framing the law in such a way that once a charge is brought, conviction is almost a certainty. Giving executive government the power to incarcerate individuals in this way sits very uncomfortably with traditional notions of the rule of law."
Dale Mills said, "The breadth of the law is such that it is easy for innocent people to be found guilty of offences. If an ASIO compulsory questioning warrant exists, you can be asked to provide the membership list of the party that you belong to. If you don't, you can get five years. But what if you don't have such a list in the first place?
"Well, in order to not get the five years, it is up to you to prove on the balance of probabilities that you don't have the list. But how can you possibly prove that? It's virtually impossible."
*Dale Mills researched for the information kit, Be Informed: ASIO and Terrorism laws, which has just been published by the Community Law Centre at the University of Technology, Sydney. PDF copies of the information kit can be found at http://www.civilrightsnetwork.org