The Guardian 2 November, 2005
Beazley backs Howard's police state
As the Howard Government is set to push its new and most draconian attack on democratic rights through the House of Representatives in one day, Labor Leader Kim Beazely has agreed to support them. By doing so, Labor is creating the most dangerous precedent for legislation passing through the Parliament without even being read by MPs, let alone wider public scrutiny, advice or discussion. The Coalition is only giving a Senate inquiry one week to look at the legislation.
The Bills are so draconian that there is not only strong opposition within the ranks of Labor MPs but also within Liberal Party. The Labor State Premiers have assisted in this most despicable and dangerous act which, if carried through, could see Australia well on the path to a police state. We should not hesitate to call this nascent fascism.
Beazley plans to put some amendments, which he declares in advance will be defeated, and has committed Labor to then supporting the Bills. It is a token gesture: in effect an open invitation to Howard to reject the amendments.
The Howard Government can incorporate the objections of the State Governments to the "shoot to kill" provisions with ease. Such powers already are available. The dropping of them from the current legislative onslaught would give Howard the opportunity to appear to be reasonable, democratic and ready to make concessions to community concerns. It also offers the Premiers the appearance of improving the Bills.
If the Government had introduced the new laws, and simply overridden all objections, the public would have been much more likely to see the Bills as potentially fascist. While criticisms from most State Premiers have been blunted, concerns from other quarters are still being raised — and with good reason.
The legislation has the aim of suppressing all dissent, freedom of speech, and gagging all opposition to the government. It paves the way for censorship, torture, disappearances, concentration camps and a massive offensive on Muslims, communists, peace activists, environmentalists, the unemployed, the disabled, trade unions and workers' rights and working conditions. It goes hand in hand with the new industrial relations laws and the planned offensive on recipients of social security benefits.
The Federal and State Governments have whipped up fear and insecurity with massive advertising campaigns, with continual warnings about terrorism while promoting racism and hatred of other peoples and cultures. It has increased the risk of terrorist acts against Australia and Australians through its unquestioning allegiance to the USA and participation in wars in Iraq and Afghanistan.
It then uses this fear and insecurity to argue for the most severe curbs on democratic rights in Australia's history.
The new laws reverse many long-held fundamental rights that lie at the heart of any democracy. These include: the bypassing of judicial processes; arbitrary detention; denial of right to consult lawyer of own choice; the wiping out of the assumption of innocence; the electronic tagging of people; reversal of onus of proof; denial of right to silence; and use of secret evidence.
A constitutional problem
Legal experts have stated that the laws violate the federal constitution's requirement for a separation of the powers of the judiciary and the executive (the higher branches of the government).
Three State Premiers have received advice that the proposed role of judges in authorising preventive detention and control orders could be unconstitutional.
Of major concern is the ability of the police to hold terrorist suspects without charge (under preventive detention orders) for up to 48 hours, and to restrict their movement and activities (under control orders) for up to 12 months, under the new laws.
This could be defined as punishment and therefore unconstitutional, because the suspect has not been charged, tried or convicted of a crime.
Moreover, the detention orders would have to be issued by a judge acting privately on an Attorney General commission.
The NSW Law Society has called on all judges to boycott any involvement in the terror laws, because the government would in effect simply "shop around" to find a judge most sympathetic to its point of view.
And arguably, this aspect could also be unconstitutional, because it would in effect make judges an instrument of the executive, and would violate the constitution's provisions which deal with judges acting in a non-judicial role.
The NSW Council for Civil Liberties and the Judicial Conference of Australia also oppose the bill. Former Family Court chief judge Elizabeth Evatt stated, "These laws are striking at the most fundamental freedoms in our democracy in a most draconian way."
The Government's chief general legal counsellor has already warned that the law could be challenged in the High Court, and even Federal Treasurer Peter Costello has declared that a challenge might be inevitable.
The ASIO police
Last week Malcolm Fraser attacked ASIO's potential to detain possible informants indefinitely and incommunicado, and for ASIO prisoners to face a five-year jail sentence for "unsatisfactory" answers, or for telling anyone about their detention or interrogation.
Gough Whitlam has commented further that "Under the proposed laws Australians can be interned and it's a crime for people to speak to their families and employers about it."
What actually is terrorism?
The Government's attempts to whip up hysteria over the terrorism issue have succeeded in curtailing critical public assessment.
A recent opinion poll has shown that many members of the public have accepted people being detained without charge and under house arrest, as proposed in the Bill. Disturbingly, two thirds approved of seven-year jail terms for people "supporting insurgencies where Australian troops are involved". This could apply to anti-war protests, which under the Bill could be seen as a threat to national security.
However, 60 percent of those polled rejected the "shoot-to-kill" provisions. These results correspond to the position currently taken by most of the State Premiers.
Significantly, the poll discussed "suspected terrorists", and does not appear to have raised the possibility of indefinite and secret detention of potential informants, as proposed under the ASIO legislation.
In a new and sinister move, the government also intends to introduce a new national database, officially with regard to immigration matters, but which would also list "persons of interest" and persons sought by police. Such information would inevitably be made available to ASIO.
The public is entirely unlikely to approve of the appalling terror legislation, which should be defeated in its entirety. As Malcolm Fraser commented: "These are powers whose breadth and arbitrary nature, with lack of judicial oversight, should not exist in any democratic country."