The Guardian 2 November, 2005

Proposed anti-terrorism laws

Dale Mills

The Council of Australian Governments (COAG) met on September 27, 2005 to agree draft anti- terrorism legislation. What was to be the law of Australia was provided in confidence to the State Premiers who, in turn, agreed to keep its contents secret. Then, just before Federal Parliament adjourned, the government said that the Legal and Constitutional Legislation Committee would have one day to review the legislation or to conduct public hearings. This was too much for ACT Chief Minister Jon Stanhope, who then put the draft legislation up on his website.

The secrecy surrounding the proposed legislation is in stark contrast to other legislation, whether surrounding national security or otherwise. Previous ASIO and anti-terrorism legislation has been subject to much closer scrutiny by Parliamentary Committees and public hearings to take evidence have been held.

The draft legislation that was agreed by the Federal Government and Sate Premiers, the Anti- terrorism Bill (2005), consists of over 100 pages.

New sedition laws

Many countries have some sort of sedition law. In industrialised countries, laws of sedition are balanced with a Human Rights Act or some such equivalent. Lacking this legal counter-balance makes any sedition laws in Australia extremely harsh and prone to abuse. Sedition is an ancient law dating back to at least Elizabeth I. It was put into statute form in Australia by the federal Crimes Act 1914, and the offence of sedition still exists in the Act, along with sections on treachery, sabotage and mutiny.

The old law of sedition had been left to gather dust but it has now been brushed off by the Howard Government and made harsher.

The proposed law in relation to sedition is one defined, in part, as:

  • bringing the Sovereign [Queen Elizabeth] into hatred or contempt

  • urging another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in Australia

  • to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the country.

    The maximum penalty for sedition is being increased from the present maximum of three years imprisonment to seven years imprisonment.

    There are further offences which are similarly wide, and where abuse can be easily imagined.

    These offences include where any person urges another:

  • to overthrow, by force or violence, the Australian Government or government of any State or Territory (maximum penalty 7 years)

  • to interfere by force or violence with parliamentary elections (7 years)

  • to engage in conduct that intends to assist, by any means whatever, an organisation or country that is at war with Australia — whether formally declared or not (7 years)

  • to engage in conduct to assist, by any means whatever, an organisation or country engaged in armed hostilities against the Australian Defence Force (7 years).

    Remember, these offences are not for carrying out acts, but just for "urging" another person to do so.

    One offence, which is very widely defined, is to urge a (racial, religious, national or political) group to use force or violence against another (racial, religious, national or political) group, such as to threaten the peace, order and good government of Australia (7 years).

    This replaces and changes the current 1914 Crimes Act, with its antiquated wording, where it is an offence "to promote feelings of ill-will and hostility between different classes of Her Majesty's subjects…"

    A common element with many of these offences is that it is not necessary to show that a person "intended" to urge others, but only that they were "reckless" in urging others — a much easier way to convict someone.

    There is also a "good faith" defence to many of these offences, but there isn't much detail as to how "good faith" will work out in practice. Good faith does, however, include pointing out "any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different groups, in order to bring about the removal of those matters" — a narrow defence.

    Another "good faith" defence includes doing "anything in good faith in connection with an industrial dispute or an industrial matter". This suggests that industrial disputes or industrial matters may be labelled seditious, where there is an absence of "good faith".

    Proceedings may only be commenced in relation to sedition with the Attorney-General's written consent. (At present that is Phillip Ruddock, the Minister who oversaw the illegal detention and abuse of asylum seekers and innocent Australian citizens in subhuman conditions.) With the offences so broadly worded, anyone charged is virtually guaranteed a conviction. The requirement of the Attorney-General's written consent, therefore, essentially shifts power from the courts to executive government, so that it is effectively the government that can pick off individuals its doesn't like. It only needs to bring a prosecution (on the advice of ASIO?) and conviction almost automatically results.

    In practice

    The sedition laws could apply to anyone: anti-war protestors, trade unionists, communists, progressive religious groups, religious fundamentalists, shock jocks, journalists, republicans bringing the Sovereign into contempt. If used against everyone, it is a charter for crushing dissent. If used to target Muslims only, it is a weapon to criminalise and terrify a specific ethnic and religious group. Australian Muslims will be added to Indigenous Australians as a group targeted for special treatment by the Australian Government.

    It would be wrong to think that the government is alienating the Muslim community simply because the government is stupid or incompetent or out of touch. It knows exactly what it is doing. The reason it is doing this, of course, is that it is helpful to the government to have a Muslim population living in fear, increasingly isolated, and regarded by suspicion by non-Muslim Australians.

    The demonisation of a section of the Australian population is an easy solution where it makes the war on Iraq and increasing assistance to the US war on terror electorally easier. If you don't think the government is that cynical or ruthless, just think children overboard, compulsory immigration detention, David Hicks or SIEV-X.

    Control Orders

    Control orders can be made against any individual. You don't have to be a suspect, but just a person whose control will probably "substantially assist in preventing a terrorist act". If there were enough evidence to bring a charge, then Control Orders would not be relevant (you would simply be arrested and remanded in prison till trial).

    The person that a Control Order is made against will not have any idea that the application is being made. It won't be possible to brief a lawyer to oppose the making of the order.

    The Control Order may last for 12 months (3 months for 16-18 year-olds). It can order specific measures in order to "control" you. According to schedule 4 of the Act, these include:

  • that you remain at specified premises between specified times each day, or on specified days (eg, house arrest)

  • a requirement that you wear a tracking device (the high tech equivalent of a tattooed number on your arm or shackles)

  • that you are banned from communicating or associating with specified individuals (including specified lawyers or journalists, or all known friends and relatives)

  • banned from using specified forms of telecommunication or other technology (eg, banned from using the phone, or the internet)

  • a requirement that you report to specified persons at specified times and places.

    After the first 12 months, another 12 months Order can be issued, and so on, so that detaining a person for years without charge or trial would be perfectly legal. Breaching the Control Order carries a five years penalty.

    The public will never know how many people are under house arrest except by the annual report to Parliament, where only the number of people will be given.

    Preventative Detention Orders

    Preventative Detention Orders are also designed for those against whom there is no evidence or not enough evidence to bring a charge. It allows for a person to be picked off the streets and detained for 14 days where authorities suspect that it will prevent a terrorist act within the next 14 days or to preserve evidence.

    If interned under a Preventative Detention Order, you can only ring your family or employer to say that you are safe. Telling them that you have been detained by the Australian Federal Police or telling them anything else would be a criminal offence.

    The existence of Preventative Detention Orders is probably very close to what most people have in mind when they think of a "police state". The initial order (for 24 hours) is not made by a judge but by a police officer (Police Superintendent or above). After that, the police obtain another order from a Judge acting in a personal capacity. Some Judges may be more willing to grant these than others – the police will soon find out. As the Judge is acting in a personal capacity, there is no right of appeal. This is so close to bringing the judge to act in a way incompatible with his or her status that the legislation might be ruled invalid if it got to the High Court. By then, of course, it would be too late.

    In any event, it is not constitutionally clear whether the federal government has the power to allow for the making of Preventative Detention Orders for more than 48 hours. That is why the State Labor leaders have come to Howard's rescue, agreeing to change State laws to allow for 14 days detention.

    Shoot to kill

    Sections in the proposed legislation allow a police officer to shoot to kill in some circumstances. Although rightly greeted with surprise by some corporate media commentators, the sections substantially spell out what is already the law.

    The proposed section 105.23 says that an Australian Federal Police officer may use force to prevent a person fleeing if that person has a Preventative Detention Order made out against them and if the person has refused to give himself or herself up and the police officer believes on reasonable grounds that using force is necessary to protect life or to prevent serious injury to another person. The force that can be used includes deadly force.

    In reality, every police officer might suspect that every person against whom a Preventative Detention Order has been made is a danger to others. Once the order has been made, therefore, the police officer effectively holds in his hand legal authority to detain a person or, if the person runs away, a licence to kill. So under this section, a situation such as occurred to De Menezes when he was shot dead at point blank range while sitting and reading a newspaper on the London underground in July is entirely possible on a train or tram in Sydney, Melbourne or Adelaide. Providing, of course, that the police officer believes on reasonable grounds that it was necessary.

    The war on Iraq has seen tens or hundreds of thousands of people attacked at the hands of US, UK and Australian forces. Without making light of the suffering of the Iraqi people, Muslims in Australia are a target of that war as well, although obviously not in the same harrowing way. Another target, the one that the proposed laws are designed to attack, are Australian civil liberties, anti-war protestors and dissenters, including communists and trade unionists, who have taken their stand against war and racism.

    Note: as we go to press, an altered version of the proposed Terrorism Act 2005 is in circulation among the Premiers, but this is being withheld from the Australian public till it is introduced in the Parliament.

    Dale Mills is a volunteer with the Civil Rights Network and writes in a personal capacity. He has a Diploma In Labour Studies and Industrial Relations from Westminster University, London, graduated in law and political sciences from Cambridge University, is a former Fellow of the Institute of Legal Executives (Eng.), was the principal researcher for Be Informed: ASIO and Anti- Terrorism Laws, and is currently a student at the Law Faculty, University of Technology, Sydney.

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