On June 26, the Australian federal parliament passed the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (ASIO Bill). This bill, introduced by the right wing Liberal government of John Howard, marks the end of some of the most basic civil liberties that until now were considered undeniable in liberal capitalist democracies. The new laws are completely without precedent in peace time, and arguably make Australian security laws the most repressive in the Western world.
Greg Bradshaw, Australian Section of the CWI, looks at the recently introduced Australian Terrorism Bill and the new powers of Australia’s spy agency. CWI online.
Howard’s government launches huge attack on civil liberties
Under the new laws, people can be detained who are not suspected of being involved in any crime. You do not have to have committed, be committing or be suspected of any involvement in a terrorist incident. The suggestion that the suspect has passively acquired information will be enough.
Australians could be held under the ASIO Bill, not because they have engaged in terrorism or are likely to do so, but because they may (as Attorney General Daryl Williams said on 20 March), “substantially assist the collection of intelligence that is important in relation to a terrorism offence”.
This would affect lawyers assisting a client, journalists working on a story, GPs listening to their patients, priests in the confessional, teachers going about their work, people using the Internet and, of course, political activists.
Nicole Bieske from Amnesty International also pointed out that innocent people could be detained simply for being near a terrorist suspect in a restaurant. She noted, “Somebody next to you, at the next table, is being surveyed by ASIO. You get picked up the next day because ASIO suspects you may have overheard something, and you can be detained for seven days.”
However, after the warrant expires another can be issued, and another, continuing the detention indefinitely. The original proposal by the Liberal Party was for rolling two-day detention periods. But the Australian Labour Party agreed that it could be up to a week- on the condition that a new warrant would be granted.
Essentially, the fundamental legal principle of habeas corpus, or freedom from arbitrary detention, is gone.
While in the custody of ASIO, you can be denied access to your family and friends, and they need not know that you have been detained. ASIO is not obliged to let anyone know of your whereabouts, or even that you are safe from harm.
Those detained can be given a full strip search, which, for the first time, can be conducted by a member of the opposite sex, “if practicable”.
The automatic right to a lawyer during detention has also been revoked. A person is allowed access to a lawyer, can if they the lawyer has passed a security check (at the discretion of the same people who requested the suspect’s detention). The detainee can be moved to another location for being “disruptive”.
As the Victorian Law Institute President, Bill O’Shea, explained to a Melbourne press conference, “Even if ASIO approves the lawyer, he or she can only provide advice between eight-hour questioning blocks and not while the questioning is going on. In addition, ASIO has no obligation to inform the arrested person of the grounds on which they are being detained, so it will be very difficult for a lawyer to object to the detention.”
Arrested have to prove their innocence
The new law demands you answer ASIO’s questions. Saying “no comment” is no longer an option – the right to silence is gone. Failure to answer incurs a maximum penalty of five years’ prison. The burden of proof has been reversed; those arrested must prove their innocence.
If ASIO alleges the detainee has information or material, the onus is on the detainee to prove they do not. Essentially, you are guilty until proven innocent. According to Justice Minister Chris Ellison, this merely reverses an “evidentiary burden”, not the onus of proving guilt. But the burden is always one of evidence.
This overturns the basic protection against police frame-up. The right to protection against self-incrimination has been abolished; enabling unlimited interrogations until an admission is made. Furthermore, there are no rules for the interrogation of detainees. Will torture be used? Presumably, not officially but there is a marked absence of information regarding the issue in the Bill.
Children are not exempt from the ASIO, and as such, the United Nations Convention on the Rights of the Child has been completely ignored.
On this issue, the Victorian Law Institute slammed the ASIO, “Detaining children between the ages of 16 and 18 years for up to 7 days on suspicion of committing an offence with no right to silence, limited access to a lawyer and no presumption of innocence is totally unacceptable and a breach of the human rights of children.”
Unbelievably, it was originally proposed that the new legislation should even apply to 10 year olds.
Judges will grant the initial warrants and some of them will be more inclined to do so than others. But given that the information presented to the judge is only from ASIO, and you do not have the right to be represented or to cross-examine evidence, it is not clear how the judge could do anything but grant the warrant.
There is no legal redress. Arrested people do however have the right to write a letter of complaint to the Director General of Security (the person who originally requested the warrant).
The new ASIO powers are beyond any existing legal boundaries- they are supra federal. Under general law, if a person is suspected of being involved in terrorist activity they can be arrested by the police, questioned, charged and, if decided guilty, convicted.
This act challenges the legal and political structures designed to prevent autocratic government. The ‘Separation of Powers’ constitutionally demands that the courts (the Judiciary) should decide on a person’s detention, not the parliament (the Legislative).
ASIO will be given police powers. ASIO is a covert intelligence-gathering agency, not a law enforcement body, and with these new powers it changes from a spy agency to becoming the first Australian secret police force.
One last minute government amendment, Section 34JB, permits police officers to use, “such force as is necessary and reasonable” to break into premises and in taking people into custody. This clause gives police the power to kill or cause ‘grievous bodily harm’ as long as they believe it necessary to protect themselves.
ASIO already had every conceivable power it could want to detect terrorists, including powers to raid homes and offices, place bugging devices, tap phones, intercept mail, hack into computers, infiltrate organisations and inspect postal articles.
The new laws, for all its repressive aspects, puts in place no new measures to stop terrorists. Federal law has existed for decades to detain, arrest and prosecute terrorists.
The new ASIO laws allow for the indefinite detention without trial of foreigners and Australian citizens alike.
The definition of terrorism inserted into the Criminal Code last year, via Howard’s package of sweeping “counter terrorism” laws, covers anyone, “with the intention of advancing a political, religious or ideological cause”. It is so broad that it would cover union pickets and strikes, civil disobedience by peace groups, anti-globalisation blockades and similar activities.
The Attorney General will be able to ban organisations, “likely to endanger, the security or integrity of the Commonwealth or another country”. Before voting in favour of the Bill, the politician Bob Brown gave the example of his involvement with the Franklin River blockade of 1982. This saw the Fraser government call for the army to be used against what it described as a “security threat” to infrastructure in Tasmania.
Bob Brown mocked, “Is the Wilderness Society going to be listed as a threatening group?”
But it is no joke. Members and those ‘assisting’ a banned organisation may be sentenced to 25 years jail.
Under the new law, Australia’s Attorney General can authorise legal hacking into private computer systems, as well as copying or altering data, as long as he has reasonable cause to believe it is relevant to a “security matter”.
In addition, the new law could introduce tricky new issues into legal cases. The Victorian Law Institute noted, “It opens to question all computer evidence if there’s been the potential for legalised tampering of it. Computer evidence already poses problems of validation, and that’s before you even open up these legal avenues of tampering.”
“Not out of place in Pinochet’s Chile”
A representative of Attorney General Daryl Williams stated, “This just brings ASIO’s powers in line with new technologies. It doesn’t give them increased powers at all.”
However one of Australia’s leading constitutional academics, Professor George Williams, of the University of New South Wales, described the act as, “a law that would not be out of place in former dictatorships such as General Pinochet’s Chile”.
The potential for political harassment and victimisation is vast. The new legislation attacks democratic rights and criminalises militant unionism, direct action by social movements and other social dissent. And these laws will be used to further harass and intimidate the Islamic and Arab communities and other minorities in Australia.
A ‘sunset clause’ amendment was however agreed to by the government; the law must be renewed in three years’ time. Before that, it is possible the laws may face a constitutional challenge in the High Court. The draconian legislation breaches the separation of powers in conferring a power on the government to detain Australian citizens who have not committed an offence. This argument is sufficiently strong that a High Court challenge is probable in the event of a detention (assuming there is knowledge of the detention).
The High Court famously refused to allow the banning of the Communist Party in the early 1950s, saying that the laws were too extreme even while Australian troops were fighting communist forces in Korea.
However, as has been shown in the parliament, the institutions of capitalism cannot be relied upon to defend democratic rights. The parliament, the courts, the law enforcement agencies, or even international forums such as the United Nations have shown their class bias many times.
The passing of the Bill has been hailed as, “a triumph of the Senate and joint parliamentary committee process” by all parties in parliament. But nothing could more clearly express the conflict of interests between parliamentarians and working class people.
Socialists demand the immediate scrapping of this new legislation and all repressive and racist legislation.
To defeat such repressive laws, working people must win the victory on the streets, through mass united struggle, to replace the system entirely.
We should follow the spirit of the pioneers of the Australian labour movement; “We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties” (Eureka Rebellion Oath, 1854).
This is an edited version of an article by Greg Bradshaw from the latest issue of The Socialist, paper of the Socialist Party in Australia (CWI affiliate).