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When Terrorism Outlaws Democracy

Australians lose rights for ten years, says Wanda Fish

Image: thanks to Nicholson cartoons

In the past year, ASIO made 44,000 assessments of 'persons who are potential security risks'.

ASIO's well-documented history of keeping files on peace activists, trade unionists, and Labor MPs suggests that a few thousand assessments would include people who have expressed strong views opposing Government policies."

When Terrorism Outlaws Democracy

by Wanda Fish
Axis of Logic
found at UrukNet
October 4, 2005

On September 27, 2005, Australian democracy surrendered to terrorism. On that day, a coalition of willing federal and state leaders agreed to anti-terrorism legislation that will enable police persecution of the Muslim community and threaten dissidents with imprisonment. In a country without a Bill of Rights, the prospect of more draconian Terror Laws delivers ultimate control through fear. Australia, with its history of penal colonies, racism and detention centers, is now set to become a police state.

When Prime Minister Howard announced that he would meet with the State premiers about the need for harsher counter-terrorism measures, Labor state leaders were critical of the proposal and called the proposed laws 'totalitarian'. The secret briefing, given by ASIO, the Australian Security and Intelligence Organisation, had the desired impact. Within two hours, the Premiers had agreed to surrender our democratic rights to fight a subjective noun, terrorism. Assuming the state leaders were bribed with the promise of increased funding for their police forces, all Premiers agreed enthusiastically to use their own police to search, control, and detain 'terror suspects'. The agreement gave John Howard the ability to circumvent the Australian constitution and enable detention of citizens for up two weeks without charge. ASIO's reach into the community multiplies by 30 when state police began to operate as secret police. Australians, who have lost basic rights in the closed-door meeting, are expected to 'trust' that the Howard Government is protecting them from an invisible enemy in the American war on terror. The one concession gained by state leaders was a ten-year sunset clause on the new Terror Laws. This means citizens will only have a decade of surveillance, control orders, preventative detention, and thought police.

The new 'regime' of tougher laws that John Howard presented [i] has alarmed Australian Muslims, journalists, peace activists, and dissidents who fear they will be victimized by ASIO raids and 'fishing expeditions'. Protestors may be subjected to more police harassment, surveillance, and detention without charge. It will become a crime to 'incite' violence against the community, or against Australia's forces overseas who fight in an unpopular war. It will also be a crime to communicate messages that 'support' Australia's enemies'. The new crimes carry seven-year prison terms. Moreover the laws shift from a presumption of innocence to presumption of guilt. Writers and activists will have to prove that their articles or speeches did not 'incite violence. Understandably, civil libertarians, constitutional lawyers, Muslims, journalists, and anti-war campaigners are worried.

With the devil in the detail, it is important to be both alert and alarmed [ii] about John Howard's and the State Premiers' twelve-step plan to totalitarianism:

1. Control orders: 'People who pose a terrorist risk' will have year-long control orders placed on them. Tracking devices, travel restrictions, and 'association restrictions' are included. While the Government has argued that similar control orders already exist with Apprehended Violence Orders (AVO), legal critics have pointed out that the new terror control orders are significantly more restrictive and can be imposed with no public accountability because of secrecy restrictions that hide ASIO's activities from public scrutiny.

2. Preventative detention: 'suspects' can be detained for up to two weeks without charge. This step by-passes the judicial system and would have been unconstitutional if enforced by the Australian Federal Police. State police will be able to detain 'suspects' who might have information or might be intending to commit a terrorist act. Less than 2,000 Federal Police will no longer limit ASIO's invasiveness. The intelligence organisation will be able to use 45,000 police from the states and territories to detain suspects for up to two weeks without charge. This extraordinary power runs the risk of being used in criminal cases and the harassment of activists and protest leaders.

3. Notice to produce: The AFP may request and obtain virtually any information on any citizen under the banner of 'national security'.

4. Access to passenger information: Provide access to airline passenger information for ASIO and the AFP. If John Howard follows the American example, Australians can expect 'no-fly' lists that will be used to disrupt the activities and restrict travel options for known activists and dissidents.

5. Extensive stop, search and question powers: Federal police will have the power to stop, search and question any citizen whom they believe 'might have just committed, might be committing, or might be about to commit a terrorism offense'. The subjective judgment of police will determine what someone might be thinking of doing. The loose definition of terrorism makes this particular power easy to abuse.

6. Extending search and interrogation powers to state police at transport hubs: People at bus stops, taxi ranks, railway stations, and airports can and will be subjected to random searches and the subjective judgment of police.

7. ASIO warrants regime: ASIO search warrants will be extended from 28 days to three months, while mail and delivery service warrants extend from 90 days to six months. Moreover, ASIO will be able to remove and keep anything they take from premises that have been searched ' for as long as needed' for purposes of security. Organisations opposing the Government on issues such as industrial relations or student rights are aware of the potential for this power to be used to spy on them, disrupt activity and remove records. Lawyers have argued that the extended warrants enable ASIO to go on 'fishing expeditions' that will see innocent Australians being watched.

8. Create new offences: The existing sedition offence will be scrapped, and replaced with the broader, new crime of 'inciting violence against the community'. Journalists and internet writers who 'communicate inciting messages directed against Australia's forces overseas and groups who 'support Australia's enemies' could face up to seven years in prison. The new warrants regime combined with ASIO's unfettered access to private emails, computer searches, on-line forums, may impact on cyber-journalism's resolve to report the truth.

9. Strengthen offences for financing terrorism or providing false or misleading information under an ASIO questioning warrant. The right to remain silent is removed, and anyone refusing to answer questions can be imprisoned. Former Liberal Prime Minister, Malcolm Fraser, publicly opposed this regime when he spoke at a symposium addressing global leaderships and ethics, 'The legislation is contrary to the Rule of Law. It is contrary to Due Process, to Habeas Corpus, to the basic rights which we have come to understand are central to a free and open society.' [iii]

Lawyers have also asked what 'strengthens' means in relation to financing terrorism, given that under the Criminal Code this offense already incurs life imprisonment.

10. Criteria for listing terrorist organizations will be extended. Organisations that 'advocate terrorism' can be banned. Community lawyers, policy workers, advocates and legal academics have argued [iv] that 'the extension of the unprecedented powers to ban terrorist organisations ... poses the danger that many organisations that publicly support independence movements like Fretilin and the ANC will be vulnerable to proscription.' The potential for this list to grow to include organizations that oppose the Government is self-evident.

11. Citizenship: The Government will extend the waiting period for citizenship from two to three years and will refuse citizenship on 'security grounds'. As a critical electorate and organizations such as Amnesty International draw unwanted attention to the Government's inhumane treatment of refugees, the Immigration Department will be able to make secret decisions based on 'national security'. The recent case of Scott Parkin demonstrated how joint exercises between ASIO and the Department of Immigration can quickly and legally expel dissidents or unwanted refugees. The only explanation that needs to be given is 'for reasons of national security'.

12. Terrorist financing: More invasive processes to ensure that charities are not used to fund 'terrorist organisations' will be extended to institutions and couriers involved in the process. What ASIO will deem to be a terrorist organisation is as open-ended as the definition of terrorism itself. Similar legislation in the UK has already resulted in legitimate Iraqi orphanage charities being banned and having their funds seized.

Civil libertarians have argued in numerous media debates and talkback radio shows that Adolph Hitler introduced similar legislation for Gestapo police to detain, interrogate, monitor and imprison Jews who were considered 'potential enemies of the German people'. Counter-terrorism measures adopted by the United States, Britain and Australia have unfairly persecuted innocent Muslims with home raids, interrogation, and prolonged detention. In response, some Australian lawyers established a website [v] offering free advice to the Muslim community, who have been profiled as a consequence of the war on terror. Bypassing anti-discrimination laws, senior government officials have made public statements like 'not all Muslims are terrorists, but all terrorists are Muslims'. Despite the clear danger of this generalization, the NSW Police Commissioner has gone on public record requesting indemnity for his police officers: 'The reality is that we will stop and search people of middle eastern appearance, not 65 year old Caucasian women.' he said in several media interviews after the Terror Summit.

Lawyers fear that the terror laws will also target high-profile dissidents, peace activists, trade unionists, student leaders, and protestors ... virtually anyone who loudly and effectively opposes the Government. Howard's intention to use these powers to silence protest is clear, as he has consistently followed both Tony Blair and George Bush as role models. Journalists have suggested that London's public disgrace of seeing an 82 year-old pensioner manhandled and interrogated under the British Terror Laws is likely to be repeated in Australia. The pensioner's 'crime' was that he shouted 'not true' as Jack Straw was defending Britain's involvement in Iraq. Even conservative media say that the new Terror Laws go too far with the sacrifice of basic democratic rights. The Sydney Morning Herald, traditionally an establishment newspaper, warned,

'The war on terrorism has gone a step too far. The offence of supporting terrorism raises very serious problems. Many political dissenters could fall within the operation of such a law. Just what will be considered support for violence will be a most difficult question. In 2003, 500,000 people marched in Sydney to oppose Australia's pending invasion of Iraq. Were they supporting an enemy?' [vi]

The brutal police killing of an innocent Brazilian on his way to work in London was a dramatic reminder to Australians of the ultimate consequence of fighting terrorism with terror powers. These powers have compelled lawyers like Professor George Williams, a law lecturer at the University of New South Wales, to speak out. In his March 2005 submission [vii] to Government, Professor Williams expressed concerns

'about both the need for these special powers and the nature of the powers themselves. Three years after their adoption, there is a danger that these exceptional, emergency powers, adopted in response to a specific threat, may become regularised or normalised as a permanent feature of Australia's legal landscape. It is vital to view these powers as temporary, exceptional measures so that they do not serve as a precedent for the adoption of more invasive powers in the future, or make it easier to justify other exceptional powers in less exceptional circumstances.'

When the first round of Terror Laws were hurriedly introduced in 2002, John Howard did not control the Senate which was able to 'tone down' the laws to exclude children and shorten detention times. The laws were heatedly debated in the public arena with public protests making it clear that Australians condemned the laws as an over-reaction to unknown terrorist threats. In his Foreword to Jenny Hocking's book 'Terror Laws' [viii] , Professor Williams warned, 'Terrorism was part of Australian life before September 11, and will continue to be so even after the current 'war against terrorism' has been waged. Today, however, we can only hope that our new terror laws do not do more damage to our democratic rights than the threat of terrorism itself'.

A basic flaw with both the 2002 legislation and the proposed 'greater' powers lies with the difficulty of defining terrorism, and therefore a terrorist act. Last month, the United Nations was unable to agree on an acceptable definition of terrorism. The ASIO Anti-Terrorism Act actually defines 'terrorism' by specifying what is not classified as 'terrorist acts'. The exception of 'legal and non-violent protest' within the Act gives little comfort to protest groups who have been involved in peaceful protests that have become violent following police intervention or harassment as happened with recent student protests in Sydney and Melbourne. While the public debate heats up about the potential and real impact of ASIO terror laws, the focus of terrorism has shifted from Muslim extremists, who have yet to commit a terrorist act within Australia, to Government extremists who have surrendered basic democratic rights in their war on a subjective noun.

Attorney-General Philip Ruddock admitted [ix] that in the past year ASIO made 44,000 assessments of 'persons who are potential security risks'. ASIO's well-documented history of keeping files on peace activists, trade unionists, and Labor MPs suggests that a few thousand assessments would include people who have expressed strong views opposing the Howard Government's policies. The numbers of dissenters swell as the list of issues angering Australians grows: the unpopular war on terror, the invasion and occupation of Iraq, the mandatory detention of refugees seeking asylum, the new industrial relations legislation that removes workers' rights, and the privatization of Telstra.

The burgeoning of dissent and the move to give ASIO stronger powers has compelled the Victorian Law Foundation and the Fitzroy Legal Service to establish the informative Activists Rights website [x]. This time the lawyers didn't couch their warnings in careful legalese. 'Danger! New laws criminalise protestors... The Australian Security Intelligence Organisation (ASIO) now has unprecedented powers to compulsorily question and detain persons suspected of having information related to a 'terrorism' offence. Furthermore, the exercise of such powers by ASIO is now virtually cloaked with secrecy, with the law now making it illegal to disclose information relating to most of ASIO's activities.' The site gives practical and detailed advice on what to do if ASIO comes calling.

The Howard Government has continued to ignore the masses of Australians who have loudly protested Australia's involvement in the American 'war on terror'. Now John Howard is ignoring public opposition to the Terror Laws, likely to be passed by a Senate he controls. Angry Australians have flooded radio talkback shows to the point where radio hosts have had to beg for calls from supporters of the Terror Laws. The question asked by every caller is why are we surrendering the same democratic freedoms that those who wage the war on terror claim to protect?

The Government's response to terrorism seems to have given unknown terrorists their first victory. John Howard has surrendered our basic democratic rights for the next decade. However, there is one glimmer of hope - perhaps some smart constitutional lawyer can mount a case against John Howard and his Attorney General for 'supporting the enemy'.

Terrorism has finally outlawed democracy. If the new round of Terror Laws passes through the Senate, Australians can look forward to ten years of legal terror.

Copyright 2005 by

*Wanda Fish is an Australian freelance journalist who dedicates her research and writing to the building of a more equitable and just world. Wanda has lived and worked in the United States, Southeast Asia, and Australia. After a 30-year career in corporate marketing and public relations, Wanda left the corporate world and began to campaign for humanitarian rights, peace, and the creation of a world where people of all races and religion are entitled to a free and dignified life. Wanda's articles are offered copyright free as part of her contribution towards a better world.

For more information about Australia's Terror Laws and your rights, please see these websites:

Civil Rights Network, Melbourne and Sydney

Council for Civil Liberties - links to Australian and international civil liberty groups

Activists Rights site with special section on Terror Laws

The Civil Rights Network has published a two-page summary of Australia's anti-terrorism laws (current at December 2004), which provides a good overview of the laws.

The Australian Muslim Civil Rights Advocacy Network (AMCRAN) has published a booklet called ASIO, The Police and You.

The University of Technology, Sydney Community Law Centre has produced a detailed information kit Be Informed: ASIO and Anti-Terrorism Laws.

Footnotes and References

[i] Media Release from Prime Minister, 'Counter-Terrorism Laws Strengthened', 8 September 2005.

[ii] ASIO advertising campaign for Terror Hot Line uses the slogan, 'Be alert, but not alarmed'.

[iii] Malcolm Fraser, 'Responsibilities and Human Rights in the Age of Terror', address given to InterAction Council Symposium, Global Leadership and Ethics Program, Markkula Center for Applied Ethics, Santa Clara

[iv] Laws for Insecurity? A Report on the Government's Proposed Counter-Terrorism Measures, by Agnes Chong, Patrick Emerton, Waleed Kadous, Annie Pettitt, Stephen Sempill, Vicki Santas, Jane Stratton and Joo-Cheong Tham. Published on 23 September 2005 and sent to all State Premiers prior to the Government summit on 27 September 2005.

[v] Australian Muslim Civil Rights Advocacy Network

[vi] Daryl Melham, 'The war against terrorism goes a step too far', published Sydney Morning Herald, September 15, 2005, and later published on Online Opinion website.

[vii] Professor George Williams's submission to the Parliamentary Secretary for the Joint Committee on ASIO, ASIS, and DSD. Review of Division 3 Part III of the ASIO Act 1979 - Questioning and Detention Powers. Posted on Parliament Website (see Parliamentary Reviews)

[viii] Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and The Threat to Democracy, UNSW Press, 2004.

[ix] Interview broadcast on ABC Radio National morning show on September 20, 2005,

[x] Activist Rights