BY DALE MILLS
On June 26, federal parliament passed the controversial Australian Security Intelligence Organisation legislation. The powers given to ASIO and the Australian Federal Police are the most serious threat to civil liberties in our lifetime and without precedent in peacetime. They make Australian security laws the most repressive in the Western world.
By contrast, at the US prison camp on Guantanamo Bay, Cuba, where detainees can be held without trial and without access to family or lawyers, the laws apply only to non-US citizens, as bad as that is. The new ASIO laws, however, allow for the indefinite detention without trial of foreigners and Australian citizens alike. This was supported by the ALP.
The ASIO Legislation Amendment (Terrorism) Bill 2002 was introduced into parliament last December, but faced opposition from the ALP and the minor parties. Following negotiations between the major parties, the bill was reintroduced into the House of Representatives on March 20, passed on March 27, was reintroduced into the Senate on May 13, and passed on June 25. It passed through the lower house again on June 26.
On June 27, Green Left Weekly was told by the parliamentary tabling office that the law was passed with minor changes which were not then available. The law is due to formally come into effect in the next two weeks.
Several parts of the new law make it unlike normal criminal law. Under general law, if a person is suspected of being involved in a bombing or organising an assassination, they can be arrested by the police, questioned, charged and, if guilty, be convicted.
Under the new laws, people can be detained who are not suspected of being involved in any crime. The suggestion that they have passively acquired information will be enough. This would cover journalists working on a story, GPs listening to their patients, teachers in the course of their work, priests in the confessional, people surfing the internet and, of course, political activists.
The intelligence-gathering powers of ASIO are already extensive. It already has the power to "seek search warrants, computer access warrants, tracking device warrants, telecommunications interception warrants and to inspect postal articles", as Attorney-General Daryl Williams said on March 20.
Like professional criminals, professional terrorists have nothing to fear from the new laws. No professional terrorist is likely to "crack" under the questioning of hapless Australian agents unused to dealing with cases of politically motivated violence.
Those who "crack" will be the vulnerable and those who don't have access to the legal know-how. That includes 16-year-olds, who are explicitly included under the new legislation.
Once arrested, the law demands you answer ASIO's questions. Failure to do so incurs a maximum penalty of five years' prison. Saying "no comment" is not going to get you far the onus of proof is reversed, leaving it up to you to prove you don't know the answers.
The initial warrants are granted by judges, some of whom may be more inclined to do so than others. But given that the information presented to the judge is from one source only ASIO and you don't 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.
Once arrested, detention can last for up to seven days. After the warrant expires another can be issued, and another, continuing the detention indefinitely.
On June 17, the ALP caucus agreed to the bill substantially in its present form. ALP senators tried to argue that serial warrants would be issued only if "new information" could justify them. This is nonsense. While being questioned, any aspect of ongoing investigations could provide new information which would "justify" a new warrant. There is no limit on the number of warrants that could be issued in this way.
Yet ALP spokesperson for home affairs, senator John Faulkner, told parliament on June 25 that "repeated warrants" were the last straw and that "the legislation does not allow for rolling warrants".
Whatever the wording "repeated", "serial" or "rolling" the ALP knows that the new law allows for second and subsequent warrants to be issued the moment the first one runs out.
An amendment by Greens senator Bob Brown to limit the maximum detention time was defeated by the Coalition and ALP voting together. As Brown put it: "As you're walking out the door from your first detention, you can be arrested and brought straight back in again". The Greens opposed the bill from the start, but suggested amendments when it became clear that the ALP would vote the legislation through.
Faulkner described the revised bill as "a radically different proposal to the one we saw introduced some 15 months ago". How true is this?
The "radical" changes involved an increase in the minimum age of people who could be detained from 14 to 16 years' old. However, the indefinite detention of those who haven't committed a crime is still possible, and refusing to answer ASIO's questions still brings a five-year prison sentence.
The bill originally only allowed you access to a panel of ASIO-approved lawyers. Now you can consult any lawyer you want subject to a security clearance by ASIO.
ALP senator Robert Ray's comment that "We've almost got as many hurdles as the grand national steeple chase and I don't think we can put many more in", seemed designed to placate a sceptical public.
What possible "hurdles" did he mean? Is it that the attorney-general (a government minister) and the director-general of security (a professional spy) have to be "satisfied" that the questioning will lead to information? Or is it that a detained person should be frisk-searched by a member of the same sex "if practicable"?
It's possible the laws may face a constitutional challenge in the High Court. The June 27 Sydney Morning Herald quotes legal experts Dr Greg Carne of Tasmania University and Professor George Williams of the University of NSW who indicate that the laws may be found invalid.
This is because laws which have been found to be legal during times of war, such as petrol rationing or wage fixing, may be found to be inappropriate during peacetime. 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 in Korea.
One amendment agreed to by the government is a sunset clause; the law must be renewed in three years' time. Opposition to the new law has to start to build now if we're going to be able to consign it to the dustbin of history.
[For more information, go to <http://www.getsmart.org.au/frontpage.htm>.
To follow ongoing developments, send a blank email to <TerrorLaws-subscribe@topica.com>.]
From Green Left Weekly, July 2, 2003.
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