Tony Iltis
Human rights lawyer Julian Burnside, who acted for the Tampa refugees in 2001, believes the federal Coalition government's "anti-terror" laws will "seriously undermine basic civil freedoms that have been recognised for at least three centuries".
"We've already seen in the immigration department what happens when you give power to people who are unaccountable. To be honest, it terrifies me to think what the immigration department could do if armed with the sort of powers that are now being created in this new legislation.
"Howard asserts, vaguely and without evidence, that the point of this legislation is to make us safer. But I don't think it will", Burnside said. "Howard denies, unequivocally, that going into Iraq has put us at risk. Anyone who can say that really cannot be believed when they make an assertion about the likelihood of terrorist threats."
The new "anti-terror" laws, combined with previous ones, would allow authorities a new level of secrecy and unaccountability, Burnside said. But one of the dangers, he continued, relates to existing legislation, namely the National Security Information (Civil and Criminal Trials) Act (NSIA), which has not so far been mentioned.
"That law provides — and I'm abbreviating — that in any litigation, civil or criminal, ... if [the attorney-general] certifies that [Australia's national security interests might be jeopardised] the court has to close the hearing and hold a separate, secret one to see whether it will allow the evidence to be given. The legislation directs the judge to give principal weight to the certificate of the attorney-general. The certificate cannot be contradicted.
"In the secret hearing, it's possible for the defendant and their lawyers to be excluded from the hearing. So you could have an argument in the absence of the party about whether or not relevant evidence is allowed to be called by that party. And the odds are stacked against the party because the legislation tells the court to give principal weight to the certificate of the attorney-general."
The NSIA was introduced in October 2004 and amended in May to cover civil as well as criminal cases. "The civil litigation could include, for example, applications to review the making of a control order or preventative detention order", Burnside explained.
"If a control order or a preventative detention order is made in a person's absence, they don't get to look at the evidence that supported the making of that order. All they get is a summary of the information used ... That means they cannot properly challenge the accuracy of the evidence, and that substantially reduces their ability to overturn the order."
Burnside cited the case of recently deported US peace activist Scott Parkin. "He was arrested, put in detention and removed from Australia after his visa had been cancelled because ASIO delivered an adverse security assessment of him. But they refused to say what he did, or was supposed to have done, or said, or thought.
"We're challenging that in court, but the NSIA gives the government the power to persuade the court that, even in court he shouldn't be allowed to know what it is that made them say that he was an 'adverse security risk'. So even if they got their facts hopelessly wrong, even if they made a report about him that related to someone else, it would not be possible to overturn.
"One thing a control order can mean is house arrest of the sort [Burmese opposition leader] Aung San Suu Kyi has undergone, but without access to a telephone or the internet, so that to the world at large that person could, in fact, disappear. No one would be allowed to say that they are subject to a control order or in what circumstances, or for what reasons."
Burnside described the shared underlying philosophy of the Howard government's "anti-terror" and industrial relations laws as: "The government knows best and individual rights don't matter."
The same outlook is reflected in its refugee policies, he said, criticising the government's "mad, rabid attempt to uphold mandatory detention in its harshest form", such as "the enthusiasm with which the government persuaded the High Court to determine that an asylum seeker, who'd failed in his claim for a visa but couldn't be removed from this country, could be detained for the rest of his life even though innocent of any offence.
"Things like that make you wonder what the Howard government understands by notions of liberty and civil rights, although we have to acknowledge that the mandatory detention provisions were introduced by the Labor Party." Burnside doesn't think the ALP is likely to repeal the "anti-terror" laws. "If anything, they'll want to strengthen them", he concluded.
From Green Left Weekly, December 7, 2005.
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