BY ALISON DELLIT
With the conclusion of two public hearings into proposed "anti-terrorist" laws, the Labor and Coalition parties are beginning to define their positions on the package of legislation.
The package looks likely to pass with amendments, unless the ALP hardens its position at its May 13 caucus meeting.
While the allocated time for the two committees — one a joint Senate-House of Representatives committee looking specifically into the changes to legislation relating to the Australian Security Intelligence Organisation (ASIO), and the other a Senate committee examining the other seven bills in the package — has elapsed, both have asked for an extension of time to early June.
Creating a new offence called "terrorism", the proposed laws could enable government prosecutors to have social justice and union activists imprisoned for 25 years for committing an act or threatening to commit an act that is made "with the intention of advancing a political, religious or ideological cause". The act, or threat, could be as little as disrupting an electronic system.
Under the legislation it will be an offence to even possess "a thing associated with a terrorist act".
During the Senate hearings in Sydney, Susan McIntosh, principal legal officer of the security law branch of the attorney-general's department, confirmed that under the proposed "anti-terrorism" laws someone who used bolt cutters on the fence at the Woomera refugee detention centre could be convicted of terrorism.
The laws will also allow agents from ASIO, upon obtaining a warrant, to detain for 48 hours and strip search people , including children who are more than 10 years old, deemed to have any "information pertaining to an investigation". They can be detained without legal advice, contact with friends or family or the right to silence. The period can be extended, in 48 hours lots, indefinitely.
If a detainee refuses to answer questions without a lawyer being present, she or he has committed an offence punishable by five years in prison.
In an almost certainly unconstitutional move, the laws will also give the federal attorney-general the power to ban organisations that "endanger the security or integrity of the commonwealth or another country". Members of banned organisations can be jailed, even if they are not aware the organisation is banned, and all assets of banned organisations can be seized.
The Greens and the Democrats oppose the bills outright. They will only make it through the Senate with ALP support.
Labor amendments
The Labor Party has indicated that it will attempt to amend the bills. Addressing the inquiry into the ASIO bill, Labor's committee representatives Kim Beazley and Senator Robert Ray explained the amendments that Labor would support:
* Allowing detainees access to an ASIO-approved and government appointed "pool" of lawyers.
* "Reinstatement of the right not to incriminate oneself". This will probably not mean reinstating the right to silence, but rather, as is the case in royal commissions, preventing any self-incriminating statements made during detention from being used against the detainee in a court of law.
* A cap on the total allowable detention time without trial.
* Public reporting of the numbers of detainees and the length of detention.
These changes would bring the bill more into line with UK anti-terrorist laws, which also allow for some government-controlled legal representation for the accused. Under the British anti-terrorism laws there have been horrific abuses of the human rights of Irish militants campaigning against the British occupation of Ireland.
Labor's proposed changes also fall far short of what has been demanded by the majority of submissions to the ASIO inquiry.
"I think you should scrap the whole thing", Gabr Elgafi, the NSW Supreme Islamic Council chairperson told the joint committee hearing.
Elgafi explained that the Islamic Council believed the laws would be applied in a racist fashion. "We feel as Muslims we would be vulnerable because the whole world is now looking at Muslims as a threat. That is a fact; that is not fiction."
He argued that giving increased powers to ASIO was a particular concern because the secret police agency had already been abusing Muslims since September 11. He pointed out that ASIO was unaccountable, and thus it was hard to prove racist behaviour.
When Senator Ray interrupted to say that ASIO was accountable to its own structures, Elgafi challenged him: "Have the [ASIO] raids [on Muslim households] been accounted for? When they pointed a machine gun at a woman's head, I did not hear anybody saying anything to ASIO. She was by herself at home."
Elgafi argued there was no compelling reason for the legislation, and implied that hysteria had been whipped up by the government. "Not one [terrorist] incident came out of the Olympics", he pointed out. "But there was a lot of propaganda about fear. There was no trouble — so why bother about introducing this?"
Senate inquiry
The Senate inquiry into the rest of the bills has also heard far more submissions condemning the legislation than supporting it.
"It is very easy", Justice John Dowd, the Australian president of the International Commission of Jurists, told the Senate inquiry on April 8, "for law enforcement authorities during times of perceived crisis to seek additional powers which remain on the statute books whether or not there is a justification for it."
"But you do not give powers to prosecute and not have them used."
Dowd criticised the emphasis on government discretion: "There are a lot of provisions in this bill involving the attorney-general's written consent. That is not a safeguard. When you are dealing with matters of hysteria, such as in the case of the prisoner of war David Hicks — who is being treated by the Americans as though he is not prisoner of war when he clearly is — that is a very high political issue for a political attorney-general: to have the power to start or not start those proceedings will become a political decision."
Dowd pointed out that Australians who supported the East Timorese independence movement could have been punished, "were these laws in place, by 25 years in prison".
He dismissed the legislation's exclusion of "industrial action" and "lawful advocacy" from the definition of terrorism as unimportant. "When you march down the street and somebody breaks out and sprays something on an object or a monument or whatever, does the activity then become unlawful? If a strike is in opposition to the law of a particular state, does that strike become unlawful?"
ACTU president Sharan Burrow also argued that these qualifications would not protect union and community activists. "[What is and isn't legal industrial action] is shifting sands for us", she told the committee on April 17. She pointed out that picketing is not legally considered industrial action if it does not attempt to physically prevent people from entering a building.
The main thrust of the ACTU's opposition to the package is on the banning of organisations. "Organisations do not commit offences; people do. If there is an issue around crimes people commit, then our criminal laws should deal with that", Burrow argued.
During Burrow's submission time, the committee discussed the probability of the storming of Parliament House in Canberra on August 19, 1996, being considered a terrorist act under the legislation. No-one there could rule out a union such as the Construction, Forestry, Mining and Energy Union being banned on the basis of members' involvement in such activities.
"Almost all dissident groups at one time have been called terrorists by their enemies", Bilal Cleland, secretary of the Islamic Council of Victoria told the committee. "We are very concerned about the anti-Arab and anti-Muslim opinion being reflected in many of the outlets of the media, including newspapers and talkback radio, and, unfortunately, in some comments of politicians — that there could be a situation of persecution here."
"What I am suggesting", explained Judith Klepner, policy officer for the Ethnic Community Council of Victoria, "is that Australians of foreign and non-English speaking background are more likely to be tracked and monitored and put under surveillance and so on."
That suspicion appeared borne out by the behaviour of some committee members. Labor Senator Jim McKeirnan grilled Cleland on why his organisation had not mentioned al Qaeda or the Taliban in its submission.
When Cleland angrily responded that he considered both organisations to be terrorists, McKeirnan continued to ask if the Islamic Council would support fundraising for these organisations. After Cleland replied in the negative, McKeirnan thanked him and said: "It is an important qualification coming from an organisation such as yours."
From Green Left Weekly, May 8, 2002.
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