On 8 September the Prime Minister introduced a 12-point plan outlining new anti-terror laws in a press release. Two weeks later he went to the Council of Australian Governments meeting with the proposals. They approved the measures by and large.
However, until last Friday (14 October) the public had not seen the laws. This all changed when Jon Stanhope, the Chief Minister for the ACT, leaked draft anti-terror laws.
Since then, leading legal experts, academics, politicians and civil rights groups, including AMCRAN, have been carefully analysing the legislation.
It is now clear that there are serious human rights concerns with the draft legislation, that it is open to abuse in its application and that it does not carry the safeguards that the Prime Minister promised.
In this e-mail we will outline the new anti-terror laws as drafted and explain some of the practical implications of the new laws, with an emphasis on the impact on the Muslim community. We will also look at what you can do about these laws.
The information in this e-mail is based on the draft legislation released by Mr Jon Stanhope on 14 October 2005 (available here:
http://www.chiefminister.act.gov.au/docs/B05PG201_v281.pdf).
The Government has already indicated that further changes will be made.
-------------- CONTROL ORDERS --------------
Control orders allow a person to be put under house arrest, to be forced to wear a tracking device, to be stopped from using phones or internet, or a number of other measures. Violating a control order carries a 5year penalty, even if unintentionally. Control orders can last for up to a year, or 3 months if you are between 16 and 18. But the new legislation specifically allows for "rolling" control orders; i.e., one control order finishes, and the next one begins. This means that it is possible that someone could have control orders apply to them for the term of their natural life; with control orders issued year after year after year.
The judge can make control orders if the order would substantially assist in preventing a terrorist act; or if the person has provided training to, or received training from, a banned terror organisation.
When control orders are issued, the judge doesn't have to meet the usual standards of "beyond reasonable doubt" for criminal charges. It is a "balance of probabilities" test; in other words, the judge only has to believe it is more likely than not that the person meets the above criteria. Hence control orders can be seen as a "back door" to imprisoning someone if you don't have enough evidence to charge them with a normal offence.
What's more, it is a "guilty until proven innocent" approach. A police officer, with the Attorney General's permission, goes to a judge and requests a control order. The subject of the order is then taken into custody. Only once they are in custody can they apply for the order to be revoked, with the limitations of the control order imposed on them (for example, if you can't use the phone and you can't leave home, trying to contact a lawyer might be a little difficult).
Muslim community impact: Because it's a "balance of probabilities" test, rather than "beyond reasonable doubt" test, and because the subject of the order isn't even there at the time the decision is made there is the potential for stereotypes and racial profiling. This could lead to many innocent people being imprisoned.
Also, the "training with a terrorist organisation" clause is retrospective, so it would apply to people who might have -- many years ago -- worked with Hamas or Lashkar-e-Taiba, before they were outlawed and before September 11. There is already a crime for "training with a terrorist organisation", but this seems to be a backdoor way to limit the freedoms of people who can't be found guilty of a crime.
------------PREVENTATIVE DETENTION --------------
The police can get a preventative detention order to hold a person for up to 24 hours. This initial preventative detention order can be issued by the Federal Police alone without judicial approval. This can then be extended later to up to 48 hours. It can only be applied if police think there is a terrorist attack likely in the next 14 days, or there was a terrorist attack in the last 28 days. It is planned that the states will introduce legislation for the preventative detention to be extended for an additional 12 days.
When detained, you can talk to a lawyer, but only if they are security cleared; and all your conversations are monitored. If you want to talk to your lawyer in Arabic, then there has to be a translator there so the police can hear what you are saying. You can call your family, but you can only tell them that you are ok, and that you are not contactable -- if you say any more, you can go to prison for 5 years.
Once you are held under preventative detention, there is no provision for review of the decision.
Muslim community impact: It is possible that in the aftermath of a terrorist attack, many Muslims will be arrested to "preserve evidence", while the police try to work out what is going on and apply a "better safe than sorry" approach to detaining people. Indeed, in the aftermath of September 11, at least 70 people (all but one Muslim) were detained using the "material witness" laws in the US, the effect of which is similar to preventative detention. This is the most conservative estimate, because of secrecy, we don't how many were detained, but some estimates are as high as 1200.
---------RANDOM STOP AND SEARCH POWERS ---------
Police can stop you, ask you your name, address, proof of who you are, why you are somewhere and can search you, your vehicle or anything under your control; if they think that you "might have just committed, might be committing, or might be about to commit a terrorist act." If the police find something that they think can be used as part of a terrorist act, they can take it from you.
In addition, the Attorney General can declare an area (there is no limit on the size, could be "the Opera House", or could be "Lakemba") to be a "security zone" for up to 28 days. This declaration of a security zone, on the grounds of "preventing a terrorist act occurring; or in responding to a terrorist act that has occurred," means police don't have to have suspicion, they can just search everyone.
Muslim community impact: This opens a huge door for racial profiling -- it is more likely that Muslims will be searched. Furthermore, it may cause community backlash against Muslims as people blame Muslims for being subject to these measures. There is also a particular issue for women who wear hijaab or niqaab who might be requested to remove their hijaab as part of a search. There is no requirement that the search be conducted in private.
-------INCITEMENT, SEDITION AND "ADVOCATING" TERRORISM----
There are a number of complex measures relating to incitement and sedition. This would limit people's ability to speak openly about any armed conflict in the world, if it includes Australia or Australia's allies. For example, if a person said that "Iraqis have the right to resist the occupation of Iraq by Western occupiers," this statement could be considered seditious and would carry a sentence of up to 7 years.
Furthermore an organisation that adopted a stance such as the above, would be considered to be "advocating terrorism". Advocating terrorism is defined as ãpraising the doing of a terrorist actä, ãdirectly or indirectly counseling or urging the doing of a terrorist act, or directly or indirectly providing instructions on the doing of a terrorist actä.
If that is the case, the organisation can be proscribed, which carries with it many offences. For example, being an informal member of such an organisation would carry a sentence of 10 years.
Muslim community impact: Muslims often express solidarity with the Muslim brothers and sisters elsewhere in the world, in places such as Iraq, Kashmir, Afghanistan and Palestine, and want their brothers and sisters to be free. In some cases, they express the point of view that these people have the right to use violence as a means of achieving their goals, just as the Australian Government advocated the use of violence to protect itself from weapons of mass destruction from Saddam Hussein. Such statements would now possibly illegal under these proposed laws.
------- CHARITY -------
The new provisions for financing of a terrorist organisation mean that many innocent people trying to support worthwhile causes could end up in prison for up to 15 years. Under the new measures, if someone asks you for help collecting charity for a cause and you help them, you have to check they are not using it for terrorist causes. For example, X asks you to help him raise money for victims of an earthquake in Pakistan. You help X to raise funds, but X then gives the funds to an organisation in Pakistan that as well as helping with the earthquake, also engages in activities the government thinks are illegal. You are now guilty of a crime that could find you in prison for 15 years.
Muslim community impact: There is the serious potential for innocent people with a sincere intention to help others will end up in prison for having done no wrong except for having taken someone's word. Furthermore, existing anti-terror laws have seen donations to charities in Australia decrease. These laws would reduce charity even more, and would create feelings of ill-will and suspicion among the community.
-------------- OTHER MEASURES --------------
Other measures in the anti-terror laws give police extensive powers to ask you to produce personal and private documents such as financial records and to find out about your travel patterns. Safeguards that ASIO have to meet when tapping phone calls and monitoring mail have also been weakened.
---------------- WHAT YOU CAN DO ------------
These laws are likely to be introduced into Federal Parliament on 31 October. It is expected that the Senate will only have one week to scrutinise the draft laws by 8 November 2005. There is only very little time.
AMCRAN is working with many civil rights groups and also members of both political parties to prevent this legislation from going through. We are preparing to send out further action alerts closer to the date, so please keep an eye out. To keep up-to-date, subscribe to [email protected]. You can do this by visiting:
http://www.amcran.org/index.php?id=30&Itemid=52
You can also write to your state premier, your state Attorney-General, to the Prime Minister, to the Attorney-General, and to your local Member of Parliament. Some parts of the laws require States to enact supporting legislation to the Federal law, so it is worth writing to both.
Arch Bevis Shadow Minister for Homeland Security Parliament House, Canberra Fax: (02) 6277 8534 [email protected]
For those in New South Wales: Morris Iemma Premier of New South Wales Fax: 02 9228 3934 [email protected]
Bob Debus NSW Attorney General Fax (02) 9228 3166 [email protected]
For those in Victoria: Steve Bracks Premier of Victoria Fax: (03) 9397 7227 [email protected]
Rob Hulls Vic Attorney General Fax: (03) 9379 4434 [email protected]
For those in Canberra: Jon Stanhope Chief Minister and Attorney-General Fax: (02) 62050433 [email protected]
---------------FURTHER INFORMATION -------
A coalition of lawyers, academics, policy workers and civil rights groups have written to the State Premiers and Attorneys-General outlining the serious discrepancies between what was promised at the COAG meeting and the draft legislation. You can view a copy of the letter here:
http://www.amcran.org/images/stories/ChiefMinLetter.pdf
An earlier report called "Laws for Insecurity? A Report on the Federal Government's Proposed Counter-Terrorism Measures" detailing various concerns regarding the Federal Governmentâs proposals can be viewed from the AMCRAN website http://amcran.org. It highlights the lack of justification for the laws. Among other concerns emphasised are the substantial departures from key principles of a liberal democracy, the constitutional problems, and the lack of safeguards.
If you have any questions please email us at [email protected].
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The continued disintegration of human rights in Australia will leave no one immune.
The international image of Australia is, by now, surely under question, if not from the governments of the international community, then from the organisations such as Human Rights Watch, Amnesty International, the United Nations. And not least from the citizens of the world who watch the news, seeing Australia but thinking South Africa, or Communist Russia.
I was pondering developments over the last ten years in Australian politics this morning, thinking; where did this degradation of our rights as citizens begin? To answer that question fully (and truthfully), we must look back to the beginning (for white 'settlement' in the country); but in terms of recent history, I believe it had to do with jobs.
There is, of course, that seedier beginning which needs mentioning; the indigenous Australia has long suffered at the hands of the government and 'white' Australia, and we (apart from the indigenous people, of course), have thought little of it, collectively at least. But, to quote Winston Churchill, we could sum up, quite succinctly, the huge setbacks the aboriginal population has suffered since the beginning, since Churchill's viewpoint played such an important role in the world's views, and confirmed Australia's view at the time:
"I do not agree that the dog in a manger has the final right to the manger even though he may have lain there for a very long time. I do not admit that right. I do not admit for instance, that a great wrong has been done to the Red Indians of America or the black people of Australia. I do not admit that a wrong has been done to these people by the fact that a stronger race, a higher-grade race, a more worldly wise race to put it that way, has come in and taken their place."
Now, in Australia to a greater degree, but to the US, the UK and other countries to a lesser (or less obvious) degree, the same dog status is being reapplied to the lower class citizens (and strengthened against the indigenous everywhere), those with heritage in the mid-east, and Asia, and Africa, those with poor backgrounds, and to an even greater degree, the original owners of this country.
A quick look at the recent past will show us many occasions where the Australian government has shunned or rejected the covenants of the United Nations, from maritime law regarding the Tampa crisis to the indefinite imprisonments of refugees and their children, to mandatory sentencing for aboriginal children in the northern territory and western Australia - where a teenager can be locked up for years just for stealing a chocolate bar from a shop.
Add to these publicly accepted methods of infringement and disregard for human rights the lesser known and complete media blank on such stories as the genocide of Aborigines through forced birth control, the arrests and harassments and murder of children in the Block - Sydney by armed police and the refusal of pay from the government to Aboriginal workers of the 50s,60s and 70s (effectively turning what was tacitly regarded as slave labour to an actuality).
These are just off the top of my head. To think of injustices committed in the name of Australia, and more specifically, the Australian government, requires no leaps of faith, no taking one's mind back and sorting through the politics to perhaps find a silent injustice - the reality and regularity of such events are such that the average Australian forgets them almost as soon as they occur - for the little they are explored in the media. We need only to be told the police were 'just doing their jobs' to accept the situation and go back to our lives.
It is less like a broad representation of the novel '1984' (as in other countries such as the UK and the US), and more like a directly quoted passage of the script. We don't know our enemy; the irony is we rely on our enemy to tell us that important information.
Now with the new legislation - generously provided by one dissident minister, against the wishes (read 'demands') of the prime minister, set to become a reality in the very near future, Australia faces a further risk - and a further and even more serious deterioration of human-rights - because this time it will affect all citizens (though in reality, it will affect only all citizens unconnected or directly disconnected to the present government).
This is (so far) the point to which freedom has regressed in Australia, during the term of the Howard government. But I want to take it back a little here - to see how it began, because one thing people are not discussing in or about Australia at the moment that I can see as relevant is this; the laws may be changing to disregard the powers and rights and freedom of the people, but Mr Howard is not the one who will be responsible for enforcing these laws. That is in the hands of people - state and federal police, ASIO officers, the military. Like all areas of industry in a free country, they could rebel, with a strike. They could stand up and say, 'enough is enough. We will not do it.'
Maybe they will.
Chances are though, they will do their jobs, as John Howard envisages it. Indeed, it seems they have already started along these lines with the recent deportation of Scott Parkins. People often ask of military regimes, such as those in Chile or Iraq, 'Why do the soldiers do it? If afterwards they tell us they were just doing their jobs, and they feared for their own lives, if they are all the same in their thoughts, surely they could have rebelled?'
The thing is, people could rebel, they could en-masse say 'No', but one major things stops them - money (translated as hunger). If not for themselves, for their families. In the past 10 years, John Howard has taken a functioning and purposeful health and social welfare system and turned it on its head. He has brought the working community to his side, telling them that welfare is a drain on their taxes, and that there is work, if people would do it. He has made the welfare recipient a dirty dole bludger rather than an unfortunately unemployed citizen, and, on the opposite side of that coin, he has made the lowest socio-economic demographic feel dirty and worthless, and turned them against the employed 'elite', abandoning Centrelink for abject poverty.
This has served 2 purposes; the first to ensure that people want work, whatever the cost, whatever the work. The second has been to bring down official unemployment figures (measured by the number claiming unemployment benefits) to an all time low, at the same time as sending the unofficial unemployment figures up perhaps even higher than they were under the previous Labour government. In addition, it has put a further economic strain on the employed who have unemployed family or friends which are no longer claiming unemployment benefits (and yet, ironically, the employed are still paying taxes - higher than ever).
When people are desperate, they will do desperate work, and incidentally, government work is the most lucrative for the uneducated and educated alike, out of any industry in the country. He has also systematically brought down the once many safeguards in the commercial labour market put there initially to protect the worker. There are many examples, but a recent one is the removal of the laws surrounding unfair dismissal. It puts greater power in the hands of the employer, less in the hands of the worker. A person can be fired without reason, which provides a more transient job market and more desperate part-timers, looking for enough for next month's rent.
How attractive then, would the prospect of working for the government be in these terms, where the pay is high and guaranteed, as long as you can put your moral standards aside for long enough to feed your family? Its not yet reached the Pinochet or Saddam Hussein level of government, but some would argue it is well within the boundaries of the current Russian government already (barring size and colonies); nevertheless it is fast approaching such dictatorial leadership.
These were the first steps in a tyrannical government, set in place almost 10 years ago. The effective dictator thinks forward, and plans well ahead. That is the man that John Howard is; the early attempts to dismiss him as a fool were as foolish as those same sentiments directed at George W Bush. The only difference is that the US president pays men like Cheney and Rumsfeld to think for him - Howard does it by himself.
Australia is a much smaller country globally, and plays a lot less influence over its neighbours than does the US or even the UK, (though what influence it does have it uses to bully and intimidate - see East Timor), but what this means to Australians is a dictator's penchant for control and power is directed inwards, towards those within the country.
Australians need to join together, united against their government, if there is to be any hope, not divided against one another, as it has happened, (beginning officially with our treatment of Indigenous Australia, and reaching now to the poor and the foreign-born.) Unofficially, it has also been those things, but smaller differences have played a part in the rifts between us too, from the differences between the Labour and Liberal voters (or democrat, greens etc), between the logger and the environmentalist, between the city and the country. These divisions are there because your government made it so. Its time to put aside those differences (for a while) and put your voices forward, because soon, if you are not for the government, it will consider you 'seditiously' against it.
govinfo.billystyx.co.uk
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