Another star Webdiarist has joined our media critic Jack Robertson in getting his own space on the net. Don Arthur, whose elegant, effortless style makes me very, very jealous, has begun A hail of dead cats. Luckily for me, Don too will still write occasional contributions for Webdiary, beginning today.

Kate Durham in Melbourne, who formed “Spare Rooms for Refugees” sends this plea regarding an Afghani family currently in immigration department housing. “They need to find a place of their own in the Liverpool area – kids in local schools etc., father still in Villawood. Whilst I am told rent assistance is available from the State Government there – bond assistance is not (unlike Victoria)…Is there a real estate agent with a heart could help or any SpareRoomers with a property or a sum of money to offer this family? They could get in touch with Chris Stanton (stantonassoc@optusho=me.com.au)

For Sydney readers, there’s a forum on the ALP’s future at The Gallery, Berkelouw Books, 70 Norton Street, Leichhardt, on Wednesday night at 6.30pm.(Admission $20 and $10, for bookings email brendan@plutoaustralia=.com) Organised by Pluto Press, speakers include Labor heavies Lindsay Tanner and Mark Latham, media academic and commentator Catharine Lumby, Radio National’s Background briefing producer Tom Morton and writer Guy Rundle.

Today, Don Arthur writes a contrarian piece arguing that the boat people saga has empowered the chattering classes, and Webdiary regular Alison Newman, Robert Lawton and Charles Diamond respond to my piece in Seeing through blindfolds on government censorship of the boat people story.

Then, Bernard Slattery, Warren Grzic, Ivana Bottini and Iain Thompson discuss the Le Pen shock in France. To end, two excellent pieces in The Guardian on the meaning of the French result for Europe, kindly emailed by David Refearn. It has meaning for us too: issues of law and order, immigration, alienation from mainstream politics and the extremity of the challenge for the left are just as true here as there.

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BOAT PEOPLE

Dead Cat Syndrome

By Don Arthur

“Nobody enjoys detention” says John Howard. And the Prime Minister is enjoying it less and less each day. The bounce his career experienced from the boat people crisis during the last election campaign may have been the bounce of dead cat hitting the deck. And all the complaints about the ABC’s coverage of an issue that he is responsible for forcing onto the media agenda, could be a sign of how tenuous the PM’s grip on his political future has become.

For a campaign in a tight spot the Tampa seemed like a gift. The public’s views on asylum seekers arriving by boat were easy to guess at. And with the election so close there was little opportunity for opinion leaders to reframe the issue or get competing messages into the public arena. So Labor’s best strategy was to match Howard on toughness and try to change the subject.

After the election the best outcome for Howard would have been for Labor, the media and the broadsheet reading public to have left it there and moved on. But there was never much chance of that. Ordinarily a difficult problem such as dealing with asylum seekers arriving by boat would have been handled away from the noise of talk back radio, the white light of the camera flashes, and the bureaucratic drama of letter writing campaigns. The insiders would have gotten together and worked something out – something far less newsworthy than Pacific solutions or children overboard. If it had been handled this way the whole thing might never have pushed itself over the average Philip Adams listener’s threshold of consciousness. After all, we had mandatory detention for years before the Coalition regained government.

But the Howard campaign closed off the quiet behind-the-scenes option. It deliberately made boat people into a full blown crisis. The short-term logic of the coalition’s campaign strategy made the issue prime time viewing. And now Howard is complaining that this thing he created won’t go away. Every silver lining has its cloud.

In an interview with 3LO’s Jon Faine the Prime Minister was griping about how the ABC’s Lateline program’s coverage of the issue was “out of proportion to, and not consistent with its obligations to provide coverage of other current affairs issues.” But of course the objective of the Howard campaign’s agenda setting approach during the lead up to the election was to use the boat people crisis to drive out coverage of competing issues like health, education, petrol pricing, worker entitlements and the collapse of Ansett. What’s happening now is simply a by-product of the strategy’s effectiveness.

Howard would like this issue to go away because, even though a majority of Australians support the government’s position, the issue has become a liability. There are three major reasons for this.

First the biggest threat to Howard’s Prime Ministership comes, not from Simon Crean, but from within the Liberal Party and the networks which support it. Howard’s problem is not with ill informed battlers but with politically aware influentials.

Second, the politically aware – Liberal, Labor and other – don’t spend their leisure time watching Temptation Island or ringing up Alan Jones. Instead they have to decide whether they’ll tape West Wing and watchLateline or catch the last half hour of Late Night Live. They read The Sydney Morning Herald, The Financial Review, The Age and The Australian, not The Daily Telegraph or the Herald Sun. Howard’s own politically aware constituency is being exposed to a large volume of negative messages about the government’s handling of the asylum seeker issue.

Third, research suggests that the quantity of messages for one side or another has a significant effect on attitude shifts. Political scientist John Zaller of the University of California at Los Angeles examined the way anti-Vietnam war messages at the elite level gradually managed to turn politically aware Americans against the war. Before the issue became polarized, the more aware the more politically aware an American predisposed to ‘dovishness’ was, the more likely they were to support the war in Vietnam. But after the issue became politicized this began to change. By 1970 the more politically aware a ‘dove’ was, the more likely they were to oppose the war. Among those classified as ‘hawks’, support for the war continued to be associated with greater political awareness. By breaking the bipartisan consensus on asylum seekers Howard has managed to mobilize a huge reservoir of latent opposition to policies such as mandatory detention – issues which once enjoyed bipartisan support. Some of this latent support may have been on his own side of politics.

John Howard has become so closely identified with the asylum seeker issue that if the tide turns against the government’s handling of this issue it turns against John Howard’s leadership. He now inspires the same intensity of loathing amongst his enemies as Paul Keating once did. It’s no surprise that Peter Costello is trying to run as cool as he can on asylum seekers.

Howard supporters might object that his preferred Prime Minister rating is still far ahead of Simon Crean and that, given time, the issue will die down. But Howard’s support has declined since the high point of the crisis – if the issue dies down then so will his popular support (and the party’s reason for keeping him). Howard’s satisfaction numbers are getting close to being back where they were in January last year. And a large part of the lead he has over Crean has to do with the fact that voters don’t know who Simon Crean is. Around one third of those surveyed by Newspoll late this month couldn’t decide whether they were satisfied or dissatisfied with Crean’s performance. Howard’s substantial lead over Crean is soft and has little to do with his performance as Prime Minister. The more significant figures are those for voting intention. These show the government and the opposition neck and neck.

It would make sense for the government to move back onto its record of sound economic management – an issue where it enjoys a wide margin over Labor. But as long as Howard remains leader his enemies will continue to attack him over his stand on issues such as reconciliation and asylum seekers. Not only will this lead to internal divisions within the Liberal Party and its influential supporters, but it will eat up space on the media agenda that could otherwise be devoted to positive stories on issues such as decreases in unemployment.

By politicizing the asylum seeker issue Howard knowingly activated the ‘elite’ opponents he now complains about. He decided what game he wanted everyone to play. Now that playing that game isn’t fun anymore he wants it to stop. But his opponents the game is just starting to get interesting.

***

Alison Newman

If it were just the Howard Government indulging in the malaise of government secrecy, there would be some comfort for those of us that really believe in democracy: Howard can’t last forever. Sadly, however, it isn’t just the Howard Government. The state governments (all Labor) are demonstrating that they can be just as fast and loose with the truth, and particularly in hiding the truth.

I am currently co-ordinating the development of transport policy for the Democrats (NSW). You would think that it would be a relatively simple matter for me to obtain transport research documents produced by the Department of Transport, so that I can develop a credible, quality policy alternative for the NSW public. This is after all central to a strong democracy: people have to be given credible options to vote for.

But in this case, I was trying to obtain the Christie Report (excerpts of which have been publish in the Herald over the last few months). The report was produced by Mr Christie at the request of the government. But because the report didn’t say what they wanted, it was buried for 12 months before it was leaked to the press.

Even after the leak, the Minister’s office will still not release the report for viewing. A report produced with tax dollars is being deliberately withheld from the NSW public because it makes a mockery of current Labor party transport policy, and would make life easier for their political opponents.

This is not the only example that I have bumped into in the restricted area of NSW Transport policy. Another classic example is the contracts between the government and providers of tollways. These contracts typically require that the government subsidises the contractor in the event that public transport steals some customers! And we can’t even find out the extent of the penalty clauses, because guess what? – the contracts are commercial-in-confidence.

To me, this is indicative of public opinion. The politicians have discovered the Orwellian truth that the public just does not care if they are lied to. In years gone by, a revelation that a government was lying or covering up would lead to the downfall of that government.

But no more. The public is crisis-fatigued. They just can’t get the enthusiasm up anymore to challenge the unethical behaviour of politicians. This was partly what Hansonism was about, but the Hansonites just could not maintain the rage long enough to make a true impact. Howard saw them off in the end.

It is near impossible to formulate real policies when the government of the day locks up all sources of information. The Federal Government is doing it with refugees, the state governments are doing it as well.

In my opinion, this is one of the causes of the great disconnect of the public from politics. Without access to decent information on which to form their judgements, they are forced to rely on the antagonistic and non-productive counter-claims of the two major parties: the “two dogs yapping” so beloved of Natasha Stott Despoja.

It’s a depressing situation, but one which I will fight against with everything I have, as I feel that it strikes at the heart of what has made our nation such a nice place to live for such a long time. The Democrats in NSW have been quite vocal about Open Government, and attacking inadequacies of the Freedom of Information Act. For further information, refer to open government forum

Robert Lawton in Adelaide

Interesting that Jack Robertson in Seeing through blindfolds has worked himself up to a high pitch of concern about access to detention centres. I’m angry about it too; I marched in the Palm Sunday rallies demanding changes to the Pacific solution; I approve the Spare Rooms for Refugees effort. But then I read Jack …

He wrote: “Trouble is breaking out in the Detention Centres constantly, now; we NEED and HAVE A RIGHT to see up close what is going on in them. (Who knows? It may even turn out to be the Paradise the government has been claiming all along.) Frankly, I don’t give a stuff if it’s a raging bolshie from the ABC or a Murdoch nutter like Andrew Bolt who gets in there with a camera and a notebook, but someone has to. We have a democratic right to see inside these places precisely when the government doesn’t want us to see inside them.”

Has any one cared half so much in recent years about our own prison population?? About the conditions in the hopelessly outdated “big” jails in many of the capitals, and the success or otherwise of the US-run private prisons in Queensland, Victoria and SA?

About time spent on remand, about access to telephones, medical care, legal advice, contact visits? About transition to life after prison?

About whether or not prison terms are even an answer to crime any more, in the wash-up of Alan Bond, Chris Skase, HIH and OneTel? To say nothing of Dolly Bell, Peter Liddy the pedophile magistrate in SA, or Martin Bryant… who will all be released one day… the better for their time?

Am I cynical, or are the educated social justice types more comfortable with demonstrating their opposition to new federal tyrannies involving unknown foreigners from interesting conflicts abroad… rather than pursuing nasty, tangled old state tyrannies right under their well-bred noses, and having to advocate the rights of undoubted thieves, thugs and drugdealers?

And has this something to do with the ABC/Australian axis, which elevates federal issues because they work well nationally, and keeps away from local issues because they don’t?

I am not untainted here, I once worked in jails but I’ve not been inside a prison for years. I’m just trying to get people thinking.

But when it comes down to it, I’d vote for better, more thoughtful law and order policies any day rather than any change to the Liberals’ current asylum seeker policy. Of course it never comes to that does it?

***

Charles Diamond

I have closely followed the entire children overboard scandal since October 7. Reading transcripts of statements made by Howard, Reith and Ruddock before November 10 and comparing that to Hansard, transcripts of interviews and the evidence of the various Inquiries and the Senate Estimates Committee is infuriating. A few examples are:

1. Howard has stated all along he personally had received no new information on anything related to the children overboard issue. Hansard (Question time 14/02/02) reveals Howard spoke to Ruddock on the evening of November 7. The topic discussed according to Ruddock was Howard’s decision to release the video. In the last days, of the campaign Howard wanted us to believe Reith told him repeatedly there was no new information. Yet, for an unexplained reason Howard did a Reith and released the video, taken on October 8 when the boat was sinking and not on October 7.

2. This is part of an interview Howard did with John Laws on November 9.

Laws: Do you think that what was told to you in the first instance was correct, or perhaps was wrong?

Howard: I don’t have any, I do, I’ve talked to Mr Reith about this again this morning and he indicated to me, he retailed to me another piece of the mosaic that the Captain of the vessel had apparently rung the Maritime Commander at some function and a colleague was with the Maritime Commander and he mentioned to my colleague that he’d just been speaking to the Captain of the Adelaide and apparently they’re throwing, he made that comment that apparently they’re throwing children in the water.”

3. This interview with Cathy Van Extel (Radio National) is from November 9.

Van Extel: Did the Navy or anyone in the Defence Department ring your office or Peter Reiths or Phillip Ruddocks office to advise you that the initial information about children being thrown overboard was incorrect?

Howard: Cathy, nobody rang my office to that effect and I’m not aware that they rang the offices of the other two ministers but you would have to talk to them to get a direct answer on that.”

4. Even the repeated mantra that Defence advised Phillip Ruddock children had been thrown overboard is false. Immigration department head Bill Farmer advised Ruddock. Defence had no responsibility at all for the release of the statement on October 7 that asylum seekers were throwing their children overboard. The Howard Government then silenced the Military and the Public service controlling information released to the media. The famous ONA written advice came after the accusation of child throwing were made public and were based on statements to the media.

I would suggest the only way to find out more of the truth on the issue is for the ALP to have some backbone and subpoena Reith to appear at the Senate Inquiry. This would force Howard to answer questions even though he won’t appear at the Inquiry.

I would suggest that if Webdiarists and others are infuriated by the children overboard scandal then they email Simon Crean and the ALP and ask them to subpoena Reith.

Apart from forcing Reith and then Howard to answer questions the showdown between Peter Reith and John Faulkner would be marvellous to watch.

***

THE RISE OF FASCISM

Bernard Slattery

The current Middle East conflict and recent European elections demonstrate how inadequate are the terms Left and Right to describe political situations and preferences. Your Paris correspondent (David Davis inCataclysme politique en France) asks: What is left and right in France now? I ask, what is it anywhere?

Australia’s broadsheet-ABC commentators in the main have been more critical to Israel than the Palestinian terrorists. These commentators would probably describe themselves as moderately left. Yet they support violent fascist anti-Jewish terrorists against a democratic state. Thus, in this case, the morally superior and prosperous left lines up with one of the most extreme right groupings you’ll find on the globe.

Many of Australian Labor’s other – traditional – constituency, hold grave and understandable reservations about globalisation and the unfettered rule of market over community that the new world order threatens. Although this socially conservative sector is reluctant to man the barricades, they hold unstated sympathy for the “extreme left” disrupters of WTO conferences, etc.

This grouping – a thinking section of the ‘mainstream’ – detest political correctness, just as their ancestors despised wowsers. They have grudging respect for Howard and Beazley – they’re still out on Crean – and couldn’t give a rats about the rights of illegal immigrants. So they are suspiciously left wing in regard to economic power but would be judged as ‘red neck’ (a ridiculous, derivative term which only reveals the shallow snobbishness of those who bandy it) and right wing by the commentariat.

It seems Australians are divided by far more than the old barriers of class and wealth. We’re split between city and country, educated and dumbed-down (by the educators for the corporations, a disgraceful situation that is overdue for debate openly), politically correct conformists and contrarians, new agers and sustainable environmentalists, blatant greedheads and compassionate conservatives, internationalists and nationalists, immigration realists and floodgate openers, ambulance chasers and the personally responsible. I could go on.

The challenge to you in the media is to come up with more accurate descriptions of political positions than Left and Right. Your copy would be more relevant and your biases less obvious.

***

Warren Grzic

Having read this week’s reports on Jean-Marie Le Pen, I thought, “Now where have we heard all this before?” I remember your reference to Le Pen in “Off the Rails”, how Pauline Hanson might have become like him had she had political skills. On Saturday I read the Herald’s News Review piece on right-wing movements in Europe, and it does sound like what’s happening over there makes Hansonism look like a tea party. Maybe the rise of Haider in Austria was more than just a minor difficulty, and people who have constantly blasted Hanson should go to Europe and examine the right-wing movements there.

***

Ivana Bottini

One of the things that concerns me about the tone of the site is the kind of pervasive pessimism it contains. Not, I concede, that there aren’t reasons enough to be pessimistic. It just seems to me that people, even one single person, can make a huge difference to events.

The trouble with pessimism is that it often encourages people who could and can make a positive contribution not to bother. What’s the phrase? All it takes for evil to win is for good men to do nothing? Well pessimism and the cynicism it builds really encourages good people to do nothing.

As for Le Pen, personally I welcomed the election result. This is a warning shot for a very disorganised, factionalised left. Le Pen is not going to win the Presidency and he doesn’t represent a lot of people. In a way he got to the second round on the back of a strong protest vote.

The candidates and the policies paraded by the left were unthinkable relics from another era. It really was a shocking showing.

***

Iain Thompson

It occurs to me that swings to the right (as to Le Pen or Hansonism or Enoch Powell) occur in eras where that leftish liberalism has run mad (or at least partially amuck).

One problem that extreme liberalism has is that its views are imposed on people by their ‘reasonableness’. For example, it is reasonable, in Britain, France or Australia, that the ‘floodgates’ be let down, to some or great extent, to immigrants from other countries – the proponents of this are adept at making individuals feel bad about any reservations they might have.

The area of tension arises when those who are having reasonableness imposed upon them have their attentions directed to their own circumstances which are not reasonable! The consequent reaction is, I suspect, not an agreement with all that the rightists are saying but an intense disagreement with whoever actually occupies the government at the moment.

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French alarm rings bells for Europe’s body politic

Democratic politicians must share the blame for Le Pen’s triumph

By Hugo Young

If the first British republic were modelled on the fifth French republic, the electoral picture might look like this. The voting system would encourage the same fragmentation of politics. As well as Lab, Con and Liberal Democrat, we’d list the Greens, the BNP, the SWP, doubtless Real Labour, very possibly the old CP and, for sure, several regional parties. Five hundred official signatures would be enough to get a party on the ballot, and less than 20% of the vote would probably suffice to guarantee a place in the run-off. The political structure that has kept extremism at bay would be smashed.

So the French election is a caution to both republicans and electoral reformers. Two lost causes anyway, but now blown over the horizon by a result that, as Liberation wrote yesterday, reduces France to a fight between the Superliar and the Superfascist.

The system does offer the beginnings of an alibi for what happened. Taken together the votes of the left can be made to add up to 44%. In a two-man contest the socialist, Lionel Jospin, might even have won.

You can put the fiasco down to the congenital inability of the left to unify in dangerous circumstances. On this analysis, there’s no great political crisis, just the political system of the fifth republic that needs to be fixed. Moreover, isn’t Jacques Chirac now certain to win anyway? Won’t the forces of democracy bury their mutual hatreds to dig a deeper grave for the super-enemy of democracy, Jean-Marie Le Pen? So all is surely well?

This would be a grand illusion, and hardly any French democrat now believes it. Le Pen is the first man of the far right to get within spitting distance of power in a major EU country. Two can play at adding up the votes, and Le Pen’s along with those of his fellow fascist Bruno Megreatly exceeded what Chirac got.

Though Jospin’s defeat produces a crisis for the left, Le Pen’s victory registers an even bigger crisis for democratic politics in the round. A deep pattern of alienation from democracy is visible, of which France now offers the most shattering example, but from which not even calm, secure, Blairite Britain is exempt.

Certainly there’s a crisis on the left. Towards the end of the 1990s, most EU countries were run by social democrats, and now most of them are not. Italy, Spain, Austria, Denmark and Portugal have swung to the right. It remains to be seen what happens to Gerhard Schroder in the autumn. Meanwhile, continental socialists confront the sometimes painful irony that the British Labour government, only now revertingto a recognisably social democratic programme, stands almost alone as a leftist party of unchallengeable power.

What matters about this rightward shift, however, is not its direction but its dependence in several cases on the far right. Centrist rightism is not much different from centrist leftism, as we see from the kinship between Blair and the Aznar government in Madrid. But the fascist tendency is eating its way into corners of real power, and the French experience suggests two main reasons for this frightening development, one particular and one general.

The particular is perceived defects in “security”, which is alternately a euphemism for crime and immigration, and often both. This was what Le Pen relentlessly played to, with the aid of Chirac who made it a main line of attack on Jospin, which Jospin in the end had to try to match.

In this degeneration, it was the man with the simplest answers who scored the best, in a shameful display for which the democrats were almost as much to blame as the anti-democrat. But one cannot deny the potency of the attack on foreigners, and the quest thereby for some protection of “identity”, especially given the presence of the second, more general factor: wholesale disaffection from the political system.

In France this can be measured. As many as 40% of those who voted, about 60% of the electorate, rejected the only two parties that could form a government, Chirac’s and Jospin’s. This was double the figure at the 1988 and 1995 elections, a pretty staggering decline, but perhaps little more so than the fall in turnout at last year’s British election from 71 to 59%.

Protest was delivered in one case by impossibilist extremism, in the other by withdrawal, but each was a way of registering disgust at what mainline politics now apparently offers.

The roots of this lie deeper than a government’s performance. Jospin had a decent record as prime minister, running a not unsuccessful economy, bringing in the 35-hour week, presiding, Brown-like, over more quiet anti-socialist reform than he liked to admit.

But governments these days face anomie, impatience, generalised discontent, which are less amenable than they once were to the recompense of doctrinal zeal, for the simple reason that it does not exist.

Governments, easily charged with failure, lack any vision to make up for it. Most elections, like this one, are full of languor and anxious imitation, where any semblance of vision is replaced by meretricious showboating, of the kind for which Jospin had no talent.

It’s easier to see the wrong answer to this than the right one. Le Pen’s answer is intolerable, and should not be graced for even a second with the knowing, if regretful, observation that he strikes a chord. He offers the pretence that there’s an easy answer to the security problem, and a commanding alternative to the complexities in which ordinary leaders seem to be trapped. On both counts his programme is as vicious as it is misleading.

There are no simple solutions to anything in these globalised days. The lure of the quasi-fascist answer, whether in France or Italy, deserves to be met with only one response: the re-energising of democratic politics, especially on the only wing that can be relied on to reject quasi-fascist solutions, which is to say the left.

The body politic laid bare by Le Pen’s success is Europe-wide. European, not just French, values are put in question; Europe as well as France faces the challenge of reaffirming progressive democratic answers to the problems of the age, including migration and social integration.

Europe’s credibility in the eyes of the world is on the line. Europe as well as France stands in desperate need of reconnecting political vigour with economic power, which I happen to believe can only be done properly on a Europe-wide scale – but that’s another column.

Britain, meanwhile, is protected from some of these manifestations by her electoral system. There will be no first republic, nor any PR at the heart of power. Even in Oldham and Bradford the forces of evil do not match those that brought Le Pen to the gates of the Elysee.

But the problem of disengagement exists here as well as elsewhere in Europe. Extremism is kept at bay by the system, but the seeds of alienation are buried deep. The wake-up call for the French left is an alarm bell that rings round the continent and its archipelago.

***

Confront the demon

The French left is paying the price for its failure to face up to the fear that is the lifeblood of the far right

By Jonathan Freedland

Now France will have to choose between right and righter. That’s a shock for the French and for a wider, watching Europe still unsure whether to laugh or cry.

What better reaction than ridicule for a country that could pick a bigoted buffoon as runner-up for its highest office? “We always knew France was a banana republic and now we have the proof,” quipped one Eurocrat in fthe power corridors of Brussels yesterday.

But most are in no mood for jokes. They are chilled that one of the three leading nations of Europe has elevated a fascist like Jean-Marie Le Pen to the highest level of its public life. France has already begun its own exercise in soul-searching, through that time-honoured method of collective reflection: the street riot.

But the introspection cannot be confined to France. For the choice French voters have made for themselves – between centre right and hard right – is an indictment of more than the French political system. It represents a great defeat for the left, which has always held its cause to be larger than any single country. Without precedent, a major democracy has presented its citizens with a ballot paper from which even the moderate left is entirely absent.

There are some tough lessons for progressives to draw from this failure, and they should start with the basics. In an unforgiving electoral system, where only one person can win, left voters have to unite behind a single candidate, otherwise they hand victory to the right.

US liberals have that truth etched on to their hearts thanks to the 2000 presidential race: if just some of those who voted for Ralph Nader had backed Al Gore, George Bush would still be on his Stairmaster in Austin, Texas. Neil Kinnock says the same thing: Sunday’s result reminded him of the bad old days of the 1980s when Britain’s anti-Thatcher majority was split in two, handing victory after victory to the Conservatives. (MARGO: This analysis does not fully apply to Australia – unlike the UK, France and the US, our preferential system allows votes for other left parties to flow back to Labor.)

In France, there were not just two alternatives for the left but nearly half a dozen – including not one but three separate Trotskyite parties. That’s fine on campus; in real life it’s an open door to the right.

Of course it helps to have a decent candidate. In France, as in America, the left were represented by a wooden technocrat, too lacking in the flesh-and-blood skills of modern electoral politics. That’s a risk progressive parties cannot afford to take again.

There is a last tactical conclusion to draw: the need to keep “clear red water” between left and right. As prime minister, Lionel Jospin initially set out on a distinctly social democratic course – red enough to bring old Labour types here out in a rash of envy – but increasingly he and Jacques Chirac edged closer together.

Owning the centre is always smart in politics, but not when the primary task is to galvanise your own side. Jospin needed to put ideological distance between himself and Chirac if he was to make the final two on Sunday – and only then reach out to the centre. His mistake: he fought the second round before he had survived the first.

But these are mere matters of electoral technique, and pale next to the deeper challenges the Le Pen result throws down to the left. Progressives need to realise that a premise for much of their thinking of the last decade, typified by New Labour, has now been shattered.

When any centre-left party drifted rightward, it always comforted itself that its core supporters would stay loyal because they have nowhere else to go. Now we know that is untrue. The once faithful can either stay home – as they did here in June 2001 – or they can turn right. Hard right.

Once progressives accept that the people they used to count as their bedrock vote – urban families on low income – can no longer be taken for granted, they should ask themselves a tougher question. Why did people who might once have voted for a socialist or communist line up so readily behind a fascist?

Supplying an answer might mean taking those votes at face value, and facing up to the grim fact that the National Front’s stance on immigration struck a chord. Some of the NF’s voters were drawn to Le Pen because they, like him, are plain racists. But, for others, the fear of immigration may be a more complex thing: a clinging to the familiar, tribal identity at a time of great uncertainty and confusion.

In a globalised world, where turbo-charged capitalism can take days to trample over and destroy a local culture that might have taken centuries to build, people seem to latch on to anything, or anyone, who promises to slow the pace – or even turn back the clock. (There seems to be less of this angst in Britain than on the continent: perhaps because, if globalisation means Americanisation and the spread of English, that threatens our neighbours rather more than us.)

Immigration, in short, is globalisation as people experience it. What Sunday’s votes suggests – along with the success of far right, anti-immigrant parties in Italy, Denmark, Austria, Holland and Belgium – is that people are scared of globalisation and will warm to any prophet, no matter how false, who tells them they can keep the world at bay.

Nor is this trend confined to Europe: what does religious fundamentalism offer if not a retreat from modern complexity, into the cosy realm of ancient certainty?

The left have to take this seriously. Until now they have been too quick to close down any discussion of race, fear ful that even uttering the word will let loose the demons of hate. Far better to acknowledge that this fear exists – and then to allay it, in language as clear, robust and even as emotive as that deployed by the right.

The left needs to present a case that says immigration enriches a society, rather than weakens it, and that there are ways to preserve and renew old and cherished cultures beyond simply keeping foreigners out. But the first step is to bring the subject into the open: if it stays in the shadows, the hard right can do its worst.

For some, immigration is not the point. It is a proxy, not for globalisation, but for disillusion with the system. Matthew Taylor, of the IPPR thinktank, believes big votes for racist parties are motivated less by overt prejudice than by the urge to “tell the establishment they are out of touch”. Think of Le Pen’s quip that he is “the candidate of the people against the candidate of the system”.

That does not belittle the importance of race in current politics but it does force a different response. It means upgrading the creaky institutions of our democracy, proving that national governments are not powerless in the face of global capital and that “politics” does not exist on another planet, but is connected to real life.

If the left wants to learn the lesson of the French thunderbolt, it needs to look anew at the relationship between government and governed. It is a big task – but we could not have been called to it more urgently.

At the end of the public hearings, government officials came back to reply. However, there was little if any rebuttal of the evidence presented: instead sweeping rhetoric remained the name of the game.

ASIO

Dennis Richardson, Director-General, Australian Security Intelligence Organisation: There has been a fair bit of comment on the breadth of the terrorism bills. I understand those concerns. From my perspective, I think the proposed legislation is necessary if we are to have an effective legislative framework to assist in combating terrorism.

The proposed bills certainly will not stop terrorism, any more than legislation against murder and robbery of itself stops those crimes. But the legislation is, in my view, necessary to deter, to punish and to seek to prevent. It is the latter – that is, prevention – which is a central element in the legislation.

In my view, current laws do not adequately deal with terrorism. As you know, there is no terrorism law as such. It is true that terrorists often kill, kidnap, damage property et cetera, and these are offences under Australian law, but these laws do not provide an effective legislative framework for prevention. Take, for instance, the question of training with a terrorist organisation. The Crimes (Foreign Incursions and Recruitment) Act makes it an offence to receive training in the use of arms or explosives or to practise military exercises for certain purposes. These purposes include the overthrow by force or violence of the government of a foreign state and causing by force or violence the public in a foreign state to be in fear of suffering death or personal injury.

However, the provisions are dependent upon proof that the training was provided for those specific purposes. There is no criminal offence of undertaking training with an identified terrorist network, such as Al-Qaeda. I understand that not everyone would agree with my view, but I think it ought to be a criminal offence to undertake terrorist training with a network such as Al-Qaeda. No existing legislation caters for this. The proposed legislation would.

In considering the issue of terrorism, it is I think relevant to note some of the changes since laws such as the Crimes (Foreign Incursions and Recruitment Act) were enacted. The movement of people, money and goods across international borders has grown enormously. The Internet has fundamentally changed the communications equation. Such changes, good in themselves, have also presented opportunities for those committed to using violence for political, religious or ideological reasons.

In order to properly combat terrorism, it is necessary to institute measures which will deprive terrorist networks of the means of support and assistance which they exploit for the purpose of conducting their activities.

This includes financial support, the provision of training and the provision of materials which may be used in the commission of terrorist acts in Australia and overseas. Although the instruments used in terrorism may sometimes be crude, various networks have become increasingly sophisticated in their use of communications, movements and methods to achieve their objectives. The nature and level of threats posed by particular groups may, as demonstrated on 11 September, change quickly and without forewarning.

Turning to the security environment, there is no known specific terrorist threat to Australia at present. The fact that we do not have information concerning any specific terrorist threat does not, of course, provide any guarantee, the most stark illustration being the absence of information on 10 September about what was to unfold the next day.

In terms of the broader security environment, Australia has been relatively free of terrorism. We do not face the same intensity of threats as the United States and some other countries. Equally, we should be in no doubt that the effects of 11 September are long term; 11 September was not a blip on the security landscape which will simply fade gradually into history. It has changed the security environment, and those changes will be with us for some years.

The US and its partners are engaged in a protracted war – or whatever word one wants to use. There will be further terrorist attacks, and of that I believe we can be certain.

Australia’s security environment is now characterised by a generally higher level of threat to Australia and its interests. We have operated for many years in the very low to low zone of the threat spectrum, with threat levels occasionally broaching medium level. Our normal operating level is now low to medium, with threat levels sometimes reaching high. We now have a sustained, high-level of threat to the US, the UK and Israeli interests in Australia and a higher level of threat to some other diplomatic missions and government visitors.

The threat from chemical, biological and radiological terrorist attacks has been raised from low to medium. Likewise, the threat to aviation interests has been raised from low to medium. Also, attention is now paid to threats to national symbols and infrastructure.

Since September 11 the threat to Australian interests abroad has also increased. In early November a grenade was thrown into the grounds of the Australian International School in Jakarta. In December, Singapore authorities uncovered advanced terrorist planning for an attack against largely US interests. The planning also included the Australian High Commission in Singapore.

As mentioned in our written advice, some terrorist groups with global reach have a small number of supporters in Australia and a small number of Australians have trained in UBL terrorist camps in Afghanistan. Not all the latter are in US military custody.

None of this should ring alarm bells. Likewise, I believe it would be unwise not to recognise that we are in a new situation and that part of our overall response should encompass specific legislation to provide a more effective legal framework for meeting the threat of terrorism.

Finally, I want to say that I understand the concerns expressed by many of the people who have given evidence before the committee about the need to protect civil liberties and human rights. From my perspective, we do not seek to challenge those liberties or rights. Rather, we seek a more effective legal framework to address the challenge posed by those whose targets of choice are innocent civilians and who seek to deny innocent people their ultimate right, to life itself.

Questions

Senator Payne: In 102.2(1)(d), the language refers to the ‘security or integrity of the Commonwealth or another country’. What is the integrity of the Commonwealth?

Richardson: It is the territorial integrity.

Senator Payne: Mr Marshall may be able to tell me whether that is defined.

Stephen Marshall, legal adviser, ASIO: As far as I am aware, it is not defined in the actual legislation, but I understand from consultations with the Attorney General’s Department that territorial integrity was the intent. (MARGO: The courts cannot take such advice into account when interpreting legislation.)

Senator McKiernan: Many of the witnesses that have appeared before the committee so far and those who have made submissions have argued, some quite strongly, that there is no need for this legislation that is before the committee at the moment, that the existing criminal law provisions can and should apply to acts of terrorism. Apart from your comments on the training in your opening contribution to the committee, what other reasons are there for the bringing in of these laws or, indeed, are the assertions made in submissions correct that the criminal law provisions currently on the statute books could handle all or most situations?

Richardson: I personally think that the existing laws are inadequate, particularly in terms of training, of planning and of things that might be engaged in in the lead-up to a terrorist act. They are difficult to identify. These laws would certainly give no guarantee that you would be able to prevent acts of terrorism, but I think they would certainly provide far greater prospects of being able to prevent than what is there at the moment.

Senator McKiernan: The definition of terrorism, as contained in more than one of the bills, is very broad –

Richardson: Yes, it is.

Senator McKiernan: Isn’t the broadness of the definition a further argument that the criminal law provisions that are currently on the statue books could apply, even to the extent of training for committing of an act of terrorism?

Richardson: The existing laws certainly would not apply in respect of training.

Senator McKiernan: Conspiracy?

Richardson: If you can establish proof that the training was undertaken for specific purposes, then yes it would. However, the mere fact that someone had trained with Al-Qaeda in Afghanistan would not, under existing law, be an offence.

Senator Ludwig: On that point, if we look at organised crime as a label, then under that label there are issues such as drug offences and money laundering – all those types of offences. Isn’t terrorism a similar concept? It is a label which harbours a range of criminal activity, and those criminal activities can be identified and prescribed. We identify criminal activities rather than prescribing that it is illegal to be a part of organised crime. I guess that is the analogy that Senator McKiernan is trying to pull out. In my view, it is a point that has not been answered. It has certainly been raised elsewhere. A number of submissions have said there are offences that we can create. If you say that the training is not one of them, maybe they could turn their mind to create a specific offence about that. But what about all the others? If that is the only gap, we could hypothetically create –

Richardson: I think there are also gaps in terms of planning, the different stages of planning, training and acquiring of things.

Senator Ludwig: That is two or three perhaps. Since September 11 have ASIO looked at the current legislation and developed an options or an issues paper and said, ‘These are the specific areas that we would not be able to address under the current criminal law, specifically the Crimes Act of 1914. We have identified specific crimes that we might then need powers to pursue, enforce or discharge our obligations?’

Richardson: The current draft legislation in its early stages was put together by the Attorney-General’s Department in consultation with us and a range of other agencies. We have had the opportunity to input into the process.

Senator Ludwig: My question was not whether you had input into the process but whether or not your organisation identified gaps in the current law? You either did it or you did not.

Richardson: Yes.

Senator Ludwig: I was wondering if that was available for the committee as to what you then said were the gaps?

Richardson: I do not know whether we produced anything in writing on it. There was certainly a range of meetings on it. We certainly identified the gaps that we saw.

Senator Ludwig: You have said those have been training, preparatory acts, planning –

Mr Richardson: And all the different elements of planning, acquiring of things in relation to and also developing some sort of definition of terrorism which is sufficiently broad to encompass its different manifestations, bearing in mind that broadening definitions also creates its own issues.

Senator McKiernan: I have told you about the significant concern we have heard about the definition, and the fact that is it too broad. We also heard that the exemption for lawful advocacy, protest or dissent may catch those involved in domestic political or industrial action. I ask you, from your position with ASIO, should such laws be able to catch such groups? There are not really exemptions contained in the act, but there has been argument put to the committee – and tested before the committee – that indeed the laws could be expanded to include what is seen by some to be legitimate protest. The actions at Woomera Detention Centre some weeks ago were used as an instance to illustrate the point to the committee.

Richardson: In answer to your question, certainly this law should not be used to target lawful advocacy, dissent, industrial action and the like. Simply by way of background, the formula that is there was designed to limit, not to expand. It is the formula that is currently in the ASIO Act; it is specifically in the ASIO Act. The act refers to lawful advocacy, dissent and a set of things similar to what is currently in this legislation. Under our act, theoretically, if you were to read our act and if you were to take it literally, you could put up an argument that the act would allow us to be targeting people who are engaged in lawful advocacy. (MARGO: As ASIO has duly done, many times, to the detriment of those so targetted.)

Senator Ludwig: Some submitters have argued that the current definition of terrorism tied with some of the offences would then mean that picketing, demonstrations and civil disobedience could be caught by the legislation. Do you have a view about that?

Mr Richardson: The only comment I would make, and it is really a pragmatic one, is that in the ASIO Act at the moment there is that conundrum there now.

***

AUSTRALIAN FEDERAL POLICE

Brendon McDevitt, General Manager, National Operations, Australian Federal Police: The proposed provisions in the suite of terrorism and related bills are essential for the investigation and successful prosecution of terrorism and its related offences. This is more important than ever in light of the recent leaders summit at which it was agreed that the Commonwealth should have responsibility for national terrorist situations.

The events of September 11 in the United States have fundamentally changed the law enforcement environment in which the AFP operates. Our law enforcement colleagues, nationally and internationally, are confronting the same issues and challenges in relation to an appropriate terrorism response. The majority of other countries have elected to legislate under the auspices of the United Nations framework, modelled in the charter of the United Nations, in much the same way as Australia is doing now.From a law enforcement perspective it is important for the Commonwealth to enact appropriate legislation without undue delay.

The changes since September 11 have seen a shift in the operational focus and priorities of law enforcement in this country. This is ongoing, we believe, and will continue as law enforcement agencies around the world come to terms with new dimensions of global and transnational crime, including terrorism.

Terrorism is not yet an offence, but government and community expectations, it would seem, are that terrorists will no longer only be identified but be placed before the courts and subsequently removed from where they can harm the community. The new offence of terrorism is at the very serious end of the AFP’s jurisdiction. Investigations into terrorist related crimes would be a top priority whenever they occur.

At all times, federal agents will conduct terrorist related investigations in accordance with the existing safeguards set out in part IC of the Crimes Act 1914. These safeguards are at the heart of best policing practice, and federal agents will be bound by them during investigations into terrorist offences in the same way as the safeguards currently apply to investigations into other serious offences.

Importantly, the overall package of bills will allow law enforcement to meet the increased expectations of government and the community who want to see those responsible for terrorist activity brought to justice.

Terrorist organisations have demonstrated that they are capable of using methodologies very similar to those used in organised criminal activities. There is benefit in aligning the most successful law enforcement strategies to combat both terrorism and other serious offences such as drug trafficking and people-smuggling.

These bills will provide the AFP with the legislative support to ensure consistency in the investigation of the most serious crimes. History consistently has shown us that terrorism offences are inevitably co-committed with other serious and organised crimes. Like other criminals, terrorists are creatures of opportunity and enterprise. It will not be possible to accurately predict the range of activities in which they will become involved, but it is likely that they will take advantage of all and any means to satisfy their objectives.

For this reason it is important to recognise the broad nature of terrorism and its potential links to other serious crimes, and to adopt the most flexible definitions possible.

Questions

Senator Payne: In your submission you talk about the definition of terrorism and the scope of terrorism definition which, you indicate, needs to be broad to deal with the unpredictable and diverse nature of the criminal conduct concerned. You then go on to say that, in practice, federal agents will not be pursuing Australians who engage in lawful advocacy such as rightful protest. You give an example – you talk about whether a gathering becomes aggressive and property is destroyed. You talk then about the charge that would be appropriate at the time being something like destruction of Commonwealth property. What I am interested in is where that is made clear in the legislation? How does an Australian reading the legislation understand that what they are participating in – whether it is a picket, a strike, an affray or whatever word might be used to cover it – will not find them at the end of a charge under terrorism legislation?

McDevitt: The definition of terrorism specifically excludes lawful advocacy, protest or dissent, and industrial action. The definition can only be applied to activity that is politically, ideologically or religiously motivated and that involves serious harm to persons, serious risk to public health or safety, serious damage to property or serious interference with essential electronic systems.

The sort of activity that we find at demonstrations is the sort of activity – whether the demonstrations are lawful or unlawful – which falls within the ambit of other existing legislation, such as the Protection of Public Persons and Property Act 1971 and so on. People can be arrested and charges can be laid in relation to the sort of activity where property is damaged, where people are injured or where lawful access and egress to a particular place is inhibited. To me the definition, quite clearly, does not include that sort of activity.

Senator Payne: Have you had a look at any of the submissions the committee has received from other organisations or individuals, such as the Law Council of Australia, Professor David Kinley or the International Commission of Jurists, which raise concerns about the breadth of definition and the breadth of activity that may, whether intentionally or unintentionally, fall within the definitions currently provided in the legislation? Has the AFP had a look at any of those?

Annie Davis, Director, Legislation Program, Australian Federal Police: Yes, we have had a look at some of those. In practice, police officers have a look at the offences that exist in legislation and then have to take additional steps, all of which involve safeguards – some of which are enshrined already in the criminal justice system and some of which are enshrined in policing practice.

Once an officer forms a reasonable suspicion that an offence is being committed they have to exercise their discretion guided by the ultimate brief of evidence that will be scrutinised and adjudicated by the courts.

They will also need to respect people’s civil liberties and rights while interacting with them face-to-face and with regard to whatever they may subsequently follow up with that person. Policing practice is governed formally and informally-formally, by our commissioner’s instructions and informally by being embedded within the police officer’s training and professional development in terms of exercising their discretion.

Senator Payne: … The legislation should be such that people will not need a briefing at the beginning of their demonstration or some advice as to whether – should an extreme…environment=al group decide that an appropriate thing to do is to jam an electronic system, whether it be a fax or email system, to try to convey a message to a minister of the government – that falls within the scope of this legislation. You can give me a lot of examples but, at the end of the day, if I understand them, that is one thing, but if it is not clear on the legislation, if what we are putting through the parliament is not clear, then that is another matter altogether.

Senator Ludwig: Has the AFP made a submission to their boss, I guess, to say, ‘Look, since September 11 something has changed. We need these powers to deal with the changed environment’?

McDevitt: To my knowledge, no, that has not occurred.

Senator Ludwig: Would you normally do that if there was a deficiency in the law, to say, ‘We do not have laws to cover this’?

McDevitt: That is correct. In this instance, my understanding is that that was already being recognised and generated by agencies other than ourselves.

Senator Ludwig: We were told also of a hypothetical case – we will call it the fertiliser scenario – where a person sought to buy fertiliser. Fertiliser is one of those substances which can be used to make an explosive device. The person came to buy the fertiliser at Mr Smith’s shop. In doing so he used a piece of paper to pursue the order for the fertiliser. He bought the fertiliser, so there was an exchange, and then took the fertiliser away. Looking at the types of offences, we were told that up to five offences could have been committed with that simple act because the fertiliser could be regarded as a substance used to make an explosive device. The shopkeeper did not make reasonable inquiries that the fertiliser was not going to be used for that purpose. The person utilised a piece of paper and therefore they were not careful enough in ensuring that the order was not fulfilled or they did not put themselves on reasonable notice to inquire that it would not be used. I cannot recall all of the bits but why would it not be the case that that would fall within this legislation?

McDevitt: To be totally honest, I think that that scenario is one that no self-respecting police officer in this country would try to take to a court. It would never get there. It would never get past first base. The checks and balances are there. Can I put it to you that the particular constable sergeant would probably say, ‘Go home, silly.’ That is just not happening. It would not ever get a run.

Senator Ludwig: But what we are looking at are the unintended consequences of these types of action. Looking at ‘possesses a thing’, 101.4 of the legislation states that ‘a person commits an offence if the person possesses a thing’. ‘A thing’ could be literally anything, including a mobile phone or a bag of fertiliser, or it could be ‘things connected with preparation for, the engagement of a person in, or assistance in a terrorist act’. We go on and find that an absolute liability then applies to (1)(b), and so there is not a lot of room to move.

To escape liability, you have to prove ‘that he or she was not reckless with respect to the circumstance in paragraph (1)(b)’. So, utilising the picketing example, even if a person was not reckless but they were using a mobile phone, which is ‘a thing’ they have to organise the picket, absolute liability attaches. They have not been reckless in the use of the mobile phone; they were organising the picket. So, on its own, the possession of the mobile phone would create an offence, let alone the earlier picketing falling within the terrorist act. Would you agree with that?

McDevitt: I can only say that it would be a question of mens rea (intent). It is a question of intent in terms of –

Senator Ludwig: There is no intent in the legislation. It is absolute liability.

Senator Scullion: I notice page 2 of your submission says that the Australian Federal Police has relied on existing provisions of the Crimes Act 1914 and other statutes as the basis for assisting the FBI with their inquiries. Have you found any shortfalls in your capacity, under the Crimes Act, to assist the FBI with regard to the issues surrounding September 11?

Davis: The shortfalls are simply planning, training and conspiracy.

***

ATTORNEY GENERAL’S DEPARTMENT

Keith Holland, Assistant Secretary, Security Law and Justice Branch, Attorney-General’s Department: (Re the evidence to date.) The first theme that has been very pronounced is the argument that there is no threat, therefore we need do nothing.

On the morning of September 11, 3,200-odd people, 497 of them from 91 different countries and three of them from Australia, woke up with absolutely no reason whatsoever to believe that in a few hours they would be dead. There was no identifiable threat that they were aware of, nor their government nor their government’s agencies. But they were dead because a group of people chose to think the unthinkable and turn the unthinkable into the unbelievable. The international community and the Australian government responded to that.

We have had reference in the course of these hearings to resolution 1373. The purpose of that resolution was to try and deal with the events of September 11, not for the sole purpose of punishment. This was a point that the Director-General of ASIO made this morning. There were a number of facets to what the international community decided to do…

It should also be remembered that those who perpetrated the acts of September 11 lived for varying degrees of time, some quite long, in the United States in a middle-class lifestyle, flying to and from different locations. And that cost a lot of money. Somebody had to be paying them to do that.

The premise, therefore, is that this legislation is about treating terrorism. It is why it is called terrorism. It is not about crime, it is not about organised crime; it is about organised terrorism and the individuals who commit it with the assistance and the finance of those organisations.

There are two messages that the legislation is meant to send: first, that we will do everything we can in conjunction with the international community – and this legislation cannot be looked at other than in the context of the role that the international community is playing and 1373 – to try to stop you doing what you are doing and, second, that at the end of the day, if we are unsuccessful, we will also do everything we possibly can to see to it that you are punished in order that another message is sent as well.

Questions

Senator Ludwig: In assessing the Crimes Act, what material did you go to? Did you do a framework analysis to determine what offences you were short of? You mentioned your framework, I suspect, but was there material that you relied on or could you produce the documents so that we can have a look?

Karl Alderson, Principal Legal Officer, Criminal Law Branch, Attorney-General’s Department: It was not based on a specific written document; it was based on our understanding of relevant Commonwealth offences and in many cases state offences and the coverage that those provide.

Senator Ludwig: Did you talk to the states about developing the current legislation?

Alderson: The main context in which there has been discussion between the states and territories on this issue is in the context of the special leaders summit that the Prime Minister chaired a few weeks ago and the officer level negotiations leading up to that.

Senator Ludwig: Yes, but I am talking about the legislation. In terms of identifying what legislation you required to address terrorism per se and the current legislation that you have, did you consult with the States about what gaps they considered they might have in the legislation?

Alderson: In the framing of the legislation there were no formal consultations with the States.

Senator Scullion: Yesterday, I was talking about the image of a car that has been blown into pieces and body parts – whether it is in a suburb of Perth or elsewhere. It might be an alleged consequence of people particularly interested in motorbikes or an alleged consequence of people who are trying to take some political action. How are you going to differentiate between those two very similar events? The reason I ask the question is that the penalty for one is murder and the other is more a strict liability penalty. I would suggest that the principal difference would be whether or not you were advancing a political, religious or ideological cause.

Holland: It would seem to me that if the police were confronted with a crime and had to decide whether it was a terrorist offence or an ordinary criminal law offence – for want of a better phrase – one of the factors that might influence them would be which of those offences would be easier to prove.

In bed with the flu, I’ve been reading up on the multitude of anti-terrorism bills the government is trying to rush through Parliament. Unbelievable! No matter if you’re left, right or neutral, this stuff is so far reaching and so damaging to so many citizen’s rights we have taken for granted that I’m amazed it hasn’t been on page one of every newspaper in the country.

The atmosphere of urgency surrounding these bills is, the government says, because they’re “very important”. They sure are, and for that reason alone they deserve far more consideration than the quickie Senate inquiry they’re getting. After all, as Attorney General Daryl Williams – the author of the package – keeps saying, there is no present terrorism threat in Australia.

The government released it mega-package at 8pm on March 12, and wanted it debated and passed by the House of Representatives the next day – a repeat of what it tried to do to Labor with its border protection legislation, riding public sentiment hard to get impossibly draconian laws rushed through without debate. The Senate committee was given the bills on March 20, and must report by May 3. Despite the short time, Australians have lodged 350 submissions. (You can read the evidence and the political speeches at Senate

To ease the passage of his package, Williams has laid aside two controversial items for the moment – detention without arrest or access to a lawyer for up to six days by ASIO if ASIO thinks you might have information on terrorism, and harsh criminal penalties for whistleblowers who leak information in the public interest.

What’s set to pass soon are bills creating new terrorism offences, allowing the Attorney General or any minister he nominates to ban organisations, attacking the financing of terrorism, increasing the policing powers of the customs service and increasing telecommunications interception powers. most are red hot.

I’ve focused on two aspects of just one bill, the Security Legislation Amendment (Terrorism) bill – the creation of terrorism offences, and the executive power to ban organisations without notice or right to appeal on the merits, and no compensation if he gets it wrong.

I’ve scoured the evidence of Government officials from ASIO, the Attorney General’s department and the Federal Police, and noted with disbelief that there was not even an examination of whether our current criminal laws were sufficient to meet the terrorist threat before producing with the package.

The federal police said they made no submission of the adequacy or present laws, nor did they recommend changes. ASIO said there was no written analysis on possible “gaps” in current law during discussions, and that it’s only big concern was the absence of a law criminalising training with a terrorist organisation, a tiny part of the new terrorism laws. Attorney Generals admitted it had not even asked the States – which make and administer the criminal law – for their views on possible gaps. In these circumstances, it’s rational to seriously doubt the purity of the government’s motives. Is it really about changing the law to help it stamp out terrorism, or is it in part using the present climate of fear as a cover for massive extension of its powers to control citizen’s political freedoms?

The package first reverses the onus of proof at the starting line. Rather than prove to its people that there is a need for all these new laws and explain why civil liberties should be trampled in its cause, they trample first, and leave it to citizens to prove they’re not needed.

In some cases, criminal offences are created with penalties of 25 years jail or life without the prosecutor having to prove any intention to commit the act. It’s called ‘strict’ or ‘absolute’ liability, before now is unheard of in criminal matters.

Non-violent protesters, unionists involved in industrial action, shopkeepers and business will potentially be guilty of ‘terrorist acts’. Protesters at Woomera over Easter, the World Economic Forum in Melbourne before the Olympics, and the waterfront dispute would have been guilty of “terrorist acts” under this legislation, and faced life in jail. The government ‘s only answer is that the police will use their “discretion” not to prosecute under these laws in those cases. Yet the Attorney General’s department, when given the example of someone blowing up a car, said police would decide whether to charge him with terrorism or property damage depending on “which of those offences would be easier to prove”! Either way, we’re talking a police state here – that’s what the weapon of broad, uncertain, highly stigmatised offences creates. The opportunities for police bargaining, threats, blackmail, and coercion to become an informer – are unlimited.

The Attorney General would be prosecutor, judge and jury over community groups – able to peremptorily ban an organisation which, in his opinion, “has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country”. ‘Integrity’ is not defined, so you go to the dictionary. The first meaning in mine is ‘honesty’ – goodbye refugee protest groups?

Since endangering the security or integrity of another country triggers a ban, free Tibet movements, for example, could be under the gun. The free East Timor movement may very well have been banned if this legislation had been place when the government was pro-Indonesia. The ANC, banned by the apartheid South African government as a terrorist organisation, could have been banned here.

The really weird thing about the new terrorist offences is that the same act or threat will be “a terrorist act” if done to advance “a political, religious or ideological cause”, but a mere criminal act if done for any other reason. The former is easier to prove, and carries greater jail terms.

To take an extreme example, if you graffiti “John loves Julie” on a wall, you’ll go for petty property damage, but if you graffiti “John Howard sucks”, you could go for “a terrorist act”. You can imagine how this option could be abused by governments, of whatever colour, to close down dissent.

Unlike the United Kingdom and the United States – whose terrorism laws happen to be less draconian than our proposed law – there is no recourse for the citizen. The US has its bill of rights, and the UK must must comply with European human rights standards. We have no protection against wanton assaults on our rights. These bills are, in effect, a reverse bill of rights – where freedom of thought, speech and assembly can be trampled at will.

It’s the climate of fear since September 11 that’s letting the government do this to us, but it’s running the mood for all it’s worth to get itself incredible, unaccountable power which in the wrong hands could virtually destroy our democracy.

Labor is going softly softly, as usual, as the government can and will scream that it’s tough on terrorists and Labor isn’t. I just hope the public, if they ever get to know what this stuff is really all about, will remember their usually healthy distrust of big government with big brother powers.

I’ve extracted the relevant sections of the bill below. As you read it, ask yourself when you last committed a “terrorist act”. I know I did – when I last made a donation to Greenpeace. I’ve also published edited extracts from the Senate hearings.

SECURITY LEGISLATION AMENDMENT (TERRORISM) BILL 2002

A Bill for an Act to enhance the Commonwealth’s ability to combat terrorism and treason, and for related purposes

Terrorism

100.1 Definitions

(1) In this Part, terrorist act means action or threat of action where:

(a) the action falls within subsection (2); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; but does not include:

(c) lawful advocacy, protest or dissent; or

(d) industrial action.

(2) Action falls within this subsection if it:

(a) involves serious harm to a person; or

(b) involves serious damage to property; or

(c) endangers a persons life, other than the life of the person taking the action; or

(d) creates a serious risk to the health or safety of the public or a section of the public; or

(e) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3) In this Division:

(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

(b) a reference to the public includes a reference to the public of a country other than Australia.

(4) The Schedule (after Division 100 of the Criminal Code) Insert: Division 101: Terrorism (Note: All offences in division 101 apply whether you’re inside Australia or overseas.)

101.1 Terrorist acts

(1) A person commits an offence if the person engages in a terrorist act.

Penalty: Imprisonment for life.

101.2 Providing or receiving training connected with terrorist acts

(1) A person commits an offence if:

(a) the person provides or receives training in the making or use of firearms, explosives or chemical, biological, radiological or nuclear weapons; and

(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty: Imprisonment for life.

(2) Absolute liability applies to paragraph (1)(b).

(3) A person commits an offence under subsection (1) even if the terrorist act does not occur.

(4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

101.3 Directing organisations concerned with terrorist acts

(1) A person commits an offence if the person directs the activities of an organisation that is directly or indirectly concerned with fostering preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

101.4 Possessing things connected with terrorist acts

(1) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty: Imprisonment for life.

(2) Absolute liability applies to paragraph (1)(b).

(3) A person commits an offence under subsection (1) even if the terrorist act does not occur.

(4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

101.5 Collecting or making documents likely to facilitate terrorist acts

(1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Penalty: Imprisonment for life.

(2) Absolute liability applies to paragraph (1)(b).

(3) A person commits an offence under subsection (1) even if the terrorist act does not occur.

(4) Subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

101.6 Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

Division 102: Proscribed organisations

Subdivision A: Definitions

102.1 Definitions

In this Division:

member of an organisation includes:

(a) a person who is an informal member of the organisation; and

(b) a person who has taken steps to become a member of the organisation; and

(c) in the case of an organisation that is a body corporate a director or an officer of the body corporate.

Declarations of proscribed organisations. 102.2 Attorney-General may make declarations

(1) The Attorney-General may make a declaration in writing that an organisation is a proscribed organisation if the Attorney-General is satisfied on reasonable grounds that one or more of the following paragraphs apply in relation to the organisation:

(a) if the organisation is a body corporate the organisation has committed, or is committing, an offence against this Part (whether or not the organisation has been charged with, or convicted of, the offence);

(b) a member of the organisation has committed, or is committing, an offence against this Part on behalf of the organisation (whether or not the member has been charged with, or convicted of, the offence);

(c) the declaration is reasonably appropriate to give effect to a decision of the Security Council of the United Nations that the organisation is an international terrorist organisation;

(d) the organisation has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country.

(4) The Attorney-General may delegate powers and functions under this section to a Minister.

Subdivision C: Offences in relation to proscribed organisations. 102.4 Directing activities etc. of proscribed organisations

(1) A person commits an offence if the person:

(a) directs the activities of a proscribed organisation; or

(b) directly or indirectly receives funds from, or makes funds available to, a proscribed organisation; or

(c) is a member of a proscribed organisation; or

(d) provides training to, or trains with, a proscribed organisation; or

(e) assists a proscribed organisation.

Penalty: Imprisonment for 25 years.

(2) Strict liability applies to the element of the offence against subsection (1) that the organisation is a proscribed organisation.

(3) It is a defence to a prosecution of an offence against subsection (1) if the defendant proves that the defendant neither knew, nor was reckless as to whether:

(a) the organisation, or a member of the organisation, had committed, or was committing, an offence against this Part; and

(b) there was a decision of the Security Council of the United Nations that the organisation is an international terrorist organisation and that decision was in force at the time the person engaged in the conduct constituting the offence; and

(c) the organisation had endangered, or was likely to endanger, the security or integrity of the Commonwealth or another country.

(4) It is a defence to a prosecution of an offence against paragraph (1)(c) if the defendant proves that the defendant took all reasonable steps to cease to be a member of the organisation as soon as practicable after the organisation became a proscribed organisation.

Application

The Attorney-General may make a declaration under section 102.2 of the Criminal Code after the commencement of that section in relation to: (a) acts or omissions committed before or after the commencement of that section…

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Here’s some edited extracts of what witnesses told the Committee about the bill.

***

Anthony Abbott, president of the Law Council of Australia

The breadth of the proposed offences causes us extreme concern. I should say that every one of the Law Council of Australia lawyers accepts the need to respond appropriately to the terrorism threat, but we feel that this response goes much further than is necessary;

We are (also) concerned by the proposed excessive concentration of power in the executive to proscribe organisations, a power which is unprecedented in Australian law;

Finally, we are concerned by the fact that many of the proposed offences are strict liability (ie intention to commit the offence need not be proved) which is unusual in our experience. Strict liability is a concept which attaches to planning offences, building offences and regulatory offences but not to offences which carry the substantial term of imprisonment and the opprobrium of terrorist offences.

The government has in this bill gone considerably further than is necessary and catches conduct which many Australians would regard as innocent, neutral or certainly not as justifying possibly being charged with an offence which carries a term of 25 years imprisonment.

The existing criminal law is adequate to deal with most, if not all, terrorist activity which has been the topic of speculation in the public. The government has not demonstrated in the second reading speech or in the explanatory statement why these powers are necessary.

We also say that, in responding to the terrorism threat, Australia has gone beyond precedents in the United States and the United Kingdom, and we do not see the need for that.

Ordinary Australians would not accept that a demonstration which might involve damage to property could be a terrorist act punishable by 25 years imprisonment. The width of the definition of ‘terrorism act’ is concerning to the Law Council. The requirements are that the act must involve the advocacy of a political cause, and one or more of serious damage to property or person.

There is an exemption for lawful advocacy, but, in the nature of things, many demonstrations and protests involve some form of illegality such as offences of trespassing on Commonwealth property. If that is involved, all the participants in the demonstration, as we read it, could be guilty of a terrorist act.

Not only does that have serious consequences for them personally in being able to be charged, but it also leads to the organisation being able to be proscribed by the Attorney-General under other powers in the bill. It also means that, under the ASIO bill which is not before your committee, a warrant can be obtained for people to be detained and held for questioning for 48 hours plus, without legal representation. These offences have very serious consequences and we say that they go too far.

The fact that the offences are of strict liability or absolute liability means that innocent Australians do not have to know that what they are doing is assisting a terrorist organisation. The pistol academy that trains a person is, as the explanatory statement says, put on notice to inquire as to whether the person is a member of a terrorist organisation. That trainer has the onus of showing that he neither knew nor was reckless as to whether he was assisting, by his training, a terrorist organisation. We say that goes too far.

Finally, we say that the power of a politician, the Attorney-General, to proscribe an organisation is unprecedented and the law and the Australian government ought to be satisfied with the ability to prosecute illegal activity rather than proscribing organisations and membership of organisations simply for their membership of that organisation.

‘Integrity’ is a term which is undefined and, moreover, it is not just integrity of our country, it is the integrity of any other country. That means that someone who argues for the overthrow of the totalitarian regimes in Iran, Iraq or Burma would be able to be proscribed.

We also have concerns about the fact that, once proscribed, a person can be guilty of a significant offence merely by being what is called an ‘informal member’ of that organisation.

Questions

Senator Scullion (Country Liberal Party, Northern Territory): On this issue of a ‘terrorist act’. Many who have given evidence have been concerned that a simple demonstration, or a normal public affray, perhaps, could fall within this net. I had a similar concern in a practical sense. I thought of the most heinous circumstance, in terms of a public affray in the last few years, that I could recall: the invasion of Parliament House in Canberra.

There was a meeting that got out of control. Property was damaged; people broke into the place; violence was perpetrated on people looking after Parliament House. I thought, ‘If any public affray got out of line, perhaps that would be it.’ I described that in some detail, and I asked the Attorney-General’s Department if those circumstances would lead to people being prosecuted under this act and whether that would be an act of terrorism.

They took the question on notice, and I would just like to hear your response to their answer. “It is not likely that damage to Parliament House during a demonstration would be a terrorist act. The definition of “terrorist act” excludes lawful advocacy, protest or dissent and industrial action. An act that caused damage to Parliament House would only be a “terrorist act” if the act was not lawful advocacy, protest or dissent or industrial action. It would be a question of fact as to whether the act caused sufficiently serious damage to fall within the definition of “terrorist act.

“In relation to how ‘serious’ would be defined by a Court, a court would interpret ‘serious’ in the context of this provision as meaning damage on a very substantial scale. It is very common for offences to include the word ‘serious’ and for the Court to interpret the term in the context of the relevant legislation.”

That was their response. What you think about that?

Abbott: The words used are ‘serious damage to property’. Property could be of any dimension, any value. Serious damage to a door means that it is destroyed, and that would on our reading fall within the purview of the section.

Clearly, what is contemplated is damage to buildings, destruction of buildings, but that is not what it says – to a door, it is serious if it is destroyed. That element would clearly be satisfied in our view, and it is just not satisfactory for citizens to be at risk of an interpretation as to serious damage to property like that and whether they are engaging in a terrorist act.

Yes, today we can accept that police and prosecutors will be reasonable in the cases that they prosecute and that they would not prosecute as a terrorist offence that type of offence. But it is just wrong for citizens to have to rely on that discretion to be exercised in their favour. They could be terrorised by the police and the prosecuting authorities holding over their heads the possibility of being charged with a very serious offence which carries undesirable connotations.

Senator McKiernan (ALP, Western Australia): You list a number of organisations that may be caught up by the provisions of the bill: the Australian Council for Overseas Aid, Community Aid Abroad, World Vision, Amnesty International. Isn’t it true to say that an organisation like Al-Qaeda would also be caught up in these provisions and, in that sense, the Australian community is demanding that the parliament and the government do something about organisations such as Al-Qaeda, and others who are listed in UN Security Council Resolution 1373?

Abbott: That is the clear case which justifies some form of government response. The Law Council’s submission would be that the government has existing powers to deal satisfactorily with a clear case like Al-Qaeda and to give a clear message to people that they ought not to assist Al-Qaeda and that if they do, they run the risk of being charged with aiding and abetting or conspiracy to commit a crime.

It may well be that a simple clarificatory provision of the Criminal Code to the effect that assisting in a terrorist act is a crime would be helpful, but there is no need, we would say, to proscribe Al-Qaeda or organisations generally. What should be concentrated on is the activity which they conduct. There is ample scope for the government with its powers now to deal with the activities of Al-Qaeda and organisations like it.

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Julian Burnside QC, representing Liberty Victoria

Our principal point is that there is simply no need for legislation of this sort. What this legislation does is to travel far beyond anything for which there is a demonstrated need, and it creates very serious threats to the democratic freedoms which, in our society, we have come to enjoy. The substantive criminal law is plainly able to deal with events such as September 11.

When you take into account the range of substantive criminal offences and the scope for ancillary liability of accessories before and after the fact, it is difficult to conceive of any aspect of the events of September 11 that would not be amenable to the existing law.

I was trying to think of circumstances which might require this legislation. Australia, fortunately, has been pretty much free in the past of anything that could be regarded as terrorism, although the Hilton bombing comes to mind. It might conceivably fall within this legislation, but it was plainly able to be dealt with by existing law.

The Eureka Stockade, although now viewed benevolently, could at the time have been regarded as a terrorist act. It would undoubtedly have been caught by this legislation. But it was also the subject of prosecutions under orthodox 19th century criminal law, all the elements of which survive.

Then, going down one layer to the difficulties with it, the difficulties arise in two ways. First is the vagueness of the definition of ‘terrorist act’ and the possible ways in which that definition might be applied. Second is the mere fact of making allowance for proscribing organisations, and I will develop that separately.

The committee no doubt is familiar with the terms of the definition, and the structure of it is acts or threats of acts of a particular identified range and those acts or threats are made with the relevant intention, namely, advancing a political, religious or ideological cause. Then there is an exclusion of lawful advocacy, protest or dissent or industrial action.

The scope of the exclusion is entirely vague. It is really difficult to know what that exclusion means, especially if you start with the proposition that the relevant criminal intention is the advancing of a political, religious or ideological cause. That will almost always involve something in the nature of advocacy and protest and certainly something in the nature of dissent, and it might or might not involve industrial action, depending on what is meant by ‘industrial action’.

To take an example, if the Workplace Relations Act is the source of the meaning of ‘industrial action’ then picketing is not included. So if a picket, which is almost invariably to advance a political or ideological cause, were to cause any of the range of harms dealt with in subsection (2) then it would be punishable with life imprisonment. Even a threat to picket would be punishable with life imprisonment. That is the startling development in Australian law.

I dare say that it is not what is intended, but the way the law is applied will depend very much upon the political climate in which it is applied. . At the moment there is one group in our society who are automatically the object of suspicion and hostility. It is grossly unfair that it should be so, but it is easy to see that legislation like this is likely to be applied harshly against that group precisely because they are politically unpopular at the moment.

If that needs any justification, let me tell you something has happened yesterday. A friend of mine lives in one of Melbourne’s pleasant, rich, leafy suburbs in a small Victorian house. He is good-hearted enough to be accommodating to people who hold temporary protection visas who have fled persecution in Iran. He was raided yesterday morning by eight officials of the immigration department carrying a search warrant.

The search warrant was granted to them because an anonymous neighbour had reported the presence of Middle Eastern people near the house. That is the political climate in which we presently exist. I hope it will pass, but in that political climate – in a climate that makes that even thinkable – the possible application of this act is quite terrifying. It will undoubtedly bear hardest on groups who are unpopular and groups who are least able to defend themselves.

Let us consider for a moment how a lawyer might go about advising in connection with proposed action a group which is proposing to picket, for example, for political purposes.

It is known that the picket will have an effect, for example, on the operation of the government department by trying to stop people from entering the government offices at the top of Lonsdale Street. Or it may have an effect on the operation of the power plant at Yallourn; power workers do go on strike. Or it might, for example, affect the docks.

It is only a couple of years ago that surprising things happened on the docks which had consequences which are comfortably within the definition in subsection (2). How would a lawyer advise that group of people about whether they could safely pursue their proposed action?

If it was a picket, they would not be saved by the exception. The purposes are clearly within the first part of the definition. They would have to say, ‘Well, is it likely that this will be understood as lawful advocacy, protest or dissent?’ How is that to be understood if the exception of industrial action does not fit? Who is to determine what is lawful advocacy, protest or dissent?

In a poisonous political climate it is very likely that that exception will be read down, and that will operate harshly on any group that is unpopular.

That is the difficulty, it seems to us. In a country where almost nothing is unthinkable these days, it is easy to imagine this legislation being applied very harshly against unpopular groups and in relation to activities which either are already unlawful and therefore are able to be dealt with under existing laws or else are part of our ordinary democratic processes and would be regarded as appropriate, proper, and part of the price of being in a democratic society.

Defining something called ‘terrorism’ and linking it to ideological intention is bound to operate most harshly against those groups who are most politically unpopular, for whatever reason. It is just inescapable, and I think that the history in England with the Irish Republican Army prosecutions illustrate that and commonsense, I think, also suggests it. In the past they were witch-hunts. In the future it will be terrorist prosecutions.

The second problem with it is the proscribing of organisations. Proscribing organisations is a very different thing from proscribing acts. Generally speaking, acts are the object of criminal laws; organisations are not.

Proscribing an organisation is tantamount to proscribing modes of thought – because what makes an organisation, generally speaking, is a community of ideas or beliefs. To proscribe an organisation where there is no act done by individual members of that organisation is, with respect, nothing more than an assault on freedom of thought.

If, on the other hand, members of organisations do engage in acts which contravene the criminal law then the law is able to deal with them.

There is a subsidiary difficulty with the provisions relating to proscribing organisations, and that is the very wide definition of ‘membership’, which includes people who are informal members or who are trying to become members; and those people can not only cause the organisation to become a proscribed organisation but can also be caught up inadvertently in the conduct of other people who are, properly speaking, members of the organisation.

The measure that allows anyone – a judge, the Attorney-General or anyone at all – to proscribe an organisation is profoundly dangerous and, we would say, profoundly undemocratic. It amounts to nothing more than restraining freedom of thought.

We would finish by challenging the proponents of the bill to identify anything that constitutes a terrorist act which cannot be punished now. Until they can identify that, there is no cause for this legislation and the dangers it brings.

Questions

Senator Payne: (Liberal, NSW, committee chairwoman): An example that you use is the nurses union and strike activity… You say in your submission that you believe that would fall within the current drafting of the legislation. That would be an extreme application of the legislation as it is expressed – do you agree?

Burnside: It is at the outer edges of its application, I agree with that. But that is enough cause for concern because it is not too difficult to think of other examples that are also at the outer edges but which would also be caught up.

I come back to what I suggested earlier: test it in practical application. How would a lawyer of ordinary competence advise a client planning to do things like this? This is where one comes across a very genuine concern about our basic democratic freedoms. If a competent lawyer cannot confidently advise you that, for example, nurses picketing would not be an act of terrorism, then in the sort of political climate in which legislation like this might be applied you will have people self-censoring, restraining their own conduct and preventing themselves from exercising their ordinary democratic rights – as we understand them at the moment – out of fear of being sent to jail for life.

Self-censorship is not necessarily a good thing, and restraint by fear is exactly what democracy is meant to avoid.

May I remind you of what happened in April 1998. The change of the guard at the waterfront led to mass public demonstrations at Victoria Dock and other docks around the country as people protested against the arrival of attack dogs and men in balaclavas taking over the jobs of the union members.

Those acts, which undoubtedly affected Australia’s international trade in quite a significant way for a month or so, would have been caught squarely within this definition. It is an astonishing thing to think that conduct that was viewed at the time as a rightful protest in public against conduct that was regarded as unAustralian would be punishable by life imprisonment.

It is not a far-fetched example; it is a fact which happened in Australia in very recent memory and which would be caught. That is a very alarming prospect. In the course of demonstrations like that some criminal offences are caused – damage to property and so on. Those consequences are readily dealt with under the law as it exists. But, if the effect of passing legislation with as vague a definition as this is that everyone will have to look over their shoulder to see whether their ordinary democratic expression will now be regarded as an act of terrorism, it seems to me to take us to the point where in order to preserve democracy we kill it off.

Senator Greig (Democrat, Western Australia):We heard earlier from some groups such as Electronic Frontiers, who were arguing that this actually brings in some new aspects of criminal law – for example, the rights of authorities to access telecommunications at Internet Service Providers – without a warrant, whereas they cannot do that currently. So I am wondering if perhaps a broader summary would be that it takes some further steps in winding back civil liberties.

Burnside: What this does is to catch a lot of things which most people would not regard as criminal acts or terrorist acts or acts appropriate to be the subject of a term of life imprisonment. It simply reaches too far and across territory that is already covered, and then it goes further into territory where the parliament had never thought it appropriate to proscribe conduct or, for that matter, organisations.

The fact that the associated legislation gives wider powers in relation to search warrants, detention, interrogation and so on, in connection with wide offences of this sort, is obviously a matter for very serious concern because it means that you can predicate all sorts of perfectly ordinary conduct which will allow people to be dragged off the street, held incommunicado, interrogated without lawyers and maybe banged up for 25 years or life. It is a pretty astonishing consequence and something that I suspect most Australians are simply not aware of.

I want to focus the problem on this: at the heart of the definition of ‘terrorist act’ – and this then takes you across into the sorts of organisations that might be proscribed – are two sets of normative words; namely the reference to advancing political, religious or ideological causes on the one hand and the exemptions law for advocacy, protest or dissent.

They are all value laden expressions. I think you will find that, in circumstances that call for this legislation to be applied, the first group – the ideological words – will mean ‘unpopular’ political, religious or ideological causes’ and the exceptions will be understood as ‘popular’ lawful advocacy, protest or dissent. Unless human beings have changed rapidly in the recent past, that is an almost inevitable consequence.

Senator Greig: And dissent, presumably, is anyone who disagrees with the government or popular orthodoxy.

Burnside: Absolutely; it is self-evident. There are plenty of examples of that in history – unpopular causes. It is a truism that one person’s terrorist is another person’s freedom fighter, and we have seen people’s definitions of other groups change over the course of the last decade. Bear in mind the history of South American politics, where sometimes a certain group will be regarded as terrorists and other times they are freedom fighters supported by the US government.

Senator Cooney: (Labor Victoria) If you seriously damage property or seriously harm a person for reasons of greed, lust or envy, you are going to be better off, aren’t you, than if you do it for political or religious purposes?

Burnside: Yes. If you have a noisy dispute on a building site that leads to property damage or shuts down an important service then life imprisonment, but if you do it because you are greedy then, yes, you are right, it will just be a smack on the wrist.

Senator Cooney: There is also the issue of informers. You have no doubt heard the 1938 radio broadcast of Winston Churchill in this area. In his broadcast he talked about Nazi Germany. He said that that society encouraged the development of informers and that this was very bad: people were going about their business not sure what was going to happen to them. That account you gave of your friend who had some difficulty with eight people from the immigration department made me think of it, with the informer in the street talking about them. This creates the climate where that happens. Do you have any thoughts about that?

Burnside: I think it is a distinct possibility, and it is profoundly disturbing. Interestingly, in 1938 Churchill was extremely unpopular politically and his rhetoric probably would have brought him within the provisions of this act!

Senator Cooney: It would have, of course, because he was advocating preparations for war.

Burnside: Yes.

Anne O’Rourke, assistant secretary, Liberty Victoria: As you were talking, I remembered that incident. If you take it that, let us say, it was by members of the CFMEU, they might be an organisation that has endangered, or is likely to endanger, the security or integrity of the Commonwealth, and then that action could be interpreted within that definition and thus they could become a proscribed organisation. The response that you were given is not necessarily the case. It is a matter of interpretation. These things will be argued out.

Burnside: I wonder whether, Senator Scullion, you could think about it this way, because no-one can predict the circumstance in which this legislation might come to be used. Imagine that same episode at Parliament House: lots of damage and so on. Then imagine that in one scenario all of the people participating are dressed in balaclavas and have CFMEU logos front and back. Next imagine that they are all Aborigines. Next imagine that they are all distinctly Middle Eastern in appearance. Next imagine that they are all calling out in a broad Irish brogue. Add the stereotypes as you like. At that point, ask: will they be treated in any different way? Will people understand this legislation any differently, according to the identity of the people involved?

I suspect that the honest answer is that, yes, they will. If it were a bunch of middle-aged housewives who had just got a bit carried away after bingo, I think that people would react rather differently. Then add to that this question: what is the political complexion of the government of the day? Does that make any difference to your confidence that there will or will not be a prosecution? Unless you can answer with confidence and unless people generally would accept your answer as accurate, it is unacceptably vague in its coverage.

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Ms Nicole Bieske, Amnesty International:

Human rights should not be something that governments endorse when they feel like it, but they actually constitute the bare minimum of safeguards necessary to protect the safety of individuals from the abuse of power.

The first significant issue is the reversal of the onus of proof. (The rules of the proposed International Criminal Court deal with) heinous crimes – genocide, crimes against humanity – the worst kind of crimes that people can think of, yet they have still continued the presumption of innocence in relation to those crimes.

We do have concerns in relation to breaches of natural justice in relation to proscription processes, and that it does provide for a form of collective criminalisation, and that there is no ability for full and complete review of this proscription.

Our final concern is the fact that the legislation lacks any provision for compensation if organisations are proscribed and are subsequently found to have been incorrectly proscribed.

Questions

Senator Payne: You talk about ‘collective criminal punishment of an organisation’ –

Bieske: The concern that we have is that the legislation provides for the definition of ‘member ‘ to be extremely broad, to include a person who has taken steps to become a member and to include an informal member. It also allows for proscription of an organisation because of the acts of one person.

We feel that, because of the penalties that flow from the organisation being proscribed, what you are effectively doing is collectively criminalising all of the members of the organisation because of the conduct of possibly one renegade member

The UK Terrorism Act specifically targets the organisation and the conduct of the organisation. It does not focus on the conduct of individual members. It requires the organisation to have been involved in terrorism, whereas the Australian legislation, as drafted, provides for an individual member and the acts of an individual member to be sufficient grounds for a proscription.

***

Mr Joo-Cheong Tham, lecturer at the law school at Victoria University: The key to understanding the operation of the bill is really the foundational concept of a ‘terrorist act’. There are two main elements to the definition of ‘terrorist act’: there is a motive element – ‘intention of advancing a political, religious or ideological cause’, and the action element, which the bill describes as action falling within subsection (2). The outer limits of the action element are basically constituted by two circumstances: action involving serious harm to a person and action involving serious damage to property.

The second point about the definition of ‘terrorist act’ is the limited protection that is afforded by the exclusions. Public demonstrations technically involve some element of unlawfulness. Any public demonstration, even though it is completely peaceful, might involve trespass or public nuisance, and not come within the envelope of this exclusion.

The second exclusion relates to industrial action. That is left undefined by the bill. The significance of this is that, under the Workplace Relations Act, the full bench of the Federal Court has defined industrial action to exclude all forms of picketing.

Let me pick an example that Senator Scullion put to various witnesses about representatives of the National Farmers Federation coming to Parliament House. Say the National Farmers Federation, because of a political issue, comes to Parliament House and enacts a truck blockade. The motive element is clearly satisfied – there are no worries about that. In setting up the blockage, they are probably trespassing and there is a public nuisance, so the protection of lawful advocacy, protest and dissent is out the window.

Thirdly, when they set up a truck blockade, they notice a real chance that those trucks will be removed to allow passage to Parliament House for people like you. When that happens, the Australian Federal Police move in and remove the trucks. It is seriously arguable that the National Farmers Federation knew that the truck blockade carried a high chance of being removed and involving serious damage to property. The fact that that action did not directly cause serious damage is not the point with this definition in the bill, because the word ‘involved’ is used.

Another example is the protests at Richmond Secondary College, where various people were engaged in passive civil disobedience. They linked arms and blocked off the entrances to Richmond Secondary College. When they did that, they knew that there was a very strong chance that the police would come in and remove them and, in that process, inflict physical injury or serious harm to a person.

That is what happened: the police came in, applied pressure-point tactics and inflicted serious harm to various protesters. It is seriously arguable, under the bill’s definition of a terrorist act, that the action of protesters in engaging in purely passive civil disobedience would constitute a terrorist act.

Let me give you a few examples from the industrial sphere. Various types of picketing are going to constitute terrorist acts under the bill. You can assume that the motive element is satisfied. If people picket for some notion of industrial wage justice, fine – the exclusion of industrial action does not apply.

The exclusion for lawful advocacy, protest and dissent is not applied because any form of picketing, whether peaceful or otherwise – this is to be stressed – involves some unlawful element. Peaceful picketing can involve nuisance, defamation, trespass and so on. The common law has always been trenchantly hostile towards forms of industrial action. So we have those two elements satisfied.

The third element is the action element. If you have picketing that elicits heavy-handed tactics by police or private security guards, again you can run through the same analysis about action involving serious harm or serious damage.

In other cases there is the absence of heavy-handed tactics by police or private security forces – for example, picketing by information technology engineers. When they take industrial action, they intend to disrupt information technology systems. You have to satisfy the action element and the action element can be satisfied if there is action which seriously disrupts or interferes with the electronic system. The same reasoning applies for picketing bank tellers.

You satisfy the action element in a different way for picketing nurses. The action element can be satisfied if it creates a risk to the public or a section of the public. The bill does not define what a section is, but let us say a section is 10 people. When nurses picket, it is not uncommon that there would be a risk to the health of certain sections of the public. These are illustrations of the breadth of the foundation or the concept of a terrorist act.

I want to talk about the impact of this bill on business. Proposed section 101.4 criminalises a person possessing a thing – that is the first element. The second element is that the thing is connected with the preparation, engagement and so forth of a terrorist act. The bill affords a limited defence where it is established that a person was not reckless as to the fact that the thing was connected with the engagement, preparation et cetera. The impact on business may be as follows.

We know there is a wide range of items that could be used for terrorist purposes in a primary sense. It could involve fertiliser being used to make explosives. Another example relates to my father who, when he was boarding a plane in Malaysia, had his nose hair tweezers confiscated. That gives you an idea of the range of items that could be used for terrorist purposes in a primary sense.

In the example of an unfortunate retail business which sells fertilisers that could be used for explosives, that business possesses ‘a thing’ – no worries. If one of its customers uses that fertiliser to make a bomb, the thing is connected with a terrorist act. It then falls on the business to discharge, on the balance of probabilities, that he or she was not reckless as to the fact that this bag of fertiliser was going to be used for a terrorist purpose.

As the Law Council mentioned, the Attorney-General’s explanatory memorandum is clear. If you possess a thing connected with a terrorist act, you are put on notice. You either divest yourself – for the business, it means closing down the business and getting rid of the bags of fertiliser – or you ensure that that bag of fertiliser will not be used for terrorist acts.

Let us try to imagine what that might mean. What that might mean for business is, I would say, an effective system of inquiry directed at the customers’ usage of their items. For example, that might require customers signing statutory declarations saying ‘I shall not use this for a terrorist act’ or – depending how judges interpret this particular provision – obtaining clearances from the AFP, the state police and so on.

Let me illustrate this with a short hypothetical to make this concrete or more real. Let us take a ‘Mr Abdul’, who is a sole proprietor. He runs an incorporated business called Abdul Pty Ltd which sells agricultural products. One of the things he sells is fertiliser. A Mr Smith who patronises his shop is a member of a white supremacist group and he plans to bomb the office of a cabinet minister. He has been told by his comrades in Tennessee, ‘If you buy this fertiliser, it is particularly effective in making homemade bombs and explosives’. He has a sheet of paper with specifications about what particular fertiliser he has to buy.

He walks into Mr Abdul’s shop and he hands over the sheet to Mr Abdul, and Mr Abdul says, ‘Great, I’ve got that fertiliser,’ and he sells that fertiliser, takes the money from Mr Smith, issues an invoice and dutifully puts down the GST component.

Even before Mr Smith carries out the bag of fertiliser and exits the shop, I can count a list of five separate offences that have been committed under this bill. Let us assume Mr Abdul does not have an effective system of inquiry into his customers’ use of items; he does not ask for such declarations and has not heard of the Security Legislation Amendment (Terrorism) Bill 2002.

While the bag of fertiliser is sitting in Mr Abdul’s possession, he is committing the offence of possessing a thing connected with a terrorist act. It does not matter under the bill that a terrorist act has not been committed because that is expressly spelt out in the proposed offences. That is offence No 1.

Offence No. 2 is committed when Mr Abdul is in possession of the documents specifying what fertiliser should be bought for making explosives. Again, he is committing the proposed offence of possessing a thing connected with a terrorist act. When he collects the document, he is committing the proposed offence of collecting the document connected with the terrorist act.

When he issues the invoice, he is making a document connected with a terrorist act. Finally, because he is a sole proprietor, he is directing an organisation indirectly concerned with the preparation of a terrorist act. There are five offences, each of them punishable by life imprisonment.

You can see from my discussion about the illustration of the bills’ applications that the package is going to have a clear adverse impact on freedom of assembly, freedom of association, business and the right to strike. For that reason alone, these proposed schedules should be abandoned.

The second reason is – and the point has been made repeatedly by witnesses before this committee – the adequacy of the criminal law. Senator Bolkus raised Justice Hope’s comments in respect of that, and the point is made clearly by Justice Hope in the protective security review report, which was commissioned by the Fraser government after the Hilton Hotel bombing. He said, ‘Terrorism by its nature involves breaches of the ordinary criminal law.’

And the third reason, which is perhaps the most disturbing aspect about this bill and about the counterterrorism package in general, is that the process leading up to and the proposals of the bill really represent a grievous failure of democracy. In saying this, I can accept what I think Senator Scullion said in the Sydney public hearings that, ‘It’s rubbish to say that the world hasn’t changed since September 11.’ That is true. But the question is: how has it changed?

It is clear that there is great pressure on people like yourselves – politicians – to introduce new laws to respond to what Eva Cox described as the ‘moral panic’ that has arisen since September 11. But a key question for the Senate is this: what is the demonstrated need for new legislation, new offences and new powers?

We know that there is no specific known threat of terrorism in Australia. We know this because the Attorney-General, Daryl Williams, has reassured us numerous times since the September 11 attacks that that is the case. All we have to clutch at in terms of demonstrated need for new legislation – new offences punishable by life imprisonment – is just vague references to a ‘changed international security environment’ and the like.

For the most part, the need for legislation is assumed rather than explained or justified. The transcripts of the Sydney hearing, for example, had Mr Ford from the Attorney-General’s Department referring to ‘gaps in legislation’. That is assumed. I for one could not find why these were considered gaps – why the existing criminal law could not cover whatever was intended to be covered. The scandalous nature of the failure to justify – and it is really a failure to be democratically accountable – is thrown into stark relief when one looks at the Protective Security Review report by Justice Hope and the careful examination that is contained in that report.

Questions

Senator Greig: There would be those who are generally supportive of the principles behind this legislation who would say, ‘Oh, come on, Mr Tham, this legislation is not directed at people selling fertiliser. Clearly the key word here is ‘recklessness’ and it would be absurd or unreasonable for any court to say that a retailer selling somebody fertiliser could be deemed to have been reckless. It would be like saying a second-hand car dealer might be convicted because somebody was involved in a car accident because they sold them that car’. If I can draw another analogy. What would you say to those people who would say, ‘No, the law is structured in such a way – the terminology is there in such a way – that it would not capture people in the fringe hypothesis that you give; it is more directed towards more concrete examples of recklessness’?

Tham: The clear terms of the bill basically place the onus on whoever is charged to discharge, on the balance of probabilities, that he, she or it was not reckless and that the thing was not connected with the preparation, engagement and so on to commit a terrorist act. That in itself inherently requires that person to take some positive steps to actually discharge that onus. It is well settled: you can look at the Acts (Interpretation) Act and you can refer to the explanatory memorandum interpreting the bill. The explanatory memorandum says quite clearly that people who have things connected ‘with a terrorist act’ are put on notice. Again, that means it requires them to take some positive steps to be able to discharge their onus and say, ‘I was not reckless.’ Those positive steps, of course, could only be settled by judicial interpretation, but it is quite arguable to say that those positive steps would involve at least some inquiry by the retail business or whoever asking, ‘What are you going to use this for?’ I think that is an eminently possible interpretation of the bill.

Senator Greig: I cannot imagine a scenario where somebody retailing fertiliser would ask the purchaser what they were going to use the fertiliser for, as opposed to somebody purchasing a rifle or a weapon or explosives of some sort. But even there I cannot picture an example where a purchasing officer in a mining camp in Western Australia would be asked why he would be buying gelignite, for example.

Tham: In those situations, if you cannot imagine it and if those businesses have not actually asked questions about why the customers are using it, those businesses run the risk of being convicted under this bill.

Senator Ludwig (Labor, Queensland): You mention the downloading of material in your submission. Is that a person who – innocently, I guess, because it is a strict liability offence – downloads material which could then include them within the definition of terrorism? They might be simply searching the web or surfing the web for a whole range of assignments on terrorism, for argument’s sake.

Tham: Exactly. Take the example of a document detailing, blow by blow, the actions of Al-Qaeda. The bill uses the phrase ‘connected with’; a document ‘connected with’ the engagement in a terrorist act. I think it is seriously arguable that a document documenting the terrorism of Al-Qaeda is a document ‘connected with’ the engagement in terrorist acts. It arises from the natural and ordinary meaning of the bill. If a person downloads the document from the Net, he or she makes a document ‘connected with’ the engagement in terrorist acts.

I am a university academic. If I knowingly do research – I know it is a document about Al-Qaeda, because that is what I am doing research on – and knowingly download a document, I cannot avail myself of the defence that I was ‘not reckless’ about the fact that it was connected with the engagement in a terrorist act because it was a knowing act.

Senator Bolkus (Labor, South Australia): On page 18, you refer to what I think is also a somewhat worrying provision which has not been focused upon: “The Attorney-General can proscribe an organisation if s/he believes on reasonable grounds that a relevant offence has or is being committed”. What you are suggesting there is that by that position the Attorney-General is putting himself into the position of judge and making an assessment of whether an offence is committed, and that offence does not have to be proven at law.

Tham: It does not have to be proven at law and, further than that, the person does not even have to be charged with that offence for the Attorney-General to reach an opinion.

Senator Cooney: Julian Knight is somebody who shot dead six or seven people in Hoddle Street in Clifton Hill, or Collingwood. You have heard of the shootings in Port Arthur in Tasmania? Neither of those examples would be examples of terrorism. Even though lots of people were killed, they were not terrorist acts under this definition. That is right, isn’t it?

Tham: Because of the motivation, yes.

Senator Cooney: So what we are punishing here is motivation rather than facts. Is this what you were saying before – that there is already plenty of legislation there to deal with the facts, and what this is dealing with is motive and that is all? Motive is normally used to work out whether a person is likely to have committed a crime – the intent is what counts in criminal law, isn’t it, rather than motive?

Tham: That is right.

*****

Rev David Pargeter, Director, Justice and International Mission Unit, Uniting Church : The issue of greatest concern to the unit is the issue of proscribing organisations. Of great concern to the unit is section 102.2 of the bill, in which the Attorney-General is granted the ability to proscribe any organisation where that organisation ‘has endangered, or is likely to endanger, the security or integrity of the Commonwealth or another country’.

We are concerned that this provision could be misused to proscribe nonviolent political independence movements in other countries. For example, this provision could be used to proscribe nonviolent Kurdish, Tamil, Palestinian, Sudanese or West Papuan organisations that seek independent states. The unit is deeply concerned at the level of executive power that this provision places into the hands of the Attorney General.

We are also deeply concerned that anyone that ‘assists’ a proscribed organisation in section 102.4 could face 25 years imprisonment. Despite written assurance from the Attorney General’s Department, it remains unclear what would constitute assistance. Had this been in place during the church’s campaign to end apartheid in South Africa (we) would have a number of people still in jail simply because of their involvement in their support of the ANC and the allocation of funds at times to support education programs in the schools in South Africa.

As churches, we also provide political assistance. We have relations with a number of partner church organisations around the world and we often feed into common bodies, such as the Middle East Council of Churches and the World Council of Churches. We make comment and seek to actively assist those partner churches. Hypothetically – very theoretically – you could end up in a situation in which someone we are assisting is banned. That puts us in a situation in which we are in danger of being caught under the assistance provision.

***

Professor David Kinley, Director, Castan Centre for Human Rights Law, Faculty of Law, Monash University: The challenge for any country such as Australia is that the legal response to terrorism must be one that falls within the acceptable bounds of a democratic society and a society like ours, which is proclaimed to follow the tenets of the rule of law. The bottom line is that the response must be proportionate.

Our concern with the manner in which the bill chooses to go is that it has chosen not to fall under the normal criminal law provisions, but rather to have a specific act. The terrorist net that is cast by the bill leaves, we think, too much opportunity for incidental or collateral damage. Therefore, it is not, in our view, proportionate in certain respects.

What is ‘lawful protest’? What is the ‘reckless provision of training’? What is ‘direct’, and more to the point what is ‘indirect’ assistance in the directing of terrorist organisations? How does one deal with the reversing of the onus of proof-the proof now having to be demonstrated by the individual that they were not assisting a claimed terrorist organisation?

Secondly, the net that is cast by the terrorist provisions is potentially too wide, and wider than is necessary. Incidental unlawfulness that may occur at Woomera – is that to be considered part of a terrorist act? In the protests against the WTO, are the incidental elements of unlawfulness or the whole of that protest to be considered a terrorist act?

Indeed, one can go so far as to say, is the promotion of an ideology such capitalism, if it has environmental damage as a consequence of pushing the ideas of capitalism – in other words, a corporation seeking profit, and this happens – a terrorist act? I think there could be an argument raised that that would fall under the current provision.

Questions

Senator Scullion: You were looking at circumstances that perhaps would be caught in the net unintended, and you are the first person giving evidence to suggest that if a corporation were somehow involved in some sort of ecoterrorism then it would be caught in this net. Could you lead me through how you came to that conclusion?

Kinley: Take the definition of a terrorist act, at proposed section 100.1(1), which is that: “(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause …”

There are so many things that would fall under that, and at least one thing could be capitalism; I think that is an ideological cause. The definition continues: … “but does not include: (c) lawful advocacy, protest or dissent …”

You might say that capitalism could be considered, on its broad basis, a lawful advocacy – that is, the advocating of capitalism. But then it says, at 100.1(2), that: ‘Action falls within this subsection if it: (a) involves serious harm to a person; or (b) involves serious damage to property …’

If that happens as a consequence of a proponent of capitalism – a captain of industry or a company – then they immediately remove themselves from the protection of lawful advocacy because it is unlawful damage to property. I am saying that it is not just the liberals-with a small ‘l’ – the open-toed sandal wearers – who might be inadvertently caught by this but also the captains of industry. That shows how unnecessarily broad the definition is.

Senator Cooney: (Several witnesses) have given evidence from their own experience or on the basis of people they have spoken to, that this legislation and the background to it – the whole episode from 11 September on and even before that – has had a fearful effect on certain groups in society, Arabs and Muslims in particular but on ethnic groups generally. Has your organisation got any concern about that, or have you got any answer to that? If you look at proportionality, you have got a very harsh effect if you accept the evidence – and I do not see any reason why we should not. That affects multiculturalism in a very bad way, and yet nothing that really seems to point to any terrorist act.

Kinley: Unquestionably, like medicine, the best thing to do in law is to prevent violations of human rights, of which terrorism is one example. But if you do that in a way that is pre-emptory, but overextending in its pre-emptory form, you will end up yourself producing violations of people’s rights, including discord within society, which is what I think you are expressly referring to.

There is no doubt that, in providing or receiving training or in the normal course of events with the general public, people must be careful about the sort of person they are associating with because, if that person turns out utterly unbeknownst to them to be a terrorist, then they may fall within the net that says that they have aided and abetted a terrorist.

As we said in our submission, if you are a photocopier, are you therefore to look at somebody and think, ‘They look Middle Eastern, they look Arab, so therefore I should refuse to allow them to use my photocopier’? That would be unconscionable.

***

See part two for the government’s response.

Back in 2000, the IVF issue triggered Webdiary’s first sustained and passionate debate. Today, my comment piece on its resurrection, and what you said in 2000.

***

The proposed ban on single women accessing sperm banks and IVF clinics was a hell for leather debate in 2000, so now that John Howard again wants to do it, here’s a reminder of the story so far.

In August 1999 a straight single woman consulted a Melbourne gynaecologist specialising in reproductive technology. He believed he should assist but could not because Victorian law banned access to single women. He asked the Federal Court to rule that the Victorian law was overridden by the federal Sex Discrimination Act, which bans marital status discrimination in the provision of services.

As required when constitutional questions are raised, he advised State and Federal Attorney-Generals, who had the right to intervene, and then to appeal. None were interested, including federal Attorney-General Daryl Williams.

In July 2000, Justice Sundberg struck down the Victorian law. John Howard suddenly cried foul, reversing his government’s lack of interest. He discovered a new, Howard right, “the right of a child born into this world to have the role model of both a mother and a father”.

His bombshell wrecked what had been a successful Labor Party federal conference, as Labor feminists and some Labor Catholics fought it out. Labor finally agreed to oppose the plan, but several Senators said they could cross the floor.

On August 17, 2000, Williams released his proposed new law. I thought there must be a drafting error, for it contradicted Howard’s new right. Williams made it lawful for the States to refuse or restrict access “on the grounds of marital status”. That meant States could ban defacto couples.

But Williams said this effect was intended, even though he’d just told parliament his law meant the States could limit fertility treatments “to married women and those living in a defacto relationship”.

Asked why he discriminated against defacto couples for the first time in sixteen years, when the Sex Discrimination Act passed, he said the States should legislate “as they consider appropriate”. Howard’s office backed Williams.

How could Liberal Party women have condoned this deceit? Western Australian Liberal Julie Bishop’s State asserts it can discriminate by saying women married for a day can get access but only defactos who’ve been living together for five years. She was outraged – the party room had approved William’s bill sight unseen and he had not disclosed that it allowed discrimination against defacto couples. She protested to Howard and Williams.

By next afternoon, Howard backed down. A plan ripping apart the Labor party was now threatening to rip apart his own.

The defacto scam only emphasised that the child’s right to the care of a mother and father was not the basis of government action, but a cover for it. If it was the basis, the new law would have guaranteed access to a single woman when her sperm donor or another man had agreed to be a father to the child.

By February 2001, the Senate committee examining the bill reported – Liberal moderate Marise Payne, the Democrats and Labor found the bill breached our international obligations. The bill never came to the Senate and elapsed when the election was called. (In August 2001, Williams gave Catholic Bishops permission to appeal the Sundberg decision, now more than a year old, to the High Court.)

Yet last week, when the High Court threw out the appeal – partly because had the government cared it would have intervened in the case earlier – Howard again finds the matter urgent. Just think of all those poor children born of single mothers through assisted reproduction without “a father” while Howard twiddled his thumbs!

Howard said he might now give the Liberals a conscience vote. Another unprecedented action, surely, proving yet again the relativism of his conscience. It wasn’t a matter of conscience in 2000 – nor was the mandatory sentencing of kids in the Northern Territory, where his concern for children’s rights was non-existent and he turned down desperate pleas for a conscience vote from some Liberals.

If he goes ahead with a conscience vote, it will be because he’d believe Labor will be in turmoil again, and an already fragile party since the split on refugee policy will weaken yet further. Perfect wedge politics.

If he drops the conscience vote, it will be because he feels there’ll be enough dissenters in his Party to risk defeat for the bill anyway, or at least to cause him embarrassment.

Using people desperate to have children for craven political purpose is not nice to see. That’s politics, Howard style.

***

WEBDIARY ARCHIVE

Webdiary 1: Random thoughts about the IVF debate

The more I think about this IVF issue the more layers it gets. Here’s a few random thoughts that have popped up in my head – please throw yours in too and we’ll try for a synthesis of facets, meanings and consequences.

IVF

Many people – religious and otherwise – don’t like IVF per se. They think it interferes with what should be a rather more natural conception process. Where to draw the line these days is a big issue – with fertility drugs, artificial insemination?

The real question in this debate is that since IVF is here to stay, should it be available on a non-discriminatory basis? It’s not good enough for the Catholic Church leadership to see a discriminatory restriction on IVF as a win in the battle to ban IVF, because a ban is not realistic.

WOMEN ALONE

The silence of female Liberal MPs is eerie. There are several feminist women in the Party who have fought as individuals for a woman’s right to control her reproduction. They’ve fought battles for the pill and for abortion.

Now the sheer populist appeal of Howard’s stand and the party-political joys of watching Labor tear itself apart have seen these women either not return calls or call back to say they won’t comment. Goodbye Liberal feminism when the chips are down. Remember, there has been no partyroom decision on this.

As of today Labor has no policy on the matter, despite the fact that the Sex Discrimination Act was a Hawke Labor government achievement against great odds.

This means that advocates of women’s rights are reliant only on the Democrats and the Greens in the public debate. So sad. It’s not even a fair fight in the sphere of public conversation.

It’s at times like these that you realise the terrible injustice of having so few women in federal politics. They’re just another minority when it comes to issues that are central to women but on which men have all sorts of emotions, prejudices and fears they seem to need to force down women’s throats.

WOMEN TOGETHER

But wait. The Sex Discrimination Act was the result of fierce lobbying by an activist women’s movement in the 1970s and 1980s. They were radical, ideological and deeply committed to the cause.

Since then, feminist has in some respects become mainstream, and young women have in many cases come to believe that discrimination on the basis of gender or marital status is over.

This debate could bring the generations together at last. Older feminists can remember the old battles, younger women will discover the excitement of the repeat performance. Both groups will teach each other. This could be the rebirth of feminist activism. Watch out, John.

AND THE WINNER IS …

Do Australians really want to be told by the State what to do in their personal life? The strength of that strand of the Australian psyche will be tested in this debate. Howard looks like he’s on a sure winner, but when you polarise opinion so hard on lifestyle as Howard has done on this one, you just never know.

I remember attending an Opposition party hosted by Peter Reith many years ago, and having a spirited debate with John Howard on citizenship initiated referenda. No way, I said, citing majority opinion in favour of capital punishment.

Howard accused me of elitism. He said he too opposed capital punishment, but believed passionately that a sustained debate on its merits leading up to a referendum would see Australians vote no.

Well John, here comes the debate. With Labor so split, this one will be fought mainly at a grassroots level, in town protests, public meetings, and over dinner tables.

CULTURAL ROLLBACK

Banning discrimination on the grounds of marital status helps married women, and single women, married men and single men. The Sex Discrimination Act was riddled with exceptions after tumultuous public debate. The Act helped decide who we were and what we believed in. Some exceptions have since gone as the slow progression to judging people on their merits continued.

I see this reopening of the discrimination debate as an aspect of Howard’s CULTURAL rollback setting itself up against Labor’s GST rollback. Open the gate to discrimination and the potential consequences are horrifying. He has coopted the human rights debate to suit his ends – speaking of the right of the child to a mother and father involved in his or her upbringing.

How ironic – a man who has trashed the human rights discourse as irrelevant when it comes to race discrimination (Wik) and the right to a fair trial (mandatory sentencing) suddenly turns it all around when it suits his value system to do so. Human rights should not be treated as political footballs to be forgotten if unpopular and promoted if popular.

I have never heard of a child’s right to a mother and father involved in his or her upbringing before, but Howard’s invention means, by definition, that this new right should be enforceable. Should a child be able to sue his or her mother for failing to ensure a father on hand?

Should the State enforce the right to a father by requiring him to participate in the child’s upbringing.?

Should the State take a child away from a family without a live-in father and put him or her into a family which has one?

Imagine how the debate changes if the IVF criteria include the requirement that the mother should be able to show that the child will be brought up with love, with the family involved, however constituted, willing and able to provide the necessary physical, emotional and intellectual support.

This is not a right – it cannot be given the failures of many parents – but it is an obligation which the State should be satisfied of before providing financial assistance for IVF. This approach does concern itself with the welfare of the child – John Howard’s approach merely discriminates on the basis of his preferred family model. Guess what John, the overwhelming majority of child abuse is perpetrated by live in fathers or step fathers. Guess what John, most homosexuals were born of straight parents, and on my anecdotal experience, all children of homosexual parents are straight.

The Liberals’ core philosophy of respect for individual choice has been replaced by John Howard’s moral fundamentalism.

HOWARD AND HURT

A lesbian friend of mine had a baby two years ago. A male friend donated his sperm. She needed fertility drugs to conceive, and if that hadn’t worked, she was prepared to incur the expense and pain of IVF.

The father has agreed to be identified as her son’s father when he asks the question. He visits every few months to say Hi. My friend has been assiduous in having male friends involved with her son, so he has male role models. Her son is healthy, happy and loved. She finds it hard to mange her full-time job and being with her son as much as she wants, and has asked her employer to consider letting her work part time, because she wants more time with him.

Her stated reaction to Howard’s announcement was outrage at the financial inequity of it all. She pays her taxes and her Medicare levy. Yet that was just cover for her devastation. Howard has told her the State disapproves of who she is, how she lives her life, and her capacity as a mother, without knowing who she is as a person.

Howard has never been for all of us, and now he is getting more explicit in saying which of us he targets for discrimination. My friend is fighting back. At her son’s birthday party tomorrow, her friends, gay and straight, will bring their children on the understanding that they want to be interviewed by the local paper. They want to say my friend is a good mother and that her son has the rights most children don’t have.

THE RIGHT TO IDENTITY

To me, a child should have a right to know who his or her father is. That’s the basis on which adopted children now have rights to access their adoption records. There is a real debate to be had on the identity confusion that can result when a child has no way of finding out who his or her father is. Personally, I could accept State intervention to insist that State funded procedures to help a woman get pregnant include that requirement. But that isn’t what this is really all about, is it, John.

HOWARD AT LARGE

This is an exchange between a listener to Melbourne Radio 3AW and our Prime Minister this morning.

Lisa: I’m a lesbian. I have a child. I didn’t go through IVF because it wasn’t available to me. I took the risk of getting AIDS to have a child. I changed my career to make sure I could be home after school and also thought every long and hard before I did it. Also something else I have heard you say is that its a lifestyle choice. Well when I was 17 and realised (I was a lesbian) I definitely wanted to be was a parent. There is nothing I could do about being a lesbian, but there was something I could do about being a parent and I thought long and hard, and I am a damn good parent with a wonderful son who excels at school, who gets fed, looked after, better than the children that I work with with two parents that are drug addicted, 25, with five children and one on the way and they could be entitled to IVF but I can’t. Can you answer me, where is the logic in this?

PM: Lisa, it is not just a question of the government intervening in something which is intensely personal because there are public resources made available in relation to IVF, so therefore the government does have a role. I mean the idea that governments who are the representatives of the entire community have no role at all in relation to a service which is in part at least funded by the general community of taxpayers is wrong.

Now I don’t criticise in any way or denigrate in any way your affection towards your child. Equally I dont think it is fair to, as your observation and comparison suggested, to categorise all two parent families in quite the derogatory terms of the example you quoted. I mean look there are good and bad two parent families. There are good and bad parents. That is not the issue.

I mean the issue is whether you believe, or society believes, in the principle that every child born in this world should have the expectation, other things being equal, of the care and love of a mother and a father, whether that is a reasonable principle.

Now, I happen to believe and the majority of my colleagues in the government happen to believe that that is a good principle and we think its a principle that’s worth supporting and its a principle that is worth promoting. It does not represent a negative value judgement on people who have a homosexual lifestyle. I have never wanted people in that situation to be discriminated against or persecuted and that is why I supported the former Labor governments legislation to over turn the Tasmanian anti homosexual laws. Its a question of whether you wish to positively assert that fundamental right of children and I think that fundamental right takes precedence over all other rights in this case.

***

Your say

David Hancock

What the debate should be about is whether we should fund IVF at all. These procedures cost us huge amounts of money, and producing sickly and unhealthy premature babies most of the time. To what end? There are far more important areas where that money could be spent. Areas where people really suffer.

The way this turd floats these red-herrings and people who should know better bite makes me sick. The words of Bob Hughes after we lost the republican debate come to mind constantly these days………”The country’s not fucked, merely delayed”…………………

***

Georgia Gray in Fairhaven

Do we know what polls say on this issue? It’s surely not just the Labor party which is divided. There must be some concerned people in the Liberal party? Maybe not. Bob Carr’s line seemed to diffuse it a bit with ‘this is a private matter for women and their doctors’. Labor just has to do what’s right – support human rights and get on with the big picture. I don’t reckon too many cross country people will change their vote on this. It will be forgotten soon if handled decisively.

***

David Davis in Switzerland

John Howard may be the bad guy in this most recent issue regarding lesbians and IVF. His “tolerance without endorsement” is an interesting policy to say the least. Perhaps this is an example of where pandering to the masses is not always as attractive as it intuitively seems.

I don’t really see Labor as being very different though. Few mainstream politicians are prepared to go out on a limb on these kinds of issues.

This kind of discrimination cuts equally across both parties. Of course there are different aspects to the hardliners in each party but the end result is the same.

The “tolerance-speak” on both sides is just a thin veneer to cover up a great deal of very real intolerance. No influential politician (I mean REALLY influential) ever takes leadership on such issues.

Several continental European countries are a long way ahead of Australia in this regard. They may also be ahead of their respective publics but that isnt ALWAYS a bad thing.

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Webdiary 2: Progressive lefties and libertarian liberals unite!

In the week before Parliament resumes, when the cultural wars will be toe-to-toe and eyeball-to-eyeball, IVF e-mails are running hot. We have a wildly skewed readership judging from the poll results and e-mails. Progressive lefties and libertarian liberals unite!

Nick: Population policy

In a country where birth rates are stillborn or even negative, every cent that goes to ‘singles’ and ‘lezzo wannabes’ is well spent. Somebody has to have the bloody children.

Dell Horey: Pre-human rights and the relevance of men

What I find really hard to get my head around is the argument that this is about the rights of children to have both a mother and father. It is so weird because they seem to be setting themselves up as the defenders of children who don’t even yet exist – and they are so concerned about protecting their rights, they want to stop them from existing.

So women who do exist have to have their rights diminished unless they can find a man. It is even worse than the anti-abortion argument. The hierarchy of rights seems to be States then children then women!

Part of the problem is that most of the people in the Cabinet are unable to imagine that this issue would ever apply to them or people they love. Of course, their children and grandchildren will do the right thing – be heterosexual, find the perfect person to marry and have perfect babies. I just wonder how John Howard would see things if his daughter got to her late 30s and hadn’t found the “right man”?

While (the yet to exist) children must have their right to both a male and female parent apparently it is ok not to try to protect them from potential diseases such as HIV and hepatitis.

There is a sense that this is about men claiming their relevance in society. Some men feel very threatened by the thought that they are not essential in happy family life – but I don’t think that women can claim that they are essential either – there are some great single parent families around with a male head. You can’t make generalisations about this and men and women have to make meaningful contributions not just think it comes just by being there.

The hurt from the debate is enormous – and it may explain the silence from the Liberal women. If they have witnessed anything like the response I have they probably don’t know what to do with all that anger. It isn’t only lesbians either. My dentist, who is a very calm and I would have thought conservative woman, asked me what I thought about the latest thing “our lovely PM” had to say. She was so angry that I was quite surprised. She was insulted that someone would suggest that as a single mother her child was being properly looked after. “I’m a very good parent,” she said and indignant that someone should suggest she should pick up someone if she wanted to have another child.

I am just so infuriated by the whole idea that some people in society (who just happen to be women) are permitted to participate fully when it comes to paying taxes and using skills and talents but others can determine whether they can have the right to use the services and resources available to others in community. Basically what is being said is that women can’t be trusted to make decisions on their own about what is good for them when it comes to children.

While in some ways I think it is a worthwhile debate to have – like a lot of other issues I worry about who ends up paying the cost for that public debate. It isn’t really the politicians who will be affected by it but women and children who didn’t ask for their private lives to be made so public.While there may be some long-term benefit, it could be very painful (I am thinking here of the teenage children of a lesbian friend who don’t want their schoolfriends to know about their mother’s sexuality).

Brendan:Us and them

Politicians create their meaning through division. Howard is a master of it. By demonising lesbian mothers, Howard has created another outcast group as a vehicle for building his group’s identity.

He did it with Aborigines during Wik (remember the map?). He’ll do it again before the next election with some other group. And those small l liberals will keep quiet as they did during Wik and have subsequently on mandatory sentencing – moral cowards the lot of them. They should read Dante (Inferno: Canto 111). They wait for Costello, but he won’t save them.

This talk of children’s rights I find particularly dishonest. Deconstruct it and they are saying, better not to be born rather than be born without a father. Are they serious? If they were, they would advocate abortion as a vehicle for social engineering. But of course that’s not what they mean.

They are saying, you must conform to our version of family and society or you can have no rights. Of course, the implication is that no one can have genuine rights because rights will always be conditional on conformity. So in the end it’s the same old authoritarian stuff wrapped up in the rhetoric of the rights of the child.

People who make family structure and conception processes an issue make the world smaller and sadder for all of us. But they divide and conquer only themselves.

Cathy Bannister: Why not sterilise?

Howard claims that “every child needs a father and a mother”, and that, therefore, single mothers and lesbians should be barred from the IVF program. The extension of this is almost too backward to contemplate.

What next, denying Medicare payment for obstetric care for single and lesbian women? The same logic could be used to justify forced sterilisations: “We’re not discriminating against you as a lesbian, it’s just that any child you had would be so messed up it would be better for them if they didn’t exist.”

What’s so intrinsically important about “a mother and a father” anyway? Why not just two loving parents? Why not one loving parent and enough funding and social support to actually do a half decent job? It’s old fashioned Christian disapproval of non-trad families, pure and simple. The stance is otherwise totally indefensible.

He’s not even arguing the rights of the child but the rights of the hypothetical child. And this hypothetical child is being denied the right to exist, on the basis of it’s own hypothetical rights! At this point the logic disappears up it’s own fundament.

Never, ever, has a politician made me so angry.

Emma Bridge in Hobart: Children’s rights after conception

The ethics of IVF are difficult – who could forget those early pictures of the beaming doctors who brought us the technology, who were always given credit for the babies as if the mothers were irrelevant in the process. Unfortunately our society still values reproduction so highly that those who cannot conceive are left feeling incomplete or failures. Unlike other cultures, we have no concept of the community sharing in the upbringing of children leaving direct parenting as the only way to “have” children. If we resolved this, maybe some of the pressure on reproductive technologies may lessen. Given the way we are though, I firmly believe all women should have equal access to the technology.

The irony of Howard championing the rights of children (to have a father in their lives) is almost laughable. Here is a government which has done nothing to improve conditions to allow working parents of either gender be more involved in their children’s lives.

Here is a government made up largely of men who have spent huge periods of time almost completely absent from their children’s lives.

Here is a government that will not apologise for a policy under which the State denied children the right to either a mother or father (well not a black one anyway).

Here are a bunch of hypocrites.

I find it distressing to see in a lot of the news coverage of this issue, how it has forced women to belittle other women’s mothering. The Victorian woman whose rights were being tested in the first place has been quoted as saying she will make a better mother than young women who sleep around and get pregnant (or something like that). Lesbians have been quoted as saying they are better mothers than another group of women and so we go on. As a mother and a daughter and a feminist I find this very sad, that women have been pitted against other women to come up with their “good mother” credentials. Lets not get sucked into that. We are all the best mothers we can be, sometimes that isn’t good enough but it is very very rarely from a lack of trying.

David Davis in Switzerland: An outraged Howard fan

Your “random thoughts about the IVF debate” was quite incredible. Incredibly thought provoking and moving. I liked the way you employed the term “the State”. To me, the term “the State” has particular overtones which make me feel uneasy. I don’t want “the State” in my life. Who does?

We don’t need the State to be making value judgments and choices like these. I really thought that respect for individual choice was a core Liberal philosophy (as you say). I always thought it was one of the most attractive aspects of the Liberal Party that was under-promoted.

But then, I suppose it is no use promoting something that isn’t really respected and enacted in practical ways by the people at the top. People that do have a coherent philosophy will always be marginalised and fail in politics. Politics is the art of compromise, sell-out and the lowest common denominator.

I haven’t noticed the Australian Tax Office making value judgments when it takes the money from us. So one arm of government takes our personal resources without discrimination, while another arm of government in the form of Medicare then nominates some people as worthy and others as not. It’s really quite sickening.

This is just good old fashioned politics and discrimination in the most pure form imaginable.

It hurts people to the core though. They can dress it up however they like but they can’t run away from the reality. The reality is they are pointing a discriminating, intolerant finger at certain Australians and are deeming them to be unworthy.

The rhetoric becomes really offensive when you are personally affected or know someone who is.

The story of your friend is very moving. I can understand how hurt she would be and really love the idea that she’s fighting back with the support of her friends.

Unless people stand up and be counted, we will be stuck with the medieval mindset for a lot longer.

Carolyn: Dissident voice

How very strange that you should treat facetiously the “right” of children to a mother and father, yet totally accept the very modern, very recent, and entirely unsupportable concept of the “right” to have a child.

No government in the world can legislate to give anyone the “right” to have a child, the whole notion of such a right is entirely artificial (no pun intended). Why has the public and the media accepted such a nonsensical right?

If we accept that everyone (let’s include men as well as women here, shall we?) has the right to have a child, or many children, then, by the same logic that you deride the concept of a child’s right to a mother and father, that is, “Should a child be able to sue his or her mother for failing to ensure a father on hand?”, we are led, inevitably, to the question “Should a person be able to sue the Government for failing to ensure they have a children if they want them?”

The next step, logically, is the right, not just to have a baby but to bare a healthy baby, followed by the right to bare a healthy, happy, intelligent and grateful child etc, etc. When the initial concept is so utterly artificial, there is no natural point at which to stop. The perversity of treating babies as a consumer item has no natural or social boundaries.

Let’s stop pretending that there is something good or altruistic about any of this: if single women can demand to be impregnated with tax payers’ financial support, the next logical step is that single men, of whatever persuasion, should also be permitted to buy a baby with taxpayers’ financial support.

Never, never, in history have children been so totally treated as a commodity to satisfy the unquenchable wants of adults (not needs, wants!). Whether taxpayer funded or not, is it really a reflection of a healthy society, and healthy adults, if we treat conception and children as an entitlement to be exercised regardless of how extreme or artificial the means required to achieve that entitlement? And regardless of the consequences and lifetime impact on the children concerned?

No amount of parental love and devotion can override fundamental social constructs that can & will damage a lot of these proposed children. What a self-absorbed, self-obsessed, self-indulgent, bratty generation of adults we have become.

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Webdiary 3. And now for something completely different

Moira Rayner, director of the London Children’s Rights Commissioner’s Office (a former equal opportunity commissioner in Victoria, Real Republic delegate to the Constitutional Convention and author of “Rooting Democracy”:

Now the ‘real’ agenda is not the rights of the child or even the integrity of the traditional family. It seems to be:

1. Divide the ALP. Brilliant. Worked. Plenty of good Catholics in the Labor Party.

2. Distinguish between ‘good’ mothers and unpartnered mothers. Good precedent for the delayed response to the pregnancy discrimination report (a Human Rights and Equal Opportunity Report prepared by the Coalition-appointed Sex Discrimination Commissioner Susan Halliday calling for laws to ban discrimination based on pregnancy) which the Government hasn’t responded to now for over a year. Then we can introduce a response that rewards married pregnant women: a tax benefit to the husband of a woman who gets ‘leave’ perhaps?

3. Brownie points for talking about ‘the rights of the child’ without referring to the UN Convention on the Rights of the Child. This doesn’t actually mention the right of a child to two parents. It does protect the child’s right to an identity (breached by the ‘stolen generation’ policies, anonymity of gamete donors, denial of identifying information to adoptees during a child’s minority) and the right not to be separated from parents without consent (denied by, for example, deporting the custodial parent of Australian-born children) and the right to have their rights considered (as decided by the High Court in Teoh’s case – now overridden by Federal law). The UNCRC does enable the Commonwealth to override inconsistent legislation. And mandatory sentencing legislation, come to that. Mmm.

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Webdiary 4. More on IVF, genetics, parties and pictures

The IVF debate ain’t going to go away for a long time. Today’s revelations in the Herald that the Government plans to amend the Sex Discrimination Act to give the States open slather to discriminate against de factos as well as single women has given Labor its first chance to get on the front foot. (NEWSFLASH: The Attorney-General has just backed down and will now amend his own bill to protect de facto couples.)

The layers on layers in this debate will produce, I predict:

* Labor proposing legislation to give children conceived through IVF and artificial insemination the right to be told the identity of the father at 18. Tasmanian independent Brian Harradine and Democrats Senator Aden Ridgeway have already publicly supported this idea. The Minister for Health, Michael Wooldridge, also wants this but has been unable to convince the States to do anything. Sooner or later, Howard will be forced, through his own “rights of the child” rhetoric, to confront this issue.

* The inevitable Senate inquiry into the Coalition’s plan will be passionate, wide ranging and could even come up with sensible policy on this fraught area, instead of Howard’s knee jerk abolition of fundamental human rights. Expected participants include Joe de Bruyn from the shoppies’ union and the Howard-appointed Sex Discrimination Commissioner, Susan Halliday, who’s been left out in the cold by the Government and is so angry at the loss of protection for de factos that she’ll put her good relations with government on the line to fight for women’s rights.

* Attorney-General Daryl Williams has been forced to shift the Government’s rationale for the amendments to the Sex Discrimination Act from seeking to ensure a child has the right to a father, to vacating the field on marital status discrimination when it comes to IVF and artificial insemination. This is intellectually untenable, as Howard has invoked the “rights” of the child to justify his action, which shows he believes there is a national responsibility in this area. You’d also have to start wondering what other human rights protections in the Sex Discrimination Act the Government thinks should be left to the States. Also, since Howard finds the whole thing so important, why not produce a national policy? It’s sort of like euthanasia when you think about it. Howard on that one said the issue was so fundamental it couldn’t be left to the Northern Territory or the States.

* The Senate inquiry could well be broadened to take on other big genetic issues so far undealt with. It could investigate the thorny issue of genetic testing by insurance companies, employers and banks. It could also take in cloning.

* Howard has opened a Pandora’s box and he can’t close it now. As Aden Ridgeway says, without national legislation, there can be no national data base, and tragic stories of half siblings falling in love without knowing their biological relationship are bound to happen.

***

Name withheld

I am a 30-something full-time working mother. I pride myself on being a feminist and my husband and I (yes, he and I are married) try our best to bring our boys up to be feminists as well.

Throughout the entire debate on IVF and the issue of lesbians and single mothers, I have had a few problems with how I felt that the issue is not so black-and-white. All my women and men friends expect me to support the lesbians and boo Howard’s stance on this issue.

Don’t get me wrong, I have no problems with lesbians bringing up children, be they adopted or children from one or both of them when they were in heterosexual relationships. I have no problems at all with that situation. In fact, some lesbian couples I know would make very good parents.

What I have problems with though is this: If you are a lesbian, why on earth do you want to biologically have your own child? Isn’t your child one of the many consequences, accidental, happy or otherwise, of a heterosexual relationship and if you don’t want such a relationship, then why do you want the consequences?

If you have maternal instincts that you need to satisfy, then foster a child, adopt a child, whatever. Why insist on IVF? To my mind, IVF technology is to treat and address a medical need, not a sexual preference. The ethics have not kept up with the technology but hang on a minute, why on earth do lesbians or for that matter, gay men have to have everything?

If I go into a relationship that would not enable me to conceive and have a child, then I go into it with my eyes wide open; I don’t turn around and expect society to owe me a living and satisfy my maternal instincts regardless of the costs.

I think it is obscene to put lesbian women on the same standing (as it were) as heterosexual couples who medically and health wise have a problem conceiving. [MARGO: Lesbians go into IVF for the same reason – that they have a problem conceiving. Hell, you wouldn’t go through all that pain, with such low odds of success, otherwise.] It is denying the heterosexual couple’s very real problems of conception, de-valuing their trauma of trying to have a child, if you equate their problem to that of a lesbian couple’s.

Am I the only one who thinks like this?

Obviously I haven’t been brave enough to broach this topic amongst our friends for fear of an outcry. What has really niggled me, too, is the way the media and indeed our friends have immediately surmised what our stand on this issue is – oh, they are a left-leaning, well-read, professional couple, surely they must have this view, which is to support the lesbians.

I have no problems with single women having IVF technology, really, I have no problems with heterosexuals having IVF technology, single or married.

I must confess I don’t know what your personal or professional views are on this but if I don’t share this with someone else apart from my husband soon, I am going to scream!

Do raise my concerns in your columns but please do not use my name. I am not sure I am ready to be “outed” yet!

***

Jane O’Dwyer:

Suddenly the gains made for women by feminism seem terribly fragile – all thanks to a clever but nasty piece of political skulduggery on Howard’s part.

There is not really an IVF debate happening here – no debate is actually taking place about IVF itself and the vast number of issues that arise out of it. Perhaps that debate does need to take place. This legislation sure as hell ‘ain’t it.

What this is really about is government-sanctioned discrimination against women on the grounds of marital status and sexuality. The right of women to enjoy all the opportunities of life regardless of marital status was hard won (and I know we still haven’t really got there on sexuality).

If a Federal government can legalise discrimination on the basis of “morality” or State rights, what is next? Does marital status once again become the determining factor for women’s status? It was only 35 years ago that women were tossed out of the workforce when they got married – this sort of discrimination cuts both ways for women. Maybe we haven’t come a long way, baby.

All of which makes the silence of the non-Lyons Forum Liberals and the excessive noise of the SDA Labor Senators look unforgivable. Maybe this will jolt women to protect and build on feminist gains – but do we really need these kind of threats?

How tragic a reflection it will be on our political system if a political stunt is the starting point for unravelling the anti-discrimination act.

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Webdiary 5: The tangled web of sex, rights and IVF

Oh what tangled webs we weave when we decide to roll back human rights. This story is complicated but bear with it because it will assist in understanding further developments in the IVF debate.

On Thursday, the Attorney-General Daryl Williams produced the legislation the Government claimed would allow States to discriminate against single women in IVF and artificial insemination treatment.

The Current Law:

* Section 22 of the Sex Discrimination Act (SDA) bans marital status discrimination in the provision of services.

* The SDA defines “marital status” as “the status or condition of being single, married, married but living separate and apart from one’s spouse, divorced, widowed or the de facto spouse of another person”

* The SDA defines de facto as two people of the opposite sex who live together “on a ‘bona fide’ domestic basis although not legally married”.

Williams’ First Take:

Easy. His amendment simply said that nothing in section 22 (the ban on marital status discrimination) made it unlawful to “refuse a person access to or restrict a person’s access to assisted reproductive technology services (ARTs) if that refusal or restriction is on the ground of the person’s marital status” and is authorised by a State or territory law.

Williams was simply vacating all Commonwealth protection in the area of marital status discrimination for ART. What that meant, of course, is that a State could ban de facto couples or ban de facto couples who hadn’t been living together for 5, 10 or even 20 years (at least one State has tried to limit access only to married couples and been frustrated because of the SDA). A State could also ban married couples for that matter or even provide that only lesbians could access ART.

There are two extraordinary aspects to Williams’ actions.

First, he did not tell his Coalition colleagues that he planned to remove protection against all forms of marital status discrimination, not just discrimination against single women. At no time did he or the Government generally disclose to the public that this was the plan – instead, Howard made it explicit that the action was motivated by the “right” of a child to a mother and father.

Second, how on earth did Williams think he’d get away with it? The outcry when yours truly broke the story in the Herald on Friday saw Howard act that day to make Williams back down. (To be fair to Williams, he was alone in raising doubts about Howard’s plan in the Cabinet meeting that decided on it.)

Why Did Williams Do It?

Neither Mr Williams nor the Attorney-General’s department are stupid. Removing the protection from de factos was not an “unintended consequence” or a drafting error. Indeed, Williams made that very clear in his comments to me the day before Howard made him back down.

He said then that his amendment was designed to hand back the power to restrict or deny access to IVF and artificial insemination to the States. It was “consistent with the States’ responsibilities in relation to the regulation of the provision of medical care and treatment – that they be permitted to legislate in the area of ARTs as they consider appropriate and in a manner which reflects the views of the community”.

I believe that the REASON he took so stark an approach, which removed de factos as well as singles from the protection of Federal discrimination law is for the very reason that two States CURRENTLY discriminate against de factos.

South Australia and Western Australia restrict access to de factos who have lived together for 5 years. The SDA, in contrast, merely requires that they live together on a bona fide domestic basis. Neither SA or WA require that married couples have lived together for five years.

Thus, a couple might have never lived together, been married for a day and get access. De factos who have lived together for less than five years are out, as are de factos who, say, separated after five years then got back together two years later.

If Williams had followed the Government’s public rationale for amending the SDA, he would have granted an exemption from section 22 to States who discriminated only against single women.

He didn’t because then he would have to define what a de facto relationship is and either override the SA and WA laws or allow all States to require a five-years living together period. The WA and SA regimes are considered certain to be overridden when and if a challenge is mounted. So far no-one has challenged it, preferring instead to get married under protest or go interstate for treatment.

Messy, hey? As Labor’s shadow Attorney-General Robert McClelland told me yesterday, “Williams is in a double bind. If he relies on the Federal definition of de facto, he’ll override the SA and WA laws. If he defines de facto as living together for five years, he is discriminating against de factos.”

Where that does leave the claim of Williams and the Prime Minister on Friday that NO State or Territory currently discriminates against defactos? Pretty sick, I’d say. Williams, in his backdown press release, was careful enough to admit that some States defined de factos differently but claimed that they did not do so “in unreasonably restrictive ways”. Note he was careful not to claim that all State laws complied with the SDA on de factos. No wonder everyone is waiting with bated breath for Williams next attempt. Believe me, Liberal women won’t give his legislation a tick sight unseen as they so foolishly did last time. And perhaps, just perhaps, the penny will finally drop on all those supporters of Howard on this one that he’s not on about the rights of the child at all but the right of the States to discriminate as they wish, regardless of whether the child will get a father or not.

I wrote to Williams today with some questions:

August 21, 2000

Daryl Williams QC,

Attorney-General.

Dear Sir,

Re: AMENDMENTS TO THE SEX DISCRIMINATION ACT

I refer to your press release of August 18 in which you state that no State currently discriminates against de facto couples in the provision of Assisted Reproductive Technology.

Were you aware when making this statement that both the South Australian and Western Australian laws and/or codes of practice restrict access to de facto couples who have lived together for five years and place no such condition on married couples?

Is it your opinion that such restrictions do not amount to a breach of the SDA and, if so, what is the basis of that opinion?

Given that you have now decided to propose an amendment to your proposed amendment to the SDA “to give effect to its commitment in relation to ART services for women in a defacto relationship with a man”, do you propose to define “de facto” for the purpose of the SDA exemption?

If so, do you intend to specify the length of time in which a defacto couple need to live together to qualify for non-discrimination protection?

If so, what time will be nominated and do you intend to impose a similar condition for married couples – ie that they must have lived together for at least five years?

Late today, Williams’ office replied that the Government’s position was that even under his fresh amendment, the WA and SA restrictions should stand. Therefore, it seems, all States will be able to discriminate against de facto couples by requiring of them, not of married couples, to have lived together for five years. After all the denials, the fact remains that de factos have now been drawn into the discrimination net.

***

Dell Horey

I have to respond to ‘Name Withheld’ in case no one else does. I wouldn’t like to see her arguments unchallenged.

As I see it Name Withheld makes major assumptions when she asks why on earth do you [lesbians] want to biologically have your own child?

It seems that she believes that lesbian women are fundamentally different to heterosexual women and not only in regard to their sexuality. This must follow if she believes that the desire (or urge) of lesbians to be mothers is not the same as that which drives heterosexual women.

I am not sure that there is any evidence that would support this belief, nor does it seems rational that such a desire is solely related to sexuality. If it were to hold true, it would suggest that the stronger your sex drive the greater would be your desire to have children. Is there any proof of this? I dont think so.

Advice to lesbians to foster or adopt should hold equally true for infertile heterosexual couples and was certainly the only option prior to IVF when there was no possibility of biological children.

But like the introduction of a lot of new technologies, along with all the problems, we now have new choices. We no longer have to walk everywhere, we can drive (or go by train or plane). Medicines have saved a lot of lives and improved the quality of many others. We can adopt these new technologies and learn how to use them wisely, though admittedly that can take some time.

However, I can’t see how discrimination, based on the direct involvement of a male partner actually helps anyone. I don’t see how men are made redundant by IVF – surely the sperm donors have made a choice too!

The test of our commitment to human rights must be our willingness to see that they apply to all people not only those like ourselves or those that we like.

I am heterosexual, fertile and married and I don’t believe that I would ever (access) use IVF services. However, I will never need to test my belief because I will never be in the situation to need to. But how I possibly think it is OK for me to veto the choices of others.

Most of the lesbian parents that I know were married and only after some struggle came to terms with their sexuality. I think that it is a vast improvement in our society that gradually homosexual people are able to live without the horrors troubled previous generations.

I don’t believe that homosexuals’ whole identity and their rights as citizens be determined by a small part of them.

Well, well, the government’s ‘Who cares?’ cover was blown big time yesterday, with revelations that John Howard and Max Moore Wilton are showing obsessive interest in the children overboard inquiry hearings. Cozy personal chats in the PMs office between Howard and a public servant in the middle of her evidence, no less. Cozy, except that Max and Howard’s top minders listened in. One of the men Howard doesn’t want to give evidence, his foreign affairs adviser Miles Jordana, told the poor woman that so far in her evidence she was “handling it OK”. Feel like handling some questioning yourself, Miles?

The hearing resumes the week after next, when Labor will have hopefully got over its nerves and self-interest and ordered Reith to appear.

Webdiary’s media critic Jack Robertson has joined the weblog scene in the cause of bolstering the left’s presence in the blogging war. “I’m at jackrobertson these days. It may not be your cup of tea – without the leash, I’ve been lobbing bombs like a foaming nutter lately. (And I seem to have been being very rude to boomers, too.) But the blogosphere has been positively teeming with Tim Blairites while you’ve been away, and I was f…ed if I was about to just sit around getting sneered at. Happy to pitch a Meeja Watch your way from time to time.”

Today, Daniel Maurice and Webdiary strategist Tim Dunlop take me to task on my piece in Redrawing maps of home. Their critique is invaluable if we bleeding hearts really want to influence policy on refugees or anything else. Tim Dymond confirms that “elite” is off the abuse list. Polly Bush, Webdiary’s rep at the Walkley’s last year, creates a questionnaire to be passed before joining the Bleeding Hearts Club, andKieron Convery decides to join. (Given the flack I’m getting for wanting a definition of a bleeding heart and asking for nicknames for our pollies, I’ll put responses to these self indulgent topics in their own entry tonight so you earnest types can avoid them.

But first, Webdiary satirist Don Arthur explains Shane Stone’s attack on the media last weekend, admitting that “I’ve been reading too many right wing columnists – it’s starting to affect my writing style.”

Don Arthur in Perth

“As I was growing up on a housing commission estate in Wodonga,” said Liberal Party Federal President Shane Stone, “I would never for one moment have contemplated that the public career I embarked upon was possible”.

That’s our Shane, a battler who made it to the top. And good on him – he’s not going to have a bunch of university educated, Pinot Noir sucking snobs lecture him on his morals. No way. So let’s see if we can help write the party pres a little speech. That’s it mate, crack open another VB, light up that cigarette and let’s get started.

Here’s the plan. First let’s make sure the transcript of this opening address to the Liberal Party Federal Council thing has a few spelling mistakes in it – make sure some of the journo’s names don’t get printed quite right. That should have some of the Howard-haters scoffing at the defects of a state school education. So you’re stupid if you can’t spell ‘Salusinszky’? Well then, you’ve just called the majority of Australians stupid. Good work. I’ll bet we snare that idiot Gerald Henderson with this one.

Second, things have quietened down a little since that whole Tampa thing – the whole reffo issue is getting a little stale. And mate, you and I know that if those rotten journos get bored they’ll start thinking about the budget figures, they’ll start pouring over everything Peter Costello says and then, naturally, they’ll start speculating about the leadership. That’s why we need to distract them – throw them a bone over the fence, give them a cat to chase.

Nothing gets a journo’s attention faster than dropping their name. You can see their pointy little ears prick up. Some of the vain bastards spend half their bosses’ time doing data base searches on their own names. So the thing to do is make a list – friendlies and unfriendlies.

We’ll give all the friendlies a pat on the back – tell them how fairminded and insightful they are. Like that sarcastic bloke with the impossible last name – ‘Salusinsinszky’ is it? (Better cut and paste that one from the Herald just to make sure we get it right). And the unfriendlies, like that awful whinger Hugh Mackay, we’ll wind up a little bit. We’ll rub their noses in their ridiculous election predictions and idiotic election analysis. Make them a bit cranky.

Yeah, this is going to be great. They can’t win can they? If they have a go at us about this reffo business they’ll just make themselves unpopular with the punters We’ll sound all reasonable and they’ll look like stuck up whiners. What was that great Howard line? … “if I can invite whom I want into my home, then I should have the right to have a say in who comes into my country” … er… hang on… maybe that was someone else. Doesn’t matter – you get the idea.

And then, on the other hand, if those complaining broadsheet scribblers try to ignore it they’ll feel like they’re giving in. Either way we win and they lose. We really ought to rub that in. The punters love us and they hate you…nah nah nah nah nah!

You and me mate, we don’t care about social status. All that wanky academic, broadsheet reading, SBS watching truckload of crap. We don’t play that game. Those Zegna suit wearing, clock collecting “we stole the children” snivelling snobs try to make us feel inferior but we’re the winners now. And they know it.

***

BREAKING YOUR OWN RULES

Daniel Maurice

Welcome back, but pity there’s no change of attitude. Your article in Redrawing maps of home talks in the same breadth of “social progressives” and those who hold a contrary view as “the enemy”. Shane Stone is right – you just don’t get it. Bleeding Hearts like to portray themselves as tolerant, but as your description reveals, at the heart of their thinking is a deep-seated intolerance of other viewpoints. You’ll only start to turn things around in winning the hearts and minds of ordinary Australians when you accept that many of them who do not agree with you are not evil, they’re not your moral inferior, THEY JUST SEE THINGS DIFFERENTLY. You have to start by acknowledging their legitimacy.

I replied: That was the point of the piece – to acknowledge their legitimacy, and accept that most people have a different view. Seeking to change their view is OK, isn’t it?

Daniel: Not sure how describing people who disagree with you as ‘the enemy’ acknowledges their legitimacy and takes you very far in getting them to change their point of view.

I look forward to an article from you where you admit the possibility that many people who broadly support current policy on boat people are not racist or ignorantly afraid of the unknown, but genuinely believe it’s a practical, if harsh, way to deal with an incredibly difficult issue.

If you want to change views, drop the offensive and inaccurate labelling of your opponents, get off the moral high horse and describe, in detail, an alternative solution. That means not ducking the hard questions. If you believe that anyone who arrives here by whatever means claiming to be a refugee should be accepted, say so. Explain what happens what we do if the number of such arrivals grows beyond our capacity to take them. If you accept that some form of check would still be required to deal with the people who (inevitably) would abuse such a liberal policy, explain how these checks would work, what would be the appeal mechanism and what we do with people who are found not to be genuine refugees. If we don’t have detention camps, tell us what what we would do with illegal immigrants who ‘disappear’ into the community while awaiting a determination. Acknowledge that if funding all this generosity means an increase in taxation or diverting resources from other government activity that you would support this.

Along the way use your column to call on Australian muslims to publicly commit to equal rights for islamic women in this country and to actively work for the establishment of democratic, open, socially and religiously tolerant societies in their former homelands. (Which Islamic country would you like to live in, Margo, in preference to Australia?)

Only honesty and real answers will win the debate, not sloganeering and name calling.

I replied: I agree that offensive labelling should be out, and that a credible alternative should be worked out – as I wrote in my piece. You’ll recall that I’ve gone on and on about the counterproductiveness of the discourse of many bleeding hearts. I concede your point on the use of “enemy”. I didn’t mean that as a term of abuse – just using war language as a metaphor. In summary, point taken.

***

Dr Tim Dunlop in Washington (our dairy deregulation guru has just got his PHD, on the role of the intellectual in democratic debate)

Sorry to start by taking issue, but I must. First up, can we get the ‘woe is me’ lefty whine out of our voice, all this stuff about ‘realising we are in a minority’, defining people who disagree with us as ‘the enemy’ and engaging in fruitless conversations about definitions of ‘bleeding hearts’?

Progressives are always in a minority, or at least that is where we start until we win the arguments. Big deal. Sometimes we deserve to be a minority; sometimes we don’t. It’s just the territory we operate on. The question is, if we’re so clever and right about everything, why can’t we make other people see it? Start to answer that – honestly and without whining – and we might be on our way to changing things.

I was interested to see Stephen Holt draw a comparison with the US civil rights movement in Taking the rap. Martin Luther King’s wrote in his famous ‘Letter from Birmingham Jail’ (1963) that there are 7 principles of civil disobedience or ‘constructive law-breaking’ and the Australian left could do worse than adapt them to its own needs. They were:

1. Collect facts to establish there been a serious injustice not corrected by the law. I’d consider this crucial. Whatever the topic at hand is, we have to understand it inside out and be able to argue the case on its merits. We don’t need ‘leaders’ or ‘intellectuals’ to do this work for us (though they help with the process) but all should commit ourselves to knowing what we’re talking about.

2. Investigate one’s motives, purging any purely selfish or destructive aim.

3. Negotiate with officials over the injustice. This means making representations to governments and obviously depends strongly on the first point.

4. Take ‘direct’ action as opposed to indirect actions like voting or pamphleteering, in order to target a specific wrong. So things like the protest at Woomera are on the right track.

5. Act openly. That is, show up at protests like Woomera, don’t just send private letters to people like Philip Adams and think you’ve done enough.

6. Act lovingly. What King had in mind here, I think, was not to spend time attacking ‘ordinary people’ for their supposed culpability in oppression. Just concentrate on the issue, make your case effectively and win people over to your cause. You need them more than they need you. It also relates strongly back to point 2.

7. Show a willingness to accept the penalty’s for one’s act. That is, show up at Woomera, protest, and don’t then run away and hide. (This willingness to cop the consequences is one of the reasons Bob Brown is impressive and effective.)

These are tough criteria, but they worked. I wonder if the ‘bleeding hearts’ are up to anything remotely as challenging?

My main point is, let’s know what we’re talking about and do something about actual issues, one at a time if need be. Let’s stop congratulating ourselves on our superior sensibilities (which is what all talk of ‘we’re in a minority’ actually is). And let’s stop wasting time on ‘defining’ ourselves with stupid, confected labels.

Stop whining. Talk issues.

***

ELITES NO MORE

Tim Dymond in Perth

Like you, I hope people won’t be unduly detained by the subject of ‘elites’ this year. Actually it seems that even the Right is having difficulty with the idea. In the current edition of ‘Quadrant’ (the one with the pink cover) Andrew Norton, late of David Kemp’s office, acknowledges that the names of pro asylum seeker ‘elites’ don’t show up in many lists of top 100 corporate executives, or in leadership positions of the major political parties.

Nevertheless they apparently still show ‘elite-like’ characteristics. He emphasises the number of QCs in newspaper petitions who identified themselves as a ‘QC’: proof, says Norton, of a preoccupation with social status. Whether or not you are a QC surely has nothing to do with your attitude to asylum seekers, therefore you must just be a snob!

He also emphasises the moralistic tone of the elites – placing anyone who does not agree with them beyond the pale. Too bad the elites can’t adopt the even-tempered, moderate and inclusive attitude of a Paddy McGuinness.

I guess the point I am trying to make is that the whole ‘elites’ argument must well and truly be running out of puff if this is the best its proponents come up with.

However Norton does make one point. In discussing Julian Burnside’s offer of a ‘room for a refugee’, he snidely observes that no similar offer was made to a local homeless person. While I don’t doubt Burnside’s sincerity, and Norton’s crocodile tears, it is the case that people’s social conscience is more likely to be fired up over a spectacular issue like detention of asylum seekers, than the more ‘humdrum’ deprivation in one’s own backyard. Social justice worthy of the name can’t be chauvinistic, but it can’t be short-sighted either.

***

JOINING THE BH CLUB

Polly Bush in Queensland

Prospective Bleeding Hearts Club Requirements

1. Qualities:

– must have a heart therefore to bleed

– should have a high threshold for disappointment

– must be proud to declare bleeding heart status in own environment

– extra points for dry retching after reading anything by Tim Blair

2. Basic Entrance Test:

(i) How did you vote in last year’s Federal election?

Greens (5 points)

Dems (5 points)

Labor (-10 points)

Liberal (-10 points)

Independent (Please specify – 5 points for the electorates of Calare, Warringah. Kennedy – please try the diseased bananas from the PhilipYnes club)

One Nation Party (automatic disqualification, please see terms of agreement in fine print in my head)

(ii) If you voted Labor, who do you find more appealing?

Carmen Lawrence (Regain 10 points)

Kim Beazley (Sorry, you lose. Please proceed to the applications for the Alternative Liberal Party; see also ALP)

(c) If you voted Liberal, who do you find more appealing?

Philip Ruddock (Find the Temple of Doom, remove heart immediately)

Greg Barns (You’re alright)

***

Kieron Convery in Hobart

Gee thanks, Margo. Just when an ill-educated, working-class Mick like meself finally gets to be called ‘elitist’ by the establishment, you come along and tell me they’ve given it up! Now what? Bleeding Hearts? Great!

Oh well, I never really believed I was part of the elite, not on my income.

Though I’ve only lived in Australia since 1986, I read enough to know this is hardly the first time in Australian history that the race card has been played by a devious government, of whatever shade. Nor the first time the bulk of the Australian population has appeared terrified at the notion of waves of ‘others’ arriving to infect us with their filthy ways.

Indeed, some kind of weird relief might even be drawn from the fact that the ‘others’ the Howard Government demonised at least weren’t the indigenous people. Remember how close we came to THAT race election?

It’s still so disheartening, though, to see this vein so easily tapped by what I consider the nastiest government I’ve ever lived under (and I include Thatcher’s in this).

The damage is not easily repaired. It will take courage within the ALP, should they return to government any decade soon. And somehow, when you consider their gutlessness and lack of political skill last time, you feel they’ll look more to Blair’s England than Whitlam’s Australia for inspiration. In which case I can only say my heart bleeds for Australia.

Welcome back. Sign me up.

Hi, and thanks to readers who sent welcome back messages. David Morgan has started a weblog called ‘Elitist’ with the motto ‘”Say it loud – I’m elitist and proud”, and is horrified at the thought that yesterday’s piece pronouncing the end of “elite” as a neo-liberal term of abuse might be true. “Oh no … Where does that leave me?” elitist

Webdiary regular Robert Lawton, in Adelaide, had no time for niceties, as usual. “As overwhelming as the asylum-seeker issue might seem, and as fun as it is to fight the troglodyte populists like Shane Stone, Piers Ackerman or Andrew Bolt over such things, can you give some space in the welcome return of your column to the greater issues for this country? How about health care costs and Medicare reform, the welfare trap, which dissuades people from paid work and the shocking failure of urban planning in Sydney and Melbourne? That’s for starters anyway.”

Good point Robert, with the budget coming up. Anyone keen to start the ball rolling?

Senate committee members are still brooding over whether to subpoena Reith. For those who want to be reminded of the lies and obfuscations of that terrible day on Thursday, November 8 when it become blindingly obvious that the public had been duped – not that the government cared, they’d got boat people back on centre stage two days before election day – there’s transcripts and details of the day’s events in Credibility overboard, Red light questions, Circling the wagons, Howard throw and Rotten corpse of an election (see Webdiary archive). There’s a chronology of the affair on Labor website truthoverboard

On the evidence to date, Reith is in the clink as a liar and co-conspirator in an intricate cover-up during the election which utterly compromised defence and other so-called public “servants”. The numbers of those in the know was huge, yet all kept their mouths shut rather than tell the public the truth. Wasn’t this supposed to be a caretaker period, where the public service ran on automatic pilot, not cooperate with government scams to help win it an election? Not a leak, not one, when it had to be done in the public interest. It was left to a few bewildered sailors on HMAS Adelaide, abandoned by the defence hierarchy and public servants, to tell The Australian newspaper the truth in the last week of the campaign, only to be flippantly dismissed by Howard. The ‘public service’, culture would have been be pronounced dead if not for some very frank evidence to the inquiry by some public officials embroiled in the dirty, demeaning mess. (I hear there’s been some dynamite evidence at the hearing this afternoon.)

This is a clear case of the cover up being worse than the offence. To quickly admit that public statements were based on incorrect information would be a one day wonder, and take little away from the government’s political momentum on boat people. To corrupt the defence department and the defence force is but one of many long-term adverse consequences of this matter, including the apparently gaping hole in the accountability of government. We’ve seen defence personnel and public ‘servants’ – some of whom told the government of the fake claims – grilled, but the ministers and his courtiers who gave the orders, hide out.

This is a big call for Labor. A subpoena to Reith would set the precedent for former Labor ministers to be called by the Liberals, in government or opposition.The big parties traditionally look after each other on these matters. If Labor bites the bullet, you can bet Reith will fight it in court, maybe all the way to the High Court.

After all, taking the rap and perhaps protecting the Prime Minister means the government owes him big time. Nice place for a private defence consultant to be in, don’t you think? And what of current staffers Hampton and Jordana and former staffer Scrafton? They’re in no hurry to clear their names either – and remember, there’s no precedent set if such people VOLUNTEER to give evidence. How big a favour might the government owe one or more of them?

Ever wondered why the higher up you get the greater the chance of being kicked upstairs or getting big payouts for incompetence or worse? Jonathan Shier for example, was sacked and given $1 million. What did that pay for? How many ABC board members would survive a Shier statement of his riding instructions? The more you know, the safer you are.

***

Bleeding Heart Club – foundation member

Joe Podosky in Ascot, Brisbane

I’ve been a closet bleeding heart for years and I recently came to a similar conclusion to you about our place in Australian society. I realised that I am in the minority; even in my own family. I think my family suspects something but I have not outed myself. I’m sure my mother knows though…mothers are like that.

However, I do also see something hopeful. Go back 30 odd years to the early days of the Vietnam War and a similar situation existed. The majority of “right thinking” Australians supported the government’s actions in Vietnam. The bleeding hearts in those days were again a minority. But over time, the tide changed and more and more people came to realise the stupidity of the continuing the War. A bleeding heart became PM!

While today’s history is still being written, I feel that the tide is about to turn with the dead hand of the Howard junta. All things pass.

Certainly this government has not only tapped into the ingrained racism of most white Australians but it has also inflamed and fed that horrid xenophobic side of the Australian psyche to a point where even good Australians have lost all sense of perspective. We have lost our famous attitude of a fair go for all. We have turned our backs on frightened, helpless human beings in their time of need. We are a poorer nation for that.

I guess only time will finally reveal the moral bankruptcy of the Howard years. As Donald Horne said in The Australian (Jan 26, 2002), “One of these days we my again be granted a leader with the gift of showing us the possibility of a new national togetherness”. I guess that person would have to be a bleeding heart.

I’ll now wear my bleeding heart on my sleeve.

***

What is a bleeding Heart?

Caroline Compton in Sydney

The gist of it is something like this: The Hebrew word that means ‘bleeding heart’, literally translated, means ‘beautiful soul’. (Margo: Oh no! Does anyone know anyone who qualifies for the Bleeding Heart Club?)

***

Stephen Holt in Canberra

My understanding is that the term “bleeding heart” dates back to the 1960s in the USA. In 1964 Governor George C Wallace of Alabama ran in a few Democratic primaries in protest against the Civil Rights Act. Normally his support would have been confined to the KKK and the Old Confederacy but commentators were surprised when he polled strongly in industrial Northern states. He benefited from a “backlash” among working class ethnic voters who felt they were being “wedged” out by a coalition of African-Americans in the inner cities and college educated “bleeding heart” small “l” liberal Democrats from more prosperous suburbs.

Wallace’s 1964 campaign was a foretaste of the eclipse of the Democratic Party, presidentially, in the era from Nixon to Clinton. George C Wallace would have little to learn from the successful campaign tactics in the last federal election.

***

Can you better Steve J Spear’s nicknames for Howard and Ruddock in yesterday’s diary?

Neil Watson in Jakarta

Please be informed that the PM has long been known as ‘Iron Jack’ Howard among the cognescenti. Similarly it’s ‘Wallaby Bob’ Hill and ‘Pistol Pete’ Costello. But we’re supporters, so you Bleeding Hearts will have to find your own monickers.

David Eastwood in Sydney

Ruddock: Mr Hat (apologies to South Park)

Crean: Kenny (ditto) or Boofhead (Apologies to James Packer)

Howard: ALT (Annoying little twerp) or “What’s that noise?” or “Weedle”

Ferguson: Kevin

Stott-Despoja: Mrs Smith (obvious, and reinforces a certain sense of mediocrity)

Alston: Gretel (Packer, get it?)

Abbott: Can’t better “Rasputin”

Bishop: Who?

Hill: Fluffy

Downer: Krusty (apologies to the Simpsons)

Murdoch, R: Obi-wan

Packer, K: D-Vader

Packer, J: See above, also Don’t.Tel

Murdoch, L: Bart (“it wasn’t me”)

Kemp, D: Terence

Kemp, R: Phillip (sorry, more South Park references)

Costello: Laughing Assassin

Nelson: Duncan Kerr

Anderson: Clarke Kent

I’d put more Laborites in, but they’re mostly too invisible to create an impression.

MARGO: Alston as Gretel is my pick. I reckon that would stick.

When I left Australia in February, the commentariat war had shifted. Progressives were finally using their heads – not their hearts – to satirise the absurd claims of the neo-conservatives that we, not they, were “the elite”. On my return, the winners appear to have finally dropped ‘elite’ from their arsenal of abusive labels. Perhaps even they thought it too ridiculous.

After Howard’s six years in power, and another term, it is easy to pick the elites, and the losers in the cultural war over our social values aren’t on the radar. It’s over. The other side won.

There also seems to be a growing adoption of the “bleeding heart” label as a badge of honour. I first saw this just before I left, when Carmen Lawrence, in an article condemning the detention of women and children in refugee detention centres, declared herself proud to be a bleeding heart. Paul Keating’s speech writer Don Watson has titled his impending memoir “Recollections of a bleeding heart”.

To me, this signifies that social progressives have, at last, conceded that they are a tiny minority of the Australian people. They have left behind their anguish, shame and breast-beating and their refusal to accept that their concept of the Australian identity is not mainstream. And so they have begun to transform the abusive “bleeding heart” label into something to glory in, just as Italian migrants did with ‘wog’ and gays did with ‘queer”.

And just as women, gays and migrants did before them, ‘bleeding hearts’ are beginning to understand that to influence power and change attitudes they need to understand the dominant discourse and engage with it, and they need to use the legal system to press their case. They need protests and stunts to earn publicity. They need concerts like the one in Sydney this Sunday to make people feel that there are others like them, that they belong, and that together they have the energy, commitment and intelligence to make a difference.

They need to understand the enemy. They must be willing to put time and effort into their cause, and to realise that it is a long-term project. Since I’ve been away, refugee groups seem to have mushroomed, encompassing front-line, confrontational activism like the attack on Woomera, rural refugee groups, artists for refugees and the spare rooms movement. No matter their age, political beliefs and ethical boundaries, there is a place for all bleeding hearts in the movement. Phillip Adams mentioned today that he had received $250,000 in donations to help further the refugee cause. He and others have set up a board to dispense cash to groups which need them.

We are now in the decadent phase of the new political correctness. By the end of the Keating era, noone could critique Aboriginal policy without being labelled racist. The atmosphere was stultifying, and there arose a small group of print commentators challenging the dominant orthodoxy. Once voices in the wilderness, since 1996, their numbers have grown to the point where their voice now dominates print media. It is becoming risky to express an opposing point of view.

Shane Stone’s speech to the Liberal Convention last weekend is a case in point. He did not use the word ‘elite’, instead accusing all commentators critical of the ‘children overboard’ lie as “not getting it” – that is, not getting the fact that the Australian people didn’t give a damn. We are lost in our fabricated version of history, unaware of our irrelevance in today’s Australia, he said, including in his list of sinners such erstwhile names as Michelle Grattan, almost universally recognised as the most careful, balanced, fair journalist around.

At first I wondered why Stone would devote his speech to a group of journalists he saw as irrelevant. Why bother? Could they still be a threat after all? Then I remembered Paul Keating once praising economic journalists as getting on board while decrying The Age’s Ken Davidson and Tim Colebatch as irrelevant troglydytes. Those were the days when everyone in the club had wet dreams about pure competition policy, before the Hanson phenomenon reminded them that human lives were at stake, and maybe they deserved some help.

Keating was engaging in triumphalism. So is Shane Stone. Part of that triumphalism is the ungracious winner’s desire to put his shoe on remaining critics, to silence small voices so they hear nothing but praise in their victory march.

The only way for progressive forces to claw back from irrelevance is to understand that the struggle will take a long time, and will require a coherent, accessible achievable alternative to the ideology which now rules us. For now, at least, the energy is there. Not in the Labor Party, but among the bleeding hearts.

******

I’m thinking of starting a bleeding hearts club. Any suggested definitions of the term?

***

Playwright Steve J. Spears has suggested a competition: “I think it’s time us left/libertarians came up with definitive nicknames for the Lib boys and gals. I’ve tried pushing “Viking John” for the PM and “Phillip Robot” or “Monty Burns” (a stolen idea) for Ruddock but they’re not sticking.”