I hope Labor has the courage to tell the government to get stuffed on its utterly sinister laws and to nut out an effective, decent solution with other Australians of goodwill

Crazy. I was inside NSW Parliament House today at the hearings into the bill which would allow ASIO to “disappear” people like they used to do in Argentina. Outside, some Australians marked Labor day with a polite protest against le Pen, across the road others did a rough and ready rally for asylum seekers and out the back police rode horses into blockaders. Over the loudspeakers, security announced that the door had been locked.

Inside, two Coalition and three Labor men questioned concerned Australians on a terrorism package that would label most of those outside terrorists who ASIO could cart away and keep somewhere, anywhere, for as long as the government liked. And not only them – their perfectly innocent spouses, children and friends too.

I wrote a story for the Herald online, reproduced below, but the highlight of this compelling day couldn’t be put in a news story. I watched what I could only call a heartfelt plea by Labor heavyweights to the lawyer witnesses – with the tacit support of the two Coalition backbenchers – to help find a way to prevent a terrorist’s plans for mass destruction without wrecking our democracy. (Beazley’s election policy was to pass a law modelled on the United Kingdsom one – much less draconian and much more precise than this one.)

It’s clear that the ASIO bill is an ill-conceived crock. It relies on the passage of another bill (see Come in, Big Brother) which makes ordinary Australians terrorists and members of ordinary political groups threats to national security. All these people and their family and friends are then subject to extraordinary new ASIO powers. It appears that the government locked out anyone with human rights experience or any understanding about the rule of law, human rights or democratic foundation stones, and let itself rip.

It also locked out constitutional lawyers: The ASIO bill is probably unconstitutional yet the government admitted today it hadn’t even sought advice on the matter.

Stupidly, the ASIO bill also subverts its own aims (if you believe ASIO). ASIO told yesterday’s Canberra hearing that it wanted to be able to act on information of an imminent terrorist attack somewhere in the world by interrogating family or friends of a suspect. Yet under the bill, anything said would be used against the detainee in Court. As former Labor speaker Leo McLeay noted, incredulous, “If this is about getting information, you’re more likely to get it if (the detainee) is PROTECTED from self-incrimination”.

Most grievously, Kim Beazley, who as former Defence Minister is a veteran of security issues and a noted defender of ASIO, said the bill was utterly misconceived, and that ASIO had effectively admitted it. The legislation was drafted as a way to interrogate alleged terrorists as a prelude to charging them, yet “ASIO is seeing it as another way of gathering intelligence” to PREVENT a terrorist attack, not to “get somebody and nail them”.

“It’s fallen between two stools,” Beazley said. The concept is this. Since September 11, the USA and its allies saw terrorism as a trans-national problem. There could be a cell in Sydney planning a terriers act in Italy. Intelligence agencies were sharing information like never before. Say a foreign intelligence service picked up a phone call in Canada to Bessie Smith in Perth, in which her husband claimed something bigger than September was imminent. What could ASIO do with that? They’d want to question Bessie, but she could tell them to get lost.

Leo McLeay put the big political picture. Governments around the world did not want to be ‘fingered’ for the next catastrophe. It was clear there were pre-September 11 trails which weren’t followed. Politicians would have no excuse next time. Their butts would be on the line.

So Beazley and McLeay and Ray asked lawyer after lawyer, “What can we do?” What IS acceptable?

This highly unusual plea for help from the public arises because the government put out its crock without prior consultation and threw it to the joint parliamentary committee on ASIO for a quickie. The hope: to ram the package through parliament courtesy of a cowed Labor Party frightened into silence by the public mood.

Still, it’s a good question.

Late in the afternoon, McLeay started pressing the point. He told International Commission of Jurists witnesses: “If this legislation is about gathering timely information that may prevent catastrophe, can’t we organise a set of arrangements which protect people’s civil liberties?”

Commission council member Rodney Lewis had already pointed out that during the Cold War people lived with the threat of imminent war for years without resorting to government detention without charge. And why not ask the same question after Port Arthur – detention powers to prevent non-terrorist massacres?

And really, the threat of detention was no threat to terrorists and their associates, but to their spouses, children, grandchildren and grandparents who were NOT terrorism. “If the outcome is not in ASIO’s interests, there will be blame sharing and blame shifting by the little people pushed around by the law, ” he said.

The Council – which travels the region observing corrupted legal systems and corrupt show trials – said it could not move for its fundamental position: history had shown that government abuse of detention powers was usually worse than the threat the powers were supposed to counter. Like law professor George Williams after him, Lewis saw no need to stretch the current Crimes Act, where police can hold actual suspects for a maximum of four hours without charging them.

If ASIO really needed to keep them longer, for example to stop them tipping off a terrorist, then they should convince a JUDGE of that, and HE could allow an extension.

Commission chair Steve Mark said the Commission would be happy to come up with possible solutions to the problem now they’d been asked, on the basis that their total opposition to any detention without a judges say-so was crystal clear.

A breakthrough. Because, as Beazley said, we are all in this together. It’s a problem for all of us. Some compromise, perhaps subject to a sunset clause, of core democratic principles might be necessary in rare cases. If our best minds work together, we might come out with a scheme with as little impact of civil rights as possible and as much accountability as possible which is well suited to ASIO’s declared aims.

This, as in many really tough political issues, is a question of balance. I hope Labor has the courage to tell the government to get stuffed on its utterly sinister laws – designed to ride public fear to give itself police-state control over normal Australian political life – and to nut out an effective, decent solution with other Australians of goodwill.

Luckily for Beazley this time there’s no election imminent, so this time the government can’t abuse public fear as it did when it wiped out judicial review of its refugee policy and practice and blamed Labor for trying to stop it. This is a chance for Labor to find itself and what it stands for – to come up with a decent alternative, argue its case to the Australian people loud and clear, and ask them to make a judgement after hearing all the evidence.

Labor might remember that when it last took on the Coalition on a matter like this – when Menzies asked the Australian people to approve legislation to ban the Communist Party at the height of the Cold War – after a bruising contest of ideas and ideals the people said no. Twice.

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Today, after my news story, reactions to the terror within from Brian Bahnisch, Mike Kelly, Roland Killick and Mark Murphy.

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Labor signals changes to ASIO plan

By Margo Kingston

Former Labor leader Kim Beazley today foreshadowed sweeping changes to proposed laws allowing ASIO to detain citizens incommunicado without charge for at least 48 hours, saying they were misconceived.

Mr Beazley and former Labor minister Robert Ray broke Labor’s silence on its Senate stance during a parliamentary inquiry hearing in Sydney today. They foreshadowed amendments to allow legal representation from an approved panel of lawyers, reinstatement of the right not incriminate oneself, a maximum detention time, some judicial review, written guidelines on how interrogation would proceed and public reporting of the numbers of detainees and the length of their detention.

And former Labor speaker Leo McLeay said it was unacceptable that, if the Attorney-General agreed, “the 48 hours becomes a revolving door (where) you could hold someone indefinitely under this legislation. It seems to me that you’ve got to give someone a right of appeal system to get out of that circumstance. (Otherwise) the person (is) locked in a room and someone’s got the key and no one knows you’re there.”

In a day of passionate criticism from leading Australian lawyers, Professor George Williams of the University of NSW said that “initially I thought it was some sort of hoax” because “this legislation contains the essential apparatus of a police state”.

Senator Ray said the legislation said nothing about what ASIO could or couldn’t do during the first 48 hours, including where the person would be held and whether he or she would be allowed to sleep. He said this “total vacuum” would have to be filled by a protocol on treatment.

The Government claims its package of anti-terrorism laws is necessary after September 11, but it sweeps protesters, picketers and many existing political groups into its net. A “terrorist act” is defined as serious damage to person or property to advance “a political, religious or ideological cause” ASIO could detain innocent friends, spouses and children of a suspect, or anyone else, incommunicado, without access to a lawyer and leaving their families ignorant of why he had disappeared. There would be no compensation for torture, mistaken identity or when ASIO’s suspicions were baseless.

International Commission of Jurists council member Rodney Lewis told the inquiry the legislation overthrew a core democratic principle in existence since 1629, when the King lost his power “to detain at his pleasure”. “Let us not surrender to Osama bin laden and his associates by subverting the very things they work to subvert,” he said.

Council chairman Steve Mark said the legislation “obliterates the building blocks of the very basis on which we live.”

Professor Williams said the High Court was likely to strike down the law, as it had already decided that the power to detain without charge was “an exclusive judicial function” except in cases of infectious diseases and mental illness. Government plans to force federal magistrates to witness and supervise ASIO’s detention and interrogation were also likely to be struck down because judicial officers would be dragged into a non-judicial role, breaching the constitutional rule that the government and the judiciary not mix their roles.

The Attorney-General’s department then admitted it had not taken legal advice on whether the legislation could be struck down as a breach of the separation of powers between the government and the judiciary.

The ASIO committee was to have reported on Friday, but has asked for an extension to June 15 due to a flood of submissions, and admissions from ASIO that there were “gaps” in the legislation.

Mr Beazley said the ASIO legislation had “fallen between two stools”: It appeared to be directed to questioning people before charging them with terrorism, but in fact ASIO wanted to gather information to prevent a terrorist attack.

He asked Tasmanian University law lecturer Dr Greg Carne: “Do you believe that this is capable of being reconstructed as a bill that goes to effectively gathering that information without massively offending the rights of the people who are picked up for discussion?”

Dr Carne said the United Kingdom anti-terrorism bill was far less draconian and could be used as a model.

And Professor Williams said detention should be permitted only by a judge, sitting behind closed doors if necessary.

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Brian Bahnisch in Brisbane

Concerning laws on terrorism, your last week’s effort was a bit hard to follow. I had several reactions to it. First, I had the impression that the law as it relates to individual rights and liberties was being dragged back about 1000 years.

Just about any-one who was not entirely docile and subservient to the ruling ethos could be locked up for life. We are asked to trust the good sense of the Federal Police. Police often KNOW who is guilty, but find it hard to get enough evidence for a conviction. These laws would make policing ridiculously easy.

Then I realised that I may already be in jeopardy. Recently I helped my daughter in Japan get some money that had been contributed by a group of Japanese women to a friend of hers in Adelaide. The idea was to hire a bus to take protesters up to Woomera at Easter time. I had no idea who the group was, but they must be gentle folk if they are my daughter’s friends. I deposited the money in their account and my daughter reimbursed me later as time was short. I understand their effort was non-violent but effective enough to be noticed by the authorities.

I still don’t know what they call themselves, but I do know now that they have a traceable link with a group that goes under the name of “S11” (so-named before S11 if you understand me!) It is conceivable that this identifier alone could alarm the Attorney General enough to proscribe the organisation. As a consequence I could be locked up for 25 years. My intent (helping my daughter) is irrelevant. My signature is on the deposit slip, so I incur an “absolute liability”. (MARGO: There’s already an off-the-wall case of federal police misidentity of a regular business as a terrorist front which I’ll write about soon.)

The Federal Police would say that they could not be bothered with small fry like me. But I have been known to become passionate about causes and it is possible I may annoy someone in the future. My past act could then be used as a threat.

Margo, there has been a bit in the media. Brian Toohey did a neat article in Saturday’s Australian Financial Review and Terry Lane had a segment on the ABC on Sunday (“In the National Interest”). But these are the usual suspects and hardly mainstream.

I think that the only possibility of heading off this ridiculous legislation is to work on the Labor party. They can kill this in the Senate. After their performance on the border control legislation last year we have every cause to worry, but if they pass these laws in the first year of a new term they are beyond redemption.

So I’m off to crank my email campaign to Labor pollies.

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Mike Kelly in Canberra

I believe that if these laws come into being they will be used by the Government of the day to remain in power, not just save us from “terrorism”. Governments already use the purse strings and other perks of office to maintain their position. To be able to stifle dissent of Government activities would be hard to resist.

I wonder if the Save Our Sons mothers from the Vietnam protests would have been judged a danger to the security of the Australian Nation and detained indefinitely.

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Roland Killick in Sydney

I’ve been lucky to live in 14 countries (so far). During the last sixty years, only three have not been invaded, annexed or suffered an armed revolution. In each case, the machinery of government was used against the citizens to consolidate power and neutralise opposition.

Arrest without trial, detention without notification, criminalising ideas and such like were steps facilitating population control after revolution or invasion. Politicising the Armed Forces and the Police, interfering with the independence of the Judiciary and running down the Public Service were also pretty useful to subjugating those Nations.

Of course, it is inconceivable that these things should ever happen here in Oz, God’s own country. Just because we have a few similarities – well actually all the ones above – happening or proposed doesn’t mean the Indonesians are about to invade or the Legions of One Nation are grouping for an assault on Canberra – does it?

And we do have to protect ourselves from terrorists blowing up, or from people thinking that it might at least improve the skyline if terrorists blew up, the MLC building – don’t we? And history shows us that governments which crack down ruthlessly on terrorism, making life unpleasant for many and shorter for quite a few, are the ones which last longest – aren’t they?

Today, after much suffering, each country I lived in is under some semblance of popular control. (Although in a couple of cases, their external policies are still not very pretty.)

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Mark Murphy in Blacktown, Sydney

Good to hear you back on Radio National. I consider myself just and ordinary guy from Blacktown and I never write letters to the editor or to politicians. However, tonight you have sparked me into action – thank you. Below is the text of an email to Mr Howard that I have sent tonight.

Dear Mr Howard,

I am writing to you to express my gravest concern over the way your government is eroding my freedom.

I have recently become aware of your anti terrorism bill which proposes life imprisonment for property damage related to any political, religious or ideological protest.

While I am not a person who particularly believes in damaging any property of other people, I do believe in any citizens right to express different opinions to that of yours or indeed any other government.

I believe that this type of sledgehammer approach to address populist fears about terrorism is totally disgusting and bordering on totalitarian. Who would have thought that Australia’ s Prime Minister could be equated to Joseph Stalin, Mao Tee Tug or indeed Mohammed Omar (Taliban) and his cohorts.

Coming from a similar background to yours, growing up in the Canterbury municipality with clear memories of you on your soapbox in Beamish Street, I am just totally gob smacked that this legislation could come from a liberal government that you are responsible for.

Mr Howard, do you really wish to be the Prime Minister who has taken away our democratic rights? Where is your “honest John” mantle now – in the bin I suspect.

Mr Howard I just cannot believe that you are proposing to do this. There is just no excuse, and I mean NO excuse for doing this.

CC: everybody I can think of

In total disregard,

Mark Murphy