The terror laws saga is getting murky. It seems Attorney-General Daryl Williams is still unable to get the tick from his backbench on his fervent wish to give himself to power the ban political organisations.
A joint party room meeting planned for this afternoon to tick an expected agreement between Daryl and the backbench legal committee staring him down has been put off till 6.30 tonight. Daryl’s plan to rush his package through the Senate this week is off.
It now won’t be debated until the Senate sits again on June 17. That’s four weeks for his opponents to exploit the increasing momentum against his legislation. Protests and meetings around the country are already being planned by lawyers, students, unions and environmentalists. As foreshadowed, One Nation Senator Len Harris will oppose the package of bills too, today calling them “draconian and oppressive bills … normally associated with military juntas and police states”.
And Williams has just got kicked from a surprising quarter, the Australian Bankers Association. ABA spokeswoman Heather Wellard said the ABA had joined the lobbying queue outside Daryl’s office. “The bill establishes a strict liability offence where a person directly or indirectly receives funds or makes funds available to a proscribed (banned) organisation,” she said today. That meant bank tellers would be on the block “for simply carrying out duties of their position’ and tellers, not the prosecution, would have to prove they didn’t know an organisation was banned.
Williams’ sloppy, overreaching, autocratic, civil liberties-blind legislation is unravelling before his eyes, and his performance has been so bad you’d have to wonder how long he’s got long left as Attorney-General. He was reduced to this in today’s Question Time. “We must make sure that we are in the best possible position to identify, prevent and punish those responsible for terrorist acts and those planning terrorist acts…I recently returned from discussions with my counterparts in the United States, Canada and the UK and I can report to the House that our commitment to dealing with the threat of terrorism in a comprehensive and responsible way has earned us the appreciation and respect of these important allies, and, in particular, the respect of the United States.” As usual, not the scintilla of an answer to his critic’s case.
Labor, which had largely shut up and hoped to get a nice little deal with the government to get the thing out of the way, has been inundated with protests. Labor Senate leader John Faulkner, the man responsible for presenting Labor’s position, said that “I – like most of my fellow members of parliament – have received thousands of emails…not one that I received supported the bill.” He let Daryl know he couldn’t rely on Labor to get the power to ban through, setting out Labor’s position in the Senate this morning. I’ll put his speech up tomorrow when it becomes available online.
In summary, Labor wants:
1. An exemption from the crime of treason for humanitarian groups
2. An addition to the definition of `a terrorist act’ to include the requirement of “the use of violence to influence the government or to intimidate or coerce the public or a section of the public”.
3. Dumping of the reversals of the onus of proof, and of strict liability by requiring the prosecution to prove that the defendant intended to commit the act in question..
4. Raising the bar for permission to intercept emails to the same level required for telephone intercepts.
5. Scrapping the power to ban political organisations.
Faulkner’s speech was also the first outing of Labor’s rhetoric on the matter. “Our model will target terrorists; it will not target innocent bystanders.” Like it?
Labor has moved, no doubt about it, under pressure from the Left faction and a huge effort from community groups and lawyers. And Daryl Williams has moved too, under pressure from his own backbench. But there is further room to move if the protests take off. As far as I know, the issue has not yet reached the shock jocks desks. How will they play it?
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TODAY, more terror laws comment from Damien Lawson, Phill Parsons, Lindsay Peters, Hamish Tweedy, Sean Richardson and John Fielding.
Tomorrow is the first anniversary of my weekly column in the Echo News, a weekly community paper in Lismore. Editor Simon Thomsen is simultaneously super-charged and laid back, and is great to work for. Since buying the Echo with local partners some years ago, he’s transformed a loss maker into a profitable paper through total commitment to reporting from the ground up and a high degree of reader involvement, including pages of readers letters each issue. The online version of the paper is at www.echonews.com.
Some of the big media boys could learn a lot from Simon’s success – his focus is not on design (the “look”) but on content, content, content. He wants his staff on the streets getting the news, not processing press releases and phoning PR flaks from the office.
Lismore is a diverse and dynamic town. This week 100 opponents of the terror laws gathered outside the office of the federal National Party member Ian Causley. Aidan Ricketts, a law lecturer at Southern Cross University in Lismore, helped organise the event. “Our action involved a 5 point quiz to determine whether a person is a terrorist, followed by numerous confessions of such acts by the people present. We then staged a procession reminiscent of the Cultural Revolution in China, where we marched the dissidents to the police station with boards detailing their crimes around their necks, for example “Terrorist: I donated to Greenpeace” or “Terrorist: A lawyer who gave legal advice to protesters”.
As the terror package moves into the intense backroom phase prior to landing in the Senate, Damien Lawson from the Victorian Federation of Community Legal Centres is in Canberra knocking on doors to put his case. The federation has led the email campaign through appeals like the one I published in Sniffing terrorism. Here’s his bulletin from the frontline.
Damien Lawson
Like me I am sure you are crossing your fingers on the ALP standing solid on their decision to not support the banning of political organisations – the first time the Left has had a win since the MX missile crisis!
Of course the devil is always in the detail. I am concerned they are still not willing to address other problematic aspects of the bills that have not had proper discussion, in particular the financing of terrorism provisions. This can be illustrated by looking at the Senate Committee Recommendations, as they will form the basis of negotiations.
My comments:
Security Legislation Amendment (Terrorism) Bill 2002 [No. 2]
Recommendation 1
The Committee recommends that proposed section 80.1 in the Bill be amended so that the terms `conduct that assists by any means whatever’ and `engaged in armed hostilities’ are defined, in order to ensure that the humanitarian activities of aid agencies are not caught within the ambit of the offence of treason.
This fails to address two problems:
i) Australian citizens involved in one side of a civil conflict will potentially be committing treason if the Australian Defence forces are sent in as peacekeeping and/or to support one side, and
ii) Family and friends of someone in that situation and who know they are there will be committing treason if they fail to inform the Australian police.
Recommendation 2
The Committee recommends that the definition of ‘terrorist act’ in proposed section 100.1 in the Bill be amended to include a third element, namely that the action or threat of action is designed to influence government by undue intimidation or undue coercion, or to unduly intimidate the public or a section of the public.
This is a significant improvement, but does not address the fundamental problem that by trying to define terrorist offences you are criminalising motive rather than action. Some political and union activity could still be labelled terrorist. The existing criminal law should be used.
Recommendation 3
The Committee recommends that:
(i) the Bill be amended to remove proposed sections 101.2(2), 101.4(2) and 101.5(2), which impose absolute liability in respect of certain elements of those offences; and
(ii) the offences in proposed sections 101.2(1), 101.4(1) and 101.5(1) be amended to provide that they are committed if the person knew or was reckless as to the required element in 101.2(1)(b), 101.4(1)(b) and 101.5(1)(b).
This is a significant improvement. Before the action alone without any intent was enough to convict. So, for example, possession of a `thing’ connected to a terrorist act, regardless of what you knew about the thing or intended to do with it could get you life imprisonment.
However recklessness still lowers the bar for the prosecution and allows people without a specific intent to receive life imprisonment. For example the prosecution could argue that a flight instructor who who trained someone to fly should have known he was a terrorist.
Recommendation 4
The Committee recommends:
(i) that proposed Division 102 in the Bill in relation to the proscription of organisations with a terrorist connection not be agreed to; and (ii) that the Attorney-General review the proscription provisions with a view to developing a statutory procedure which:
* does not vest a broad and effectively unreviewable discretion in a member of the Executive;
* restricts the proposed ground under which an organisation may be proscribed if it has endangered or is likely to endanger the `security or integrity’ of the Commonwealth or any country, by defining `integrity’ as meaning `territorial integrity’;
* provides detailed procedures for revocation, including giving a proscribed organisation the right to apply for review of that decision;
* provides for adequate judicial review of the grounds for declarations of proscription;
* more appropriately identifies and defines the proposed offences in relation to proscribed organisations, particularly in relation to the offence of `assisting’ such an organisation; and
* does not create offences with elements of strict liability, given the very high proposed penalties.
The Committee correctly highlights the problems, but does not rule out proscription all together. Whether done by the Attorney General or a judge proscription should not be allowed. There are reports that the ALP will not accept any form of proscription, which is a significant success. We are awaiting the detail on negotiation with the government before we can say the ALP has adopted the appropriate position, but they seem to be heading in the right direction.
By the way, there is no requirement from the UN Security Council for a general proscription power to be enacted. The Attorney General’s Department have conceded this in their written answers to the Senate Committee.
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Telecommunications Interception Legislation Amendment Bill 2002
Recommendation 5
The Committee recommends that the Attorney-General review the current law on access to stored communications of delayed messages services with a view to amending the Telecommunications Interception Legislation Amendment Bill 2002 so that the accessing of such data requires a telecommunication interception warrant.
This is suggesting that ASIO should at the very least have to get the same type of warrants they obtain for phone tapping if they want to read email and SMS messages. Once again need to see detailed amendments. The Democrats have been very vocal on this.
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Suppression of the Financing of Terrorism Bill 2002
Recommendation 6
The Committee recommends that proposed section 103.1 in the Suppression of the Financing of Terrorism Bill 2002 be amended so that the financing of terrorism offence includes an element of intent.
Comment: Excepting that offences of terrorism will be created (see comments above), removing recklessness in the provision of funds is a good recommendation.
Recommendation 7
The Committee recommends that:
(a) provision be made, either by way of an amendment to the Suppression of the Financing of Terrorism Bill 2002 or under regulations, that before any decision is taken to freeze assets in respect of a proscribed person or entity, the Australian Federal Police set an appropriate course of action in consultation with the relevant financial institution or institutions before any asset is frozen; and
(b) Once action has been taken to freeze an asset, the owner of assets must be advised in writing as soon as possible and their rights and obligations explained.
This is to address some of the problems of “innocent people” having their assets frozen, such as the Collingwood music business owner of Shining Path Records , who had his assets frozen by the bank for a month after being confused with the Peruvian guerilla group! (See Brian Toohey’s report of the farce at the end of this entry.) However this does not address the problem of people and groups placed on the UN list with no natural justice or due process and their assets being frozen around the world.
UN Resolution 1373 does require member states to attack the financing of terrorism, but does not specify exactly how this must be done. There is a difference of opinion about how this should be done. Some states have fulfilled their obligations by pointing towards the conspiracy and preparatory act offences in their existing criminal law. Others have gone down the route of listing like Australia.
The trouble with listing is who decides who goes on the list and how do you get put on it and off it. There have already been problems with the UN listing where member states put forward names to a committee, other states have 48 hours to object and then you are on. There’s no natural justice and no process to get off. Already Swedish citizens named in this way have had big problems. Only intense lobbying of the Swedish government got them moving and then of course they had to convince the Security Council to take them off.
The effects of all this on particular individuals and business is profound, particularly small business, which unlike IBM can’t just say `Don’t be ridiculous, I am not connected with terrorism”. Given that there is no natural justice and the information on which decisions are made is from informants and the like, it could be easy for competitors to defame you, and by the time you are able to get off a list the damage has been done.
Given the information is able to be shared between country’s various agencies, a mistake can affect you capacity to do business all around the world. With finances frozen and difficulty in getting visas etc, in many ways this can be worse then a criminal charge, where at least you have the capacity for a court to review the evidence.
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Phill Parsons
Am I being paranoid? I received an email from Forest Ethics – unusually it took 11 days from its date to receipt. Usually it is one day. I am awaiting an explanation. Yesterday I received my daily New York Times email dated 1/01/70 for the May 13 edition!
In the first was advice about logging in Malaysia and included the names of organizations. The NYT had the word Terrorism in a headline. If they are watching, who are they? Both emails arise in the US. However if it is an Australian organisation is it legal and will the watch be so obvious, with delays or silly dates giving away the activities of the spooks?
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Lindsay Peters
In a perverse sort of way I kind of wish the mad legislation of terror got passed, for then Australians might get to see the REAL John Howard. Remember, nobody buys a gun so they can leave it locked away and not use it. Howard has asked Australia to give him the scariest gun he could imagine, and the business end is pointed at us.
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Hamish Tweedy
I imagine that more often than not I would find myself on Daniel Maurice’s side in an argument (see Pre-budget terror), however I disagree with him on this occasion.
The Government decided that in light of September 11 current Australian laws are deficient, and has proposed legislation designed to address these deficiencies. Those who oppose these laws argue that the legislation impinges far too much on civil liberties and strikes at the heart of some of the basic tenants of our democracy and judicial system. In this debate the burden of proof must lie with the Government to demonstrate the necessity of the proposed legislation.
In response to Daniel’s points:
1. “Do you seriously believe that ANY Australian government – Howard’s or one following sometime in the foreseeable future – would get away with using these proposed laws to prevent “garden-variety” protest, eg Greenpeace, Free Tibet? In the real Australia I live in such a government would not survive long under the weight of media, judicial and electoral responses. Sure, it’s possible to envisage a gradual slide into a police state, but there are a many, many other scenarios for the future of Australia that are both more likely and more worrying.”
Daniel admits it is possible to envisage a slide into a police state, but justifies the legislation by the fact that there are many other scenarios for the future of Australia that are both more likely and more worrying. The problem is that these laws almost certainly will not prevent an 11 September type scenario but definitely will provide the basis for a police state.
2. “Do you acknowledge that, using your logic and argument, there are already many laws, including the constitution which if taken as literally as you wish to take the proposed anti-terrorism laws, provide extremely wide and draconian powers to government authorities who seek to abuse them?”
I don’t know the current laws to which you refer but I can’t accept that argument as justification for adding to them.
3. “Do you understand how self-defeating it is for the `bleeding heart’ cause to constantly use extremist and exaggerated language to argue your point of view? Just in the last couple of days we’ve had another example of this, with critics of the Government’s detention policy describing Australia’s detention of children as “worse than Nazi Germany”. Really? I can’t recall the last time I saw any evidence of gas ovens at Woomera. Nonsense like this turns off people in droves.”
I couldn’t agree more. The issue is: What in a practical sense can Australia do to prevent an 11 September scenario? My opinion is that in the short term you increase security at facilities that can be used for mass destruction and over the medium term you try to address the circumstances that allow people like Osama bin Laden to thrive. I don’t believe you do it by reducing our civil liberties.
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Sean Richardson in Sydney
I was surprised you didn’t answer Daniel Maurice’s questions in Pre-budget terror then and there. In relation to the Governor General’s power under the Constitution, I’d have reminded him of a certain democratically elected government which was dismissed against all custom and discretion. And would ANY Australian government EVER use legal powers to stop legitimate protest? Has he ever heard the words “Bjelke-Petersen”? Mr Maurice must have a short memory.
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John Fielding in Zagreb, Croatia
I agree about the outrageous anti-terrorism bills but am more concerned about how the ALP will deal with it. I have just sent an email to Senator John Faulkner and will be interested to see if any response is forthcoming. Incidentally, do you have any readout on how Laws and Jones are reacting to the proposals?
Dear Senator Faulkner,
I have just caught up with your recent column in SMH with Mr Melham (Labor’s justice spokesman). I think you expressed a sound point of view and wish you luck with it.
As I spend most of my time working out of Australia I can only keep up with events through the Net, and I run some risk therefore of seeing things through the eyes of people such as Margo Kingston. However it seems to me that the proposed anti-terrorist legislation represents a watershed in the life of the Howard Government and the ALP Opposition. In particular it provides the ALP with a clear opportunity to take a stand on some of the basic elements of its social democratic beliefs.
If you fail to take this opportunity to the fullest, it seems to me entirely possible that the party will once again in my lifetime fall into semi-permanent opposition and irrelevance. In the present political climate, you cannot assume that such a party is guaranteed to survive.
I am not a member but have been an ALP voter all my adult life. There have been occasions when I found that I disagreed with some policies, but never sufficiently to shift my allegiance. That is, until recently.
Last year while working in China I watched the national election campaign unfold with a feeling of disbelief. I waited for some expression of policy and approach that would even hint at providing the nation with a way forward in redressing the effects of five years of Howardism. Nothing worthwhile was placed on the table. Issues such as the GST were obviously too hard to address in a sensible way. There seemed to be no clear attempt to hold Howard accountable for five years of appealing to the worst in us, even as new events unfolded during the campaign itself.
The face of ALP policy for that period was a mix of me-tooism and what I felt was fear of the electorate. This latter factor is something new to me and to ALP policy and politics as I have always experienced it.
Not necessary to point out that much good it did the party. Both factors demonstrated to voters at a gut level that leadership was lacking. In hindsight, how much better to have failed while at least tackling the difficult issues and stating a coherent policy and a vision of the future, all features lacking in government for five years. The 1969 Whitlam election points to the benefits of clarity in policy and direction, even when losing, as a means of showing discipline and leadership. And also readiness to enter the responsibilities of government.
As a result of last year’s campaign, it seems to me that the party is no nearer to, may be further from, electoral success than before. Nothing that has happened since has suggested to me that we can expect any fundamental change in this flawed approach.
The challenge you now face with the anti terrorist bills provides an opportunity to significantly change this situation, and one that must be grasped. The bills demonstrate either extraordinary cynicism or wedge politics on a scale not attempted since Menzies. Either way it provides a great chance for the party to claim its rightful place as a proclaimer and defender of true democratic values and as an important element in Australian political life. In the process you may well reclaim many of the instinctive ALP voters who, like me, are now feeling serious doubts about the ability of the party to speak for those of us with centre-left views.
You must reject these bills. It is not enough to support them with amendments and qualifications, unless those are so deep as to fundamentally change the government’s approach, a situation the government will probably
not accept. The best line, as you have already shown, is to pursue the
complete failure of the government to display just where current laws fail
to address the present situation.
If this results in the infamous wedge, so be it. The ALP should be prepared to wear with pride the badge of the refusenik.
The fear and loathing that will no doubt be stirred up by the government (aided by Jones, Laws et.al.) should be addressed by serious efforts to get out to the electorate and conduct a campaign involving some education of the public. There is some precedent in the Evatt situation of so many years ago.
In all areas of policy there is scope for this approach. It seems to me that one of the principal difficulties of the party since the Hawke years (particularly from 1988 to 1991) and the Keating era has been its turning inward to solve problems. Looking to the factional system and left-right deals for answers in policy and leadership debates may seem to provide some relief, but to ALP supporters among the public (and I suspect many Branch members) it is transparent unproductive and unattractive. The party must learn to trust its public supporters and risk the appearance of a division of views which most people in any case accept as fairly normal in the development of policy.
Open up the party. Let the party groups and members bring forward policy proposals for open discussion in party assemblies, the media and (once again) the homes of the nation. You must once again learn to trust the electorate. I have the view that there is a natural centre left majority out here awaiting information and a chance to see our wishes once again expressed by a major political party.
Don’t keep us waiting too long.
Best regards
John Fielding
Zagreb, Croatia
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SHINING PATH
A-G’s war swings from tragedy to farce
By Brian Toohey, Australian Financial Review, March 9, 2002
Some pretty rough justice is being meted out in the war on terrorism, as a Melbourne businessman, James Milne, has discovered to his cost. Milne had his bank accounts frozen three months ago, without the slightest scrap of evidence that he was in any way connected to terrorism.
Milne’s sin was to unwittingly name his music business Shining Path – which happens to be the same name used by a violent political movement in Peru. Milne had never even heard of the Peruvian group until he asked the manager of his Commonwealth Bank branch what was going on after his cheques started to bounce in January.
The answer was that his business’s name was on a list of terrorist groups sent to banks by the Attorney-General’s Department. The accounts were only unfrozen after Milne went to the Herald Sun in mid-February.
Shining Path was one of the names gazetted by the Foreign Minister, Alexander Downer, and the Attorney-General, Daryl Williams, on December 21. Why anyone would assume, however, that Milne would finance terrorism, via bank accounts opened in the same name as a Peruvian terrorist group, is a complete mystery.
Although Williams refuses to discuss the issue, Downer at least has the grace to admit that the accounts were frozen as a result of a case of mistaken identity.
The Australian Federal Police administers the crackdown on suspect bank accounts under the quaintly named Operation Drava. Milne says that he has asked the AFP to clear his name by giving him a letter stating he is not a terrorist. But an AFP spokeswoman denied on Friday it had received a “formal” request. If one were received, it would be considered.
The spokeswoman said the AFP could refuse to give the letter admitting the error, even though it accepts Milne is innocent. The AFP has asked this newspaper not to publish its background explanation about how national security could be threatened by such an acknowledgment. The explanation is nothing short of ludicrous. Essentially, the attitude appears to be that the accounts have been unfrozen, so what is Milne complaining about?
When asked about the case, a spokeswoman for Williams refused to comment, other than to say she was surprised that Milne would want his name mentioned in a terrorist context. This might well be true if he were a terrorist. But he’s not. He’s a Collingwood pub owner and rock music entrepreneur who has every right not to have his bank accounts frozen in such a capricious manner.
Williams, as first law officer of the Crown, would seem to be getting a little carried away by the war on terrorism in other regards. Apart from drawing up legislation to jail people associated with leaks of government information even where it has nothing to do with national security he has conspicuously refused to protect the rights of Australian citizens imprisoned without charge.
Williams has described a young Adelaide man, David Hicks, who was captured in Afghanistan during the fall of the Taliban, as “about as dangerous as a person can be in modern times”. At the same time, he is investigating whether Hicks should be brought back to Australia to face criminal charges. Given that an attorney-general has described Hicks in such extraordinarily prejudicial terms, it is difficult to see how he could get a fair trial in Australia.
Hicks is being kept in a cage at a US military prison in Cuba. He has still not been charged with any offence, despite being captured three months ago. If the US ever gets around to charging him, it will be before a military tribunal where the normal protections of a civil court do not apply.
Despite some hysterical legal commentary in Australia, based on the implausible presumption that Hicks helped plan the September 11 terrorist attacks, the US has not said whether it has any evidence against him.
But Williams has refused to ensure Hicks is allowed normal consular assistance, let alone access to his own lawyers, which should be the right of any Australian citizen locked in a cage on a US military base without charges. The lack of charges might be acceptable if Hicks were regarded as a prisoner of war, but he’s not. If he is not returned to Australia as a prisoner of war, Williams should insist he is either charged or released.
In the meantime, he should ensure that law-abiding Australian citizens do not have their bank accounts closed without some minimal attempt to stop the process descending to farcical levels.
PS: The Senate Committee wanted answers on this matter, but despite prior notice the Federal Police bosses turned up unbriefed. They did admit that they did nothing to get Shining Path out of the jam the AFP got it into. Instead the AFP walked away and expected the Commonwealth Bank to clean up the mess. And no compensation, either, just like there’s no compensation for wrongs done by Daryl if he gets the powers he wants to ban political organisations.