The Senate’s Legal and Constitutional Affairs Committee today released its report into the anti-terrorism package I’ve been banging on about in Webdiary (Coming soon: too many terrorists, Come in, Big Brother) And it’s a sensation! There’s hope!

Committee chair, Liberal moderate Marise Payne, and two Coalition Senators who cannot be described as moderates – Nigel Scullion (Northern Territory Country Liberal Party) and Queenslander Brett Mason – have joined Labor Senators Jim McKeirnan and Barney Cooney and Democrat Brian Greig to trash the Government’s package.

In unanimous findings, the Committee recommended comprehensive changes to protect our liberties and the dumping of the section giving the Attorney-General the power to ban at will virtually any organisation involved in political activism.

The significance of this report cannot be overstated. Three Coalition Senators have stripped Attorney-General Daryl Williams and the Cabinet which backed his package of any pretence that they are worthy judges of the delicate balance required to protect our democracy and our freedoms.

The word is the Committee feared a leak of its report because the Government would send the heavies in and force the gutting of the report. It will probably get its revenge by dumping Payne as chairperson of the Legal and Constitutional Affairs Committee when her term expires in June. That’s what the party does to Liberals who believe in Liberalism these days.

Most importantly, the report gives a timid Labor party desperate to avoid a Howard onslaught of ”You’re terrorist lovers” if it tries to fix the bill in the Senate a powerful tool to do it anyway.

All in all, this report is a wonderful battle victory in the long war ahead on the terrorism package. (Another Committee reports on the ASIO bill next month.)

Apart from the triumph of Liberalism in the report – however short term – the report proves once again that the Senate is vital to protecting Australia’s democracy and ensuring good, considered law is passed by the Federal Parliament. Paul Keating called Senators ”swill” and John Howard wants to gut its powers, but it is only through the Senate and its committees that Australians have a chance to discuss proposed laws, and where there is some possibility of arguments being assessed on the merits.

More than 400 individuals and groups made submissions to the committee in an almost impossible timeframe. That’s hundreds of hours of largely unpaid work on research, thinking and writing, and that effort too is proof that our democracy still has vitality.

I’ve been going through many of your emails on the terrorism package, and hope to put some up tomorrow. For those of you who are interested, I’ve published below the key chapter of the Committee’s report. For the full report, go to Report

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CHAPTER THREE

3.1 This chapter considers the Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] (the Security Bill) and discusses the following key issues:

* whether there is a need for the legislation;

* other major concerns about the enactment of the legislation;

* the proposed treason offence;

* the definition of terrorism; and

* the proposed proscription power.

3.2 Unless otherwise indicated, the references to proposed sections are to proposed sections of the Criminal Code.

The need for the legislation

3.3 Many submissions opposed the Security Bill in particular on the basis that the need for such legislation in Australia had not been demonstrated and that existing criminal offences such as murder, grievous bodily harm, criminal damage, arson, conspiracy and attempt were adequate to address terrorist acts.

3.4 The Honourable Justice John Dowd, President of the Australian Section, International Commission of Jurists, noted Australia’s obligations to comply with resolutions of the United Nations, including Resolution 1373, and stated that the International Commission of Jurists did not oppose the legislation as such. However, ‘the infelicity of expression and the width’ of the Bill was of serious concern.

3.5 The Law Council of Australia pointed out: ”It is by no means clear that Australia’s international obligations require the creation of separate terrorism offences. Security Council resolution 1373 requires that Australia ensure that ‘terrorist acts are established as serious criminal offences in domestic laws and that the punishment duly reflects the seriousness of such terrorist acts’.”

3.6 The Law Council of Australia argued that the Government needed to justify the creation of new statutory offences and powers ‘and to demonstrate that these strike the right balance between the needs of security and the rights and liberties of the individual’. The Council referred to the range of legislative and administrative measures already in place in the event of a mainland terrorist incident in Australia, noting:

”In its first report to the UN Counter-Terrorism Committee on implementation of Security Council resolution 1373, Australia stated that it had ‘a highly coordinated domestic counter-terrorism response strategy incorporating law enforcement, security and defence agencies’. The report stated that Australia ‘already had in place extensive measures to prevent in Australia for financing of, preparation and basing from Australia of terrorist attacks on other countries’, and that it had ‘an extensive network of law enforcement liaison officers and bilateral treaties on extradition and mutual legal assistance to facilitate cooperation with other countries in the prevention, investigation and prosecution of terrorist acts’.”

”Existing Commonwealth and State and Territory legislation covers offences of murder, conspiracy, aiding and abetting, kidnapping, conduct likely to involve serious risk of life, personal injury, damage to property, all involving heavy penalties, as well as dealing with proscribed organisations, intelligence, investigation and enforcement. At the Commonwealth level alone, legislation includes:

* Laws dealing with investigation and enforcement: Australian Federal Police Act 1979; National Crime Authority Act 1984; Telecommunications Act 1977; Australian Security Intelligence Organisation Act 1979; Measures to Combat Serious and Organised Crime Act 2001;

* laws dealing with criminal procedure and international cooperation: Extradition Act 1988; Mutual Assistance in Criminal Matters Act 1987; International Transfer of Prisoners Act 1977;

laws creating specific offences: Crimes Act 1914 (including treason, treachery, sabotage, sedition, unlawful drilling, espionage, official secrets, being in a prohibited place, harbouring spies, taking unlawful soundings, computer related acts, postal and telecommunications offences); Air Navigation Act 1921; Public Order (Protection of Persons and Property) Act 1971; Crimes (Biological Weapons) Act 1976; Crimes (Foreign Incursions and Recruitment) Act 1978; Nuclear Non-Proliferation (Safeguards) Act 1984; Crimes (Hostages) Act 1989; Crimes (Aviation) Act 1991; Crimes (Ships and Fixed Platforms Act) Act 1992; Chemical Weapons (Prohibition) Act 1994; Weapons of Mass Destruction (prevention of Proliferation) Act 1994;

* laws dealing with the proscribing of organisation: Crimes Act 1914 (Part 11A concerning unlawful associations); Charter of the United Nations Act 1945;

* laws regulating the entry and deportation of aliens: Migration Act 1958;

* laws concerning intelligence services agencies: Intelligence Services Act 2001; Australian Security Intelligence Organisation Act 1979; and

* laws concerning suspect transactions (Proceeds of Crime Act 1987; Financial Transaction Reports Act 1988; Charter of the United Nations Act 1945).

3.7 Ms Sandra Cornish, National Executive Officer of the Australian Catholic Social Justice Council noted: ”While the government must ensure that Australia’s national security arrangements are adequate especially in the light of last year’s terrible terror attacks, it is essential that all such arrangements respect and protect human rights. It is the experience of the church that national security legislation in many countries in our region is often misused as a tool of oppression. While we do not believe this to be the intention of the Australian government’s counter-terrorism legislative package, we do want to be sure that Australian national security legislation will not be open to such abuse … To fight terrorism effectively, we must ensure that our methods respect and protect human rights and do not fall into the logic of ends justifying means, as this is the logic of terrorism itself.”

3.8 Justice Elizabeth Evatt argued that if the legislation were enacted, it should be brought into force only if the need were established and then only for a limited time, with a sunset clause applying. The Human Rights Council similarly argued that if the Bill were enacted it should be ‘subject to renewal on a regular basis’, perhaps annually following a review by a parliamentary committee.

3.9 In querying the need for new legislation, various submissions noted that the Hope Review of Australia’s protective security powers and arrangements in the late 1970s did not call for any more offences to address the threat of terrorism. They also pointed to the Attorney-General’s statements that there is no known specific threat of terrorism in Australia and that Australia had ‘well practiced and coordinated national security arrangements’.

3.10 Dr Jenny Hocking, Head of the National Key Centre for Australian Studies at Monash University, told the Committee: ”I think the Attorney-General is correct in his comment that we do not have a high level of threat and there is no known specific threat at this stage – and historically we have not had a high level of terrorist threat either. We need to ask why that is the case. Justice Hope addressed that briefly in the early eighties, when he said that it is possible that in part a functioning democracy that protects the rule of law is one of the best protections against the use of political violence.”

”A marginalised political society is more likely to give rise to political violence than is a society in which all elements of society feel that they can have an avenue, through the political and parliamentary process, for some voice. What worries me about this particular package of bills is that it starts to chip away at that through the avenue that it allows for the criminalisation of support for political positions that are being proscribed and so on. So I think one of our great protections is in fact, as Justice Kirby said, to maintain our constitutionalism and adhere to the great principles of the rule of law.”

3.11 Social commentator and activist Ms Eva Cox expressed similar views:

”[I]f you deny people the capacity to sometimes be unlawful in minor ways, as a form of protest, this is exactly the sort of situation that leads people to take up terrorism … he provision of good civil interactions, the ability to demonstrate, and accountability and transparency in decision making are keys to people accepting the rule of law.”

3.12 The Committee was keen to explore with government agencies why such legislation was necessary. The Australian Security Intelligence Organisation (ASIO) advised the Committee that the events of September 11 ‘represented a profound shift in international terrorism’ and that: ”Threat levels to Australian interests at home and abroad have risen. While there is no known specific terrorist threat to Australia at present, the heightened threat levels can be expected to remain for some years at least. Threat levels to United States and United Kingdom (and a number of other countries) interests in Australia have also risen and can be expected to remain for some years at least.”

3.13 ASIO pointed to several factors which it considered had raised the level of threat against Australia, including ‘the specific mention of Australia by Osama Bin Laden on two occasions since 11 September, including his description of Australian troops in East Timor as a “crusader force”.’ ASIO also noted that some international militant groups which view terrorism as legitimate have ‘a small number of supporters in Australia’ and that ‘a small number of Australians have trained in UBL terrorist camps in Afghanistan’.

ASIO advised: ”None of this is to suggest that there is any reason for assessing that Australia is a prime terrorist target. Clearly, the interests of a number of other countries are at considerably greater risk, such as the United States. At the same time, 11 September does mark a profound shift, with real implications for Australian interests themselves and in respect of our responsibilities for foreign interests in Australia.”

3.14 During public hearings the Director-General of Security Mr Dennis Richardson explained why he considered the proposed legislation necessary and why existing laws were inadequate: ”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.”

3.15 The Director-General stated that current criminal laws did not provide an effective legislative framework for prevention, citing as an example 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.”

3.16 The Director-General noted that in recent years the movement of people, money and goods across international borders had grown enormously, particularly with the growth of the Internet, and that those changes had ‘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.”

3.17 The Australian Federal Police also supported the Bills on the basis that they would address ‘identified inadequacies’ in existing legislation, particularly in relation to the financing of terrorism: ”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.”

3.18 In response to questions on notice from the Committee and to issues raised in the public hearings, the Attorney-General’s Department gave several reasons why the existing legislative framework was inadequate: ”The counter-terrorism legislative ‘package’ clearly expresses Australia’s commitment to act to prevent terrorism and prosecute those who participate, and has the advantage of dealing with terrorism comprehensively rather than relying on a myriad of other laws which may apply.

”Specific laws are needed to address legislative gaps, particularly in relation to providing or receiving training, directing an organisation that fosters preparation for a terrorist act and possessing things connected with a terrorist act.

”The laws concerning conspiracy, attempt, incitement and aiding and abetting are problematic, in that many ancillary offences can only be proven if they attach to a specific primary offence. The nature of terrorism is such that many persons involved in terrorist activity may not know the specific details of the act or offence that will be committed.

”Existing provisions relating to the proscription of unlawful associations under Part IIA of the Crimes Act 1914 are primarily directed at politically-motivated organisations rather than those inspired by religious or ideological motivations. In addition, the penalties for those offences (maximum two years’ imprisonment) are clearly inadequate.

”The primary reason for developing terrorist offences is prevention, whereas existing laws generally relate to acts that have already been completed.”

Other concerns about the enactment of the legislation

3.19 Three other major concerns relating to legal and social issues were reflected in submissions and during public hearings, and are discussed below:

* whether the Bill would be held to be constitutionally valid;

* whether the Bill might breach provisions of international law; and

* concerns about possible adverse effects on Muslim, Arab and other ethnic communities.

Constitutional issues

3.20 Proposed section 100.2 sets out the constitutional basis for the terrorism offences in the Bill. Without limiting the grounds, the provision specifies fifteen sets of circumstances in which an action or threat of action would give rise to an offence. They include where the action: affects the interests of the Commonwealth or a Commonwealth authority; affects foreign or interstate trade or commerce; involves the use of a postal service or electronic communication; or takes place outside Australia.

3.21 A submission from Professor George Williams and Mr Iain Gentle noted that the primary heads of constitutional power which could support anti-terrorist legislation were the powers over defence, external affairs and the implied ‘nationhood’ power. They stated that in their view there were ‘significant questions’ as to whether those powers could support the Bill ‘in a time of relative peace’ because of the need for the laws to be reasonably appropriate and adapted to that purpose:

”Members of the High Court have made it clear that a law may fail this test if, for example, it unduly infringes upon basic rights, such as freedom of speech (see Davis v Commonwealth (1988) 166 CLR 79), or contains retrospective criminal sanctions (see Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501).

”Certain provisions in the [Security] Bill may exceed what the High Court would consider to be appropriate and adapted to the purpose of combating terrorist activity. For example, it is arguable, but unlikely, that the Court would consider that life imprisonment for an offence prosecuted under absolute liability is disproportionate to the threat facing Australia. A more likely basis of attack would be upon the proscription power in [proposed] section 102.2

3.22 The particular concerns about the validity of the proposed proscription power are discussed in more detail at paragraphs 3.101-3.158 below.

3.23 The Committee notes that at a recent COAG meeting on 5 April 2002, State and Territory governments agreed to refer further powers to the Commonwealth in the future to ‘plug any gaps’.

Possible breach of international law

3.24 Several submissions expressed concern that the Security Bill could breach international human rights standards, particularly the International Covenant on Civil and Political Rights (ICCPR).

3.25 For example, in its submission, the Law Council of Australia noted its concern about ambiguous and imprecise language in the definitions of ‘terrorist act’ and related offences, which do not include any requirement of intention to terrorise the government or the public through intimidation, coercion or the evocation of extreme fear, and which include action involving serious damage to property.

3.26 The Council also considered there was no justification for the creation of absolute liability in respect of crimes involving serious criminality and penalties involving life imprisonment. Non-compliance with important international human rights standards, such as the right to personal liberty, freedom from arbitrary arrest or detention, the right to a fair trial, the protection against arbitrary interference with privacy, freedom of expression, the right of peaceful assembly, and freedom of association was manifest.

The Council noted: ”Some may argue that little harm is done by the creation of such offences, as ultimately the prosecutorial authorities are unlikely to lay charges of terrorism in relation to other than the most serious of acts and against other than the most dangerous and threatening of organisations. The Law Council does not accept such arguments and is vigorously opposed to the conferral on the prosecutorial authorities of such sweeping and arbitrary powers in the characterisation of offences and laying of charges.

”Such conferral of power is contrary to the prohibition of arbitrary arrest and detention in article 9(a) of the ICCPR “arbitrariness” must be interpreted broadly to include elements of inappropriateness, injustice and lack of predictability. This means that deprivation of liberty provided for by law must not be manifestly unproportional, unjust or unpredictable.

”The Law Council considers that an unacceptable element of arbitrariness and unpredictability arises in that determining whether or not a person is charged with a terrorist offence, with another offence or with any offence at all (a determination which has profound implications in terms of the onus of proof, available defences, stigma of conviction and heaviness of penalties), is left to the prosecutorial authorities without any transparency or public scrutiny.”

3.27 While the ICCPR allows for derogation from the prohibition against arbitrary arrest and detention in article 9 in time of ‘public emergency which threatens the life of the nation’, the Human Rights Council of Australia noted that there was no evidence of such an emergency.

3.28 It was also argued that the Security Bill could infringe other fundamental rights recognised by the ICCPR, including the rights to freedom of association, freedom of expression and the right to be presumed innocent until proven guilty. The Law Council of Australia also noted that the United Nations High Commissioner for Human Rights in a document to guide States reporting their compliance with Resolution 1373 stressed the importance of observing international human rights principles.

Adverse effects on particular groups

3.29 During public hearings Mr Bilal Cleland, Secretary of the Islamic Council of Victoria, raised concerns about the potential adverse effects the passage of such legislation might have on Muslim communities in Australia: ”We are concerned that the definition of terrorism will take on a religious, bigoted tone, and it could mean that the Muslim community here will become unjustified targets of interference and hostility from the state authorities.”

3.30 Similar concerns about the possible impact on Muslim and Arabic communities were expressed by the Supreme Islamic Council of NSW Inc, Liberty Victoria, Fitzroy Legal Service, the Federation of Community Legal Centres (Vic) Inc , the Australian Arabic Council and the Ethnic Communities’ Council of Victoria.

The Victorian Council of Social Service stated that after September 11: ”Arab and Muslim communities in Australia, and women in particular, were, and continue to be, the targets of high levels of racial and religious vilification and discrimination.”

3.31 Mr Victor Borg, representing the Ethnic Communities’ Council of Victoria, told the Committee that the incidents of September 11 had a ‘tremendous impact’ on the community, particularly in Sydney and Melbourne. Mr Laurence Aboukhater, the Deputy Chair of the Council, elaborated on this impact: ”This is an important point. It is affecting the diversity of Australia, it is affecting multiculturalism and is affecting our community. The first failing of this Bill is that it is attacking a portion of the community.”

3.32 The Director-General of Security, Mr Dennis Richardson, told the Committee that he understood the concerns that had been expressed, and noted that it was important to ensure that organisations such as ASIO had good relationships with communities and community leaders. If there was a legitimate concern about particular individuals, it would be clear that those individuals were targeted, rather than particular communities.

Committee conclusion

3.33 The Committee notes the concerns expressed by many organisations and individuals about whether the legislative package, particularly the Security Bill, is necessary. The Committee also notes serious reservations about the breadth of the proposed legislation in relation to constitutional issues, potential breaches of international law and possible adverse effects on particular groups within the Australian community.

3.34 While acknowledging that existing criminal laws would cover the results of many terrorist acts, the Committee also notes that Australia has signed various international treaties that seek to address terrorism, including the Convention for the Suppression of Financing of Terrorism and the Convention for the Suppression of Terrorist Bombings that are the subject of two of the Bills under consideration. United Nations Security Council Resolution 1373 adopted on 28 September 2001 indicates a worldwide determination to develop measures to address terrorism and demonstrate a commitment to prevent acts of terrorism and punish those who commit them. The Committee has also heard evidence of certain gaps in Australia’s current legislative framework. Consequently the Committee considers that new legislation to achieve a comprehensive approach to dealing with terrorism is justified.

3.35 The Committee considers that there is no intention that the Bill should have any adverse impact on particular communities, but notes the concerns that have been expressed during the inquiry. The Committee is also mindful of the serious concerns expressed about the width of various provisions of the Security Bill in particular, and for that reason considers that certain amendments must be made. Particular concerns and the Committee’s recommendations in response to them are discussed in more detail in the rest of this chapter.

The treason offence

3.36 Proposed section 80.1 contains a new treason offence which is designed to replace the existing treason offence (contained in section 24 of the Crimes Act 1914). The Bill modernises the wording of the treason offence and provides a new ground for the offence, namely, engaging in conduct that is intended to assist and does assist, by any means whatever, another country or an organisation engaged in armed hostilities against the Australian Defence Force (ADF) (paragraph 80.1(1)(f)).

Criticism of the provisions

3.37 The definition of treason was the focus of a number of submissions. The Association of Criminal Defence Lawyers argued that proposed paragraph 80.1(1)(f) broadens the definition of treason in an unacceptable manner. The Association argued that this definition would include non-military assistance and humanitarian aid such as medical assistance, sustenance and disaster relief.

3.38 The Human Rights Council supported this view, adding that the lack of a definition of the word ‘assists’ exposes humanitarian organisations such as the International Committee of the Red Cross and Medicins sans Frontieres and their members to criminal liability. The Law Council of Australia pointed out that the potential for the criminalisation of humanitarian aid was made particularly acute ‘given the increased deployment of the ADF in peace keeping, border protection, disaster relief and other forms of non-military action’. NOWAR (Adelaide) expressed concern that the definition could also encompass those people in Australia demonstrating in support of a country or organisation against whom the ADF was engaged in conflict.

3.39 Concerns were also expressed about the definition of ‘enemy’ and the meaning of ‘armed hostilities’ in proposed paragraphs 80.1(1)(e) and (f). During the public hearings, Ms Dimity Fifer of the Victoria Council of Social Service (VCOSS) noted that the Explanatory Memorandum states that an ‘enemy’ may be a country or an organisation, and raised the question of who exactly was the enemy in the current conflict in Afghanistan – the people, or the suspected terrorist organisation. VCOSS called for ‘enemy’ to be defined.

3.40 The Hon Justice Dowd on behalf of the International Commission of Jurists suggested that paragraph (f) could have the effect of rendering guilty of treason any person involved in the Afghanistan civil war who fought against an Australian soldier. The NSW Council for Civil Liberties argued that it would have been ‘a simple matter’ for the government to proclaim the Taliban or Al-Qaeda to be an enemy under existing law, so as to make it clear that activity with them would be treason. By contrast, the Council said that the new provision in paragraph (f):

”Now makes it such that you could be convicted of treason for fighting the Australian Defence Forces whether you are aware that they are involved in the activities or not. Particularly in covert sorts of operations, you could find yourself fighting the ADF without knowing about it and in those circumstances be guilty of treason.”

3.41 In response to the concerns about the ambit of proposed subparagraph 80.1(1)(f), the Attorney-General’s Department acknowledged that the offence could apply in a circumstance that had begun as a civil war, but that: ”In practice the offence would only be used when an Australian or a person connected with Australia assisted a country or organisation engaged in armed hostilities against the ADF.”

3.42 Further concerns were expressed by Justice Dowd and Liberty Victoria about proposed subsection 80.1(3), which requires the Attorney-General’s consent before proceedings for treason can be brought. They argued that this provision could politicise the prosecution process.

3.43 On another point, the NSW Council for Civil Liberties also noted that while the Second Reading Speech referred to an intention to ‘modernise’ the law of treason: ”We still have the rather odd situation that killing the Duke of Edinburgh is an act of treason but conspiring to blow up the federal Cabinet or the federal parliament is not an act of treason.”

3.44 Justice Dowd on behalf of the International Commission of Jurists also drew the Committee’s attention to proposed paragraph 80.1(2)(b), which creates an offence that used to be called ‘misprision of felony’. The provision, which effectively restates in modified form the existing provision in the Crimes Act 1914, creates an offence if a person ‘knowing that another person intends to commit treason, does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence’. The maximum penalty for such an offence is imprisonment for life. Justice Dowd observed that most countries and most Australian States have ‘moved away from misprision of felony’ and that it was often difficult to know whether someone was going to commit an act of treason or whether it was mere talk or rumour.

3.45 The Committee referred these concerns to the Attorney-General’s Department, who advised that misprision is recognised both in the USA and the United Kingdom, attracting severe penalties.

Committee conclusion

3.46 The Committee considers that there are serious problems arising from definitional issues in proposed subsection 80.1(1).

3.47 The Committee notes the concerns expressed by the Victorian Council of Social Service in relation to the definition of ‘enemy’ in proposed paragraph 80.1(1)(e), but considers that, since that paragraph merely restates the existing provision and requires an enemy to be specified by proclamation to be an enemy at war with the Commonwealth, this provision does not require amendment.

3.48 Nevertheless, the Committee considers that the breadth of terms such as ‘engaged in armed hostilities’ and the potential for humanitarian aid to be included as a treasonous activity require review.

3.49 The Committee notes that the courts must have regard to legislation as drafted. Where there are definitional gaps, or definitions so broad that there is potential for inappropriate interpretation, the legislation must be amended to ensure the courts have a clear view of what the legislation is intended to achieve. In the Committee’s view, it cannot be intended that the legislation includes the possibility – however remote – of an aid worker being convicted of treason.

3.50 Accordingly, the Committee recommends that the Attorney-General review the provisions in order to clarify their meaning, as set out in the following recommendation.

3.51 In relation to the concerns expressed about possible politicisation of the prosecution process because of the need for the Attorney-General’s consent for proceedings, the Committee notes that this provision merely restates the existing law. As the Commonwealth Director of Public Prosecutions (DPP) will still need to be satisfied that prosecution would be appropriate, the Committee considers that this extra requirement will act as an additional safeguard rather than displacing the DPP’s discretion.

3.52 In relation to NSW Council for Civil Liberties’ point about the failure of the proposed ‘modernised’ offence to include any reference to Australian democratic institutions or heads of state, the Committee urges the Attorney-General to consider whether further amendments should be made in the longer term.

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.

***

The definition of terrorism

3.53 There is an acknowledged difficulty in defining terrorism at international law.

3.54 As noted in Chapter 2, proposed section 100.1 of the Security Bill defines a terrorist act as action or threat of action where:

* the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

* the action:

– involves serious harm to a person;

– involves serious damage to property;

– endangers a person’s life (other than that of the person taking the action);

– creates a serious risk to the health or safety of the public or a section of the public; or

– seriously interferes with, seriously disrupts, or destroys, an electronic system, including an information, telecommunications or financial system, a system used to deliver essential government services, or a system used by an essential public utility or transport system.

3.55 The same definition is used in the other Bills under consideration.

Intent to intimidate or coerce

3.56 A submission from Professor David Kinley from the Castan Centre for Human Rights Law at Monash University argued: ”There is no mention of an intention to cause harm to persons or property, or to instil fear in the public and government. These should be a key element of any definition of terrorism.”

3.57 Professor Kinley told the Committee that the inclusion of this element would avoid some of the potential problems identified during the inquiry as to the breadth of the activities that could be caught: ”The notion of intention would provide an extra safeguard for those who would otherwise fall under the current scope [of terrorism] when their intention was never anything to do with terrorism but rather some sort of other consequential damage or criminal act.”

3.58 The submission listed examples of definitions of terrorism used elsewhere:

* ‘intended or calculated to provoke a state of terror’ (UN General Assembly);

* ‘calculated use of violence or the threat of violence to inculcate fear’ (USA);

* ‘intended to intimidate or coerce’ (USA); and

* ‘calculated to evoke extreme fear’ (a 1993 Australian counter-terrorist review).

3.59 The same point was made by other submissions. Some noted that the omission in the Bill of such an element differed from the definition outlined by the Attorney-General when he announced Cabinet’s agreement to the development of new terrorist offences in 2001.

3.60 The Committee notes that legislation in the United Kingdom , the USA and Canada and the proposed NZ legislation also include the element of intention to intimidate the population and/or coerce the government.

3.61 When questioned by the Committee about why the Security Bill does not include such an element, a representative from the Attorney-General’s Department explained: ”The argument for not including that extra limb in the definition is that, if a terrorist’s objective is pure destruction and their intent or agenda is merely to impair the functioning of the nation, to destroy its buildings, to kill people, but they have no broader purpose beyond that in terms of how people will react to that, as to whether people will be intimidated or as to whether government policy will be influenced, that can still be seen as terrorism. So that is the additional category of cases that is caught.”

3.62 The Department argued that inclusion of such an element ‘would potentially exclude an important category of cases where the objective is just pure destruction’. The Committee notes the Department’s explanation but is concerned about the width of the definition, as discussed further at paragraphs 3.75-3.78.

Specific concerns about the definition of terrorist action

3.63 Particular concerns about the width of the definition of the action required in proposed section 100.1 for a terrorist act to be committed included:

1. The width of ‘serious’ harm or ‘serious’ property damage.

The meaning of this term is potentially very broad. Witnesses argued that serious damage to property could include putting something on the wall of a building, damage by protesters to the walls or fences of embassies, immigration and other detention centres, or damage to logging trucks, chicken sheds or fishing nets. It was also argued that ‘harm’ should be restricted to physical harm, and that damage to property should be restricted to ‘destruction of property that threatens life or serious injury’. The Attorney-General’s Department when asked to respond on this matter commented only that ”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.”

2. The use of the word ‘involving’, rather than causing, such serious harm or damage.

Victorian law lecturer Mr Joo-Cheong Tham argued that this phrase ‘significantly loosens the nexus’ between the person carrying out the act and the harm or damage that is caused, so that it is ‘seriously arguable’ that the definition would be satisfied where a person’s act results in a third party inflicting the harm or damage.

3. The width of ‘creating a serious risk to the health or safety of the public’, which could arguably include industrial action by police officers, nurses or other emergency services personnel resulting in reduced essential services.

4. The width of ‘serious interference’ or ‘serious disruption’ of electronic communications systems. It was argued that this could include flooding a system with emails as part of a protest; air traffic controllers taking industrial action; or the destruction of traffic lights.

The proposed exemptions

3.64 The definition of ‘terrorist act’ in proposed section 100.1 specifies that it does not include ”lawful advocacy, protest or dissent’; or ‘industrial action’.

3.65 These exemptions also attracted much criticism during the inquiry. Many submissions noted that unlawful acts, such as property damage, obstructing police, unlawful assembly and offensive behaviour, frequently occurred in the course of protests or industrial action. There was concern that what is intended to be industrial action could be labelled as political, and when any violence is involved it may mean that it ceases to be an industrial action.

3.66 Particular examples given in submissions and during public hearings included protests outside Parliament House resulting in damage to the building, or the recent protest at the detention centre in Woomera. For example, the Monash Student Association and Law Student Society noted that the unplanned dismantling of perimeter fencing by activists at Woomera could be construed as a ‘terrorist act’, since it could be described as serious damage to property and was done with the intention of advancing a political and ideological cause. Moreover, those who had acted in any organisational capacity, who had circulated information about the planned protest or who had been found in possession of items such as screwdrivers or bolt cutters, even though they had not used them, would potentially face penalties of life imprisonment.

When questioned by the Committee, the Attorney-General’s Department noted that while such acts might satisfy the definition of ‘serious’ damage to property, all the circumstances of the offence, including the specific purpose of the legislation in combating terrorism, would need to be considered.

3.67 Questions were also asked about whether acts of civil disobedience would be caught, and whether the word ‘lawful’ was confined to advocacy or extended to ‘protest and dissent’.

3.68 The Director-General of Security noted that the phrase ‘lawful advocacy, protest or dissent’ was a phrase used in the legislation governing ASIO’s functions and that it was ‘designed to limit, not expand’ the ambit of that legislation. In response to a question from the Committee, the Attorney-General’s Department noted that the Office of Parliamentary Counsel had confirmed that the word ‘lawful’ was intended to qualify each of the words ‘advocacy, protest and dissent’, rather than being confined to ‘advocacy’.

3.69 Both the Attorney-General’s Department and the AFP submitted that police and prosecuting authorities would not proceed against people with terrorism offences in such cases. AFP representatives referred to various safeguards in the process for charging and prosecuting offenders:

”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.”

3.70 The Attorney-General’s Department also argued that: ”Read literally and out of context, many statutes could be construed so as to create unintended consequences with the result that virtually all Australians would commit an offence every day … [A] court would read the counter-terrorism provisions as a whole in the context that they are provisions directed at terrorism, not minor instances of civil disorder.”

3.71 However, Justice Dowd on behalf of the International Commission of Jurists noted that the very existence of such offences created the potential for abuse:

”Once you give this power, you give the power to investigating policemen or policewomen to say, ‘I can charge you with this’. It makes it very easy when you have alternative Commonwealth and State offences to say, ‘We could charge you under the Terrorism Act,’ and it becomes much easier for you to plead guilty to a street offence or a minor property offence under a state law because you have that sanction. Do not lightly give law enforcement agencies powers because, although we have a very good record in Australia with law enforcement agencies, available powers can be abused.

3.72 Another key concern was the meaning of ‘industrial action’. Submissions noted that the term was not defined in the Bill and argued that the definition in the Workplace Relations Act 1996 would be considered highly influential in a court’s interpretation of the term. Mr Joo-Cheong Tham argued that as the Federal Court had found that ‘industrial action’ in the Workplace Relations Act 1996 excluded picketing, picketing might be excluded from the exemption in the Security Bill. The ACTU and Liberty Victoria expressed similar concerns.

3.73 However, representatives of the Attorney-General’s Department noted that the definition of industrial action in the Workplace Relations Act 1996 was limited in order to protect the rights of those involved in picketing, because a court could make an order prohibiting industrial action in certain circumstances. In the current Bill, the context was different, ‘and clearly industrial action is meant to have a more expansive meaning that would encompass actions like picketing’.

3.74 During the public hearing, AFP representatives also emphasised that police would not use the new provisions ‘for something that fell within the public order regime’:

”Picketing is clearly a tool of industrial action … It is to stop entry or egress from a work site or to stop access to materials coming in and out and so on. That is why people picket. When that sort of behaviour is apparent and it is causing disruption to people’s lawful movement around a city, police have access to a range of legislative powers to remove people who are picketing, to ensure that public access is available and so on. Those powers are available already to deal with that sort of activity.”

Committee conclusion

3.75 The Committee notes the significant concern expressed about the width of the definition of ‘terrorist act’ in proposed section 100.1.

3.76 The Committee considers that there is no compelling reason why Australian legislation should reach further than legislation enacted in the United Kingdom, the USA or Canada, or as proposed in New Zealand. The United Kingdom and the USA have experienced significantly higher levels of terrorist threat and, indeed, acts of terrorism than Australia has faced or is considered to be facing. While the Committee acknowledges the difficulties that have been experienced internationally in defining terrorism, all the definitions that have been drawn to the Committee’s attention during this inquiry contain some element of intent to cause extreme fear to the public and/or coerce the government. The Committee considers that this element is at the very heart of the nature of terrorism.

3.77 The Committee is also mindful of the concerns about the potential width of other elements of the definition, in particular ‘serious damage’ and ‘serious harm’, and interference with electronic systems, as well as the lack of clarity in the proposed exemptions for ‘lawful advocacy, protest or dissent’ and ‘industrial action’. The Committee considers that the inclusion of the necessary element of intimidation/coercion in the definition of ‘terrorist act’ would go a long way towards addressing the concerns it has heard that terrorist offences might otherwise be broad enough to capture those people who cause damage or commit other less serious offences as a consequence of protest, civil disobedience or industrial action.

3.78 Accordingly the Committee considers that the definition of ‘terrorist act’ should include reference to a design to influence government by undue intimidation or undue coercion, or to intimidate the public. The Committee notes that it is not clear that the term ‘government’ would necessarily include all elements of Australia’s system of government, including non-government members of Parliament, State and Territory governments and the judiciary. The Committee notes, for example, that the equivalent definition in the Canadian legislation refers to individuals, government and domestic and international organisations. The term ‘government’ should be clarified in any proposed amendments to the Bill.

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.

***

The new terrorist offences

3.79 The new offences, all of which are punishable by imprisonment for life, are:

* engaging in a terrorist act (proposed section 101.1);

* providing or receiving training for a terrorist act (proposed section 101.2);

* directing organisations concerned with a terrorist act (proposed section 101.3);

* possessing things connected with a terrorist act (proposed section 101.4);

* collecting documents likely to facilitate a terrorist act (proposed section 101.5); and

* acts in preparation for a terrorist act (proposed section 101.6).

3.80 Apart from the offence in proposed section 101.1 (engaging in a terrorist act), there is no need for a terrorist act to have actually been committed.

Absolute liability

3.81 In addition, the offences of providing or receiving training (proposed section 101.2), possessing things (proposed section 101.4) and collecting or making documents likely to facilitate terrorist acts (proposed section 101.5) contain an element of absolute liability. That means that the prosecution need not prove that the person knew or intended that the training, thing or document was connected with a terrorist act, and the defence of honest and reasonable mistake of fact is not available. The legislation contains, however, a limited defence that applies where the person can prove that he or she was not reckless with respect to the connection with a terrorist act.

3.82 The imposition of absolute liability in respect of certain elements of the offences caused significant concern in submissions and during the public hearings, particularly in light of the high penalties and the fact that no terrorist act need be committed for the offences in proposed sections 101.2, 101.4 and 101.5. Many submissions noted that absolute and strict liability offences have traditionally been limited to relatively minor or regulatory offences, such as parking or traffic offences.

Justice Dowd on behalf of the International Commission of Jurists noted: ”We in Australia have a system of law which obliges the prosecution, in almost all offences and in all serious offences, to prove all the elements of the offence and to negative self-defence and other defences. This [Bill] obliges the person to go into evidence That is not reasonable here, no matter how much we may be concerned with terrorist acts.”

3.83 The Scrutiny of Bills (Senate) Committee also drew attention to these provisions on the grounds that they may be considered to trespass unduly on personal rights and liberties.

3.84 The Law Council of Australia noted: ”Reversed onuses are potentially very oppressive, particularly where it is difficult to grasp what an ordinary person should do in the relevant circumstances in order to exhibit sufficient care to avoid imprisonment for life.

3.85 Several organisations such as Amnesty International and the Human Rights Council argued that such provisions violate article 14(2) of the ICCPR and article 11 of the Universal Declaration on Human Rights, which provide that everyone charged with a criminal offence has a right to be presumed innocent until proved guilty.

3.86 The Association of Criminal Defence Lawyers also noted that the proposed offences in the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 require proof of intent to cause death or serious harm or extensive destruction to a place. Consequently two different standards of proof could apply to the same activity, depending on which Act was used.

3.87 In relation to the proposed training offence, ACTU representative Mr Robert Durbridge told the Committee that the absolute liability element and the defence of recklessness were inappropriate. He gave as an example TAFE teachers who instruct mining personnel in the use of explosives:

”How do they know that any of the people that they have trained will use that knowledge in ways other than intended? They could be completely unaware that a trainee later intended to use that knowledge at some time in the future to blow up something in Australia or somewhere else in the world. They would have to prove that they were not reckless in not knowing that the training could be used or was being undertaken with a terrorist act in mind – or later formed – to avoid conviction and imprisonment for life How do you show that you were not reckless in the provision of training? TAFE colleges do not conduct security checks on their students.”

3.88 Similarly, the New South Wales Bar Association argued that in relation to providing training at a rifle range: ”There should be a requirement of some degree of actual knowledge of circumstances indicating connection with a terrorist act before otherwise lawful and innocent training is so seriously criminalised.”

3.89 In response, the Attorney-General’s Department stated that the question of whether the person providing training was reckless would be determined with regard to the facts known at the time he or she conducted the training. The Department asserted that it would not be necessary for the person to make inquiries or obtain additional information to confirm the students’ bona fides.

3.90 The Committee heard similar arguments that the offence in proposed section 101.4 of possessing a ‘thing’ (not defined in the Bill) that was connected with preparation for or assistance in a terrorist act was unacceptably broad. Mr Joo-Cheong Tham argued that this provision would unduly impact on businesses that sold items that could be used for terrorist acts. It would effectively require businesses to determine customers’ use of the items sold if they were to avail themselves of the defence that they were not reckless.

3.91 Similar arguments were also heard in relation to proposed section 101.5 which concerns collecting or making a ‘document’ connected with preparation for or assistance in a terrorist act. Oz Netlaw, the Internet law practice of the Communications Law Centre at the University of New South Wales, argued that the offence could apply to journalists and news organisations who receive information in the course of their investigations, or to people who merely download information from a website. The submission also argued that it was the use or disclosure of the documents, rather than their collection, that should attract fault, and that the onus of proof should in any case remain with the prosecution.

3.92 In relation to this concern, the Law Council of Australia told the Committee:

”The absence of any requirement of some degree of actual knowledge of circumstances indicating connection with a terrorist act, or of an intention to assist in an act of terrorism is surely a most objectionable aspect of the proposed treatment of terrorist acts. Thus, s.101.4 would criminalise the possession of things connected with preparation for, the engagement of a person in, or assistance in a terrorist act, such as objects and documents, by persons such as scholars, researchers and journalists who have no intention of assisting in a terrorist act and whose scholarship, research of journalism may in fact be in opposition to or intended to expose terrorist acts. The defence in s.101.4(4) would not save such scholars, researchers or journalists because that defence would apply only where such persons could prove on the balance of probabilities that they were not reckless with respect to the thing’s connection with a terrorist act. Such persons would, notwithstanding the absence of any intention to assist in a terrorist act, be guilty of an offence and, potentially, liable to life imprisonment.”

3.93 However, the Attorney-General’s Department pointed to the dangers of defining terrorist activity too narrowly:

”It is difficult to conceive of the exact nature of a terrorist attack before it has been completed. The unprecedented attacks of September 11 clearly demonstrated this. It is even more difficult to create a legislative scheme that effectively addresses the problem of terrorism and terrorist networks. If legislation is worded too narrowly, activity that is clearly terrorist in nature may be immune to prosecution and, worse, still, may not be affected by the measures aimed at preventing it.”

3.94 While acknowledging that the provisions ‘depart from general practices’, the Attorney-General’s Department noted two examples of serious Commonwealth offences which contain elements of strict or absolute liability. They are the offence of murder of United Nations or associated personnel and the child sex tourism offence.

The Department concluded: ”All Government action requires a balance to be achieved between different interests. In this case, the balance is between the need to safeguard the security of all Australians, and the need to preserve individual liberty. The evil at which the proposed legislation is aimed justifies the balance that has been achieved.”

3.95 However, Justice Evatt told the Committee that the proposed offences were not sufficiently precise to satisfy fundamental criminal law principles:

”Being put in fear of prosecution will lead to many organisations and individuals not knowing whether they have committed an offence [P]art of the rule of law [in a just society] is that people should know with certainty whether their acts are likely or not likely to be criminal. I defy anybody to know, if this bill were enacted, whether certain actions would be or would not be seen by the security forces or the Attorney-General as contrary to law. It will never be known whether they are contrary to law until it has been through the courts. It is very risky stuff, this.”

Committee conclusion

3.96 The Committee considers that the significant concerns expressed in many submissions and during public hearings about the very broad nature of the proposed terrorist offences and the reversal of the onus of proof for the ‘ancillary offences’ connected with terrorist acts must be addressed.

3.97 The concerns are even more pressing given the proposed maximum penalties of life imprisonment. In Australia’s system of law, it is not the practice to create strict or absolute liability offences for other than regulatory or minor offences. Such a departure from fundamental principles of criminal law needs to be justified. While the Committee acknowledges that the nature of terrorist offences is very serious and that the safety and interests of the Australian population must be protected, the rights and liberties of individuals, including those charged with criminal offences, must also be safeguarded. The fact that the offences are very broadly defined and could potentially cover a wide range of activities and items make this even more compelling.

3.98 The Committee notes advice from the Attorney-General’s Department that the approach in the Security Bill is consistent with that in the United Kingdom Terrorism Act 2000. However, the Committee also notes that the UK legislation contains a narrower definition of ‘terrorist act’, as outlined in paragraph 3.60 above. In addition, the Committee notes that legislation in both the USA and Canada requires intention that the act causes serious harm or other serious consequences, rather than the looser connection of ‘involving’ serious harm that the Security Bill requires (discussed in paragraph 3.63 above). Thus a more onerous burden of proof would appear to be required in those jurisdictions than will apply under the current provisions.

3.99 The Committee considers that the fact that the Scrutiny of Bills Committee drew attention to the danger that these provisions could be considered to trespass unduly on personal rights and liberties emphasises the seriousness of this issue. The Committee notes also that intent to cause death or serious harm or extensive destruction to a place must be proven in the proposed offences in the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (discussed further in Chapter 4). Consequently the burden of proof which the prosecution must discharge would differ markedly if a person were charged with the same offence under the two different sets of provisions.

3.100 Accordingly the Committee concludes that the Bill should be amended to remove the absolute liability elements in proposed sections 101.2(2), 101.4(2) and 101.5(2). The Committee notes that there may be concerns raised by law enforcement agencies about the difficulty of proving that a defendant who was peripherally involved in preparation for or the commission of a terrorist act intended that this should be the result. To address those concerns, the Committee considers that recklessness as to that result should suffice, but that the onus of proof should remain with the prosecution. The Bill should provide that the offences 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)

Recommendation 3

The Committee recommends that:

(i) the Bill be amended to remove proposed subsections 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 subsections 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).

The Attorney-General’s proposed proscription power

3.101 The provisions of the Bill dealing with the Attorney-General’s proposed proscription powers raised the most concern in submissions and during public hearings. The overwhelming view was that the provisions as currently drafted are inappropriate and should be rejected. The Committee recognises that the proposal to proscribe organisations is a very serious one and has considered the circumstances and elements of the process in detail.

3.102 The remainder of this chapter discusses:

* the provisions;

* constitutional issues;

* the grounds for proscription;

* the delegation of power;

* revocation procedures;

* review procedures;

* alternatives to the current model; and

* the Committee’s conclusion.

The provisions

3.103 Proposed section 102.2 allows the Attorney-General to declare an organisation to be a proscribed organisation if he or she is satisfied on reasonable grounds that:

* the organisation, or a member of the organisation, has committed or is committing a terrorism offence, whether or not the organisation or member has been charged with, or convicted of, the offence;

* the declaration is reasonably appropriate to give effect to a decision of the UN Security Council that the organisation is an international terrorist organisation; or

*the organisation has endangered or is likely to endanger the security or integrity of the Commonwealth or another country.

3.104 A submission from the Law Council of Australia typified the concerns of many organisations and individuals in outlining its reasons for opposing the proposed proscription powers.

The Council called the provisions: ”A serious departure from the principle of proportionality, unnecessary in a democratic society, subject to arbitrary application, and contrary to a raft of international human rights standards including the right to personal liberty, the right to a fair trial, protection against arbitrary interference with privacy, freedom of expression, freedom of association and rights of participation. Important principles of the rule of law are infringed, including the need for effective judicial remedies when a person breaches the law, and the requirement that criminal offences for which liberty can be deprived after conviction, be clearly defined so that citizens can know permissible limits of activity.”

3.105 Mr Cameron Murphy, President of the NSW Council for Civil Liberties, argued: ”It allows the government to outlaw virtually any group – any church, any political party or any human rights activist … It destroys the fundamental principles of our democracy in order to suppress and prevent terrorism. Many people around the world who were once labelled as terrorists are now regarded as international leaders or even statesmen. People such as Gandhi and Nelson Mandela have been labelled as terrorists in the past. Hindsight shows us that these people are not terrorists but freedom fighters. Even today, Aung San Suu Kyi, Xanana Gusmao, or the Falun Gong movement – who have groups in Australia that support and assist them – could be regarded as terrorists under this legislation.”

”There is a belief that this power is safe because none of us would use it to outlaw the Catholic Church or the Australian Labor Party or some other group that might not be supporting the government of the day. But none of us can predict who will be in power or when this legislation will be used, and that is the danger of putting this sort of legislation on the statute books.”

3.106 Dr Jenny Hocking emphasised similar concerns, arguing that: ”[T]here can be no adequate safeguards [against] the dangers raised [by] the workings of such a Bill, for the danger is the Bill itself. It is subversive of the rule of law in its failure to allow for a trial in this aspect, it breaches the notion of equality before the law in its creation of groups for which the usual judicial process does not apply and it breaches absolutely the separation of powers in even allowing for such a use of Executive power.”

Constitutional issues

3.107 Professor Williams raised the ‘disturbing similarity’ between the Security Bill and the Communist Party legislation that the High Court found invalid in the 1950s.

3.108 The Communist Party Dissolution Act 1950 granted the Governor-General an unfettered and unreviewable power to declare an organisation to be unlawful or a person to be a communist, relying on the defence power. By a 6:1 margin the High Court found the Act constitutionally invalid, holding that it was beyond the Parliament’s power to suppress an organisation under its defence power on the opinion of the Governor-General in a time of relative peace.

3.109 Professor Williams argued that the Security Bill might similarly be struck down by the High Court if passed in its current form. While the Bill contains some provision for review of the Attorney-General’s decisions, he noted that, while the High Court has not yet determined a case on an implied freedom of association, it was ‘clearly arguable’ that the High Court would find such a freedom and that the proscription power might infringe that freedom. He noted that the Security Bill ”is different in some critical respects, but still there are definite constitutional issues there.”

”But, apart from those constitutional issues, you would have to say we ought to have learnt our lesson from that legislation: do not vest powers of this kind in the executive and do not vest powers of this kind where there is not adequate review. As the High Court itself reflected in that case, the dangers to our civil liberties do not just extend from at that point communism or at this point terrorism; they extend from the fact that we might unbalance our democracy by giving too much power to any arm of government. ”

The grounds for proscription

3.110 Several submissions and witnesses to the inquiry, including the NSW Council for Civil Liberties, noted with concern that it is sufficient for a member to state that he or she is acting on behalf of the organisation, for the organisation to be proscribed, and that more extreme or ‘fringe’ members would therefore pose a real danger to organisations. Others argued that as criminal acts were committed by individuals, those individuals should be punished under existing criminal laws, rather than enacting laws to allow organisations to be banned.

3.111 A particular concern was the width of the power in relation to a threat to ‘security and integrity’ of Australian or any other country. The meaning of ‘integrity’ was queried, given that the term is not defined in the Bill. For example, Professor Williams told the Committee, ”integrity’ has no fixed meaning that is clearly understood in the popular or legal community”.

”We have searched through cases to find out what ‘integrity’ might mean and we have found nothing which would suggest a clear meaning of that word. This means we have a word which is malleable in the sense that an Attorney can use it to mean what he wants it to mean, and there is nothing in the law or otherwise that might be used to suggest otherwise. It is a word that clearly on the current meaning – an unbounded, open meaning – would extend to organisations such as freedom fighters using violence and whether or not they should be proscribed, and also to organisations that might seek to challenge the territorial integrity of nations by peaceful means, organisations such as those supporting independence for Tibet or organisations perhaps supporting independence for East Timor in prior periods. This legislation, in extending to those organisations, is clearly far too broad. Australians do not regard those organisations as terrorist organisations. Those organisations ought not to be within the ambit of this power, and it is disturbing to see how broad it might go.”

3.112 The ACTU argued that if such a provision had been law in the past in Australia, membership of organisations that supported the East Timor independence movement or the anti-apartheid movement in South Africa could have been caught. Similarly, the New South Wales Bar Association stated that the power could apply to ”(p)eople banding together, raising money, publishing arguments, encouraging otherwise lawful protests, to secure the downfall of a tyranny elsewhere”.

3.113 Ms Eva Cox pointed to the difficulties international aid organisations might face, querying what would have happened if the proposed laws had been in place when Care Australia workers in the former Yugoslavia were imprisoned some years ago:

”What would have happened if the Yugoslav government had requested that the Australian government declare Care a terrorist organisation on the grounds that they had arrested some members of Care who had come to their country’s notice for what they deemed to be terrorist-type activities? It sets Australia up in a very difficult position.”

3.114 Ms Cox also argued that groups in Australia ‘which are probably perfectly innocent but noisy’, could be deemed by certain countries to be against the government and as threats to their security and integrity. She gave as an example the YWCA whose projects supported women in other countries in relation to such issues as genital mutilation. She expressed concern that such projects might be closed down because of the organisation’s fear of being seen to be opposing a particular government or undermining the security of the country in some way, thus leaving the organisation or its staff vulnerable.

3.115 During public hearings, the Attorney-General’s Department told the Committee that the phrase ‘integrity of the Commonwealth’ was used in various international conventions, and would be interpreted as meaning ‘territorial integrity’ of the Commonwealth. However, there is no reference to this in the Explanatory Memorandum. The Committee raised with the Department the concerns expressed by witnesses and in submissions about support by Australians for pro-independence or other similar movements in other countries, but was not persuaded by the Department’s response. The Committee considers that any review of the proscription provisions must ensure that such organisations would not be caught by the provisions.

3.116 Professor Williams opposed making a decision by the UN Security Council sufficient grounds for proscription: ”You are setting up quite severe penalties based not upon ascertainable or knowable criteria but upon a decision of that council that might have been made that day or the day before. It is very hard for anyone to take account of what that council might do. When you think of current conflicts in the Middle East and other issues which can change so rapidly-today’s freedom fighter can be tomorrow’s terrorist-that is quite dangerous in this context.”

3.117 Professor Williams argued that organisations should only be targeted ”because of their relationship to clear, identified criteria that target terrorist acts”.

”So, if an organisation bombs or does something else, that is why you target them; you do not do so because of some other more convoluted process. In a sense, what you have here is that you become proscribed because of a political decision made by the United Nations.”

Delegation of power

3.118 Justice Dowd on behalf of the International Commission of Jurists raised concern about the fact that the Attorney-General’s power could be delegated to any minister (proposed section 102.2(4) and 102.3(5)). He argued: ”The most junior minister in the government may in fact be the person with a power to delegate to deal with proscribed organisations … That power should be subject to review, not just disallowance by a parliamentary committee controlled by the government. It should be reviewable as a matter of law by the courts.”

3.119 Similar concerns about the delegation of the Attorney-General’s power were expressed by the Australian Catholic Social Justice Council.

Revocation

3.120 Amnesty International raised concern that the Bill does not spell out procedures for having a proscription revoked, and stated: ”The legislation should make provision for the organisation to apply directly to the Attorney-General to have their status reviewed. Further the legislation should allow the proscribed organisation to make representations as to their status during a review process – a failure to provide this may breach the principles of natural justice.”

3.121 The Committee notes that the UK legislation includes specific provisions providing for an application by a proscribed organisation or any person affected by the proscription to the Secretary of State, and establishes a Proscribed Organisations Appeal Commission to hear appeals against a refusal to deproscribe an organisation.

3.122 Amnesty International and Liberty Victoria also argued that compensation should be available where an organisation is wrongly proscribed and suffers consequent damage, on the basis that such provision is consistent with the principles of natural justice.

The new proscription offences

3.123 Many submissions expressed concern about the width of the new offences connected with the activities of proscribed organisations. Those concerns are discussed below.

The new offences

3.124 A wide range of new offences connected with the activities of proscribed organisations is created under proposed section 102.4:

– directing the activities of the organisation;

– directly or indirectly receiving funds from or making funds available to the organisation;

– being a member of the organisation;

– providing training to or training with the organisation; or

– assisting the organisation.

3.125 The offences are punishable by imprisonment for a maximum of 25 years.

3.126 Strict liability applies to the element of the offence that the organisation is a proscribed organisation (proposed subsection 102.4(2)). In other words, the prosecution need not show that the defendant knew or was reckless as to the fact that the organisation was proscribed. Instead, the defendant must prove that he or she did not know and was not reckless as to whether:

– the organisation or one of its members was committing a terrorist offence;

– the UN Security Council had decided that the organisation was a terrorist organisation and that decision was in force; or

– the organisation had endangered, or was likely to endanger, the security or integrity of Australia or any country (proposed subsection 102.4(3)).

3.127 Strict liability offences differ from absolute liability offences in that the defence of honest and reasonable mistake of fact is available for strict liability offences but is not available for absolute liability offences.

3.128 It is an additional defence to a prosecution for membership if the defendant proves that he or she took all reasonable steps to cease to be a member ‘as soon as practicable’ after the organisation was proscribed (proposed subsection 102.4(4)).

3.129 The Attorney-General explained during the Second Reading Speech that: ”Placing the onus on the defendant is justified by the need for strong measures to combat organisations of this kind, and the fact that a declaration that an organisation is a proscribed organisation will not be made lightly.”

Membership and ‘informal’ membership

3.130 A member of an organisation is defined to mean a person who is an ‘informal member’; a person who has ‘taken steps to become a member’; and a director or officer of the body corporate (proposed section 102.1). ‘Informal member’ is not further defined.

3.131 Several submissions and witnesses referred to concerns about the width of this definition, particularly in light of the strict liability that applies to the element that an organisation is proscribed. Ms Eva Coxnoted: ”You can be declared a member of an organisation where you have done no more than having been rung up and then making a donation, and your name then appears on some list somewhere, particularly these days when you seem to get onto email lists with incredible ease. Given the fact that one could easily offer donations or -as someone said earlier – you have gone to a concert in support of Palestinian refugees or to a fundraiser for some particular group, you may well find that you are suddenly part of a proscribed organisation.”

3.132 The Law Council of Australia noted that the provisions ‘would potentially render persons only remotely connected with an organisation’ liable to imprisonment for up to 25 years, and that ”the more remote a person is from a proscribed organisation and its activities, the more difficult it will be to discharge the onus of disproving recklessness”.

3.133 Dr Hocking asked on what basis it would be alleged that a person was an informal member and who would make this claim: ”The Communist Party Dissolution Act notion of affiliation included people who ‘shared policy concerns’ with that proscribed organisation, who attended meetings or who are claimed by others ‘to have been associated with’. So, clearly it seems to me, it is one of the areas where both an open-ended aspect comes into the bill and where an element of arbitrary decision making can come in through the proscription power.”

3.134 However, the Attorney-General’s Department explained that the rationale for the definition was to ensure that a person could not evade liability by a technical argument about their lack of formal membership status and to ensure the provisions could not be avoided by a terrorist group that avoids a formal membership structure.

3.135 On another point, Justice Dowd criticised as ‘absurd’ the defence in proposed subsection 102.4(4): ”All the defendant has to do is prove that he got out as soon as he knew. So if there is a bomb and the person leaves the organisation after the bombing – files his resignation the next day – he does not commit an offence, which is absurd.”

‘Assisting’ a proscribed organisation

3.136 The width of this term also attracted criticism. Mr Joo-Cheong Tham pointed out that this could include those who provide legal advice and representation to organisations that have been proscribed and seek to challenge that proscription. In response, representatives from the Attorney-General’s Department noted that because the intention was clear that a declaration of proscription could be subject to judicial review, there would be a ‘good argument’ that the provision could not have been intended to include legal advice and representation.

3.137 The Committee also asked the Attorney-General’s Department why the offence could not be limited to the more specific definition adopted in the USA legislation, namely, providing ‘material support or resources’. The Department responded that the US definition, which lists specific examples such as the provision of financial services, expert advice, safehouses, false documentation or identification, transport and personnel, ‘creates a risk that some types of support may not be covered’.

Review of the Attorney-General’s decision

3.138 The Explanatory Memorandum states that the lawfulness of the Attorney-General’s decision making process and reasoning is subject to review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), although there is no mention of this in the Bill.

3.139 Many submissions criticised the adequacy of such a review on several grounds.

First, such a review is not a review of the merits of the decision.

Second, review under the ADJR Act is only available on narrow grounds. Section 5 of the ADJR Act provides that a person who is aggrieved by a decision may apply for an order for review in respect of nominated grounds, including: that a breach of the rules of natural justice occurred; that procedures required by law to be observed were not observed; that the decision was not authorised by the relevant legislation; that the making of the decision was an improper exercise of power; that the decision involved an error of law or was induced or affected by fraud; or that there was no evidence to justify the making of the decision.

Third, it was queried how meaningful a review could be where the basis for the Attorney-General’s decision was national security considerations or highly political matters, as courts have traditionally been reluctant to review such matters.

3.140 During public hearings Professor Williams told the Committee: ”Where a decision is made where reasons do not need to be given, where someone can be proscribed under any one of four criteria, the onus resting upon the organisation to disprove that the decision was properly made is too high a burden. It is very hard to ever marshal evidence to show that there were not adequate national security grounds for making such a decision. It is stacked against the organisation and against the courts in such a way that there is unlikely to be adequate review.

”Even if you overcome the national security problem, even if you overcome the evidence problem, there is simply no scope under the Administrative Decisions (Judicial Review) Act for any review of the merits of the decision. There are very narrow, well-tailored grounds for review that relate to the legalities of the decision but they do not relate to the merits of the decision. So, indeed, the Attorney could make a decision that might be wrong on the merits but there will not be any review of that.

”I think what that means is that, where we have a decision where the power is vested solely in a member of the executive, without any meaningful possibility of review, we simply cannot rely upon retrospective judicial review to cure this decision making process of its obvious problems. Not only would it take a lot of time but the likelihood is that an organisation would be damned by the process by the time the courts could look at it.”

3.141 Professor Williams also argued that a ‘serious limitation’ in the scope of the proposed review was that: ”Even though it is possible to ask whether the Act itself is constitutionally valid by applying a proportionality text, no such test would be applicable in reviewing decisions actually made under the Act. In other words, it could not be argued that a decision was wrongly made because it was not ‘reasonably appropriate and adapted’ to the relevant purpose or object.”

3.142 Submissions from Professor Kinley and the Law Council of Australia supported those concerns.

Alternatives to the current model

3.143 During the inquiry, various alternatives to the proscription provisions were suggested. They were:

– determination by the courts, possibly by use of the existing unlawful association provisions in the Crimes Act 1914;

– review of the merits of the Attorney-General’s decision by the courts; or

– parliamentary involvement, either by disallowance of the Attorney-General’s declarations or by determining proscription itself.

Determination by the courts

3.144 Professor Williams suggested that a preferable approach would be determination by the courts of whether an organisation should be proscribed, because of his belief that no form of subsequent judicial review could ever be effective in this context:

”Any form of independent involvement must be at the decision making stage because, once an Attorney makes a decision on national security or other grounds, a court simply is not well equipped to review such a decision, even if you gave it the power to do so on the merits. That means that, if you want a power to proscribe organisations, ideally it would work in such a way that the decision would be made only by an independent and open tribunal-or perhaps in camera, in very limited circumstances. It would be a tribunal that might be required to exercise a decision at extremely short notice, and courts have often proved able to do that.”

3.145 The Association of Criminal Defence Lawyers also supported a full court hearing to determine proscription, giving affected parties the opportunity to be heard.

3.146 A precedent for declaration of proscription of ‘unlawful organisations’ by the courts currently exists under Part IIA of the Crimes Act 1914. Those provisions apply to bodies which advocate the overthrow of the Commonwealth Constitution or the government of any country, or the destruction of Commonwealth property, or the carrying out of a seditious intention.

3.147 The provisions specify that:

– the Attorney-General must apply to the Federal Court for an order to show cause why the organisation should not be declared to be an unlawful association;

– any officer or member of the body may appear on behalf of the body;

– if the court is not satisfied of cause to the contrary, it may declare the body to be an unlawful association; and

– any interested person may apply to the Federal Court within 14 days to have the order set aside, with such application to be heard by the Full Court.

3.148 Some witnesses queried why the existing provisions, which at least provide for judicial determination, could not be used. For example, Professor Williams told the Committee that he supported this model on the basis that there would be ‘community confidence in the process’ and issues concerning the separation of powers would be avoided.

3.149 The Attorney-General’s Department commented that as far as they were aware, there had been no prosecutions under the unlawful association provisions. The Department also noted that the maximum penalties for the relevant offences under Part IIA, ranging from six months to two years, were ‘clearly insufficient’ for acts of terrorism.

Merits of the decision reviewable by the courts

3.150 Another option suggested by Amnesty International was that proscribed organisations should be entitled to appeal against a proscription decision and to have an external review of the merits of the Attorney-General’s decision.

Parliamentary involvement

3.151 A further option that was explored at public hearings was the option of parliamentary review of Attorney-General’s decision through disallowance.

3.152 The Committee notes that the Scrutiny of Bills Committee drew attention to the exercise of the proscription powers as ‘being more of a legislative function than an administrative one’ and queried why the function should not be subject to Parliamentary scrutiny.

3.153 Justice Dowd went even further in arguing that proscription of an organisation should be a decision by Parliament: ”Let the parliament go over the whole issue and say why or why not. Let the people’s parliament decide and not, in effect, an official in the Attorney-General’s Department with the approval of the Attorney-General.

”Remember: governments are very quick to come to Australia to get their enemies in their own countries proscribed Those things will happen very quickly and are going to be very difficult with the comity between nations.”

3.154 A final alternative was to have a sunset clause on proscription of any organisation. Ms Eva Cox suggested that proscription should have an initial period of 30 days and the proscription should then be reviewed.

Committee conclusion

3.155 The Attorney-General’s proposed proscription power in the Security Bill was clearly one of the most significant issues of concern during this inquiry and aroused the most vehement opposition.

3.156 The Committee is particularly mindful of the history of proscription in Australia. Based on the submissions made to and the evidence received by the Committee, the Committee believes that the proposed provisions are not acceptable to a large proportion of the Australian community and contain significant omissions. In particular:

– the broad discretion given to a member of the Executive to proscribe organisations is inappropriate, particularly by reference to a perceived threat to the ‘integrity’ of any country and in light of the fact that this power may be delegated by the Attorney-General to any other minister;

– the decisions on proscription are effectively unreviewable, because of the limited scope of the available review under the ADJR Act and the traditional reluctance of the courts to examine issues relating to national security;

– although the Bill provides for revocation, it contains no procedures under which a proscribed organisation may apply for consideration of that option; and

– the proposed offences in relation to proscribed organisations are excessively broad, particularly in relation to the offence of ‘assisting’ such an organisation and in light of the strict liability element.

3.157 During the inquiry, while many submissions opposed the proscription powers completely, the Committee heard various suggestions as to how the provisions might be improved if some means of declaring organisations to be ‘terrorist’ were to be included in the legislation. These suggestions included allowing the courts to conduct a review of the merits of the Attorney-General’s decision; making use of the existing unlawful association provisions under the Crimes Act 1914; and giving the Parliament power to decide these matters or at the very least to disallow the Attorney-General’s declarations.

3.158 The Committee recommends that the proscription provisions in proposed Division 102 should not be enacted. The Committee urges the Attorney-General to reconsider the proposed proscription powers and to develop a procedure which:

– does not vest a broad and effectively unreviewable discretion in a member of the Executive;

restricts the 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 the right of a proscribed organisation to apply for review of that decision;

– more narrowly defines the proposed offences in relation to proscribed organisations, particularly in relation to the offence of ‘assisting’ such an organisation and the broad notion of ‘membership’; and

– does not create offences with elements of strict liability, given the very high proposed penalties.

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.

Last year Webdiarist extraordinaire and new Doctor of Philosophy Tim Dunlop stirred up a hornet’s nest with an epic piece on dairy deregulation. This year, as Webdiarists fire up on the future, if any, of the Left, Tim has written a tome trashing Mark Latham’s Third Way, now in vogue within the Labor Party. To end, a postscript on Latham’s ‘let’s all be shareholders’ idea by Ivana Bottini.

THE THIRD WAY: OUR MORAL DUTY TO ‘FREE MARKETS’

By Tim Dunlop

Introduction and scene-setting

There’s an old joke that goes, why is golf called golf? Answer: because fuck was already taken. That’s pretty much how I feel about the third way. There’s also that Turkish proverb that says: When the axe came into the forest all the trees said, ‘at least the handle is one of us.’ That comes even closer. But given that the left in Australia is hardly overflowing with presence, new ideas or influence at the moment, it is worth our while at least considering the third way. Given also that it is the pet project of an almost certain future Labor leader – Mark Latham – it warrants our particular attention. So where do we start?

It was George Orwell who suggested that saints should be judged guilty until proven innocent, and outside of a criminal trial, it is probably a presumption that should be applied to every intellectual endeavour. So I begin an examination of the third way from the same point of view: guilty until proved innocent.

Of course, to its advocates, this approach will reek of defeatism and the very sort of small-mindedness their new grand scheme is meant to confront. Well, bad luck. If I’m going to be expected to live under the dictates of any system that claims to be the only thing around that will offer me a life worth living, then I absolutely reserve my right to Orwellian scepticism. As citizens in a democracy, we are under no obligation whatsoever to accept what we are told at face value by those who exercise power over us and we have every right to expect from them a full account of their schemes.

Having said that, advocates of the third way are often, with good reason, annoyed by the sort of criticism they receive. It is true, as Mark Latham notes in his article ‘Defending the Third Way’, that too much time has been wasted on concerns about the name (third way) and unrealistic expectations that it should present a complete and foolproof game plan to transform society now. The challenge Latham offers critics is simply to find something of substance to say about third way proposals or shut up.

Okay then.

Let’s not bother with peripheral matters like the name and do him and everybody else a favour and just kill off the concept in its entirety so that no-one ever has to bother dealing with it again. The third way, as currently presented by advocates like Mark Latham, is a hodge-podge of catchphrases and buzz words that don’t amount to a significant reappraisal of social democratic and leftist politics. In fact, in too many ways, they submerge social democratic principles within the dictates of neo-liberalism, the very thing they claim to be avoiding (axes and forests and all that). As presented by Mr Latham and others, third way theory can never achieve the social aims it claims it can because they are undermined and even negated by their economic aims.

The problem that kills the third way, therefore, is its internal incoherence. The nature of that incoherence is this: at the social level it advocates a enhancement of community, shared morality and trust and participatory democracy, but at the same time it advocates at the economic level policies that undermine the conditions for that social program. It plants a white picket fence in the path of the bulldozer it is itself driving. This is the third way’s fatal contradiction and unless third wayists can answer it, it is they who should shut up.

What is the third way?

When supporters try to encapsulate the project in a brief definition it gets a bit vague, perhaps understandably, but most at least agree that it positions itself between the unbridled forces of completely ‘free’ markets and the monolithic control of a centrally planned economy. It is often associated with the ‘centre left’ parties like Tony Blair’s New Labor or Bill Clinton’s New Democrats, and both are held up as exemplars of the sorts of governments that the third way should bring about.

The third way wants ‘free markets’ and the alleged benefits of them (such as economic efficiency, growth and competition), but it wants a kinder and gentler form of this ‘new capitalism’, one that takes society and democracy seriously. Different theorists and proponents give different emphasis to different aspects. Latham endorses John Lloyd’s summation: ‘[The third way] is an attempt to construct societies that can protect their citizens in an age of globalisation; to democratise the content and practices of globalisation; and to recast the explicit and implicit contracts that citizens make with the state.’

The sorts of catch-phrases that go with this sort of thinking are ‘civilising global capital’, ‘knocking the rough edges off globalisation’ and other vague terms of amelioration.

Amatai Etzioni, sometimes citied as the father of the third way, resents the label of vagueness, although he is happy that the concept is a bit ‘blurred’: ”True, it has a somewhat blurred margin – and thanks be given that it is far less detailed than a Soviet dogma or a Catholic doctrine.” But it is a bit more than blurred when major theorists contradict each other. Etzioni, for example, is clear that it tries to find a path between free markets and centralised state control.

For me, the Third Way is a synthesis of two principles often considered contradictory. There was a school of government (maybe the First Way) which believed that the state is the agent of society and the more the state controls centrally and in finer detail (not only economic life but also social life), the better the society. This is a project that the Soviet Union tried to lead on. The First Way allowed some minor corners for capitalism; it saw capitalism as evil, and market forces could be slightly tolerated but were in principle wrongheaded.

The Second Way took, in effect, the opposite view. It believed that the state (as President Reagan said) was not part of the solution – it was the problem. It recognised that there needed to be some place for the state, but basically it was an evil. The good was in the free market and the freedom of choice that engendered.

So here you have two fairly radical and opposed views, both of which the Third Way swears are useful. Both have a positive role to play, both are part of the solution and neither is the problem. We surely need an active state, we surely need a free market, and actually it is just a question of the proper balance.

Giddens, the other great international theorist of the third way, says almost the opposite: ”Third way politics, as I conceive of it, is not an attempt to occupy a middle ground between top-down socialism and free-market philosophy. It is concerned with restructuring social democratic doctrines to respond to the twin revolutions of globalisation and the knowledge economy.”

Third wayists will have to excuse us if we’re confused.

Mr Latham, to his credit, tries to extract a core element, a unifying theme from his well-read excursions through the literature of the third way: ”I believe the Third Way has a guiding ideology – a single philosophy which links all parts of its policy program. It is this: the true socialist principle of our time is the dispersal of economic, social and political power. This is the defining feature of information age politics: the chance to break down hierarchies and democratise power and social opportunity.”

This is a brave call, and a reasonable conclusion. But it is also the very thing that brings us up against the central contradiction of the third way and helps explain why we should discard it as a viable program of leftist action. If we can show that the program fails to deliver on this core element, then we have shown that the program is fatally flawed.

One way of doing this is by the use of some examples, and the more compelling those examples are, the more reasonable it is to assume that the same problems will arise in other examples. The real test for critics of the third way, however, would be to show that in principle it cannot deliver on this promise to ”break down hierarchies and democratise power and social opportunity” because of some basic flaw in their thinking. Not only is this possible, it is obvious, once you start to think about it.

A closer look

The third way installs ‘free markets’ at the heart of its program. It cannot do without them and doesn’t want to. Everything else in the program flows from this one simple fact and in this one simple fact the third way is completely at one with right wing advocates of the ‘free market.’ It stands to reason therefore, that any problems that arise in the application of the idea of ‘free markets’ will cause problems in the application of the third way. This is our starting point.

Again we have a terminological problem. We can’t just accept the term ‘free market’ as if we all knew what it meant or even as if it meant what it said. When neo-liberalists speak of ‘free markets’ they don’t actually mean a system of exchange between people with no interference between them. Without laws of private property, national and international trade agreements, the power to enforce contracts and other such restraints we truly would have free trade, and we’d be living in a Hobbes jungle.

No-one wants that, least of all the corporate and political leaders who constantly advocate ‘free markets’. In fact, far from being a restraint on trade, such controls provide the conditions for trade to happen effectively in the first place. As Donald Livingston has put it, ”economic relations cannot exist outside of noneconomic restraints”.

What advocates actually mean by ‘free market’ is an historically specific set of social, legal, political and cultural conditions in which exchanges take place. And while it is true that ‘free market’ advocates wish to minimise the role of government and other non-economic considerations in their ability to exchange goods, this is not same thing as saying they don’t want any controls on exchange at all.

What they want, in fact, is a particular set of restraints on the exchange of goods and the workings of labour, ones that, naturally, favour their own circumstances. If this wasn’t so, governments, businesses and bodies like the World Bank and the IMF wouldn’t spend years and years negotiating ‘free trade agreements’. If we were literally talking about ‘free trade’, then a ‘free trade agreement’ would almost be an oxymoron.

The particular form of non-economic constraints that provide the conditions for what neo-liberalists and third wayists call ‘free trade’, which has its greatest realisation in ‘globalisation’, that other buzzword of the nineties, are summed up in a group of policies known variously as the ‘Washington consensus’, neo-liberalism, or, in Australia, economic rationalism.

Its key features include minimising legal controls over how business operates, especially in regard to international finance (deregulation); the application of business models to government operations and the wholesale shift of these from the public to the business sector (privatisation); minimising controls over the employment of labour, including abolition of minimum wages, scaling back of working conditions legislation, including dismissal laws, an emphasis on boss-to-worker negotiation of pay and conditions rather than on collective bargaining (‘workplace flexibility’); an emphasis on the control of inflation rather than the control of unemployment; and an emphasis on economic growth as the basis and measure of a successful economy.

So this is what advocates mean when they talk of ‘free trade’ in the neo-liberal system at the heart of the contemporary process of globalisation. And as I say, third wayists insist that this is the essential condition of their political program. It therefore requires some consideration in its own right and the first question to ask is does it provides the benefits they claim?

We need to be honest here: for every expert I can throw up to dispute the glories of the Washington consensus, I’m sure third wayists, and neo-liberalists for that matter, can throw up another who will dispute such conclusions.

So I’m not pretending that a couple of quotes from a couple of experts is a knock-down victory for my side of the argument. All I am doing at this stage is accumulating some evidence that at least shows that there is considerable doubt to be cast over the over-weening certainty of those third wayists who suggest that ‘free markets’ are the only true road to social and economic freedom. So ripe with conviction are the writings of most third wayists that it is easy to be overwhelmed by their enthusiasm and to be fooled into thinking that all arguments have been won and there is nothing left to discuss. But this just isn’t so, as economists like James Galbraith and Paul Omerod have pointed out.

Galbraith wrote in 1999: ”The doctrine known as the Washington Consensus was, after its fashion, the Apostle’s Creed of globalisation. It was an expression of faith, that markets are efficient, that states are unnecessary, that the poor and the rich have no conflicting interests, that things turn out for the best when left alone. It held that privatisation and deregulation and open capital markets promote economic development, that governments should balance budgets and fight inflation and do almost nothing else.

”But none of this is actually true.The push for competition, deregulation, privatisation and open capital markets has actually undermined economic prospects for many millions of the world’s poorest people. It is therefore not merely a naive and misguided crusade. To the extent that it undermines the stable provision of daily bread, it is actively dangerous to the safety and stability of the world, including to ourselves. There is, in short, a crisis of the Washington Consensus.”

Remember, you of the left looking for a way to reinvigorate leftists politics, this is the economic prescription the third way considers essential to that project.

Ormerod, an economist and economic forecaster, is just as blunt: ”The advice to follow pure free-market policies seems in any event to be contrary to the lessons of virtually the whole of economic history since the Industrial Revolution.

”With the possible exception of the first wave of industrialisation in Britain, every country which has moved into the strong sustained growth which distinguishes industrial, or post-industrial, societies from every other society in human history, has done so in outright violation of pure, free-market principles. Markets, competition and entrepreneurship are all very important, but by themselves they are not enough. Infant industries – even when they have become industrial giants – have sheltered behind tariff barriers; government subsidies have been widespread; there has been active state intervention in the economy; and, perhaps most important of all, successful companies have exercised power and control over their markets.

”Even Far Eastern economies such as South Korea and Singapore, which are held up as models of free-market principles, do not in practice conform to the ideal. The governments of these countries possess a degree of internal power which is far greater than is the norm in Western societies, and they are not afraid to use it.”

And yet, Mark Latham and other third wayists are adamant about this point: ”Free trade is the most powerful force the world has known for ending poverty. Over the past three decades the development of trading economies in East Asia has lifted 150 million men, women and children out of abject poverty. The countries which have been unable to break the poverty cycle – most notably, in Africa, parts of Latin America and the old Soviet Union – are those which have been most resistant to clean institutions and free trade.”

Now each side of the argument can throw up their experts to debates the merits of ‘free trade’, and as I’ve conceded, there are probably no knockdown arguments. But statements like this from Mr Latham are simply brazen. No respected economist would endorse the interpretation he gives here.

Far from being the beneficiaries of ‘free trade’, the economies of East Asia owe any success they’ve had to an increase in international trade made possible by and coupled with strong government control. Not only have they not administered anything that could be called ‘free trade’ in the literal sense, they have also not administered anything that resembles the neo-liberal concept that advocates call free trade. In fact, the closer they have come to fulfilling this prescription, the worse the results have been.

The most successful of these countries, China, Korea and Singapore, are the ones who maintained the tightest government control over the ‘opening up’ of their economies, the very opposite of what the neo-liberal prescription dictates. When the Asian meltdown of the nineties kicked in, the neo-liberal acolytes blamed ‘crony capitalism’, not the flight of footloose foreign capital doing exactly what the neo-liberal agenda mandates.

When Malaysia, in response to the meltdown, reintroduced capital controls – almost the biggest sin against ‘free trade’ possible – they were castigated by the neo-liberal intelligentsia and assured that it would cause even more problems, particularly in terms of capital flight. In fact, the controls worked, again flying in the face of the received wisdom of neo-liberal brotherhood.

So, far from being the thankful beneficiaries of ‘free trade’, the people’s of Asia, to the extent they have benefited, have benefited from large scale government intervention and management.

On the other hand, the one country in the ‘developing’ world that most closely adhered to the neo-liberal prescription was Russia. As it has been an abject failure, no-one in the neo-liberal community wants to claim it.

Mr Latham goes so far as to say it has been ‘most resistant’ to the preferred agenda (of neo-liberalism) but this is an inexplicable comment from an honest reporter. Far from being ‘resistant’, it is the one country that most openly embraced the neo-liberal project. Thus advocates who do seek to explain the Russian failure generally take the opposite approach to Latham and claim that the ‘reforms’ did not go far enough. Jeffrey Sachs of Harvard, one of the key economic advisers to the Russian government, argued exactly this point in The Independent in October 1993. Whatever form of mitigation is offered, Russia is simply the most obvious example, not of a country being resistant to ‘free trade’ as defined in neo-liberal terms, but of adopting it wholesale and suffering the consequences.

So although the quotes from Ormerod and Galbraith may not of themselves be knockdown arguments, they do at least have the benefit of coinciding with what actually happened in Asia and Russia.

Mr Latham himself puts Australian competition policy at the heart of his understanding of the free trade he advocates, which is bit like leading with your chin. Always an over-rated manoeuvre, its credibility fell in a heap with dairy deregulation. Rather than delivering the promised cuts in the retail price of milk and a more efficient industry, it has delivered higher retail prices, a decimated industry, disrupted rural communities, and about half-a-billion dollars extra a year to the largest retailers – virtually the exact opposite of what it promised and certainly the exact opposite of what third wayists claim their approach will deliver. If this is what they mean by ‘civilising global capital’ or ‘knocking the rough edges off’ free markets, then we certainly have reason to pause.

The debacle of dairy deregulation, along with the collapse of major firms within deregulated industries of airlines and insurance, brought the ‘father of competition policy’, Fred Hilmer, out in defence of his baby. Writing in The Sydney Morning Herald, Professor Hilmer defended competition policy in these terms: ”In these difficult times, as you phone friends and family overseas, have you noticed a little good news? Overseas phone calls have become quite inexpensive. Similarly, as petrol prices rose and rose again, did you notice how stable your electricity and gas bills have been? And as you speculate on these and other matters over a drink, have you noticed the wide variety of interstate products, from Cascade to Coopers, available at close to prices of local beers, compliments of lower freight costs throughout Australia?”

Pardon me if I’m underwhelmed. This is the father of competition policy and the best arguments he can muster are cheaper international phone calls (a dubious claim probably more attributable to technological advance than deregulation) and better availability of boutique beers? Gee. And as for the stability of utility bills, the word to invoke is ‘Enron’. Wait till we get our version of that particular debacle of the ‘free market’ and deregulation.

An even closer look

As I’ve said, because neo-liberalism is so central to the third way project, any doubt cast upon the former must be shared by the latter. But my aim is to show a fatal internal contradiction, so let’s return to Mark Latham’s core principle of the third way, ‘the chance to break down hierarchies and democratise power and social opportunity’.

This is such an enormous claim that it is hard to overstate it. It means that by employing neo-liberal economic policies we can create a situation whereby more and more of us (eventually everyone who is willing to participate) will be freed from the drudgery of the sort of mindless, repetitive work associated with industrial capitalism and we will all become something like independent contractors, negotiating our own wages, working our own hours, living in communities of respect and trust. The claim makes a causal link between neo-liberal economic policies and the new social-democratic world of ‘civilised’ global capital, of active citizens and coherent, functioning communities.

The third way puts a lot of faith (all of it, in fact) in the ability of deregulated, internationalised market forces to create improved work conditions, as Mr Latham testifies: ”In the new economy, semi-skilled jobs are to be found in the services sector. The extraordinary growth in tourism and leisure services in Cairns is a good example of this process. These jobs provide a more comfortable and interesting work environment than their equivalent in the old economy – the degrading tedium and discomfort of production-line work. A defining feature of the new economy is the upgrading of workplace skills. Jobs which were previously regarded as semi-skilled, such as motor mechanics, now require qualifications in computing and electronics. This is the great benefit of the information revolution. Across the board it is producing cleaner, safer and more stimulating work. For most of human history, technological change was used to replace labour in the production process. In the information economy, however, it is being used to support the creative skills and instincts of people. This is an opportunity for workers to take greater control of their labour and improve their economic bargaining position.”

As a general response, we can look to the work of sociologist Richard Sennett. He is less than convinced: ”Flexibility is used today as another way to lift the curse of oppression from capitalism (the very thing Latham is getting with phrases like ‘civilising global capital’). In attacking rigid bureaucracy and emphasising risk, it is claimed, flexibility gives people more freedom to shape their lives. In fact, the new order substitutes new controls rather than simply abolishing the rules of the past – but these new rules are also hard to understand. The new capitalism is an often illegible regime of power.”

Sennett gives a telling specific example that involves a Boston bakery, a place whose work practices and social interactions he first studied in the sixties and then revisited in the nineties. It had gone from being a site of manual labor performed by a group of professional bakers, highly unionised and more or less having a job for life, to being a hi-tech bread factory that ‘works according to principles of flexibility, using sophisticated, reconfigurable machines’ that allow, by the push of button, the bakery to churn out anything from French bread to bagels to Italian loaves.

This shift from labour intensive work to a highly automated, hi-tech, modern whizz-bang set-up is precisely the sort of change that third wayists applaud, encourage and claim will improve working conditions by ‘dispersing power’ and freeing people to ‘live better’. What Sennett found in the Boston bakery was something far less positive and far more complex than the simple ‘technology = good’ slogan of the third wayists.

Let’s not get all starry-eyed about the old bakery and the old way of doing things as if the technology is in essence bad and has displaced some sort of working man’s paradise. No-one should romanticise the pre-technological past: certainly the bakers didn’t. As Sennett reports, most of them hated the work – it was physically hard and the hours we long and generally at night. The bread made by the new machines is ”excellent, an opinion shared by many Bostonians, since the bakery is popular and profitable”. I join Mr Latham and others in their contempt for any sort of sentimental longing for a more ‘pure’ past. The reality of the bakery was probably more like the conditions described in Upton Sinclair’s The Jungle, and only a dunderhead could not join George Orwell in his view that ”how right the working class are in their materialism”.

Another side effect of this technological ‘upgrade’ is that there is now huge wastage at the bakery. The machines, it seems, the technological marvels, are not that marvellous. They wrongly estimate yeast levels, cooking temperatures, the timing of the bread rising and though the ‘bakers’ can ”fool with the screen to correct somewhat for these defects”, they can’t actually ”fix the machines, or more important, actually bake bread by manual control when the machines all too often go down”. As Sennett notes, ”In the old days, I saw very few waste scraps in the shop; now each day the huge plastic trash cans of the bakery are filled with mounds of blackened loaves.”

The point to note is that the technological advances led to a deskilling of the workforce – no-one could actually make bread anymore. The replacement skills, a little bit of computer operation, could be learned in five minutes and in terms of job satisfaction offered no more, and perhaps considerably less, than the production line process that third wayists disparage. But more important still was what the technological upgrading had done to the workers themselves and their work environment.

In the old, manual bakery, where the bakers could actually make bread, the men (it was only men) were all of the same community and could and did relate to each other on a social and professional level: they literally lived a life in common. In the new hi-tech bakery, ”Workers come and go throughout the day; the bakery is tangled web of part-time schedules – the old night-shift replaced by a much more flexible labor time. The power of the bakers’ union has eroded [and] as a result, the younger people are not covered by union contracts, and they work on a contingent basis as well as on flexible schedules. What is truly new is that, in the bakery, I caught sight of a terrible paradox. In this high-tech, flexible workplace where everything is user-friendly, the workers felt personally demeaned by the way they work. Operationally, everything is so clear; emotionally, so illegible.”

Again, we don’t need to romanticise the pre-tech past and completely disparage the new flexible conditions. It is not that the technology has displaced some utopian world of happy, content workers, but that it has not produced anything much better. It is the nature of the oppression that has changed: oppression itself has not altered at all. Far from ‘dispersing’ power and providing more worker freedom, it has simply concentrated power in other, less obvious ways. In addition, it has corroded the sense of community (or solidarity) between the workers, isolating people rather than bringing them together in new ways as the third wayists insist. But as it is this relationship – that between contemporary work practices inspired by a globalised economy and social relationships – that is at the heart of my criticism of the third way.

A further example: Communication technologies

A more telling example of how the claims made on behalf the new capitalism by third wayists are grossly exaggerated comes from one of their favourite industries, that of the new communications industry and the internet. No industry is more dear to the hearts of third wayists than this. Not only does it represent the sort of hi-tech workplace that is going to be more conducive to self-fulfilling work, the products of this industry – computers, the internet, the web, cables, satellites – are meant to be the tools of social and political empowerment. They are the tools that are going to reconnect us with community and put us in charge of our own political destinies.

I am not setting out to disparage the new technologies or their potential as tools of democracy – I’ve written my own paeans to this potential. But to argue that they currently represent a tool of power dispersal and equalisation is not to be living in the real world. Anyone who doubts the glories of globalisation and free markets is, in Latham’s terms, a ‘pessimist’.

But consider the claim being made: ”The pessimists correctly point to the concentration of capital in the old industries of manufacturing, mining and agriculture. In the information technology and personal services sectors, however, a different trend is taking place. Advanced IT is wiping out the middle person, collapsing hierarchies and challenging traditional centres of economic power. This dispersal of information skills and economic opportunities is a positive force for change.”

Is this true? Fortunately, we can test it. Dan Schiller, a professor of communications at the University of California, San Diego, has done the work for us in his book, Digital Capitalism. It is a painstaking and readable account of the shift of the new technologies from being public goods to being private property. He isn’t specifically addressing the claims of the third wayists, but he could be: ”Hopes that a wired future will prove blissful are generally conditioned by fears that our system of schooling is inadequate, that civic commitment has flagged, that social groups are polarised and economically unstable.” As I say, this could be addressed to an essay by Latham or Giddens. Schiller goes onto say:

”I argue that we should be skeptics about the potential of cyberspace. Knowledge carried through the Internet is no less shaped by social forces than it is elsewhere. Far from delivering us into a high-tech Eden, in fact, cyberspace itself is being rapidly colonised by the familiar workings of the market system. Across their breadth and depth, computer networks link with existing capitalism to massively broaden the effective reach of the marketplace. Indeed, the Internet comprises nothing less than the central production and control apparatus of an increasingly supranational market system.

”The shift from public to private – that is, from public ownership of technologies to their ownership being concentrated into a few, private, hands – begins in the 1950s in the US. A number of trade organisations were established whose sole purpose was to ‘undertake a long march through the nations regulatory arena’. At this stage, it was the government and a number of universities and schools who owned and operated almost three quarters of the country’s computers.

”Into the 1960s, this balance shifts, as a number of industries, particularly banking, oil, insurance and large retailers look to streamline functions such as payroll, credit authorisation and accounting. Still, only thirty-one computers were online – that is connected to each other – in 1960.

”Telecommunication companies were classified as public utilities and common carriers and were highly regulated, especially in regard to their public obligations: they were expected to provide services on a non-discriminatory basis, so that everybody in the country got just about the same level of service. It was this principle that the private firms sought to over-turn and to replace with a ‘systematic discrimination in favour of their own special-purpose networks and against the general-purpose system on which ordinary telephone users relied’.”

Space does not allow me to do justice to Schiller’s work, but we can briefly consider the example of the internet itself. It has its origins largely within the US military and to a lesser extent the university system, with a network known as Arpanet. It was the military’s desire to connect disparate computer systems and the need for uniformity between them that led to the establishment of certain protocols, that is, standardised instructions that allowed one computer to communicate with another. This is the origin, in the early 1970s, of the TCP (Transmission Control Protocol) that the internet as we know it uses today.

The important point to note is that all this technology lay in the public domain: that is, it was free to use and nobody made money from it. Without these developments in the public sector, it is unlikely that the internet would have developed into what we have today.

With the protocols in place, the stage was set for commercial exploitation. The Arpanet system was not only a ready-made ‘backbone network’ for them to exploit, it was also one that had cost them nothing to develop. Already, companies had been searching for ways of streamlining their own computer telecommunication systems, and they had been lobbying the government hard to allow them to operate proprietary systems. Initially it was the National Science Foundation (NSF) system that allowed the system to be exploited beyond its military application. This public network (called NSFNET) connected university, government departments and a certain number of think tanks.

As Schiller explains: ”By 1992, the interconnection of disparate networks via the NSFNET had grown to the point that 5,000 systems, to which an estimated 4 million users had access, were making use of Internet technology. The not-for-profit system’s growing mass and escalating momentum were now such as to draw a full-scale entrepreneurial intervention.

”Thus an effort commenced to restructure the Internet on starkly neoliberal lines. In February 1994, the NSF announced that four Network Access Points (NAPs) would be built so that a new class of Internet operators might interconnect directly with each other to exchange traffic. The purpose of the scheme was to cede provision of the Internet backbone network directly to commercial carriers. Little more than a year later, the NSFNET was indeed supplanted by the NAP architecture, and the latter in turn became the internet.”

No-one who uses the internet regularly needs to be told of its commercialisation. I, like millions of others, are spammed with electronic commercial flyers daily. I am surveilled by electronic spies like cookies and trojans. Little programs get into my system and change my homepage without my foreknowledge or permission. They dump adware on my hard-drive and activate it at their convenience. More and more sites – The Financial Times, The Wall Street Journal, my former favourite search engine, Northern Light – are pay-for-view only. Google is kite-flying the prospect of a fee-based service as we speak. Access to archived newspaper articles is on a user-pays basis. I even have to click through ads when I want to read posts on discussion lists I’m subscribed to: when I want to read a post someone has sent to certain lists, I am forced to read an ad before the system will allow me to read the post.

In addition, eighty percent of internet users access sites through huge corporate portals such as America Online. Far from being sites of the dispersal of power and the democratisation of knowledge and information, the services offered by new technologies like the internet are tending to concentrate power and ownership and work purely on market principles.

Again, this is not to say that there hasn’t been an upside to the development of the new technologies. But the history of their development does force us to confront the claims that third way policies that enshrine market forces at their centre are somehow going to provide the conditions for more democracy and more power for the people. Working from the evidence available to us, the opposite seems to be the case. I am more inclined to agree with Sennett’s analysis that far from dispersing power, the ‘new capitalism’ (the thing the third wayists want to let free and tame at the same time) just concentrates power in different, less obvious, ways. In all good faith, third wayists should at least confront this possibility (or, I really should say, this reality).

Concentration without centralisation of power

It is worth considering Sennett’s conclusion. (Unfortunately he uses the abstruse language of the sociologist, but it isn’t too difficult to follow the thrust.) He concludes that far from dispersing power, the ‘new capitalism’ hides a new form of centralisation behind its rhetoric of flexibility; that the ”system of power that lurks in modern forms of flexibility consists of three elements: discontinuous reinvention of institutions; flexible specialisation of production; and concentration without centralisation of power”.

In outlining the first of these – discontinuous reinvention of institutions – Sennett is at one with Mr Latham in his analysis: hierarchical structures of order and command are replaced with network-like systems where one part can be replaced or cancelled without, theoretically, upsetting the entire system. Such flexibility is enhanced by the use of computer programs that map and simulate this loose corporate structure and that enables management to look for areas of non-performance or redundancy and to eliminate or restructure them. It is such organisational structures that allow the ongoing downsizing of businesses that has become commonplace in the last twenty years.

But as Sennett and some managers and management consultants point out, the promised returns on productivity are illusory. What sets in is another sort of logic born of this flexibility, namely the belief that any change, or at least the ability to change, is a good in and of itself, and this is reflected in higher stock prices for those companies that show themselves to be capable of such change.

Thus, while the promised productivity returns may not materialise, the signal of ‘flexibility’ given through constant reorganisation and downsizing serve to increase a company’s share price so that ”Perfectly viable businesses are gutted or abandoned, capable employees are set adrift rather than rewarded, simply because the organization must prove to the market that it is capable of change”.

Within such a system, individual units may be accorded a great deal of autonomy – much more than in traditional, Fordist businesses, just as third wayists claim – but their autonomy is only to be found within a system that may allow their unit to disappear from underneath them. In some senses, as Latham claims, power is dispersed, but fundamentally, it isn’t. At the demands of ‘the market’, those who are really in control can simply zap a unit from the overall network. Not only do the workers suffer when this happens, but they live and work in an environment with the full knowledge that it could happen anytime. Insecurity becomes embedded, ingrained in the day-to-day practice of such firms. You simply don’t need the same sort of day-to-day management oversight and control to ensure that the work is done: all that control is internalised and thus the dispersal of power is illusory.

The new corporation, as described by writers like former US Secretary of Labor Robert Reich, is an outsourced hodge-podge of decentralised units coordinated by a central firm who brings all the parts together. So while each individual unit – the private company that makes the headlights for a car, the other company that makes the rubber seals, the yet other company that tints the windshields – is much more independent of the production line manufacture of cars than in the past, they are nonetheless bound to the controlling organisation in a far-from independent way. Control is exercised through the setting of production and profit targets and by the ongoing tendering for parts supplied. For workers at the window-tinting company, the power is felt secondhand, even if they are all independent contractors.

But again, Mr Latham is adamant: ”The most powerful trend in Australian politics is the emergence of free agents – the new class of consultants, contractors, knowledge workers and entrepreneurs in the new economy. These are people who have broken free from large, hierarchical organisations and become agents of their own economic future.They use this freedom to create their own rules and lifestyle options. Part worker, part owner, free agents have crossed over the industrial relations divide. Small and self-reliant, they see no need for union or employer representation. Their idea of a good society is a deregulated economy, quality education and safe and supportive neighbourhoods.”

So what about these ‘free agents’ who get to work at home? On the surface it seems attractive, but anyone who has ever done it knows that it requires a whole new layer and level of control, beginning with a strict personal discipline. Additionally, as Sennett shows, the level of surveillance of such workers actually increases and the micro-management of their time is reflected in the keeping of work logs and the constant monitoring of the computer systems themselves, where email is read, key strokes are counted.

So this sort of flexibility has allowed people to work from home and exercise some extra control over exactly when the work is done, but it has given the worker absolutely no control over the production process itself. Sennett: ”Time in the institutions and for individuals has been unchained from the iron cage of the past” [just as Latham says] but subjected to new, top-down controls and surveillance. The time of flexibility is the time of a new power. Flexibility begets disorder, but not freedom from restraint.”

Thomas Geoghegan, a Chicago lawyer, cites some interesting statistics and offers an interesting analysis that goes hand in hand with this move towards ‘free agents’ and ‘flexible’ workplaces: ”But is there full employment?”, he wonders in reviewing US labour statistics. ”No one can measure it, I believe, in the way we did 30 years ago.”

”Consider: About 30 percent of American workers who work part time are transient workers or self-employed. According to the Economic Policy Institute, the vast majority of free-lancing workers – two of three women or three of four men – would like to find full-time work, or a real boss who pays Social Security or just a permanent port to pull into. But what about the other 70 percent? According to the Wall Street Journal, by the age of 30 or so, a worker today has held 9.2 jobs. And what’s in this young, often college-educated person’s cash balance plan, or pension, or 401(k)? Zero, most of the time. Nothing. Not a cent. Now imagine that the same person at age 30 has been married 9.2 times. Can we say that such a person has been married really even once? “Job,” or the notion of “job,” is about as impermanent in this country as the elaborate mandalas Buddhist monks construct from grains of colored sand then sweep away upon completion.In addition, there are millions of people who have simply dropped out of the labor market. Vanished. Not there. Not even in these ephemeral short-term jobs, with the half-lives of specks of carbon. Now it seems to me, any tiny little wage bubbles get pricked every time people move. In any given year, a new job, a new HMO, a million tiny things that we can’t pick up with our crude measures, wipe these bubbles out.”

And remember, these are foundations on which the third way wishes to build stable and functioning communities. This is what I’m coming to.

Equality and democracy

My aim thus far has been to cast some serious doubt on the claims of the third wayists, to look past their infectious rhetoric and go, ‘Well, um’. But I also said that I wanted to show the internal contradiction in the third way, of how, even on its own terms, it is dabbling with failure at every step. It should be reasonably obvious now wherein that contradiction lies, namely, in trying to reconcile the promises of social stability, trust and community building with the needs of ‘free markets’. It is with that central aim still in mind that we can examine one final aspect of the third way: its attitude towards equality and democracy. So before we pull together all the threads offered here, let’s look at what they have to say about these two key concepts.

It may surprise you to know that the third way has no interest, as does traditional social democracy, in doing much about inequality. ”Surely the purpose of a good society should be to abolish poverty, not to abolish inequality,” Mr Latham says.

Giddens writes that social democrats must overcome their attachment to equality. Why? Because it doesn’t sit very well with the demands of the market. He endorses what he claims are the views of T.H. Green, Leonard Hobhouse and ”others who thought like them [who] distanced themselves from socialism and took an affirmative attitude towards market mechanisms”. Thus, although some level of redistribution is still going to be desirable, ”social democrats should continue to move away from heavy reliance on taxes that might inhibit effort or enterprise, including income and corporate taxes”. Let’s keep the markets and their corporations happy, then we’ll see what we can do about inequality. (And in one, perverse sense, he’s right: how can you solve inequality until you create it?)

It is almost impossible to separate the third way discussion of equality from its understanding of morality, economics, community, education, duty, stakeholding and ultimately democracy itself. Actually, they don’t want to separate these things and in fact, the third way’s most brilliant achievement has been to marry all of these things together into what appears to be a coherent whole.

As we go through it, however, note how it all revolves around meeting the demands of ‘free markets’ and how it forms – once we make a number of questionable assumptions – a virtuous circle between doing what is morally correct and doing what the market wants anyway. It’s truly clever. Nonetheless, the technique is relatively simple, though undoubtedly bold, and it is this: continue to use the language of social democracy, but give the words neo-liberal meanings. It is what Paul Cammack calls semantic engineering.

First, under the third way the emphasis is on equality of opportunity not of outcome. This is their master-stroke. In one fell swoop, nearly all responsibility for a ‘good life’ or any personal circumstances is shifted from the state – or the community – to the individual. From this flows the whole rhetoric of the end of state provisions, personal responsibility, and moral condemnation that is implicit (and sometimes explicit) in the third way agenda.

But such a conclusion relies on a very important assumption: that everyone starts out on a equal footing. My kid and Bill Gates’s kid. Shane Paxton and George W. Bush. So obvious is this flaw in their reasoning that third wayists set out to address it. They acknowledge that some levelling is necessary for them to be able to claim with at least some plausibility that everyone starts with an ‘equal opportunity’, but once they have that, they’re onto a winner. You see, once you can claim that everybody started from the same point, you are then able to say that any subsequent success or failure by an individual is down to them. Blame and credit accrue to the individual: the state and other citizens are absolved from any further involvement.

So what is the third way’s big plan for levelling the playing field? It’s education.

When fitting all this together, remember you have to put it all into the context of the brave new world that the third way envisages, where highly skilled workers work in flexible, hi-tech workplaces, working with ideas and symbols. This is another unspoken and dubious premise of the third way (like, we’re still not going to need someone to take out the garbage, cook the food, deliver the goods etc. etc.). Anyway, we all have to be highly skilled which means we all need an education, not for its own sake, but for purely instrumental, economic reasons.

The third way says, okay, that’s the obligation of government, to provide you with that education. There, we’ve performed our social democratic duty as a government of the left, we’ve allowed you all to start from the same starting point, it’s now down to you. You don’t need us to worry anymore about equality because we have now deemed you all equal – equal in opportunity. If you’re not equal in outcome, well that’s you’re fault – you didn’t work hard enough, you didn’t avail yourself of our educational opportunities, you made bad decisions – and you only have yourself to blame.

But it gets better. Having provided you with an ‘equal opportunity’ you now have a moral responsibility to repay us, society, the state, the government, by being a productive citizen. Thus all the talk in the third way literature about ‘duty’. As Michael Ehrke puts it: ”The most important duty is gainful employment, the incentive for which is neither attractive material rewards nor job satisfaction – but duty.”

And if you happen to lose you’re job we’ll give you a bit of hand, the dole, but you have a ‘mutual obligation’ to work for that money and re-educate. If you don’t do this, you are being irresponsible and immoral. We can ignore you. You have no intrinsic human worth, just a market value. If you can’t ‘add value’ to our society by being a good producer and a good consumer, that’s you’re a problem. From such a basis Bill Clinton was able to ‘end welfare as we know it’, thus pleasing the markets, the right, the conservatives, the moralists and the third wayists.

And so it all neatly ties together: equality becomes ‘opportunity’, all responsibility is personal, failure also is personal and a sign of weakness, weakness is potentially morally debilitating, so if you aren’t contributing you are obliged to do so by working for the dole or taking re-education courses.

Third wayists even speak of ‘lifetime learning’ which is kind of the contemporary version of ‘no rest for wicked’. And the reason you have to commit yourself to this is because, hey, this is a market economy, and the skills you just picked up with that four year course mightn’t be needed anymore, or the company you worked for has downsized or folded and so you need a whole other new skills’ base, and this is good and this is exciting and, oh by the way, we’d really like it if you could all belong to stable and harmonious communities by committing your free time to civil society.

Democracy and the third way

The ramifications of abandoning equality for the third way’s democratic project are some of the least examined aspects of its agenda. How exactly do you do democracy without equality? No serious thinker since serious thinking began thought you could have democracy without a fair degree of equality. The necessary precondition for a functioning democracy is not just minimal outright poverty, but a reasonable degree of similarity between the life and life prospects of the citizens.

There is always going to be some sort of gap, and to a certain extent, such a gap is necessary and healthy. But if the gap gets too big between top and bottom, then they are literally living in different worlds. And given that your basic working definition of democracy is something like ‘collective self-rule by citizens with a reasonably equal chance of influencing outcomes’ it seems to me that the third way, by abandoning the concept of equality, abandons democracy.

But what am I talking about? The third way literature is filled with flashy phrases and motherhood statements endorsing democracy and calling for more of it: The Third Way is committed to repairing other aspects of the democratic system. Parliamentary politics needs to be modernised to meet the demands of the Information Age.

In an era in which information and know-how are being dispersed and people are demanding a more direct say in decision making, the parliament looks like a horse-and-buggy institution. It concentrates too much power in the executive and not enough in participatory democracy. This is why it is riddled with public distrust and false expectations.

The new politics requires the dispersal of power. The electorate, geared up with educational qualifications and mass information, wants to cut out the middleman. It wants a direct say in the political process, not just a vote every three or four years.

Traditionally, our system of government has relied on three heads of constitutional power – the executive, the parliament and the judiciary. A fourth power is now necessary, concerning those matters best determined by the direct participation of the public.

Dick Morris has pointed to the enormous potential of Internet democracy, especially as Net access becomes universal. This new tool for public participation will force a rethink of the division of power in Western politics.

And then we get this from Latham: ”I do not share Morris’s view that direct democracy will be applied across the board. The Federal Parliament’s delegation of power on economic matters – to bodies such as the Reserve Bank and World Trade Organisation – will remain in place. This is a logical consequence of globalisation.”

Consider again those quotes immediately above: they really are extraordinary. Direct democracy still requires strong federal parliaments, but the people shouldn’t be given control of everything that affects their lives. Not only that, certain matters such as ‘power on economic matters’ will not be handed over to the sovereign people through some form of direct internet democracy. It won’t even be retained by the federal parliament, which, for all its failings, at least has the benefit of having been elected by the people and therefore some claims to democratic legitimacy. No, this ‘power on economic matters’ will be handed over by the federal parliament to the Reserve Bank and the World Trade Organisation. This is ‘logical’.

Come again?

These quotes come from an essay by Mr Latham called The New Economy and the New Politics, from a section subtitled ‘Reinventing Democracy’. Well, it’s certainly that. This is reinventing democracy as not democracy. The sovereign people that the third way is so concerned with are factored out of all economic decisions – this is logical – and that power is handed by their parliament to unelected, supranational bodies.

But all is not lost: even as their economic sovereignty has been handed to unelected, faceless bureaucrats who are almost entirely unanswerable to them or any other body of sovereign citizens anywhere in the world, the third wayers have found a role for us: ”The rise of Internet politics, however, will force the Parliament to develop a new set of delegations. Already it is being called on to give people a greater say on issues with a moral dimension. That is, matters on which we all have an interest and an opinion, especially in how we relate to each other. Invariably, these are policy decisions in which the parliament has no greater knowledge or expertise than the general public.”

Like, we don’t have an interest in or opinion on economic policy?

More compelling than this theoretical outline of how our ‘reinvented’ democracy will work are the examples that Mr Latham gives to support it: ”To give two examples: the question of whether the Australian Government should apologise to the Aboriginal stolen generation; and the current debate within the NSW Parliament to ban smoking in restaurants and cafes.”

Thus, he continues, ”our political system can only be revitalised by opening decision making to public participation. Internet democracy seems a logical change. It has the capacity to re-engage people in the political process by giving them more information and more democratic power.”

So we’ve handed control of our economy to the WTO, but thanks to the marvel of the internet (a business owned by an ever-decreasing number of super, multinational conglomerates) we get to vote on whether people can smoke in restaurants in Sydney. What a trade-off.

And there is a final point worth making about the third way’s democratic credentials: the third way itself is not a prescription arrived at after long, wide-ranging discussion amongst citizens from all levels of society. It is exactly as Mr Latham says it is, ”an international network of policy makers and politicians, sharing ideas about the future of social democracy’ In its formulation, therefore, it violates its very own guiding principles – that power should be dispersed – and it seems reluctant to brook too much criticism. If those who push this sort of approach can’t even abide by their own guiding principles, why should we expect anyone else will be able to, especially those businesses and corporations who are already in the drivers seat of the ‘market economy’?

The central contradiction

A brief recap is in order: the third way is predicated on ‘free markets’, on neo-liberal economics. Neo-liberalism relies on market mechanisms (that is, the use of money) to distribute goods in a society. So does the third way.

But the third way also believes in a bigger role for government, which, of course, its guiding economic philosophy doesn’t. Its central tenet, at least according to some, is that third way policies will disperse economic and political power, but it doesn’t believe in redistribution of income to do this.

It also doesn’t believe in equality but it does believe in competition. Through competition, everyone gets their fair share, therefore everyone is equal, at least in opportunity. If some are left behind, this is their fault and not a problem because we don’t believe in equality anyway. Those who are left behind have an obligation, a duty, to retrain, move or do whatever it takes to find gainful employment.

Workers, therefore, should be flexible, willing to relocate and retrain as needed, and they should also be part of stable, long-term communities. They should work whatever hours are necessary, with minimal regulation governing the hours and conditions of work, and they should commit themselves to participating in civil society.

Finally, they should adapt to the demands of globalisation, even handing over control of their economies to non-elected and therefore unaccountable international organisations, and they should be sovereign, democratic citizens, voting online about things like reconciliation and whether to smoke in restaurants or not.

The inherent contradiction can be found in comments like this: ”The new economy actually demands more government involvement, not less. It is, however, involvement of a radically different kind: fewer government enterprises, fewer pump priming budgets, fewer corporate subsidies and fewer sheltered industries; but with more investment in education, more support for R and D, the more equitable ownership of capital, plus more emphasis on market competition.”

Let’s look at that carefully: we are going to have more government planning and intervention, the very thing the theory of free markets says we can’t have; we are going to have a more equitable ownership of capital, presumably, again, through government intervention, because left to market this just doesn’t happen; but we are also going to have more competition, that is, the free reign of market forces that has absolutely no way of causing a ‘more equitable ownership of capital’. As one set of third way reforms is introduced at the start of the paragraph, it is tacitly withdrawn at the end. Over and over again, explanations of the third way do this. They say it; they say the opposite.

In such statements we see the real weakness of the third way, it’s internal contradiction that renders the whole project moot. We need to get this through our heads. By embedding its entire logic in the primacy and unchallengeability of market economies -largely as defined by G8 governments and the corporations they support – the third way is not an alternative to the market it claims to want to ‘knock the rough edges off’, it is merely window-dressing for it. Democracy is not the ruling criteria here, it is the forces of the market economy.

Being able to buy things in an economy is not the same thing as being able to participate in a democracy. The third wayists seem to have confused consumer confidence with civic trust; our worthiness as citizens with our credit-rating.

This is the point I have speaking around during this entire article. If the third way is predicated on the dynamics of a market economy then it must accept the logic of that dynamic. The question is, therefore, do market economies allow this dispersal of power that Mr Latham cites as the ‘guiding ideology’ of the third way and do they allow the formation of cohesive communities?

They don’t, do they?

”The era of either/or debates has ended”, Mr Latham says. ”To solve poverty we must address both its economic and social dimensions; to manage a risk society we must enable people to provide for an uncertain future, drawing on both private and public resources; to maximise Australia’s economic growth we must invest more in education and research, in both the public and private sectors; to build a more cohesive society we must demand responsibility from both the corporate and welfare sectors.”

But surely the point is, if we are all obeying the logic of market capitalism, as third wayists have made abundantly clear that we should, there is no way to ‘build a more cohesive society’. All these other things about ‘responsibility from the corporate and welfare sectors’ are just rhetorical bunting flapping in the wind.

In a society where people are told to expect ‘lifelong learning’ because they are going to have to change not just jobs but careers maybe ten times in their life; where they are told they have to ‘go where the jobs are’, whether that be interstate or overseas (and where a significant percentage of the US workforce already can look forward to 10 jobs by the time they’re thirty); where they are being asked to work longer hours, and where both parents increasingly have to work the same sorts of long hours; where people are forced to farm out their kids to minders or simply not have children, then exactly where and how are these new ‘cohesive societies’ going to form?

Communities, by bloody definition, are built on the associations formed over long periods of time. So are families. And so, for that matter, is learning. You can’t force thought any more than you can conjure community and family out of snatched moments over rushed dinners or at the door of child care centres, or ungrammatical exchanges on internet discussion lists. You can’t have ‘cohesive communities’ or families or centres of learning if you work twelve hours a day, six or seven days a week and if you have to move every year or two or three or four.

This is not to say that some sort of community life can’t be built, but as Sennet puts it, although such ”communities are not empty of sociability or neighbourliness, no one in them becomes a long-term witness to another person’s life”.

This almost describes my family’s current situation to a tee: we live in the US because that’s where my wife’s work has taken us. We are friendly with our neighbours, with people at work, and with the kids and parents at our son’s school. We have them over, we go to community events, participate in school functions, do all the stuff. But it’s all surface level. In three years, we’ll be gone, and so will lots of others – already two children have left my son’s class as their parents follow work to other parts of the country, and that’s in just three months.

This sort of tentativeness and impermanence, this fugitive quality, is built into the relationships we are currently forming; it underwrites them all, rendering them shallow because who wants to invest the sort of time and effort and expense involved in forming close relationships when we all know that none of us will probably see each other again once our ‘posting’ is up?

You can’t have cohesive communities and free markets: it’s that simple. The values that are embodied in the contemporary workplace of high capitalism, the things the market values – flexibility, transportability, light attachments, independence – are the very things that undermine stable, cohesive communities.

You can talk about civil society as much as you like – and Mr Latham does – but civil society lives or dies in the couple of extra hours a day ‘market forces’ demand we all work. If you don’t get home till 8pm, or you’ve got to get up at 6am, or both, or if you have to leave the community in a few weeks or a few years, leading a strong community life is not just a luxury, it’s an impossibility. You’re doing well enough to kiss your kids goodnight and watch a bit of telly, let alone regear yourself for an intelligent conversation at the town hall about the local issue du jour or the pros and cons of some major piece of legislation. And why would you even bother when you probably don’t even know the other people at the meeting?

By carping on about civil society and the joys of participation, third wayists just serve to make us all feel that little bit more guilty about our role in life. I suggest that this is nothing to thank them for.

So the third way is a furphy: it is an attempt to dress the excesses of market capitalism in the clothes of democracy. It is a rhetoric of participation and community to disguise a world of discontinuity and short-termism. Community is not something you empower by treating everyone as a consumer and everything as a commodity. It is something that grows slowly behind walls of trust and respect built up over time, not in the serial encounters in Microsoft chatrooms and other proprietary interfaces. In fact, no-one even says interface in a real community. Until its proponents address the disconnect between the needs of the market and the needs of actual human beings, it will remain nothing but a mirage.

The worst thing about the third way, though, is its phoney promise to reinvigorate the left. In fact, all it does is turn the left into the right. It is not interested in society’s losers, the left-behinds, the inevitable second-stringers. It’s only interested in winners: it is philosophy for the already successful, and it’s your fault if you’re not one of them.

You think I’m exaggerating?

Here is a speech where Mr Latham speaks about reinvigorating the Labor Party: ”We need to find new issues, new constituencies and new ideas on which to campaign.” We need new constituencies: he said it, not me. So where do we look?

”The most powerful trend in Australian politics is the emergence of free agents – the new class of consultants, contractors, knowledge workers and entrepreneurs in the new economy.” And what do we do? ”You don’t need to be Einstein to work out what this means for the ALP. Old constituencies based on blue-collar work and organised labour are fading away. Old ways of thinking might produce a nice sense of nostalgia, but they are insufficient to win national elections and form national Labor governments.”

Just how much clearer do advocates like Mr Latham have to make it? This is a philosophy for winners, not workers.

The real end

I’ve spent a fair bit of time reading through the literature, getting together material for this article. But the fact is, I could’ve written it off the top of my head. Why? Because I’ve lived the third way for at least the last twenty years. I could almost be their pin-up boy.

In that time I’ve owned and run businesses, one with astounding success, others simply failures. I’ve done this in a number of fields, in retail and in advertising. I’ve trained and retrained over the last ten years, getting first a BA, then an MA, then a PhD. A lot of this has meant being a ‘free agent’, working from home (though the a more accurate term would be ‘self unemployed’). During all of this, I’ve done editing work, written articles, reviews and even scripts and managed to make some money in so doing. I’ve taught part-time and full-time to make a buck, and nice work it is too. I’ve also worked odd jobs when necessary and have only received unemployment benefits for a couple months during a particularly tough period.

I know some people thrive under these conditions, but so what? What about those who don’t? All the third wayists have to say is that we are pessimists, nostalgic, immoral. We are told there is no alternative; we are told to get with the program, to adapt ourselves to the needs of global capital. They literally say that. Thus, Greg Lindsay, head of the neo-liberal think tank the Centre for Independent Studies, warned in a newsletter that: ”The atavistic desire for security, the free lunch and for someone else to ease the pain of life’s responsibilities has become an epidemic. This is socialism and it goes way beyond economics. Governments, of all complexions, always ready to exercise more power, respond too readily.A generation of aging, selfish and indulged voters is seemingly incapable of taking responsibility for key decisions that have longer-term implications and turn to the state to keep them pure, rich and out of harm’s way. This is a recipe for the servile state that writers as diverse as Hayek, de Tocqueville, Belloc and Orwell have warned us about. Yes, communism is dead he said, but socialism in all its various forms may always be with us.”

I guess I just must be one of the ‘aging, selfish and indulged voters’ who want the economy to work for us and not the other way around. (Besides, I thought the whole idea was to be selfish, that by looking out for our own interests we provide the conditions for a ‘free’ society? Isn’t this the Smith/Hayek formula? I guess I must be the wrong sort of selfish.)

So I’m not just attacking the theory of it all – I’ve lived the practice. I’ve seen my friends and family live it too, the one’s I’ve been able to stay in contact with. My nephew and niece have lived in five countries in eight years, as their dad, my brother-in-law, goes where the company needs him. I’ve watched my five year old son spend those first five years in the one house, close to both sets of grandparents and an extended family that loves him unconditionally. And I’ve watched him cope with resilience to being dragged away from it all to the other side of the world to start again. We send letters, emails, and even have a website where we put up family photos so his grandparents and cousins and aunts and uncles can see them. It’s better than not having a website, but let’s not kid ourselves, right?

Over the last few months, I’ve watched him start to form close friendships and to, yes, become part of a school and a local community, and I know that he is going to have to leave it all in a couple of years and start it all over again, again, with a new set of people in another country. We might have to do this three or four more times before he leaves school. And then what does he do when he enters the workforce? What lessons has he learned about community cohesion? Or family stability for that matter.

Of course there is an upside to all of this. I’m not claiming to have a miserable life; in some ways it’s simply incredible. But there’s a downside too, and no third wayists wants to admit it. So if I sound more pessimistic than I should or intend to, then it because the third wayists are more optimistic and gung-ho than they should be.

In amongst it all, the third wayists and other neo-liberals have managed to pin onto us other lefties this image of being anti-progress, anti-comfort, anti-material, anti-the modern world. It’s a nonsense, but one that serves their purposes very well. The left, the real left, has always been for material progress, for making life easier, better, more fulfilling and they still are. Hell, they’ve even been in favour of globalisation, if that’s what you want to call it: their theme song isn’t The Internationale for nothing. If you think for a minute that I don’t want a nice house, a decent car, gadgets and remote controls, then you’ve really got the wrong idea. Who in their right mind wouldn’t want all these things?

And only a hypocrite could not recognise the truth in this passage from Raymond Williams, reflecting on the 1930s and 40s: ”At home we were glad of the Industrial Revolution, and of its consequent social and political changes. True, we lived in a very beautiful farming valley, and the valleys beyond the limestone we could all see were ugly. But there was one gift that was overriding, one gift which at any price we would take, the gift of power that is everything to men who have worked with their hands. It was slow in coming to us, in all its effects, but steam power, the petrol engine, electricity, these and their host of products in commodities and services, we took as quickly as we could get them, and were glad. I have seen all these things being used, and I have seen the things they replaced. I will not listen with any patience to any acid listing of them -you know the sneer you can get into plumbing, baby Austins, aspirin, contraceptives, canned food. But I say to these Pharisees: dirty water, an earth bucket, a four, mile walk each way to work, headaches, broken women, hunger and monotony of diet. The working people, in town and country alike, will not listen (and I support them) to any account of our society which supposes that these things are not progress: not just mechanical, external progress either, but a real service of life.”

To Williams’ list I’m happy to add that I’m glad of the advent of the new communications technologies, of the internet, the cordless phone, the DVD, as well as two minute noodles, eftpos and Wet-Ones.

But I’m not happy, or willing, to give all the credit and all the profit and my undying obedience to the great abstraction of market forces and to then organise my whole life around its whims and fancies. I’m especially not willing to listen to the sort of crap that says I can have all the material stuff and have stable families, cohesive communities, participatory democracy as if they appeared like manna from heaven rather than as the consequence of the use of real resources and the application of real labour.

I’m not willing to listen to it because I know it’s neither true nor possible. Market forces do not create the conditions for good and stable communities because they demand loose attachments and shallow roots. And as they can only distribute goods on the basis of user-pays then they cannot even provide a just distribution of the material conditions of an adequate, let alone a good, life.

And it is that simple contradiction that kills the third way dead.

Stripped of the flab of its catch-phrases and buzz words, the third way is really pretty much what we have at the moment – John Howard’s government. One can reasonably assume that if the Labor Party follows the lead of the third way then people will perceive no difference between the parties (because there isn’t any) and will opt for the original rather than the imitator, just as they did in the 2001 election.

Labor can then look forward to another term on the opposition benches, waiting, no doubt, for the next big idea.

And the left can look forward to being lumbered with another boring process of self-examination and reinvention until someone eventually plucks up the nerve to say, ‘It really is the economy, stupid. We need to control it, not worship at its altar.”

Please, just don’t call it the Fourth Way.

****

Ivana Bottini

You gotta love the Labor Party, completely lost and they don’t even know it. Guess it’s what you come to expect from a bunch of career politicians. (If that isn’t an oxymoron then it should be.)

What Labor do best is economic policy. Though you have to admit that the Liberal Party does a pretty good imitation when it comes to complete incompetence.

Way back when someone noticed that Australia had a low savings rate. So what did Labor do? Well they made savings mandatory. Call it savings for fascists. No, just call it the Superannuation levy. Why didn’t these guys just take all our earnings and give us back coupons?

Anyway Superannuation worked. Well not exactly. Australia still has a low savings rate, still runs a large current account deficit and Net Foreign Debt has spiralled out of control. In the meantime a huge new industry, complete with huge new bureaucracy, was created from nothing at the expense of the gullible voting public.

After that hugely successful and widely popular policy initiative Labor is modernising. The great big new idea is that everyone wants to get rich. The even bigger new idea is that the way to do that is to own shares. Sounds good, Margaret Thatcher would be very proud. I can’t wait to see the details.

I guess this could not have come at a better time, for the Liberal Party that is. More than two-thirds of Australian chief executives surveyed by accounting firm Ernst & Young believed the Federal Government’s tax reform agenda has failed. Failure strikes me as a pretty big word. You wouldn’t want that sort of stuff to get too much press. Thanks to the Labor Party’s wunderkind Mark Latham (wunderkind really?) and this new dog of a policy, it probably won’t.

Am I the only one who is incredulous?

Let’s consider the implications of yesterday’s explosive evidence at the children overboard cover up inquiry. This is Commander Stefan King’s opening statement:

I was the Australian Defence Force Liaison Officer in the International Division of the Department of the Prime Minister and Cabinet from 13 July 2001 to 21 January 2002. I have structured my submission on the premise that the Senate select committee wants to know what information was passed to me with respect to the photographs relating to the SIEV4 incident, what I did with that information and the context in which this occurred. I hope to save the members of this committee their valuable time by taking this approach.

The Director of Operations, Navy Commander Piers Chatterton, has said before this committee that he advised me on 11 October 2001 that the pictures that had appeared in the media showing people in the water were not related to the claims that unauthorised arrivals had thrown their children in the water on 7 October but were in fact related to the rescue of unauthorised arrivals from their sinking boat which occurred on the following day, that is, 8 October.

I confirm that his statement in this regard is true. Commander Chatterton gave me this information face to face prior to us attending the daily strategic command briefing into the progress of Operation Slipper on 11 October.

I am very familiar with Commander Chatterton’s role in briefing the Chief of Navy daily on matters of operational significance. I was therefore prepared to afford a high degree of credibility to this information having regard to his close access to both the source of operational information, his immediate access to the Chief of Navy and the fact that this was obviously an extremely topical, sensitive, national issue.

By my standards, this was in no way gossip. It was a briefing by a relevant person for a relevant purpose. Commander Chatterton also made a comment to the effect that it was evident that somewhere along the way some clarifying captions accompanying the pictures had become removed. I treated that information as plausible conjecture and afforded it credibility as such. I briefly acknowledged the information he had given me and we never discussed it again, as was appropriate. In the time I had to reflect on this information before returning to my office that morning, I gave consideration as to how I should treat it.

Before discussing that, I would firstly like to give an outline to the committee of the way in which I conducted myself within the Department of the Prime Minister and Cabinet. My job was clearly to provide a service of liaison, advice and military experience into the Defence section of the International Division.

There was a clear, spoken agreement that the liaison officer worked for PM&C and abided by their professional guidelines. These expectations included an absolute discretion about the things read, said and heard in doing business in that department, and about the general one-way flow of information; that is, into the department, not outwards. I wholeheartedly abided by those rules and hence I never gave Commander Chatterton any feedback as to what I had done with that information he had given me.

In considering the information I had received, it was very clear to me that my function was to provide this advice to my two senior officers in International Division, such that they could advise their seniors as appropriate. My logic for this was that, in my three months experience in that department, it was obvious that great care was taken to ensure that any public announcements by the Prime Minister and other ministers were consistent. As this issue was only a day or so old, I thought it could be corrected quickly.

Following the daily Strategic Command briefings, it was my practice to brief my supervisor, Senior Adviser, Defence Branch, Ms Harinder Sidhu, on anything noteworthy arising from the brief and, if warranted, to also brief the Assistant Secretary, Defence Branch, Dr Hammer, noting that he was an exceptionally busy man.

On this occasion, namely 11 October, I was able to brief the Senior Defence Adviser immediately on a few minor issues arising from the morning brief, and to pass to her the information that Commander Chatterton had given to me in respect to the pictures being erroneously reported in the media. The Senior Defence Adviser instantly agreed that this information warranted being passed to our Assistant Secretary and that she should join me in briefing him.

The Assistant Secretary was too busy to see us in the forenoon, but we made an agreement to come back later in the afternoon. Often, in such situations, information would lose value as time passed and the Senior Defence Adviser would make a decision as to whether there remained an imperative to brief the Assistant Secretary, Defence Branch, in the light of rapidly changing order of priorities and his extraordinarily large workload. On this occasion, we conferred and agreed it was still very relevant to brief Dr Hammer.

When the occasion presented that afternoon, the Senior Defence Adviser and I attended the Assistant Secretary’s office and I advised him that a fellow Navy officer, attending the Strategic Command brief that morning, had told me that the pictures in the media showing people in the water did not relate to the claims made by the Minister for Defence that unauthorised arrivals were throwing their children overboard but, in fact, related to an event the following day when those same people were being rescued by the Navy from their sinking vessel. I also said that it seemed that the captions accompanying the pictures appeared to have been removed, however I did not do so with the same gravity, noting the degree of conjecture I attributed to that information at that time.

I assessed that the Assistant Secretary acknowledged that the information was sensitive but he did not give any indication to me about what action he would take in response, or what he might want me to do. In any event, I was given no instructions to pursue confirmation of the matter.

As it was the nature of both Dr Hammer, and from my observations, the department, dealings on sensitive issue would often happen quickly at higher levels without the knowledge of the desk officers, therefore I could not conclude that nothing was being done about the issue. Indeed, as the matter was very sensitive, it did not surprise me at all that I was given no further instructions, as I believed that if the Assistant Secretary wanted to act on this advice, he would have done so at his own level in the first instance.

The subject was not raised in my presence again until, I believe, 8 November. On that date, the Senior Defence Adviser advised me that during the previous evening she had relayed to an officer of Social Policy Division the information that I had passed to her on 11 October. The Senior Defence Adviser had elected not to disclose the source of her information without the courtesy of discussing it with me first. The result of her discretion has been subsequent references to gossip being heard in a tea break. I maintain, however, that there has never been gossip at any level on my part associated with this issue. I was briefed and I briefed upwards appropriately. Thank you.

Three days after the election Howard, as promised under pressure during the campaign, asked his department head Max Moore-Wilton to “conduct a full examination of issues relating to the vessel known as SIEV 4.’ Moore-Wilton delegated the job to senior PM&C officer Jennifer Bryant. (Defence did a separate inquiry into their role in the matter.)

In her January 2002 report, she said key issues included “what efforts were made to correct any misinformation”. Since King was in PM&C to relay information from defence, he’d be the obvious person to interview. As would, of course, Dr Brendon Hammer, the head of the PM&C defence branch, and his senior defence adviser Harinder Sidhu. She did not interview King. She rang Sidhu in December to find out the date Sidhu had her chat with the social policy division officer, got no joy and left it at that. We don’t know if she contacted Hammer.

Bryant’s report said nothing about PM&C having any information about the fake overboard claim or the fake photos. She wrote only of attempts Defence made to get the then defence minister Peter Reith to correct the record.

Thus Moore-Wilton, for whatever reason, has presided over a grotesquely incomplete report which kept his department out of the frame.

On February 18, before the child overboard inquiry began, Moore-Wilton gave evidence to a Senate committee investigating the Department’s spending program. Under questioning from Labor Senator John Faulkner, he said:

Max Moore-Wilton: Senator, can I say to you again – and let me say it to you again categorically, which is why I take offence at the conclusion you have reached at this stage – that none of the information available within the Department of Defence which casts doubt on the photographs or the basic report was released outside the Department of Defence. It was not released to the Department of the Prime Minister and Cabinet. When Mr Jordana (John Howard’s personal foreign policy adviser) asked for (situation reports) the department officials were entitled to give him the task force situation reports which were relevant. They could not give him information they had no knowledge about. And this constant effort to consistently say that the department was aware that the photographs were not of 7 October is not true.

…

We now know that evidence was false. There three possible reasons:

(1) Moore-Wilton did not ask his officers what they knew, in which case he is either incompetent or did not want to know the answer,

(2) He did ask and his officers lied. In that case, his stewardship of PM&C, for whatever reason, is in tatters and he should resign, or

(3) A possibility one would be loathe to contemplate.

Moore-Wilton now has many questions to answer at the cover-up inquiry. (One relates to evidence Sidhu gave yesterday. In preparation for the Department’s evidence to the February spending inquiry – where Moore-Wilton gave his cast iron guarantee PM&C knew nothing about the fake photos before the election – Jennifer Bryant, the author of the PM&C report – asked Sidhu about King briefing. Max wasn’t told, perhaps?)

We also learnt yesterday (for transcripts of the evidence go to transcript) that in March, Dr Hammer asked Sidhu and King to come to his home on the weekend for a meeting on the October briefing. But King was in Sydney, and the trio met instead at the Kurrajong Hotel on March 11. At that time, King thought he’d be contributing to a PM&C submission to the Senate inquiry (Later that very day, Cabinet decided that no department would make a submission.)

In crucial evidence yesterday afternoon, Sidhu said that when Hammer suggested the meeting, “I gained the impression, and I cannot be sure, that this had been suggested to Dr Hammer by someone else. I just gained the impression that it was not actually his idea…It was almost as if: ‘It has been suggested to me that it would be a good idea if we got together to refresh our memories’; it was in that vein.”

If Sidhu’s impression is correct, it would have to have been suggested by someone more senior, and there aren’t many people in PM&C more senior than Hammer, who will give evidence when the inquiry resumes on May 22.

Here’s extracts from King’s evidence of what happened at the Kurrajong:

Senator Cook: How was the discussion led? Who went first? Did you offer up your views or did someone take charge of the discussion? Did Dr Hammer say, for example, ‘Let’s just go through this?’

King: Dr Hammer always takes charge of the discussion…

Cook: So, how was it put to you – the purpose for being there?

King: It is a reconstruction that I make along the lines that: ‘It is a good opportunity for us to get together. It has been a while since we have seen each other, and this is just for us to put forward our recollections of the briefing and associated events such that we all understand where each other’s recollections lie.’ And, from there, the invitation was, ‘I will ask you a question as if I were the committee, and then you could answer it’ …

Cook: You were having put to you by Dr Hammer questions that it was anticipated may be questions this committee would ask you?

King: We got to one question, yes.

Cook: You got to one question? What was that question?

King: I truly do not recollect; I dismissed it…

Cook: So why was there only one question? If this was a ‘practice session’, why was there only one question? What caused it to stop at that point?

King: Because I said that I did not want to provide a detailed answer in that way and would speak in general terms…

King: Was there any further effort to encourage you to say what, broadly, you thought?

King: Yes, there were further broad questions … It was expressed to me that it was an opportunity for me to gain some experience in receiving a question and answering it … I would describe it as an opportunity for some gathering of information that perhaps was of interest to Dr Hammer just to see how we collectively review those collections. It was not for my benefit, I do not believe, but I am not saying that as a criticism.

…

King said he was concerned by the request for a meeting. “The concerns were, firstly, that it was slightly unusual to have a meeting about a sensitive issue in an area outside a public office, largely for the reason that other people may construe that in a particular way. The second concern was just a sense that you often felt overwhelmed by Dr Hammer’s own version of events because he is a very influential man and in an influential position and he is paid to be right and sometimes it is hard to be heard … Dr Hammer did not contribute too much of his recollections. He made some broad comments about, ‘That is not the form of words that I recall’ …

Cook: He did not put to you an alternative version?

King: There was a single instance when he said, and I can remember the words fairly clearly, ‘Another or a better way to describe that might be,’ and I think that was for the purposes of definition.

…

There the matter rested as between PM&C and King. In January, King went back to Defence. Then, as the Senate committee got rolling, he wrote his statement and told the Defence task force on the scandal about the Kurrajong meeting. “My preliminary discussions with the task force were that there was a sequence of events that included that contacts with me to meet at certain areas may be construed by others as unusual behaviour. I equally said that I never felt that it was Dr Hammer’s intention to influence me but that, as a naval officer appearing before this committee, there may be an outcome either in media reporting or in any other reporting where that perception may be given to that sequence of events.”

Last Sunday the cover-up’s intricate spider’s web began to unravel very quickly. After Defence’s caning, the focus was moving squarely to PM&C and some of those who have skulked in the dark as Defence burned. We are now at the pinnacle of the public service, the Department of Prime Minister and Cabinet. After the defence department’s disgrace, it is now crystal clear that traditional public service culture – we are servants of the people not the government, we are apolitical, we give honest advice, we tell politicians the facts – has virtually collapsed under pressure from government and hand-picked department heads on short-term contracts and performance pay.

Last Sunday the Defence Department told defence minister Robert Hill, in writing (they’re learning) that an allegation of attempted witness tampering could emerge at the inquiry. Suggestions had been made that a defence officer “omit relevant facts from his evidence”. The allegation was “very sensitive”.

On May 1, after the PM&C heirarchy passed on the warning, Hammer sent a hand-delivered letter to King. The ultimate irony for Hammer,and perhaps for others as yet unknown, is that King had not intended to raise the Kurrajong meeting in his evidence. That was why he did not include it in his statement. Kurrajong “basically was not an issue until it turned up in that letter,” he said.

King agreed the letter was “pretty heavy”. As a man with due respect for his superiors, he noted that Hammer had copied the latter to Moore-Wilton, Australia’s most senior public servant. He noted the belaboured exhortations to tell the truth about the November briefing, and that Hammer “never in any way” tried to influence his evidence. That, thought, King, was “unnecessary’ – of course he’d tell the truth. Only now, he’d also tell about Kurrajong.

Senator Faulkner: You receive this very heavy letter the day before you give evidence to this inquiry. Isn’t that in itself an attempt to influence?

King: That is possibly for others to determine.

Faulkner: What do you think?

King: I was uncomfortable receiving the letter. It surprised me; it caught me off guard.

…

And then, only then – after King made Kurrajong public, NOT when PM&C found out about the problem – did Moore-Wilton announce that he’d conduct an urgent inquiry to be completed Monday. He had to – an attempt to influence a witness’s evidence is a contempt of the Senate, which the Senate can punish with 6 months jail or a $5,000 fine. Worse, it is a criminal offence carrying the same penalty.

It is nonsensical that Moore-Wilton conduct the inquiry. There are thunder clouds of suspicion over his department and his leadership of it. He will have to take the stand himself to explain his false evidence. The inquiry must be undertaken by someone independent or it is, quite simply, farce.

By the way, after that meeting on March 11, indeed “very recently”, Dr Hammer was transferred out of PM&C. We don’t know exactly when, but as of yesterday at the latest, he is head of the America’s branch of Department of Foreign Affairs and Trade. It’s a much sought after post, as it can lead to a posting in Washington.

Who did Hammer tell about King’s shock revelation on October 11? What inquiries did he make? Did he inform his superiors, and if so, did they inform the Prime Minister?

If he did nothing, he will have to resign or be sacked. A much more junior PM&C officer resigned when she forgot to tell the Prime Minister’s office about a relevant (although not as explosive) piece of information during the travel rorts affair in Howard’s first term.

When did Moore-Wilton find out about the October 11 briefing and the cup of coffee at the Kurrajong. Did he know before Hammer’s transfer?

Thus far in the children overboard inquiry, despite the stench and the lies and the coverups, not one head has rolled. People have been looking after each other, locked in mutual embraces of self-interest and self-protection. But that embrace is loosening, and someone’s head will have to be chopped off soon. Will someone take the fall to stop the whole truth coming out?

The Senate committee is still yet to decide whether to subpoena Peter Reith. It is now certain that he will be called, unless the truth, all of it, comes out before that decision has to be made.

***

POSTSCRIPT: Today, the PM said something about the children overboard affair on Melbourne radio 3AW. Neil Mitchell asked: “The Chair of your Immigration Advisory Group, John Hodges, I noticed went to Papua New Guinea to apologise to the boat people accused of dumping their children overboard. Would you apologise as well?”

Howard: Well I apologise for misstatements that I have made about people, I apologise for mistakes I have personally made. As you know Neil the statements I originally made about SIEV 4 were based on advice I had at the time. That’s why I made them. I didn’t make them maliciously or carelessly and that remains my position.”

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.

***

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

***

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.

***

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.

***

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.

***

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.)

***

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

After my two part mega entry on the terrorism legislation last week, several readers complained that they couldn’t understand what I was talking about. I’d made a classic mistake – put my lawyer’s hat on and written in legal discourse, a code impenetrable to non-lawyers.

This problem afflicts many such debates of enormous importance to the character of our democracy and the rights of our citizens against government control, but the debate’s lack of accessibility often means the damage is done before many people realise what they’ve lost and what the government has gained.

Sorry for that. I’ve made another attempt, set out below. After that, responses to Coming soon: Too many terrorists from Michael Murray and David Davis.

Shaking hands with big brother

Pick the difference between the following criminal acts.

(1) Martin Bryant massacres 35 people at Port Arthur. A bloke discovers his girlfriend has slept with a mate and torches his car. Football friends bash supporters of the rival team. Drunken mates end the night throwing rocks at shop windows.

(2) A woman kills her newborn child because “God told me I’d given birth to the devil”. A man thinks all Arabs are terrorists, and kills his neighbour “as my bit to save civilisation”. Aboriginal youths vandalise the new Reconciliation Walk in Canberra because “it’s a symbol of our oppression”. Protesters at the Woomera detention centre pull down a fence to get closer to asylum seekers.

In (1), each offender gets the full protection of the criminal law and maximum penalties vary according to the nature of the crime. In (2), each has committed “a terrorist act” and can be detained incommunicado for up to six days by ASIO before arrest and people who ASIO believes can help them in their inquiries get the same treatment. All offenders face life in jail. If any belong to an organisation, the government can, in many cases, ban it even before a charge is laid or proved.

The extremity of the difference is courtesy of the Security Legislation Amendment (Terrorism) bill to be considered by PArliament soon. For the first time, the “motive” for the crime, rather than the offender’s action, is crucial. If someone causes serious harm to a person or serious damage to property to advance “a political, religious or ideological cause” he is guilty of a “terrorist act”, and the rulebook goes out the window.

Why has terrorism been so broadly defined? In a statement on December 18, Attorney-General Daryl Williams said “a terrorist act” would be “an offence under the UN and other international counter-terrorism instruments, or an act committed for a political, religious or ideological purpose designed to intimidate the public with regard to its security and intended to cause serious damage to persons, property or infrastructure”. In other words, what most of us would agree is terrorism.

But the qualifier has gone. Try as it might, the Senate committee examining the bill cannot get the government to say why, although it admits that many protests, including picketing, are now drawn into the terrorism net. Its response: people should trust the police not to prosecute and the government to be circumspect. Yet the Attorney-General’s department said that, in practice, the police would likely charge an alleged offender as a terrorist or a mere criminal depending on which charge would be easier to prove.

The result is sinister laws giving this and future governments carte blanche to persecute individuals and organisation opposing its political interests. The Attorney-General can ban an organisation if he believes it “has endangered or is likely to endanger the security or integrity” of Australia “or another country”. That means he can ban free Tibet movements (endangering China), free West Papua movements (endangering Indonesia), and could have banned free East Timor groups and the ANC. Anyone who remains a member of or donates to or “assists” a banned organisation is guilty of a crime, penalty 25 years jail.

The potential of all this is summed up by Melbourne QC Julian Burnside, a member of Liberty Victoria. Agreeing with evidence from the Law Council that the assault on Parliament House by renegade protesters during a peaceful demonstration several years ago would now be “a terrorist act”, he said:

“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?”

On the power to ban organisations, Burnside said: “Proscribing an organisation is tantamount to proscribing modes of thought – because what makes an organisation, generally speaking, is a community of ideas or beliefs. (This is) nothing more than an assault on freedom of thought.”

Add the fact that in evidence to the committee the government has set out no inadequacy in the present criminal law to deal with terrorist acts except in planning and training, and it is impossible to argue that the government has no ulterior motive for this extraordinary assault on Australia’s democratic traditions and freedoms. I wonder what that might be.

***

Michael A. Murray in Ettalong Beach, NSW

I just read your article on terrorism legislation. Don’t panic. I was glad they are considering dramatic laws; we’ll need them. When the US Embassy in the MLC building is detonated, causing the collapse of a lot of the building, these laws will take on a life of their own.

***

David Davis in Switzerland

I have just read Too many terrorists. It’s all on the public record but it needs to be shown to us as you have because few of us trawl through the records. You’ve shown though that a little trawling can reveal a lot.

There would be only a tiny minority of Australians who would not support tough action being taken against terrorists. Most Australians would support legislation making it easier to prevent and prosecute terrorism. That’s the generalities of it and few would disagree.

But there’s a problem. Australians can be justifiably be proud to live in a society of laws. The rule of law is sacrosanct. The thing about laws though is that they are very specific and there are strict rules on how they are to be interpreted. This is not a general thing, it is based on the principles of statutory interpretation. The problem is that if a bad law is written, it must be followed.

This may sound extremely basic but it is worth remembering how laws are interpreted in the courts. We should stop bad laws from being introduced or seek to overturn them if they are introduced. We should be particularly wary of laws which may impede our freedom to dissent. That is one of the most precious things we have.

Again we face the challenge of complexity. If you protest against draconian anti-terrorist laws you will be immediately portrayed in simplistic terms as being one who is soft on terrorism. It’s not that simple though.

I’m deeply concerned and suspicious. The responses from the government side were inadequate and too general. There needs to be more specific responses regarding specific sections of the legislation. History has taught us that defining groups as being against the state is loaded with risk. If they are going to go down that path, they’d better be very, very careful. Everyone will be watching.

The medical insurance crisis, like the ongoing public liability insurance crisis, raises big questions about where risk should fall, equity, and cost.

Personally, I favour the New Zealand accident compensation scheme, where employers, workers and car owners pay a small levy to the government’s Accident Compensation Corporation (the government puts in for kids and those who don’t work). You cannot sue for personal injury and it’s a no fault scheme – if you have an accident the ACC pays you periodic lump sums or weekly amounts to cover your lost pay and directs you to rehabilitation and treatment.

It’s your “luck” whether your injury is caused by accident or negligence, but the result is the same for you. NZ takes the big lump sums, the enormous administration costs, the legal bills and the insurance company tricks – and the profits lawyers and insurers cream off – out of the equation, and focuses on looking after the needs of the injured. It costs less than our system, and the poor and ignorant aren’t left out.

How about the same idea for medicos? When something goes wrong – by act of God or negligence – set lump sums, periodic payments and rehabilitation facilities get to work to help the victim. No more excessive administration costs, lawyers, insurance companies, court time. Like the NZ scheme, a provision that where there’s gross negligence or the like, a patient can still sue. Doctors, private hospitals and nursing homes would pay premiums to the government fund.

The taxpayer is already having to throw money at the wreckage of insurance companies – with more certain to come – so isn’t it time we at least debated a radical long-term solution?

Dell Horey has read Webdiary almost from inception, but is a busy woman who doesn’t write much. After attending a workshop on the medical insurance crisis last week, just before the big summit, she wrote: “There are lots of great opportunities but I afraid I don’t have any faith in Howard’s vision in this area – he is still a small time commercial lawyer at heart. It seems that they have decided to just blame the victim – mmmm, sounds familiar.” Then today, a piece from Dell, with the warning that she’s “not a natural writer” .

Thanks, Dell. It’s a strong opener to what I hope might be an ongoing policy and principle debate on Webdiary.

Culture of blame or culture of denial: Why does medical indemnity insurance have anything to do with health care?

By Dell Horey

In the taxi on the way to the airport from a workshop on medical litigation, the driver told me the answer to the medical indemnity problem was simple – they should just stop people from being able to sue doctors.

It seems that a lot of people, including Assistant Treasurer Senator Helen Coonan, may agree given the number of times that I have heard the culture of blame trotted out as the diagnosis of the cause of the current crisis in medical indemnity insurance. But like a lot of simple reasons, and even simpler solutions, it doesn’t add up when you look more closely at the issue.

The crisis in medical indemnity insurance isn’t a problem that has crept up on us. The issue was the subject of a review by the Federal Government in the early 1990s. The final report of the professional indemnity review (PIR) was published in November 1995, just months before the Howard government got into office. The review made 169 recommendations covering areas such as reducing the incidence of medical error, better data collection, and improved risk management.

What is the current crisis in medical insurance? Professor Marcia Neave from the Law Reform Commission identified the following issues at the workshop:

a) increase in premiums for doctors

b) increase in unfunded liabilities of Medical Defence Organisations

c) problems experienced by people after an adverse medical outcome (the term used when something goes wrong that shouldn’t have), including the cost of health services and ongoing care and costs related to legal representation.

The complexity of this issue is enormous. To get some idea, consider the range of stakeholders in Australia: Nine governments (and their departments of health, attorneys general, justice, disability and treasury), the Medical Defence Organisations (MDOs), doctors who practice, lawyers and health consumers (or users of health services). (Also affected are other health professionals who need indemnity insurance to practice, such as midwives who work outside hospital services. These midwives have been unable to find an insurer: The Federal Government says that nursing is a States responsibility.)

There are further difficulties. Data is so poor that it is not known how many cases are before the MDOs. We do know however that the current situation is inequitable, with some people who are damaged receiving huge payouts (and lots of media attention) while the majority get little or nothing.

Capping payouts may prevent some people getting huge sums, but it does nothing for those who choose, for whatever reason, not to proceed with litigation. Long term care for the disabled is very poor throughout Australia (though there were good reports of the motor vehicle victim scheme in Tasmania) and if you need significant care, a huge payout is one way of providing for it. But it is very clumsy way to provide for continuing health services, as it is difficult to assess just how long a life-time will be. Many of the large payouts have been awarded by juries who have a large degree of sympathy to the on-going needs of the damaged party and who have found their case compelling.

There are problems with big lump sum payouts in other ways too – few people have skills in managing large amounts of money to provide life long income, and sometimes the health services that are needed are just not there. Scheduled payments, where the money is provided at regular intervals has been one strategy employed to get big money to last.

The big payouts are also difficult for the MDOs, who have a history of poor management although some appear to have improved recently. This has been a particular problem in recent time with new regulatory requirements for MDOs to have sufficient funds to cover potential litigation claims. Coupled with the general increase in re-insurance costs worldwide this hasn’t been an easy time for them.

But if we accept the taxi-drivers solution and just stop people from being able to undertake litigation would that solve anything? Well it certainly wouldn’t stop mistakes, including avoidable mistakes, occurring in hospital. The Quality in Australian Health Care Study in 1995 (a product of the PIR) found that one in six (16.6%) hospital admissions were due to an adverse event (defined as an unintended injury or complication) and that for over 8% of admissions the adverse event was highly preventable. Australian medical care had a culture of denial for a long time, and what was being denied (and still is by some parties) is that all mistakes are unavoidable, and you just have to accept that things sometimes go wrong and get on with things.

Many of the things that go wrong in hospitals are system problems, but until there is an incentive to address them they are likely to continue. People are given the wrong drugs, have the wrong limb amputated, the wrong hip replaced, the wrong diagnosis, the wrong treatment prescribed. Some doctors repeatedly make the same mistakes unless something or someone stops them.

We just need to look at the Bristol Hospital case where cardiologists failed to meet acceptable surgical standards in paediatric cases. It took a whistleblower, a cover-up and a number of inquiries to sort all that out, and along the way babies died who may have survived if they had been operated on elsewhere.

Litigation is only initiated to get compensation. Until the recent privacy legislation which gives people the right to access their medical records, many people initiated proceedings just to get access to them, so they could find out what went wrong and why. This was particularly an issue for private patients, the group mostly likely to sue.

Solutions

One proposed solution at the workshop was to remove long-term care costs from any payout and instead guarantee that people who are injured receive appropriate services. Long term care makes up about one quarter of all damages, and 25% of medical indemnity is used for long term care costs.

Workshop participants were told that the Tasmanian scheme for motor vehicle injuries may provide a good model. A small proportion of car insurance is used to fund the scheme and anyone who is injured is entitled to use them. Apparently services are flexible, designed to meet individual need, well received and adequately funded.

The proposal was to amalgamate medical injury with motor accidents so that there would be a critical mass. People who have suffered serious injury makes up about 70% of people with high care needs, whereas medical injury contributes one to two percent. A system which looks at meeting the needs of all would provide greater social benefit and be more cost effective in terms of medical injury.

In the end, what we want is a health system in which people have confidence that their needs will be met, especially when something goes wrong, and where health professionals feel confident to practice, to reflect on mistakes and work to improve care.

The solution to the crisis in medical insurance lies in improving systems to minimise error, addressing problems in an appropriate and timely way, managing risk well and addressing the short-comings in disability services.

Doctors should not be afraid to admit to error because of threats to their livelihood, but neither should they be sheltered from accountability for their mistakes. If people’s legal rights to seek recompense for harm done to them are to be curtailed, there has to be some guarantee that the burden of their care does not fall on them alone.

If the federal Treasurer can get $100,000 compensation for an incorrect allegation against him, what should people be entitled to when their daily lives are affected by long-term health problems that need never have occurred?

***

Notes:

Wilson RMcL, Runciman WB, Gibberd RW, et al. The Quality in Australian Health Care Study. Med J Aust 1995; 163: 458-471.

Follow-up to Quality in Australian Health Care Study (QAHCS), Wilson RMcL et al An analysis to the causes of adverse events from the QAHCS Med J Aust 1999; 170, 411-415 can be found at: medicaljournal

See also Barraclough B, Safety and quality in Australian healthcare: making progress. Med J Aust 2001; 174: 616-617, medicaljournal

See also Blomberd C The Professional Indemnity Review: what did it accomplish? Med J Aust 1996; 164: 502. medicaljournal

After my two part mega entry on the terrorism legislation last week, several readers complained that they couldn’t understand what I was talking about. I’d made a classic mistake – put my lawyer’s hat on and written in legal discourse, a code impenetrable to non-lawyers.

This problem afflicts many such debates of enormous importance to the character of our democracy and the rights of our citizens against government control, but the debate’s lack of accessibility often means the damage is done before many people realise what they’ve lost and what the government has gained.

Sorry for that. I’ve made another attempt, set out below. After that, responses to Coming soon: Too many terrorists from Michael Murray and David Davis.

Shaking hands with big brother

Pick the difference between the following criminal acts.

(1) Martin Bryant massacres 35 people at Port Arthur. A bloke discovers his girlfriend has slept with a mate and torches his car. Football friends bash supporters of the rival team. Drunken mates end the night throwing rocks at shop windows.

(2) A woman kills her newborn child because “God told me I’d given birth to the devil”. A man thinks all Arabs are terrorists, and kills his neighbour “as my bit to save civilisation”. Aboriginal youths vandalise the new Reconciliation Walk in Canberra because “it’s a symbol of our oppression”. Protesters at the Woomera detention centre pull down a fence to get closer to asylum seekers.

In (1), each offender gets the full protection of the criminal law and maximum penalties vary according to the nature of the crime. In (2), each has committed “a terrorist act” and can be detained incommunicado for up to six days by ASIO before arrest and people who ASIO believes can help them in their inquiries get the same treatment. All offenders face life in jail. If any belong to an organisation, the government can, in many cases, ban it even before a charge is laid or proved.

The extremity of the difference is courtesy of the Security Legislation Amendment (Terrorism) bill to be considered by PArliament soon. For the first time, the “motive” for the crime, rather than the offender’s action, is crucial. If someone causes serious harm to a person or serious damage to property to advance “a political, religious or ideological cause” he is guilty of a “terrorist act”, and the rulebook goes out the window.

Why has terrorism been so broadly defined? In a statement on December 18, Attorney-General Daryl Williams said “a terrorist act” would be “an offence under the UN and other international counter-terrorism instruments, or an act committed for a political, religious or ideological purpose designed to intimidate the public with regard to its security and intended to cause serious damage to persons, property or infrastructure”. In other words, what most of us would agree is terrorism.

But the qualifier has gone. Try as it might, the Senate committee examining the bill cannot get the government to say why, although it admits that many protests, including picketing, are now drawn into the terrorism net. Its response: people should trust the police not to prosecute and the government to be circumspect. Yet the Attorney-General’s department said that, in practice, the police would likely charge an alleged offender as a terrorist or a mere criminal depending on which charge would be easier to prove.

The result is sinister laws giving this and future governments carte blanche to persecute individuals and organisation opposing its political interests. The Attorney-General can ban an organisation if he believes it “has endangered or is likely to endanger the security or integrity” of Australia “or another country”. That means he can ban free Tibet movements (endangering China), free West Papua movements (endangering Indonesia), and could have banned free East Timor groups and the ANC. Anyone who remains a member of or donates to or “assists” a banned organisation is guilty of a crime, penalty 25 years jail.

The potential of all this is summed up by Melbourne QC Julian Burnside, a member of Liberty Victoria. Agreeing with evidence from the Law Council that the assault on Parliament House by renegade protesters during a peaceful demonstration several years ago would now be “a terrorist act”, he said:

“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?”

On the power to ban organisations, Burnside said: “Proscribing an organisation is tantamount to proscribing modes of thought – because what makes an organisation, generally speaking, is a community of ideas or beliefs. (This is) nothing more than an assault on freedom of thought.”

Add the fact that in evidence to the committee the government has set out no inadequacy in the present criminal law to deal with terrorist acts except in planning and training, and it is impossible to argue that the government has no ulterior motive for this extraordinary assault on Australia’s democratic traditions and freedoms. I wonder what that might be.

***

Michael A. Murray in Ettalong Beach, NSW

I just read your article on terrorism legislation. Don’t panic. I was glad they are considering dramatic laws; we’ll need them. When the US Embassy in the MLC building is detonated, causing the collapse of a lot of the building, these laws will take on a life of their own.

***

David Davis in Switzerland

I have just read Too many terrorists. It’s all on the public record but it needs to be shown to us as you have because few of us trawl through the records. You’ve shown though that a little trawling can reveal a lot.

There would be only a tiny minority of Australians who would not support tough action being taken against terrorists. Most Australians would support legislation making it easier to prevent and prosecute terrorism. That’s the generalities of it and few would disagree.

But there’s a problem. Australians can be justifiably be proud to live in a society of laws. The rule of law is sacrosanct. The thing about laws though is that they are very specific and there are strict rules on how they are to be interpreted. This is not a general thing, it is based on the principles of statutory interpretation. The problem is that if a bad law is written, it must be followed.

This may sound extremely basic but it is worth remembering how laws are interpreted in the courts. We should stop bad laws from being introduced or seek to overturn them if they are introduced. We should be particularly wary of laws which may impede our freedom to dissent. That is one of the most precious things we have.

Again we face the challenge of complexity. If you protest against draconian anti-terrorist laws you will be immediately portrayed in simplistic terms as being one who is soft on terrorism. It’s not that simple though.

I’m deeply concerned and suspicious. The responses from the government side were inadequate and too general. There needs to be more specific responses regarding specific sections of the legislation. History has taught us that defining groups as being against the state is loaded with risk. If they are going to go down that path, they’d better be very, very careful. Everyone will be watching.