Today, a piece from me on the Ruddock-v-Judges test match, passionate reaction from Steve Apps, Malcolm Martin and Rod Olsen to my opinion piece on SIEV-X in today’s Herald and Robert Lawton and Tim Dunlop on the marvellous John Wojdylo.
But first, details of the agreement between Liberal dissidents and the Cabinet on the terrorism bills. Great effort by the Libs, except that they didn’t completely knock off proscription. They did get a tightening of the definition of `a terrorist act’ and a reversal of the reversal of the onus of proof. On proscription, the Attorney General can still ban political organisations, but subject to disallowance by the House of Representatives or the Senate. And if anyone is prosecuted for belonging to or assisting the banned group, the government must prove that it is a terrorist organisation, that the defendant knew it, and that the group was engaging in terrorist activities.
In line with his usual failure to articulate anything, Daryl Williams called a press conference to say he’d got agreement but that he wouldn’t discuss any details, he’d put out a press release in five minutes, and bye-bye. The sooner the Government grants him his wish to become a judge the better. Perhaps he might atone for his woeful performance as Attorney-General on the bench.
The devil has proved to be in the detail on this issue, so we await the actual amendments with interest. Let’s hope Labor has the guts to persist in knocking out proscription altogether. More than one Liberal would be tempted to vote with Labor on this.
All in all, this is an good result for our democracy and a credit to the Liberals brave enough to take on the government on such an emotive issue. There’s bound to be a little more toing-and- froing when the package is debated in the Senate this month.
The next big hit is due next Tuesday when the Parliamentary ASIO committee will pass judgement on the ASIO bill. Damien Lawson, a Victorian lawyer and lobbyist against the excesses of the terrorism package, sends this piece on the government’s plan to let ASIO detain and interrogate people not even suspected of terrorism without access to their families or a lawyer.
***
Tian Chua slams Australian minister for backing ISA
(from malaysiakini.com, a leading Malaysian newswebsite)
Leong Kar Yen
6:27pm Mon Jun 3rd, 2002
An Internal Security Act detainee today ticked off Australian defence minister, Senator Robert Hill, for approving the use of the controversial Malaysian law which allows detention without trial.
“It is regrettable that Senator Hill had not only failed to raise Australia’s concern for the deterioration of democratic rights in Malaysia, but he had unwittingly become the propaganda mouthpiece for the Malaysian government,” ISA detainee Tian Chua said in a statement made available to malaysiakini today.
“I am even more astonished to hear from Senator Hill that the Australian government too is considering a law to enable the authorities to detain terrorist suspects without trial,” he added.
Last Thursday, Hill raised eyebrows among Malaysian civil society groups when during a visit to the country, he said that “extraordinary responses” were needed to deal with “those not prepared to accept the norms of reasonable behaviour”.
“I’ve argued that you may take pre-emptive measures and administrative actions that don’t curb civil liberties, but should endeavour to ensure that you don’t go further than is necessary,” Hill had said.
Chua, who is currently serving a two-year ISA detention, said the Malaysian experience shows that such measures could easily become an instrument of state coercion. “A law which provides the arbitrary power to deny the rights of individuals to due process will inevitably invite the emergence of authoritarianism,” said Chua, who had completed his university education in Australia.
In April 2001, Tian and nine other Keadilan and reformasi activists were arrested under the ISA for alleged involvement in a plot to overthrow the government. While four have been released, Chua who is Keadilan vice-president, party leaders Mohd Ezam Mohd Noor, Lokman Nor Adam, Dr Badrul Amin Bahron, Saari Sungib and malaysiakini columnist-cum-film maker Hishamddin Rais remain in detention.
Chua added that authoritarian regimes have been the root cause of poverty, instability and violence. “Therefore, efforts to eradicate violence must go hand in hand with the promotion of democratisation in the region,” he said.
He also questioned the authorities’ lack of transparency in exposing allegations behind those arrested. “Among those detained at present are many members of legal political entities that are struggling through peaceful means. Although some ISA detainees have been accused of being Islamic militants, the government provides no evidence to substantiate the alleged terrorist links,” Chua added.
In addition to the reformasi leaders, the police has also embarked on a crackdown against 62 suspected Islamic militants, both before and after the Sept 11 terrorists attack on United States. Among those detained include several PAS activists including Nik Adli, son of PAS spiritual advisor Nik Aziz Nik Mat.
***
Daryl Williams press release: Counter-terrorism package
The Government has finalised its amendments to the counter-terrorism package of legislation following the report of the Senate Legal and Constitutional Legislation Committee. This very important legislation will provide our security and law enforcement agencies with the tools they need to combat terrorism.
The horrifying events in the United States last September drew Australia, and the rest of the world, into a new and largely unpredictable security environment. It is crucial that we are able to identify, prevent and, if necessary, punish those who would harm, or threaten to harm, to our families, our friends and our communities.
In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system. We think the legislation does just that.
It is important that we get this legislation right. The amendments reflect extensive and considered deliberation of the legislation by the Senate Legal and Constitutional Affairs Committee and discussions with Coalition members and senators.
The counter-terrorism package considered by the Committee is comprised of the Security Legislation Amendment (Terrorism) Bill 2002; Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002; Suppression of the Financing of Terrorism Bill 2002; Border Security Legislation Amendment Bill 2002; and the Telecommunications Interception Legislation Amendment Bill 2002. On the whole the Committee’s recommendations are reflected in the proposed Government amendments.
The Government’s amendments include:
* Amending the definition of `terrorist act’ to include the additional element of intended intimidation or coercion;
* Removing the limited reversal of the onus of proof, which requires the defendant to disprove fault, from the offences of possessing a `thing’ connected with a terrorist act and collecting or making a document connected with a terrorist act, and the maximum penalty for these offences being lowered to 15 years’ imprisonment;
* Replacing the reverse onus terrorist training offence with three different levels of offence carrying different fault elements of negligence, recklessness and knowledge and carrying graduated penalties from 10 to 25 years’ imprisonment;
* Replacing the existing `proscribed organisation’ provisions with a new definition of `terrorist organisation’ as:
– an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act; or
– an organisation that the Security Council of the United Nations has decided is an international terrorist organisation, and a regulation has been made listing an organisation as such; or
– an organisation that is listed by regulation as a terrorist organisation, based on evidence of the organisation’s terrorist activities.
An organisation would only be treated as a terrorist organisation for the purpose of the latter two limbs of the definition once the parliamentary disallowance period has passed. Regulations made under these two limbs will sunset two years after they are made unless the regulations are remade.
* Adding a new section detailing offences relating to terrorist organisations, carrying graduated penalties for negligence, recklessness and knowledge. These offences cover activities including directing the activities of terrorist organisations, recruiting for them, training with them or supporting their activities. In the case of membership of an organisation, only the `knowledge’ offence would be available. Further, a person can only be found guilty of being a member of a terrorist organisation if the prosecution first proves in a court that the organisation is a terrorist organisation in accordance with the first limb of the definition (see above). The prosecution will not be able to rely on a regulation made under either the second or third limbs of the definition in prosecuting people alleged only to be members of a terrorist organisation. The membership offence will also be subject to the defence that the person took all reasonable steps to cease to be a member as soon as practicable after the person knew the organisation was a terrorist organisation;
* Providing for a review of the terrorism package of legislation by the Parliamentary Joint Committee on ASIO after three years;
* Amending the treason offence to include a defence that a person’s conduct relates to the provision of humanitarian aid;
* Ensuring that it is clear that the fault element of intention in the financing of terrorism offence is fully explained as applying to the provision or collection of funds;
* Provide for regulations setting out procedures for the freezing of assets and for notifying those whose assets are frozen; and
* Excluding the financing of terrorism offences from the definition of “political offence” in the Extradition Act 1988 and, by reference, the Mutual Assistance in Criminal Matters Act 1987 to implement Article 14 of the International Convention for the Suppression of the Financing of Terrorism.
The Government will not be adopting the Senate Committee’s recommendations in relation to the Telecommunications (Interception) Act 1979 provisions but will review these issues as part of the ongoing review of that act by the Interception Consultative Committee.
The current Bill clarifies the existing law in relation to access to stored data by means other than an interception warrant. Contrary to suggestions by some critics, the proposed change does not allow law enforcement agencies to read e-mails and SMS messages at whim. Rather, it recognises that an interception warrant is not appropriate for a situation in which no interception is necessary and that other lawful means, such as a search warrant would be more useful.
We have emerged from this consultative process with a strong and effective package of legislation. I thank the members of the Senate Committee and the Government for their contribution to that process.
We will be discussing these amendments with the Opposition and I look forward to their support of these Bills, which strengthen Australia’s ability to deter and protect against terrorism. It is expected that the counter-terrorism package will be debated by the Senate during this sitting period.
***
Innocent, your honour
Don’t ya just love it. Attorney-General Daryl Williams abdicates his traditional duty to defend the judiciary from unwarranted or misconceived political attacks and tells the judges to defend themselves instead . They do, and Philip Ruddock tells them to shut up or resign and enter politics.
This ultra-tawdry politics reminds me of a disgusting incident during the debate over whether the Government should overturn the Northern Territory’s mandatory sentencing laws for children. UN Secretary General Kofi Annan was visiting for talks and Howard asked him not to raise the issue at their meeting. He complied, only to see Howard tell the public that because Annan didn’t raise the matter he was happy with the government’s refusal to act!
At least the federal court’s decision to hold Ruddock accountable for his incendiary allegations against the judges brought Williams out of his coward’s castle. He confessed yesterday that he had privately counselled Ministers not to wantonly attack judges, and thus the judicial system, an institution just as important to our democracy as Parliament.
“I’ve regularly spoken to colleagues and pointed out they shouldn’t be attacking judges personally,” he said.
At last, the truth. All that Williams’ many speeches defending reneging on the duty that used to make an Attorney-General special – his overriding duty to protect the independence and perceived independence of the judiciary and the importance of the rule of law – amounted to this: I’m not game to chastise my colleagues in public so the public better understands the issues and my colleagues think twice before repeating their attacks. I’ll do it in private instead; for all the good that evidently did.
Ruddock’s behaviour has been red hot. In the lead-up to the first big test of the legality of his pre-election border protection laws he’s laid on the vitriol, laying the groundwork for bitter public reaction if the case goes against him. He’s accused judges of “finding ways and means to deal them back into the (immigration) review game”, of pretending to be law-makers, of acting like politicians, and that he’d change the law again if they ruled against him.
The fracas is over the new laws’ purported abolition of appeals on questions of law to the Courts from decisions of the Refugee Review Tribunal. Labor fought this move for years, on principle, before caving in on the eve of the election.
Labor’s trashed principle is a fundamental one. With no review rights, the government can corrupt decision making by tribunal members by refusing to reappoint those who displease it after their short-term contracts expire. More than that, the news laws purport to exempt the minister and all his officials from any judicial review of their actions. Absolute power corrupts, remember Phil, proud member of Amnesty International?
This danger is the reason why Australia has an independent judicial decision with judges appointed for their working lives – to stop government corruption of process and ensure fair treatment to all citizens. If the government can opt out of judicial accountability at will – as it is also trying to do by allowing detention without charge or judicial authority under the ASIO bill – it has a precedent to extend its hegemony to others areas of the law it doesn’t want questioned. Our lack of a a bill of rights makes it extremely difficult for judges to protect our freedoms from a rapacious government intent on destroying them.
The federal court is now hearing a case that will decide if Ruddock can create this profound precedent. So Ruddock questions their motives and suggests they are overstepping the judicial mark.
Yesterday Chief Justice Michael Black asked the Solicitor-General, David Bennett QC, for a please explain. “We are concerned that members of the public might see the minister’ statements as an attempt to bring pressure on the court in relation to these appeals, to which he is a party. We are also concerned that members of the public might see the court as amenable to such pressures, including pressure upon it in relation to issues that are before us today”.
Behind the rhetoric, of course, is the suggestion that Ruddock could be in contempt of Court.
And behind the rhetoric is the fear of this form of destructive populism. Federal Court judge Graham Hill recently warned that “the rule of law and freedom are both too hard-won to be taken away by stealth … Ultimately societies have to maintain human rights and freedoms. And they are at risk.”
With the Pacific Solution, Ruddock removed the courts’ jurisdiction to judge the treatment of new boat people by changing Australia’s territorial boundaries for the purpose of immigration law. Now he’s trying to do the same to refugee applicants on our soil.
Today, laughably, Ruddock told the court that he “does not believe that his statements, properly recorded or taken in context, would be construed in that way by members of the public. He regrets that the court considered that members of the public might construe them in that way.”
He excused his accusation that Justice Hill had spoken like a politician and should resign by saying it was “made before he knew of your honour’s remarks”.
Hogwash, all of it. A cynical tailoring of his spin to suit the court-room, and another one to suit the masses.
Today the Australian Financial Review published a great 1998 John Howard quote on the issues at stake. “The law is a valuable bulwark against tyranny and a slide into authoritarianism. As we have seen only too sadly in one or two places recently, the first sign of a drift to authoritarianism is an apparent encroachment by the executive upon the absolute independence and the absolute integrity of the courts of a nation.”
Amen to that.
***
SIEV-X
Steve Apps
Margo Kingston’s article re the above subject cased me a great deal of angst. I know something of the Navy as I have given 14 years service as a diver in the Navy Reserve. My role is to repair battle damaged ships and clear mines from our harbour when we are at war.
Let me tell you something of this institution that you are so gleefully anticipating to sully. Morale throughout the permanent forces is absolute rock-bottom. This I know through anecdotal association. But don’t believe me, have a look at the sorry record in recruiting and retention that is common throughout the three services. The Navy is in a slow-motion death spiral as both the experienced and the recruit sailors leave, or are making plans to leave. This is no exaggeration – a looming personnel crisis will become apparent in the next two years.
You would know that the role the Navy has had to play in keeping out the asylum seekers is distressing to the average sailor. Some of these people are barely out of their teens when forced to undertake this dangerous and thankless task which is so left-field of their core defence role.
These days, sailors are ordered not to wear their uniforms outside working hours within their own country to avoid the physical and verbal attacks from the Public they serve. There is no high status in declaring yourself a member of the armed forces. The income is very ordinary, the work is stressful and dangerous and the workplace itself is sad.
In my experience, at Officer level, the best ones never applied, the better ones soon leave and the least of them bat on because they’re like that. The heads of the Navy you see now are the products of that process.
You might see big guns and big ships tied up at Garden Island but don’t get the idea that the Navy is strong. It’s not strong enough for you to sink the slipper. Reputation? The Navy barely has one to hold onto.
Perhaps you could limit your attack to the personalities at the top to minimise the damage to those of us below who feel we are still contributing something to this country.
***
Malcolm Martin
Your diatribe against the Navy in this morning’s Herald is no more than I’d expect from a milksop socialist. As you indulge in more hand-wringing over illegal immigrants and their demise, you might find time to congratulate the Howard Government for its border protection policy and the Pacific solution that has stopped the odious people smugglers dead in their tracks.
At least your precious boat-people will no longer drown after being forced into rotting fishing boats, or suffocate in containers. For that you bleeding hearts should be eternally grateful to the fine example Mr Howard has set to the rest of the world, but will we hear one ounce of gratitude? We’ll be waiting a mighty long time for that!
***
Rod Olsen in Canberra
I write to comment on your recent article “Mass drowning case could sink navy’s reputation”.
I am well aware of the draconian laws of libel in Australia and the limits on free speech and the media imposed by these laws. Nevertheless, I think it unfair of you to join in the Government’s scapegoating of the Royal Australian Navy (RAN) over the drowning of most refugees aboard SIEV-X.
It is in the public domain that all relevant Australian agencies knew in advance of this vessel, the overcrowding, the sailing date and the destination. Given the event occurred during the 2001 Federal election campaign, no lowly Navy clerk or Admiral would have made the critical decision not to intercept the vessel and so cause the refugees to drown.
For all its faults, the RAN is a “disciplined force” that operates under Government authority. I have no doubts if a decision not to intercept was made, it would have been by authority higher than the RAN.
If such a decision was made, we will never have definitive proof of who decided not to intercept and to let the refugees drown as “… a lesson to intending refugees about the dangers of paying people smugglers to get sea passage to Australia”.
The documentary evidence, records of meetings and intelligence briefings would have been shredded long ago. Any of the RAN and/or public service personnel with direct knowledge of the truth would have been repeatedly reminded of the jail terms for those contravening the Official Secrets Act. Besides, without documentary evidence, their testimony would be dismissed as hearsay.
There is no justification for helping to scapegoat the poor b—-y RAN. There will be enough of that in the sham courts martial used to shaft those chosen as public scapegoats.
I realise you have to report something. Just, please, do not “aid and abet” the scapegoating of the RAN. Incidentally, I have never been in the RAN, nor any of my family. I am just concerned about natural justice.
WOJDYLO-SPEAK
Robert Lawton in Adelaide
Wojdylo’s latest contribution – Rousseau and the Third Way – is magnificent. I think I will pack in my keyboard right now.
What trash the “greats” of Australian analytical journalism put out compared to this man. Shanahan, Sheehan, Steketee, Gordon, Kelly…they should all sit at Wojdylo’s feet. Along with the clowns: Adams, McGuinness, Saluszinsky.
***
Tim Dunlop in Washington(Tim started the Third Way debate in The Third Way: Window dressing for capitulation, May 7)
Thanks to John Wojdylo for some interesting expansion and tangential comments.
He finds fault with the fact that I don’t offer a positive alternative to the third way, and that I’m too negative. Maybe so on the latter point, though I do actually acknowledge this and offer a brief explanation.
Still, I don’t resile from it: The third way is a sham and its proscriptions would take us in a direction I find unacceptable. Yes that’s negative, if you like, but there it is.
Additionally, the idea that we can’t criticise something without offering a `positive alternative’ is pure nonsense. Of course it is perfectly valid to find fault and leave it at that. Much journalism, political debate and even scientific investigation would cease to exist if we insisted on this `rule’. At an academic level, peer review is basically hole-punching and fault finding. Ultimately, it is from such criticisms that positive alternatives can be built. Maybe I will write such a piece one day.
He also writes, “Dunlop’s piece lacks an explicitly asserted principle that gives it a unifying backbone’ and that “Dunlop hints at fatal internal contradictions”.
Not true. It lays out the key point early and argues closely to it throughout. I write: “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.” I conclude the piece with a restatement of this central point. Hardly just a ‘hint’ and certainly a unifying backbone.
John also comments: “Throwing up the hands and saying “but the Third Way has no principles” (Payne and Gain) just evades intellectual responsibility, which is to inform the audience of the substance of what he is criticising.”
This is a nice bit of out-of-context quoting and really, unworthy. Given the extent to which Latham and other 3Wists are quoted throughout the piece this criticism, too, is unsustainable.
In fact, I specifically cite what Latham himself calls his `guiding ideology’ and it is worth recalling the prominence and context I give it: “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’.”
Then I write: “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.”
So in addition to the “thesis statement” of my piece which I’ve already quoted, we have Mr Latham quoted at length spelling out his key principle, with me acknowledging the point and then setting it up as the point from which I will take my critical departure. Combine that with the extensive citing and acknowledgment of 3W works and I’d say I give a pretty fair account of that which I am criticising.
John also writes: “Incidentally, I think more intellectuals should focus on the concentration of power and consequent magnification of incompetence implicit in neoliberalism.”
This is a good point. In fact, many have approached the third way in this manner, including Alex Callinicos, Andreas Busch, Michael Ehrke (specifically about the Neue Mitte in Germany) and Edward Herman. It was an approach I considered, but in the end I went another route, concentrating on logical flaws and structural inconsistencies. But it is certainly a path worth pursuing.