The children overboard inquiry is sitting tomorrow, with senior public servant Dr Brendon Hammer under the hammer. Here’s a preview.

It’s a nasty, labyrinthine bureaucratic game these days, avoiding the taint of the children overboard lie. It’s also very unfair, because the big boys fingered for the cover-up – including Peter Reith and staffers – are refusing to play. It’s like the captain sitting on his easy chair watching his troops die on television in the war he ordered and directed. Let the small fish fry.

I discussed the emerging crisis in the Department of Prime Minister and Cabinet (PM&C) – Australia’s premier and most powerful public service organ – in Edging towards the desk where the buck stops. Since then, it’s deepened with a report by department head head Max Moore-Wilton, whose `investigation’ of alleged witness tampering by a senior officer was so unsatisfactory to the Senate that it asked a committee to decide whether to cite one or more public servants for contempt. From there, a criminal charge could be considered. It’s got so bad that when PM&C learned that the defence force had accused one of its staff of witness tampering, it saw fit to withhold that information from the Senate inquiry until AFTER the alleged victim began giving evidence. The reason? PM&C thought the inquiry would ask the right questions to get the information out of the witness.

The public has had the pleasure of an unprecedented and still unfolding expose on the inner workings of a public service operating in a culture of fear. Ironically – is there room for irony these days or is it ironic for something not to be ironic? – the Coalition government crafted a new Public Service Act in 1999 which legally enshrines an “Australian Public Service (APS) Values and Code of Conduct” statement.

Before analysing the details of Hammer affair, some background on what the government now officially requires from public servants, courtesy of a speech by Public Service Commissioner Andrew Podger at a May 31 conference called Improving Government decision-making

The new Australian Public Service (APS) Act enacts a supposedly legally binding “APS Values and Code of Conduct” statement. “One of the major responses to the increased pace of change for the Service has been the shift away from central prescriptive rules of operation, to a principles-based Public Service Act,” Podger said. The key, legally binding APS `values for decision-making’ are that it is apolitical, performs its functions in an impartial and professional manner, has the highest ethical standards, and is openly accountable for its actions to Parliament and the Australian public. An APS employee must behave honestly and with integrity, act with care and diligence, treat everyone with respect and courtesy and comply with all applicable Australian laws.

“Key words here are impartial, professional, ethical, accountable, fair, effective, courteous, honesty, integrity, compliance with the law,” Podger said. “The ethical emphasis is important. The public which has vested power and authority in public servants rightly expects that power and authority to be exercised in the highest ethical manner.”

Podger also stressed “crucial guidelines for good administrative practice” from the audit office, the ombudsman, the National Institute for Governance, and his office. They include “the importance of evidence and systematic information support, along with proper record-keeping”.

Podger cited the Auditor-General, Pat Barrett, with approval: “Documentation is important for an agency to:

* demonstrate it has taken all reasonable steps to identify and manage risks;

* provide assurance to management that the administrative processes are adequate and have integrity;

* record significant events and decisions;

* be able to review its decisions and processes thereby identifying strengths and weaknesses in the process, drawing out lessons for the future;

*in some circumstances provide support for the Commonwealths position in the event of a legal challenge; and

* meet its accountability obligations to the Government, Parliament and other stakeholders.”

Podger made two crucial points to the children overboard inquiry at a recent roundtable discussion.

* “The values and the code of conduct are in the law. They are in sections 10 and 13 of our act. There are obligations in the act on agency heads to uphold and promote the values and to ensure that there is compliance with the code of conduct.”

* “There is some tension between the values, and we should recognise that. The value about being apolitical, impartial and professional does not actually say we are independent. If we took that value on its own to an extreme, we would have major problems about responsiveness of the service to the government of the day. I also note that the responsiveness value actually includes within it the terms `frankness’, `accuracy’, `comprehensiveness’ and `honesty’- that is, if we are truly responsive to the government of the day we have got to be careful that we understand that a short term responsiveness to meet an immediate apparent requirement is not being responsive if we fail to give the frank and more detailed advice that is necessary and with full accuracy.“.

On these principles, more than one public servant would have got the chop already. But of course the government which legislated these values and standards for public servants is the same one ordering them to breach them. Yuk.

***

Here’s my May 7 Herald column on the case Moore-Wilton and Hammer had to answer after the evidence of Commander Stefan King on May 2.

PM’s man out on a shaky inquiry limb

By Margo Kingston

Months into the children overboard inquiry, it seems that early in the election campaign just about everyone in Canberra knew that kids weren’t thrown overboard and the photos proving the lie were fake. The trouble is, no-one let the voters in on the joke. As the inquiry grinds on and it becomes obvious that someone’s head has to roll, the bureaucracy appears to be playing musical chairs, while panic responses to the latest revelations are becoming surreal.

Take last week’s bombshell. Why on earth is Max Moore-Wilton conducting the investigation into whether one of his senior officers, Brendon Hammer, committed a contempt of the Senate or a criminal offence by attempting to influence the evidence of a witness at the children overboard inquiry? Let’s look at his qualifications.

First, as head of the Department of Prime Minister and Cabinet (PM&C), he presided over an internal report on the fake photos which kept his department out of the frame. In January, the officer Moore-Wilton appointed to detect “what efforts were made to correct any misinformation” found PM&C knew nothing. The Senate inquiry has established that since October 11, PM&C knew at senior levels that the photos were fake courtesy of a briefing from the Defence Department through PM&C’s defence liaison officer, Commander Stefan King.

Second, in February Moore-Wilton gave evidence to another inquiry that “None of the information … was released outside the Department of Defence. It was not released to the Department of Prime Minister and Cabinet … This constant effort to consistently say that the department was aware that the photographs were not of October 7 is not true.”

This, by itself, calls into question the quality of Moore-Wilton’s stewardship of the department.

Third, we don’t know what Hammer did with the shock news. Did he, as King expected, confirm it and report to superiors – of which there are few? If he didn’t – and Moore-Wilton must know what happened by now – Hammer should have resigned, just as a junior officer did for similar behaviour during the travel rorts affair in John Howard’s first term. And if he did pass the information higher, PM&C and its boss are out on a limb that could be cut off when Hammer gives evidence on May 22.

Fourth, Hammer’s junior Harinder Sidhu – who King also briefed – gave evidence that when Hammer ordered a private meeting with King and her to discuss the October 11 briefing, “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 ideas’.”‘

If Sidhu’s impression is correct, there are very few people senior to Hammer who could have made the suggestion.

It was at the March 11 chat at the Kurrajong Hotel, which Sidhu agreed was a “rehearsal”, that Hammer, according to King, tried to cross-examine him about his recollection and suggested that “Another or a better way to describe that might be …”

Fifth, Moore-Wilton knew more than a week ago, at the latest, that Hammer stood accused of trying to tamper with a witness. Yet three days later the department told the inquiry – only after King made the allegation public – that he was “commencing a process to establish the veracity or otherwise of the allegations in order to determine what further action by him might be required”.

All this is not to suggest that Moore-Wilton is guilty of anything, but that it is farcical that he have carriage of the investigation into Hammer. In the circumstances, the Public Service Commissioner and the Federal Police are the appropriate investigators.

Attempting to influence a witness is a contempt of the Senate, which it can punish with six months’ jail or a fine. But it is much more serious; under the Parliamentary Privileges Act, it is a criminal offence to attempt to influence a witness to a parliamentary inquiry or attempt to induce this witness to refrain from giving certain evidence.

The finely woven web of omission and cover-up has now unravelled so far that attention has shifted from the Defence Department to focus squarely on John Howard’s department.

Bit by tortuous bit we edge closer to the desk at which the buck stops. Does it stop on Dr Hammer’s desk, or do we go higher?

It is time now, surely, that Moore-Wilton and others intimately involved in, or inexplicably kept in the dark about, the scandal step aside and let the truth emerge. At last.

***

As foreshadowed, Max’s report is unsatisfactory (see right-hand column for its text) and for proof I cite the fact that he saw the need to defend HIMSELF three times in the course of clearing his officers. “I can confirm that at no stage during the relevant periods in 2001/2002 have (the officers concerned) consulted me or advised me in regard to any of those matters”.

And: “I consider it worth restating that at no time did I seek to raise issues relating to `children overboard’ with you (the PM) prior to the November 2001 election.”

And: “I cannot accept the proposition that concerns were brought officially to the attention of PM&C management.”

Max’s report is a statement of the background, a collation of statements he sought – in writing for once – from the officers concerned – in writing for once – and his “comment” and “conclusion”. Such a pity no-one wrote ANYTHING when the incident actually happened. Max notes that “there are no written records or recollections that have come to light”. That’s a prima facie breach of administrative guidelines and a big impediment to accountability. Breach of the new Public Service Act, perhaps? From the man responsible for the department’s practices – the man expected to lead the public service as a whole – not a word of criticism. And no analysis, no questions, no teasing out of inconsistencies. In contemptuous fashion, he doesn’t even explore King’s sworn evidence, some of which contradicts Max’s witness statements. And no questioning of King or of the man who advised the government of alleged witness tampering, Admiral Gates. Why? He says privately it was because he was only responsible for his officers. But Hammer had moved to another department, and King was seconded to PM&C at the time of the incident!

Despite crucial conflicts of evidence between the two men on the block – Hammer and his boss Michael Potts – he ignores them and concludes: “On the basis of the material available to me to date I am of the view that there are no grounds for taking disciplinary action under the Public Service Act against Dr Hammer or any other officer of this department.” Really! Since he decided what material was before him, no wonder! I wonder what Andrew Podger would have done?

***

Now to poor Dr Hammer, the meat in this nasty little sandwich. He says he was “deeply shocked and found it difficult to concentrate” when told of the allegation that he had attempted to tamper with a witness. And doesn’t it show in his statement. He has to explain no less than five problematic incidents or personal judgements between October 2001 and April this year. Most are contradicted or disputed by other witnesses, and his recollections on one swings wildly from nothing to enormous detail.

1. What King told him, and on what basis.

Hammer states that at the meeting with Commander King on October 11, King told him “he had heard of a rumour within ADF circles that photographs in the press relating to children being thrown overboard had been taken at a different time to the time everyone thought they had been taken.”

King hotly disputes this. This was no rumour, but a formal briefing to Hammer – after a briefing from a senior officer in defence – which he expected Hammer to pursue. After all, he’s called a “defence liaison officer”, and his job was, as he put it, “to facilitate movement of information”.

Faulkner: Would you describe the two meetings you had on that day as formal meetings – where you present a brief to officers?

King: Yes.

2. Hammer’s reaction

Hammer says he doesn’t remember what he said in reply. He decided to do nothing because:

(1) He had “no real grasp” of the significance of the information, as “I had barely been following illegal immigration and people smuggling”.

(2) He was preoccupied with “a massive additional workload” upgrading Australia’s security after September 11, and

(3) The issue was being handled by PM&C’s people smuggling task force, and he assumed defence would tell them.

As to (1), such ignorance is unacceptable in a senior public servant in PM&C – the department’s core responsibility is to co-ordinate and monitor information across portfolios in a big picture way, to ensure consistency. Children overboard was central to election campaign news and the photos to `prove’ it made page one across the nation.

As to (2), since the matter was outside his area of direct responsibility he had three responsible choices. He could advise his superior Michael Potts and get back to his own work, just as his junior, Harinder Sidhu, had done when she arranged an urgent meeting with Hammer so King could brief him. He could telephone the task force and tell them what he’d heard and get back to his own work. He could ring Defence and check the information, then take one of the first two choices. None of these course of action should have taken more than 5 minutes.

I have spoken to many public servants on this matter and all are incredulous. The job of a senior public servant is not to box himself into his speciality as an excuse not to be proactive, but to pass on such information, formally or informally.

Let’s be very clear on this. During the travel rorts scandal in Howard’s first term, it was revealed that a PM&C officer junior in rank to Hamme, had failed to advise superiors, and therefore the PM”s office, of information on the rorts. Howard had claimed no knowledge, and the public servant resigned. Is the new rule that you’re out if you embarrass your masters and in if you don’t? If so, that’s not public service, that’s political sycophancy. In any event, a public servant should never judge whether politicians will welcome the truth or not – second guessing politicians is always fraught with danger.

Stefan King had been defence liaison officer in PM&C for three months before briefing Hammer and got a good sense of the PM&C culture. “In considering the information I had received (about the photos) it was very clear to me that my function was to provide this advice to my two senior officers in International Division (Sidhu and Hammer) such that they could advise their seniors as appropriate. My logic for this was that … it was obvious that great care was taken to ensure that any public announcements by the Prime Minister and other ministers was consistent. As this matter was only a day or so old, I thought it could be corrected quickly.”

Faulkner: Having formally briefed Ms Sidhu and Dr Hammer, did you have an expectation about what action those officers might take?

King: I guess I had two expectations: That he would say to me, `We actually need to define this issue more clearly and we need to formalise our understanding of it,’ or he might do that himself. It was not a surprise to me that he would have gone about that himself … my professional expectation was most probably that Dr Hammer would call someone at his level – perhaps Vice-Marshall Titheridge – and ask him whether there was any truth to the issue or at least establish in his own mind that there was.”

…

King: I assessed that (Hammer) acknowledged that the information was sensitive but he did not give any indication to me about what action he would take in response … It is a series of expression and body language, if you like, into acknowledging, “Yes, I hear that information” … It is body language, expression – maybe a pursed lip or a raised eyebrow. It was just a professional assessment that I made, and I am quite satisfied with it.

Faulkner: I want to be assured that you are confident that Dr Hammer understood the import of your briefing to him. Are you satisfied about that?

King: Yes, I am.

Faulkner: Could you say why?

King: My experience of Dr Hammer is that he is an extremely astute and intellectual man. In the trade you would say he does not miss a trick.

Faulkner: So you are saying he got it on board, basically.

King: Yes.

Moore-Wilton’s response? Hammer was right not to go outside “the chain of command” What? The whole mess started when Titheridge rang the PM’s task force after a rushed call to HMAS Adelaide’s commander while he was in the middle of the SIEV-4 drama – disregarding the defence chain of command and tradition of advising ministers only after written reports – on the orders of politicians wanting to tell the media something sexy. PM&C officers constantly rings other departments with questions and constantly relay information between themselves. It’s their JOB. Is Max really saying that if a senior officer gets highly relevant information disputing the PM’s public claims he should keep it to himself on a `chain-of-command’ basis? If he is, how on earth does he justify Hammer not reporting the matter up HIS chain of command to Michael Potts?

3. Meeting at the Kurrajong Hotel

The Hammer/Sidhu/King coffee at the Kurrajong is the incident on which Hammer’s career hangs.

(i) Why did he call the meeting?

Hammer says Potts suggested he call a meeting with Sidhu and King “to refresh … respective memories” of the October 11 meeting. Hammer specifically asked Potts “whether such a meeting was appropriate”. Potts replied that “it was normal for people to talk to one another to refresh their recollections on matters which could be of interest (to Senate Estimates committees)”.

“My impression was that he (Potts) wanted me to use the proposed meeting … to develop a good understanding of what had happened within his Division on the `children overboard’ matter,” Hammer said.

Potts was VERY interested in that, according to Hammer. Potts raised a possible meeting in mid-to-late February, followed it up later, and by early March had “been asking me to meet with Ms Sidhu and Commander King for some time”.

Potts flatly denies Hammer’s statement, saying he asked Hammer only to work out WHEN the October meeting occurred, in whatever way Hammer liked. A phone could would do that. Just a phone call.

“I can recall pressing each of the two officers separately on the matter on at least two occasions. Ms Sidhu indicated she had conscientiously tried to recall the rough timing of Commander King’s approach, but that the more she pressed her memory, the more hesitant she became about its reliability. Dr Hammer also indicated that he was unable to recall when the exchange had taken place. I suggested to him that the question of timing was important and pressed him to provide at least a rough approximation of the timing (eg early November, mid-November etc). I also said that, if necessary, he should consult both Ms Sidhu and Commander King in order to get a better sense of the timing of Commander King’s advice. He said he thought he would do so.”

Either Potts or Hammer is wrong. If Potts is right he is out of the frame on alleged witness tampering and Hammer carries the can. If he’s wrong, they’re both in the frame.

Moore-Wilton’s response? He ignores the dramatic inconsistencies and finds “there are no grounds for taking disciplinary action under the Public Service Act”. Privately, Moore-Wilton stresses that he has an out, citing this sentence: “I am conscious that sworn evidence remains to be given … I do not propose to consider any further action … until they have been dealt with by the Senate Select Committee.”

Yes, he’s got an out, but WHY and HOW, given the crucial inconsistencies between Potts and Hammer, does he clear both “on the material before me”?

(ii) What was said at the meeting

Hammer says he’d “virtually forgotten that the October meeting had taken place”, but that the meeting “very much helped to trigger my own recollections”.

“I accept that it is possible that I may naively have experimented with ways of drawing memories forth.” Thus King’s evidence, supported by Sidhu’s, stands. Hammer tried to ask King questions as if he were an inquiry member and get him to answer. King refused several attempts to do this. Hammer also suggested to King that “another or a better way to describe that might be…” Hammer asked: “What happened when you told Dr Hammer about the photographs?”

Hammer’s defence to the charge of witness tampering is that he was “naive”. A senior officer in the top echelon of the top department was naive, but not naive enough, according to his own statement, not to query Potts about whether a meeting would be “appropriate”.

4. What did Hammer report to Potts?

“A brief oral account of the recollections we had shared,” says Hammer. In his estimates evidence Potts stressed that he had not asked Hammer for an account of the meeting because it would be inappropriate given that Hammer would be giving evidence. Hammer told him only that the meeting had taken place. Oh dear.

5. Hammer’s refusal to give a statement to the inquiry

On March 28 the inquiry formally asked Hammer to make a written submission. “I declined to do so because I felt at that time that the meeting that the meeting in my office in early October 2001 had been a small episode which would be of little interest to the Committee.”

Incredible. Potts said he did not ask Hammer what happened at the Kurrajong Hotel meeting because “it was pretty clear that there would be a select committee and obviously he might be an individual witness before it”.

Faulkner: Beyond having an indication from Dr Hammer that this (meeting) had occurred, you did not try to satisfy yourself as to what that particular fix was?

Potts: No.

Faulkner: Wouldn’t having that understanding have helped you at any inquiries?

Potts: … I think that at that stage my mindset was that things would have to fall where they fell, that there was no point in my adding an extra layer to matters.

Senator Faulkner: What do you mean they would have to fall where they fell?

Potts: That people would be called to give evidence and that evidence would be tested by a select committee.

Max’s response to Hammer’s almost inconceivable lack of judgement? Nothing. Ignored.

I’ll be at the hearings tomorrow, and report to you tomorrow night.

Julian Burnside is hot! Here’s his speech to the fund-raiser dinner launching `Just and Fair Asylum’ in Sydney tonight. It’s an impassioned, high energy speech from barrister advocating his own core beliefs, as a human being and as an Australian. And people do care – 190 of them paid $150 a pop tobe there. Ad man John Singleton was master of ceremonies.

Refugees: Australia’s moral failure

By Julian Burnside

The so-called refugee problem facing Australia is not a problem of national security; it is not a political or legal problem: it is overwhelmingly a moral problem. It is a moral problem that has been driven by party politics and politicians in recent times. The law which creates the problem has been implemented by the parliament and validated by the courts (despite the best endeavours of some lawyers working in the area). More recently, and most disturbingly, it has been vindicated by the electorate in the overwhelming endorsement of Howard’s policies in the November elections. Yet it remains a moral problem which we as a country are dealing with extremely badly.

I suspect that one reason we are dealing with it so badly is that the true nature of the problem has remained hidden for so long. It has remained hidden because it suits the politicians to dress it up as a problem of national security, a problem of border control, and a problem of sovereignty; so that in the famous Howard expression: “We will determine who comes into our country and in what circumstances.”

The moral dimension of the problem has been disguised by the fact that the politicians have either deliberately or inadvertently elided three distinct elements of the matter: they are the questions of border control, immigration policy and the treatment of refugees. All are quite distinct, separate problems. All require quite different thinking, and all require separate solutions, and yet somehow our political masters have managed to run these problems together and use the ugliest bits from each.

I want to deal with three matters – the Pacific Solution and where it is leading; the system of indefinite mandatory detention and where that might take us; and the alternatives we have available to us.

The Pacific solution

The Pacific Solution was an immediate and astonishingly popular response to the Tampa case. I doubt that there has ever been a case that so innocently and inadvertently provoked such a savage legislative backlash. The Howard government won the approval of an unthinking electorate with its response to Tampa, but it forever sacrificed any claim to moral decency.

The insidious thing about the Pacific Solution is that it preys on impoverished countries who have no real choice whether to lend themselves to the wishes of an Australian government willing to throw millions of dollars at them.

I heard someone not so long ago draw an analogy with prostitution. If a woman has no income and no way of supporting herself, then prostitution is an available, if undesirable, response. I think Nauru can be fairly regarded as one of the fallen women of the South Pacific. For this we don’t blame Nauru, we must blame the Australian government.

Nauru’s constitution bans detention without trial, with only limited exceptions. One of the exceptions, which comes nearest to the present circumstances, is detention for the purpose of deporting a person who arrived without the permission of the relevant authorities in Nauru. One might think that perhaps that justifies that these people are being held entirely against their wishes on Nauru. But it turns out that the visa application for the Tampa people was a single bulk application – a very lazy bit of work – it is simply a single sheet of paper for the 482 people “as per the attached list”. It was signed on their behalf, but perhaps not with their knowledge, by an officer of the Nauruan immigration office. Thus, they cannot be said, on any view, to be people who had arrived against the wishes of the Nauruan government. Added to this of course, it would seem that the Australian government did some kind of political deal with Nauru to allow the people to come in.

These people are being held unlawfully, in a way that is unconstitutional in Nauru. The Australian government could just as easily have locked them up here without constitutional protection. Rather, it was thought it politically expedient to ship them off to Nauru at a cost to Australia that is obscene. How the government seeks to justify that is extremely difficult to know, but I suppose having taken the first step in prostituting Nauru, the rest is just a quibble.

This is a staggering enterprise, on any view: about 1500 people have been hijacked at sea and transported against their will to a pile of bird-droppings in the Central Pacific. There they are strictly confined within 2 camps, in abominable conditions, in breach of Nauru’s Constitution. For its complicity in this bit of hostage-taking, Nauru has been promised tens of millions of dollars. To perpetuate this system of state-sponsored piracy and kidnap, the government has committed Australian taxpayers to a staggering $1.2 billion over the next few years.

Moreover, the Pacific Solution is a fraud on the Australian people. It does not deal with the problem, it simply hides it: because by deflecting people around Australia’s borders and dumping them on Nauru, we make Australians somehow feel more secure. It is a totally false sense of security, and does not in any way deal with the true problem of border control. In some vague way, most Australians feel as though the government has acted in a strong way and has dealt with the problem. That is a fraud. Nauru is already protesting that the plan for which it subverted its Constitution was meant to last only a few months. It has been going now for almost 9 months, and there is no end in sight. Meanwhile Mr Ruddock has been running around the world trying to persuade various countries to take the Nauru hostages off our hands. There are so few of them that it is hard to see why we do not take them ourselves. We may be forced to in any event: the rest of the civilized world has recognized the Pacific Solution for the scandal that it is.

Indefinite mandatory detention

The next matter I want to touch on is the system of indefinite mandatory detention of informal arrivals. Unfortunately, the words `indefinite mandatory detention’ have become a simple mantra which have no real impact.

It is a startling thing to think that, at the beginning of the Twenty First Century, we have a system which, by legislative mandate, involves people being locked up without any judicial order in what, on any view, is a prison. They have no recourse to the courts to review the question of whether they should be locked up. They are being locked up for a period that no one can predict: it is indefinite. When they go inside, unlike any common criminal, they cannot count the days before they will be free again.

Furthermore, unlike the orthodox prison system, eighty per cent of asylum seekers are kept in facilities that are so remote from any centre of civilisation that, if they had the prospect of anyone coming to visit them, that prospect is lost. Broadly, this is because to visit Woomera, or Port Hedland or Curtin involves literally days away from your ordinary activities. I said that the conditions in the detention centres are worse than would be tolerated in the prison system. It is a little surprising at first because they are for the most part run by the same people who run the prisons, but the fact is that conditions in the centres are appalling.

I was interested recently to come across some observations of Professor Richard Harding who is Western Australia’s Inspector of Custodial Services, and a person familiar with the prison system. He visited Curtin in June last year, and he said this:

“The so called education program was largely a charade (bear in mind how many children are kept in these places, bear in mind that the DIMA contract with A.C.M. (Australian Correctional Management] requires that education be provided appropriately to all people who need it).”

“That insight,” he said, “really set the tone for the whole place. The huts in which the people lived were grossly over crowded, many of the toilets were broken, some of the washing machines were also broken, and the so-called shop was abominably stocked and rather inaccessible. The system for sending mail breached all standards of privacy and confidentiality, and above all, medical and dental facilities were inadequate. In summary, the conditions that exist in the Curtin centre are almost intolerable. Such evidence as exists indicates things are little better at the other centres, yet these things are also largely invisible except when riots occur.”

It is easy to be thought to be exaggerating when you talk about conditions in detention centres. This is a letter written to us in February by one of the Afghani people from the Tampa. He is currently in Nauru. He mentions the water supply:

“I mean that we do not have enough water for going to toilet, taking bath, or washing our clothes. For example in one corner of the camp there is one water store, in which most often only one water tank is delivered everyday and here are almost 500 people consuming water from the same tank.

“An interesting story is that when Mr Phillip Ruddock came here our water stores were all full. And we tried to utilise it to our best. Most of us bath when it rains heavily, however our water is spent very soonly and then for the rest of the day and night our toilets are awfully smelling and there are thousands of flies and mosquitoes in each toilet”‘.

This is a person who has been writing to us now for a few months and who has been extraordinarily restrained in his comments about conditions, but whose personality is gradually deteriorating. Things are intolerable there. And those words are matched perfectly by reports that you get from Curtin, and from Port Hedland, and from Woomera, and to a lesser extent from Villawood and Maribyrnong.

It is not easy to choose the things that illustrate most economically the problems of conditions inside of the detention centres. They have to queue for soap. It is common to be subjected to the minor, but irritating torment of queuing for half an hour for soap at Woomera and to reach the head of the queue; only to be told to come back half an hour later, for no reason at all. All you want is a piece of soap but they send you away and have you come back later. The people who are in charge of these places develop very rapidly, it seems, the mentality of guard versus prisoner.

I had an interesting experience myself a few weeks ago in Maribyrnong. Kate Durham and I went out to Maribyrnong to visit a couple of people there, and it happened that I was due to represent one of them in court the next day.

When you go to Maribyrnong you get a piece of paper at the security entrance. You write your name, you write your address and phone number, the names for the people you want to visit and your connection to them, and then you show them a passport to prove who you are. Kate wrote the same two names as I did because we wanted to see the same people. She wrote that her connection to them was `friend’. I wrote that my connection was `barrister’. This was in the 7-9pm social visiting spot. Kate sailed through the double security lock, but I was told that there was a problem with my form.

I said: “What’s the problem, Chris?”

“You’re a barrister, aren’t you?”

“That is true.”

“Lawyers’ visiting hours are between 9 and 5.”

He clearly took pleasure in saying that.

I said: “Oh, but surely it can’t mean that lawyers aren’t allowed to visit in the evening visiting slot?”

And he said: “Well that’s the rule: visiting hours for lawyers are between 9 and 5.”

“Surely the rule can’t mean that.”

“Well it’s the rule.”

“Can we have a look at the rule and check whether that’s what it really means?”

“No.”

“Why not?”

“It’s confidential.”

It was all very good humoured. He was obviously enjoying himself. Having stepped through the looking glass, I was quite amused by it all. I had another run at him, but it was to no avail.

I said to him: “Look, I’m a friend to one and a lawyer for the other, what am I meant to do?”

“You’d need two forms.”

“Perfect, can I have a second form please?”

“No.”

“Why not?”

“You’re not allowed two forms.”

Now I’m sure there is a luxurious pleasure in jerking around a lawyer who doesn’t represent your own view of the world. But if he was prepared to do this to me, with the reasonable expectation that I might make a fuss about it (although I didn’t), what is he likely to do to people who are hopelessly dependent on the ACM guards? If detainees get on the wrong side of any of the ACM people they can expect to be treated badly. The potential for torment is appalling, and torment of course there is.

In the desert camps, when a woman has her period, she must fill in a form requesting sanitary pads. She must then queue to see the nurse and hand in the form. She will be given a packet of 10. If she needs more, whe will have to fill in another form and explain why she needs more.

A few weeks ago when a friend of mine was in Woomera. She saw a couple of teenage Afghani girls wandering around wearing nappies. When she asked why that was, she was told that the stress had made them incontinent. These are teenagers, reduced to wearing nappies. Perhaps that is the best reflection of what the conditions are like: just look and see what it does to the people.

Kate and I have organized a campaign of writing letters to detainees. We have received hundreds of replies. They give a powerful and terrible picture of what we are doing to people.

This is from a letter written by someone at Maribyrnong. He wrote:

“I received your letter on the 11th February and I was happy very much. Please you give information about our situation to Australia because some people have not any information about detention centres. Today I had two visitors who came to my visit for the first time. One of them was journalist. One of them was girl, 25 years old. They had not any information about detention centres and could not believe. And the girl was crying after we talked to her. But I believe that we don’t must look at our situation like sentimental people, we must look very deeply to these circumstances so that what we’re eating and that we have a lot of suffering is on the second level. But first you must see why the people are coming here, and why for a long time they are staying in detention.”

He goes on: “I don’t must be sensitive and I don’t must cry, because the cry make happy the enemy. But finally I will write for you the difference between detention centre and zoo: in the zoo the humans care for animals but in detention centres the animals care for humans.”

Also from Maribyrnong:

“Being detained without any crime is very traumatic, shameful, self destructive and awful hardship, prisons may sound very hard but knowing an exact duration of a sentence is less stressful. But while we are in detention you do not know when you are going to be released and what will happen to you. It is a dreadful frustration. Sometimes I have a sense that no help will come, I feel like I’m in a grave with four walls. Nobody can enjoy confinement in cramped detention centres, walls topped with razor wire.”

Villawood:

“I want to live as a human not like an animal in Villawood detention centre. Please contact me and visit me because I have many things that I can give and show you imagine how I can live 3 years in the detention centre. I am not a criminal I did nothing to put me in a prison I am a refugeePlease help me, do something for me I’ll be crazy I want to be out. I’ll die.”

Port Hedland:

“My hope really is finished for make life in your country. I don’t know what happen to me in Iran, but I know death in my land is better than dying in this detention or in this hell. I lost everything. I lost my life, my love, my family and now I think maybe if I stay here I lose my mind.”

Woomera:

“I really appreciate your paying attention to Woomera detention and especially to me. You had just watched, read about what happened, but the fact is bigger than that. The ACM officers had changed to monsters, they couldn’t see anything except how to hit the people. They entered the compound with the blue uniform so that you couldn’t see any part of their bodies. They were like an army. They used the sticks and hurt the people without any mercy or thinking about women or childrens.

“After that they used the teargas against the families and they were avoided to film when they used that gas. Then at 2 0’clock in the morning they came to the buildings and pushed all the people to go to the mess for head account without paying attention to the pregnant women or the childrens when the weather was too cold. They hit and hurt anyone refused to move. Then they had chosen 40 men and they had put handcuffs on their hands and ordered them to sit on the ground till morning like criminals. They did not allow us to smoke or go to toilets or even pray. I wondered at that moment if this is where we had chosen and asking for protection. What the difference between this and our countries, and why we escaped from there.”

The Alternative

Contrary to the government’s alarmist rhetoric, there are very few refugees in Australia at present. They are people who have been accepted into the country after months or years of detention. By comparison with other countries, the total number of refugees we have accepted is pathetically small. Asia has 8 million; Africa has 5.5 million; Europe has 5.6 million; North America has 1 million. Australian and New Zelanad together have only 76,000.

We have about 2,500 in detention presently seeking to be accepted as refugees. They have committed no crime, unless it be a crime to flee persecution in a pitiable attempt to give their children and themselves a chance of a life worth living. They are not “illegals”: they are human beings. There are about 4000 informal arrivals each year. It is a tiny number. These people do not pose a risk to our national sovereignty.

They are being held in gaol. It is hypocrisy to call it detention. Their human rights are ignored, their conditions are kept secret. When ultimately they are released from detention each refugee is indebted to the Commonwealth for the cost of their accommodation, at the rate of about $120 per day. Thus, a person who suffers the misery of Woomera for 24 months is asked to pay more than $100,000 for the privilege. So, even at the end of the torment, we add insult to injury.

We have a choice: imprison asylum seekers, in defiance of international law, or let them into the community after initial screening, whilst their claims for asylum are assessed. There should be a maximum of 3 weeks initial detention, to be extended only if a judge rules that the circumstnaces justify continued detention. Community release after initial health and security checks could be secured by bail conditions. Bail works very well in the criminal justice system. There is no evidence that it would not work for innocent people seeking asylum. Since more than 80% of asylum seekers turn out to have good claims to our help, it seems barbarous to lock them up for years while we consider whether they are entitled to our protection.

*********

On the 14th of February this year a man wrote from Port Hedland:

“I wanted to write to someone outside because I don’t have anyone outside and I need to write some letter because I forget everything this two years I am in this prison. I am very happy this time because I learn some good Australians support us. Please we need freedom like every human. I have two years and I don’t hear anything about my family in my country.”

He finishes: “Please don’t forget us, we’re humans.”

Howard and Ruddock have abused these people, calling them `illegals’ and `queue-jumpers’, they falsely accused them of being the sort of people who would throw their children overboard. Asylum seekers are human beings and they deserve to be treated properly like human beings.

We diminish ourselves by the way we treat them. Once we recognise that these people are human beings, we will see that the problem is in truth a moral problem and that we have made a profound mistake in the way we have handled it.

We must not rest until this outrage to humanity is ended.

Reader Tony Scanlan has sent one of those emails which brings me back to the purpose of Webdiary and makes me wonder if I’m still fulfilling it.

A big aim of Webdiary is, as I say in its charter, “to help meet the unmet demand of some Australians for conversations on our present and our future, and to spark original thought and genuine engagement with important issues which effect us all”. This is why I love getting perspectives outside those of most of my readers and invariably publish them. But maybe my passions on refugee policy, children overboard and terrorism laws are setting back this aim.

Still, I reckon the Third Way debate is getting somewhere. Now its instigator, Tim Dunlop, has written another piece on the assumption that `free trade’ would be a great thing if the inverted commas could be dumped. I hope Kieron Convery, who in How many economists does it take to …pleaded for some constructive ideas rather than just cutting down other people’s theories, gets some hope from it.

Today Tony Scanlan and Tim Dunlop lead this entry, then Dr Aaron Oakley, Paul Walter and James Woodcock respond to yesterday’s TW discussion.

The TW debate has spread beyond these pages, to David Morgan’s Elitist weblog http://elitist.blogspot.com, elitist. David replied to Tim’s opening salvo in Third Way: Window dressing for capitulation (May 7), and Tim and he got into extended discussions thereafter. David writes:

“I’m no economist, but I’ve also tussled with Tim and lived to tell the tale. It all started at TWelitist1 and continued at TWelitist2 and TWelitist3 before concluding (I hope) at TWelitist4.”

So Tony Scanlan, Webdiary readers are having a go at the genuine engagement thing, I reckon. Do you agree?

***

Tony Scanlan

Having lived out of Australia for 2 years, I occasionally tune in to the Herald to fill up on news from home and I occasionally read your articles. I am really struck by how you and a number of other writers on both sides of the left-right divide always tend to boil down complex issues into the fact that the Coalition/right or ALP/left are responsible for all the troubles in the world or at least Australia.

What I find really amazing is that sitting outside Australia with the benefit of some distance is how pointless and of little relevance this kind of debate is. Both sides of this divide are really quite similar.

What really matters for Australia is a debate on how best to secure a better future for Australia in a world where creativity and innovation are paramount; rather than this worn-out old debate based on an increasingly irrelevant ideological divide.

I used to do my best to ignore you and other left-right warriors, hoping you would eventually get over your issues and move on. But lately I have come to realize that this doesn’t seem to be happening – you and your brethren are so noisy you’re drowning out what Australia really needs to debate. So PLEASE take a deep breathe and emerge from your blinkered ideological ways and move on. Start talking about some things that are really relevant in the 21st century.

It might be hard just as its hard for the old warriors in Northern Ireland or the Middle East who have learnt to make a living through perpetuating needless division – but I have have faith in you and in your humanity and in humanity in general. I know you can do it.

PS: Please feel free to send this e-mail to anyone you really despise on the opposite side of the left-right divide and tell them that this message applies equally to them. Then invite them to dinner to discuss all the things you have in common. .Go on do it! I know you can! It will be good for your soul.

***

Tim Dunlop wrote the piece below before reading yesterday’s Webdiary. He wrote later: “I really liked Kieron Convery’s criticism of me and John Wojdylo and others. I understand his craving for answers to specific problems like the ones he mentions. I stand by my answer that it is okay just to criticise, but I’d like to move in the direction he asks for. (The piece I just sent you is a step in that direction.) I’m now working on a piece that tries to offer some “answers”? I’m happy for Kieron to contact me in the meantime (tinota@starpower.net). I’ll probably do it in the form of something like “10 things we should think about to improve the way things are”. It’s a bit of a tall order to offer a fully formed alternative view of the world, but we can at least throw up some positive ideas for discussion. That’s what I’ll try and do.”

**

Free trade and why it would be nice to have some

By Tim Dunlop

The discussion of the third way and related matters prompted by my recent article on the topic suggests to me the need to take a few steps back from where that analysis started and deal with a couple of more basic questions. Chief amongst these is our understanding of what is commonly called “free trade”.

The central question is not about free markets-v- planned economies or some variation on it. It is about who gets to decide the rules and the way in which the rhetoric of “free trade” sits with the practice. In other words, it’s about power.

Consider the reality of international commerce. Far from seeking to open up trade between countries – especially between the developed and the developing world – the international instruments and the powerful governments that support them, embodied in organisations like the WTO, the World Bank, the G7/8, and the EU, constantly renege on their commitments. A recent report by Oxfam lays bare the deceit:

* Developing countries lose $US100 billion a year because of trade barriers put up by the developed world.

* The tariff barriers in rich countries are four times higher for poor countries than for industrialised countries.

* Rich countries have increased agricultural subsidies instead of cutting them, costing developing countries $US20 billion a year.

* Rich countries continue to restrict the international trade in textiles and garments, trade items that are amongst the most important to developing countries.

* Industrialised countries reinforce trade liberalisations in their favour through the loan conditions applied to money provided by the World Bank and the IMF – one recent IMF review of 23 of its programmes found that they included 186 loan conditions related to trade. Many of the allowances made for protection of national industries that were available to the Asian countries, and that had some measure of success in promoting growth there, have been withdrawn in agreements with other developing nations.

This information comes from a report called Eight broken promises: Why the WTO isn’t working for the world’s poor. A more complete report, also by Oxfam, is Rigged rules and double standards: Trade, globalisation and the fight against poverty. Read it, especially if you support free trade. You might wonder what’s being done in its name.

Under IMF and World Bank financing arrangements it is less global integration that is being pursued than a modern form of colonialism. For example, IMF documents show 167 loan conditions (as they are called) attached to a finance package for Ecuador. They included orders to raise the price of cooking gas by 80 percent; to eliminate 26,000 government jobs; to cut real wages for the remaining workers by fifty percent in a four-step timetable drawn up by the IMF; and to transfer ownership of its largest water system to foreign operators.

Another example is Tanzania. World Bank and IMF documents show that “assistance” to that country required 157 conditions including demands that the government charge for hospital treatment, charge for school attendance and a general requirement to sell off state-owned industries, which basically means the transfer of ownership of utility and communications industries to foreign multinationals.

The results have included a 53 percent drop in the number of people being treated in hospitals (in a country where 1.3 million people have AIDS) and school enrolment dropping from 80 percent to 66 percent and still declining. Also, over fifteen years, the GDP rate per capita in Tanzania dropped from $309 to $210 and poverty now afflicts 51 percent of the population. When reports showed that there was some hostility to these measures, the World Bank noted sadly that, “one legacy of socialism is that most people continue to believe that the State has fundamental role in promoting development and providing social services”.

These examples come from a book by journalist and lawyer, Greg Palast. He has plenty more just like them, but all with the same theme – the imposition of draconian trade and financing conditions on developing countries. All result in massive social dislocation and civil unrest, death and impoverishment, a net transfer of wealth from the poor countries to the rich – all in the name of “free markets”, “free trade” and “globalisation”.

If you actually believe in free trade and you think these international organisations are fighting the good fight in the name of open markets, the book is probably worth a read.

Palast relies on leaked documents from the IMF and World Bank which are rather more blunt than the ones that usually see the light of day. For those who prefer their facts from more pure sources, Joseph Stiglitz is your man. As a former US government adviser and chief economist at the World Bank, not to mention a Nobel laureate in economics, they don’t come any more reputable.

Stiglitz is clear: “The issue that is commonly debated – namely, whether we should be “for” or “against” globalization – is not the salient one. As a practical matter there is no retreating from globalization. The real issue is the conduct of the international economic organizations that steer it.” Stiglitz cites the example of Ethiopia, where the IMF suspended its aid program. The reasons for that suspension were unfathomable if your criteria is standard economics, a little more transparent if you apply the logic of power politics.

One reason for withholding aid was because Ethiopia had a balanced budget. This wasn’t good enough for the IMF or the USA, according to Stiglitz who, remember, was privy to the negotiations. They wanted Ethiopia to produce a surplus, which would require cutting services or raising taxes, “a difficult action in any country, but especially in a desperately poor one”.

Another reason for withholding assistance was that Ethiopia had repaid a US bank loan early, using some of its reserves. The IMF and the US didn’t like this, and were willing to cut off the funds because Ethiopia hadn’t consulted them before doing it. But as Stiglitz asks, “Why should a sovereign country – one whose policies had convincingly demonstrated its capability – have to ask permission of the IMF for every action it undertakes?” At the time the IMF and the US were chastising Ethiopia and punishing it the country had no inflation, growing output and a Prime Minister, Meles Zenawi, who was committed to economic reform.

For those who think that the IMF, World Bank etc are independent institutions operating outside the realm of base politics and national power tactics, it is as well to remember this description from “free-trade” advocate, Robert Kuttner: “The United States, as the world’s largest economy and as devout believer in laissez-faire, is the system’s special patron.” A more delightful euphemism I dont think I’ve ever seen.

The point Stiglitz and others are making is that those who set the rules for it do not abide by their own rhetoric, not even the “special patron” who is such a “devout believer” in it. They never have. “They don’t care,” says Stiglitz, “if people live or die.”

But the loudest proponents of “free trade” characterise protestors against the World Bank, the IMF, or perhaps the World Economic Forum as being “anti-globalisation”. The media falls for it. Thinking people shouldn’t. The label is an effective propaganda tool but that’s all. Such protestors are not against greater global integration; they just object to the way such measures are enforced by the rich over the poor.

Thus the objections from Oxfam, Stiglitz and other concerned critics are not based on a rejection of international trade but on an increase in it. Only a liar could characterise this as “anti-globalisation”.

What we see, then, is less the weaknesses of neo-liberal policies themselves (which is a whole other story) and more the vagaries of the raw application of power which those in control of it choose to call “free trade”. As was noted with approval by Marc Levinson in Foreign Affairs magazine in regard to the implementation of the North American Free Trade Agreement (NAFTA), a trade treaty between the USA, Mexico and Canada: “The underlying purpose of NAFTA was not to promote trade but to cement Mexico’s economic reforms.” In other words, the idea was to ensure that any future government, a “democracy opening” as Levinson put it, would be “locked into” a series of agreements favourable to the US.

There are other examples where the official literature makes clear the reality of “free trade”. The OECD, in regard to high tech industries, tells us that “Oligopolistic competition and strategic interaction among firms and government rather than the invisible hand of market forces condition today’s competitive advantage and international division of labour in [these industries]”. This quote comes from Who’s Bashing Whom: Trade Conflict in High Technology Industries by Laura Tyson, Dean of London Business School and former US Government economics adviser. It’s another good read.

NAFTA and agreements like it not only serve the purpose of “locking in” countries to terms of trade and economic arrangements favourable to the dominant partner, they also act as disciplinary measure within countries. Again, it is not adherence to the beauty of neo-liberal prescriptions that matter, but how such agreements allow key governments and corporations to exercise control.

One of the tools of this is to increase worker insecurity. No less an authority than Alan Greenspan, head of the US Federal Reserve, has acknowledged the efficacy of such an approach. He told the US Senate Banking Committee in 1997 that “sustainable economic expansion” thanks to “atypical restraint on compensation increases, appears to be mainly the consequence of greater worker insecurity”. In other words, economic expansion is aided greatly by the wage restraint bought about by worker insecurity. Greenspan wasn’t objecting.

How do NAFTA and trade instruments like it achieve this end? Check out economist Kate Bronfenbrenner’s report, available here. Professor Bronfenbrenner is an economist at Cornell University and she summarised her reports findings in testimony before US Trade Deficit Review Commission (and from which the above Greenspan quote comes). “Under the cover of NAFTA and other trade agreements,” Bronfenbrenner testifies, “employers use the threat of plant closure and capital flight at the bargaining table, in organizing drives, and in wage negotiations with individual workers. What they say to workers, either directly or indirectly, is if you ask for too much or don’t give concessions or try to organize strike or fight for good jobs with good benefits, we’ll close, we’ll move across the border just like other plants have done before.”

She continued: “Our research shows that in NLRB certification elections, more than 50 percent of employers made threats to close all or part of the plant during the organizing drive. This is nearly double the 29 percent of employers who made plant closing threats during NLRB campaigns in the late 1980’s [sic] before NAFTA came into effect.”

Of course all such threats – let alone actually closing down plants in this manner – are illegal under these “free trade” agreements, though, as Bronfenbrenner’s report shows, this doesn’t stop them being made. Threats can be direct or indirect, but when corporations decide on the latter course subtle is not the word that springs to mind. During the “UAW campaign at ITT Automotive in Michigan in March 1995, management removed an entire production line overnight, wrapped it in shrink-wrap, set the equipment on 13 flatbed trucks in front of the plant with hot-pink signs that said, Mexico Transfer Job”.

For those who argue that such “free trade” arrangements represent a “dispersal of power” and opportunities for more worker control over their lives, Bronfenbrenner has this to say:

“The ripple effect of public anxiety over job loss and the effects of NAFTA goes far beyond the relatively small number of companies that shut down plants and move operations to Mexico and other countries. Thanks to a combination of employer threats of plant closings, actual plant closings, and media coverage, a climate of insecurity has been fostered which affects every worker, union or non-union, in every industry.”

Under such circumstances, free trade agreements are nothing of the sort: they are instruments of power, used by corporations and governments to enforce conditions favourable to the wealthy few, not the dependent many. When they don’t work as intended, the more powerful partner can just choose not to play by the rules.

The tomato wars between the US and Mexico illustrate the point. Under the terms of NAFTA, Mexico had increased its exports of tomatoes to the US. (They are more efficient and technologically advanced producers than their US counterparts.) US producers complained, accusing Mexico of “dumping”. The case went to the International Trade Commission (ITC). The ITC voted 4-1 against the Americans, arguing that Florida’s farmers were not being disadvantaged. Still, the farmers continued to pressure the US Government to impose tariffs. The Clinton White House was also involved, well aware of the fact that Florida had switched from George Bush I to Clinton in 1996. They wanted to make sure they stayed switched. Mexico was threatened with tariffs and eventually agreed to a “voluntary” quota system, which in free trade terms is a worse result than a tariff.

Mexican farmers are punished while those from Florida, the ones from the country with “a devout belief in laissez-faire”, are protected. But this is only a worry if you actually believe in free trade. It isn’t so bad if you need Floridian votes. As usual, rhetoric and action don’t match.

We in Australia, then, would do well to keep these matters in mind and to maintain pressure upon our government as it continues to pursue “free trade agreements” with countries in our region and most especially with the United States. Yes we would like something done about the ridiculous subsidies paid to agribusiness in the US that keep our agricultural products out, but we have to be careful of what we are giving away into the bargain. These guys play for keeps.

Ultimately, as Oxfam and other serious critics of international trade practice note, the argument is not just about whether “globalisation is inherently good or bad”, it is about the conditions under which it is being imposed.

We might paraphrase Gandhi who, when asked what he thought about British civilisation, replied that he thought it would be a good idea. So too with free trade. As a principle it may be all very well, but what the record of current “free trade” practice shows is that the agreements and conditions that govern it are less the instruments of genuine trading opportunities designed to integrate poorer countries into the world market place, than disciplinary tools that favour the already wealthy. Proponents of free trade should be outraged.

***

Dr Aaron Oakley

Good on you for publishing Gerry Jackson, despite his “incorrect” views.

When Glen Condell challenged me to read Joseph Stiglitz, I pointed out that none of us (Condell and I) were in a position to judge Stiglitz’s work.

Interestingly enough, economist Dr Frank Shostak, who also writes for The New Australian, sank the following boot into Stiglitz in newaustralian. I would advise Mr Condell to read Dr Shostak.

Also, it is worth clarifying my position re The New Australian. I was once an environmentalist, and wilderness society member. I opposed the Franklin dam, the Wesley Vale pulp mill, and other developments.

As a science undergraduate at the University of Tasmania, I gradually came to realise that the green movement had lost the plot. I now believe that the movement has been hijacked by fanatics who are prepared to use any argument, no matter how badly thought out, no matter how unscientific or wrong, to frighten the populace into supporting their agenda.

I write for The New Australian (fee gratis!) on environmental issues – mainly exposing green bias in the press and on the ABC, and exposing falacious claims made by Greens. I feel my scientific training allows me to do so.

I do not write on economic matters, feeling that I am not qualified to do so. When I say qualified, I do not mean in the sense of formal qualification, but in the sense of having the depth and breadth of knowlege.

It is worth stressing that I receive no funding from industry to support my work. I am a junior academic at an Australian university. I write for the New Australian in my own time and at my own expense.

***

Paul Walter in Adelaide

Reading an article by Tim Colebatch in The Age crystallised thoughts I have had lately reading Webdiary. The really good political/economy writers(Grattan, Steketee, Gittins, Davidson and the like) are able to write economically and get a point across by, paradoxically, confining themselves to an aspect or fragment of the wider discourse they wish to elaborate upon. They use that as a means for illuminating some more universal point involving “the system” that may not be working too well at the time, rather than trying to produce a “unified theory of everything” using incomprehensible words of six syllables or more and employing convoluted language, and a patronising exclusive tone in the exegesis.

I have done the above myself repeatedly as a low level arts student. Examiners of my essays constantly warn me about the perils of this “Post-Doctoral Thesis” tendency, and I often incur mediocre marks for my pains.

Last year, when Webdiary tended to be crisp, short and sweet, involving any voices and more diverse subject matter, the reader benefited from this sharp editing. Unfortunately people pushing particular barrows seem to have decided that the time is ripe for colonisation of these spaces, and Webdiary is suffering for it.

I am NOT saying that attempting to deal with deeper subjects in greater depth has been wrong.They are complex subjects sometimes involving much professional expertise and specific jargon which must be understood at the basic level if a reader is to progress to a deeper understanding of underlying issues of control and distribution of wealth, meaning and power, and hidden agendas.

It just seems that some contributors have seemingly almost deliberately tried to complicate issues rather than explain them or expose their real significance.We know “Academic” writing is an art, and required for the transmission of ideas between experts in given fields. But if Webdiary is to remain accessible – a people’s page – then at least a few contributors would need to alter their styles(but not substance) in order to successfully elaborate on the issues that concern them for a wider community audience.

***

James Woodcock

A quick observation from a economic non-expert leftist.

Gerard Jackson’s reply proves that if you give an economic rationalist enough verbal rope they will eventually hang themselves. In defending economically correct Hong Kong against interventionalist Singapore Jackson states:

“Wojdylo’s accusation that the British didn’t try to alleviate the housing problem is just not true. By 1964 about 20 per cent of the population were living in government re-settlement blocks, shanty towns were being cleared and old tenements torn down.”

Whoops! Twenty percent of the population living in government housing hardly sounds like a “value-free” market setting its own levels. Sounds downright Socialist to me.

In the spirit of John Wojdylo’s Rousseau piece, people may like to read or re read John Ralston Saul’s Voltaire’s Bastards. His main thesis is that often systems of thought (like current economic theories) are internally logical or consistent yet when subjected to external metrics like history or raw human experience, they fall hopelessly apart.

This does not however stop people in power imposing these self-fulfilling realities on us all. With great style and wit he manages to tie together French public health policy, the arms trade and economic rationalism. and shows how by moving beyond these constructs there is a better way out there.

The ASIO parliamentary committee, under the chairmanship of former Liberal minister David Jull, has followed the precedent set by the Senate’s terror legislation committee in calling for a sweeping overhaul of the government’s ASIO terror plans.

Jull and Coalition colleagues Paul Calvert, Sandy McDonald and Stewart Macarthur joined with Labor’s Kim Beazley, Robert Ray and Leo McLeay to produce a bipartisan report faithful to Australia’s democratic traditions and freedoms and with a healthy skepticism of unfettered state power. For my report on the constructive style and approach of the hearings, see Take em on, Beazley.

Because of the importance of the matter and the quality of the report, I publish extensive extracts. The full report is at parliament

It again looks like the Government’s jack-boots instincts will be held in check by a dedicated group of Australians who made submissions, parliamentary committees whose members have a firm grasp of the need for balance and have listened to the evidence, and a concerned Liberal backbench determined to take on Cabinet on despite the emotional momentum behind its cause.

This saga has proved a breath of fresh air and a credit to the Australian democratic system. It will be great to see Attorney-General Williams and the Cabinet which backed him suck eggs yet again.

ADVISORY REPORT ON THE ASIO LEGISLATION AMENDMENT (TERRORISM) BILL

CHAPTER 1 – INTRODUCTION

…1.3 The ASIO Terrorism Bill is the most controversial piece of legislation ever reviewed by the Committee. Over 150 submissions were received, most of which were opposed to the provisions in the Bill.

…1.10 ASIO is the Commonwealths domestic security intelligence organisation. It is responsible for protecting Australia and its people from espionage, sabotage, politically motivated violence, the promotion of communal violence, attacks on our defence system and acts of foreign interference.

1.11 The purpose of the Bill is to amend the ASIO Act 1979 by expanding the special powers available to ASIO to deal with terrorism.

1.12 Specifically, the Bill proposes:

* including the definition of a terrorism offence in the ASIO Act;

* providing a power to detain, search and question persons before a prescribed authority; and

* permitting personal searches to be authorised in conjunction with detention warrants.

1.13 The Attorney-General, in his second reading speech, stated: “Importantly, we have introduced a range of new terrorism offences. In order to ensure that any perpetrators of these serious offences are discovered and prosecuted, preferably before they perpetrate their crimes, it is necessary to enhance the powers of ASIO to investigate terrorism offences.

1.14 The amendments contained in the Bill will empower ASIO to seek a warrant from a prescribed authority (PA). A PA can either be a Federal Magistrate, a Deputy President or a legally qualified member of the Administrative Appeals Tribunal (AAT). The warrant provides for the detention and questioning before the PA of persons who may have information that may assist in preventing terrorist attacks or in prosecuting those who have committed terrorism offences.

1.15 The warrants may provide for:

* a person to be immediately taken into custody by a police officer and brought before a PA for questioning and detained under arrangements made by a police officer.

* detention for a period up to 48 hours. Proposed subsection 34D(2) empowers the Director-General of ASIO to seek a warrant which allows for the detention and questioning of persons who may have information that may assist in preventing terrorist attacks or prosecuting those who have committed terrorist offences.

* Successive warrants can be issued, subject to the limits proposed in subsection 34C(5), which require warrants allowing detention beyond 96 hours to be issued by a Deputy President of the AAT.

* detention incommunicado. Proposed subsection 34F(8) states that a person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention. This prohibition may be qualified by the terms of the warrant or a direction issued by a PA.

* a person not being able to decline to give information or produce a document. Proposed subsection 34G(3) states that a person who is before a prescribed authority for questioning under a warrant must not fail to give any information requested in accordance with the warrant (penalty: imprisonment for 5 years).

1.16 ASIO may not seek a warrant without the Attorney-General’s consent. In consenting to such a request, the Attorney-General must be satisfied that:

* there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence (proposed paragraph 34C(3)(a));

* relying on other methods of collecting intelligence would be ineffective (proposed paragraph 34C(3)(b)), and,

* if the warrant involves detention, there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained he or she may alert a person involved in a terrorist offence, may fail to appear before the prescribed authority or may destroy, damage or alter evidence described in the warrant (proposed paragraph 34C(3)(c)).

Accountability measures

1.17 The Attorney-General, in his second reading speech, indicated that the Bill “contains a number of safeguards to ensure that a person is treated fairly whilst in custody or detention”. For example, when a person appears before a prescribed authority, that authority must explain what the warrant authorises ASIO to do and the period the warrant is in force. In addition, the person will be advised that they can make a complaint to the Inspector-General of Intelligence and Security (IGIS) or the Ombudsman.

1.18 The IGIS will be provided with a copy of all warrants issued and a statement containing details of any detention that has taken place.

1.19 The Bill, however, does not appear to contain penalty clauses for officers who do not administer parts of the Bill correctly. In addition, there is no provision in the Bill for redress or compensation in the event that a person is wrongfully detained.

… 1.26 (The definitions of a terrorist act in the ASIO bill are the same in the general terrorism package. The ASIO committee backed the Senate commitee’s adverse findings on the definition.) In relation to the ASIO Legislation Amendment (Terrorism) Bill 2002, the broad definition of terrorism would seemingly allow for the detention and questioning of individuals without legal representation who may not know anything about a terrorist activity, but could belong to or support various protest groups and organisations, or could merely be relatives or associates of persons suspected of engaging in activities within the scope of the broad definition of `terrorism’.

International comparisons

1.27 Australia is not alone in adopting a legislative response to the terrorist attacks of 11 September. Both the United Kingdom and the United States of America responded to 11 September by extending their pre-existing anti-terrorism laws.

1.28 Unlike Australia, however, which has not implemented anti-terrorist legislation previously, both the United Kingdom and the United States have had a long history of terrorist violence. The United Kingdom has had anti-terrorism legislation for over four decades while the United States ofAmerica has had such legislation for approximately two decades.

United Kingdom Prevention of Terrorism Acts

…1.31 The Prevention of Terrorism (Temporary Provisions) Act 1974 came into being in response to a prolonged period of terrorist activity in the United Kingdom. This Act was intended to expire within 6 months but it lasted until 2000.

1.32 The key elements were:

* the Act proscribed the IRA and made support for it illegal;

* the legislation allowed the exclusion of persons involved in terrorism from the United Kingdom; and,

* the Act permitted the arrest and detention of any person whom the police reasonably suspected was subject to an exclusion order, guilty of a related offence, or concerned in the commission, preparation or instigation of acts of terrorism. These persons could be detained for 48 hours and the Secretary of State could extend this by a further 5 days.

The Act also permitted the Secretary of State to issue orders allowing police and immigration officers to stop and search persons at ports or borders.

1.33 Detention was reviewable by a writ of habeas corpus (a legal action which compels authorities to bring someone in custody before a court.) However, despite the large number of detentions under these provisions, such writs were rare. Moreover, given the short duration of detention, such action was practically unavailable in most cases.

1.34 The Terrorism Act 2000 largely reincorporated these provisions but also made some significant changes. The power to extend detention was transferred from the Secretary of State to the judiciary as a safeguard measure.

1.35 Only a judicial authority therefore could extend detention if satisfied that doing so was reasonably necessary to obtain or preserve relevant evidence and that the relevant investigation is being conducted diligently and expeditiously.

Legislation in the United States

1.36 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001) focuses on proscribed organisations, associated offences and law enforcement powers.

1.37 The Act provides for the mandatory detention of any alien whom the Attorney-General has reasonable grounds to believe is an inadmissible alien. This was defined to include persons who have incited or engaged interrorist activity and members or representatives of foreign terrorist organisations. The Act does not apply to US persons.

1.38 The Act extends the definitions to cover persons who use a position of prominence to endorse or espouse terrorism, or belong to a group thatendorses terrorism, in a way that undermines United States efforts toreduce or eliminate terrorist activities. It also broadens the definition of engaging in terrorist activity to include incitement, preparation, information gathering, planning and soliciting funds or members for terrorist activities or organisations.

1.39 The Act provides that decisions by the Attorney-General may be reviewed by writ of habeas corpus. Thus, there is no administrative review, although it is claimed that the habeas corpus review grounds closely parallel some of the judicial review grounds.

Objectives and scope of the inquiry

1.40 The majority of evidence to the inquiry has called for the Bill to be abandoned in total or key provisions removed. The Committee heard these calls but also sought to seek solutions which would ameliorate the major concerns that were raised. Witnesses were tested along these lines about a range of possible measures which would improve the Bill. The key areas of the Bill on which the Committee focused its attention includes:

* the status of the prescribed authority;

* access to legal representation;

* the maximum duration of the detention period;

* the need for protocols governing the detention of persons;

* application of the Bill to persons under 18;

* the issue of self-incrimination;

* access to judicial review; and

* a range of accountability measures including adequate reporting of the number of warrants issued and the use of a sunset clause to strengthen public confidence.

CHAPTER 2 – WARRANTS

Background

2.1 Under the Bill, provision is made for the issuing of two types of warrants, a questioning and/or a detention warrant. These warrants would grant ASIO for the first time the law enforcement power of questioning, but not arrest powers.

2.2 Proposed paragraph 34D(2)(a) sets out the criteria for issuing a warrant requiring the appearance of a person before a prescribed authority. Failure to appear would carry a penalty of 5 years imprisonment.

2.3 Proposed paragraph 34D(2)(b) provides for a warrant to be issued that requires a person to be taken into custody and detained for 48 hours. Under this warrant a person may be denied contact with anyone not specified in the warrant.

…2.5 Proposed section 34C describes the process by which the Director-General of ASIO may apply for the warrant by seeking the consent of the Attorney-General and the factors which need to be considered by the Attorney-General in issuing these warrants.

2.6 Proposed section 34D provides that a prescribed authority may issue warrants for questing and/or detention. The process that the prescribed authority must follow is outlined in this section.

Conclusions

2.24 The status and role of the prescribed authority (PA) is a critical part of the Bill. The PA must be of a certain status which ensures transparency, accountability and provides confidence to the public. This can only be achieved if the authority for issuing a warrant is judicial. The Administrative Appeals tribunal (AAT) is an instrument of executive government and therefore should not be given the power to issue warrants.

Recommendation 1: Proposed section 34B, and consequential parts, of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide for:

* Federal magistrates to issue all warrants;

* Federal Judges to issue all warrants where detention will exceed 96 hours; and

* members of the AAT, as set out in proposed subsection 34B(1), to undertake all other duties of the prescribed authority excluding the power to issue warrants.

***

Proposed section 34C – duration of the detention period

..2.34 There was considerable criticism and some confusion in relation to the length of time a person could be detained under the proposed legislation. At a public hearing the Attorney-Generals Department confirmed that a warrant could be extended for an indefinite period of time.17 This was criticised by the Law Council of Australia who stated in their submission: “Of utmost concern is that the Bill envisages that second and subsequent warrants each up to 48 hours may be obtained. There is no restriction whatsoever on the number of such warrants which may be obtained and hence the overall period of continuous detention, except that where warrants will result in a continuous period of more than 96 hours, warrant authority must be sought from the Deputy President of the AAT.”

2.35 Amnesty International stated that the ability to further extend the initial period of 48 hours detention indefinitely by repeatedly reissuing new warrants violates obligations regarding arbitrary detention. 19 Article 9 of the International Covenenat on Civil and Political Rights (ICCPR) recognises the right not to be arbitrarily detained. Further to this, they suggest that at the very least, a limit must be placed on the number of warrants obtainable against the one person.

2.36 The Castan Centre for Human Rights Law argue that article 9(1) of the ICCPR prohibits arbitrary detention. Further to this they advised the Committee that articles 9(3) and 9(4) of the ICCPR require oversight by a judicial body, rather than a quasi-judicial substitute.

2.37 The Australian Section International Commission of Jurists add support to this stating in regards to the legislation as a whole: “The Bill, if it becomes an Act, will breach our obligations under the International Covenant on Civil and Political Rights. This Bill is an unprecedented affront by Australia, if enacted, to the instruments to which we have adhered over generations and which were promulgated by the United Nations.”

Conclusions

2.38 The provision for indefinite detention proposed in the legislation is an issue of some concern. A person who has not been charged with an offence should not be detained for an indefinite period of time.

2.39 The Committee therefore proposes to introduce a maximum limit for detention of 7 days (168 hours). Therefore, a person could not be detained for longer than 7 days under the Committee’s amendment.

2.40 In relation to ASIO’s powers to seek warrants, ASIO indicated that the Director-General may only seek a warrant `if the Attorney-General consents to this’. The EM in relation to proposed subsection 34C(5), states

that ‘if the Director-General is seeking a further warrant in relation to a

person who has already been detained under two consecutive warrants,

the Director-General must seek the warrant from a Deputy President of

the AAT.’ It is not explicit that, in seeking a further warrant, the Director-General

has first requested the need for a further warrant from the

Attorney-General. This should be made explicit in the Bill.

Recommendation 3

2.41 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the maximum period of detention of a person is no more than 7 days (168 hours), and at the expiry of that period a person must be either charged or released.

***

Proposed section 34D – Being brought immediately before a prescribed authority

2.43 Proposed section 34D provides for the issuing of warrants by a prescribed authority. It sets out the types of warrants that may be issued, under what conditions and what may be included in the warrant. The obligations of the person subject to the warrant are also set out.

2.44 A person may be held incommunicado under a detention and questioning warrant. The warrant under proposed subparagraph 34D(2)(b)(ii) will specify all those whom the person is permitted to contact while in custody or detention. Under this provision, a person may be denied legal representation.

… Analysis

2.46 A 28-day period in which a person may be taken into custody is currently provided for under paragraph 34D(6)(b). This 28-day period was criticised as being too long, and misleading in relation to the 48 hours detention proposed under a detention and questioning warrant.

2.47 Subparagraph 34D(2)(b)(i) authorises that persons under a 34D(2) warrant are to be taken immediately into custody by a police officer and brought before a prescribed authority. It is not, however, specified that a person should be taken immediately before the prescribed authority.

2.48 It is conceivable therefore, that a person could be taken into custody but not immediately taken before the prescribed authority. Thus they could spend a number of days in custody before the 48-hour warrant begins.

2.49 Dr Greg Carne states: “The 48 hour time limit for detention is also misleading. The concepts of custody and detention are differentiated. Police have the task of bringing the named person into custody and ensuring custody in periods outside interrogation. The 48 hours detention does not commence until the police first bring the person in custody before the prescribed authority for interrogation. The bill does not specify as to when this interrogation must occur.”

2.50 ASIO stated that, certainly it is not the intention that someone be picked up and kept somewhere for 21 days before being taken before a prescribed authority.

2.51 The purpose of the 28 day custody period was explained by the Attorney-General’s Department as to allow, `for the warrant to be issued and then for the person, for example, to be found. The warrant would stay active for that 28-day period. But the warrant would only allow a period of detention for up to 48 hours.”

2.52 It was the opinion of ASIO that this was an inadvertent omission which could be made clearer in the legislation.

Conclusions

2.53 It is the view of the Committee that subclause 34D(2)(b)(i) needs to be amended so that when a person is taken into custody they are then immediately taken before a prescribed authority. The logistical problems of finding someone named in a warrant is recognised by the Committee however a loop-hole in the legislation which would allow for someone to be kept in custody for a length of time before being brought before the prescribed authority in the Committees view is not justifiable.

Recommendation 5

2.54 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the word immediately is inserted into subsection 34D(2)(b)(i) so that a person is immediately bought before a prescribed authority.

***

CHAPTER 3 – DETENTION

3.1 This chapter examines some of the most contentious aspects of the proposed Bill including, detention of persons, detention incommunicado, the rights and obligations of detainees, and the treatment of persons in detention.

3.2 The Bill provides for the detention of persons who may not themselves be suspected of a crime. Under the proposed legislation, a person may only be detained if the prescribed authority is satisfied that there are reasonable grounds for believing that the person may alert a person involved in a terrorist offence that the offence is being investigated; may not continue to appear or not appear again, before a prescribed authority as required by a warrant; or may destroy, damage or alter a record or thing the person has been requested, or may be requested, under the warrant to produce.

3.3 While in detention, a person may be detained incommunicado without access to legal advice so as to avoid the possibility that the legal adviser would alert terrorist suspects.

3.4 The general provisions for detaining a person are set out under proposed section 34F. Proposed section 34G gives directions as to the requirements of a person when appearing before a prescribed authority for questioning. A person subject to a warrant may not refuse to give information even if doing so might incriminate them.

3.5 Proposed section 34J concerns the treatment of persons while under a warrant issued under proposed section 34D. A direction is given that the person must be treated with humanity and with respect for human dignity.

3.6 No age limit is given in the Bill in relation to persons who may be detained. It is therefore possible for children to fall under the ambit of the legislation and be held in detention and incommunicado without their parents knowledge.

Proposed section 34F – Detention of persons

… 3.13 The provision for detention appears to be a precautionary measure. Detention is proposed:

* as the person may pass on information to someone suspected of planning a terrorist activity that ASIO is investigating;

* because the person may destroy or alter records that may be important to an investigation; and,

* so ASIO may continue to question someone if there is a belief that the person may not continue to appear before the prescribed authority.

3.14 A number of individuals and organisations expressed strong concerns relating to the detention provisions. These concerns relate to:

* detention incommunicado without access to legal representation;

* the absence of any protocols concerning the circumstances of detention of persons; and

* no protection against self-incrimination for information, relating to a terrorism offence, provided at an interview;

* lack of penalties for officials who fail to comply with the legislation; and

* the detention of children.

Proposed section 34F Incommunicado detention and legal representation

3.15 Proposed subsection 34F(8) provides for a person under a warrant to be held incommunicado. A person will be refused the right to contact any one not specified in the warrant. Thus a detainee may not be able to contact their family, their place of work, and most importantly have access to legal representation.

3.16 The Castan Centre for Human Rights Law commented that “the incommunicado aspects of the detention is one of the most potentially dangerous aspects of this Bill”.

3.17 The Attorney-General’s Department justified the need for incommunicado detention on the basis of ensuring that a potential terrorist could alert other terrorists or dispose of evidence. What “was primarily behind this provision was the operational aspects of how the agency thought that it would do its work and how best to ensure that somebody who might be in a position to pass out information that then could result in either a terrorist attack happening or letting people know that they are in custody”.

3.18 It was argued by Amnesty International that one of the key premises on which the provision is based, that detaining people will lessen the chance of a detainee being able to tip off someone involved in a terrorist activity, will simply not work. “Amnesty International finds it difficult to believe that a person’s disappearance for 48 hours without contact with their family or friends would not draw similar attention to an investigation.”

3.19 One of the focus areas during the scrutiny of incommunicado detention was the possibility that a person would be denied access to legal representation. The Law Council of Australia commented that it sees “no reason why a citizen who is subject to the potentially frightening prospect of having to give evidence against their neighbour or someone like that should not have the right to legal representation.”

3.20 During hearings, the option of having a panel of lawyers, who are security cleared and appointed by various law councils, available to provide legal representation was examined. The Law Council of Australiastated: “If you have a concern about a lawyer being a possible breach of security requirements, there are ways in which that can be overcome. But the fundamental right must be that a person taken into custody by administrative action and not supervised by judicial process has access to legal advice and can take certain steps, whatever they may be, to secure some form of justice. This legislation does not permit that. It is a gross departure from every standard that currently governs the way in which we legislate for criminal and other conduct.”

3.21 The NSW Council for Civil Liberties acknowledged that the creation of a pool of cleared legal representatives would be “a basic minimum standard that could be applied”. However it warned that the problem is “if you create that environment, you may get someone who is not going to look after the best interests of the person because they are in a compromising position: if they do that, they may have their security clearance rejected or revoked.”

3.22 Professor George Williams supported the proposal for a pool of legal representatives “as long as those people were chosen, say, in consultation with the Law Council of Australia or some other appropriate body to make sure that there was outside input”.

3.23 The Islamic Council of Victoria supported the proposal but warned that some of the lawyers selected should have knowledge of the Muslim community.

3.24 ASIO indicated that the possibility of providing legal representation from a pool of cleared lawyers was not canvassed during the development of the Bill. However, ASIO did raise the following concern about the proposal. “I have no comment on the suggestion that someone detained should have access to independent legal advice. However, I would have concerns from where I sit about someone detained having access to a legal representative, up front, to engage in an adversarial process. I believe that would defeat the purpose of the timely intelligence in certain crucial situations.”

Conclusions

3.25 The Bill provides for detention incommunicado. No provision is made for the person who is the subject of a warrant to have access to legal representation. Evidence to the inquiry was opposed to this arrangement particularly in view of the fact that a person would not have the right to silence. The Committee agrees that this is an unacceptable situation, which must be rectified.

3.26 The Attorney-General’s Department suggests that access to a lawyer could lead to information about the person in detainment being made public. This position is unsustainable. The Committee notes that there is not the same concern about the provision of interpreters under proposed section 34H and the provision of a medical practitioner under proposed subsection 34M(3).

3.27 The Committee proposes the creation of a pool of legal representatives, possibly selected by the Law Council of Australia, who will be security cleared. A person who is detained for questioning under the provisions in this Bill will have access to these legal representatives from a list supplied by the prescribed authority under proposed section 34E.

3.28 The Islamic Council of Victoria suggested that some of the legal representatives should have knowledge of the Muslim community. The pool of available lawyers should, as far as possible, be representative of Muslim and other communities.

Recommendation 6

3.29 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide for legal representation for persons who are the subject of a warrant. The following framework should apply:

* a panel of senior lawyers recommended by the Law Council of Australia to be formed who could represent persons being held in detention;

* the Bill should be amended to allow these lawyers to sit in on the entire proceeding of the prescribed authority, and representa person at any further hearings which seek to extenddetention; and

* the lawyers on the panel may have to be security cleared so as to be eligible to represent people in detention.

Proposed section 34E should be amended to ensure that the prescribed authority must advise the person, when they first appear before the prescribed authority, that they have access to a legal representative from a list that will be given to the person.

***

Protocols governing custody, detention and interview

3.30 It became evident during hearings that there were no guidelines on how certain legislative provisions relating to detention and interview would be implemented and governed. For example, what arrangements would be made when police took a person into custody? Where would a person be detained? Would ASIO officers be with police officers when a person was taken into custody? What are the steps that are taken during the first 48 hour period? How long should an interview be conducted before a break is required? As these issues were discussed, it became clear that a protocol governing custody, detention and the interview process should be developed.

3.31 Dr Greg Carne discussed some international comparisons relating to the issue of a protocol. He indicated that similar provisions are provided for in the UK Terrorism Act. The Minister provides a code of conduct which must then be tabled in the Parliament.14 Dr Carne stated: “Thirty years of experience has suggested that it is both better for national security and better for the states reputation to set down these things in clear terms for minimum compliance with these human rights provisions and to ensure the reliability of evidence.”

3.32 The NSW Council for Civil Liberties commented that “there are very few considerations or protections in place and anything that can be added is of benefit”.

3.33 The Administrative Appeals Tribunal (AAT), which will provide members to act as prescribed authorities, called for protocols to guide the operations between ASIO and the AAT. The AAT commented that “the development of a sensible and fair protocol in relation to all parties would be something that we would see as a priority, once the final form of the legislation is known”.

3.34 Professor Williams supported the need for protocols but advised that there would also be the need for oversight and enforcement. Professor Williams commented that “if that was to happen then you would need a process following that where ASIO would need to demonstrate that they followed their protocols and indeed that this committee perhaps, or the inspector, could actually examine to see whether that occurred”.

3.35 The Castan Centre for Human Rights Law pointed out that an enforceable protocol could act as a powerful accountability mechanism governing the operation of ASIO. Professor Kinley stated: “But woe betide ASIO if it is found out that they did not abide by those, and they did have people standing up against walls etcetera. Maybe one of the statements of intent that could be part of that undertaking would be a protocol. I could see that adding to it. In a way, it is a good compromise because it gives ASIO the opportunity to state these things, yet it gives the judge the opportunity to say, We expect you to abide by these. This is your statement of intent.”

3.36 ASIO accepted the need for the development of a protocol for the treatment of persons in detention. ASIO stated: “I believe it would be a good thing to develop a protocol about the conduct and responsibility of ASIO officers in relation to detention and how people should be treated. I believe such a protocol would be needed anyway and believe personally that, in terms of public trust and confidence, it ought to be approved by the Inspector-General and considered by this committee”.

Conclusions

…3.38 The Committee proposes that ASIO should develop a protocol, which guides the operations of the Bill, in consultation with the Inspector-General of Intelligence and Security, the Australian Federal Police and the Administrative Appeals Tribunal. The protocols should be approved by the Attorney-General. The Committee should be briefed on the protocols as soon as they are developed and then subsequently they should be tabled in the Parliament. The Bill should not commence until the protocols are developed and in place.

3.39 The Inspector-General of Intelligence and Security should monitor the use and application of the protocols. Where a breach of the protocols is discovered, the IGIS should not wait to report this event in his Annual Report. The Committee should be informed of the breach immediately.

3.40 Some of the issues that should be included in the protocols include:

* arrangements for informing the AAT and the IGIS about an impending warrant;

* arrangements for informing the Police;

* arrangements for custody and detention;

* interview duration periods and breaks required during a 48 hour detainment period.

Recommendation 7

3.42 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a proposed section which requires the development of protocols governing custody, detention and the interview process provided for under the Bill.

ASIO should develop the protocols in consultation with the Inspector-General of Intelligence and Security, the Australian Federal Police, and the Administrative Appeals Tribunal. The protocols should be approved by the Attorney-General; the Committee should be briefed on the protocols which should then be tabled in the Parliament; and the Bill should not commence until the protocols are developed and in place.

***

Proposed Section 34G protection against self-incrimination

3.43 The main purpose of the legislation as put forward by the Attorney-Generals Department is to gather intelligence relating to a possible terrorist or terrorist activity.

3.44 The powers provided under section 34G that relate to giving information and producing things are therefore considerable in scope. The proposed legislation reverses the onus of proof which requires that the person prove that they do not have something required under the warrant. Refusal to give information or produce a required record or thing carries a penalty of 5 years imprisonment.

3.45 Declining to give information or to produce a record or thing on the grounds that you might be incriminating yourself is no grounds for refusal.

Analysis

3.51 Scrutiny at public hearings of proposed section 34G focused on the combined issues of the refusal of the right to silence and no protection against self incrimination for information relating to a terrorism offence provided at an interview.

3.52 Terrorism offences are punishable by imprisonment for life. Under proposed subsection 34G(3) a person does not have the right to silence. The penalty for failure to comply is imprisonment for five years. Therefore, a person who provides incriminating evidence relating to a terrorism offence could get life imprisonment or alternatively if the person fails to provide information they could get five years imprisonment. The inadequacy of this arrangement was identified during hearings. In addition, the evidence indicated that it was incompatible for a person to have their right to silence removed and, at the same time, have no protection against self-incrimination for information relating to a terrorism offence which is provided during an interview.

3.53 A further aspect of the investigative powers under the Bill is that they are not primarily a tool to collect evidence for the purpose of prosecution. Rather, the powers are designed for intelligence collection with the purpose of preventing a terrorist attack. It was suggested during hearings that this point seemed to undermine the argument for having a self-incrimination provision. ASIO stated that “in terms of principle, the new powers are intended as an enhancement of ASIOs existing intelligence collection powers”.

The Law Council of Australia stated: “Really, what is happening here is an investigative exercise. It is not an attempt to find evidence against the suspect. It is aimed at, as we see it, people who are not suspects but who are people who know. They are just witnesses. It is never intended that they will be charged or convicted of any criminal offence, necessarily. They are going to provide evidence against other people”.

3.54 The Attorney-General’s Department advised that there were provisions in a range of legislation where it was an offence to refuse to answer questions. These include the National Crime Authority Act, Taxation Administration Act, Education Services for Overseas Students Act, Ozone Protection Act, Census and Statistics Act, Quarantine Act, Migration Act and Motor Vehicle Standards Act.

3.55 At the same time, however, many of these Acts provide protection against self-incrimination. The Law Council of Australia indicated that there were a range of agencies such as the Australian Tax Office, the National Crime Authority and Royal Commissions which provide

protection against self-incrimination for information provided.

3.56 ASIO confirmed that if protection against self-incrimination was provided for, then things said during an interview would not diminish the information that they would be likely to obtain from that person…

Conclusions

3.58 Proposed section 34G requires a person to provide information at an interview. This provision removes the right to silence. In addition, this section does not provide protection against self-incrimination for information relating to a terrorism offence which may be provided at an interview. If a person provides information relating to a terrorism offence they could be subject to life imprisonment or five years imprisonment for failing to give information.

Under this arrangement, logically, a person would remain silent and take the five years imprisonment. This approach is contradictory and incompatible with ASIO’s primary objective, in relation to this Bill, of collecting intelligence to prevent a terrorist attack.

3.59 If the Bill must include a provision where the right to silence is removed then a person must have protection against self-incrimination for the provision of information relating to a terrorism offence. This approach would provide a fair balance if the right to silence were removed. In addition, this approach should, potentially, be a more effective way of collecting intelligence relating to terrorism offences.

3.60 The provision of protection against self-incrimination for information provided at an interview is not the same as immunity from prosecution. A person, for example, could not confess, at an interview, to undertaking a terrorism offence and then gain immunity from prosecution. It is only the information taken at an interview which could not be used in a prosecution. If law enforcement agencies could collect alternative evidence then they could use that information to conduct a prosecution.

Recommendation 8

3.61 Proposed section 34G of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to provide protection against self incrimination for the provision of information relating to a terrorism offence.

***

Proposed section 34J Humane treatment of persons specified in warrant

3.62 Proposed section 34J of the Bill provides that a person being detained under a warrant must be treated with humanity and not subject to cruel, inhuman or degrading treatment.

3.63 In addition to section 34J, there are a number of other sections in the proposed Bill, described by the Explanatory Memorandum, as providing safeguards in relation to the treatment of detainees. These include:

* The Director-General must ensure that video recordings are made of the proceedings before the prescribed authority or any other matter that the prescribed authority directs. These recordings must be provided to the Inspector-General of Intelligence and Security (IGIS).

* The Bill requires the prescribed authority to inform the person being detained under the warrant of the effect of the warrant; the length of time the warrant is in force; the legal consequences of non-compliance with the warrant and the right of the person being detained to communicate with the IGIS and the Ombudsman. Interpreting services must be provided before any questioning can take place if the person detained is unable to communicate in English.

* The person detained has the right to make a complaint in relation to ASIO to the IGIS or, if their complaint relates to the AFP, the Ombudsman. On request, the person detained is to be provided with the facilities to communicate with the IGIS or the Ombudsman.

* The Bill also requires ASIO to give a copy of any warrant issued and a statement containing details of any detention that has taken place to the IGIS. The Attorney-General will also receive a report from ASIO on each warrant…

Analysis

3.65 Proposed section 34J serves an important purpose which is to ensure that officials applying the provisions in the Bill treat a person with humanity and with respect for human dignity. However, there is no incentive in the form of penalties to ensure that these goals are delivered. Scrutiny of the Bill reveals that there are no penalties in the Bill. Professor Williams commented that “this legislation does not provide penalties for, for example, inhumane treatment”. The Federation of Community Legal Centres stated: “What penalties are there for ASIO or for police who violate the processes set out in this act? If an ASIO officer does actinappropriately, how do you take action against them, because it is illegal even to name them? You are not even going to know their name necessarily.”

3.66 The Attorney-General’s Department confirmed that there are no penalties for non-compliance with proposed section 34J or with other “provisions such as that”. However, the Attorney-General’s Department did qualify this answer: “It is rare in legislation to provide criminal penalties for officers going outside the legislation, but one of the key safeguards that overlays this is that, when you put in a legal rule like this, if officers go outside that and can be shown to be negligent, legal action could be taken against the officer, the agency and the Commonwealth.”…

3.68 The Law Council of Australia stated: “..without access to independent legal counsel, the guarantee in s.34J of treatment with humanity and respect for human dignity, and freedom from cruel, inhuman or degrading treatment, is effectively meaningless whilst a person is undergoing questioning or detention. Moreover, no attempt has been made to give any content to this standard in the context of compulsory questioning and incommunicado detention, and hence to provide authorities with any guidance as to the minimum standards of treatment to be applied.”

Conclusions

3.69 The omission of penalty clauses in this Bill is an area which requires rectification. It is unacceptable for the types of measures contained in this Bill not to have penalty clauses attached for actions by officials who do not comply with the legislation. The most prominent omission relates to proposed section 34J which requires the humane treatment of a person specified in a warrant.

3.70 The Attorney-General’s Department indicates that it is rare in legislation to include criminal penalty clauses because, in any event, legal action could be taken against an officer if it could be proven that they were in breach of a legal rule. This is not a satisfactory response. The inclusion of a penalty clause applying to proposed section 34J, and other sections in the Bill, would send a clear message to the public and government officers, that severe penalties will be incurred for non-compliance with the law. Therefore, proposed section 34J, and other relevant sections, should have a note attached to them indicating that penalties apply.

Recommendation 9

3.71 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include penalty clauses which will apply to officials who do not comply with the provisions of the Bill. In particular, a penalty clause must apply to the operation of proposed section 34J.

***

Detention of Children

3.72 The Bill does not place an age restriction on who may be detained. It is therefore possible that children could be detained under the legislation. The only reference to children in the Bill comes under proposed subparagraph 34M(1)(e) which places an age restriction of under ten years on strip searches.

Analysis

3.73 In a radio interview for the Law Report, Radio National, the Attorney-General was asked if children would be included under the legislation. He commented that “anyone who has information would be appropriate to be detained”.

3.74 The Attorney-Generals Department on being asked by the Committee why the provision for strip searching 10 year old children was in the proposed legislation stated:

“This is a replica of the Crimes Act provisions in sections 3ZH and 3ZL, dealing with the strip search. The same rules apply as to police in the Crimes Act. The key thing is that the power can only be accessed if there are reasonable grounds to suspect a person has an object that could be a danger to a person or assist their escape. So in practice the situation where a 10-year-old would have such an item would be extremely limited. Nonetheless, if they did – and there are real circumstances where a 12-year-old may have a gun or something like that – rather than artificially say You can never do anything about it, the provision lays down a mechanism so that you can talk to the prescribed authority, meet the safeguards and remove that item.”

3.75 ASIO acknowledged that children could be subject to the legislation. “There is nothing in the bill that distinguished detention of adults and detentions of people who are below the age of 18 and I think there ought to be some room to work on that.”

3.76 The Law Institute of Victoria, Young Lawyers Section pointed out disparities between the treatment of children under the Bill and the provisions for their treatment under the Crimes Act. “The proposed Bill provides that a child under the age of 18 may be detained for 48 hours the same period as for an adult. Presently under the Crimes Act 1914 (Cth) a child may be detained for only 2 hours – half the time of an adult.”

3.77 In relation to strip searches the Law Institute of Victoria stated: “The proposed Bill provides for children between the ages of 10 and 18 to be strip-searched without sufficient protection against abuse of the process. Presently under the Crimes Act 1914 (Cth) a Magistrate is guided as to what they must consider in deciding to permit a strip search of a suspect under the age of 18.”

3.78 Some groups, in evidence, raised concerns about the lack of guidelines for questioning children. For example, the length of time children might be detained or who might be there to support and protect the rights of the child. The submission from Amnesty International states: “It is unreasonable that under this legislation a 10 year old child could be held and questioned without the ability to notify his or her parents of the fact of their detention, and the place that they are being kept in custody. It is also unreasonable that a child is not able to have an `interview friend’ present with them during questioning.

3.79 Dr Jenny Hocking from Monash University stated: “It is extraordinary that a democratic nation adhering to notions of the rule of law can even contemplate the passage of legislation which would permit children to be taken and held incommunicado without their parents knowledge, let alone consent. That children can be held without suspicion of their involvement in any offence, without legal representation, strip searched and questioned is an appalling proposal and one which has no place in a humane and just society.”

3.80 Mr Gabr Elgafi, from the Supreme Islamic Council of New South Wales pointed out to the Committee the culturally sensitive issues involved in strip-searching. He commented that, in Islam, we are prohibited to appear nude in front of someone. On the particular issue of the stripsearching of children he further stated: “If a husband sees his wife or his 10-year-old kid being searched it is going to be traumatic for him; it is going to cause a lot of disharmony. He is not going to look nicely at them in the future. This guy will be carrying a grudge because he has seen his 10-year-old kid terrified. Searching a 10-year-old kid, asking them to strip, is a major issueand not just for me, I am sure, but with any Anglo-Saxon as well.”

3.81 The Law Institute of Victoria, Young Lawyers Section claimed that the proposed legislation “contravenes 6 articles of the Convention on the Rights of the Child to which Australia became a signatory in 1991”.

Conclusions

3.82 It is a major concern that children could be subject to the provisions in the Bill. The Committee does not support the right to detain or strip-search children as provided for under the legislation. There already exists a procedure under the Crimes Act which allows for the questioning of children.

3.83 The legislation as it currently stands would allow for the detention of a child without the parents’ knowledge. The Bill would also provide for strip searches to be undertaken of children 10 and over. Many protections could be put into the legislation with regard to children under the age of 18, however, it is the view of the Committee that it would be simpler and safer to have the legislation not apply to anyone under 18 year of age.

Recommendation 10

3.84 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to ensure that no person under the age of eighteen years may be questioned or detained under the legislation.

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CHAPTER 4 – ACCOUNTABILITY MEASURES

Introduction

4.1 A constant theme that arose in the evidence was the lack of accountability measures in the Bill and the consequent possible diminution of civil liberties. The powers contained in the Bill are significant and it is essential that a balance is struck between these powers and accountability mechanisms which provide transparency and help to provide greater levels of public confidence.

4.2 In 1999 the then Parliamentary Committee on ASIO, in an advisory report to the Parliament, commented that it “is important that a balance be achieved and that mechanisms be established to give the community confidence that ASIO is performing its functions in a way that is lawful and respects individual rights and liberties”. The Committee considers that the current Bill requires that the balance between secrecy and accountability be reviewed.

4.3 In chapter 3, recommendations were made regarding the need for protocols which govern the detention process. In addition, it was proposed that penalty clauses be applied to key sections of the Bill. In particular, penalties should apply to officers who fail to comply with proposed section 34J requiring that persons specified in a warrant be treated humanely.

4.4 This chapter focuses on the need for higher level accountability measures which focus on the overall operation and timeframe of the Bill. For example, annual reporting of the total number of warrants for questioning and detention will provide the Parliament and the public with greater insight into the operation of this Bill. A further measure is the need for the inclusion of a sunset clause which will terminate the Bill at a predetermined time.

4.5 In addition to these measures, this chapter will discuss the need for enhancements to Parliamentary scrutiny by this Committee and greater powers for the Inspector-General of Intelligence and Security.

Annual Reporting

4.6 The Australian Security Intelligence Organisation (ASIO), under section 94 of the ASIO Act, must provide the Minister with an Annual Report as soon as practicable after each year ending 30 June. The Minister must then table a copy of the report, minus any deletions, in the Parliament within 20 days. In practice, the Minister receives a classified report and will then table an unclassified version in the Parliament. A copy of the classified Annual Report is also provided to the Leader of the Opposition. The 2000-2001 report includes information about ASIO’s corporate governance; people, information and building management; security of ASIO; purchasing practices; use of consultants and contractors; and accountability.

4.7 In relation to accountability, ASIO states that “investigations can be intrusive, so we adhere to a range of accountability measures and safeguards that govern the way we operate’.

4.8 During the inquiry, the issue of reporting the number of warrants sought and granted for questioning or detention was debated. ASIO indicated that the classified Annual Report provided to the Minister and the Leader of the Opposition would “include details regarding the issuing of any warrants under the new powers”.

4.9 ASIO indicated that its public Annual Reports do not include the number of warrants issued. The prospect of aggregated reporting of the number of Ministerial warrants issued was raised in an inquiry by the previous Parliamentary Committee on ASIO. ASIO presented reasons why the number of warrants generally are not publicly reported. However, in relation to public reporting of warrants issued for questioning and or detention under the current Bill, ASIO was less concerned about providing details on these warrants.

ASIO stated: “I would accept in terms of logic that, if this proposed legislation is enacted by the parliament, clearly the secret part of it relates to someone being brought in and questioned. After that is completed – or when an annual report comes around or whatever – the confidentiality of whether you had detained one person or two people or no people during the course of that year I would have thought would have dissipated.”

4.10 The prospect that ASIO will report the total number of proposed section 34C warrants was welcomed by a range of groups. The NSW Council for Civil Liberties supported the proposal but suggested that the measure should be extended to all types of warrants. Similarly, Professor Williams agreed that while the proposal for reporting 34C warrants was an advance, he “would prefer a far higher degree of scrutiny of every case”.

4.11 The Victorian Council of Social Services acknowledged the proposal for public reporting of 34C warrants but commented that “just having an annual report that documents how many times it was used in a year is still not good enough”. The Castan Centre for Human Rights Law was positive about the prospect of comparing the number of warrants sought with the number of warrants issued. “That information would be very useful in at least giving the public some impression of the extent of the use as well as the extent of, for want of a better word, acquiescence of the prescribing authority.”

Conclusions

4.12 ASIO does not currently report aggregate number and type of warrants that are issued. Certain security matters have been raised defending this position. This information is provided in a classified report to the Minister and the Leader of the Opposition.

4.13 The warrants proposed in the current Bill are more intrusive than existing warrants because they affect an individual’s personal liberty and therefore greater accountability is required. ASIO has agreed to publish the aggregate number of section 34C warrants issued. The aggregate number should show the total number of warrants sought, the total number of warrants issued for questioning and the total number issued for questioning and detainment under proposed subsection 34D(2).

4.14 While some groups consider this to be a minimum requirement, the value of scrutinising this information should not be underestimated. The public will have a greater understanding of the use of the measures in this Bill. This Committee scrutinises, on an annual basis, the administration and expenditure of ASIO. The number of section 34C warrants issued will a focus of examination.

Recommendation 11

4.15 The Australian Security Intelligence Organisation must include in its declassified Annual Report the total number of warrants issued under proposed section 34C of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Annual Report should show the total number of warrants sought, the total number of warrants issued for questioning and the total number of warrants issued for questioning and detainment.

Sunset clause and Parliamentary review

4.16 A sunset clause is a legislative instrument that places a fixed time frame on the duration of an Act. It serves the purpose of terminating an Act when it is considered that the purpose of an Act will expire and not be necessary. In addition, a sunset clause can serve as a significant accountability mechanism. A controversial piece of legislation which has a sunset clause will need to be publicly debated and the Government will need to defend its continuation. It is in the context of the latter point that a sunset clause was debated during the inquiry into the ASIO Terrorism Bill.

4.17 The views of a range of groups were sought on the merits of a sunset clause. There was wide ranging support for this proposal…

4. ASIO did note some reservations about the use of a sunset clause commenting that the “the gap in existing powers, which we are seeking to fill is not time specific”. ASIO stated:

“The sort of situations that I think are likely to lead to detention warrants being sought are September 11 type situations. It is not possible to predict when such situations might arise. For instance, you could put in place a three- to four-year sunset clause, have the act expire and have a major incident six to 12 months later. Practicalities would likely prevent the act being resuscitated quickly, for instance, if we were in the middle of an election period.”

4.20 In relation to Parliamentary review, the Attorney-General in his second reading speech introducing the Bill, indicated the Committee “will be asked to review the new powers and provide a report on their operation twelve months after their commencement”.

Conclusions

4.21 The inclusion of a sunset clause in the ASIO Terrorism Bill, in addition to public reporting on the number of warrants sought and granted, is the most powerful accountability mechanism that the Committee can recommend. It is simple in design but sends a confidence boosting message to the Australian public that the Australian Government will need to account and argue the case for the continuation of these powerful laws.

4.22 From a comparative perspective, a sunset provision operates in the US Patriot Act. The Committee was advised by Mr George B Lotz II, Assistant to the Secretary of Defense for Intelligence Oversight that a sunset provision acts to expire certain authorities by 31 December 2005.

4.23 The use of a sunset clause and the proposed review of the Act by this Committee in 12 months, as indicated in the Attorney-General’s second reading speech, should be linked to maximise the quality of the review. There should be a three year sunset clause. That is, at the end of three years, the Act will terminate.

4.24 This Committee should review the provisions in the Bill 24 months after the Bills commencement and not 12 months as proposed by the Attorney-General. This will ensure that the findings of the Committee’s review is a critical part of the consideration of the relevant parts of the Act shortly before they expire as set out under the provisions of the sunset clause.

4.25 It will be up to the Government of the day to argue for the continuation of proposed Part III, Division 3 of the ASIO Act which will be inserted by the Bill. The timing of the Committee’s review will ensure that the Government could, if necessary, prepare and introduce a replacement Bill when the relevant part of the Act expires.

Recommendation 12

4.26 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a sunset clause which will terminate the legislation three years from the date of commencement.

The Inspector-General of Intelligence and Security

4.27 The Inspector-General of Intelligence and Security (IGIS) has wide ranging powers of oversight and scrutiny of the Australian Intelligence Community as set out under the Inspector-General of Intelligence and Security Act 1986.

4.28 The ASIO Terrorism Bill refers to the right of a person, who is subject to a warrant, to make a complaint orally or in writing to the IGIS. The IGIS has the power to review all files relating to any cases of the agency and make determinations about compliance with relevant legislation. The concern was raised during hearings that this may not be a sufficient accountability mechanism because the work of the IGIS is considered to be ex-post facto.

Dr Greg Carne stated:

“The more practical issue then would simply be: when is the review going to take place? This is the problem with this sort of window-dressing aspect, where you can communicate with the Inspector-General, you can communicate with the Ombudsman, but all of that is ex-post facto. It is all after the event.”

4.29 The IGIS indicated that proposed section 34T of the Bill states that “this Division does not affect a function or power of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986”. The IGIS has interpreted this to mean that he “could attend these interrogations and assure myself that they were being conducted with propriety”. However, there was less clarity on what action the IGIS could take if he observed non compliance with the legislation or an impropriety occurring during the interrogation. In response to the possible actions that the IGIS could take during an interview, he stated:

“As I have said, my initial intention would be to attend those interrogations. It would also be my intention, between now and when this legislation comes into operation, to discuss with the Director-General of Security procedures that would enable me to do that.”

4.30 The IGIS indicated, in a supplementary submission, that while most inspection work is carried out ex post facto, some inspection work is carried out on current activities. The IGIS commented that conducting real time inspection work in relation to the section 34C warrants “is particularly desirable given the powers that would be conferred by the legislation and the public interest in having reassurance as to their responsible exercise”.

4.31 The IGIS indicated that he would at the start of the operation of the warrant provision seek to attend the first series of interviews. However, he considered that it may not be necessary to make legislative provision for his attendance at all interviews.

4.32 More importantly, however, was the opportunity for the IGIS to attend any interview and have sufficient warning to make that decision. The IGIS suggested that a procedure could be developed whereby he was made aware of any impending activity at the earliest possible time. The IGIS suggested that this would make it unlikely that questioning could begin before he arrived. The IGIS suggested that this process could be achieved through agreements between him and the Director-General of ASIO “along the lines of agreements we already have for the conduct of inspection activity by the Inspector-General”. Alternatively, the IGIS suggested that the notification regime could be required by the legislation.

Conclusions

4.33 The Inspector-General of Intelligence and Security (IGIS) performs an essential role in the oversight of the Australian Intelligence Community. Under the ASIO Terrorism Bill, persons who are the subject of warrants will be able to make complaints orally or in writing to the IGIS. However, the evidence to the inquiry suggested that much of the work of the IGIS is ex-post facto and in practice may be of little use to a person who is subject to a process that does not comply with the law or if some other impropriety occurs. This is a fair observation and therefore the powers and rights of access of the IGIS need to be clarified in the Bill.

4.34 First, the ASIO Terrorism Bill must contain a provision which ensures that as soon as the Director-General seeks the Minister’s consent to request a warrant then the IGIS must be informed immediately and provided with the details of the warrant.

4.35 Second, the IGIS must have the power to intervene immediately at any stage of an interview if the IGIS is of the view that there is non-compliance with the law or any form of impropriety has occurred. The IGIS should have the power to suspend the interview and refer these matters to the Director-General who would then have to take appropriate ameliorative action.

4.36 Both these measures should provide additional reassurance and confidence to the Australian public.

Recommendation 13

4.37 The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to ensure that when the Director-General seeks the Minister’s consent to request a warrant, under proposed section 34C(1), the Director-General must immediately provide details of the warrant to the Inspector-General of Intelligence and Security.

Recommendation 14

4.38 The Inspector-General of Intelligence and Security Act 1986 be amended to provide the Inspector-General of Intelligence and Security with the power to suspend, on the basis of non-compliance with the law or an impropriety occurring, an interview being conducted under the warrant procedures in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Inspector-General of Intelligence and Security should immediately report the nature of such cases to the Committee.

Judicial review

4.39 During hearings, it became evident that the Bill is not clear on what opportunities a person would have for judicial review of their detention. For example, as discussed previously in this report, a person could be held incommunicado indefinitely with no apparent opportunity for judical review. The proposal was raised during hearings that a person should have the right to judicial review after 24 hours detention and after every subsequent attempt to renew the warrant. If a person is detained incommunicado and it is ASIO’s view that secrecy should be maintained then it is proposed that the court session be closed.

4.40 The Castan Centre for Human Rights Law commented that this “would alleviate some of the problems because it would guarantee some level of judicial intervention after 24 hours”.

4.41 The Federation of Community Legal Centres acknowledged that this proposal would provide ‘minor improvements’ but there are still problems that remain. It warned that it would still be the responsibility of the person to request the right to go to the Federal Court. The problem was that the types of people that could be detained might “have no experience of the court system in any way except in a very disempowered way”.

Conclusions

4.42 The proposal to provide persons who are the subject of a warrant with the opportunity of judicial review would provide further reassurance to the public of the accountability measures applying to the Bill. This would help to remove concerns about executive government control over the process of detention. The Committee has already made recommendations about the maximum duration of detention that should be permitted and the right to legal representation. The measure of judicial review will reinforce the accountability measures already recommended by the Committee.

4.43 The process would place a discipline on ASIO and ensure that the reason for detention was not frivolous, because at a later stage ASIO may need to defend their decision in court.

4.44 Some concerns were raised during evidence that a person may not understand their rights or opportunities for judical review. This problem is offset by the Committee’s recommendation that a person should have access to legal representation. In addition, the Committee proposes that the right to judical review after 24 hours and at every subsequent attempt to renew a warrant should be included as an item in proposed section 34E. Under proposed section 34E, the prescribed authority must explain the warrant and certain rights of the person. Under the Committee’s proposal, the PA will need to advise the person that they can seek judicial review after 24 hours of detainment.

Recommendation 15

4.45 That proposed section 34E of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a requirement that the prescribed authority must advise the person that they have the right to seek judicial review after 24 hours of detention and at every time a subsequent warrant is sought.

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.

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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.

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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.

Hi. I’m still working on a children overboard inquiry analysis – it should be ready on Monday. In the light of the SIEV-X drowning tragedy I discussed in Cover-up or stuff-up and the machinations of Peter Reith and his apparatchiks on the children overboard scam during the election, Webdiarist Jozef Imrich recommends a recent BBC lecture called “License to deceive”. It’s about the media, and it’s brilliant.

“As someone who has been unsuccessfully observing and studying political and leadership trust for 25 years, I highly recommend this lecture for Webdiarist’s digestion,” he writes. After the lecture, a piece on the Australian media by Webdiarist Charles Richards.

Today the Herald looks like it’s lost its Canberra bureau chief, Michelle Grattan, to The Age. It is a devastating blow. I haven’t felt so upset over the loss of a colleague since Michelle left The Age in the early 1990s to become editor of the Canberra Times. I left The Age to work for her soon after, and that stint was the highlight of my career. She proved a courageous, dynamic and scrupulously ethical editor who trusted her reporters and stood by them when the heat was on. I wrote my best work under her editorship. Michelle has always been a difficult bureau chief to work for, and we have often disagreed, often intensely. She is also the most thorough, ethical, intelligent and balanced journalist I have ever met. In short, Michelle Grattan is irreplaceable.

***

BBC Radio 4 Lecture number 5, 2002

License to deceive

By Onora O’Neill

1. Testing and Trusting

We all know the story of the hero who goes courting a Princess. Her father refuses consent and sends him on demanding quests in distant lands. On the face of it this is not the ideal preparation for marriage, or for ruling the kingdom. But the point of the quest is that the King needs to judge the hero’s commitment and steadfastness. If the hero persists in his quest the King will have reason to trust him; if Princess and hero remain steadfast through long years of questing, each will have reason to trust the other’s love and loyalty, and they will live happily ever after.

Quests are tests of trustworthiness.

Everyday tests of trustworthiness are simpler. A brief exchange of words, a few questions, a short meeting and we begin to place some trust, which we then revise, extend or reduce as we observe and check performance. But how are we to test strangers and institutions? How can we judge claims and undertakings when we can’t talk with others, or observe them, let alone send them on lengthy quests? How can we tell that they are not deceiving us?

Perhaps we are in luck. We live in an age of communication technologies. It should be easier than it used to be to check out strangers and institutions, to test credentials, to authenticate sources, and to place trust with discrimination. But unfortunately many of the new ways of communicating don’t offer adequate, let alone easy, ways of doing so. The new information technologies are ideal for spreading reliable information, but they dislocate our ordinary ways of judging one another’s claims and deciding where to place our trust.

When Kings of old tested their daughters’ suitors, most communication was face-to-face and two-way: in the information age it is often between strangers and one-way. Socrates worried about the written word, because it travelled beyond the possibility of question and revision, and so beyond trust. We may reasonably worry not only about the written word, but also about broadcast speech, film and television. These technologies are designed for one-way communication with minimal interaction. Those who control and use them may or may not be trustworthy. How are we to check what they tell us?

2. Informed Consent and Trust

Informed consent is one hallmark of trust between strangers. For example, when I understand a pension plan, a mortgage, or complex medical procedures, and am free to choose or refuse, I express my trust by giving informed consent. We give informed consent in face-to-face transactions too, though we barely notice it. We buy apples in the market, we exchange addresses with acquaintances, we sit down for a haircut. It sounds pompous to speak of these daily transactions as based on informed consent: yet in each we assume that the other party is neither deceiving nor coercing. We withdraw our trust very fast if we are sold rotten apples, or deliberately given a false address, or forcibly subjected to a Mohican haircut. So everyday trust is utterly undermined by coercion and deception.

Informed consent is supposed to guarantee individual autonomy or independence. But I think this popular thought is pretty obscure, because so many views of autonomy are in play. Some people identify individual autonomy with spontaneous choosing. A New York student of mine once decided that she would strip and streak across Broadway with a group of male students, and so convinced herself that she was autonomous. She had at least shown that she could act in defiance of convention, and probably of her parents, but hardly of her male contemporaries. Her eccentric choice was harmless enough, but in other cases spontaneous choosing can be harmful or disastrous.

Other people identify individual autonomy not with spontaneous, but with deliberate choosing. But deliberate choosing doesn’t guarantee that much either. The real importance of informed consent, I think, has little to do with how we choose. Informed consent is every bit as important when we make conventional and timid choices, or thoughtless and unreflective choices, as it is when we choose deliberately and independently. Informed consent matters simply because it shows that a transaction was not based on deception or coercion.

Informed consent is therefore always important, but it isn’t the basis of trust. On the contrary, it presupposes and expresses trust, which we must already place to assess the information we’re given. Should I have a proposed operation? Should I buy this car or that computer? Is this Internet bargain genuine? In each case I need to assess what is offered, but may be unable to judge the information for myself. Others’ expert judgement may fill the gap: I may rely on the surgeon who explains the operation, or on a colleague who knows about cars or computers or Internet shopping. But in relying on others I already place trust in my adviser: as Francis Bacon noted, “the greatest trust between man and man is the trust of giving counsel” 1. When we draw on friendly– or on expert– help we ultimately have to judge for ourselves where to place our trust. To do this we need to find trustworthy information. This can be dauntingly hard in a world of one-way communication.

3. Trust and the Media

Today information is abundant, but it’s often mixed with misinformation and a little spice of disinformation. It can be hard to check and test what we read and hear. There are easy cases: we can check weather forecasts for their accuracy by waiting for tomorrow; we can rumble supermarkets that don’t sell goods at advertised prices. But there are hard cases: how can parents judge whether to have a child vaccinated or to refuse a vaccination? How can we tell whether a product or a service will live up to its billing? Yet for daily and practical purposes we need to place our trust in some strangers and some institutions, and to refuse it to others. How can we do this well?

We know what we need. We need ways of telling trustworthy from untrustworthy informants. And we have tried to make this possible by promoting a revolution in accountability and requirements for transparency in public life. I have argued in previous lectures that we need more intelligent forms of accountability, and that we need to focus less on grandiose ideals of transparency and rather more on limiting deception. Do we really gain from heavy-handed forms of accountability? Do we really benefit from indiscriminate demands for transparency? I am unconvinced. I think we may undermine professional performance and standards in public life by excessive regulation, and that we may condone and even encourage deception in our zeal for transparency.

Meanwhile, some powerful institutions and professions have managed to avoid not only the excessive but the sensible aspects of the revolutions in accountability and transparency. Most evidently, the media, in particular the print media – while deeply preoccupied with others’ untrustworthiness – have escaped demands for accountability (that is, apart from the financial disciplines set by company law and accounting practices). This is less true of the terrestrial broadcasting media, which are subject to legislation and regulation. (Margo: The Labor government, through communications minister Kim Beazley, gutted accountability for commercial radio and television in Australia.) The BBC (I thought I had better mention that, given where I am!) also has its Charter, Agreement and Producers’ Guidelines 2, and those include commitments to impartiality, accuracy, fairness, giving a full view, editorial independence, respect for privacy, standards of taste and decency – I am not claiming that compliance is perfect.

Newspaper editors and journalists are not held accountable in these ways. Outstanding reporting and accurate writing mingle with editing and reporting that smears, sneers and jeers, names, shames and blames. Some reporting `covers’ (or should I say `uncovers’?) dementing amounts of trivia, some misrepresents, some denigrates, some teeters on the brink of defamation. In this curious world, commitments to trustworthy reporting are erratic: there is no shame in writing on matters beyond a reporter’s competence, in coining misleading headlines, in omitting matters of public interest or importance, or in recirculating others’ speculations as supposed `news’. Above all there is no requirement to make evidence accessible to readers.

For all of us who have to place trust with care in a complex world, reporting that we cannot assess is a disaster. If we can’t trust what the press report, how can we tell whether to trust those on whom they report? An erratically reliable or unassessable press might not matter for privileged people with other sources of information. They can tell which stories are near the mark and which are confused, vicious or simply false; but for most citizens it matters. How can we tell whether newspapers, web sites and publications that claim to be `independent’ are not, in fact, promoting some agenda? How can we tell whether and when we are on the receiving end of hype and spin, of misinformation and disinformation?

There is plenty of more or less accurate reporting, but this is very small comfort if readers who can’t tell which are the reliable bits. What we need is reporting that we can assess and check: what we get often can’t be assessed or checked by non-experts. If the media mislead, or if readers cannot assess their reporting, the wells of public discourse and public life are poisoned. The new information technologies may be anti-authoritarian, but curiously they are often used in ways that are also anti-democratic. They undermine our capacities to judge others’ claims and to place our trust.

4. Press Freedom in the Twenty-First Century

So if we want to address the supposed `crisis of trust’ it will not be enough to discipline government, business or the professions – or all of them. We will also need to develop a more robust public culture, in which publishing misinformation and disinformation, and writing in ways that others cannot hope to check, is limited and penalised. Yet can we do so and keep a free press?

We may use twenty-first century communication technologies, but we still cherish nineteenth century views of freedom of the press, above all those of John Stuart Mill. The wonderful image of a free press speaking truth to power and that of investigative journalists as tribunes of the people belong to those more dangerous and heroic times. In democracies the image is obsolescent: journalists face little danger (except on overseas assignments) and the press do not risk being closed down. On the contrary, the press has acquired unaccountable power that others cannot match.

Rather to my surprise and I think ultimately my comfort, the classic arguments for press freedom do not endorse, let alone require, a press with unaccountable power. A free press can be and should be an accountable press.

Accountability does not mean censorship: it precludes censorship. Nobody should dictate what may be published, beyond narrowly drawn requirements to protect public safety, decency and perhaps personal privacy. But freedom of the press does not also require a licence to deceive. Like Mill we want the press to be free to seek truth and to challenge accepted views. But writing that seeks truth, or (more modestly) tries not to mislead needs internal disciplines and standards to make it assessable and criticisable by its readers. There is no case for a licence to spread confusion or obscure the truth, to overwhelm the public with `information overload’, or an even more dispiriting `misinformation overload’, let alone to peddle and rehearse disinformation.

Like Mill we may be passionate about individual freedom of expression, and so about the freedom of the press to represent individuals’ opinions and views. But freedom of expression is for individuals, not for institutions. We have good reasons for allowing individuals to express opinions even if they are invented, false, silly, irrelevant or plain crazy, but hardly for allowing powerful institutions to do so.

Yet we are now perilously close to a world in which media conglomerates act as if they too had unrestricted rights of free expression, and therefore a licence to subject positions for which they don’t care to caricature and derision, misrepresentation or silence. If they had those unconditional rights they would have rights to undermine individuals’ abilities to judge for themselves and to place their trust well, indeed rights to undermine democracy.

Like Mill we may support freedom of discussion, and think that it is fundamental to democracy, and so support the freedom of the press to foster what in the US is charmingly called wide-open, robust debate. But for that very reason we cannot support freedom for media conglomerates to orchestrate public `discussion’ in which some or many voices are unrepresented or caricatured, in which misinformation may be peddled uncorrected and in which reputations may be selectively shredded or magnified.

A free press is not an unconditional good. It is good because and insofar as it helps the public to explore and test opinions and to judge for themselves whom and what to believe. If powerful institutions are allowed to publish, circulate and promote material without indicating what is known and what is rumour; what is derived from a reputable source and what is invented, what is standard analysis and what is speculation; which sources may be knowledgeable and which are probably not, they damage our public culture and all our lives.

Good public debate must not only be accessible to but also assessable by its audiences. The press are skilled at making material accessible, but erratic about making it assessable. This may be why opinion polls and social surveys now show that the public in the UK claim that they trust newspaper journalists less than any other profession.

5. Assessable Communication and Kantian Autonomy

The received wisdom on press freedom assumes that freedoms and rights can be free-standing. In fact there are no rights without counterpart obligations or duties. Respecting obligations, performing our duties, is as vital for communication as for other activities. At the very least we have obligations to communicate in ways that do not destroy or undermine others’ prospects of communicating. Yet deceivers do just this. They communicate in ways that others cannot share and follow, test and check, and thereby damage others’ communication and action. They undermine the very trust on which communication itself depends: they free ride on others’ trust and truthfulness.

Duties not to deceive owe more to the classical notion of autonomy advanced by Immanuel Kant than to John Stuart Mill’s discussion of individual autonomy. Kantian autonomy is a matter of acting on principles that can be principles for all of us, of ensuring that we do not treat others as lesser mortals – indeed victims – whose abilities to share our principles we are at liberty to undercut. If we deceive we make others our victims, and undermine or distort their possibilities for acting and communicating. We arrogantly base our own communication and action on principles that destroy trust, and so limit others’ possibilities for action.

Ways of communicating can be unacceptable for many reasons: threats may intimidate and coerce; slander may injure. But the most common wrong done in communicating is deception, which undermines and damages others’ capacities to judge and communicate, to act and to place trust with good judgement. Duties to reject deception are duties for everyone: for individuals and for government and for institutions and professions – including the media and journalists.

At present the public have few reliable ways of detecting whether reporting is deceptive or not. We could improve matters without any trace of censorship, and without imposing regulatory burdens of the excessive, centralising sort that are failing us elsewhere. A lot could be altered by procedural changes, such as requirements for owners, editors and journalists to declare financial and other interests (including conflicts of interest), and to distinguish comment from reporting, or by penalties for recirculating rumours others publish without providing and therefore checking the evidence. Chequebook journalism might be reduced by requirements to disclose within any `story’ who paid whom how much for which ‘contribution’. I leave it to this knowledgeable audience to suggest how one might ensure that journalists do not publish `stories’ for which there is no source at all, while pretending that they are protecting a source.

Only if we build a public culture – and especially a media culture – in which we can rely more on others not to deceive us, will we be able to judge whom and what we can reasonably trust. If we remain cavalier about press standards, a culture of suspicion will persist. We will still place our trust for practical purposes, but we will do so suspiciously and unhappily.

Our present culture of suspicion cannot be dispelled by making everyone except the media trustworthier. To restore trust we need not only trustworthy persons and institutions, but also assessable reasons for trusting and mistrusting. These cannot be found by rehearsing suspicions, or by recirculating them again and again, without providing evidence.

We say that we want to end the supposed crisis of public trust, and we’ve tried to do so in part by making many professions and institutions more accountable so that they are trustworthier. In these lectures I have queried both diagnosis and remedy. We may constantly express suspicion, but it is not at all clear to me that we have stopped placing our trust in others: indeed that may be an impossible form of life. We may constantly seek to make others trustworthy, but some of the regimes of accountability and transparency developed across the last 15 years may damage rather than reinforce trustworthiness. The intrusive methods that we have taken to stem a supposed crisis of trust may even, if things go badly, lead to a genuine crisis of trust.

If we want to avoid this unfortunate spiral we need to think less about accountability through micro-management and central control, and more about good governance, less about transparency and more about limiting deception. If we are to restore trust we shall have to start communicating in ways that are open to assessment, and to do this we need to rethink the proper form of press freedom. The press has no licence to deceive; and we have no reasons to think that a free press needs such a licence.

***

Charles Richards

I think in all my years observing the media establishment I found its general political outlook to be not as most people see it to be. The Australian media has the least diverse political views in the world, the legacy of being a small country. Many on the right accuse the media of being biased to the left, I find this untrue.

Generally the vast majority of journalists support a free market economy and further economic de-regulation. Granted there are dissenters who think that the government should play a larger role like in the areas of health and education.

However there are very few socialist (read Marxist) commentators in the press. Most journalists have a socially progressive outlook on things, although a large minority holds socially conservative views. Oddly enough there are very few far right wing journalists out there. For instance, very few journalists supported One Nation in the press. When One Nation was a going concern 10% of the voters supported the party and it’s agenda (although some did not vote for One Nation).

Their view of the Howard government has been most interesting; the Howard government enjoys widespread support in the media. However Howard’s populism does raise eyebrows in the media, but despite this a large minority of journalists in the press are complete apologists for the Howard government. While most are luke-warm in their support for Howard, their criticisms of Howard are interesting from the view of Joe Average.

Most journalists have criticised Howard for not going harder enough on economic de-regulation. Government critics Greg Barns, who is in the Liberal party left, admire admire the high priest of economic neoliberalism former Liberal party leader John Hewson. He also criticised Howard for backtracking on the reduction of trade protection.

Overall Howard enjoys a higher approval rating among journalists than among the public in general, and very few people in the press support the Labor party these days. At the last federal election every major newspaper bar The Age supported Howard’s re-election, despite being quite critical about Howard’s policy to illegal immigrants (a major election issue). Even left-wing journalists, who hate Howard and his government, have nothing nice to say about the Labor party.

It’s true that most of the time the press is out of touch with public opinion, but in interesting ways.

NSW Senator Marise Payne is a classic small `l’ Liberal. She fought hard to stop mandatory sentencing of kids in the Northern Territory, is disturbed by the demonisation of boat people, and – in her greatest contribution to the health of the polity so far – chaired the Senate Legal and Constitutional Committee inquiry which deconstructed the Government’s jack-boots terrorism legislation.

That inquiry saw Liberal and Labor Senators produce a powerfully argued joint report which changed the goal posts of the debate. It gave Labor some backbone and, most importantly, forced the players to use its blueprint for new laws, not the government’s, as the basis for a negotiated settlement. That means we’ll get better, tighter, more civil liberties-friendly laws than even the inquiry’s bottom line.

The irony for Payne is that she is in the Senate for another six years courtesy of the Tampa. She lost a battle with Helen Coonan for second spot on the second ticket after Coonan renounced her moderate history and turned hard and dry to win with Howard’s support. In normal times, the Liberals would not have won three Senate spots in NSW. They did due to Tampa emotion.

After her committee’s report, Payne joined Liberal colleagues on the backbench committee overseeing the Attorney-General’s portfolio – Julie Bishop (WA) George Brandis (Queensland) and Christopher Pyne (SA) – to reject the government’s terror bills and several compromise offers. George Brandis in particular, a genuine as distinct from reactionary conservative from Queensland and a brilliant lawyer, has led the charge to force the government to dump its plan to allow the banning of political organisations.

The battle is in stalemate, although I understand there is a new compromise offer floating around since John Howard took charge of the matter after a stormy special party meeting this month. Last week parliamentary draftspeople were busy working on new clauses to put to the Liberal dissidents.

After Howard’s startling statement in China last week that the Australian people were right to reject Menzies’ referendum to ban the Communist Party, the feeling is growing that he might drop his ban plan. This is reinforced by a private Howard comment to backbenchers that the Communist Party matter was “a powerful precedent” against banning powers.

If the ban does go, congratulations are due to some determined and principled Liberals. Without their stand, Labor could have agreed to a compromise.

…

A reader recommends a new weblog with a Muslim perspective – www.amirbutler.com

….

TODAY’s ISSUE

1. Marise Payne on the terror legislation

2. Daniel Maurice, Wayne Beswick, Pater Woodforde and George Ooi on the SIEV-X mystery (see Cover-up or stuff-up?)

3. Fiona Katauskas on detention policy in practice.

4. Michael Rowney, Con Vaitsas, Glenn Condell and Tim Dunlop box on in the Third Way debate.

***

1. TERROR

Fattening the wedge

By Marise Payne

Issues which generate quite a bit of heat in the political process have a way of creating employment in the local post offices of our parliamentarians. Increasingly, correspondence on key policy issues has taken the form of email campaigns, which bring the electorate into direct and instant contact with their elected representatives.

One “chain email” circulating within Australia’s on-line community in June 2000 drew attention of parliamentarians to the plight of Afghan women under the Taliban regime and to honour deaths – resulting in the Parliament’s Human Rights Committee deciding to raise the matter in the United Nations to focus the attention of the world community.

I have received over 250 emails in the last ten days that relate directly to the Taliban regime, an Australian parliamentary committee and to human rights – but the rights in question are those of Australians – not Afghans.

The agreement reached by the major party members of the Senate Legal and Constitutional Legislation Committee in its recent inquiry into draft anti-terrorism bills shows that the modern function of the Senate – to review bills – is in good health. The upper house is well regarded by international standards as an extremely effective house of review.

The legislation was developed and the report was handed down in a climate of fear and urgent haste following the September 11 terrorist attacks in the US and in the midst of a public debate on reforming the Senate. As it warns against applying the thin end of the wedge to our basic freedoms, I believe it speaks volumes for the effectiveness of the committee system in the Australian parliament as a public forum on important issues.

While the bulk of letters to MPs and Senators urge amendments to protect civil liberties, they rightly don’t argue that the legislation should be shelved. A few, under the title: “End them, don’t amend them!” pointedly refuse to acknowledge the clear and present threat of terrorism.

ASIO has noted a number of factors that have contributed to the heightened level of terrorist threat including: The attacks of September 11 themselves, Australia’s role in the response to those attacks, the specific mention of Australia by Usama Bin Laden on two recent occasions, the domestic presence of militant groups that view terrorism as legitimate, and the allegation that some Australians have trained in al-Qa’ida terrorist camps in Afghanistan.

Prior to September 11, Australia and the international community were reasonably satisfied that a comprehensive multilateral approach to countering terrorism existed. Australia is a party to 9 of the 12 internationally recognised counter terrorism instruments and is in the process of becoming a party to two of the remaining 3. Since September 11, the United Nations Security Council has also adopted Resolution 1373, representing a new approach: If you cut off the life blood of the terrorists it will be more difficult for them to carry out their activities.

In Australia’s Report to the Counter-Terrorism Committee of the UN Security Council and elsewhere, the government has stressed that holes in our defences could relate to a range of issues including the extraterritorial reach of our laws, the absence of specific terrorist offences or terrorist financing provisions or, simply, the disjunction between the terrorist phenomena and the various existing laws. Witness the uncertainty about whether the Australian David Hicks had committed any crime under our law by making common cause with al-Qa’ida.

In an effort to fill these gaps and in response to the new security environment, the Government has introduced a package of counter-terrorism legislation that became the subject of the Senate Committee’s inquiry. The report, recommending adjustment of the draft legislation, has been acknowledged by the government, and currently the Prime Minister and the Attorney General are reviewing it. This commitment is to ensure that the legislation is a design which fulfils its intent but ideally also addresses the issues of the Senate Committee’s report.

One area in need of attention is the necessary tightening of the definition of terrorism. Terrorism must refer to those who have an intention to intimidate the public or coerce the Government – as provided for in similar Canadian and UK legislation.

The bills also take the almost unprecedented step of imposing absolute liability in relation to offences carrying a maximum penalty of life imprisonment. Such offences include possessing a `thing’ connected with a terrorist act. The effect is that people may be convicted of terrorism offences where they had no intention to assist or participate in terrorist acts, and in the current draft legislation they can apply to offences that may not have occurred.

It is crucial that with terrorism charges must come proof that at least the accused was reckless to whether his or her activity was `connected with’ terrorism. The banking industry’s concerns that tellers who unwittingly receive terrorist funds would themselves be engaging in terrorism provides adequate example of the uncertainty under the legislation as drafted.

The power to proscribe organisations should be vested in more than an individual (the Attorney General) and representatives from banned organisations should have adequate rights of appeal. A variety of options to challenge an act of proscription are available here, from widening the grounds of review by the Courts to allowing parliamentary scrutiny.

We need a free and open society which is also reasonably secure from terrorism. While basic freedoms should indeed be unassailable, it would indeed be a “braver” new world that disarms itself of protection from violent fanatics. Clearly, the government has a mandate to address the terrorist threat with appropriate legislation – and while our system of government remains so inclusive, constructive input in all forms into the debate is most welcome.

Footnote: Payne’s website is www.marisepayne.com. The Senate committee’s summary of evidence and recommendations are in Liberalism fights back on terror laws (May 8). The text of the anti-terrorism legislation is in Coming soon: Too many terrorists (April 26).

***

2. SIEV-X

Daniel Maurice

Your admiration for the “forensic” children overboard inquiry apparently knows no bounds. One question. Why don’t the fearless Labor senators just compel Reith and the Ministerial staffers to appear? Obviously this will set a precedent for similar “forensic” inquiries by a future opposition into a future Labor government, but why should that be a worry to the current inquisitors, who are obviously soley motived by the a search for the “truth”?

Why would they fear a future search for the “truth”? It couldn’t be, for example, that our good senators are seeking to exploit the asylum seeker issue for base reasons of their own political advantage – the very charge they lay against the Government? Surely not!

I’d find your take on the issue if interest.

Margo: Excellent point. I want to analysis this and other children overboard inquiry issues by the end of the week.

***

Wayne Beswick

I remember feeling physically sick a number of times during the election last year – Tampa was one and the extraordinary story of 350 women, children and men drowning at sea another. Mundaroo Yanner on Latelinethe other night got it right – how can one group of boat people tell another group of boat people they’re not welcome? We are rapidly becoming a tawdry, mean, opportunistic and expedient culture, which I suppose reflects our political leadership on both sides.

What I would like to know is how the PMs office was interacting with Defence and intelligence during the period of SIEV-X and WHO WAS GIVING THE ORDERS?

***

Peter Woodforde in Canberra

So much for prayers (see my message of April 23 below). I’m really not looking forward much to the probing work of John Faulkner on the SIEV-X, admirably forensic though it will be. I just feel horror and disgust.

I wonder, though, what sort of values would be applied to the SIEV-X tragedy by the folk intent on thumping the small group which gathered at Nancy Crick’s side as she took her own life. Nancy, of course, wanted to send a message, but unlike the women and children of the SIEV-X, she had a choice. Unlike the central figures in the most ghastly reported image of the SIEVX’s victims – the drowned mother with her drowned new-born child trailing its umbilicus in the water – Nancy appeared to have led a full and secure life. Her pro-euthanasia friends and intimates were secure in their moral knowledge and capacities when she took her fatal dose.

Meanwhile, Australia has a navy and a federal administration which has not only applied Force 10 effort to detecting and catching or rescuing SIEVs but also had an enviably impressive rescue record, as the sensational Autissier and Bullimore sagas demonstrated.

What is morale like among the young men and women of the RAN? After all, their work on the Indian Ocean is underwritten by the constant application of international maritime and humanitarian law, unsullied by Liberal Party campaign needs.

…

On April 23, I wrote:

Did you collect stamps as a child, Margo? There’s a pathology to it you know.

Justin Tauber of St Peters in Sydney asked: “What would it take to produce an effective deterrent against people desperate enough to do anything to escape the conditions they lived under in Afghanistan?” and replied that odious conditions comparable to Afghanistan would do. He might be right, but Tony Kevin’s submission to the Senate inquiry suggests that Justin may be optimistic.

Kevin’s submission suggests something too horrible to contemplate. I sincerely pray (bleeding heart, poorly educated, redneck leftists do pray, Ma’am; it’s one of the things that make us entertaining to the knuckledragging $lobbering classes) that he is wrong. Justin’s deterrent, diabolical though it is, is worse than bad enough.

Even if Kevin is wrong, I still have to look at my innocent children and know that there are people in power in my country who would, given the right circumstances and their need for power, imprison them behind razor wire in the desert like so many little philatelic items arranged by country or “theme.”

***

George Ooi in Melbourne

Our Navy has much to answer for this tragedy, be it a conspiracy or stuff-up! I wish we had Geoffrey Robertson to cross-examine those top naval brass. Have you read his book “The Justice Game”? His account of a couple of cases exposing lies by the British PM John Major’s ministers and the cover-up by top civil servant-mandarins is a required background read for anyone who still believes in Santa Claus, the Easter Bunny, and the word of our Ministers and top public servants!

***

3. DETENTION

Fiona Katauskas in Sydney

I’ve been visiting Villawood detention centre lately and have discovered some stuff you might be interested in. On the wall in the entrance area is a plaque proudly stating that one of ACM’s missions is to “Cheerfully uphold our financial responsibilities to our stakeholders” (I’m not sure I’ve got the wording exactly right, but it’s very close to that). One of the ways this corporation upholds these financial responsibilities is by employing detainees in the kitchens, mowing the lawns and cleaning the stairwells. Kitchen workers earn $70 per week, lawnmowers $60 and cleaners $48. They are not paid in cash, but in phonecards – cash is not allowed inside.

I tried to verify this by visiting the ACM website ( http://www.acorm.com.au/) which offers absolutely no information other than contact details and links to a promotional website for their parent company Wackenhutt. I then called ACM and politely enquired as to whether I could get some information about detainees being employed in the centres. The receptionist told me they did not give out information and I would have to talk to the department. When I replied that it was not a departmental matter, but a commercial one, I was bluntly told that no information is given out. I asked to speak to someone else and was told that I could only continue if I gave my name and contact details. I refused, stating that I was a member of the public, and was told that I could go no further.

Is there any way of finding out what ACM does behind the commercial in confidence facade?

***

4. THIRD WAY

Michael Rowney (nom de plume)

Mark Latham actually believes that personal service labour and consulting fundamentally change the relations of production and are more liberating than work in a production-line manufacturing plant. Wow!

A couple of decades ago I worked as a floor sweeper in a sewerage plant. The work was mind-numbingly boring, true, but I was always aware that our labour was essential for the survival of the city. Also, the conversations with my workmates, which ranged over all areas of philosophy, science, religion and politics were wonderful. I was active in the union, attended conferences where fierce debates raged, and functioned as and was respected as a member of a class and community.

Eventually I quit that job and more or less by accident moved into adult education and training. Lovely, white-collar “personal service labour”, in fact. Where once I had a steady job with dependable hours now I was a consultant working occasionally for 60 hours a week for months with no time for my family but with a river of gold. Occasionally, for months, I worked for zero hours a week with no money for my family.

Where once I had a union and dependable workmates to defend my interests now I swam with the sharks and was occasionally bitten.

Where once I was a shit-shoveller with dignity I became a shit-shoveller with a necktie (the tie is meant to bestow dignity). The money was better (when it was flowing) but the relations of production were actually worse.

Last year during the election the ACTU website, for a short period, carried a graph showing the transfer of Australia’s national wealth from the working class to the rich. The graph was pulled pretty fast because the researchers had done their work too well. The timeline went back decades, and it was perfectly obvious that the growth in inequality began with the election of the Hawke Labor government and merely continued its trend under Howard.

Mark Latham’s Third Way is the latest justification for this process. The post-modernist jargon is just a fig leaf to cover the poverty of ideas.

***

Con Vaitsas in Sydney

You’ve gotta hand it to Mark Latham. The bloke is consistent and endless on how he has the solution to end poverty for all those who dwell in the suburbs. Surely the most prolific pollie opinion writer in the media, he was at it again on Monday with a piece in the Australian paper giving us a new word to contemplate. It’s `communitarianism’, which he describes as “governments facilitating the rules of community engagement, acting as brokers in the relationships and connections between people”. “This is a vital strategy for combating individualism and restoring social capital.”

The word reminds me of the Liberal Party’s `incentivation’ word in the early 90s. Try mentioning the `communitarianism’ to an unsuspecting voter out your way Mark and you’ll end up in another scuffle. Still, at least you’re trying.

***

Glenn Condell

Dr Aaron Oakley in Dalkeith, Western Australia wrote: “Responding to my comments in `For those who give two hoots’, Glenn Condell in `Third Way revisited’ engages in argument through false analogy. He tries to argue that although brain surgeons would agree about technique, economists wouldn’t. Sure, a marxist economist would disagree with a free-market economist. But similarly, a new-age quack healer would disagree with a brain surgeon.”

Marxist economists are still economists. ‘New age quack healers’ aren’t brain surgeons. My analogy may not be waterproof, but it’s safer than yours.

Clearly, Mr Condell and most other Webdiarists don’t like what they sneeringly refer to as `rational economics’.

I made no such reference. If asked, I would indicate my opposition to `economic rationalism’ as it is normally understood (ie the elevation of market logic at the expense of human beings), but such opposition does not imply support for `economic irrationalism’ or anarchy. I’m sure all sensible people would support the less loaded term `rational economics’ but it’s pretty vague and would mean different things to different people.

The funny thing is that most real economists don’t talk about `rational economics’ in the same way that most scientists don’t talk about voodoo.

Scientists don’t talk about voodoo because it’s a superstition, not to mention irrelevant. Is the implication that `rational economics’ is also beyond the empirical pale? I’m afraid I’m a bit lost with this reference.

They tend to talk about Austrian Economics, Keynesian economics etc. An economically literate friend of mine said that people don’t like so-called rational economics because it tells them harsh truths that they don’t want to hear.

What exactly are these `harsh truths’? Here’s one: capital is flowing from the third world to the first in record amounts in the same way as it is trickling up the economic food chain in the US rather than down as we’d been promised. Truths like this aren’t told to us by `rational economics’; indeed they are hard to find even if you’re looking. No, the relationship of professional economics to facts such as these is rather closer to the bone. Political adherence to `economic rationalist’ (or `free’ market) policy at the behest of neo-liberal economists over the last 25 to 30 years has led to deeply flawed institutions of global financial governance which minimise risk for investors (read US and the West) and maximise it for the peasants and workers they purport to be helping. They may do a lot of good when things are going swimmingly; everyone wins for a while. But when push comes to shove, who gets shafted?

Mr Condell sets up a straw man by attacking me as an economist for commenting on economics. I am not, and I never claimed to be.

I apologise unreservedly for implying that you were an economist! Seriously, I think you referred to Mr Jackson as `my editor’ so I assumed you were in the same game. In any case, your airy dismissal of Tim Dunlop’s economic literacy led me to believe you were qualified (that word again!) to comment on it. I may have attacked a straw man, but you created him.

Nor do I occupy a “mountaintop eyrie”, as Mr Condell sneeringly puts it.

My face hurts from all this sneering. Have a look at your original contribution and see how it rates on the sneerometer. In fact, it was the tone rather than the content of it that prompted me to respond at all.

If he read my contribution properly, he would have seen that I deferred to a certain Mr Gerry Jackson, who knows a great deal more economics than most people, and provided links to his articles that debunked the nostrums Tim Dunlop preached. So why doesn’t Mr Condell address what Mr Jackson said?

In the same way you’ve so comprehensively addressed Mr Stiglitz’s comments? I was addressing what you said and, more to the point, the way you said it. I also made the point that respected economic opinion could be found to support almost any shade of policy, and I’m sure Mr Jackson’s work eloquently does so for one stance as Mr Stiglitz’s does for another. Like yourself, I’m not qualified to dissect these professionally, but interested enough to have a look and venture an opinion.

Is it too much work? Is Stiglitz? You read Stiglitz and I’ll read Jackson. If you’re as time poor as me, it will have to wait til next week.

Mr Condell refers to books by Joseph Stiglitz as some sort of proof that Dunlop et al have a point.

Just as you referred to Jackson to prove he hasn’t.

But how can he judge the economics of those books? Could he tell whether the arguments stood up to scrutiny?

Could you do so for Mr Jackson? You obviously think Mr Dunlop’s don’t and that Mr Jackson’s do, but how would you know, not being an economist and all? (There’s a Pythonesque element creeping in to this conversation.) You must first impose upon yourself any test you set for me. It was you after all who threw the first stone.

Wouldn’t it help to have some sort of economic training to do so? Could he read a detailed technical work on quantum physics and identify its errors as well?

Economics isn’t quantum physics. What was that about false analogies?

While Joseph Stiglitz may have something valuable to add to the debate, how can economic illiterates like Tim Dunlop, Glenn Condell, and, indeed, myself judge?

We simply do because it’s too important to leave to the pointy-heads. How many people are vitally affected by trends in quantum physics theory? Economics is a human science that crosses all sorts of borders affecting the range of human activity. You seem to be implying that you and I and Mr Dunlop should desist from putting our two bobs worth in on a subject if we don’t have a degree in it.

Webdiary would be a poor wee thing indeed if everyone thought the same way. Sometimes it does seem like there’s too many voices to hear anything distinctly but this is preferable to the past when very few spoke outside their ken and it’s certainly better than societies where people don’t even have the freedom to make gooses of themselves.

To me, especially after September 11, everything is everyone’s business should they wish it – the more the merrier. These voices are the sound of a functioning democracy in action and they have a way, in that environment, of sorting themselves out eventually into some sort of harmony; partial perhaps, but again, better than the alternative.

The role of `experts’, `professionals’ et al is perhaps even more important now than it ever has been, but I feel that to elevate them to a position of final arbiter is to invite gullibility or apathy from the public, not to mention hubris from them. They ought to be seen as advisers, in much the same way as courts give weight to expert testimony but see it as only one contributing factor to a decision.

A more informed, active, engaged community driving policy debates – exemplified by the sort of effort Mr Dunlop made and occasionally perhaps corrected or supplemented by `experts’ – is a more desirable scenario than an increased reliance on professionals. The world, `changed, changed utterly’ since last year, needs ordinary people to stick their necks out, get involved and say their piece. Anything else, particularly deferring to experts, is an abdication. Use them by all means, but come to your own conclusions.

The idea of civics has fallen on hard times, but reviving it requires that people get off their butts and become more informed so that they are able to contribute, to partake in their democracy. Before September 11 you could count the number of times I’d written to editors or politicians on one hand. Since then my extended family wouldn’t have enough digits to cover the missives I’ve sent to unfortunate movers and shakers all over the world.

I may not have changed anything but I feel I’ve contributed. It seems to me a lot of people feel the same; the huge spike in Webdiary readership after major events recently is a good indicator. My trawls through the work of Stiglitz (and yours through Jackson) should be seen as an essential element of our contribution to the democratic process, but their obvious erudition shouldn’t cow us into accepting their conclusions.

OK Mr Dunlop, Mr Condell and friends, tell us where Mr Jackson, who actually knows something about economics, is wrong on what he considers to be the interventionist failures of South East Asia. Once again, here are the relevant links: ( http://www.newaus.com.au/econ39c.html) and http://www.newaus.com.au/econ41a.html ).

Something to look forward to…

***

Tim Dunlop

Aaron Oakley in For those who give two hoots writes that, “Clearly, Dunlop has simply chosen economic thought that reinforces his prejudices, and cobbled it all together in his long-winded article”. If he means by this that I’ve gathered expert opinions that support my argument, then I have to agree with him.

Nonetheless, Dr Oakley is correct to question a person’s grasp of the facts. What I think is illegitimate, however, is to seek to discount all non-expert opinion as having nothing to contribute to a debate and to seek to demean and bully non-experts. It is an unfortunate rhetorical ploy, as I doubt my lack of expertise would have been an issue if I had chosen economic thought that reinforced Dr Oakley’s beliefs. Still, I’m not surprised. Where I do have expertise is the sociology of knowledge (the area of my PhD) and I can assure him that he is far from alone in being a credentialled person who uses this technique.

It is worth noting, too that the opinions I gather are hardly from the looney left, or even from the left at all: Paul Krugman, George Soros, Joseph Stiglitz, for example. Even the ones I long-windedly quote, Galbraith and Ormerod, are not exactly anti-capitalism, free markets or globalisation. So any questioning by Dr Oakley of economic credentials must extend to these people as well.

As I made clear, there are no knock-down arguments and there is legitimate disagreement even amongst like-minded experts. What I invited third wayists to do is to acknowledge this, rather than blithely highlight what they perceive as the benefits of particular economic settings and to disregard the down-side. My mustering of economic argument goes not much further than that.

The interesting thing about the articles Dr Oakley gathers to support his case is that they throw no doubt at all on the statement of mine he quotes. He quotes me as saying, ‘”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”.

The article Dr Oakley recommends argues exactly that, though with a different emphasis. For example, the thrust of Dr Oakley’s first source is that interventionist policies have led to misallocation of resources and would have been better left to `market’ allocation. Wherever the emphasis lies, it makes the same basic point I do, that Singapore cannot be considered a guiding light of `free market’ economics. Dr Oakley would therefore be better advised to direct his criticisms at the likes of various third wayists who DO claim Singapore and other `Asian tigers’ as exemplars of free market economics.

Anyway, maybe Dr Oakley should read my article again (or read it). He won’t find someone trashing neo-liberalism in its entirety, just its misuse by third wayist and other advocates who make claims for it that can’t be sustained, and especially that can’t be claimed as `democratic socialist’.

Also in the `two hoots’ entry, Paul Walter says he thinks I don’t like Mr Latham. Untrue. I don’t know him. I just don’t like the Third Way. (And I really warmed to him with his recent attack on the hypocrisy of the Coalition, published in Talk tough, young man.) Nonetheless, I can see why Paul made his claim, so I’ll add a paragraph that didn’t make it to the final draft of my article. “To address the third way in Australia is to address Mark Latham. He is its most articulate, prolific and well-read supporter. So there is nothing personal in the singling out of his work for criticism: it’s just inevitable. Whatever others think of the analysis offered here, there is no doubt a debt owed to Mr Latham for his vigorous advocacy of the Third Way.”

This is a lightly edited text of the evidence of Rear Admiral Marcus Bonser to the children overboard inquiry on May 22 …

BONSER, Rear Admiral Marcus (Mark) Frederick , Director General, Coastwatch, Australian Customs Service: I intend to first outline the role and the operations of Coastwatch and then describe Coastwatch’s role in the SIEV operations after 3 September 2001, when Operation Relex took effect. I will then turn to the specific incidents relevant to Coastwatch activities that have been focused on during the course of this inquiry, namely the SIEV4 and what has become known as SIEV-X, and I will detail my knowledge of them and the Coastwatch involvement in them.

… The Coastwatch division of Customs manages and coordinates Australia’s civil maritime surveillance and response program using a combination of contracted aircraft, Australian Defence Force patrol boats and aircraft and seagoing vessels of the Customs National Marine Unit … The primary function of Coastwatch is to conduct coastal and offshore surveillance in order to generate information on potential or actual breaches of legislation as they relate to Australia’s maritime zones. This information is passed back to relevant client agencies in order to allow those agencies to make informed decisions on whether further action is warranted and, if so, the nature and extent of that action. This information includes, as a matter of course, the content of signals traffic relevant to maritime surveillance from Defence assets operating on behalf of the civil maritime surveillance and response program. Where appropriate, Coastwatch also coordinates the response to a maritime incursion or incident.

The centre for Coastwatch operational activity is the National Surveillance Centre, located in Customs House in Canberra. The National Surveillance Centre is a secure facility, accommodating the Coastwatch operations directorate and providing highly secure links to a range of government agencies. It provides a 24-hour, seven-day a week oversight for all Coastwatch operational activity and an analytical capability that draws together information from a range of sources to inform surveillance planning and operations. Under normal operational arrangements Customs Coastwatch has the lead in all civil maritime surveillance and response matters, with Defence providing support through its Fremantle class patrol boats and PC-3 Orions as required and when available. This is not the case under Operation Relex arrangements, which I will outline later in my statement.

… Following the arrival of the SIEV KM Palapa 1 off Christmas Island on 25 August 2001 and the subsequent rescue of its crew and passengers by the MV Tampa, the Australian government instituted new arrangements for the detection of and response to SIEV arrivals. Under Operation Relex, Defence took on the lead role in all SIEV related activity within an area of operations that stretches from Gove in the east, west to Christmas Island and south to Port Hedland on the Western Australian coast. From that time, Coastwatch ceased surveillance activity off Christmas Island and concentrated on the residual national surveillance program around Australia and the provision of support for Defence in the Operation Relex areas in the Timor and Arafura Sea approaches.

Within the Relex area of operations, Coastwatch and the Customs National Marine Unit operate in support of Defence. This represents a reversal of the arrangements that normally apply to civil surveillance matters in Australia’s maritime zones.

… I have read the submission to this committee by Mr Tony Kevin, and the Hansard record of the evidence he provided to the committee on 1 May 2002. I intend to detail my knowledge surrounding the vessel known by this committee as SIEV-X. However, I would first like to make a general comment on the nature of information provided to Coastwatch in relation to SIEV departures. Information in relation to possible boat departures from Indonesia is often imprecise and subject to frequent change. It is not unusual for a vessel’s projected departure dates and times to change on an almost daily basis over a period of days or even weeks. Even given an apparently firm departure date, the time of arrival in Australian waters can vary depending on the nature and speed of the vessel, the sea conditions and whether or not the vessel makes a break in its journey to Australia. For example, of the last 15 SIEVs, Coastwatch had prior information of a possible departure date that was within seven days of the vessel’s arrival in Australian waters in relation to only eight of the vessels. There were in fact 29 departure dates provided for these eight vessels and in excess of 30 assessments as to the possible additional departures from Indonesia that did not culminate in an arrival. These figures do not include indicators in relation to SIEV-X. Information provided to Coastwatch is used therefore as a guide for informing surveillance activities rather than the foundation on which these activities are programmed.

Coastwatch originally received information as early as August 2001 that Abu Qussey was allegedly in the process of arranging a boat departure of illegal immigrants, probably to Christmas Island. In the ensuing period, Coastwatch received information that the vessel was expected to depart, or had departed, Indonesia on four different dates in August, anywhere within a seven-day block in September and on five separate dates in October. The normal practice was for this advice to be passed by secure phone call to the Australian Theatre Joint Intelligence Centre and Headquarters Northern Command. The information was then normally passed on by them to the Defence commands involved in Operation Relex. Additionally, Coastwatch included a precis of the relevant information in its daily operation summary message. This classified opsum was addressed to the Defence commands and agencies involved in Operation Relex.

On 19 October, the vessel codenamed SIEV6 was intercepted by HMAS Arunta off Christmas Island. At this time, Coastwatch and Defence had advice of potential arrivals from at least six people smugglers, including the indications about a possible Abu Qussey departure. The organiser of the SIEV6 was identified on 20 October. The next indicator about the Abu Qussey vessel was on Saturday 20 October 2001, when Coastwatch received telephone advice from the Australian Federal Police that a vessel was reported to have departed from the west coast of Java the previous day. The information included advice that the vessel was reportedly small and overcrowded. The full detail of the advice is classified. This information was passed by telephone from Coastwatch to the Australian Theatre Joint Intelligence Centre and to Headquarters Northern Command. The Australian Theatre Joint Intelligence Centre and Headquarters Northern Command included this information in classified intelligence reports, both of which were issued to Defence operational authorities on 20 October 2001.

On Monday, 22 October 2001, AFP provided further advice to Coastwatch that corroborated the previous advice about the departure of the vessel and that, by now, the vessel should have arrived in Australian waters. Coastwatch agreed that the vessel was potentially overdue, although it noted this was not unusual and might be due to a range of factors, including diversions. In the normal course of operations, Coastwatch informs AusSAR about any vessels that have been sighted and may be in difficulty or distress. When Coastwatch has confirmation of departure dates for a SIEV and when it is known to be overdue, Coastwatch also provides this advice to AusSAR. SIEV-X met these criteria, based on the additional information received from the AFP on 22 October and, therefore, Coastwatch contacted AusSAR.

On Tuesday, 23 October 2001, advice was received from the Australian Theatre Joint Intelligence Centre that a SIEV had sunk. Later that day, CNN reported the sinking of a SIEV and the rescue of 45 survivors. That evening, Coastwatch assessed the sunken SIEV to be the vessel allegedly organised by Abu Qussey. That concludes my opening statement.

Senator Cook, Labor, Western Australia Chairman: …I announce for the record that this morning we made a decision to release a series of documents, being corrections to evidence by various witnesses to this inquiry. One of those documents was a document from Admiral Smith. The committee has made a decision to recall that document and rescind its decision to release it, subject to that document being properly cleared. I put that on the record.

Senator Bartlett, Democrats, Queensland: … You are monitoring signal traffic, but Defence also has access to that separately from you so you do not need to pass that on to it?

Bonser: That is correct, yes.

…Bartlett: You have spoken about the photographic abilities of the Orions. Firstly, do all the Orions that are doing surveillance operate under Coastwatch or are there others that operate through the Air Force?

Bonser: No, the Air Force operates the Orions. They provide some air hours with the Orions in support of the Coastwatch civil surveillance program. The Coastwatch contracted aircraft that I referred to have photographic capability with TV, infra-red cameras and digital hand-held cameras.

Senator Faulkner, Labor, NSW: Yes, but are you able to get access? There are two different sets of planes, aren’t there? There are the RAAF planes and there are the Coastwatch planes, effectively. That is right, isn’t it?

Bonser: That is correct.

… Bartlett: How much RAAF activity is there in the Operation Relex area, in terms of surveillance?

Bonser: There is a RAAF P3 flight daily at the moment.

Bartlett: So if they pick up some potential SIEV, they do not necessarily let you know – they may just pass that straight on to Relex?

Bonser: They would certainly pass it on through the Defence chains of command, and I would expect that we would see that information.

Bartlett: Sorry? You would expect that you would receive that as well?

Bonser: Yes.

… Bartlett: And the legal authority for SOLAS situations rests with Search and Rescue?

Bonser: That is correct, Senator.

Bartlett: Was that the same before and post-Relex? Is there no difference there?

Bonser: Nothing has changed.

Faulkner: How do you describe the Coastwatch role and responsibility, Admiral? For those of us who are not experts in this area, could you give us a very brief summary of the Coastwatch role and responsibilities during the period that Operation Relex applied?

Bonser: Coastwatch’s responsibilities and operations in all areas outside the Relex area of operations remained the same as they had been beforehand. Within the Relex area of operations the only thing that had changed was that the lead authority for conducting any response and the surveillance for detecting and intercepting SIEVs had transferred from Coastwatch to Defence.

Faulkner: How did the relationship then work between Coastwatch and Defence? I think we understand that Defence becomes the lead agency. How does this affect your day-to-day operations? How do you relate to the lead agency? How does that work?

Bonser: In the normal course we have a very close ongoing day-to-day relationship with Defence because, prior to Relex, Defence provides support to Coastwatch. That is provided through Fremantle class patrol boats that are available for response to sightings and also the P3 aircraft that supplement our own surveillance aircraft on occasion. When Relex came into being, the lead agency changed and instead of Defence providing support to Coastwatch, Coastwatch provided support to Defence in the form of surveillance. All of the mechanisms we had in place for operating with Defence in support of Coastwatch simply went to allow us to transfer to that new arrangement quite smoothly and we proceeded with that as a matter of course.

Faulkner: Do you operate effectively, for the purposes of Operation Relex, under the direction of Defence?

Bonser: No. We operate in support of Defence and we provide surveillance support, which is coordinated with their surveillance, but I am not under any direction from Defence and I report through Customs.

… Bartlett: In terms of the general process, you get intelligence and Defence may get intelligence that a vessel is potentially leaving – and you have indicated in your opening statement that you receive information about vessels potentially in the process of arranging a boat departure. Presumably Defence is made aware of that as well, either through you or separately. In fact, I presume separately – you are not usually passing on intelligence information to Defence, I guess.

Bonser: Quite often the information is going to both of us in parallel. Sometimes it comes to Coastwatch, and we pass it on.

Bartlett: Wouldn’t you normally say that you had better fly out there and have a look to verify that it is out there somewhere? Wouldn’t Defence ask you to do that?

Bonser: In the main, the indicators are not precise enough to be able to specifically target a point in the ocean. The surveillance that has been put in place is quite comprehensive and covers a broad area, and it is intended to pick up the boats as they pass through the area.

Bartlett: If you had received information that a boat was potentially departing, wouldn’t you send a plane somewhere in that vicinity? Or would you pretty much cover it all as a matter of course anyway?

Bonser: The whole general area is being covered by what is probably the most comprehensive surveillance that I have seen in some 30 years of service.

Bartlett: Were any photographs taken at all of this particular vessel of controversy – the SIEV-X?

Bonser: Not to my knowledge.

Bartlett: So there is no observation at all of that vessel, despite – according to your own statement and even more detail in some of the other information that we got – there being regular intelligence reports that this vessel was departing or had departed or was believed to have departed?

Bonser: There were many and varied and often changing indicators of that particular vessel’s departure, but it was never cited or detected.

Faulkner: Let us go back to the photographs. You said not to your knowledge. So there was no Coastwatch generated photographic surveillance of SIEV-X?

Bonser: Coastwatch was not flying within 1,000 miles of the area where that particular vessel was allegedly proceeding.

Faulkner: And you are not aware of any possible RAAF surveillance photographs of SIEV-X?

Bonser: No, I am not.

Faulkner: I am not saying there are. I am just trying to be clear on this because we were talking a little earlier about the fact that there are effectively two agencies involved in the aerial surveillance from aeroplanes: You and the RAAF. You can categorically assure us about Coastwatch surveillance planes that there are no photographs?

Bonser: Yes.

Faulkner: But is it an open question as to whether there are any RAAF surveillance photographs in relation to SIEV-X as far as you know?

Bonser: I would not think it was an open question because I have absolutely no knowledge of any detections of that vessel at all. It is really a question you would have to ask Defence.

… Faulkner: You know of no such RAAF surveillance activity or photographs? That is right, isn’t it?

Bonser: I know of none.

Faulkner: And it is very likely that, if it had occurred, you would be aware of it?

Bonser: Yes, it is.

Bartlett: In your opening statement you said that in the normal course of operations you inform Search and Rescue about any vessels that have been sighted and may be in difficulty or distress. Could you define `difficulty’ any more precisely than that? How do you assess whether something is in difficulty? Is it when it looks likely to sink? Is it when something is just out of the ordinary?

Bonser: It is something that appears unusual – perhaps a vessel that looks like it has broken down.

Bartlett: In this case, you got information that a small vessel, with 400 passengers on board – obviously extremely overcrowded, much more so than any of the other SIEVs – had appeared in our waters. Would that count as an unusual event? Did you notify Search and Rescue about that one?

Bonser: Given the imprecise nature of the information we had, the fact that we did not have a confirmed departure date and that there was a very comprehensive surveillance operation in place, no, Senator.

Bartlett: There was a comprehensive surveillance operation?

Bonser: The comprehensive surveillance that was in place. At this time, all we knew was that there had been a possible departure.

Faulkner: What are your inputs to this, Admiral?

Bonser: The information comes from a variety of sources – in this case, the primary information came from the AFP.

Faulkner: In the case of SIEV-X, were there other inputs, apart from the AFP?

Bonser: Around that time, not that I am aware of, Senator.

Bartlett: Did you pass that on to Search and Rescue, or RCC, which is the same thing, as I understand it?

Bonser: At that time, no, because it did not meet the threshold of being a confirmed departure or, indeed, being overdue. That information did not arrive until 22 October.

Bartlett: But you did pass on that information to Relex?

Bonser: Yes, all that information was passed on to all the Operation Relex authorities.

Bartlett: Obviously, as part of all the SIEV interceptions, there were at least three safety of life at sea situations; the Tampa example, which I realise is pre-Relex, is another. For example, with the Tampa situation, did awareness of that come about through a Coastwatch sighting or interception?

Bonser: It was a Coastwatch sighting of the original SIEV, which appeared to be broken down and later showed a distress signal. Coastwatch reported that information, as we normally would, to AusSAR.

Bartlett: And then there was AusSAR or Search and Rescue or RCC – they’re all the same thing, aren’t they?

Bonser: Yes, they are part of the same organisation.

Bartlett: They put out a general alert, which the Tampa picked up, and went to the rescue. In this case, the information you passed on to Relex, but not to Search and Rescue, was not based on any sightings; it was simply unconfirmed intelligence.

Bonser: That is correct, Senator.

Bartlett: Going back to your statement, … you inform Search and Rescue about any vessels that have been sighted and may be in difficulty or distress. Do you actually wait until a sighting? If your intelligence information was `We think this boat is heading off and it’s looking pretty dodgy’ would that be enough for you to pass it on to Search and Rescue or would you wait until you had more solid confirmation about it?

Bonser: We work on the threshold basis of there being some form of confirmed departure and some assessment that the vessel is actually overdue if we do not have any distinct indications of a vessel being in any form of distress or difficulty.

Bartlett: So if you never got a confirmed report that it had departed, how did you come to the assessment that it was overdue and then pass that on?

Bonser: That was based on separate information that we received on 22 October that corroborated the original advice of a possible departure and confirmed for us that this vessel had most probably departed. On the basis of that we were able to assess that it was, indeed, overdue.

Bartlett: So it got up to a higher degree of probability, in effect?

Bonser: It reached that threshold, yes.

Bartlett: What is the threshold – 80 per cent or 75 per cent?

Bonser: That we had a confirmed departure and that, indeed, the vessel was now overdue.

Bartlett: You had a confirmed departure and confirmed information that it was heading our way?

Bonser: And on the basis of that that it was now overdue, yes.

Bartlett: So that information came through AFP as well?

Bonser: Yes, it did – on 22 October.

Bartlett: You said you got advice on the 22nd that it was overdue and you notified Search and Rescue. On the 23rd, you got advice from Australian Theatre Joint Intelligence Centre that a SIEV had sunk. Later that day, CNN (reported) the sinking and the rescue of survivors. Was that the first time you or any of the Australian operations were aware of survivors being located – hearing it through CNN?

Bonser: Yes, it was.

Bartlett: So we have got a comprehensive surveillance operation, the strongest we have ever had, and CNN could find out what was happening before we could?

Bonser: In this case the vessel clearly was not detected prior to its sinking.

Faulkner: Do you know why not?

Bonser: No, I do not.

Faulkner: Have there been any inquiries at all – internal Commonwealth inquiries – into this issue since the sinking that you are aware of?

Bonser: I do not know of any.

Bartlett: You have not been asked to provide information for any inquiry or report?

Bonser: No.

Senator Jacinta Collins, Labor, Victoria: Can you tell us where it actually sank?

Bonser: No; I do not know. I can only go off what I have seen in media reports that indicate it was somewhere between the Sunda Strait and perhaps 80 miles south of Sunda Strait, or 80 miles south of Java.

Bartlett: Is any of that in the area under your surveillance? Eighty miles south would be in areas that you have under surveillance?

Bonser: I believe so, but that area was under surveillance from Defence and not Coastwatch. You would really have to talk to them about that.

Bartlett: Surveillance by Defence through what?

Bonser: During Operation Relex.

Bartlett: But how were they surveilling it?

Bonser: They had ships with helicopters and aircraft there.

Collins: You are saying that Coastwatch was not surveilling that zone at that period of time?

Bonser: No. From 3 September, Coastwatch had moved away from Christmas Island. We were operating in the Arafura and Timor Sea approaches to Australiathe Kimberley and Arnhem Land coasts.

… Faulkner: Are you aware that Admiral Smith provided additional information -a correction – to evidence presented at this committee?

Bonser: Yes, I am.

Faulkner: Have you read the admiral’s letter?

Bonser: I have now seen that, yes.

Faulkner: Were you asked to provide any input for the admiral’s letter?

Bonser: No, I was not.

Faulkner: Or Coastwatch?

Bonser: No, other than to provide copies of operation summaries, which we provided to Maritime Command.

Faulkner: So Coastwatch did provide some input for it?

Bonser: Coastwatch was asked if it could provide copies of our operation summaries for the period, which it did.

Faulkner: When were you asked to do that?

Bonser: Bonser That was either late last week or early this week.

Faulkner: Who asked you?

Bonser: Someone on the staff at Maritime Headquarters asked my chief of staff.

Faulkner: Was it explained to your chief of staff why those operational summaries were required?

Bonser: I presume that it was because they were preparing some clarification of Admiral Smith’s previous evidence, because prior to this – about a month ago – I called Admiral Smith’s office after I had seen a letter to the editor that he had written in the Canberra Times, to say that I thought there were some inconsistencies between his evidence and the flow of information as I knew it, and I thought they ought to check a range of other messages.

Faulkner: Could you go through those inconsistencies with us in detail?

Bonser: The primary one was the comment on when the first time that notification of SIEVX occurred, which was not consistent with the flow of information as I knew it. I believe there was earlier information that was available.

Faulkner: What earlier information?

Bonser: That is the information that was provided by Coastwatch from AFP on a variety of dates in October, including 20 October. That was relayed to Defence intelligence staff and repromulgated by them to the Defence operational authorities.

Faulkner: You saw Admiral Smith’s letter in the Canberra Times. That is what drew this matter to your attention?

Bonser: That triggered it for me, yes.

Faulkner: Did you contact Admiral Smith directly?

Bonser: I tried to contact Admiral Smith. I got on to his office. He was overseas at the time, so I spoke to his chief staff officer (operations) and his chief of staff. I advised them that I thought that there were some inconsistencies with the flow of information as I knew it and that they ought to refer to a certain range of messages. I did not say what the inconsistencies were, just that there were inconsistencies, as I saw it, with respect to the flow of information.

Faulkner: Was this communication done telephonically?

Bonser: That is correct.

Faulkner: How did this matter progress in the lead-up to Admiral Smith’s letter?

Bonser: I made that call on 16 April. Subsequently, on 22 April, I was speaking with Admiral Gates, who was running the CDF/Secretary task force and coordinating defence matters in this regard. I also brought it to his attention that I believed there were some inconsistencies.

Faulkner: Was there any written communication there with Admiral Gates?

Bonser: No, there was not.

Faulkner: Was that communication telephonic or face-to-face?

Bonser: That was face-to-face (on 22 April).

… Faulkner: What happened then?

Bonser: The other person that I advised on 10 May was the Chief of Navy. I advised him that I had the view that there would be inconsistencies between Admiral Smith’s evidence and mine when I appeared at the Senate committee, and he should be aware of that. He acknowledged that fact.

Faulkner: Is it fair to say that the issue of concern here was that you might be asked questions today which Admiral Smith had canvassed, and that inconsistencies would become apparent?

Bonser: That is correct. I wanted to give people the courtesy of telling them that.

Faulkner: So, in a sense, you were being proactive about it. You were concerned about what might happen at today’s hearing, effectively, as opposed to any evidence you may have given in the past. Would that be right?

Bonser: No, I was not concerned about any evidence I may have given.

Faulkner: What was the response on 16 April from Admiral Smith’s staff?

Bonser: My message was acknowledged.

Faulkner: It was just on the telephone, wasn’t it?

Bonser: That is right, and I was thanked for the advice.

Faulkner: On the telephone?

Bonser: Yes.

Faulkner: There was nothing in writing with Admiral Gates? Again, it was a face-to-face conversation that you had with him?

Bonser: Yes, it was.

Faulkner: Was the admiral able to indicate to you what sort of action he might take as a result of that?

Bonser: I think he just said to me that he would speak to Admiral Smith.

Faulkner: Did you get any feedback from any of that communication?

Bonser: Not straightaway, no.

Faulkner: What was the feedback?

Bonser: I received a phone call from Admiral Smith on 16 May to tell me that he was writing to the secretariat of the committee and providing clarifying information. He did not provide me with the detail of that information.

Faulkner: … On 10 May, after your call to Admiral Gates, why did you determine it was necessary to talk to the Chief of Navy about this?

Bonser: I wanted to ensure that the Chief of Navy was aware that there may be inconsistency in the evidence and confirm that he was aware of it.

Faulkner: But you were only concerned about Admiral Smith’s evidence. Was there any other evidence you were concerned about?

Bonser: No.

Faulkner: Just Admiral Smith’s?

Bonser: Yes.

Faulkner: Did you have a worry that speaking to Admiral Gates was not sufficient?

Bonser: No. I just wished to make sure that the Chief of Navy had been given the courtesy of being told, and I thought I should do it myself.

Faulkner: Did the Chief of Navy indicate to you what action he might take as a result of that communication you had with him?

Bonser: I think his words to me were, `If there is any ambiguity, it needs to be clarified’.

Faulkner: Did he indicate how that should be done?

Bonser: No, he did not.

Faulkner: Admiral Smith contacted you on 16 May to indicate that he was taking the course of action that we are now aware of, which is the letter that he has written to the committee?

Bonser: Yes, that is correct.

Faulkner: Were there any other contacts with either Defence personnel or others about this matter?

Bonser: Only in a discussion I had with Air Commodore Blackburn, who is Admiral Gates’s deputy in the task force, where it was confirmed for me that the task force had received a copy of Admiral Smith’s clarification. That occurred yesterday.

Faulkner: So that happened just before today’s hearing.

Bonser: That is correct.

Faulkner: That is the sum total of it?

Bonser: That is the sum total.

… Bartlett: From my memory of accounts of it, people when they were rescued had been in the water for at least 24 hours. You did not detect any radio communication amongst any boats or other aircraft in that period of time or even when they were rescued by fishing vessels? Did you pick up any communications indicating that they had been rescued?

Bonser: No. Coastwatch does not have that capability.

Faulkner: No, but other agencies would have, wouldn’t they?

Bonser: There are other agencies that do that and I have seen no indications that anything was intercepted of that nature.

… Cook: Have you requested of those other agencies a check to see if anything they retain indicates that messages or broadcasts were intercepted by them?

Bonser: No, I have not.

… Faulkner: The only agency report that you received in relation to the whole SIEV-X issue was the original intelligence from the AFP. That is as I understand the evidence that you have given us.

Bonser: … There were no other indicators.

… Collins: On 14 October SIEV-X was referred to in one of your operational summaries. On 17 October it was referred to in one of the operational summaries … on 20 October we get the report that there had been a departure with 400 passengers on an overcrowded, small ship. According to your evidence this morning, on that occasion that information was passed on by telephone rather than the earlier simple inclusion in an operational summary report. Why was that?

Bonser: There is no difference between any of the reporting. The normal practice for Coastwatch for advice that came in to us was for it to be passed by a secure phone call to the Australian Theatre Joint Intelligence Centre and Headquarters Northern Command.

Faulkner: That is what you said in your opening statement.

Bonser: That is correct. That information is then normally passed on by them to the Defence commands involved in Operation Relex. In addition to that, Coastwatch includes a precis of the relevant information in its daily operations summary.

Faulkner: Yes, but I think that, as a first step, Senator Collins is canvassing whether normal practice and procedure were followed in the instances that are referred to in relation to SIEV-X. In paragraph 36 you outline the normal practice. That is fine and it is understood and appreciated. The next step along the way, before we get to where Senator Collins is going, is this question: was normal practice followed in relation to SIEV-X? I appreciate that that may be the normal practice but did it happen?

Bonser: Yes, normal practice was followed.

Collins: So, on an operational summary report that included the summary on 14 October about the potential departure of SIEV-X, a phone call had been made to NORCOM on that occasion?

Bonser: I would assume so. I would have to go back and check that exactlytake it on noticebut that is the normal practice and I would have expected that that would have happened.

Faulkner: That is the point of my question and of Senator Collins’s questions. We are trying to go beyond what is a very helpful description from you of how your agency undertakes its normal activities. That is helpful. The issue goes to the individual instances that are outlined in Admiral Smith’s clarifying statement of whether normal practice actually did apply. Your answer to Senator Collins’s follow-up question was qualified.

Bonser: As far as the reports on SIEV-X go, certainly on 20 and 22 October normal practice was followed … I would have to confirm the detail of previous reports but I would be quite confident that normal practice was followed.

Collins: What concerns me, though, is that it has been put to us that there was no confirmed departure up until the 22nd.

Bonser: That is correct.

Collins: Yet on 20 October we know that Coastwatch made a call and followed through with a report about intelligence – which is presently classified – indicating that a departure had occurred, that there were 400 people on a small ship and that some people had refused to embark because of the overcrowding. I want to know what constitutes a confirmed departure. If that much information cannot form the basis of some level of confirmation, what is required?

Bonser: That was the fifth report we had had in that particular month about that boat departing.

Collins: But with that level of detail?

Bonser: We had similar detail on previous occasions. There is this great history of boats that depart, divert, go to other ports, do different things, perhaps break downthere is no real confirmation of the boat actually departing or the fact that it has left the archipelago.

Collins: After this report of the 20th, from intelligence gathered on the 19th, there is nothing else reported until the 22nd.

Bonser: The only new information after that arrived on the 22nd, as far as I am aware.

Collins: Do we know why that was the case?

Bonser: No. Coastwatch was not collecting the information, so I do not know.

Collins: This is a question for the Federal Police, is it?

Bonser: I presume so.

Faulkner: Yes, but you are the link between the AFP and Defence, aren’t you?

Bonser: In this instance we were, yes.

Faulkner: That is normal practice, though, isn’t it?

Bonser: Yes.

Faulkner: So it is not just this instance, is it?

Bonser: No, that is correct. AFP information normally comes through Coastwatch.

Faulkner: So the AFP provides intelligence information to you. Normal practice for you is to pass it on to NORCOM and the Australian Theatre Joint Intelligence Centre. Is that what it is called?

Bonser: Yes. That is correct, Senator.

Faulkner: In fact, you outline in your opening statement what NORCOM and the Australian Theatre Joint Intelligence Centre might do with that information. But I accept that is a process and that, at the end of the day, you are not responsible for that. Because of concerns about the SIEV-X issue, would it be possible for you provide to the committee, in each of the instances outlined in Admiral Smith’s letter, when the AFP intelligence material was received by Coastwatch, how and when it was provided by Coastwatch to NORCOM and Australian Theatre? Maybe that would help us.

Collins: It does, except for one issue – that is, if the report that was passed on to Defence on 20 October was accurate, what further intelligence would you have expected to confirm it, other than a potential aerial surveillance of the ship?

Bonser: It goes back to the fact that this was the fifth report about a departure in that month, plus a range of previous ones in months prior to that, and the history of these boats being recorded as possibly departing and then having no arrivals.

… Bonser: With respect to the information that we received on 20 October, that was received from the AFP at 9.30. It was passed on to the Australian Theatre Joint Intelligence Centre at 9.50, and we saw them disseminate that information by message at 10.00. At 10.05, we briefed Northern Command on that information by telephone and we saw them repeat that information to the Defence Operational Authority in message traffic that had a date/time group of 12.03 … On the 22nd, we received the information from AFP at 10.03. The assessment was made that the vessel was overdue and AFP were contacted about what information could or could not be conveyed. They requested a stay of the notification while they put together some suitable words. That was provided to us at 13.50. After they authorised release of that at 14.05, Coastwatch advised AusSAR using the words that were provided by AFP.

… The standard addressee list was from Coastwatch Canberra and it was sent to Commander Australian Theatre, Commander Joint Task Force 639, Maritime Commander Australia, Air Commander Australia, Commander Task Force 641, Commander Task Unit 646.2.2which is the `P3 world’Australian Theatre Joint Intelligence Centre, Task Group 639.0 and the 92 wing detachment at Learmonth, and for information to Australian Defence Headquarters Operations in Canberra, Headquarters Australian Theatre, Maritime Headquarters, Headquarters Air Command Air Operations and my Regional Coastwatch Base.

Faulkner: Was there no input to the People Smuggling Task Force that was operating at the time?

Bonser: At the meetings of the People Smuggling Task Force input was provided from all of the agencies. I did not see much of that. I presume some of it was provided outside of the meetings. At the meetings that I attended, I normally provided a brief overview of how many boats might be expected in the next period, but it was simply an overview based on the rather imprecise information we had at the time.

… Senator George Brandis, Liberal, Queensland: At the time that the report came through saying that the vessel was overdue, was any estimate made in that report as to how overdue the vessel was?

Bonser: No, only that we would have expected that it would have reached Australian waters by then.

Brandis: So it was not a matter of it being a day overdue, two or three days overdue or a matter of hours overdue; it was just an unqualified report in that respect.

Bonser: Yes, it was.

Cook: So this was from an intelligence source; it was not from surveillance that we knew that it was overdue.

Bonser: That is correct. We received additional intelligence information that corroborated the previous report of the departure. That confirmed that we had most probably had a departure and, on the basis of that, that the boat should have probably arrived and was therefore overdue.

.. Collins: .. What did you say about the advice on the 22nd that provided confirmation?

Bonser: The advice we received corroborated the previous report that a boat had possibly departed.

Collins: So it was additional intelligence?

Bonser: It was additional information that confirmed for us that a boat had most probably departed and, on the basis of that, was therefore overdue.

… Faulkner: Do you know if the question of the SIEV-X was actually discussed at the People Smuggling Task Force?

Bonser: I am aware (from other customs officers) that the subject was raised at the meeting on 22 October. I do not know what was said because I was not at the meeting; I was in Cairns on that day.

… Faulkner: And when did you become aware of that?

Bonser: I was advised while I was in Cairns that the additional information about the boat had arrived and that Coastwatch was going through the process of clearing the information with AFP, to provide that information to AusSAR. My chief of staff at the time advised me of that and also advised me that they were going to pass on that information at the IDC (the task force) on that particular day.

Faulkner: Was your chief of staff present at the IDC then?

Bonser: He would have been present on that day along with the DCEO of Customs, Mr Drury.

Faulkner: Are you aware of SIEV-X being raised at the IDC before the 22nd?

Bonser: No, I am not aware of that at all. (Bonser then says that as far as he knows, it was not discussed at the task force before October 22 or after that date.)

… Faulkner: I think this is relevant to our inquiry, so would you be able to take it on notice for me please as to when any matters in relation to SIEV-X were discussed at the People Smuggling Task Force and what the role of Coastwatch was in those discussions – they may have been generated, for example, by Coastwatch or they may not. If that detail could be provided for any matters relating to SIEV-X, I would appreciate it. You will obviously need to go to the officers who represented your organisation at the time.

… Bonser: I will take it on notice and provide what I can.

… Bartlett: Just going back one last time to 22 October, Rear Admiral Bonser, you advised Search and Rescue that the vessel was overdue because SIEVX met the criteria that you had confirmation of departure dates and it was known to be overdue. According to Admiral Smith’s information, you notified via an opsum to Admiral Smith that the vessel was overdue possibly due to poor condition of the boat and the large numbers on board. The Rescue Coordination Centre also independently reported to Admiral Smith that the vessel was overdue. But it does not seem that Search and Rescue or anybody else actually requested anybody to do anything about it, to go and look for it. They did not ask you to go and look at all to see where it was and whether it was in difficulty?

Bonser: What Search and Rescue then implemented you would have to ask them but, as far as Coastwatch are concerned, we were still conducting all of the surveillance that we had had in place which was specifically dedicated to finding just those boats.

Bartlett: But they did not give you any specific request or direction or anything to go and look over in this area? Based on your earlier evidence, that is not necessarily where you go anyway.

Bonser: No.

Bartlett: And they did not seem to do so with the Relex people either. You have said before that, as far as you are aware, there has been no report or even any form of informal investigation into this situation. This was a circumstance where admittedly it was probably in international waters and closer to Indonesia than here, but we have been involved in fairly extensive efforts to rescue a single yachtsman or yachtswoman a huge number of kilometres from the Australian coast. We have had a few fishermen drown at sea and had coronial inquests and Senate inquiries when there were three or so. We have had massive inquiries when we have had two or three people die on the Sydney to Hobart yacht race. All of those circumstances have their own specifics and I am not trying to say they are all the same thing, but we have an incident in which 353 people drown and nobody has even made a general comment about whether there is some way we can perhaps stop this happening again or whether there is anything we can do better.

Bonser: I have seen nothing about that.

Cook: That is equivalent to about one jumbo jet going down with a full passenger load.

Brandis: Those questions assume that Australia has responsibility for the problem. We have yet to hear a syllable of evidence to suggest that we did have responsibility for the problem.

Bonser: I have certainly seen nothing to indicate that.

Collins: I did not hear a question that suggested there had been an Australian investigation. I think the question was whether there had been any investigation.

Faulkner: Is it true that there was input to Coastwatch from the AFP that effectively detailed, if you like, the size and the state of SIEV-X? Would that be fair to say?

Bonser: We knew that it was small and overcrowded.

Faulkner: And by `overcrowded’ would that mean that you would know that there might be around 400 passengers embarked?

Bonser: We had an indication of the numbers, yes.

Faulkner: Were you aware that some passengers were not able or were unwilling to be boarded?

Bonser: I understand that there was an indication in some of the advice that that was the case, that people either had not got on or had got off the vessel.

Faulkner: So there is no doubt, effectively, that you have got intelligence inputs here basically indicating that the vessel is barely seaworthy. Would that be right?

Bonser: We did not know that because we had not seen it. What we knew was that this vessel was reported as being small and overcrowded, and that was the information we advised to all of the relevant operational authorities.

Faulkner: Does the surveillance task change in that sort of situation, where there might be a possible safety of life at sea situation?

Bonser: In this case, with, as I have said, the imprecise information about departures – the departure after departure that does not eventuate, the comprehensive surveillance that was in place out there and the fact that we did not have a confirmation of the departure and that the vessel was not yet overdue – no.

Faulkner: You know the figure of the people who have embarked on it, so one assumes that it must be pretty close to going if there is that number of people who have embarked?

Bonser: But that number is not inconsistent with previous boats, either.

Faulkner: Yes, but if there is a possible safety of life at sea situationan unseaworthy vessel that is massively overcrowded and the like -and it is ready to go or about ready to go – does that change the surveillance task that you have?

Bonser: It would not have changed our surveillance task because we were not conducting surveillance in that area.

Collins: Let us say you had been. Let us say Coastwatch had been directly responsible for the surveillance in the zone, would Coastwatch have instigated surveillance after notification of the departure on the 20th?

Bonser: One of Coastwatch’s tasks is to conduct surveillance to detect all these boats before they reach Australia.

Collins: So the answer is yes?

Bonser: We would have done that, irrespective.

Collins: Of the safety of life at sea situation?

Bonser: Yes, which was what was happening here already. A comprehensive surveillance pattern was in place doing nothing but looking for these boats.

Faulkner: But it is not just a small, overcrowded, unseaworthy vessel, is it? It is full of SUNCs, as these people are described – an unhappy acronym – suspected unlawful noncitizens. That makes a difference too, doesn’t it?

Bonser: All of these boats are full of people.

Faulkner: Yes, but I am interested in how that affects the surveillance task.

Bonser: The surveillance task was in place looking for all of these boats throughout.

Collins: But what we have from Admiral Smith indicates that surveillance at the time was not as comprehensive as you seem to be indicating. Surveillance was brought back closer to the contiguous zone, as I understand Admiral Smith’s report – it was brought right back to the immediate area around Christmas Island.

Bonser: I do not know about that, Senator. I think it is something you would have to address to Admiral Smith.

Brandis: I would like to ask a question about the surveillance area as well. Are you aware of how close to the southernmost reach of the Sunda Strait the limit of Coastwatch surveillance was at this period?

Bonser: Coastwatch was not within 1,000 miles of Sunda Strait.

Brandis: Have you read Mr Kevin’s evidence? Mr Kevin’s conjectures that the vessel foundered some hundreds of miles south of the southernmost point of the Sunda Strait. Are you familiar with that evidence?

Bonser: I am familiar with the evidence, yes.

Brandis:Did the limit of the Coastwatch surveillance area ever reach even the point at which Mr Kevin conjectures that the vessel foundered?

Bonser: No, Coastwatch did not, because we were 1,000 miles away to the east. Defence was conducting surveillance around Christmas Island.

Brandis: Are you aware of the limit of the Defence surveillance?

Bonser: Bonser It was about 30 miles south of Indonesian territory.

Brandis: Thank you.

Cook: Where is that, for my benefit, in relation to Mr Kevin’s conclusion of where the boat foundered?

Bonser: It would be within the surveillance area.

… Collins: But, Rear Admiral, the point I was coming to a moment ago was that we were advised by Admiral Smith that on 19 October – when this vessel departed Indonesia and foundered, he claims, in the Sunda Strait – air surveillance assets and Navy service units were conducting layered surveillance operations and responding to SIEVs close to Christmas and Ashmore islands. So comprehensive surveillance was not occurring at that time; it had been pulled back close to Christmas and Ashmore islands. From what I understand you to be saying, that is not ordinarily the case.

Bonser: I was talking about the overall surveillance that was in place right across Northern Australia, which was, in my experience, the most comprehensive that I have ever seen. What was happening out at Christmas Island was purely defence assets; you would really have to ask them about that.

Collins: I am also trying to understand what happens with the flow of communication, because pre these arrangements it would have been an exclusively Coastwatch situation: Coastwatch gets the report, Coastwatch is alerted possibly to a safety of life at sea scenario, Coastwatch has its comprehensive aerial surveillance in place and would anticipate identifying if such a ship were foundering in that region. But in this scenario we have Coastwatch passing that information on to Defence, Defence saying, `No, our assets are busy elsewhere,’ and no aerial surveillance occurring, as it seems.

Bonser: I do not know about that; that is something you would have to ask those that were conducting the surveillance.

Faulkner: Who would make the decision? Accepting that this is outside the area, under the auspices of Operation Relex, that Coastwatch has surveillance responsibilities for – which is the point you make, isn’t it?

Bonser: Yes.

Faulkner: Just accepting that, who would make the decision in Defence, as you understand it – based on the material that you provide, the AFP reports and the like – that surveillance of this particular SIEV-X is warranted? Where would that decision be made? Would it be made at NORCOM; would it be made elsewhere? Can you assist us with that at all?

Bonser: I would expect that it would be made in that operational chain of command: between the Theatre Command, Northern Command and indeed the assets in location.

Faulkner: Once you pass on the intelligence material you have available, is there no follow-up from Coastwatch?

Bonser: Only to continue to provide any additional information that comes to us.

… Faulkner: If Defence decided that they were going to undertake surveillance of SIEVX, for example, would Coastwatch in the normal course of events have been notified?

Bonser: Probably not. We would have had information that they were conducting the surveillance in that general area with the assets that were available. We were not seeing the actual detail of the surveillance patterns, not that level of detail.

Faulkner: Do you think, in relation to SIEV-X, that there were process failures in terms of the role of Australian agencies? I appreciate you can only make a comment from where you sit and it is in that context I ask you the question.

Bonser: From what I have seen and from the information that has been passed on I would say no. All of the information has been handled properly and passed on.

Faulkner: So you think it is perfectly reasonable that Australian authorities should learn about the sinking of SIEV-X from CNN? You are quite satisfied that that is acceptable?

Bonser: If that is the only information you get, then that is all you have.

Faulkner: But it is not the only information we have got in this situation, is it?

Bonser: That is the only information that we have about the vessel sinking.

Faulkner: It might be the only information at that time about the vessel sinking, but it is not the only information you have about the vessel leaving. It is in that context I asked the question. I probably should clarify it. My question does not go specifically to the sinking of SIEVX; it is the whole exercise from the time 400 people embarked and the boat left Indonesia. If the government decided to inquire further into the events surrounding the sinking of SIEVX, given your extensive responsibilities in relation to Coastwatch, could you identify any process failures in relation to this particular SIEV?

Bonser: I cannot see any course of action that any Australian authority could have taken that would have prevented the sinking of the vessel.

Faulkner: Can you think of a situation where Australian agencies should have had a great more knowledge and detail about what occurred with this SIEV after it left Indonesian shores?

Bonser: No, I cannot.

Faulkner: Can you draw a distinction between the state of knowledge that agencies had of that SIEV and a range of the other SIEVs – some of this you have dealt with in your opening statements – particularly the number of SIEVs. I am using SIEVs 1 to 12.

Bonser: The information is remarkably similar about all of the vessels, in particular the on again off again nature of the departures. The only thing that was different about this vessel was that we had information at the last report of the possible departure that it was small and overcrowded.

Faulkner: You have not been asked since the sinking of the SIEV, in your role at Coastwatch, for any investigation or inquiry into those events at all?

Bonser: No, I have not.

Faulkner: Does that surprise you?

Bonser: No.

Collins: Let me take you to one area where there are issues of a process nature regarding the reporting, and that is your statement “In the normal course of operations, Coastwatch informs AusSAR about any vessels that have been sighted and may be in difficulty or distress.” You are probably aware that the evidence we had from AusSAR was that they were never advised that there was a vessel in distress, even on 20 October. How could you get into that situation?

Bonser: Because there was nothing to indicate there was a vessel in distress.

Collins: You said that you advise AusSAR, in the normal course of events, when a vessel may be in difficulty or in distress, and you did so on this occasion.

Bonser: What we did on this occasion was to advise AusSAR that there was a vessel that was potentially overdue.

Collins: Your statement says: In the normal course of operations, Coastwatch informs AusSAR about any vessels that have been sighted and may be in difficulty or distress.” And you did this on this occasion. You said that SIEV-X met this criteria.

Bonser: SIEV-X was not a vessel that had been sighted and was observed to be in difficulty and distress. When Coastwatch has confirmation of the departure date of a SIEV, and then when it is known that it is overdue, Coastwatch provides that information to AusSAR. After we had received the additional information on 22 October, SIEV-X met that criteria, and that was why Coastwatch contacted AusSAR and advised them that there was a vessel that was potentially overdue.

Collins: This is where there is a lack of clarity. You are saying that you advise AusSAR when a vessel may be in difficulty or distress. That is why you advise AusSAR, isn’t it?

Bonser: When we sight a vessel that may be in difficulty or distress, yes.

Collins:So, in this case, you had confirmation of departure and you knew it was overdue. Presumably you felt that met the criteria of probably being in difficulty or distress, and so you would advise AusSAR?

Bonser: No. That met the criteria for a vessel being overdue, and so we advised AusSAR.

Brandis: Is this the situation? There are different categories of criteria that trigger the advice to AusSAR: one is the sighting of a vessel in difficulty or distress; and another and independent criterion is that a vessel is overdue.

Bonser: That is correct, and they are independent.

Brandis: In this case, it was the second and not the first of those two categories which triggered your advice to AusSAR. It is as simple as that, isn’t it?

Bonser: That is correct.

Collins: Then, when you get to the first of those criteria, what action is AusSAR meant to take? My question is: what is the point of advising AusSAR?

Bonser: And that is for which criteria, Senator?

Collins: The first, the `overdue’.

Bonser: For an overdue vessel – and you would have to clarify this with AusSAR – my understanding is that they would issue a broadcast alert, asking shipping to keep a lookout for a vessel that was overdue.

Collins: They tell us they only do that when they have information that there is difficulty or distress. They are not aware of this two-level criterion that Senator Brandis has put to you.

Brandis: No, not two-level criterion; two separate criteria.

Collins: Okay, two different criteria. It seems that AusSAR is not aware of these criteria.

Bonser: I do not know about that. You would have to clarify that with them.

Collins: I suggest that you look at the evidence they gave this committee. Their answer for not responding to a report from Coastwatch is that there was no indication of distress.

Bonser: And we did not tell them that there was an indication of distress. We provided the information to them that there was an overdue vessel.

Collins: What I am asking you is this: if it has this other criteria, which is vessel overdue, what is your understanding of what AusSAR does with it? What is the point of reporting overdue to them, if all they simply say is `We’ve done nothing, because there’s no indication of distress’? Why bother with this criterion?

Bonser: Because that has been a standard procedure and, in the past, there have been broadcasts issued asking for vessels to keep a lookout for overdue vessels.

Collins: That is additional information that was not provided to us from AusSAR. We need to get to the bottom of why they did not do that on this occasion, because they did not – and we do not know why they did not, but we do know that many lives were lost.

Brandis: I think it is clear that there was never a time at which this vessel was under surveillance.

Bonser: That is correct.

Brandis: There was never a time at which any report was received by Coastwatch that the vessel was in difficulty or distress.

Bonser: That is correct.

Brandis: There was never a definitive piece of information conveyed that the vessel had, in fact, definitely departed Indonesian shores; there were merely intelligence reports that the vessel may have departed Indonesian shores.

Bonser: That is correct.

Brandis: On the assumption that this vessel may have departed Indonesian shores on a given date, there was a report that the vessel was overdue, and that report came to you?

Bonser: Yes, it did.

Brandis: A report was received that the vessel had sunk, which report was received after that event had happened.

Bonser: Yes, that is correct.

Brandis: That was also a report in the public media on the international news programs.

Bonser: Yes, it was – in addition to the report we received on 23 October from the Australian Theatre Joint Intelligence Centre.

Brandis: As far as I can follow your evidence, there was never a time prior to the sinking of the vessel that Coastwatch received any information causing it to arrive at a conclusion that the vessel was in peril or distressed.

Bonser: That is correct.

Brandis: That is what I thought. Thank you.

… Bartlett: My understanding of the answers you gave part way through there is that you had a range of intelligence reports of possible departures here and there, but there was no confirmed sighting or confirmation of a departure date.

Bonser: The only time we received information that corroborated a departure and indicated to us that this vessel had probably departed and could therefore be considered overdue was when we received information on 22 October.

Bartlett: You are saying `probably’. What is the difference between probability and confirmation?

Bonser: We could not tell whether the vessels had really left or not until they turned up.

Bartlett: You said in your opening statement that you had told AusSAR about the confirmation of departure. Was it confirmed or wasn’t it?

Bonser: That was the best indication we had of a confirmation of a departure and, on the basis of that, we assessed that the vessel was overdue and advised AusSAR accordingly. I cannot really go into any further detail in public about the nature of that information or why it led us to that belief.

Bartlett: We can pursue that with the AFP. I am not trying to divulge state secrets, I am just trying to get an idea of what constitutes confirmation and when probable departure becomes confirmed departure.

Bonser: I think the nature of the information that was provided on the 22nd, if provided in camera, would make that clear.

Cook: … My understanding, based on the corrected evidence of Admiral Smith, is that SIEVX departed Sumatra, which is a small coastal town in west Java, and that was the last place it touched on its ill-fated voyage. After that, it sailed on and foundered somewhere. The evidence that you have given us and reiterated a number of times – and I thank you for that – is that you received information on 22 October that this vessel may be overdue. That information was received from the AFP, as I recall you saying. I went through this before. The sole source of information that the vessel was overdue was the AFP, as far as Australia is concerned?

Bonser: That is correct.

Cook: You first learnt that the vessel was overdue from the AFP?

Bonser: Yes, and that assessment was made based on the information we received from the AFP on 22 October.

Cook: Did you receive information from the AFP that the vessel was overdue or that the vessel had departed at a certain time and then, by your own calculations, conclude that it was overdue?

Bonser: It was both. Part of the information and the detail of the information would help clarify that. There was an assessment that it was overdue, and we agreed with that assessment.

Cook: That is the point I want to be clear about. The AFP advised you that the vessel was overdue and, when you did your sums about where it was likely to be, you confirmed in your mind that, `Yes, obviously it is overdue.’ Is that how it went?

Bonser: That is correct, Senator.

Cook: The point I am concerned about is that the originating idea that the vessel was overdue came to you. You did not calculate that or deduct that from other informationfrom raw material. You got that conclusion, you checked it and then reaffirmed that it was overdue.

Bonser: That is correct, Senator.

Cook: And then you were asked to wait before that knowledge was broadcast so that it could be put in an acceptable form of reporting by the AFP?

Bonser: Yes.

Cook: You will tell me if I am intruding into areas that are sensitive and ought to be protected, which `may’ be matters for us to consider in camera when I ask these next questions. The advice that the Australian Federal Police gave you after this interregnum of nearly four hours from the initial report about what you may notify as an overdue vessel was essentially the same advice, in the same terms, that they had given you earlier or was it advice that was not in the same terms?

Bonser: It was not in the same words – because of the nature of the original information – but it was in the same terms, that this vessel was overdue. The original information inferred that same conclusion.

Cook: All right. The RAAF were flying surveillance in the area where Mr Kevin concluded SIEVX sank. Were they flying surveillance at the time that this vessel may have been in that vicinity?

Bonser: I do not know. I do not know whether it was ever in that vicinity or, if so, when.

Cook: You are aware though, as you said in your opening statement, of what Mr Kevin has said, you have read his evidence before us and you have doubtlessly seen the maps or the charts that he has presented to us and would therefore know where his hypothesis leads in terms of where he believes the vessel sankthat is, in an air surveillance area of Australia.

Bonser: Yes, it would be, Senator.

Cook: For the ADF?

Bonser: Yes, if that is where the vessel sank.

Cook: Do you happen to know whether a PC Orion, if that was the type of aircraft used, is equipped with life rafts and things that it could drop from the air if it comes across a SOLAS situation?

Bonser: I know they can be, Senator.

Cook: You do not know whether the operating aircraft in the area were, though?

Bonser: I do not know the answer to that question.

Cook: Maybe it is a question we should ask Defence. How long after 22 October, when you had broadcast this information, did CNN report that this vessel had in fact sunk?

Bonser: It was the following day, 23 October. That was the same day that we received advice from the Joint Intelligence Centre that there had been a report that a vessel had sunk.

Cook: The report that the Joint Intelligence Centre was referring to was the CNN report or another report?

Bonser: I do not know. We received two separate reports: one from the Joint Intelligence Centre and we also saw what was on CNN.

Cook: You actually saw it on the screen?

Bonser:Rear Adm. Bonser I did not, but I heard about it.

Cook: Officers of your agency saw it on the screen?

Bonser: Yes.

Collins: But you do not know that they were separate reports?

Bonser: No, I do not know what the source of the Joint Intelligence Centre report was.

… Cook: Taking you back to your remarks in your opening statement about reviewing the Kevin hypothesis, for want of a better description, and Mr Kevin’s evidence, has Coastwatch done its own reconstruction of the events to test that hypothesis?

Bonser: We have looked at the information but it is so imprecise that you really cannot reconstruct much from it, I would have to say.

Cook: So you have done some sort of exercise.

Bonser: We have plotted estimated times of departure, possible speeds, different diversions and where the vessel may have gone but it is very difficult to reconstruct. The best we have been able to work out is that it was somewhere between the Sunda Strait and perhaps about 80 miles south of it that this vessel unfortunately sank, but we have not been able to determine exactly where.

Cook: Calculating wind speeds, drifts and currents and plotting where boats might be and those sorts of things would be an expertise of Coastwatch, wouldn’t it?

Bonser: We have some skills in it, but the experts are the search and rescue authority.

Cook: You have presented to us that the analysis you have conducted was, in a way, a back of the envelope sort of exercise, or that is the impression I have. Was it an exercise like that, or was it a more considered sit down with the charts, the calculators and the navigational instruments to try to work it out? Was it a fairly full-on exercise?

Bonser: We certainly would have looked at a chart, at estimated times of departure and at how far a vessel might have gone at certain speeds, but to get any precise information even of the courses that the vessel might have taken would have been pure guesstimation. We just had no detail about what the vessel did, or might have done, after it allegedly sailed to indicate even what direction it went in.

Cook: And the intelligence reports did not provide a clue to you as to that.

Bonser: All we had was that there was a possible departure on a date, and I think that was the fifth possible departure that month. We had no idea whether the vessel was actually departing the archipelago or going somewhere else in the archipelago.

Cook: Does this exercise that you have just described appear in writing anywhere?

Bonser: I do not know that we actually have any of that recorded. We would have sat down with the chart, but it may well have been rubbed off again by now.

Cook: Can you check to see if you have anything?

Bonser: I can check.

Cook: You leave me with a terrible void in trying to package this. I understand and respect what you say about there being so many variables here and how do you know where it may have foundered. If you have no information after it leaves port, the fact that another agency can tell you that it is overdue suggests that another agency may have some of that information. So I will give some thought as to whether or not we might want to go in camera on some of that evidence.

Senator Brett Mason, Liberal, Queensland: Admiral, I think you said, in response to questions from my colleagues, that you are familiar with Mr Kevin’s evidence on Hansard and perhaps also some of his opinion pieces. Is that correct?

Bonser: Yes, I have read some of them.

Mason: I will quickly put some of them to you in a second. Let us get a bit of context to our discussion this afternoon. On page 1327 of Hansard of 1 May 2002, Mr Kevin says – and this is the nub of the issue: “There is clear public knowledge now from Australian official sources that there was some Australian official foreknowledge of the circumstances that led to the deaths of these 353 human beings. This cries out for explanation and accountability.”

And on page 1325, he says: “Coastwatch Australia knew from an intelligence source when this boat had left, where from, its likely speed and that it was heading for Christmas Island.” Are you across that information?

Bonser: Yes.

Mason: They are the claims that Mr Kevin in effect makes as they relate to Coastwatch. The nature of the information has been discussed this afternoon, and I think Senator Bartlett referred to paragraph 32 of your opening statement, which reads: “Information in relation to possible boat departures from Indonesia is often imprecise and subject to frequent change. It is not unusual for a vessel’s projected departure dates and times to change on an almost daily basis over a period of days or even weeks.” I think you gave evidence that on five different occasions there were intelligence reports that SIEV-X was about to depart. Is that correct?

Bonser: That is correct – either about to depart or had departed. That was just in the month of October.

Mason: In paragraph 3 of Admiral Smith’s statement of clarification dated 17 May, he says: “The intelligence reporting from Coastwatch was used as indicators of a possible SIEV arrival in an area within a probable time window.” Do you agree with that?

Bonser: Yes. That is in fact the way that Coastwatch used the information as well – as indicators rather than any firm navigation evidence that a ship was in a particular position.

Mason:You have also given evidencein answer to a question by Senator Brandis, I think, that this vessel was never under observation by the ADF or Coastwatch. Is that correct as well?

Bonser: That is correct.

Mason: I will briefly put some of Mr Kevin’s assertions to you. This is from the Canberra Times opinion page, page 11, on 21 May. He writes: “So it’s a reasonable inference from Operation Relex practice that timely intelligence reached Canberra on October 18 or 19 saying that SIEV-X had left Sumatra on October 18 bound for Christmas Island and that it was a 19-metre fishing boat carrying around 400 people.” Is that right?

Bonser: No. We did not get an indicator – well, we got the fifth indicator that the boat had departed somewhere on the 19th. We received that on the 20th. We certainly did not know the dimensions of the boat.

Mason: So what would you say to the implication or insinuation that Coastwatch is responsible or partly responsible for the deaths of these 353 people?

Bonser: I find it personally affronting.

Mason: That is part of the assertion that is being made here by Mr Kevin.

Bonser: I completely disagree with it.

Cook: Is that assertion specifically made?

Collins: I am not sure that is a fair representation of the assertions either.

Mason: I think it is.

Cook: It is a fairytale.

Mason: Taking it to its conclusion, it is.

Collins: The AFP are an Australian agency, and they received the information on the 19th.

Mason: We can get to them. I am happy to examine

Collins: But a moment ago you represented it as Coastwatch.

Mason: No, I said Coastwatch and the ADF. I am aware of what I am saying.

Collins: We know you are aware of what you are saying. You are misrepresenting the case.

Mason: I am not misrepresenting it at all. We can debate this later. I am quite happy to call anybody you want and we will examine them as well and do that and the truth will come out.

… Mason: So you would say that the assertions made by Mr Kevin as they relate to Coastwatch are rubbish?

Collins: Which assertion is that?

Bonser: I disagree with them.

…Collins: According to Rear Admiral Smith, the one on 14 October was a potential departure as opposed to a departure, and the one on … 18 October was an actual departure. I am also curious as to whether those reports did in fact report movement of the ship – meaning that it did actually depart and then move to Suma – or whether it was a misreport, and any assessment you are aware of to that effect.

Bonser: I am aware that the report on the 17th was a movement from one port to another.

Collins: So the report of the 17th was a movement and the report of the 20th was a movement – we know that according to the corroboration we got on the 22nd.

Bonser: That is correct.

Collins: And the report of the 14th was a potential movement which did not end up being a movement.

Bonser: I believe that is the case, but I will have to confirm that.

Collins: I am also then interested in the earlier reports. I am interested in the accuracy of the reporting. I am interested in whether the reporting you had for August and September equally accurately reported movements of this ship. On the map, the ship moves around the strait area, eventually coming to Suma before it enters the strait, and then it founders somewhere.

Bonser: We would not have that information, because we do not know what the vessel did after it departed its final port.

Collins: No, I realise that. The case that is being presented to us is that we had a mixture of reports, and that clouded the picture. So we were not terribly confident of the report that we had on the 20th. Is that an accurate depiction?

Bonser: That is correct.

Collins: What I am seeking to understand is whether this confused picture of reporting is actually a fairly accurate report of a ship making its way down to close to the strait, which is the vicinity, ultimately, of where it ended up foundering. I would like to see the detail – so far as it does not compromise any sensitivity on intelligence purposes – of all of those reports: where the ship was, when it was being reported, precisely what it was being reported as possibly doing and whether it did in fact do that.

Bonser: That goes to the nature of the reports which are still classified and need to be declassified by the originating authority.

Collins: Yes and no. You could look at those reports and answer those questions without compromising the full detail of the report, I would have thoughtat least in many instances, maybe not in all.

Bonser: It would still have to be cleared with the originating authority.

Collins: Again you are saying this is perhaps more appropriately a Federal Police issue.

Bonser: To look at the information in detail, yes.

Collins: I also wanted to clarify what you indicated before, which was that you believe it foundered somewhere between the Sunda Strait and 80 nautical miles south of Java.

Bonser: I do not know where the vessel sank. All the reports that I have heard, which all come from what I have heard in the media, indicate somewhere between Sunda Strait and perhaps 80 miles south of Java.

… Collins: What component of that region falls within our aerial surveillance zone?

Bonser: My understanding is anywhere up to about 30 miles from Indonesian territory.

Collins: … So if we take it from the coast and 30 nautical miles down then that is where our zone of aerial surveillance would be.

Bonser: That was the area in which Defence was conducting surveillance. You would really have to clarify the detail of that with them. I understand that there was a stand-off distance from Indonesian territory for diplomatic reasons.

Faulkner: In Admiral Smith’s letter he talks about the Coastwatch assessment of the Abu Qussey vessel that assessed that the vessel could possibly arrive at Christmas Island late 18 October or early 19 October 2001. Who makes those assessments?

Bonser: That is done by analysis staff. They would base that broadly on the reports that they might get of departure dates and then estimate an arrival time based on possible speeds of these vessels, which are invariably slow. Sometimes these things do not even occur because the vessels divert to somewhere else.

There should be movement at the terror legislation station this week, with the House of Representatives sitting and Senators in town for Estimates Committee hearings, the Senate’s biannual review of department spending. To set the scene, here’s the piece I wrote for the Herald last week.

Then Victorian lawyer Damien Lawson, who’s been lobbying on the issue since the package was released, wonders if John Howard is backing down. Glen Wright says people like me are just sore losers, `Lionel Mudsticks’ reckons we’re already under ASIO email surveillance and Tim Dymond reviews the Weird Right’s latest diatribe on the left and terrorism.

To end, more debate on the Third Way: Tim Dunlop critiqued it in The Third Way: Window dressing for Capitulation, the debate began in For those who give two hoots and continued in Third Way revisited. Today,David Davis, George Ooi and Michel Dignand join in, Dr Aaron Oakley replies to criticisms of his contribution by Glenn Condell and Tim Dunlop responds to his harshest critic, David Eastwood.

***

Never mind the wedge, feel the splinters

By Margo Kingston

May 21 2002

A funny thing happened on the road to sticking another wedge into the Labor Party courtesy of the terrorism legislation. John Howard stuck a great big wedge into his party instead.

It seemed so easy to rely on the precedent of the first border protection legislation just before the federal election, where he rode public emotion to produce intolerable legislation, forced Labor to oppose its excesses, then accused it of liking boat people. With terrorism, he rode public fear post-September 11 to release a voluminous package of new legislation one night and get it through the House of Representatives the next. Labor organised a quickie Senate committee inquiry to salve its conscience.

Labor, rigid with fear after the border protection experience – which some blame for the loss of the election – then kept its head down. The media were in no mood to tell the public the facts, either. They protested loudly about an element which affected them – a crushing clampdown on whistleblowers – and the Attorney-General, Daryl Williams, backed down.

Most media then did nothing to bring Australian’s attention to the trashing of civil liberties – including the right to protest and to picket – of the ordinary citizen.

Despite this, the Senate committee was inundated with 431 submissions – from the former NSW Liberal attorney-general John Dowd, the Law Council of Australia, a bevy of legal and security academics, Amnesty International, the Uniting and Catholic churches and individual Australians.

The result: overwhelming evidence of a wholesale assault on freedom of assembly, freedom of speech, even freedom of thought. The Liberal committee members – moderate NSW senator Marise Payne, conservative Queensland senator Brett Mason and Country Liberal Party senator Nigel Scullion – joined Labor members to condemn the legislation. All wanted the power for Williams to unilaterally ban political organisations dumped, a significant tightening of the definition of “terrorist act” and the addition of intention as an element of new criminal offences.

That was just the beginning of the collapse of Howard’s wedge strategy. The Senate report emboldened Labor to put up stronger amendments, and when Williams put a few amendments to the Liberal backbench committee overseeing his activities early last week, they said no. South Australian moderate Christopher Pyne, centre-right Queensland senator George Brandis – Howard’s personal choice as defence counsel at the children overboard inquiry – and West Australian moderate Julie Bishop stared him down.

At last Tuesday’s joint party room meeting, Howard told Williams to negotiate a solution but, despite more backtracking, he still got nowhere. Howard faced a full-on assault on the bill by a growing number of Liberals across the factions – a de facto debate on the core values of the Liberal Party.

On Thursday, he called an emergency cabinet meeting to discuss the crisis. At a 6.30pm special joint party meeting, at which MPs were sworn to secrecy, the backbench remained split on one key point – the banning of political organisations, now to be done only by Parliament – and almost united in opposition to the plan to reverse the onus of proof for new offences carrying the penalty of life in prison. Howard promised to take on board the dissidents’ comments and come back to them with another compromise.

Howard’s wedge play has backfired. Labor now wonders just how few of its amendments will be needed. The Liberal Party has told Howard point-blank that his border protection tactic was a one-off (many Liberals kept their mouths shut to win the election), not a precedent to do whatever he wants to split Labor.

Federal politicians have already received thousands of emails from the public protesting against the proposed legislation. The far Right – the Citizens Electoral Council and One Nation – is fighting against it as hard as are the Left, small “l” liberals, and right-wing libertarians including Bronwyn Bishop.

The Liberal impasse wrecked Williams’s plan to get the package through the Senate last week. He must now wait until June 17 when the Senate resumes sitting, leaving a month for more Australians to understand what the Government is trying to do to their democracy and their liberties. Watch this space.

***

Damien Lawson

Did you see this? Is this the PM’s coded message to his back bench: “Don’t worry, I am not for banning either.” Or was it just a slip of the tongue.

Either way it is a remarkable statement. John Howard on the Menzies communist party referendum : “Well I think the Australian people made the right decision in rejecting the proposal.”

John Howard press conference, St Regis Hotel, Beijing, 22 May 2002

Journalist: At the school for the cadres today you seemed to indicate that perhaps Sir Robert Menzies was wrong to have held a referendum to try and ban the Communist Party in Australia. Do you think he was wrong at the time to have done that?

Howard: Well I think the Australian people made the right decision in rejecting the proposal.

J: Do you think the Prime Minister of time was right to put the referendum ?

Howard: Well I find it sort of difficult to separate that out from the response that I’ve given. The view I hold now is that that was, you know, the right decision was taken. And I suppose you can extrapolate from that an argument that maybe it shouldn’t have been put but it doesn’t mean to say that. That doesn’t automatically follow. I just believe that the right decision was taken by the Australian people. That’s a view that I’ve held for quite a lot of years too. It hasn’t just sort of come upon me, if you want the complete history.

***

Glen Wright in Wollongong

Regarding Never mind the wedge, feel the splinters, it sounds like you are still pissed at Howard winning his third term. No matter what else he does, he succeeded in getting rid of the refugees after you left leaning journalists said nothing could stop them. After he deports them all, he will win the next election again, no matter how much you dream of Costello taking over.

***

`Lionel Mudsticks’

I’m using a pseudonym for obvious reasons.

Like Phill Parsons in Momentum Against Terror Australis, I have experienced some strange email `interceptions’. Phill asks if he is being paranoid. I don’t think so, but from my experience many people will probably cast aspersions on his mental capacities just because he is open to the possibility that something weird is going on with our intelligence services.

Can any readers tell me what legal powers Australian intelligence agencies have to hack into emails? Under current law can they do this without a warrant? What redress does an Australian citizen have if they feel they are the subject of `unwarranted’ surveillance?

Quite frankly, I wouldn’t be surprised if ASIO hacks into journos’ emails. How do we know if ASIO is behaving appropriately, and not politically, in their choice of surveillance targets and methods of surveillance? How do we, average Australian citizens, know if the parliament is ensuring ASIO is fully accountable for its intelligence operations and activities? Where is the transparency in the accountability process?

Margo: Easing ASIO access to emails is part of the terror package. Labor amendments would require ASIO to jump the same bar to get an interception authority as it has to for telephone taps. The government wants the bar lower for emails.

***

Tim Dymond in Perth

If Webdiarians would care to turn to the Appendix of the latest essay collection from the right wing commentariat, `Blaming Ourselves: Sept 11 and the Agony of the Left’ they will see themselves featured prominently among the examples of Leftist victimizing of `the West’.

This collection purports to dissect the apparently widespread `Anti Americanism’ and raising of Bin Laden to hero status by Left media commentators and contributors since Sept 11. Here is a clear case, according to the publicity, of the Left `blaming the victim’ instead of the perpetrators by implying that the USA had it coming.

Naturally I looked to the Appendix expecting juicy and trenchant abuse of the USA and praise for the virtues of fundamentalist Islamic resistance to the Great Satan. Imagine my disappointment when I found scarcely any such sentiments. There was an incoherent letter to the editor that seemed to blame the WTC attacks on `economic rationalism’, an ill informed ramble by Bob Ellis, and Guy Rundle made a silly comparison between the effects of globalization and the death toll in Nazi and Communist Concentration Camps. But generally speaking there was very little in the Appendix with which I disagreed.

Which is rather confusing, because I actually support the War on Terrorism. I thought it was right that the US attacked Afghanistan, and I agreed with the US conservative editor William Kristol that the US was right to switch strategies away from a combination of bombing and searching for `moderate elements’ within the Taliban, to outright support of the Northern Alliance. I even agree that this was a justifiable case of American `unilateralism’ – the Administration was right not to waste time getting corrupt Arab autocracies on side and appeasing the Pakistani military’s strong links to the Taliban.

Pushing out the Taliban doesn’t by itself solve Afghanistan’s problems – at the moment it has arguably made them worse. But clearly nothing else could improve in Afghanistan unless the Taliban were overthrown.

Yet according to the editors of `Blaming Ourselves’ I’m still guilty of the thought crime of believing that an unacceptable amount of anti- Islamic sentiment has been whipped up in the West. I also believe you can’t separate the Sept 11 attacks from the long term effects of US foreign policy towards the Islamic world. Certainly the `Jihadi’ strand of Islam would still be hostile to the West even if the USA suddenly completely changed it’s policy and started doing all the things I think it should do to make the world a better place. Violent theocratic intolerance should always be resisted, but I don’t feel schizophrenic for holding that view and criticizing US policies at the same time.

Nevertheless, it seems that Sept 11 2001 has become another rhetorical club in the `culture wars’. Commentators of both the Right and the Left seem to have latched onto it as an excuse for pushing their own ideological barrows. I suspect, however, that in the future what `commentators’ thought of the WTC attacks will be least important part of the story.

***

THIRD WAY DEBATE

David Davis in New York

Tony Blair was recently subjected to an in-depth interview on the BBC’s Newsnight. Parts of it are quite interesting in the context of the the Third Way discussion. I quite liked this part:

Jeremy Paxman: Prime Minister, do you accept that many people think you have no core political beliefs?

Blair: I accept that people say that, yes, for a very obvious reason, which is that they can’t often handle the concept of new Labour as opposed to traditional Labour Party views, or old-style socialism.

The full interview can be found at http://news.bbc.co.uk/hi/english/audiovideo/programmes/newsnight/newsid-1985000/1985222.stm. It’s very interesting for those who like to see this old Third Way pro at work.

***

George Ooi in Melbourne

I agree with Tim Dunlop in his critique of Mark Latham and The Third Way. In Victoria there is a growing opposition to the `new’ ALP by traditional ALP members and supporters. My local Yarra City Council used to be completely dominated by ALP: now the Greens hold 4, independent 1 and ALP 4. In their futile attempt to woo the middle class from the Coalition with their `me too’ policies they have lost their neglected traditional supporters.

***

Michel Dignand in Wagga Wagga, NSW

Unlike most of your published Webdiarists on this subject, I only have a couple of hours each day to spare. Reading the arguments presented from both sides of this debate so far, I have to answer `bullshit’.

Concisely, here is the problem: Labor is the party of the Left. The Left means Socialist. Without pause to consider the intricacies of the matter, roughly fifty percent of our population want a party that leans more or less to the Left. Many Labor politicians, stupid, ignorant or just plain power-crazy, think they can move the Labor party to the Right.

Concisely, here is the answer: Those politicians who think the Third Way is a winner should be in the Liberal (hah!) Party. Or maybe the National Party.

The Labor party will happily find new socialist leaders, once freed of the scourge they’ve been lumbered with for so long.

***

Dr Aaron Oakley in Dalkeith, Western Australia

Responding to my comments in For those who give two hoots, Glenn Condell in Third Way revisited engages in argument through false analogy. He tries to argue that although brain surgeons would agree about technique, economists wouldn’t. Sure, a marxist economist would disagree with a free-market economist. But similarly, a new-age quack healer would disagree with a brain surgeon.

Clearly, Mr Condell and most other Webdiarists don’t like what they sneeringly refer to as `rational economics’. The funny thing is that most real economists don’t talk about `rational economics’ in the same way that most scientists don’t talk about voodoo. They tend to talk about Austrian Economics, Keynesian economics etc. An economically literate friend of mine said that people don’t like so-called rational economics because it tells them harsh truths that they don’t want to hear.

Mr Condell sets up a straw man by attacking me as an economist for commenting on economics. I am not, and I never claimed to be. Nor do I occupy a “mountaintop eyrie”, as Mr Condell sneeringly puts it. If he read my contribution properly, he would have seen that I deferred to a certain Mr Gerry Jackson, who knows a great deal more economics than most people, and provided links to his articles that debunked the nostrumsTim Dunlop preached. So why doesn’t Mr Condell address what Mr Jackson said? Is it too much work?

Mr Condell refers to books by Joseph Stiglitz as some sort of proof that Dunlop et al have a point. But how can he judge the economics of those books? Could he tell whether the arguments stood up to scrutiny? Wouldn’t it help to have some sort of economic training to do so? Could he read a detailed technical work on quantum physics and identify its errors as well? While Joseph Stiglitz may have something valuable to add to the debate, how can economic illiterates like Tim Dunlop, Glen Condell, and, indeed, myself Judge?

OK Mr Dunlop, Mr Condell and friends, tell us where Mr Jackson, who actually knows something about economics, is wrong on what he considers to be the interventionist failures of South East Asia. Once again, here are the relevant links: (http://www.newaus.com.au/econ39c.html) and (http://www.newaus.com.au/econ41a.html).

***

Tim Dunlop in Washington

This is my response to David Eastwood’s piece `Longing for the past’ in Third Way Revisited.

He writes: Tim Dunlop argues long, intricately and passionately against the Third Way from a traditional leftist position, but his case against the Third Way has to be judged `Not Proven’. It is argued politically, not objectively. It seeks to attack, and not offer alternatives.

I can never understand this sort of `criticism’. Of course I argue politically: on matters of social issues, how do you do anything else? I have an opinion; I make a case. My article is therefore political. Big deal. To quote that great journo Martha Gellhorn: “Write what you see. I never believed in this objectivity shit.” This is not to say (lest David jump at the bait) that there is no such thing as objectivity, only that the sorts of issues that the Third Way raises are inherently political. And no, I didn’t in the 13,000 word critique of the 3W offer an alternative to it, though one is implied. Again, so what? David should stick to criticising what I did write, not what I didn’t write.

Tim’s argument is internally incoherent. He presents a damning indictment of his Second Way (Economic Rationalism). He also (quite rightly) mentions that the Third Way seeks to humanise capitalism through an envelope of policy and regulation that constrains the free market. But he ignores this distinction in concluding that failings in naked, free-market economics systematically undermine the Third Way.

I don’t ignore it at all. I argue that a reliance on `free markets’ undermines the 3W’s humanising project. David’s point here completely sidesteps the issue. I’d further ask: Given the 3W wishes to `outsource’ most economic control from individual states to non-democratic quasi-private institutions like the World Bank, what institutional framework does the 3W offer to replace the institutions of the state that have been the only source of mitigation to the excesses of the market? Without such alternative institutions it is difficult to see how they are going to `humanise’ anything.

In describing the Third Way as a synthesis of two principles often considered contradictory, Tim relies on a traditional, bi-polar political spectrum. He discards the Third Way simply because it combines elements traditionally considered left and right. I’m reminded of a brilliant web diary piece from Christopher Selth last year ( Left, right … how politics will march forwards, 27/9/01, reproduced below). It demonstrates ably the possibility that the political spectrum can now be defined in more than one dimension. Many of our elites, often economically right and socially left would agree that the underlying philosophy politics is changing.

I understand perfectly that a new synthesis can arise from a reconsideration of former opposites. My point is that the third way doesn’t do this: I don’t miss the possibility, I argue they fail to deliver. Partly this is because what little of `the left’ is in the third way is purely rhetoric – it is not really leftist at all, and therefore David’s multi-dimensional synthesis is non-existent because the elements necessary for it to occur aren’t there in the first place. In short, David needs to show what is `left’ about the 3W, which might be difficult for him in the short-term as he also says `I’ll confess to being poorly read on the topic and only intuitively familiar with its principles’. `Intuitively familiar? How does this sit with your avowed need for objectivity?

Tim discounts the purported distinction between the Third Way and Economic Rationalism to zero, without presenting any evidence to support this. He presents no analysis of how effective Third Way principles might or might not be in mitigating the pain caused by free market economics.

The point is, they don’t offer any such principles, making it a bit hard for me to present them.

Tim’s piece presents and analyses examples poorly and (by admission) incompletely to support his position. For example, an attestation that dairy deregulation has failed is what I would term an IBA (Intellectually Blank Assertion) when presented without any evidence as to the impacts on all stakeholders. Has the price gone up? Dunno, haven’t seen the evidence. Have displaced dairy farmers been successfully re-integrated to society? Dunno, no evidence for or against presented in this piece.

Far from being an intellectually blank assertion, the evidence about the price of milk is overwhelming, not least by that old fashioned empirical method of going and buying some. Try and find anyone anymore who argues that the price of milk has gone down thanks to deregulation. (Even Paul Kelly and Imre Salsinszky have given up this line.)

In the deregulated market, Coles and Woolies put their milk business out to tender and half a billion dollars was wiped off the farmgate price of milk (see Mark Westfield’s article in The Australian business section, 13 Feb 2002). Some of this was passed onto consumers, most wasn’t: It went into Coles’ and Woolies’ bottom lines (registering Woolies CEO as a corporate genius and pumping Woolies share price and even their operating profitability).

However, by October 2001, even Woolies realised the trouble this was causing producers (farmers) and offered to renegotiate the contracts. CEO Roger Corbett said he hoped the processors would pass on part of the wholesale price increase to dairy farmers “in distress”. The price went up by 15cents a litre (having dropped by perhaps 10cents a litre immediately after dereg, according to the ACCC) and has since risen again.

As to whether those hundreds of farmers forced out have `reintegrated into society’, the answer is mixed. The ones who committed suicide haven’t (according to various farmers I’ve spoken to there are at least 5 cases). Some have found other work, I’m sure – perhaps Neil Baker, a former dairy farmer who has contributed to Webdiary in the past would be a better person to talk with.

Anyway, my basic point was that dairy deregulation was a farce no matter what your economic preferences are, and that it seriously called into question the almost religious faith 3Wers have in competition policy. Even Woolies CEO Roger Corbett agrees with me, a remarkable thing given that Woolies were undoubtedly the biggest beneficiary of deregulation. Speaking of the deregulation of the market he has said: “I think it’s quickly becoming a disgrace for Australia,” and that “My strong view is the time has come for Australia to produce a green paper that canvasses these major issues, followed by a government white paper… It’s my view that the debate should be bipartisan….My argument is that it’s a community-wide problem for all of us in Australia….I think the time has come in terms of a fair go that we as a country at least have a fair dinkum attempt at government level of having a strategy and a policy that everyone understands.”

The bottom line is that just because someone doesn’t include every bit of supporting evidence for every point they make, is not a reason to presume they don’t have the evidence, and it is therefore a bit risky to dismiss their comments as `intellectually blank assertions’.

Tim’s analysis of the Boston Bakery draws parallels between the former, artisan (my term) workforce and their output and the much smaller factory baker workforce, their technological solution and the impact on their lifestyles, while ignoring the impact of that change on the displaced bakers. If 20 factory workers replaced 80 artisans, what happened to the other 60? Unemployment in Boston (using this as a parallel for western economies as a whole) hasn’t exploded through economic development. While a handful is no doubt unemployed (around 6% on average here), how many displaced artisans joined or started boutique bakeries? How many bought Bakers Delight franchises? How many are now happily real estate agents, dog washers or the like?

David is again chastising me for what I haven’t written. I would counsel him, however, not to rely on unemployment statistics, when one hour worked in a week is considered to make you `employed’. With such rubbery figures, any interpretation is possible. As to how many people have ended up in other work, well about 27. I suggest also that he reads the book I took the example from: Richard Sennett’s The Corrosion of Character.

Tim’s economic analysis is coloured by his guilty until proven innocent view. His attestation that free trade policy had little to with the express economic development of nations like Singapore and Japan, Korea et al ignores the facts. Free trade policy in their customer jurisdictions made these countries success. By granting them access to large and hungry markets for their inexpensive and rapidly improving products the West helped them grow. Surely, this only strengthens arguments made by the proponents of globalisation that the best way to obliterate world poverty is through free trade. Tim’s revisionist analysis is incomplete.

Actually, it strengthens my argument – why do touts for economic rationalism always to fail to follow what is being said when people question their certainties? As Dr Aaron Oakley so ably pointed out on these pages, these countries are not examples of free trading miracle economies but of ones where strong central governments had serious control over resource allocation. It’s you, David, who have the facts wrong.

Tim’s analysis ignores the temporal dimension of economic change. If change and globalisation create short-term losers today, (and certainly they do) the theory says this is for the longer term good. More efficient distribution of economic resources will improve future welfare. Fewer unnecessary dairy farms means less pollution. Fewer dairy farmers means less subsidies in future. As I understand it, the Third Way seeks to lubricate this transition by creating substantive support mechanisms and change programs for people displaced by economic development as, ironically, was attempted in the case of dairy deregulation.

It’s becoming a cliche to quote Keynes on this, but it remains the best response. When chided by free marketeers that even if `free markets’ weren’t working now they would work `in the long run’, Keynes replied: “In the long run we are all dead.” As a side point, dairy deregulation has caused more pollution, not less – see Dr Jim Scott (University of new England) for the most thorough analysis.

Tim’s analysis seems predicated on a dated view of sovereignty. Today’s sovereign states are largely geopolitical constructs, as were their predecessors dating back to Stone Age times.

Largely? Try entirely. There are no naturally occurring states that I know of. What’s your point?

From the tribe, through the fiefdom, the city-state, the empire, the colony, the nation and the supranational federations now emerging, sovereignty has evolved. Globalisation is this process fuelled, as arguably it always has been, by improved information flows and technology.

And who fuels the information and technology? And to what end? Part of the point I was making is that the new technologies commodify information and therefore tend to lock it up rather than disperse it. If you disagree with that, it would at least make for a more interesting discussion if you wanted to argue the point.

If the Third Way tolerates a managed short term dislocation in a developed market (say, for example killing Australia’s uncompetitive textile industry) in return for creating many more jobs elsewhere (productivity is much lower in poor countries), and if in turn that sustains and delivers self-esteem to many more humans in less developed worlds, isn’t that a good thing? Does the fact that `they’ are not `we’ prevent us from acting in their interests?

Now who’s making assertions? Where your evidence for even half of this? The creation of jobs is one thing economic rationalism in Australia is particularly poor at, though advocates are more likely to blame `outdated’ employment laws etc. It’s worth reading John Quiggin and John Langmore on this topic or you could try the recent J. Borland, B. Gregory and P. Sheehan book Work Rich, Work Poor, Inequality and economic change in Australia (Centre for Strategic Economic Studies, Victoria University, 2001) which paints a less than rosy picture than you seem to be asserting here.

Viewed collectively, nations and their societies are at very different levels in Maslows hierarchy. Tim’s view of economics and communities is based squarely on a parochial frame of reference within a society seeking self-actualisation. What about those societies for whom the basic needs have not yet been met. Could we be morally obliged to further their fundamental needs over our luxuries? Our broadly Judaeo-Christian faiths speak of the common man, not of arbitrarily defined nationalities.

This is waffle. How do you get this out of my article? Again, pots and kettles should watch who they accuse of `assertion’. But to take up the point briefly, why does David think that some societies are without necessities while others bathe in luxury (and more insanely, why does he seem to imply that I approve of it?) You might want to look at your basics of market allocation (the worth of which, remember, I am sceptical of) and consider why we have millions affected by diseases like TB and AIDS while the market is busy withholding drugs from poor countries thusly affected, while at the same time allocating such marvels as Viagara and fat-burning pills in more affluent markets. In market terms this might be legitimate `allocation’, but if David doesn’t think it is, then he should be agreeing with my analysis, not arguing with it. Don’t ask me rhetorical question about morality – ask `free markets’.

Despite his avowed contempt of sentimentality for the past, the community dislocation Tim laments late in the piece suggests a profound longing for earlier times and telegraphs our natural fear of change. My interpretation of the Third Way recognises this and seeks to mitigate it. Tim seems to discount the value of this out of hand. Tim’s view seems to be more that change is inherently bad.

Is this what your arguments against me are reduced to – mind reading? I can disavow certain beliefs as carefully as I like, but on David’s reading, I’m actually hankering after `earlier times’. I am at one with PJ O’Rourke: “If you think that, in the past, there was some golden age of pleasure and plenty to which you would, if you were able, transport yourself, let me say one single word: “Dentistry”.

Tim Dunlop’s attack on Mark Latham’s political philosophy in The Third Way: Window dressing for capitulation (May 7) has produced some passionate, in depth debate. Today, pieces from David Eastwood, Brian Bahnisch and Glenn Condell.

The Herald’s online’s deputy night editor Kim Porteous has kindly put up Max Moore-Wilton’s report on alleged witness tampering by one of his senior officers, Dr Brendon Hammer, in connection with the children overboard inquiry. You’ll find it in Webdiary at the top of the inquiry archive in the right hand column. The history of the mess is in Edging towards the desk where the buck stops (May 3) and PM’s man out on a shaky limb (May 7). The Moore-Wilton report came down last Monday, the day before the budget, but I haven’t had time to write an analysis of it yet. I’m going the Canberra to report on the inquiry hearings on Wednesday and Thursday, and hope to have an analysis up by the end of the week.

The report and its attachments are a great read (please forgive my scribblings). The documents are:

1. Howard’s press release, May 13

2. Moore-Wilton’s report, May 10, pages 2 to 6

3. Defence department minute to Robert Hill, April 29

4. Letter from the PM’s office to the Department of Prime Minister and Cabinet (PMC), April 30

5. Report from PMC to Howard, May 1

6. Letter from Dr Hammer to Commander Stefan King, April 30

7. Letter from Moore-Wilton to Dr Hammer, May 1

8. Letter from Moore-Wilton to Harinder Sidhu, May 1

9. Letter from Dr Hammer to Moore-Wilton, May 6, pages 16 to 20

10. Letter from Harinder Sidhu to Moore-Wilton, May 6

11. Letter from Moore-Wilton to Michael Potts, May 7

12. Letter from Potts to Moore-Wilton, May 8, pages 26 to 27 (The last bit of page 27 has been cut off in error. It contains nothing of significance)

***

One liners

Cathy Bannister: Loved the Tim Dunlop piece on Mark Latham. That analysis was spot on and timely. Anyone who can use such high falutin’ principles to come up with such populist rot as a reintroduction of corporal punishment in schools deserves a caning.

Phil Drayson in Perth: Politics confuses me – the left is in disarray! Bob Dylan said:

“Is the scenery changing,

Am I getting it wrong,

Is the whole thing going backwards,

Are they playing our song?

Where were you when it started

Do you want it for free

What was it you wanted

Are you talking to me?”

What was it you wanted

Oh Mercy

***

Longing for the past

By David Eastwood

Sydney

I’m no devotee of the Third Way. I’ll confess to being poorly read on the topic and only intuitively familiar with its principles. I’m also deeply sceptical of Latham’s political agenda and the possibility, or worth, of swinging the Labour battleship in this direction. Labor’s traditional constituencies have already signalled that they won’t take this lying down.

What I do believe is that the arguments for the existence of a Third Way are compelling at face value. They deserve deep analysis and consideration in an objective fashion. The world has changed more than a little this past century. It’s intuitive that our political philosophies must evolve too.

Tim Dunlop argues long, intricately and passionately against the Third Way from a traditional leftist position, but his case against the Third Way has to be judged `Not Proven’. It is argued politically, not objectively. It seeks to attack, and not offer alternatives.

One of its key arguments is internally incoherent. It is based on a traditional, bi-polar political spectrum. It selectively and incompletely analyses supporting examples. It ignores the temporal dimension of economic theory. It argues the case from a definition of sovereignty becoming inevitably dated. It contains strong elements of sentimentality and a longing for the past.

1. Tim’s guilty-until-proven-innocent frame of reference is an inherently political stance. This can’t be a good way to assess or illuminate an issue being presented politically. It will typically ignore relevant facts in presenting its arguments (Tim does this in this piece) and will tend to draw conclusions not supported by the evidence presented. A broader paradigm taints analysis (Tim does this too).

2. Tim’s argument is internally incoherent. He presents a damning indictment of his Second Way (Economic Rationalism). He also (quite rightly) mentions that the Third Way seeks to humanise capitalism through an envelope of policy and regulation that constrains the free market. But he ignores this distinction in concluding that failings in naked, free-market economics systematically undermine the Third Way.

3. In describing the Third Way as a synthesis of two principles often considered contradictory, Tim relies on a traditional, bi-polar political spectrum. He discards the Third Way simply because it combines elements traditionally considered left and right. I’m reminded of a brilliant web diary piece from Christopher Selth last year (Left, right … how politics will march forwards, 27/9/01, reproduced below). It demonstrates ably the possibility that the political spectrum can now be defined in more than one dimension. Many of our elites, often economically right and socially left would agree that the underlying philosophy politics is changing.

4. Tim discounts the purported distinction between the Third Way and Economic Rationalism to zero, without presenting any evidence to support this. He presents no analysis of how effective Third Way principles might or might not be in mitigating the pain caused by free market economics.

5. Tim’s piece presents and analyses examples poorly and (by admission) incompletely to support its position. For example, an attestation that dairy deregulation has failed is what I would term an IBA (Intellectually Blank Assertion) when presented without any evidence as to the impacts on all stakeholders. Has the price gone up? Dunno, haven’t seen the evidence. Have displaced dairy farmers been successfully re-integrated to society? Dunno, no evidence for or against presented in this piece.

Tim’s analysis of the Boston Bakery draws parallels between the former, artisan (my term) workforce and their output and the much smaller factory baker workforce, their technological solution and the impact on their lifestyles, while ignoring the impact of that change on the displaced bakers.

If 20 factory workers replaced 80 artisans, what happened to the other 60? Unemployment in Boston (using this as a parallel for western economies as a whole) hasn’t exploded through economic development. While a handful is no doubt unemployed (around 6% on average here), how many displaced artisans joined or started boutique bakeries? How many bought Bakers Delight franchises? How many are now happily real estate agents, dog washers or the like? These are Latham’s new constituency, core to his arguments, but Tim’s analysis ignores them. Its a philosophy for winners, not workers. AJP Taylor, come on down.

Tim’s economic analysis is coloured by his guilty until proven innocent view. His attestation that free trade policy had little to with the express economic development of nations like Singapore and Japan, Korea et al ignores the facts. Free trade policy in their customer jurisdictions made these countries success. By granting them access to large and hungry markets for their inexpensive and rapidly improving products the West helped them grow. Surely, this only strengthens arguments made by the proponents of globalisation that the best way to obliterate world poverty is through free trade. Tim’s revisionist analysis is incomplete.

6. Tim’s analysis ignores the temporal dimension of economic change. If change and globalisation create short-term losers today, (and certainly they do) the theory says this is for the longer term good. More efficient distribution of economic resources will improve future welfare. Fewer unnecessary dairy farms means less pollution. Fewer dairy farmers means less subsidies in future. As I understand it, the Third Way seeks to lubricate this transition by creating substantive support mechanisms and change programs for people displaced by economic development as, ironically, was attempted in the case of dairy deregulation.

7. Tim’s analysis seems predicated on a dated view of sovereignty. Today’s sovereign states are largely geopolitical constructs, as were their predecessors dating back to Stone Age times. From the tribe, through the fiefdom, the city-state, the empire, the colony, the nation and the supranational federations now emerging, sovereignty has evolved. Globalisation is this process fuelled, as arguably it always has been, by improved information flows and technology.

If the Third Way tolerates a managed short term dislocation in a developed market (say, for example killing Australia’s uncompetitive textile industry) in return for creating many more jobs elsewhere (productivity is much lower in poor countries), and if in turn that sustains and delivers self-esteem to many more humans in less developed worlds, isn’t that a good thing? Does the fact that `they’ are not `we’ prevent us from acting in their interests?

Viewed collectively, nations and their societies are at very different levels in Maslows hierarchy (see chiron). Tim’s view of economics and communities is based squarely on a parochial frame of reference within a society seeking self-actualisation. What about those societies for whom the basic needs have not yet been met. Could we be morally obliged to further their fundamental needs over our luxuries? Our broadly Judaeo-Christian faiths speak of the common man, not of arbitrarily defined nationalities.

8. Despite his avowed contempt of sentimentality for the past, the community dislocation Tim laments late in the piece suggests a profound longing for earlier times and telegraphs our natural fear of change. My interpretation of the Third Way recognises this and seeks to mitigate it. Tim seems to discount the value of this out of hand. Tim’s view seems to be more that change is inherently bad.

***

Christopher Selth (Webdiary, September 27, 2001)

Disclosure: Christopher is the former head of international equities at Bankers Trust (BT)

In response to Greg Weilo’s view of left and right, I am not sure whether or not Greg is confused about the appropriate labels to apply to his position. He is either naive or disingenuous with respect to the label appropriate to his positioning on the political spectrum. More significantly, the underlying politics of his position reflects the deep fissures in our society that the tragedy in New York is opening up.

I would like to respond to the underlying philosophical points Greg raises before coming back to labels. The two issues are, however, very linked.

Firstly, one must distinguish between underlying belief systems, and the strategies adopted by political parties. This distinction can be seen either as reflecting the notorious disconnect between politicians and voters, due to the cynical pursuit of power, or alternatively as the disconnect between high principle, or abstract theory, and its application to the practicalities of government.

A further problem appears from the difficulties, if not bankruptcy, of left and right wing economic theories in generating convincing practical outcomes. Marxism and Socialism, and Economic Rationalism no longer offer the political machines of left and right easily saleable policy stances. Note, so-called Economic Rationalism is in f act the pure application of a brand of capitalist, neo-classical economic theory. It has become clouded with the realiti es of practical, rational, economic policy.

Political parties need to be understood in terms of the electoral base to which they appeal, and the strategies they need to adopt in order to get over the line, to win elections. So-called left wing parties have two traditional constituencies; the working class, which tends to be economically left wing, but culturally conservative; and the liberal humanist intelligentsia, which is more economically rational in orientation, but culturally very liberal.

The right wing parties have a parallel fault line. One constituency is old money and small business. There are a number of sub groups here, including owners of businesses that are often local monopolists, but tend to be averse or incapable of taking on global challenges, farmers, and small businesses. These groups tend to favour state intervention to protect their positions from globalisation and the stresses of change. Their politics can ironically parallel the socialism of the working class, but for powerfully different reasons. Their cultural politics tend to conservatism.

The other group comprises global capitalists and technocrats. This group is not defending its position, it is seeking to expand its wealth. It is confident and pro-globalisation and economic rationalism. It is culturally liberal humanist.

You can see in this matrix the divides that have been evident within the Australian political landscape for some time. It is why the Labor Party has resisted homosexual law reform, and why the Coalition has locked in the positions of Kerry Packer, Qantas, and parts of the agricultural lobby, rather than promoting free trade. Left and right wing parties pursue policies in stark divergence from some simplistic understanding of their supposed underlying support base.

This is why right wing parties tend to push socially conservative and populist policies that appeal to the working classes. It will transfer votes from the traditional left to the populist right. It is key to winning a parliamentary majority. In America these were the so called Reagan democrats.

Pauline Hanson undermined the Australian right wing’s ability to claim this ground. That’s why she was so dangerous. This was why the Tampa was such a crucial turning point for John Howard. Behind this rhetoric, however, the right has little interest in the broad agenda of the working class, other than protecting jobs when it simultaneously protects the economic interests of its support base.

The globalist faction in the right, witness Peter Costello, is invariably outraged by this positioning.

The old left was interested in pushing its liberal humanist agenda to win middle class champagne socialist support, whilst being careful of not alienating its working class base. This was the Gough Whitlam strategy. You can see how long Labour stayed out of power in Australia and the UK as a result.

The new left added to its arsenal by embracing elements of economic rationalism. This was particularly the case as Marxism and Socialism were seen as failing to deliver under the pressure of global capital and change. It owed few favours to old money. The more sophisticated members of the new left, such as Paul Keating, saw that the only way to improve job prospects in the nation longer term was by making the economy more efficient. This would also win middle class votes.

The problem was that the short term pain would always leave it at risk with its traditional voting base. That is what ultimately brought Labor down. It is why Kim Beazley is so scared of declaring his hand. He is castrated by these internal tensions.

Both sides are constantly doing deals that alienate part of their traditional support base. This is reality. It is a clear outcome of the structure of our electoral process and parliamentary system.

An interesting insight on these issues can be found in the work of the now dead US sociologist, Christopher Lasch. His last book before he died, The Revolt of the Elites: And the Betrayal of Democracy is particularly thought provoking. The core thesis in this book is that the global technocracy, visible in all our major cities, working for globally focused organisations, have more in common with each other than the culture of their particular national hinterland.

I think there is a great deal of truth in this proposition. People like me, educated affluent technocratic elitist bastards, have more in common with our class compatriots in London, Paris or New York, than we do with the average man of our particular economic hinterland. In Sydney this can be metaphorically conceptualised as the difference of culture and beliefs between inner city and coastal dwellers, and the suburbs.

Lasch comments that this global class tends to be socially liberal humanist. He notes the irony that the elite might support gay rights, but at the same time feel it is for the best that inefficient industries be shut down, even at the expense of jobs and communities This is what Greg would refer to as left wing, social ideology. At the same time it is economically rationalist, which Greg identifies as right wing economic philosophy.

The important question that arises is what is the motivation behind the elite’s espousal of these values? Is it legitimate compassion, or a self-serving identification with the fashionable causes of the day, a champagne socialism that can go hand in hand with the process of personal enrichment?

It is the new religion of the upper class, which John Howard often, to his chagrin, runs up against. The have nots of our society often feel these values are hypocritical. Despite all of this, many of these values are of great merit. The irony is that it is this great Western tradition that George W. Bush keeps saying we are fighting for.

Lasch’s work is filled with dark irony. It transcends the distinction of left and right. It hits the fault line on which Greg sits. Whilst Lasch unquestionably has captured a key thread, he does not reach any conclusions. It is a provocative piece.

The attack on liberal humanism, and economic rationalism and globalisation, reflect a common factor, fear of change, fear of the unknown. Human history has seen at these moments objective analysis give way to extremism and hysteria. Legitimate criticisms from both sides are lost. We are at risk of being swept away by this tide. Extremist politics are on the rise.

The question confronting us is: Can we integrate liberal humanism with a new paradigm in economic management? Economic policy needs to balance the dynamic drive of capitalism, with appropriate measures to reduce the shock waves and to humanise the process. Regrettably most such strategies in recent times have been hijacked by traditional interest groups: old money, old unions, and old farmers. The power of governments to act in the face of global forces is itself suspect.

A new economic philosophy and social philosophy is required. We must move forward, not backward. The conservative chest beating post the World Trade Center attack risks the worst outcome.

Greg’s thinly veiled piece emphasises this point. It is not hard to decipher. Greg groups all elements of the community that are not part of his pure national core as dangerous; homosexuals [of which I am proudly one!!!], feminists, pro-abortion groups, multi-cultu ralists. On this front he calls himself a Nationalist. On the economic front, he calls himself a Socialist. A national socialist?

Is it by accident that Greg says that left wing extremists have been running things for the last 50 years, ie the post war period? Fifty years ago there was another National Socialist who was arguing the same thing. His name was Adolf Hitler.

I am afraid that the fight is just beginning against this conservative backlash. I agree with Margo that a new opposition movement is needed. It needs to do more than just say bigotry is wrong. It must address the philosophical and political roots of this problem. It must be a broad movement. It must be self critical to avoid the accusation of elitism. This must be more than just the liberal humanist intelligentsia saying how awful everyone else is.

***

A Kind of Madness

By Brian Bahnisch

Brisbane

I thought Tim Dunlop did pretty well in his demolition of The Third Way. For me it was another reason not to read the principal tomes of the Third Way literature.

The first reason came in 1998 soon after the publication of Mark Latham’s Civilising Global Capitalism. My son Mark Bahnisch, who lectures in sociology at the Queensland University of Technology, wrote a review of Latham’s book in Overland no. 152. It was a negative review, concluding that “the reconstruction of the social democratic project in Australia is a task still awaiting a beginning”.

Soon thereafter, at my son’s strong suggestion, I read two stunning books, Zygmunt Bauman’s Work, Consumerism and the New Poor and Richard Sennett’s The Corrosion of Character. Since then I have been reading a fair bit about globalisation, trade, liberalism, neoliberalism, postmodernism and related matters. Along the way I have read about the third way, read many of Latham’s newspaper columns and heard lots about it on the ABC, so I claim my knowledge of the Third Way as adequate working knowledge for my present purpose.

In late 1999 Dr Mary Walsh and Mark Bahnisch wrote a review article entitled “The Third Way”: Intellectuals and the Future of Social Democratic Politics (See Journal of Sociology, March 2000) covering the works of “a sociologist, two `intellectual’ politicians and a `talking head'”, that is Anthony Giddens’ book The Third Way, Lindsay Tanner’s Open Australia, Latham’s book, plus one other book that need not concern us here. This article is a densely argued piece with few concessions to the lay reader. However what I learned includes the following:

1. The third way discourse is firmly located within the single pole of a putatively bipolar world, that pole being free market capitalism.

2. The third way discourse is going nowhere. For example it has “no effective politics that would shift or even effect the imbalance of power between an individualised society and the collective action of elite or capital groups”. Giddens accepts, in fact, that “liberal democracy is the teleological end of history” and that there is no alternative to capitalism.

3. Whereas the third wayists are concerned about the decline of trust and the atomisation of society, their solution seems to be for a weakened and untrusted state to call into being dense webs of community communication, cooperation and trust.

4. There is little if anything new in their proposals except calling into being some new and mysterious `radical centre’.

Last year my son advised me that I should get hold of a speech Mark Latham gave in July 2000 at a Globalisation Seminar hosted by the North Queensland Branch of the Australian Institute of International Affairs at the James Cook University, Cairns Campus. You can find it at www.thirdway-aust.com.

He started by saying that globalisation was a hot-button issue. The only thing that people agreed about was a definition of globalisation. He then gave some of the characteristics of globalisation, some of which I found quite contestable.

He said that the changes brought by globalisation had “produced new political tensions and controversies” (agreed). But then he took a step that in one fell swoop set the ground of the argument and made it’s outcome pretty much inevitable. He said:

“The debate has split into two camps: the pessimists and the optimists; those who fear the future in a globalised world and those who welcome it. Through the eyes of the pessimists and the optimists it is possible to gain a snapshot of the globalisation dilemma.”

But hang on Mark, I thought. I’m not wholly pessimistic or optimistic about these things. I’m a realist for God’s sake! What you are going to do is polarise the debate, declare yourself an optimist and make the pessimists look like dills. You, on the other hand, will look like a visionary.

And that is what he did.

He made eight statements of contrast between pessimists and optimists, declared himself an optimist, then gave each of the statements a heading (Free Trade, Skilled Labour, Economic Decentralisation etc). Under each heading he expounded his views. It was a performance of considerable virtuosity, with references to Adam Smith, Marx, Thatcher, John Ralston Saul, Keynesian pump priming, Francis Fukuyama and many more including something he calls “the Rose Porteous principle”. Along the way he took a swipe among others at Pauline Hanson (of course) and Queensland academic Mark Bahnisch (clearly a dill).

He began his conclusion with an approving reference to Thomas Friedman’s “golden straitjacket of globalisation” (TINA – There Is No Alternative!). What followed was a rising crescendo in which he saw glorious opportunities for the future, the future in particular of left-of-centre politics. It was quite impressive, really. He paid tribute to the vision of former Labor leaders such as Curtin, Chifley and Whitlam (more recent leaders were strangely missing).

Along the way Latham states that “(globalisation) offers a golden opportunity for creative policy making and the revival of social democracy. In particular, I am attracted to the politics of the Third Way, with its agenda for economic stakeholding, mutual responsibility, social entrepreneurs and learning beyond the classroom.” Thus he locates his thinking within a broader stream.

Two weeks ago I received an email from my son with a short review article for The Journal of Australian Political Economy on the Peter Botsman/Mark Latham compilation The Enabling State. My Mark finds that ‘The Third Way’ “becomes a wonderfully versatile (because empty) political signifier” which is used to make assertions, to negate or dismiss ideas not in favour rather than to engage with them. Apparently the `Hegelian Dialectic’ is also pressed into service, which in this context actually exposes “a series of gross and unsupported generalisations and simplifications which mask the surrender to transhistorical forces of globalisation – read neoliberal markets”. That should earn him another swipe or two!

The real trick with the Third Way, it seems, is that you can put into it any content you like. But you can also use the authority and power of the brand to deal with contrary views without the inconvenience of supplying supporting argument. Meanwhile, the neoliberal project is at the very least left intact or even supported.

Back to the Cairns speech, in which there is some interesting stuff in the Cairns speech along with some errors and distortions. My interest is not in engaging with the particularities but in looking at how Latham structures his argument. He takes issues that are multi-faceted and polarises them into black and white alternatives.

For example, you have to be entirely in favour of free trade. The given alternative for a country is complete protectionism and an attempt at total self-sufficiency. In fact he sets up a series of false binaries. Here again I am indebted to my son, who has done a lot of work on the tendency in Western thought to binary forms. Such forms lead to distortions, exclusions, elisions and the establishment of hegemonies. (Descartes’ “I think, therefore I am”, for example, solidified an unnecessary and undesirable cleavage between mind and body, between mental and physical activity, with the former valued over the latter.)

We need to ask who Latham’s pessimists and optimists are. The optimist is easy. It’s him. The pessimist is more difficult to identify. It not only includes all those protesters around the world who have turned up at meetings of the perceived power brokers of capitalism, protesters who are in fact impossibly diverse in their positions and purposes.

It also includes all of us who struggle with these issues in a spirit of enquiry. We may have areas of clarity that hold for a time but vary in the light of new evidence. It includes those who want fair trade rather than free trade, and many more who have positive suggestions for solving the problems of an unjust world. No trouble to Mark Latham, however. It has all been sorted and is perfectly clear. The “pessimist” is in fact a construct of “non-him”. Optimists are those who agree with Mark Latham. Pessimists are everyone else.

This is not the work of an intellectual politician. It is the work of an ideologue, some-one who has found the truth, fixed it in a collection of ideas and viewpoints, and then proceeds to bring the rest of the world to his view.

It is the fixing and the persuading that is the problem with ideologues. The fixed standpoint ossifies while the world moves on. Means not normally acceptable (such as muscling up to that other bunch of ideologues, adopting their methods) become OK because the stakes are high and the ends are good.

I see reality in terms of constant change. Everything around us changes, but most of all we change. We fix things in memory, otherwise we could not operate. But those memories are not fixed. They change as we call upon them in new situations for new purposes. Knowing is not so much a matter of finding the truth for all time, but rather a temporary fix on something that is fluid but decidable (another thank you here to my son). Such deciding is done in particular circumstances, by particular and changing person(s) for particular purposes. Knowing is best seen as a conative act, a part of human striving.

Once you have decided the decidable, you have to ask whether what you have is firmly based enough to be used as working knowledge for the purpose you have in mind. The problem with the Third Way is that it is used to support significant “truth” claims when in itself it means nothing much at all.

For the political ideologue, knowing is a done deal and reality has to change to conform. The reality that is targeted here (because we are dealing with ideas) lies inside the heads of others. So what was Latham’s purpose in Cairns? The prime purpose was not, I think, to transmit information. He piled in too much for that. Information as he employed it had two functions. Firstly it built up the authority of the presenter. Secondly it distracted from what the presenter was doing, namely positioning all those who disagree with him, his “other” in a neat little place where he could blow them away.

But there is another subtext or “hidden curriculum” as we used to say in schooling. I suspect that it is main game, whether or not Latham so intended.

Let me put it this way. The audience leaving the speech, unless they were exceptionally well informed in the area, would have retained only a few snippets of information. In the main they would have gone away thinking, Gee, that Latham fellow is impressive. He knows a lot and has thought a lot about it. He’s really got it sorted and knows where he’s going. Remember that in political ideology the ideologue’s bottom line is power. What he needs is your vote. Best you just vote and leave the thinking to him.

Well sorry, mate, it just does not stand up and I cannot bring myself to wish you well with it.

Mark Latham often has interesting things to say, but they need to be considered in their own right, not with the extra gloss of being part of a new approach to political economy. There is no philosophy underpinning the Third Way. It means nothing substantive; it is an empty signifier. But when it is called into service in the political arena to demolish the ideas of others it no longer functions as a pointless piece of rhetorical fluff, as in academia, it becomes demagoguery.

Mercifully the Third Way may already be receding into history with a residual life for a time in the colonies. In my son’s most recent review he tells us that the Guardian on 22 March this year reported that Tony Blair had replaced the “philosophy” of the “Third Way” with a new “project” of the “Third Phase” (ugh!) in a speech at Tony Giddens’ stomping ground, the London School of Economics.

Mark Latham may produce good ideas from time to time but the problem is that you can’t argue with him. Bob McMullan and Kim Beazley found his education proposals unpalatable in 1999 and dispatched them into the waste paper bin. Simon Crean looks as though he may learn the hard way.

I am inclined to think Latham will never be leader. He is almost certain to self-destruct at some stage, given his inflexibility and aggression. If he does become leader, there will be no shortage of ideas. Whether these ideas will filter up from the masses and the ministry is another matter.

Now I must tell you about the reference that got me reading the Cairns speech in the first place. It went thus:

“The most absurd claim of the anti-globalists concerns the deskilling of labour. A Queensland academic Mark Bahnisch, for instance, has linked “the deskilling of work with the growth of personal service labour”. Obviously his parents and grandparents never had to work in a production-line manufacturing plant.”

My reaction? Not even a cheap shot, just – well, weird! Also unnecessary and irrelevant. As for his substantive comment, he goes on to say that tourism and leisure services such as those in Cairns provide a “more comfortable and interesting work environment” than the “degrading tedium and discomfort of production-line work.

Well, yes maybe, but this illustrates the nub of the problem. Latham and, apparently, the third wayists generally, simply fail to understand that the whole character of the work environment has changed in late capitalism.

Sennett and others have written eloquently about the uncertainties and discontinuities of the modern work place. Their conclusion is that it is increasingly difficult to construct a career, or even an abiding identity of substance. Indeed, the pressures and threat to the individual from the new capitalism are such that it is difficult to construct a satisfying life-narrative.

Latham fails to understand that this applies to all kinds of jobs, even to his heroes, the entrepreneurial self-employed and consultants, the highly skilled workers, who, he claims, have turned Marx’s theory of the surplus value of labour on it’s head. (I think not). Thus he ends up supporting a capitalism that actually threatens the individual in very substantial ways while seeming to provide a smorgasbord of personal freedom and choice.

Psychiatry, I understand, includes these days something called “schema therapy’. The basis of this therapy is that patterns of coping behaviour (schema) learned in one setting are then misapplied in changed circumstances. This gives rise to social and mental dysfunctions and depression. The Third Way may have been useful to launch the Blairite project in Britain. Perhaps its use-by date has now passed. Certainly the political ideologue who has fixed the truth and continues to promulgate it irrespective of changed circumstances risks a kind of madness.

***

Ego exercise

By Glenn Condell

I was irritated by Dr Aaron Oakley’s response to Tim Dunlop in For those who give two hoots (May 10). My reply addresses his points one by one.

Oakley: Why is it that people with little understanding of economics like Tim Dunlop feel free to give economic advice? Perhaps he should also be telling brain surgeons how to do their jobs.

Well brain surgeons get things right most of the time, don’t they? Do we need to recite the economics `hall of shame’ chapter and verse? Brain surgeons generally agree about the aims and methodology of their profession – there is `best practice’. Six economists in a room could well have six different opinions on an issue and they could all be wrong. It is about as exact a science as palmistry and unlike brain surgery, is inherently political. I wonder if Mr (oops, sorry, Dr) Oakley ever avers on opera or sport or German history. If so, how dare he without a gown and a scroll of paper asserting his right to do so?

In any case, Mr Dunlop isn’t so much `giving advice’ from the sort of mountaintop eyrie Dr Oakley obviously inhabits; he’s expressing his anger and disillusionment and groping for answers to crucial questions about global problems. Answers that economists like Mr Oakley have long been unable to provide. Perhaps they’re not politically interested, perhaps they lack the wit and compassion to tackle them. Perhaps they’re just not good enough, despite all the letters after their names.

One intelligent but unqualified man makes an attempt to impose some sense on an amorphous and complex issue and gets predictably slapped-down by another man; qualified but contemptuous of the other’s effort. One is making a contribution; the other is exercising his ego. One mind is open, the other closed.

Oakley: He asserts that “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”. This myth was debunked by my editor, Gerry Jackson , some time ago… Perhaps Mr Dunlop could tell us where Mr Jackson has erred. I won’t be holding my breath. My experience is that the Tim Dunlops of our world fall silent when challenged by the genuinely economic literate.

So there, Tim. Don’t bother next time. Silence from the start is apparently the form. Only the Genuinely Economically Literate of this world may speak to issues that affect us all.

Not being an economist, I tend to read around an issue and form a view (as it seems to me Mr Dunlop does). Recently on my travels I read a review by Joseph Stiglitz. His bio runs like this: Recipient of the 2001 Nobel Prize in Economics, Professor of Economics and Finance at Columbia. Author of Globalization and Its Discontents, to be published in June. Former chief economist and senior vice-president of the World Bank and chairman of the Council of Economic Advisers. Qualified enough? He recently reviewed a book by a certain George Soros who also knows a thing or two about economics (see nybooks).

Both of these men support the thrust of Mr Dunlop’s argument and note the stability that government controls have brought to Malaysia, for example . Perhaps Dr Oakley would care to take issue with them, providing they’re qualified enough. But you don’t need to be Stiglitz to understand that global financial architecture is cynically skewed against developing countries; everyone except neo-liberal economists appears able to see this clearly. Even John Anderson lost his nut at the US last week for flippantly ignoring the very strictures it insists on for poorer nations…again. Dr Oakley may have missed Mr Dunlop’s inverted commas around `free trade’ – it’s risk-free for IMF protected US investors and subsidy protected industries, but costly indeed for the citizens in developing countries.

Oakley: Clearly, Dunlop has simply chosen economic thought that reinforces his prejudices, and cobbled it all together in his long-winded article.

As Stiglitz demonstrates, there is significant `economic thought’ to support Mr Dunlop’s views. Just as there is to contest them. Mr Dunlop chose one school, Dr Oakley another. Pot, kettle?

We’re not talking about some abstract calculus known only to initiates – Mr Dunlop was addressing political issues, not purely economic ones. If you were to exclude people from discussing subjects in which economics played a part no one would ever be able to talk about anything. You’ve obviously got your laurels, Dr Oakley – stop resting on them. If Mr Dunlop is wrong in the details of his critique – spell it out, don’t just redirect him to someone even more qualified than you. I’m sure Mr Dunlop,and many other diarists, would relish the chance to respond.