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Proposed Australian Antiterror Laws Condemned

Rich Bowden, Worldpress.org contributing editor, Sydney, Australia, November 1, 2005

Prime Minister John Howard of Australia (left) and Dr. Ameer Ali, President of the Australian Federation of Islamic Councils

Prime Minister John Howard of Australia (left) and Dr. Ameer Ali, President of the Australian Federation of Islamic Councils, announce the outcome of an antiterrorism summit in August following the July London bombing. (Photo: Torsten Blackwood / AFP-Getty Images)

The conservative Howard government’s plan to rush through federal parliament draconian antiterror legislation has hit a snag as state and territory leaders, whose prior assent is required by the Constitution, have requested further time to consider the bill. The laws have drawn criticism from ex-prime ministers, civil libertarians and eminent legal officials alike who describe the proposals as flawed, ill conceived and possibly unconstitutional.

The passage of the legislation through the federal parliament, though previously agreed to in principle by the Labor Party’s state and territory leaders, has now become problematic as criticism has widened of the legislation’s controversial detention provisions, lack of proper judicial oversight and the lack of time allowed by the federal government for community and parliamentary review of the bill.

In one of the most contentious reviews of Australia’s security laws since World War II, the Howard government proposes introducing laws which will include extending police powers to allow detention of terrorist suspects without charge for a period of up to 14 days, allow provision for possibly unlimited home detention for suspects without trial, with no recourse for appeal and no right to advise their family of their whereabouts. Suspects held under the controversial control orders may be forced to wear identification bracelets and refused access to lawyers.

Sedition laws will also be strengthened meaning that vocal support of overseas insurgencies such as those in Iraq may be considered a crime punishable by up to seven years imprisonment and the government is proposing to extend police “shoot to kill” provisions similar to those used in the United Kingdom. Following the July train bombings. U.K. police demonstrated the fallibility of such laws when they mistakenly gunned down innocent Brazilian immigrant Jean Charles Menezes believing him to be a terrorist planning another attack.

Human Rights and Equal Opportunity Commission (H.R.E.O.C.) President John van Doussa has likened the new laws to those enacted in a police state.

“The defining characteristic of a police state is that the police exercise power on behalf of the executive, and the conduct of the police cannot be effectively challenged through the justice system,” he said in a Canberra forum organized by H.R.E.O.C.

“Regrettably, that is exactly what the laws which are currently under debate will achieve.”

Of major concern to the legal profession is the apparent blurring of the constitutional separation of powers between the judiciary and the executive, as judges will be required to provide authority for control orders on behalf of the state based solely on advice received from the police.

“The problem here may be that by giving special powers to judges, you’re breaching that separation and calling their independence into question,” said constitutional law expert Prof. George Williams on the ABC’s Lateline program.

“It may well be that public confidence in their functions could be lessened. This is an area that the High Court has looked at extensively over the last decade. It really is a murky area of constitutional law, but it is an area that, if you don’t get it right, it could be struck down by the High Court.”

However, federal Attorney-General Philip Ruddock has denied that any constitutional problems exist.

“These matters have been tested before in relation to powers of warrants for a range of security-related purposes. The system that is used for questioning warrants involves a judicial officer in considering a request approved by me, asked for by A.S.I.O. [Australian Security Intelligence Organization], before a warrant is issued. Now that is a matter that we were advised was constitutional when we implemented it,” said Ruddock to the ABC.

Speaking to the ABC’s Lateline, former commonwealth solicitor-general Gavin Griffiths Q.C. has advised the Government against rushing the laws through parliament saying, “You expose yourself to the risk that in a year, two years, a majority of the High Court might hold it unconstitutional and then the law is invalid.”

Media outlets have also expressed concern that the new legislation will target reporters. Under the proposed laws, a journalist can be imprisoned for up to five years should they report on the detention of a suspect or up to seven years if they publish or broadcast seditious comments against Australian people or Australian troops fighting overseas. Under current laws, it must be proven that there existed “intent” to cause violence. This clause though has been removed from the proposed legislation.

“We’ve got very real and significant concerns about this legislation,” said Mark Polden, lawyer for the Sydney Morning Herald. “We are consulting with others in the industry and the federal government is aware of our concerns.”

Leading Herald journalist and author David Marr was also vehement in his criticism.

“The proposed laws are horrific for journalists. Firstly, there’s a completely secret new regime of putting people in preventive detention. That’s entirely secret. If we report it, if we report that people have gone into preventive detention, we’re going to go individually to jail for five to seven years,” said Marr.

“Even if we report what happened to people in detention, we go to jail. So if people are roughed up in detention, if they’re treated improperly in detention, and God knows there is a lot … of experience of that in this country with immigration detention, but if we report it for preventive detention, we go to jail.”

Former Liberal prime minister Malcolm Fraser (1975-83) — a former parliamentary colleague of current Prime Minister John Howard — has described the proposed laws as “seriously flawed” and “a grave threat to our freedom.” Bemoaning the lack of respect for due process normally accepted in a democratic country Fraser declared,

“We’re the only democratic nation, I am advised, to legislate for the detention of people whom the authorities do not suspect of any wrongdoing or even wrong thought,” he said in a recent address at the State Library of Victoria.

“In Australia, any of us can be detained merely because authorities believe we might know something that we don’t even know we know. The authorities do not have to believe we are guilty of any crime, or are planning any crime, or have consorted with any suspicious persons.”

Going on to criticize the government for its attempt to rush through the parliament such important and far-reaching legislation, Fraser also criticized the opposition Labor Party for its support of the controversial laws.

“The laws should be opposed because the process itself is seriously flawed. Instead of wide-ranging discussion, the government has sought to nobble the field in secret and to prevent debate.

“The government and the Labor Party have both assumed that we cannot fight terrorism and adhere to the basic principles of justice and democracy. They have assumed that certain people are outside the law and do not deserve justice … If we stand silent in the face of discrimination and in violation of the basic principles of humanity, then we betray our own principles and our way of life. I regret that many believe they must throw basic rights overboard to defend those same rights. Such views are wrong and will make it harder to overcome terrorism.”

Fraser’s criticism of the opposition Labor Party for failing to oppose the antiterror laws was echoed by Fraser’s predecessor, Gough Whitlam (1972-75). In a speech quoted in the Sydney Morning Herald Whitlam lamented the fact that his own Labor Party, traditionally the major party most protective of human rights, has not joined minor parties the Greens and Democrats and some from the Liberal Party’s own backbench, in opposing the bill.

Labor’s Internal Revolt

Leader of the opposition Kim Beazley is facing a party room revolt over his decision to support the government over the radical laws. Already under criticism from leaders of the states and territories, all of whom are Labor governments, a meeting of the Labor Party’s left faction has warned Beazley that his support of the antiterror bill runs contrary to the Labor Party’s platform of protection of basic human rights and commitment to international treaty obligations.

Speaking to Channel Nine after the meeting, left-wing Labor backbencher Daryl Melham reiterated his concerns for retrospective aspects of the laws of sedition.

“People who have left terrorism organizations, who haven’t done anything wrong, these laws will go back in time and pick them up and they can be placed on house arrest for 12 months,” he said.

“It can be extended for a further 12 months, and it can all be done on the basis of secret evidence done by A.S.I.O.”

The meeting was attended by a large number of state and federal M.P.’s including opposition Health spokeswoman Julia Gillard and deputy leader Jenny Macklin. The unlikely alliance between Labor’s left wing, state and territory leaders and moderates within the Liberal Party will attempt to force the prime minister to allow more time for discussion of the bill and dilute the more radical aspects of the terrorism laws.

Prime Minister John Howard has dismissed criticisms of the bill and called on state and territory leaders to approve the legislation. Howard has asked that the legislation be passed by parliament before Christmas, in time for the Commonwealth Games to be held in Melbourne in March 2006.

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