Advance Australia Fair - Building Sustainability, Justice and Peace
Workshop - The 'War on Terror'
Sunday 31st July 2005
Back to workshop program
Patrick Emerton
Associate law lecturer at Monash University
When we’re looking at the legislative framework for Australia’s fighting of the war on terror there’s a lot to say to I’ll try and be concise while still giving you a sense of the breadth of what is going on.
The first thing to say is that the recent suggestion by the Prime Minister that we are operating in a 19th Century framework is odd because there has been a very considerable raft of legislation passed in the period starting in October 2001 and continuing through. The Attorney General promises that there’s more to come, a work in progress and an ever expanding canvas.
There are other ways in which the laws are not 19th Century, other than the fact that they’ve been passed recently. A feature of a lot of the laws is something that would have been abhorrent to the ideals of 19th century law-making. These are:
- the move to giving the government power to ban certain organisations and criminalise certain forms of conduct without requiring legislative checks,
- governmental power to detain and question people without them having to be suspected of any offence,
- and a criminal framework which moves towards reversing the onus of proof.
There’s been a lot of community debate around these laws and extensive parliamentary inquiries. The submissions to those inquiries have typically numbered between 30 and 100 for most but the original inquiries had more, with some in the several hundred. With the exception of submissions from government and police departments, all those submissions have been opposed to the expansion of the laws. While the parliamentary committees have taken note of those submissions, they have typically recommended, with some amendments, passage of the laws.
There’s a disparity between the community evidence coming in and the legislative response that’s been coming out. This has happened because the government dared the Labor Party to take a stand and they declined to take a strong stand on the side of civil liberties in the first place. Having at that first moment declined to take a stand it then becomes very difficult for them at any point in the future to change their mind, because it is very easy to be painted as having turned around and become ‘soft on terror’. It has then been possible for the government to introduce new legislation that goes further by eroding compromises that were reached in the original legislation. And now with no opposition possible from the Labor Party the ratchet keeps going up. Therefore some of the reverse onus elements which were taken out of some of the original compromise have since been brought back in by subsequent amendments. The Labour Party has already locked itself into a compromise negotiation strategy.
The key concept in the federal laws is the concept of a ‘terrorist act’. And the rest of the framework of those laws hangs off that concept. A ‘terrorist act’ is broadly defined as ‘any act or threat of politically motivated violence’. That is extremely broad. There are Australian soldiers in Iraq currently engaged in politically motivated violence. So they are engaged in a ‘terrorist act’. There are soldiers and armies all over the world threatening politically motivated violence if certain conditions occur. They are all committing ‘terrorist acts’. There are groups of protestors in Iran, from time to time in South Korea, and in Indonesia, all of whom are ready to confront the police in robust protest actions. They are therefore ‘threatening or ready to engage in political violence’. So the accepted concept of a ‘terrorist act’ is extremely broad and it goes far beyond what we might think of as catastrophic attacks on civilians such as bombings and hijackings.
Off that concept of a terrorist act are hung a whole lot of offenses. These include preparing to commit one, possessing documents connected to preparation for one, and so on. Again, these offenses are very broad. Think about the concept of committing an offense by ‘possessing a document connected to the preparation of a terrorist act’. For example, one can imagine a journalist doing research into politically motivated violence in the occupied territory of Israel engaging in an investigation and sees certain people preparing rockets to launch an attack on an Israeli guard post. That would be activity preparatory for a terrorist act. That journalist then writes a report of it. On the face of the offense, that journalist now posses a document relating to the preparation of a terrorist act and is then arguably committing an offense under Australian law.
It is typically part of these offenses that in possessing the document that is connected to the act there need be no intention on the part of the accused to be encouraging, participating in or supporting the act or otherwise themselves being part of a program of political violence. This concept of a terrorist act is then used to conceive of these broader offenses which can pick up people who have some link, be it direct or indirect, but have themselves got no terrorist, violent or politically motivated intention.
In addition to the concept of a terrorist act and the offenses that hang from that there is also the concept of a terrorist organisation. This is an organisation that is directly or indirectly engageed in, planning for, or fostering terrorist acts. ‘Indirectly fostering’ is probably the broadest concept that appears in the definition of a ‘terrorist organisation’. We know for example that there are organisations in the occupied territories that provide housing to families of suicide bombers whose original housing has been demolished in retaliation by the Israeli government. By providing that sort of support it is arguable that they are ‘indirectly fostering the doing of terrorist acts’. We could have charities that have indirect links to other organisations that might be connected to politically motivated violence. Again, they are arguably ‘fostering terrorist acts’. We could imagine trade unions in Australia sending money to support their comrades overseas where those comrades from time to time engage in robust confrontation with the police, where that may be ‘indirectly fostering politically motivated violence’.
So the concept of a terrorist organisation is quite broad and there are a number of offenses connected to involvement with terrorist organisations. For example it is an offense to train with, receive training from or provide training to a terrorist organisation and that offense can be committed even if that training is not connected to political violence. Imagine that a trade union here is supporting an organisation overseas and that organisation is engaged in, preparing for, or committed to engaging in politics perhaps by confronting the police, that organisation here is indirectly fostering political violence and so is a terrorist organisation. If I train a member of that organisation to use a photocopier, I have trained a member of a terrorist organisation and have therefore committed an offense, term of imprisonment - twenty-five years.
So we have a broad concept of ‘terrorist offenses’ which hang off a broad concept of a ‘terrorist organisation’ which in turn hangs off a broad concept of a ‘terrorist act’.
The final element of these offenses is that the Attorney General has the power to list an organisation if he believes that it is engaged in, or fostering directly or indirectly terrorist acts. And at that point if one was to be charged with an offense of being involved in that organisation, if it has been listed, the onus is taken off the prosecution of being proven in court beyond reasonable doubt that the organisation really was directly or indirectly fostering violence. The status of an organisation, as being involved with or connected to political violence can be determined as an act of government fiat rather than as something that has to be proved in court through the process of a prosecution.
At present 18 groups have been listed by the government as terrorist organisations. You might think, “why only 18?”, if you think about the range of organisations that are directly or indirectly fostering political violence there will be vast numbers of them. For a start, every army in the world would count as one, and every police force would be a candidate. But only 18 groups have been listed. In fact all of those groups are self identified Islamic militant groups operating in an arc stretching from north Africa and Algeria, through Europe, the Middle East, Afghanistan, Pakistan and down into South East Asia. Of all the groups which are potentially open to being listed, only a certain number of them have been listed. That highlights a problematic feature of the power to list them: that it gives a great deal of discretion to the government to chose to focus these extremely broad offenses and extremely broad criminal apparatus on a certain group of organisations. Instead of having a tightly defined set of offenses being investigated and prosecuted in a broadly non-discriminatory kind of way, we have an exceedingly broad class of concepts and offenses with the government using its discretion to focus on offenses and organisations who will be investigated, who will be listed and singled out for particular investigation. As Joo-Cheong argued in a piece that he had published in The Age on June the 7th this year, the Liberal Party of Australia is almost certainly a terrorist organisation because it indirectly fostered the use of political violence in Iraq.
A final point I want to comment on to do with this idea of very broad concepts and broad laws with narrow targeting is to say something about ASIO’s powers. If you have information relevant to one of these offenses ASIO has the power to issue you with a compulsory questioning warrant which will compel you to testify about the information you have. Given certain circumstances ASIO can also issue a warrant against you that makes it lawful for you to be detained for the purposes of questioning. That detention could be up to one week and while it is not ‘incommunicado’ the capacity to communicate is extremely restricted. In particular the capacity to access a lawyer while detained is quite restricted. So there are ever expanding circles of liability and expanding powers for ASIO. However, we know that in practice ASIO is not going to investigate everyone that these new laws could apply to but that they will target select groups and individuals.
In finishing up I’d like to emphasise that contrast between extremely broad offenses and narrow targeting by ASIO, a covert organisation. This framework by no means takes us to a police state, that would be an absurd conclusion, but it is a certain trend and orientation in that direction. As a lawyer with traditional rules of law quite dear to my heart that is a direction that is quite disturbing.
When we’re looking at the legislative framework for Australia’s fighting of the war on terror there’s a lot to say to I’ll try and be concise while still giving you a sense of the breadth of what is going on.
The first thing to say is that the recent suggestion by the Prime Minister that we are operating in a 19th Century framework is odd because there has been a very considerable raft of legislation passed in the period starting in October 2001 and continuing through. The Attorney General promises that there’s more to come, a work in progress and an ever expanding canvas.
There are other ways in which the laws are not 19th Century, other than the fact that they’ve been passed recently. A feature of a lot of the laws is something that would have been abhorrent to the ideals of 19th century law-making. These are:
- the move to giving the government power to ban certain organisations and criminalise certain forms of conduct without requiring legislative checks,
- governmental power to detain and question people without them having to be suspected of any offence,
- and a criminal framework which moves towards reversing the onus of proof.
The structure by which they operate is quite different to the traditions of criminal law values that we think of as obtaining in a common law style legal system. Before I outline in more detail what those laws are I want to say something else about legislative strategy because I think that’s interesting.
There’s been a lot of community debate around these laws and extensive parliamentary inquiries. The submissions to those inquiries have typically numbered between 30 and 100 for most but the original inquiries had more, with some in the several hundred. With the exception of submissions from government and police departments, all those submissions have been opposed to the expansion of the laws. While the parliamentary committees have taken note of those submissions, they have typically recommended, with some amendments, passage of the laws.
There’s a disparity between the community evidence coming in and the legislative response that’s been coming out. This has happened because the government dared the Labor Party to take a stand and they declined to take a strong stand on the side of civil liberties in the first place. Having at that first moment declined to take a stand it then becomes very difficult for them at any point in the future to change their mind, because it is very easy to be painted as having turned around and become ‘soft on terror’. It has then been possible for the government to introduce new legislation that goes further by eroding compromises that were reached in the original legislation. And now with no opposition possible from the Labor Party the ratchet keeps going up. Therefore some of the reverse onus elements which were taken out of some of the original compromise have since been brought back in by subsequent amendments. The Labour Party has already locked itself into a compromise negotiation strategy.
The key concept in the federal laws is the concept of a ‘terrorist act’. And the rest of the framework of those laws hangs off that concept. A ‘terrorist act’ is broadly defined as ‘any act or threat of politically motivated violence’. That is an extremely broad. There are Australian soldiers in Iraq currently engaged in politically motivated violence. So they are engaged in a ‘terrorist act’. There are soldiers and armies all over the world threatening politically motivated violence if certain conditions occur. They are all committing ‘terrorist acts’. There are groups of protestors in Iran, from time to time in South Korea, and in Indonesia, all of whom are ready to confront the police in robust protest actions. They are therefore ‘threatening or ready to engage in political violence’. So the accepted concept of a ‘terrorist act’ is extremely broad and it goes far beyond what we might think of as catastrophic attacks on civilians such as bombings and hijackings.
Off that concept of a terrorist act are hung a whole lot of offenses. These include preparing to commit one, possessing documents connected to preparation for one, and so on. Again, these offenses are very broad. Think about the concept of committing an offense by ‘possessing a document connected to the preparation of a terrorist act’. For example, one can imagine a journalist doing research into politically motivated violence in the occupied territory of Israel engaging in an investigation and sees certain people preparing rockets to launch an attack on an Israeli guard post. That would be activity preparatory for a terrorist act. That journalist then writes a report of it. On the face of the offense, that journalist now posses a document relating to the preparation of a terrorist act and is then arguably committing an offense under Australian law.
It is typically part of these offenses that in possessing the document that is connected to the act there need be no intention on the part of the accused to be encouraging, participating in or supporting the act or otherwise themselves being part of a program of political violence. This concept of a terrorist act is then used to conceive of these broader offenses which can pick up people who have some link, be it direct or indirect, have themselves got no terrorist, violent or politically motivated intention.
In addition to the concept of a terrorist act and the offenses that hang from that there is also the concept of a terrorist organisation. This is an organisation that is directly or indirectly engageed in, planning for, or fostering terrorist acts. ‘Indirectly fostering’ is probably the broadest concept that appears in the definition of a ‘terrorist organisation’. We know for example that there are organisations in the occupied territories that provide housing to families of suicide bombers whose original housing has been demolished in retaliation by the Israeli government. By providing that sort of support it is arguable that they are ‘indirectly fostering the doing of terrorist acts’. We could have charities that have indirect links to other organisations that might be connected to politically motivated violence. Again, they are arguably ‘fostering terrorist acts’. We could imagine trade unions in Australia sending money to support their comrades overseas where those comrades from time to time engage in robust confrontation with the police, where that may be ‘indirectly fostering politically motivated violence’.
So the concept of a terrorist organisation is quite broad and there are a number of offenses connected to involvement with terrorist organisations. For example it is an offense to train with, receive training from or provide training to a terrorist organisation and that offense can be committed even if that training is not connected to political violence. Imagine that a trade union here is supporting an organisation overseas and that organisation is engaged in, preparing for, or committed to engaging in politics perhaps by confronting the police, that organisation here is indirectly fostering political violence and so is a terrorist organisation. If I train a member of that organisation to use a photocopier, I have trained a member of a terrorist organisation and have therefore committed an offense, term of imprisonment - twenty-five years.
So we have a broad concept of ‘terrorist offenses’ which hang off a broad concept of a ‘terrorist organisation’ which in tern hangs of a broad concept of a ‘terrorist act’.
The final element of these offenses is that the Attorney General has the power to list an organisation if he believes that it is engaged in, or fostering directly or indirectly terrorist acts. And at that point if one was to be charged with an offense of being involved in that organisation, if it has been listed, the onus is taken off the prosecution of being proven in court beyond reasonable doubt that the organisation really was directly or indirectly fostering violence. The status of an organisation, as being involved with or connected to political violence can be determined as an act of government fiat rather than as something that has to be proved in court through the process of a prosecution.
At present 18 groups have been listed by the government has terrorist organisations. You might think, “why only 18?”, if you think about the range of organisations that are directly or indirectly fostering political violence there will be vast numbers of them. For a start, every army in the world would count as one, and every police force would be a candidate. But only 18 groups have been listed. In fact all of those groups are self identified Islamic militant groups operating in an arc stretching from north Africa and Algeria, through Europe, the Middle East, Afghanistan, Pakistan and down into South East Asia. Of all the groups which are potentially open to being listed, only a certain number of them have been listed. That highlights a problematic feature of the power to list them: that it gives a great deal of discretion to the government to chose to focus these extremely broad offenses and extremely broad criminal apparatus on a certain group of organisations. Instead of having a tightly defined set of offenses being investigated and prosecuted in a broadly non-discriminatory kind of way, we have an exceedingly broad class of concepts and offenses with the government using its discretion to focus on offenses and organisations who will be investigated, who will be listed and singled out for particular investigation. As Joo-Cheong argued in a piece that he had published in The Age on June the 7th this year, the Liberal Party if Australia is almost certainly a terrorist organisation because it indirectly fostered the use of political violence in Iraq.
A final point I want to comment on to do with this idea of very broad concepts and broad laws with narrow targeting is to say something about ASIO’s powers. If you have information relevant to one of these offenses ASIO has the power to issue you with a compulsory questioning warrant which will compel you to testify about the information you have. Given certain circumstances ASIO can also issue a warrant against you that makes it lawful for you to be detained for the purposes of questioning. That detention could be up to one week and while it is not ‘incommunicado’ the capacity to communicate is extremely restricted. In particular the capacity to access a lawyer is while detained is quite restricted. So there are ever expanding circles of liability and expanding powers for ASIO. However, we know that in practice ASIO is not going to investigate everyone that these new laws could apply to but that they will target select groups and individuals.
In finishing up I’d like to emphasise that contrast between extremely broad offenses and narrow targeting by ASIO, a covert organisation. This framework by no means takes us to a police state, that would be an absurd conclusion, but it is a certain trend and orientation in that direction. As a lawyer with traditional rules of law quite dear to my heart that is a direction that is quite disturbing.
Liberty Victoria website
--------------------------------------------------------------------------------------------------------------------------------------------
Back to workshop program
|
