Advance Australia Fair - Building Sustainability, Justice and Peace
Workshop - The 'War on Terror'
Sunday 31st July 2005

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Brian Walters SC

President, Liberty Victoria

At 7 am on 11 July 1882, the guns of the British Mediterranean fleet opened fire on the Egyptian shore batteries at Alexandria. By five that evening, most of the inhabitants of the town were streaming south towards Cairo. The British landed a force of 20,000 men under the command of General Sir Garnet Wolseley. The invading army fought a number of skirmishes, and the Battle of Tel-el-Kebir, and soon occupied Egypt, including, most importantly, the Suez Canal.

The rhetoric preceding this conquest has an eerie familiarity. In England the Egyptians were described as “terrorists” who broke all pledges and murdered innocent European civilians. It was said to be imperative to land troops to restore law and order. In Paris and London politicians began to speak of “a dangerous pan-Islamic conspiracy, a resurgence of fanatical Mohammedanism”.

In Cairo, of course, it seemed the other way round – they described themselves as surrounded and menaced by a Pan-Christian movement.

These were perilous times for Europe – the underprivileged seethed in opposition to the powerful. The previous year, on 13th March 1881, Tsar Alexander II had been assassinated by a Polish suicide bomber.

Britain also had its bombers – mostly anarchists at that time. In 1903 Joseph Conrad penned his novel The Secret Agent about anarchists in London planning to blow up the Greenwich observatory.

And yet we have this rhetoric that the world changed on September 11th. What on earth does this mean? Of course the world changed on that day, as it does on every day. But there has been no fundamental shift. September 11th was a shocking crime, but it did not threaten our democracy or our traditions.

On February 27th 1933, the immense Reichstag building, the focal point of Berlin’s imperial district, was set on fire and destroyed. Only the shell remained. It was a shocking act of terrorism.

In the midst of the public alarm that followed, Adolf Hitler, who had been Chancellor for less than a month, and whose coalition ministry contained only two other Nazis, went to President Hindenburg and presented him with an emergency decree, drafted by non-Nazi public servants, “for the protection of the people and the state”.

The decree abrogated basic civil rights. Hitler said that with this decree he could “try enemies of the state legally and deal with them in a way that will put an end to conspiracies.”

The Reichstag fire was also used to justify the passing of the Enabling Act which further consolidated the control of the executive over elected representatives.

These two pieces of legislation were the legal foundation for all the excesses that followed.

Here in Australia, following the September 11 attacks, both Labor and the coalition combined to pass so-called “anti-terror” laws. Not only do these laws deliver extensive new powers to security services, they remove any practical means of public scrutiny of those bodies. No other country in the world has gone as far as Australia in passing such laws.

The laws depend on a very broad definition of “terrorist act” which goes far beyond bombing or hijacking (already crimes in any event): it extends to types of industrial action and political protest. The offences are so broad that it is a crime to merely possess a thing in connection with engagement with a “terrorist act”.

Under these laws, ASIO may compulsorily detain and question persons who are suspected of having “relevant information” for consecutive periods of seven days. Detainees may be questioned for up to 24 hours (48 if an interpreter is used). They have no right to silence and limited rights to legal representation. They are subject to body and strip searches.

Detainees can be held incommunicado with no right to contact family, friends or employers.

Detainees, who need not be suspected of any terrorism, will commit a criminal offence if they fail to provide the information which ASIO seeks. If they are charged with this offence, they will have to prove they do not have the information sought. How can they possibly do so?

The laws surround ASIO’s activities with far-reaching secrecy provisions. It is an offence, carrying five years’ jail, to disclose information relating to ASIO’s conduct in detaining and questioning people while a warrant is in force. For two years thereafter, it will be an offence to disclose “operational information” which in effect covers ASIO’s knowledge and activities.

Detainees can be held without being able to tell their children where they are, and there is even provision for authorities to detain the children of those subject to questioning. Where psychological trauma results, detainees and their children will commit a serious criminal offence if they tell health professionals how they sustained their injury.

If ASIO deals with detained persons unlawfully, those subject to this lawlessness will not be able to complain to their members of parliament about it – to do so would risk five years’ jail. They will not even be able to complain to the Attorney-General or the Shadow Attorney. Journalists will not be able to write stories about the abuse of power by ASIO. Under these provisions, no real media scrutiny of ASIO’s conduct is allowed.

Even permission to disclose information to lawyers is severely circumscribed. The legislation does not permit disclosure to lawyers for the purpose of challenging ASIO’s investigatory activities.

The legislation casts a pall of silence over the activities of ASIO.

We have Les Thomas with us – the brother of Jack Thomas. Last week the DPP served notice that the Jack Thomas trial will have the National Security (Information) Act applied to it. That Act permits tender of statements to prove critical facts without cross-examination. It permits trials to be conducted in camera.

But shouldn’t we be prepared to trade our freedom for security? After the crucible of the Second World War and the searing experience of Nazi tyranny, the nations of the world came together to forge human rights treaties designed to prevent such horrors ever recurring.

As the Universal Declaration of Human Rights, passed in 1948, says in its preamble:
it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law

In enacting those great instruments in the aftermath of conflagration, the world emphasized that it is precisely when we are under threat as a community that we most need human rights – otherwise they are not rights at all, but mere convenient but expendable conventions.

As the early President of the United States, Thomas Jefferson said: “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.”

Human rights matter – they are our bulwark against tyranny. But our terror laws are something about which we should be alarmed, not merely alert.

Alone amongst all western nations, Australia has not enacted the principles of the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights as part of the domestic law of Australia. It is high time we did.

On 1st July 2004 the landmark Human Rights Act commenced operation in the ACT. This statute gives force to the rights under the ICCPR, and requires the legislature to consider the human rights implications of proposed bills. Courts may not strike down legislation for non-compliance, but they can trigger a reconsideration of legislation.

In Victoria the State government has initiated a consultation process designed to lead to a similar charter of rights for Victorians. The consultation panel, chaired by Professor George Williams, is required to report by November 2005. Every submission will be important.

A Charter of Human Rights would be an excellent framework to ensure that there is an adequate dialogue between the courts and the parliament on the issues of human rights.

Our best security lies in full protection of the human rights of citizens.

Liberty Victoria website

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