The first part of this week involved activities to do with the proposed terror laws. I attended the first day’s hearings of the Senate Committee inquiry into the legislation. The transcript is now available here.

A couple of quotes taken from that Hansard featuring responses Mr Geoff McDonald, Assistant Secretary of the Attorney-General’s Department are detailed here. I think they speak for themselves:

Senator BARTLETT—I think that you gave an answer before in response to Senator Stott Despoja’s question that this has been gone through fairly forensically and has been assessed as not contravening any of our international obligations. Who did that assessment?
Mr McDonald—Our Office of International Law.
Senator BARTLETT—Are they the same people who have been telling me in committee hearings like this year after year that our Migration Act does not breach international law in detaining children for years?
Mr McDonald—I do not know whether they are exactly the same advisers. However, the advice is probably from the same office.

———- ———–

Mr McDonald—Commonwealth officers right across the board cannot, as a rule, disclose information related to their work, unless it is authorised.
Senator BARTLETT—So how is anybody supposed to have any confidence in these sorts of provisions? In the last few weeks alone we have had a continual stream of newspaper coverage quoting anonymous government sources, police sources and security sources. There is a piece in the paper today about a Melbourne painter. It gives his alias, his real first name and his age. He is the supposed supergrass. This sort of thing can happen on a daily basis. How is anybody supposed to have any confidence in prohibitions in law about nondisclosure?
Mr McDonald—I agree with you. It is absolutely appalling that information can be disclosed in this way— and, should there be a complaint given to the Inspector-General of Intelligence and Security or the Ombudsman in relation to police and it gets investigated and it is discovered that a police officer or an intelligence and security person was at the source of it then they could be prosecuted with a maximum penalty of five years imprisonment under this sort of legislation. Prosecuting people for disclosure is something that is difficult. I do not want to make out that it is something that can be easily prosecuted; however, it can be and I am not aware of any reason why it would not be prosecuted if the evidence was—
Senator BARTLETT—It seems to happen an awful lot and prosecutions do not seem to follow very often.
Mr McDonald—I must say that I see things that have been released and feel very much the same as you. I would like to see a few more prosecutions as well. But the big thing about our system is that you have to prove things beyond reasonable doubt and, as I said earlier, whether it is sedition or the leaking of documents, you have to have the evidence.

I was interested to see 5 Liberal Senators (including the Chair) attending the hearing, including three from Queensland – George Brandis, Brett Mason and Russell Trood. I’m not sure if that suggests Queenslanders are more concerned about civil liberties – perhaps because we lived through the Bjelke-Petersen era we have a clearer idea of how easily power can be abused by police and intelligence agencies. Their questioning did focus a fair bit on querying the necessity and desirability of the sedition provisions.

I’ve raised my own concerns about this before, and they are along the same lines as what I understand these Liberal Senators to be. I got some comments at the time suggesting I was overstating the dangers. I understand this line of argument but I remain concerned, and if even Liberal Senators are not convinced then I think it is reasonable to be concerned. Having said that, I would be far more concerned if I happened to be a Muslim.

I met with some members of the local Muslim groups in Sydney on Tuesday who are clearly very concerned, apprehensive and frustrated. I had heard similar concerns in the past and had spoken about a few times. Regardless of what you think about the terror laws, I think we are very foolish to ignore these very real and genuine feelings.

These people know as well as anyone that laws giving wide-ranging powers to police and security agencies, those powers get misused and abused and injustices happen. They also know that there is a much higher likelihood that Muslims will be the victims in such circumstances.

The Migration Act provides a good case study, as it also provides wide ranging discretion to Commonwealth officials and Ministers to detain people and restrict their freedoms with limited independent constraints on hw those powers are used. If you want to know why I am utterly convinced that the new ‘anti-terrorism’ laws will be the cause of significant injustices, regardless of how many safeguards and monitoring mechanisms are included, have a look at these statements by the Commonwealth Ombudsman, Professor McMillan, at a recent Senate Committee hearing into the Migration Act.

In response to a question about whether the newly tabled report into the circumstances surrounding the forced removal from the country of an Australian citizen, Vivienne Alvarez, was “one of the more damning reports that the Ombudsman would have produced about a Commonwealth department?” he replied:

“Yes, I think you would probably have to say that it is about the most damning report that has been prepared.”

I then asked the Ombudsman whether or not the problems that were identified in this report had been identified previously in other reports. He replied

As a general response, nearly all of the problems of administration that are highlighted in the Alvarez and the Rau reports have been raised in the past. The Ombudsman’s office, prior to my time, did an own-motion investigation, for example, on the conditions in detention centres. The human rights commission did a report a year or so ago on children in detention. As our annual report indicates every year (my emphasis), there are problem areas such as record keeping; lack of clarity in memoranda of understanding between Commonwealth and state authorities; and issues about the adequacy of medical and health diagnoses in detention centres, particularly the regularity of visits by mental health professionals. So, yes, all of the issues and problems—compliance, missing notebooks about compliance officers, people who are fully cognisant of the legislation, privacy as an inappropriate obstacle to the circulation of information—have been raised at one time or another.”

This raises the question of why all these scrutiny mechanisms, raising major concerns, did not lead to any meaningful action at all from the government, and why we should be convinced that this time it will?
The answer is obvious – the politics changed. The Minister and the Government have known of the problems for years, but politically it suited them not only to ignore these reports but often to pour scorn on them. The Alvarez and Rau matters, for a bunch of reasons, created a major political negative for the government, even though, appalling as those cases are, far worse have happened before and are still happening now.

Professor McMillan also noted that the failure to act on these many reports and recommendations had occurred despite the Immigration Department being perhaps the most widely scrutinised of any Commonwealth Department. This is not in any way to suggest that scrutiny is a waste of time. Rather it shows that the value of scrutiny is hugely diminished unless there is some power attached to that scrutiny. It also emphasises how crucial it is to ensure that no department, Minister or government ends up with total power. Yet despite having seen the gross injustice and rank incompetence that has occurred when the Immigration Minister and Department has been given total power, it is now planned to give even bigger absolute powers to government Ministers and officers under the guise of ‘protecting’ the public against terrorism. Scrutiny and ‘oversight’ may seem better than no scrutiny, but without teeth attached to it, it can sometimes actually be worse, because it provides a veneer of protection which can actually have no real impact at all.

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  1. If there is a greater chance that the laws will affect Muslims, this is not because the laws are anti-Muslim.

    It’s because terrorists are much more likely to be Muslim.

    If the Muslim community is concerned, it should take action to reduce the support for terroorism amongst Australian Muslims.

  2. Rubbish. Typical “you’ve nothing to fear from the government unless you’ve done something wrong” attitude one so often hears from conservatives all to happy to sign away what few protections they have in the name of security.

    Governments are not somehow good. They should not be trusted, their powers should be limited and highly scrutinized. Any move by a government to increase it’s own power should be aproached with healthy scepticism.

    And especially so from the Muslim community, the real reason for this? The government are a bunch of fear mongering conservatives with a history of racism.

    We’re talking about the people who co-opted Pauline Hansons tripe in order to neutralize her threat, we’re talking about a government that locked refugees up in camps in the desert (yet anglo saxon descendent refugees from Zimbabwe were invited with open arms) and that fought election campaigns on the basis of fear and mistrust directed at anyone with brown skin.

    The Howard government wants more power, it has a track record of abusing power, and a track record of marginalizing specific groups in society, anyone who is a member of one of those groups should be concerned, very concerned.

  3. To paraphrase I’m not sure who:

    Any group which gives up liberty for the sake of security deserves neither liberty nor security.

    The problem is that power WILL be abused. Power is always abused. It might not be abused by the Howard government, it might not be abused by Attorney-General Ruddock but it WILL be abused in the future. And don’t give me the rubbish that sunset clauses will cause the law to stop opperating. Sunset clauses will mean that the Government of the day has to pass an amendnment in ten years. That’s all. Been done before – “oh, look how successful these laws have been at preventing terrorism; we’re still on the same Medium threat level; must continue laws”.

    If you want evidence that laws are used against their initial purposes, just examine Britain’s Anti-Social Behavior Orders (ASBOs). These were designed to counter neighbourhood gangs; they have been used against protesters, beggars, prostitutes and the mentally ill [The Economist, 12 Nov 2005, p. 63]. And judicial oversight doesn’t mean anything either – 98% of the time magistrates approve police requests which may violate habeus corpus [ibid].

    What we need is a constitutional specification of rights. Incorporate the Universal Declaration of Human Rights into the constitution and we could challange this in the high court on the grounds of violation of human rights. Who could oppose placing universal human rights into the constitution? It’d ensure they’re protected. Some could be reframed, perhaps to be more similar to those measures agreed to in the ICCPR. But no, we’re left with outrage and no legal recourse.

  4. The road from legitimate suspicion to rampant paranoia is very much shorter than we think. Something is wrong here. I don’t like what we have become. Have we become so fearful, have we become so cowardly, that we must extinguish a man because he carries the blood of a current enemy?

    With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied, chains us all irrevocably. The first time any man’s freedom is trodden on, we’re all damaged.

  5. We should remember that Australia has many, many officials and police officers and probably will have for a long time. Any criminal law or police power, proposed or current, no matter how benign, will eventually be abused by one of them. The question is not “if?”, it’s “how much?”. And the second question is whether or not the increase in law and order outweighs this inevitable abuse.

  6. Jake–
    It’s good to see this wisdom spread around the globe (!!!) It gives me hope, and hopefully, my message will do the same for you in kind.

    I just watched The Drumhead tonight, as preparation for my trial meeting tomorrow. Excellent scriptwriting… and words of wisdom to consider deeply.
    (Many thanks, Gene and Rick)

    Keep up the good fight.

  7. Jake and Jeff.
    Also nicely relevant to this debate is this exchange from the end of DS9 ‘Paradise Lost’.

    Sisko’s Dad: The streets are going to seem empty with them [the security officers] gone.
    Odo: Would you be happier if they’d stayed?
    Sisko’s Dad: No, if they’d stayed it wouldn’t be Earth any more would it? It didn’t seem right, all those phasers everywhere.
    Jake: Something wrong Odo?
    Odo: Am I the only one who’s worried that there are still changelings here on Earth?
    Sisko’s Dad: Worried. I’m scared to death, but I’ll be damned if I’m going to let them change the way I live my life.
    Sisko: If the changelings want to destroy what we’ve built here they’re going to have to do it themselves, we will not do it for them.

    That last line is particularly appropriate. Contemporary paraphrasing: ‘If the terrorists want to destroy Australia’s free and democratic society, they’re going to have to do it themselves, we will not do it for them’. Isn’t that the sort of attitude we need from our ‘leaders’?

  8. Haha, caught out. The timing of watching The Drumhead and reading this post within a day of eachother was a little too good to pass up. TNG certainly had some of the best scriptwriting i’ve seen on television, and was often extremely peritinent to contemporary issues.

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