Deflating terror's bubble
Federal politics
By Michelle Grattan
October 16, 2005/the AGE
It was an exquisite prick of the hubris balloon. Less than 24 hours after the Howard Government insisted a Senate inquiry into its sweeping anti-terrorism legislation would be confined to a week - less in real parliamentary time - it was infuriated by the pre-emptive release of the draft bill.
.... It is outrageous that the Government wanted to leave so little time between the planned date of release and the passage of the legislation, which it intends to get through Parliament before Christmas.
That it has such scant regard for the processes of democratic discussion on a piece of legislation that tramples comprehensively on people's rights makes you worry about how it would use the law itself.
The breadth of what can be done under the proposals is extraordinary. And so is the potential for innocents, or semi-innocents, to be caught up in the net.
People over whom police obtain a control order - terror suspects or those who have trained with a terrorist organisation - can be detained for up to a year, effectively under house arrest.
That they can be forced to wear a tracking device is almost the least of it. They can be stopped from making phone calls, prevented from working, and told where to be when. Remember, these people have not been charged with an offence.
Despite the built-in judicial review (including the issuing of the order by a court), Kerr says: "We have moved an awfully long way to licensing the state control of the individual that we have condemned in totalitarian regimes."
John North, president of the Law Council of Australia, raises the risk that a government could use the legislation's provision for preventive detention of people without charge (two days under federal law, two weeks under complementary state law) as a precautionary device to sweep up people and minimise security dangers when, for example, there is a major conference attended by foreign leaders.
The preventive detention section codifies the circumstances in which police may shoot to kill. It says in part that a police officer may not do anything to kill or grievously injure a fleeing person unless the officer reasonably believes that it is necessary to do so "to protect life or to prevent serious injury" and there is no other way to stop the person.
The Greens and Democrats have jumped on this, with Bob Brown saying it would "allow a London-type wrongful death". The Government says the section simply reflects what is already in the Crimes Act. But critics say this draft does not make it clear that the risk posed by the fleeing person must be an imminent one, and Brown notes that the need for a warning has been qualified with the words "if practicable".
"The result is that a fleeing suspect may be shot where an officer has not been able to first call for surrender," Brown said yesterday. There is also the further point that the people being preventively detained are not people who are being arrested.
While most debate has been around the sections on control orders and preventive detention, other parts of the bill also raise concerns.
Take the section "financing a terrorist". A person commits an offence by intentionally giving funds to someone (directly or indirectly) and being "reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act". The penalty for this? Life imprisonment. Surely an excessively long sentence.
The sedition section is drastic. A "seditious intention" includes urging someone to "attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth". Where would that leave illegal sit-ins?
It's also seditious to "promote feelings of ill will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth". The Government stresses the sedition section is an updating of the present law and crimes must be linked to violence.
The offence outlawing the giving of assistance "by any means whatever" to an organisation or country against which the Australian Defence Force is fighting (penalty - seven years in prison) has a "good faith" let-out designed to cover political debate (as well as humanitarian assistance). But there's a lot of subjectivity involved.
Attorney-General Philip Ruddock yesterday elaborated: "There is no prospect of people being found guilty of offences in relation to participating in robust debate on political issues. But there is a concern that robust debate should not be seen as encouragement to people to carry out acts which will endanger other people's lives."
He said Australian troops' safety should not be put at risk by people who might say, "I don't think the Australian Government should be in Iraq, therefore you should attack our troops." Would the law, however, catch much-less-explicit statements? Ruddock yesterday could not think of a single example of a comment that might have come under the section relating to Australian troops.
The legislation's premature release will give, in particular, the Muslim community a chance to react. It was significant that Stanhope used the occasion of a speech at a mosque to announce he was making the draft public.
He invited Canberra Muslims to give their views, "in particular, the extent to which they believe these laws may lead to racial profiling".
"The onus should not be on ordinary, law-abiding people to prove that they are not a danger to the community, yet that seems to be the current focus. The question being asked of Australian Muslims is what they can do to assuage the fears of the rest of us. The focus ought to be what the rest of us can do to address the causes of disaffection."
......... It's easy for sceptics to argue that opponents of the anti-terrorism laws are exaggerating their potential misuse and downplaying all the judicial safeguards. This overlooks history and human nature. This Government's treatment of asylum seekers, and its patent disregard for the rights of David Hicks and Habib, do not encourage giving it the benefit of the doubt. There's not much reason to think Labor would be better. If the laws are there, the probability is they'll eventually be used to the hilt.
The imperative is to get the balances right when the legislation is passed. With the Government able to get its way in the Senate, it has the absolute whip hand. But at least, thanks to Stanhope, the cautionary voices now have a little better chance to be heard and more weight will be put on small-"l" liberals in the Coalition to act as watchdogs.
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