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AUSTRALIAN
MARXIST
REVIEW

Journal of the Communist Party of Australia

ISSUE 43 JANUARY 2006

Fighting terrorism or fighting democracy?

by Anna Pha

In Australia, and around the world, governments have been passing draconian legislation in the name of fighting a “war on terrorism”. September 11, the Bali bombings, and other recent acts of terrorism have been given as reasons why such far-reaching measures are required.

While the legislation may well be used for security purposes, the “war on terrorism” is in reality a smokescreen for a far-reaching and extremely dangerous agenda. As imperialist wars, AIDS, TB, malaria, starvation, lack of sanitary services, privatisation, deregulation, cuts to social welfare and public health services take their toll, more and more people are reacting and organising against the policies, corporations and international bodies responsible. As the present global capitalist offensive on the people bites deeper, millions of workers, peasants, environmentalists, peace activists and others affected are taking action and the numbers will only increase with time.

Imperialism is taking what it sees as necessary measures to counter and crush that opposition. It has launched an offensive against organised labour. In Australia the Howard Government’s industrial relations legislation is one such measure. The anti-terrorism legislation is another arm of that same offensive, as is the fostering and condoning of racism and anti-Muslim sentiments by governments, radio talkback programs and print media. The anti-terrorism legislation contains many serious breaches of key democratic and long-established legal principles. The following are examples of the manner in which many of these are being jettisoned.

The key pieces of legislation referred to are:

  • Amendments to ASIO Act, made in 2003 and since (new ASIO powers including surveillance and arbitrary detention)
  • Anti-Terrorism and Anti-Terrorism (No 2) 2005 passed in the last sitting of Parliament (includes sedition, amending the Crimes Act, preventative detention orders and control orders, new police powers)
  • Amendments to the Criminal Code Act 1995 from 2002 onwards (includes new criminal offence of terrorism, banning of organisations and “consolidated list” of organisations)
  • Building and Construction Industry Improvement Act 2005 (application of laws to workers and trade unions)

More than 20 bills have been passed and assented to. There is also state legislation not covered here. (All quotes are taken from the legislation.)

Broad definition of terrorism ropes in trade union and political actions

There have been successive amendments to the Criminal Code Act 1995 (Criminal Code) over the past three years. The most significant is the inclusion of the criminal offence of terrorism which is defined for the first time in Australian law.

The Criminal Code says a “terrorist act” occurs when:

  • a person commits an act with the intention to advance a political, ideological or religious cause; and
  • by doing an act they intend to coerce the government or intimidate the public; and
  • the act causes death or serious physical harm to a person, endangers life (other than the life of the person carrying out the action), creates a serious health or safety risk to the public (or section of the public), causes serious damage to property, or interferes with, disrupts or destroys an electronic system.

The term “government” refers to any level of government — federal, state, local or foreign. It is also a terrorist act to threaten to do any of these things. The maximum penalty is life imprisonment.

The act says that advocacy, protest, dissent or industrial action is not a terrorist act providing that it is not intended to cause serious physical harm, death, danger to another’s life or a serious health or safety risk. This implies that the charge of terrorism could be applied to such actions. For example, if a serious safety risk or physical harm arises on a picket line or protest march to pressure the government on its policies, then it would become a matter of police opinion and legal wrangling as to the question of intent.

It is not hard to imagine a situation where there is a provocation, followed by violence, injury or serious damage. A conviction carries wider repercussions than the potential jail sentence. Anyone who is convicted of a criminal offence that carries a potential penalty of 12 months or more is banned from holding official union positions for a period of five years from the date of conviction.

It could have very serious repercussions for trade unions and workers. Consider nurses or other health workers who are pressuring the government to increase wage rates in public hospitals or trying to halt the privatisation of a hospital. If their industrial action is construed as affecting the health or well-being or lives of anyone, then they could face charges of terrorism along with five-year-jail sentences.

Freedom of speech curtailed.
Sedition so broadly defined as to cover almost any dissent or challenge to status quo

The criminal offence of “seditious intention” (Crimes Act) includes intent:

  • “to bring the Sovereign into hatred or contempt”;
  • “to urge dissatisfaction against the following:
    • “(i) the Constitution;
    • “(ii) the Government of the Commonwealth;
    • “(iii) either House of the Parliament”.

The scope of this definition has little to do with terrorism. Mere criticism of the Queen, the Constitution, Government or Parliament could be included.

It is likewise an offence to “to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth”. This is another broad definition which goes well beyond any concept of terrorism.

The penalty for “seditious intention” is imprisonment for seven years along with the stigma and restrictions resulting from a criminal conviction, including not being able to hold office in a trade union for five years.

Suspicion replaces proof.
Denial of right to be heard.
Secret court sessions — victim and lawyer not present, not informed

Control orders may be issued by certain federal courts (the Federal, Family or Federal Magistrates Courts) under the Criminal Code at the request of a senior member of the Australian Federal Police, with the Attorney General’s written consent.

The process of requesting and making control orders is secret. The individual who is the subject of a request for an order and their lawyer are not informed of the request. The person has no right to appear in court and has absolutely no opportunity to challenge the reasons given for the request for an order which could be based on hearsay, suspicion or rumour.

No evidence is required. It is sufficient that the police member “suspects on reasonable grounds that the person has provided training to, or received training from, a listed terrorist organisation”, or that the police member believes that the control order “would probably substantially assist in preventing a terrorist act”.

Absence of open and accountable process.
Restrictions, including possibility of house arrest, for up to 12 months at a time
(limit of 3 months for 16- to 18-year-olds)
Unlimited detention — no charges, no evidence, no trial, no conviction

Control orders include such requirements as:

  • prohibition on being in certain places;
  • remaining at specified premises on specified days (e.g. house arrest);
  • wearing a tracking device;
  • not communicating or associating with specified persons (this could include the person’s lawyer, family member or journalists);
  • prohibition on using specified telecommunications technology including internet or telephone;
  • not carrying out specified activities, such as their occupation.

The penalty for contravention of a control order is imprisonment for five years.

The control order takes effect when served on the person. It contains details of the specific conditions being imposed and the expiry date. Only when the order is in force may the person involved apply to the court for it to be revoked. During that process the order remains in force. This might mean not being able to communicate with certain people, including your lawyer, who could assist in your application. It might also mean not being able to travel or acquire proof by such means as the internet to gain evidence for your case. The subject of the control order is thus denied access to basic rights for self-defence. There is no requirement in the act that the person be informed of the reasons for the orders being issued!

When an order expires it is possible for the Federal Police to gain a new order. This process could continue for years on end without any charges being. The potential for abuse is huge.

The public would never know how many people are under such orders, being tagged, monitored, under house arrest, prevented from seeing their friends or family. The only public acknowledgement is that the annual report to Parliament states the number of people who have been under control orders.

Months or years of detention are also possible under the ASIO laws, if warrants are reissued after each period of detention.

Bypassing judicial process.
Judges acting in a personal capacity outside of courts

Preventative detention orders mean that a person can be held in a jail or without charge for up to 14 days if there are “reasonable grounds” to suspect that a person will commit, or is preparing a terrorist act in the next 14 days, or if it is necessary to preserve evidence of a terrorist attack that occurred in the last 28 days.

The decision to incarcerate the person is not made by a court, but following an application by a police officer, by an individual judge or retired judge acting in their personal capacity, not in accordance with due judicial procedures. These procedures include the allocation of judges to cases by the court (those seeking the order would choose the judge), appeal to higher courts and the orders and hearings being on the public record. The usual test of being satisfied beyond reasonable doubt on the basis of fully tested evidence by a court is replaced by a highly subjective, personal decision without the rigours of a court.

The Attorney General plays a role in vetting applications for control orders before they reach the court. Executive government can thus make political decisions, sidelining independent bodies such as the Director of Public Prosecutions.

Similarly, the Attorney General’s written consent is required to commence sedition proceedings. The current Attorney General is Philip Ruddock, who, as Minister for Immigration, oversaw the illegal detention and abuse of asylum seekers and innocent Australian citizens.

The government is in effect empowered to detain (or prevent the detention of) individuals for political or other reasons. It can initiate prosecutions and given its broad powers, there is every chance of a successful conviction.

Media gagged

Under control orders a person could be banned from having any contact with journalists.

Under the ASIO legislation it is illegal for the media to report any information on warrants issued for questioning and detention by ASIO. The media is not permitted to talk to detainees about their detention, nor disclose the existence of any warrant, or event, for two years following the expiry of the warrant.

The broad definition of “terrorist act” also severely undermines the right of journalists and cartoonists to make independent political commentary or analysis.

ASIO, intelligence organisation given police powers

The official role of ASIO is intelligence gathering. ASIO files are based largely on gossip, hearsay, second-hand reports, material from other organisations as well as surveillance and its own investigations. Police use these methods too, but before charging and taking someone to court for possible conviction, sentencing and imprisonment, they must prove beyond reasonable doubt i.e. provide concrete evidence which can be subjected to cross-examination, that a crime has been committed and that the person is guilty of the charges.

ASIO now has the power to question and detain anyone if they merely believe it would help them gather intelligence on a “terrorism” offence. Even when no crime has been committed and the detainee has no involvement in any crime or planned crime. The definition of a terrorist offence is extremely broad, no act of terrorism need have occurred and the person being detained may have no connection with those believed to be planning an offence. Those detained may just be believed to have heard something that might be of use to ASIO.

Warrants from a prescribed authority can authorise detention for a total of seven days and ASIO can apply for further warrants after a detainee’s release.

ASIO can also demand membership lists, diaries and mobile phones. Non-compliance carries a maximum penalty of five years imprisonment. With a warrant, ASIO can tap into people’s computers either internally or from outside. ASIO can copy, alter, add to or delete data on the computer for the purpose of gathering security information.

Denial of right to silence and to not incriminate oneself

If you are detained for questioning under an ASIO warrant, you have no right to silence. You must give ASIO the information requested even if the answer is self-incriminating. The penalty for not answering a question is up to five years in jail. Giving false or misleading answers can incur the same punishment.

Reversal of onus of proof

ASIO might, for example, ask you for the membership list of a political party of which you are an office bearer. What if no such list exists? To avoid jail you would have to prove on the balance of probability that no such list exists. But how do you do it? How do you prove that a list of names does not exist? It’s almost impossible.

Under long-established, long-held legal principles the onus of proof is on those demanding the information to prove there is such a list and that you have it. This has now been reversed.

Such terror laws make it very easy for an innocent person to be found guilty of an offence.

Held incommunicado

ASIO detainees are denied contact with family members or lawyers unless such contact is specified in the warrant. For two years following the expiry of the warrant it is an offence to tell anyone, including the media or your family or employer that the warrant was issued, its content or any facts about the questioning. The penalty is up to five years in jail.

Intent not necessary

Under the new “anti-terrorism” laws it is not necessary to show that a person “intended” to urge others to commit some offence but only that they were “reckless” in urging others. This is a much easier way to convict someone if you remove or weaken the concept of intent. “Intent” has always been an extremely important principle in gaining convictions.

Huge scope for political abuse

There are a number of offences where broad and vaguely defined terms leave the way open for abuse. These offences include any person urging another:

  • “to interfere by force or violence with parliamentary elections”. A scuffle started by provocateurs at a polling booth? The maximum penalty is seven years imprisonment;
  • “to engage in conduct to assist, by any means whatever, an organisation or country engaged in armed hostility against the Australian Defence Force”. Opposition to the war in Iraq? (7 years).

These offences are not for carrying out acts but just for “urging” someone else to do so.

Another offence too has a very wide definition. It is to urge a group (national, religious, or political) to use force or violence against another group (racial, religious, national or political) such as to threaten the peace, order and good governance of Australia (7 years). What constitutes force? Is a picket line “force”? Does industrial action threaten “order” or “good governance”?

Organisations banned

Under the new laws there is a Proscribed Organisations List and a Consolidated List of organisations and individuals. There are 18 organisations on the Proscribed List, defined as terrorist organisations. (These can be found on the government’s website http://www.nationalsecurity.gov.au)

Intent to join, membership of, directing, recruiting for, participation in the activities of, training for a terrorist organisation or supporting financially or in any other way an organisation on the government’s Proscribed Organisations List is an offence. The onus of proof is reversed. It is up to the individual to prove that he or she did not know it to be a terrorist organisation or did not know that a particular charity, cultural or other organisation they were contributing to was associated with the banned organisation. Long prison sentences apply for such offences.

It is also illegal to associate in any way with someone who is a member of a proscribed organisation. If you did not know that the organisation was one that had been listed and your ignorance was not the result of carelessness on your part this may be a defence, but the onus of proof is reversed. There are some circumstances in which it is not an offence, such as if the person you associate with is a close family member, you are in a religious space or receiving certain legal advice.

It is a criminal offence to raise money for or deal with the assets of an organisation not only on the government’s list of terrorist organisations, but also on the much longer Consolidated List.

This list has over 500 individuals and organisations’ names on it from around the world, including Australia. Membership or political support for an organisation on the Consolidated List is not necessarily illegal. It is however, illegal to fund such organisations or to deal with their assets. This latter point would affect banks and anyone attempting to hold the assets in question in another name. It is also illegal to buy a publication or donate to any organisation on or linked to one on the Consolidated List.

Guilt by association

In some circumstances you break the law if you meet or communicate with a member of a listed terrorist organisation — guilt by association. The onus of proof is on you to prove that you did not know the person was a member of a terrorist organisation.

Parliament and courts bypassed. No right of appeal

The Minister for Foreign Affairs has the power to add any person or organisation to the Consolidated List where the minister is satisfied that the person or organisation is associated with terrorism. Justification by the minister is not required. There is no public accountability.

Organisations or individuals placed on the Consolidated List have no rights to be heard in a court or to appeal against such a decision.

In effect, executive government gains the power to incriminate individuals and have them jailed. This strongly contravenes the basic principles our legal system has been based on for years and certainly contravenes any concept of the rule of law.

Stop and search powers

There are a number of pieces of legislation extending the powers of police to stop and search, many of them at the state level, the most recent being in NSW, introduced during the recent racial violence.

The military also has powers to act in the civilian area under certain conditions. These powers include shoot-to-kill, if someone flees.

Application to trade union area

Apart from the possible applications to legitimate trade union activities of the “anti-terrorism” laws, there is legislation which has similar anti-democratic or police-state features that applies directly to trade unions and workers in the building and construction industry. The Building and Construction Industry Improvement Act gives officials from the Australian Building and Construction Commission the power to interrogate workers in secret, deny them the right of the lawyer of their choice, suspend their right to remain silent. Individuals who fail to attend, refuse to answer questions even though it may incriminate them, or fail to produce demanded documents, face jail sentences of six months. It is also an offence to reveal the contents of any questions, answers given or documents seen, to anyone outside the hearing.

This legislation was used when Perth workers were interrogated in November 2005. The Commission barred the same lawyer representing more than one person from the same building site during interrogations, leaving at least one worker without representation. If it continues with that approach, there are building sites with more workers than there are lawyers in Perth! Workers and their unions face massive fines for breaches of the legislation which virtually outlaws industrial action.

The government is criminalising the basic democratic rights of industrial and political action. It is attempting to crush all dissent, freedom of speech and is gagging all opposition to its policies and promotion of pro-people policies.

As the conservative former Liberal Prime Minister Malcolm Fraser warned: “These are powers whose breadth and arbitrary nature, with lack of judicial oversight, should not exist in any democratic country. If one says, ‘But they will not be abused’, I do not agree. If arbitrary powers exist they will be abused.”

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