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Issue # 1425      26 August 2009

New terror laws

War on democracy

The false imprisonment and appalling treatment of an Indian doctor working in a Gold Coast hospital in 2007, demonstrated beyond doubt that the Howard government’s terrorism laws needed repealing. In the name of “war on terrorism”, the Howard government passed more than 20 bills curbing and removing long-standing basic democratic rights. The laws were wide open to abuse, both by police and government ministers. Now, instead of repealing these laws, the Rudd Labor government is about to toughen them.

Without a single shred of evidence, Dr Mohamed Haneef was detained for 11 days without charges before appearing before a magistrate who ordered his release. He was denied contact with his wife and subjected to special conditions as a “terrorist”, including solitary confinement for 23 hours a day. Workplace Relations Minister Kevin Andrews revoked his 457 temporary work visa on “character” grounds, because he “reasonably suspected” that Haneef had an association with people involved in terrorism.

Under the terror laws, the presumption of innocence is turned on its head, the right to silence is denied and there is no right of access to the “evidence” being used as a reason for detention. Suspicion, hearsay and rumour replace proof, “association” is a crime or grounds for suspicion, and the normal judicial processes are bypassed.

It is history now that Dr Haneef was innocent and there was not a shred of evidence to justify the “suspicions” harboured by police or government ministers. Lies rather than facts prevailed. Their suspicions were unfounded, but the declaration of a suspicion was adequate for arbitrary detention and denial of basic, internationally recognised, legal rights.

Arbitrary detention

Labor’s Attorney-General, Robert McClelland, is planning to introduce an eight-day limit to arbitrary detention: “To enable the law enforcement authorities to have that time and balance it against the rights of individuals – that we hope our society cherishes – and that is the right not to be detained without charge,” he said.

Under common law, a person must be brought before a judicial officer following arrest as soon as reasonably practicable. They may be detained only for the purpose of being brought before a judicial officer to be dealt with according to law. A reduction from 11 to eight days does not restore that right. Arbitrary detention remains on the books.

The government is also proposing that police be given powers to enter and search premises without a warrant “where it is suspected, on reasonable grounds, that there is material relevant to a terrorism offence and there is a threat to public health of safety”. This is another move to exclude accountability through appearing before a judge or magistrate.


The Howard legislation went far beyond any measures required to counter terrorism. The references to terrorism were a smokescreen for the removal of the democratic rights of trade unionists and other political activists who organise and protest against the actions of governments.

The definition of a terrorist act includes both actions or threats made “with the intention of advancing a political, religious or ideological cause” which cause “serious harm to a person” or “serious damage to property”; or “create a serious risk to the health or safety of the public”; or “has the intention of coercing or influencing a government”.

The Criminal Code 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 is 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.

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.

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.

Labor’s proposed changes widen that scope and increase the subjectivity in interpreting the definition of terrorism. The word “cause” is to be replaced by “is likely to cause”. The police would then only have to argue that a picket line is “likely to cause” serious harm to person or serious damage to property.

The government is also expanding the definition of a terrorist act to include threats that cause psychological harm as well as physical harm, which opens up new avenues of potential abuse.

McClelland’s amendments do nothing to prevent a repeat of the Haneef case or remove even the worst features of the Coalition’s legislation. Rather they build on and refine those of the Coalition’s Attorney General Phillip Ruddock. Labor is also attempting to extend ASIO’s police powers, a process also commenced by the Coalition.

Greens bill

The Greens, in June moved a bill in the Senate to amend and repeal some of the most repugnant and extreme provisions of the Howard government’s “War on Terror” legislation.

In his second reading speech to their Anti-Terrorism Laws Reform Bill 2009, the Greens Scott Ludlam said: “Some of the laws identified in this bill offended our core democratic principles by using definitions and terminology that was simply too vague and broad such as the bizarre ‘reckless possession of a thing’.

“Other laws curtailed freedom of expression and association; others compromised the rule of law and the principle of fair and open trials. Such laws simply need to be removed, to allow the solid criminal laws and procedures to continue doing the job they did before 2001 in prosecuting and penalising anything that can be sensibly described as terrorism.”

Labor’s proposed legislation fails to do this. The Greens’ bill deserves wide support.

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