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Issue #1923      July 13, 2020

War on democratic rights

Part 1

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 has been preparing for such a time in Australia and globally by accumulating an armoury of weapons to be used such actions. They can be expected to hit the working class hard as corporations seek to restore their profitability as they come out of the COVID-19 induced recession.

Over the past four decades there has been an insidious erosion of bourgeois democratic rights. Many fundamental common law and statutory principles and rights have been replaced by draconian and increasingly fascistic legislation.

The process commenced with the Howard Coalition government in the late 1990s and has continued ever since, reaching previously unimaginable extremes. Due to the gradual build-up, rather than a big hit at once, many of these new laws have slipped through rousing relatively little public outcry or receiving much if any attention in the mass media. The legislation has had the bipartisan support of the two major parties with only the Australian Greens and the occasional cross-bencher opposing it.

Much of the legislation was couched in terms of a “war on terrorism,” some of it as enforcing the “rule of law,” such as the laws attacking the rights of trade unions, workers, and political activists. Another claim was that the laws were necessary to protect our “values” and “our way of life,” when in fact it was doing exactly the opposite.

The aims include suppression of dissent, militarisation of society, all pervasive surveillance of society, and control of the actions of individuals across society. It is a work in progress, and we have not seen the end point by any means as far as the capitalist state is concerned. The ultimate aim is to defend the capitalist system and monopoly capital.

Many of the laws breach United Nations Conventions to which Australia is a signatory, and hence bound to adhere to under international law. These include the Conventions on the Rights of the Child; Elimination of All Forms of Racial Discrimination; Civil and Political Rights, Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Status of Refugees; Civil and Political Rights.

Likewise, changes to the industrial relations system breach a number of International Labour Organisation Conventions, including the Freedom of Association and Protection of Association; the Protection of the Right to Organise; and the Right to Strike.

“Terrorism”

Since the collapse of the Twin Towers on 11th September 2001, there have been more than eighty pieces of “anti-terror” legislation restricting democratic rights, some of them extremely draconian and dangerous. On a number occasions, even more repressive provisions have been added to this legislation.

In addition, the trade union movement and workers have been hit by wave after wave of laws attacking their rights. Some of these laws, such as the ones governing the building and construction industry mirror provisions found in the terror legislation, in effect criminalising legitimate trade union activity.

The terror and a number of other laws contain many serious breaches of key democratic and long-established legal principles. These trends are of extreme concern as they take Australia towards becoming a police state.

“War on terror”

Amendments to the Criminal Code include a definition of terrorism for the first time in Australian law. The Code states that 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.

It is not hard to imagine how it could be applied to trade union, peace or environmental activists. Such actions are usually political and often seek to persuade (coerce) a government to take certain action. Self-defence when attacked by a provocateur or opposing force could cause “serious physical harm” or “serious damage to property.”

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. But who judges intent? The maximum penalty is life imprisonment. Even if the sentence is shorter, a worker would be banned from holding an official trade union position for five years.

“Sedition”

Under the Crimes Act, the definition of the criminal offence “seditious intention,” is now so broadly defined as to cover almost any dissent or challenge to status quo. It includes intent:

  • to bring the Sovereign into hatred or contempt
  • to urge dissatisfaction against the following:
  • the Constitution
  • the Government of the Commonwealth
  • either House of the Parliament.

It is also 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.”

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 sedition.

The scope of this definition has little to do with terrorism. Mere criticism of the Queen, the Constitution, Government, Parliament or law could carry a jail sentence of up to seven years. Does that make a banned protest against the Australian Building and Construction Commission an act of sedition?

Suspicion replaces proof

Certain federal courts (the Federal, Family or Federal Magistrates Courts) may issue Control Orders 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 the request and their lawyer are not informed of the request, and that person has no right to appear in court or opportunity to challenge the reasons given for the request for an order. Orders could be based on hearsay, suspicion or rumour.

Proof is not 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 believes that the Control Order “would probably substantially assist in preventing a terrorist act”.

The whole process is closed and there is no public accountability whatsoever. Once a Control Order has been issued, restrictions can be applied. These include the possibility of:

  • House arrest for up to twelve months at a time (limit is three months for 16-18-year-olds) with unlimited renewals possible
  • Unlimited detention – no charges, no evidence, no trial, conviction required
  • Prohibition on being in certain places
  • Wearing a tracking device
  • Not communicating with specified persons (this could include the person’s lawyer, family member or journalists)
  • prohibition on using specified telecommunications technology including internet and telephone.

Five years jail is the penalty for a contravention. It is possible after the Order has been imposed to apply to a court to have it revoked, but the Order remains in place during that process. This might mean not being able to communicate with your lawyer who could assist in your application or acquire proof by such means as the internet to gain evidence for your case.

Hence the subject of the Order could be denied access to basic rights for self-defence and even worse than that, there is no requirement in the Act to inform them of the reasons for the orders being issued!

Bypassing judicial process

Preventative Detention Orders (PDOs) enable a person to be held in a jail without charge for up to fourteen 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 deemed necessary to preserve evidence of a terrorist attack that occurred in the last 28 days.

A judge or retired judge, operating outside of the court system in a personal capacity (!), can issue a PDO at the request of a police officer. The officer can choose the judge! The requirement to be 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.

Political interference

The usual separation of powers – government and justice system – are ignored in a number of these provisions. The Home Affairs Minister, for example, has considerable powers in regard to illegal and arbitrary detention and abuse of asylum seekers.

The Attorney General, a member of the government, plays a role in vetting applications for Control Orders, sidelining independent bodies such as the Director of Public Prosecutions or a court. The Attorney General’s written consent is also required to commence sedition proceedings.

ASIO powers increased

ASIO is officially an intelligence organisation but it has been given police powers to arrest and issue warrants.

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.

ASIO has been given police powers to question and detain anyone if they merely believe it would help them gather intelligence on a “terrorism” offence. The definition of a terrorist offence so broad, that 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.

Next week in Part 2: freedom of speech, torture, solitary confinement of children, surveillance, right to protest, and land rights.

Next article – Free the 9 blocks

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