Communist Party of Australia

We acknowledge the Sovereignty of the First Nations’ Peoples.

Home


The Guardian

Current Issue

PDF Archive

Web Archive

Subscribe

Press Fund


CPA

About Us

Why you should ...

CPA introduction

CPA Policies

CPA statements

Contact Us

facebook, twitter


Major Issues

Indigenous

Unions

Health

Housing

Climate Change

Peace

Solidarity/Other


What's On

Resources

AMR

Links


Shop@CPA

Books, T-shirts, CDs/DVDs, Badges, Misc


 

Issue #1924      July 20, 2020

War on democratic rights – Part 2

Under bourgeois democracy, democratic and human rights are not a given, they have to be fought for and constantly defended. Part 1 of this series on democratic rights, provided examples of the attack on democratic rights carried out under the guise of fighting terrorism (Guardian #1923). Part 2 provides an overview of the erosion of a number of other democratic rights that are considered essential to a democratic society.

Home Affairs Minister Peter Dutton described lawyers defending asylum seekers as “un-Australian.”

Abuse and torture of children

The ABC Four Corners’ exposé of the treatment of children in the Don Dale Youth Detention Centre in the Northern Territory revealed the use of violence, torture, and solitary confinement against children aged from ten to sixteen years of age. It also exposed the racist nature of incarceration in the NT, with more than ninety per cent of the children incarcerated being Indigenous at the time. Today 100 per cent of its detainees are Indigenous children.

The ABC report showed video of teenage boys being assaulted, stripped naked and tear-gassed by the very people whose care they were in. They were being held in isolation for up to seventy-two hours with no running water. There were instances of boys being hooded and shackled to a chair.

The Royal Commission that followed made a number of recommendations, including that the Centre be closed. These have largely been ignored, including raising the age of criminal responsibility to twelve, and the age of detention to fourteen years old. The centre is still to close.

Co-chair of the Aboriginal-led justice coalition Change the Record, Cheryl Axleby, said it was disappointing the NT government was reintroducing “its failed ‘tough on crime’ policies that the Royal Commission criticised and ignoring the real solutions that could make our children and communities safer”.

This approach was “out of step with the rest of the world which is following medical and expert advice by raising the age of criminal responsibility, keeping children out of prison, and keeping them connected with school, health services and supporting families to stay together,” Axleby said.

Such appalling treatment of youth is not confined to Don Dale or the Northern Territory. There have been a number of reports of children being held in adult prisons and deaths in custody in several states.

There is currently a bill before Parliament to ratchet up ASIO’s powers in relation to “terrorism.” The bill expands the types of cases where ASIO can intervene and use its police powers to include espionage, politically motivated violence, and acts of foreign interference. It also includes a reduction in the age of children from sixteen to fourteen who can be taken in for questioning and held for up to two weeks without charge.

Indigenous persecution

Discrimination against Aboriginal and Torres Strait Islander peoples remains rife. Not only are children being incarcerated at some of the highest rates of anywhere in the world but they are still being removed from their families.

There have been more than four hundred deaths in custody since the end of the Royal Commission in 1991 and there has not been a single conviction. They have been taken into custody for as little as alleged shop-lifting or drunkenness, and paid with their lives. Suicides are also far too common as a result of their treatment. Assimilation and genocide are still being practised today, albeit at times in less overt forms than fifty years ago.

The Northern Territory Intervention was used to stigmatise remote communities and control their lives. The basics and cashless cards – forms of income management – denied social security recipients control over their income. This was enforced without consultation with the communities affected.

The death of Floyd George in the USA that sparked the Black Lives Matter movement in the US has also seen widespread and ongoing protests in Australia. There is a determination to end racism and to win justice for Indigenous Australians amongst a growing number of non-Indigenous Australians.

Arbitrary detention

Cruel and fascistic is no exaggeration when it comes to the inhumane and punitive detention of asylum seekers in offshore concentration camps. The UN refugee agency, UNHCR, has previously described the conditions in the offshore camps as torture. Their incarceration is arbitrary, no charges have been laid, no court has handed down a verdict or sentence. A government minister has ultimate power to decide their fate.

Legislation, currently before the Senate, seeks to amend the Immigration Act to give the Minister the power to arbitrarily declare certain things as prohibited in relation to detention facilities and detainees. The legislation cites specific examples including mobile phones, SIM cards, computers and other electronic devices.

Prohibited things can be searched for and seized without a warrant, including the use of strip searches. The power to conduct searches of facilities (including detainees’ rooms and personal effects), without warrant or suspicion that there is a prohibited thing at the facility can also be conducted with the assistance of detector dogs.

Many of these asylum seekers are victims of trauma or torture or have diminished mental health as a result of prolonged and indefinite detention. Some detainees have been held for as long as twelve years. Their phones are their only connection to families and the outside world. This is yet another callous, inhumane, and punitive measure.

The power to search a person, the person’s clothing and any property under their immediate control may be exercised whether or not an officer has any suspicion that the person has a prohibited thing, a weapon, escape aid or visa cancellation.

The UNHCR, in a submission to the Senate Legal and Constitutional Affairs Legislation Committee on 11th June this year, recommended that proposed amendments to Migration Act not be passed.

These measures are yet another contravention of UN Conventions to which Australia is a party – the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (together, the Refugee Convention), as well as the 1954 Convention relating to the Status of Stateless Persons.

“The right to seek asylum, non-penalisation for irregular entry or stay, the rights to liberty and security of person, and freedom of movement and settlement – mean that the detention of asylum-seekers should be a measure of last resort, with liberty being the default position,” the UNHCR said in its submission.

“Detention for the sole reason that the person is seeking asylum is not lawful under international law.”

As the above example illustrates, the Australian Coalition government treats international law with contempt.

Right to protest

The right to protest, to organise, hold picket lines, speak out, and to take other forms of action are basic human rights, officially recognised by Australia under international law, but not in practice. There has been a considerable erosion of these basic democratic rights over recent decades by state and federal governments.

Increasingly attempts are being made to outlaw protest actions. Not just rallies, but also community pickets if they relate to an industrial dispute.

For example, in NSW police have excessive powers to stop, search, and detain protesters and seize property as well to shut down peaceful protests that obstruct traffic. An offence of “interfering” with a mine or exploration site carries a penalty of up to seven years’ jail. At the same time resource companies that illegally mine are up for a maximum penalty of $5,000.

This and other legislation give police powers that go well beyond those required to maintain law and order. The aim is to protect the economic interests of corporations, in particular, mining, forestry, and developers.

The rights of communities, residents, and farmers are increasingly being overridden by fast-tracked approvals with scant regard for environmental consequences, sacred sites or those who are affected.

Big Brother

Big Brother is getting bigger and bigger.

Legislation passed by the Howard government is wide open to abuse with reportage of ASIO or police actions on “security” matters illegal and punishable by 10 years in jail – all in the name of fighting terrorism. Their detention, the questions, their answers are all top secret security matters, even if the person is not under suspicion, but might know something that might be of use to ASIO.

The Abbott government passed a bill expanding the definition of terrorist organisation; lowering the threshold for arrest without warrant for “terrorism offences”; and extending existing measures that were due to expire, including control orders, preventative detention orders, police stop, search and seizure powers and ASIO questioning and detention powers. (See Part 1 in last week’s Guardian)

METADATA RETENTION

Legislation passed in 2015 requires the retention of users’ metadata, including internet-browsing histories, by communications providers such as Telstra and Google’s Gmail.

The bill was touted as being necessary for national security. The legislation named 20 security-related agencies as having the power to request metadata, but the Communications Alliance reports at least 80 government agencies requesting metadata. They have used a backdoor in the legislation.

The list of organisations seeking metadata under the 2015 legislation extending beyond the named agencies includes Centrelink, the Australian Building and Construction Commission, NSW Family and Community Services, and anti-corruption bodies.

It is hard to believe that all of these requests relate to suspected terrorism offences. They appear to have more to do with hounding trade unions in the construction industry and pursuing social security recipients – a very dangerous encroachment on democratic rights and abuse of the stated intent of the legislation.

At the time of the 2015 legislation the Guardian warned that one of the uses of the legislation would be to pursue whistle blowers, journalists and their sources as they exposed fraud, corruption and other information in the public interest.

SURVEILLANCE

The Telecommunications Interception and Access Act (TIAA) requires internet service providers to store the contents of all electronic communications for two years and to make them available to ASIO and other government agencies. The TIAA originally applied to the Australian Federal Police and national spy agency ASIO. Today it gives extraordinary surveillance and other powers to more than 20 agencies.

Much of the data collection remains unregulated, some of it is carried out by private agencies on behalf of government, and the public are unaware of what records are kept on their personal lives.

The government claims it is necessary to give ASIO and other security and policing bodies greater surveillance powers to counter terrorism and pursue criminals, in particular paedophiles. Historically, the focus of ASIO spying has been on communists, trade unionists, and other political activists who might challenge the system.

Successive amendments to telecommunications, spy and other legislation have and continue to weaken protection and accountability. This will not change. The federal government is not interested in providing those protections. It is assisting the corporate sector in its collection and use of private information.

The Australian Privacy Foundation put forward four basic principles regarding surveillance: Justification, Proportionality, Controls, Accountability. Unfortunately, all of these are missing in the battery of ASIO legislation.

Amendments to the National Security Legislation passed with bipartisan support in 2014, give ASIO the power to copy, delete or modify data held on any computer covered by a warrant. The Act allows for ASIO to store the content of communications – going well beyond the storage of metadata by internet providers.

The Senate was expected to debate the final bill before they had been given a copy, not the first time such a stunt has been pulled by the government.

There is nothing in the legislation that would prevent ASIO and other agencies using these powers against communists, trade unionists, student groups and others, who might express dissent or question the capitalist system.

These powers are being introduced with longer term aims in mind, such as suppressing any dissent to the government’s austerity programs before it can take hold and pose a threat to the ruling class and the capitalist system.

Encryption

The freedom of journalists and whistle blowers to act without fear and the right of the public to know go to the heart of any democratic society. So too do the rights to privacy, freedom of speech and religion – all of which are threatened by the 2015 bill on encryption.

The metadata bill was only the thin edge of the wedge, relating to record keeping of communications. The decryption bill followed. Its aim is to provide ASIO, the police and other agencies with access to the content of private, encrypted communications.

The bill applies across-the-board to businesses and government departments, advocacy and community groups and individuals. It purports to be targeting terrorist and serious criminal activity but the wording is so open and it provides for so little accountability, that it could be used for any purpose.

The aim of the legislation is to enable the police to be able to decrypt or decode and gain access to encrypted communications. To do this, it is necessary for the technology company to insert software capable of breaking the encryption – a backdoor way in.

ATTACK ON WHISTLE BLOWERS

The freedom to criticise governments and expose criminal acts of the state is a basic democratic right, one that is also being undermined. Whistle blowers are increasingly coming under attack when acting in the public interest and revealing state crimes. So too are their legal representatives and the journalists who report such crimes.

Julian Assange is facing extradition to the US. His “crime” was to publish information that he received that was in the public interest. The recent Federal Police raids on the ABC and a News Ltd journalist’s home are two other examples.

Witness K in the East Timor bugging case and their legal representative Bernard Collaery are being prosecuted. Their cases are shrouded in secrecy. It is impossible for Collaery and Witness K to defend themselves. Under Australia’s federal National Security and Information Act public accountability and transparency are denied. The court hearings will be held in camera.

The legal processes being used to prosecute Collaery and Witness K bare no resemblance to justice. Under the Act, the defendants have no right of access to the prosecution case, making it impossible to respond to the charges. The case constitutes a gross injustice, an attack on the legal profession as well as the defendant, and whistle blower.

It is in the public interest to know if our government is committing international crimes or carrying out immoral and unethical acts. Transparency and accountability are central to any democracy, even a bourgeois or capitalist democracy.

The government must act to protect whistle blowers and their sources if governments and other public agencies and corporations are to be kept accountable.

Undermining the judicial system

It is not just the legal profession that is increasingly coming under attack. The judicial system is also being white-anted in several ways.

Firstly, government legislation is increasingly introducing mandatory jail sentences, thus removing the judicial powers of judges to consider the circumstances and use their discretion.

The Family Court is in the process of being destroyed, breaking down the specialised body of accumulated expertise, which is of particular benefit to women and children.

The judiciary exists to interpret the law, pass judgement in non-jury cases and hand down sentences following a guilty verdict. Governments exist to make the laws. This separation of powers is seen as an integral component of Australia’s claim to be a democracy.

Increasingly, federal ministers have been criticising judges, and putting them under political pressure. Home Affairs Minister Peter Dutton, for example, described lawyers defending asylum seekers as “un-Australian.”

Commenting on Dutton’s statement, Barrister Laura Neil said, “Every time Ministers attack lawyers who are defending vulnerable clients, with cries of ‘lawfare’ and the like, people need to understand that their government is in fact seeking to ensure that it can break the law with impunity.”

Dutton in one comment in support of the ASIO legislation said that he would ensure that agencies dealt with threats from “right-wing lunatics or left-wing lunatics.” He did not specify what he meant by “left-wing lunatics.” It is clear that he is not referring to genuine terrorists. Dutton’s concept of “terrorist” probably includes militant trade unionists and communists.

The above is by no means a comprehensive list of the encroachment on democratic rights that is underway. The above list does not include the extensive loss of trade union and workers’ rights which has been reported on in the Guardian on numerous occasions.

The trend towards a police state is accelerating, with governments and their agencies already having an arsenal of powers to hit the working class with when they so choose. This gives the working class and its political and mass organisations little time to build a united front to defeat the laws and restore basic human rights before it is too late.


Loss of democratic rights

Some trends

In the name of fighting terrorism

  • Silencing dissent
  • Gagging of media – raids on homes and workplaces
  • Lack of transparency and public accountability
  • Reversal of onus of proof
  • Replacement of proof with suspicion “on reasonable grounds”
  • Arbitrary detention without a court order
  • Definition of “terrorism” so broad that it could rope in industrial action by groups such as nurses, police, etc.
  • Proscription of organisations and blocking of financial support
  • Hefty punitive provisions with massive fines and jail sentences
  • Broad definitions of sedition and treason that could cover almost any action or criticism of the system, government actions or challenges to status quo
  • Prohibition and punishment for advocacy of “terror” – ie silencing dissent
  • ASIO given the power to intercept email, voicemail and MS messages without a warrant
  • Reversal of onus of proof
  • Presumption of innocence turned on its head
  • Bypassing the judicial processes
  • Increased ministerial, ASIO and police powers
  • Denial of the right to silence and not self-incriminate
  • Denial of right to be heard
  • Denial of right to access of “evidence” being used
  • Denial of right to lawyer of own choosing
  • Shift to mandatory sentencing, removing the discretionary powers of judges
  • Freedom of speech denied
  • Guilt by association
  • ASIO, an intelligence organisation given police powers
  • Detention without charge
  • Shift of powers from courts to executive government (Attorney General or Home Affairs Minister)

Other measures

  • Right to strike effectively outlawed
  • Persecution of whistleblowers
  • Outlawing of pickets by unions
  • Outlawing of industrial pickets by community groups
  • Press freedom under attack
  • Stop and search powers without warrant
  • Children in solitary confinement
  • Torture
  • Control and income management
  • Racism
  • Lack of transparency and accountability

Next article – Glebe Youth Service receives Chinese surgical masks

Back to index page

Go to What's On Go to Shop at CPA Go to Australian Marxist Review Go to Join the CPA Go to Subscribe to the Guardian Go to the CPA Maritime Branch website Go to the Resources section of our web site Go to the PDF of the Hot Earth booklet go to the World Federation of Trade Unions web site go to the Solidnet  web site Go to Find out more about the CPA