The Guardian March 13, 2002


New spy laws threaten Australian public

by Peter Mac

You may have been wondering why no action appears to have been taken over 
the tapping of the Maritime Union of Australia's phone system by the 
federal Defence Signals Directorate (DSD) during last year's "Tampa" 
crisis. (Previously this organisation was not permitted to pass on 
information to the government concerning  i.e. spy on  Australian 
citizens.)

The answer is that prior to the Federal election the Howard Government 
managed to quietly pass a part of its new spying legislation to enable the 
communications intercept to be carried out legally. The new law fails to 
protection for Australian citizens against surveillance by the DSD.

This legislation is part of a "package" of new provisions which the 
Government claims is necessary to combat terrorism, but which would 
actually have the effect of providing government agencies with 
unprecedented power to override democratic rights in Australia.

The "package" includes the Security Legislation (Terrorism) Bill, the 
Criminal Code (Anti-hoax and Other Measures) Bill, and the Customs 
Legislation Amendment (Border Security) Bill.

The bills are amazing for the breadth of their potential effect because of 
their failure to clear definitions for suspects or culpable activities. For 
example, it allows the DSD to intercept the communications of Australians 
if their activities are seen to affect national security, foreign relations 
or even simply the nation's economic wellbeing!

The former legislation restricted the nature of the offence to that which 
involved serious crime or threats to personal safety.

The Government has denied any intention of using the legislation for 
arbitrary electronic surveillance of its own citizens, but the Tampa 
crisis has demonstrated clearly that it could relate to a huge range of 
activity and virtually gives the government "carte blanche" to spy on 
anyone.

One ominous indication of the degree of authority which the new legislation 
conveys is the refusal of DSD officials to divulge the rules regarding the 
privacy rights of Australian citizens at the time of the "Tampa" crisis, on 
the grounds that this is classified information.

Proposed amendments to the Telecommunications (Interception) Act would 
extend the area of intrusion into people's private lives. It permits ASIO, 
the police and other authorities to read personal e-mails.

The Suppression of Financing of Terrorism Bill would allow the government 
to prevent financial support reaching the families of those broadly defined 
as "terrorists".

The Howard Government has defined terrorism as a violent attack, or the 
threat of a violent attack, "intended to advance a political, religious or 
ideological cause which is directed at or endangers Commonwealth 
interests."

As previously reported, the Espionage and Related Offences Bill would give 
ASIO new state police powers to arrest and detain suspects for up to 48 
hours, without access to lawyers, friends, family or employers.

Failure to respond to interrogation within this period would be treated as 
a criminal act carrying a maximum penalty of five years' imprisonment. The 
legislation provides no definition of limits to the means of interrogation.

The presumption of innocence is removed and it is up to the suspect to 
prove his or her innocence. The legislation also contains penalties of up 
to two years' imprisonment for "whistleblowers" who leak government 
information.

Previous legislation also provided penalties but carried a rider to the 
effect that those leaking information could avoid the imposition of 
penalties if they could provide a convincing argument that the action was 
in the public interest. That qualification is removed in the proposed 
legislation.

If the legislation had been operable at the time, the person who alerted 
the media to the Tampa crisis (and for that matter, to the role of 
the DSD in the drama) could have been accused of releasing government 
information and arrested, detained incommunicado, interrogated, and 
possibly imprisoned for up to two years.

If the government had successfully argued that the issue was one of 
national security (which it claims), the sentence could have been up to 25 
years.

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