Australian Civil Liberties Union

Your Rights 2005

Chapter 20


Anti Terrorism Laws
War on Terror



Civil liberties have been under threat from a variety of sources in recent years. No less than 17 different Acts of the Federal Parliament have been passed since the attack on the World Trade Center in September,2001,in response to an overstated terrorist threat. The combined effect of these Acts is to restrict trial by jury , bail, open courts, and the right to a lawyer of your choice, and to extend the powers of the Federal police and Security Agencies to tap phones and access emails and text messages. Most of the Acts have no sunset clause or provision for periodic review by Parliamentary committees. Various Acts have been passed by State Parliaments restricting traditional civil liberties, for instance by giving police the right of surreptitious entry to private premises to access computers and private files. Such Big Brother extensions of power have a chilling effect on freedom of speech.

The views of the ACLU in relation to such laws were set out in submissions to Parliamentary committees, in letters published in "The Age","The Herald Sun", The Australian" and in several TV news items.

A proposal that the law relating to foreign control of our media, and preventing media groups owning both a TV station and a newspaper in a capital city may further increase the already high level of concentration of media ownership which would lead to fewer outlets for the expression of dissident opinions (see ACLU website and "Your Rights", 2001)

Threats of legal proceedings (as occurred when the ABC tried to stop the distribution of "Your Rights" 1998) and the issue of proceedings by wealthy corporations such as Gunns Timber Tasmania are designed to further inhibit freedom of speech. Gunns issued proceedings in late 2004 against 20 defendants including the Wilderness Society who are opposed to the logging policies of Gunns. Gunns claims that the proceedings are not designed to stifle legitimate protest but to protect its economic interests against what it claims are illegal activities. A book by the Vice President of Free Speech Victoria, Brian Walters, "Slapping on the writs" has documented the use of litigation by powerful groups to stifle freedom of speech.

The 216 page writ claims $6.3 million, including a claim for aggravated or exemplary damages. The Gunns writ reflects a tendency for environmental issues to be tested in the courts through claims for damages rather than in the "court" of public opinion. The action by Otway forest environmentalists against forest workers and their union is still before the courts, the Humane Society International is trying to halt Japanese whaling in Australian waters, and the sheep industry through Wool Innovations Australia has started legal proceedings against People for the Ethical Treatment of Animals to halt its protests against the existing live sheep. These actions are commenced by one side of a political dispute to punish opposing points of view. An action by the food chain McDonalds against 2 of its critics, after a trial of 33 court days, led to the verdict against the defendants of 60,000 pounds but also led to much adverse publicity against McDonalds. Such proceedings have been described as SLAPP writs- Strategic Lawsuits against Public Participation, which in the case of the McDonald writ backfired. Environment Independents Office in Victoria, which publishes a resource kit for activists called "How to face legal threats", says that only a small percentage of threats ever proceed beyond a letter. But the Gunns case and the Sheep export case represent a real threat to the environmentalists.

Mamdouh Habib, who was accused of training with Al-Queda by U.S.authorities, but was never charged or convicted, returned to Australia on 28/1/05 after spending 3 years in detention overseas including 2 years at Guantanamo Bay. Evidence is emerging that he was subjected to physical torture and extreme interrogation techniques. The Australian Government, which did almost nothing to intercede on Habib?s behalf when he was in detention, has suggested that Habib should not be entitled to sell his story to the media, although no current law prevents such a sale. The Government has also done virtually nothing to intercede on behalf of David Hicks, the other Australian detained in solitary confinement at Guantanamo Bay. The Government has said that Habib would not be entitled to compensation for the 3 years he spent in jails in Pakistan, Egypt to Guantanamo Bay. Habib claims he received electric shocks, and was beaten, kicked and subjected to water torture at the hands of the American captors. In one instance he claims a prostitute stood over him and menstruated on him. He will be unable to travel outside Australia and will be kept under surveillance.

An action by the Islamic Council of Victoria against 2 Christian ministers led to a finding that the Ministers had contravened religious discrimination, legislation by their criticism of aspects of the Muslim faith. The ACLU has criticized this legislation in previous editions of "Your Rights" and also in submissions to Parliamentary committees, claiming it is unnecessary, threatens freedom of speech on issues of public importance, and is likely to increase, not decrease, intolerance in the community.

A new magazine, "The Independent Australian" has drawn attention to a successful attempt to prevent the screening at the underground Melbourne Film Festival, of a film video prepared by the historian, David Irving, and an unsuccessful attempt to prevent the awarding of a peace prize by the NSW Premier Mr Carr to a Palestinian activist. The magazine has also highlighted aspects of multiculturalism and immigration policies, which have been censored out of our own politically correct media. After Tampa, the Howard Government was trusted by many people to keep immigration under control, but immigration has doubled since Howard came to power in 1996 with the majority of net immigration coming from Asia. Howard listens to the Business Council of Australia and millionaires such as Richard Pratt and not to Aussie Battlers, whose jobs are placed at risk and who are forced to pay more for houses due to the influx. To subscribe to "The Independent Australian" (4 issues a year) forward $22-00 to P.O. Box 8, Essendon, Victoria 3040.

An article by Terry Lane, in the "Sunday Age" drew attention to the censorship of a display in Melbourne, setting out the suffering of Palestinians. The display was withdrawn following claims by Jewish groups that it contained inaccurate information. The Council of Australian Jewry having obtained a Federal Court order forcing the Adelaide Institute to restructure its website, is now attempting to close or force the restructuring of the website of a fundamentalist Christian Minister.


Anti Terror Laws

But by far the greatest threat to freedom of speech and civil liberties are posed by the plethora of Federal and State Acts of Parliament significantly increasing the powers of security agencies .The Acts give the agencies greater power to detain and interrogate people, and carry out surveillance conducted under the veil of unprecedented security. Mr Justice Michael Kerby of the High Court noted in a speech in November, 2004, that 17 Acts of legislation, restricting civil freedoms, had been adopted by the Federal Parliament alone since 2001. He said that the courts were the last line of defence for human rights.

An article in the "Sydney Morning Herald" (17 /11/ 04) pointed out that many lawyers were worried by the new laws. Dr David Neal, from the Victorian Bar Council, puts it this way: "the real substantive issue is whether we are giving away so much in this that the very things that we are trying to protect (will) be made the subject of governments which have an absolutely excessive power over their citizens."

Stephen Southwood, QC , the new president of the Law Council of Australia, believes governments should have looked more closely at the police powers that existed before the avalanche of post-September 11 counter-terrorism laws. "We?d probably find they were more than adequate", he says. "We've kind of abandoned too readily our existing criminal procedures and (are) potentially doing enormous damage to fundamental principles...we are in effect substantially changing the nature of our society."

Among the laws introduced since September 11, 2001, are terrorism offences, making it a crime to commit, train or prepare for a terrorist act or be a member of or support a terrorist organisation. The attorney-general, Phillip Ruddock, has a new power to unilaterally proscribe terrorist organisations; the former presumption in favour of bail has been reversed for people charged with terrorism offences; and minimum non-parole periods have been introduced for convicted terrorists.

Consorting laws making it an offence to associate with a terrorist organisation were passed despite a bipartisan Senate committee saying they were unnecessary and could trap journalists. And the intelligence agency ASIO was given the power to detain and interrogate for up to a week people aged 16 and over with information about terrorist activity.

And there are more laws on the way. Ruddock plans to introduce three more counter-terrorism bills, forcing defence lawyers to undergo vetting by the government before acting in terrorist cases, and allowing the prosecution to withhold evidence from accused terrorists and their legal team . The bills open the way for secret trials.

The Carr Government is planning to introduce covert search warrants, and increase the maximum time police can conduct bugging operations from 21 to 90 days.

In Victoria Premier Steve Bracks used the pretext of cracking down on a spate of gangland murders to introduce the Major Crimes (Investigate Powers) Bill, which will provide state police with powers like those given to the AFP and ASIO last year to secretly detain and interrogate people without trial.

Anyone could be brought before a government-appointed Chief Examiner- a US-style special prosecutor with the powers of a state Supreme Court judge. If they refuse to appear, answer questions or produce documents, they could be charged with contempt and jailed for up to five years at a time. Police Minister Andre Haermeyer said uncooperative witnesses could, in effect, be jailed indefinitely for contempt until they agreed to talk.

Not only would suspects and witnesses lose their right to remain silent, they could not decline to answer questions on the grounds of self-incrimination, thus eliminating traditional safeguards against police-state methods of coercion and torture.

Interviewees would have the right to legal representation, but the Chief Examiner, like ASIO, could prevent particular lawyers from appearing. As with ASIO?s detention regime, interrogations would be conducted in secret, with detainees and journalists facing 12 months jail if they report, or even publicly disclose, the hearings.

The War on Terror

Under a battery of laws introduced by the Howard Government, and matched by all the states, over the past three years, "terrorism" has been defined so widely that it covers traditional forms of political action and protest, including strikes, pickets and street demonstrations. Terrorism has become a crime punishable by life imprisonment, and the federal government can swiftly ban political parties that allegedly support it, and then jail their members, "informal members", supporters and "associates."

Assisted by Labor, Howard and his ministers, notably the Attorney-General, Mr.Ruddock, have utilised the September 11, 2001 terrorist attacks in the United States to introduce previously unthinkable measures. Targeted individuals can be monitored night and day, have their homes and computers secretly searched, and be hauled in for interrogation without any opportunity to notify their families or the media.

These provisions are not about protecting ordinary people from terrorism. Every conceivable terrorist act- including murder, hijacking, kidnapping, bombing and arson- was already a serious crime. ASIO and the police required no further powers- they could already tap phones, bug homes, intercept mail, hack into computers and infiltrate organisations. The underlying purpose of these ever- escalating powers is to utilise the "war on terror" to introduce repressive measures.

Professor George Williams, of the University of NSW, is concerned that most of the new laws, apart from the ASIO detention regime, do not have a requirement that they be periodically reviewed to see if they are still needed.

He also worries that some traditional protection of the Australian criminal justice system, such as press freedom to report on investigations, has been removed. "The inability to bring to light abuses (of power is) a significant infringement on freedom of speech, and if bad things are happening it undermines your ability to find out about them".

Contents of Your Rights

Australian Civil Liberties Union