Is terrorism being exaggerated to justify new powers? Marian
Wilkinson and David Marr report.
Twenty-four hours after the country's leaders agreed to
draconian counter-terrorism laws this week, the Attorney-General,
Philip Ruddock, was playing down media claims that ASIO believed
there were 800 would-be suicide bombers living in Australia.
As minister responsible for ASIO, Ruddock described the figure
as "highly speculative". So did Mick Keelty, chief of the federal
police. But the story helped create an atmosphere of looming danger
to bolster government claims that these laws are necessary in the
wake of the London bombings.
What deeply troubles some Muslims is that the 800 figure has not
been publicly denied by the new head of ASIO, Paul O'Sullivan.
Government sources insist he was not responsible for this newspaper
claim. Nor did he use the figure during his long briefing to the
premiers on Tuesday about the terrorist threat.
But O'Sullivan's failure to disown the figure publicly has left
some Muslim leaders worried that under its new chief, ASIO is
inflating the threat of terrorism to justify laws that will have a
wider impact than necessary.
The laws will allow preventive detention without charge for up
to 14 days, control orders - including house arrest - for up to 12
months, plus wide search and seizure powers.
"I think it's got a lot to do with Paul O'Sullivan taking over,"
says Waleed Kadous of the Muslim Civil Rights Advocacy Network. "We
don't know a lot about O'Sullivan, we have not seen him."
Kadous notes that O'Sullivan's predecessor, Dennis Richardson,
was willing to debate ASIO's concerns not only in the media but in
forums such as the Human Rights and Equal Opportunity Commission.
He points out that Richardson always said he had sufficient powers
to do his job.
O'Sullivan has taken a low profile since his appointment, at the
time of the London bombings. A new chief of ASIO and the tough
powers outlined this week are unnerving politically active Muslims.
"They're just reeling and working out what to do next," Kadous
So is the nation's legal profession. No key legal figure outside
government has emerged to defend the new anti-terrorism regime.
Many believe the Prime Minister and the premiers have been
"spooked" into undermining fundamental human rights Australians
have taken for granted until now.
"I am not prepared to believe without good evidence that this
country is in such danger that it has to contemplate interning its
own citizens," says a leading Sydney QC, Ian Barker. "Why are we
expected to accept that everything an intelligence agency says is
true, when we know it's not true. On past experience, it's a very
Police, at the behest of ASIO, are expected to apply for control
orders over some of the 20 or more radicals who have been
identified as training, at some stage, in one of many terrorist
"Without putting numbers on it and without giving precise
details as to who … we may have identified that there are
people in Australia who trained with terrorist organisations,"
Ruddock said this week.
Those include men who may have trained in Bosnia, Algeria,
Pakistan or Afghanistan. They need not have trained in terrorist
techniques. Under the new laws, the definition of "training"
includes learning first aid and truck driving. And it will draw in
those who undertook training before doing so was against Australian
Somewhere at the top of ASIO's list is likely to be the former
Guantanamo Bay detainee Mamdouh Habib. Australian security believes
he trained in an al-Qaeda camp in Afghanistan, an allegation Habib
has denied. ASIO's intelligence against him has never been tested
in public. Under the proposed control orders, the Government could
apply to restrict Habib's movements, his use of the internet and
the phone, and block his access to the media - all without charging
him or proving a criminal case against him.
The federal police will have to persuade a judge that a control
order is "reasonably necessary and reasonably appropriate and
adopted for the purpose of protecting the public from a terrorist
act". These orders are to be granted on "the balance of
probabilities", not a criminal standard of proof beyond reasonable
The premiers and John Howard repeatedly stated after the summit
this week that there were sufficient safeguards to protect a
suspect's civil rights. But it is unclear whether Habib - or any
other suspect - would be effectively able to challenge the
intelligence case against them.
Ruddock said he would invoke the National Security Information
Act where necessary. That will allow him to direct the court to
withhold any sensitive information that could jeopardise national
Robin Banks, of the Public Interest Advocacy Centre, says: "You
have to prove there is no basis for the order against you, which is
pretty hard when you don't know the evidence. There is nothing to
appeal against. There is no evidence to challenge. All a lawyer
would be able to do is go back to first principles and argue the
client is a good person.
"Is it just a farce to pretend to represent such people? I can't
see that I could fulfil my professional obligations to do the best
I possibly can for my client if the evidence is withheld."
Howard and the premiers insisted that those caught up by the
laws will have the protection of "judicial review". This would be a
safeguard to allay the fears of a country facing a radical system
of peacetime internment.
Those detained for up to 14 days can ring a family member and
employer "for the purpose of letting them know they are safe but
are not able to be contacted for the time being".
But lawyers worry that promises of "judicial review" will not
amount to a real safeguard for those detained. Barker says: "It
doesn't make oppressive laws any less oppressive because you
involve judges somewhere in the process. And if I were a judge I
would think very carefully before lending my name to an oppressive
Marian Wilkinson and David Marr
Sydney Morning Herald 1 October 2005