On 8 September the Prime Minister introduced a 12-point plan outlining new anti-terror laws in a press release. Two weeks later he went to the Council of Australian Governments (‘COAG’) meeting with the proposals. By and large, all of the Premiers and Chief Ministers approved the measures.
On 6 December 2005, the Senate passed the Anti-Terrorism Bill (No.2) 2005. The Bill will soon become law.
The Bill was passed, despite the protests of leading legal experts, academics, politicians and civil rights groups, including AMCRAN, who carefully analysed the legislation.
There are serious human rights concerns with the legislation. It is open to abuse in its application and it does not carry the safeguards that the Prime Minister promised.
We will outline the new anti-terror laws and explain some of the practical implications of the new laws, with an emphasis on the impact on the Muslim community.
Control orders allow a person to be put under house arrest, to be forced to wear a tracking device, to be stopped from using phones or internet, or a number of other measures. If you violate a control order, you could go to prison for up to five years. Control orders can last for up to a year, or 3 months if you are between 16 and 18. But the new legislation specifically allows for "rolling" control orders; i.e., one control order finishes, and the next one begins. This means that it is possible that someone could have control orders apply to them for ten years; with control orders issued year after year after year until the legislation’s sunset clause kicks in.
The judge can make control orders if the order would substantially assist in preventing a terrorist act; or if the person has provided training to, or received training from, a banned terrorist organisation.
When control orders are issued, the police don't have to meet the usual standards of "beyond reasonable doubt" for criminal charges. It is a "balance of probabilities" test; in other words, the judge only has to believe it is more likely than not that the person meets the above criteria. Hence control orders can be seen as a "back door" to controlling what you can do, where you can go and who you can talk to – even though police don't have enough evidence to charge you with a normal offence.
What's more, it is a "guilty until proven innocent" approach. A police officer, with the Attorney General's permission, goes to a judge and requests an “interim control order”. If the interim control order is granted, then you have to go to court to argue that it should not continue for the next twelve months.
Muslim community impact: Because it's a "balance of probabilities" test, rather than "beyond reasonable doubt" test, and because the subject of the order isn't even there at the time the decision is made, there is the potential for stereotyping and racial profiling. This could lead to many innocent people being placed under control orders.
Also, the "training with a terrorist organisation" clause is retrospective, so it would apply to people who might have -- many years ago -- worked with Hamas or Lashkar-e-Taiba, before they were outlawed and before September 11. There is already a crime for "training with a terrorist organisation", but this seems to be a backdoor way to limit the freedoms of people who can't be found guilty of a crime.
The police can get a preventative detention order to hold a person in custody for up to 24 hours. This initial preventative detention order can be issued by the Federal Police alone without judicial approval. In NSW, NSW police have to go to court to get this initial preventative detention order. Police can only apply for an order if they think there is a terrorist attack likely in the next 14 days, or there was a terrorist attack in the last 28 days. In NSW, the period of a preventative detention order can be extended up to a total of 14 days, but only after you get a chance to argue against it in court.
When detained, the police can impose limits on who you can talk to. They can even stop you talking to your lawyer and your family. You are only allowed to communicate by fax, phone or e-mail, and all your communications are monitored. If you are under 18 years old, then your parents might be allowed to visit you – if police permit it. If you want to talk to your lawyer in a language other than English, then there has to be a translator there so the police can hear what you are saying. In NSW, you will be allowed to call a family member and tell them that you are being held under a preventative detention order and how long you will be held for – if you say any more, you could go to prison for 5 years. The person you call will also be prohibited from telling another person, or they could go to prison for five years also.
Muslim community impact: It is possible that in the aftermath of a terrorist attack, many Muslims will be arrested to "preserve evidence", while the police try to work out what is going on and apply a "better safe than sorry" approach to detaining people. Indeed, in the aftermath of September 11, at least 70 people (all but one Muslim) were detained using the "material witness" laws in the US, the effect of which is similar to preventative detention. This is the most conservative estimate, because of secrecy, we don't how many were detained, but some estimates are as high as 1200.
RANDOM STOP AND SEARCH POWERS
If you are in an area controlled by the federal government (for example, airports and shipping ports), then police can stop you, ask you your name, address, for proof of who you are and why you are there. Police can also search you, your vehicle or anything under your control. Police can do this if they reasonably suspect that you "might have just committed, might be committing, or might be about to commit a terrorist act." If you fail to cooperate or if you tell a lie, you could be fined up to $2,200. If the police find something that they think can be used as part of a terrorist act, they can take it from you.
In addition, the Attorney General can declare an area controlled by the federal government (airports, shipping ports etc.) to be a "security zone" for up to 28 days. This declaration of a security zone, on the grounds of "preventing a terrorist act occurring; or in responding to a terrorist act that has occurred," means police don't have to have reasonable suspicion, they can just stop and search everyone in the area.
Muslim community impact: This opens a huge door for racial profiling -- it is more likely that Muslims will be searched. Furthermore, it may cause community backlash against Muslims as people blame Muslims for being subject to these measures. There is also a particular issue for women who wear hijaab or niqaab who might be requested to remove their hijaab as part of a search. There is no requirement that the search be conducted in private.
INCITEMENT, SEDITION AND "ADVOCATING" TERRORISM
There are a number of complex measures relating to incitement and sedition. This would limit people's ability to speak openly about any armed conflict in the world, if it includes Australia or Australia's allies. For example, if a person said that "Iraqis have the right to resist the occupation of Iraq by Western occupiers," this statement could be considered seditious and would carry a sentence of up to 7 years.
Furthermore an organisation that adopted a stance such as the above, would be considered to be "advocating terrorism". Advocating terrorism is defined as “praising the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person…to engage in a terrorist act”, “directly or indirectly counselling or urging the doing of a terrorist act, or directly or indirectly providing instructions on the doing of a terrorist act”.
If that is the case, the organisation can be proscribed, which carries with it many offences. For example, being an informal member of such an organisation would carry a sentence of 10 years.
Muslim community impact: Muslims often express solidarity with their Muslim brothers and sisters elsewhere in the world, in places such as Iraq, Kashmir, Afghanistan and Palestine, and want their brothers and sisters to be free. In some cases, they express the point of view that these people have the right to use violence as a means of achieving their goals, just as the Australian Government advocated the use of violence to protect itself from weapons of mass destruction from Saddam Hussein. Such statements could now possibly be illegal under these new laws.
The new provisions for financing of a terrorist organisation mean that many innocent people trying to support worthwhile causes could end up in prison for the rest of their life. Under the new measures, if someone asks you for help collecting charity for a cause and you help them, you have to check they are not using it for terrorist causes. For example, X asks you to help him raise money for victims of an earthquake in Pakistan. You help X to raise funds, but X then gives the funds to an organisation in Pakistan that as well as helping with the earthquake, also engages in activities the government thinks are illegal. You are now guilty of a crime that could find you in prison for the rest of your life.
Muslim community impact: There is the serious potential that innocent people with a sincere intention to help others will end up in prison for having done no wrong except for having taken someone's word. Furthermore, existing anti-terror laws have seen donations to charities in Australia decrease. These laws would reduce charity even more, and would create feelings of ill-will and suspicion among the community.
Other measures in the anti-terror laws give police extensive powers to ask you to produce personal and private documents such as financial records and to find out about your travel patterns. Safeguards that ASIO have to meet when tapping phone calls and monitoring mail have also been weakened.
A coalition of lawyers, academics, policy workers and civil rights groups have written to the State Premiers and Attorneys-General outlining the serious discrepancies between what was promised at the COAG meeting and the draft legislation. You can view a copy of the letter here.
An earlier report Laws for Insecurity? A Report on the Federal Government’s Proposed Counter-Terrorism Measures details various concerns regarding the Federal Government’s proposals. It highlights the lack of justification for the laws. Among other concerns emphasised are the substantial departures from key principles of a liberal democracy, the constitutional problems, and the lack of safeguards.
The Parliamentary Library website has a special section on Current Issues devoted to these proposals with frequent updates and links to different resources.
From the Chief Minister of the ACT Jon Stanhope's website you can access the advice he has received on the draft Anti-Terrorism Bill from the Human Rights Commissioner of the ACT, the Director of Public Prosecution, and academics in Human Rights and International Law.
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