In Laws We Trust - Don't We? Print E-mail
Tuesday, 14 September 2004


The atrocities of September 11, 2001 reshaped the world. Three years on, Australia's laws have been reshaped too. Are Australians safer as a result, or has something precious been undermined? Gay Alcorn report


A few weeks ago, Izhar-ul-Haque passed his third-year medical exams at the University of NSW. He is, according to friends, intelligent, quiet and respectful. He is also the first person charged with terrorism laws passed in a rush after the September 11 attacks in America, three years ago today.


When the 21-year-old was arrested in April, Foreign Minister Alexander Downer said that "this is exactly what the federal police should be doing, making absolutely sure that people are properly protected in this country". Yet after Haque spent 42 days in isolation in a maximum security prison, Justice Peter Hidden released him on bail, saying that there was nothing to suggest "this young man poses any threat to anyone in this country"


Haque is charged with training with a Pakistan-based terror group, the Lashkar-e-Tayyiba (Army of the Righteous), intending to fight the Indian army in the disputed region of Kashmir. The court heard he quickly realised he did not have the strength or the will to fight, and came home. He has resumed his studies, but he still feels nervous whenever there is a knock on the door.


It was Haque's case that convinced a group of Muslims that Australia's terrorism laws had gone too far. The Australian Muslim Civil Rights Advocacy Network now lobbies politicians, prepares submissions and has put together a booklet, ASIO, the Police and You, advising people what to do if ASIO or the federal police pay a visit (the first tip is "remain calm").


"Izhar shocked us into action," says Dr Waleed Kadous, a computer scientist of Egyptian background who is friends with the student. "It was finally made concrete to us that all the worst fears had come to a reality. It's one thing to see it on paper and say 'This is a bad law'; it's another thing to see a person who you know is a good person arrested under that law."


Whether Haque is a foolish youth or a dangerous Islamist intent on terrorism, he gives a human face to an unprecedented overhaul of Australia's national security laws, the most serious shift in established legal rights in our modern history. Australia had no specific terrorism laws three years ago; now it has 19, with four more still before Parliament and yet more being considered.


Nobody argues that we did not need the new laws. Yet three years later, every major legal group in the country, from the conservative Law Council of Australia to left-wing civil liberty organisations, say that Australia has chipped too deeply into civil rights and that we have pushed through laws that are in some cases more draconian than other Western democracies. Attorney-General Phillip Ruddock says that's nonsense.


"I simply say to those people who question me on these issues, 'how am I going to answer the Australian community if there are measures that we could have taken and something happens here and we hadn't acted? How would I respond'?"


Barrister Phillip Boulten, SC, represents two of the four men so far charged with terror offences. Tomorrow, he will tell the Law Institute of Victoria's conference that it is now hard for anyone accused under the laws to get a fair trial.


"ASIO targets the suspects," he will say. "Some are coerced into speaking behind closed doors. ASIO backgrounds safe journalists and politicians who make declarations about the need to rein in these people. The police raid the suspect's house and documents are seized and the people are arrested in a blaze of publicity when the odd, brave judicial officer stands apart from all this and makes an independent judgement, there is an outcry and, in some cases, laws have been changed overnight in an attempt to nullify the judicial officer's ruling."


Boulten and others argue that we will live to regret many of these laws. Yet they also know that, right now, their cause barely registers outside their own circle. No major party wants to be seen as "soft" on terrorism Labor has supported all the laws, sometimes after major amendments and most Australians won't be losing sleep over civil rights, given this week's bombing in Jakarta and last week's horrors in Russia. Yet those critical of the laws say that they are fighting to protect all our rights, not just those of a few."


We're going through one of those moments where we're recasting basic assumptions and in many cases doing so without realising what's happening," says Professor George Williams, a constitutional lawyer from the University of NSW. Williams has prepared at least five submissions to parliamentary committees looking at new terrorism laws, and has appeared four times in person. He says some of the more recent laws are barely known to the public.


"There's a level of exhaustion there, in the media, in the community and in the opposition parties, because there is so much; to resist it line by line is beyond anyone. A lot of these (laws) might seem like small things, but when you add them up it's very significant," he says.


Canberra's argument, mirrored by governments around the world, is that the boundaries have shifted now, perhaps permanently, because the consequences of a terrorist attack are so catastrophic that even seemingly draconian measures are now justified to prevent an atrocity.


The counter-arguments are subtle and, at their heart, are about the dangers of giving more power to governments; the attorney-general, with virtually no appeal, can now ban groups on the grounds of national security, an echo of the attempts in the 1940s and 50s to ban the Communist Party. (In 1946, the Country Party said it "regards the Australian Communist in the same category as a venomous snake to be killed before it kills".)


Without transparency, the critics argue, without an individual holding on to rights against the power of the state no matter what he is suspected of, liberal democracies can eventually set up something like Camp Delta at Guantanamo Bay or the Abu Ghraib jail in secrecy.


"The danger is that there are very few institutions in our society that really are independent of politics and can help achieve a just outcome, and we really ought to be very wary about undermining the ability of our courts to do that," Williams says. "Where you shift the power to detain people from courts to the executive or to politicians, the dangers in that are all too evident it creates an opportunity for abuse by unscrupulous governments."


The Government is taking power from the courts. In June, Bilal Khazal was bailed after being charged with making documents likely to facilitate a terrorist act (he posted highly militant material on the internet). The Crown did not oppose bail and normally, there is a presumption in favour of it unless there are special reasons why it should not apply, such as a suspicion that the accused will flee. Talkback callers were outraged, and the Government immediately introduced laws to overturn the presumption of bail in terror cases.


"If judges are reflecting a different view to the view that the community expects, then the Parliament is entitled to have a view and to put it," Ruddock said in an interview with The Age just before the bombing in Jakarta. "And if the Parliament's got it wrong, then a government will lose an election, but if a judge gets it wrong, nothing happens."


The laws keep coming, but after three years, the most controversial remains the ASIO legislation, which was passed in June last year after 15 months of wrangling, a scathing Senate committee report, and allegations that it is just too dangerous for a secret intelligence organisation to be able to pluck citizens off the street for secret interrogations.


ASIO, after obtaining a warrant, can now detain people for up to seven days who are not terrorist suspects but who may have some information about terrorism. If they refuse to answer a question, they face jail.


In the US and Britain, authorities cannot deal with citizens, as opposed to foreigners, in that way. "That was the hardest one for me," said Labor's homeland security spokesman Robert McClelland, himself a lawyer. "That was and always will be difficult for lawyers to swallow because it reverses what has been a fundamental part of our criminal justice system for 800 years, at least in theory, that you have a right to be let alone unless and until you transgress the law."


Some of the harshest elements of the ASIO bill were removed originally it allowed for the detention and strip searching of children as young as 12 but a change late last year toughened ASIO's powers further. It is now illegal, for instance, for anyone to discuss "operational information" about ASIO's questioning for two years after a person is detained. So a journalist or human rights group investigating ASIO's abuse of its powers cannot publish any details, under threat of five years' jail.


The attorney-general can now ban organisations with suspected terrorist links, meaning it becomes a crime to belong to or support the organisation, punishable by up to 25 years' jail.


The US attorney-general also has that power, but it is subject to a court appeal, whereas here judicial review is all but impossible. Muslims complain that all 17 groups outlawed in Australia are Islamic, compared with countries such as the US, where they say only 22 out of 37 banned groups represent Muslims. Even the parliamentary library in Canberra suggested in a recent paper that there "appear to be inconsistencies" in which groups are banned, with many outlawed organisations having few if any links with Australia, while others with clear links remain lawful.


Recent laws have sailed through with little public debate. Last month, it became a crime to "associate" more than once with someone who is a member or promoter of a banned group, under penalty of three years' jail. The bipartisan Senate committee that scrutinised it failed to see any need for the new law, given existing offences such as funding or supporting terrorist groups. It noted "with apprehension the tendency towards legislative overreach" on terror laws. The Government, supported by Labor, pushed through the laws after three hours' debate.


Only one submission to the committee backed the changes. That was from the federal police, whose commissioner, Mick Keelty, argued that the world had changed. In the past, police hadn't worried too much about what happened before a major crime took place; the emphasis was on solving a substantive crime. In the new era, it is prevention that becomes crucial, so the early planning stages of a terrorist attack must be stopped. For instance, the law could catch people who provided lodging for a terrorist group, or helped set up a website.


"Often at that point the substantive crime is going to be unknown," Mr Keelty said.


"It really is taking a shift in our criminal justice system to understand this."


The level of terrorism risk in Australia remains at "medium". To date, intelligence has picked up no specific threat against any facility in Australia. Four people have been charged. Apart from Haque's training camp and Khazal's internet outrages, Faheem Lodhi faces the most serious charges, including planning an attack in Sydney. Zeky Mallah, a 21-year-old former supermarket stacker, is charged with preparing for a terrorist attack. The court heard of a bizarre scheme to sell a suicide video tape to a journalist before dying as a martyr while killing ASIO officers.


Some who have had dealings with Mallah believe he is psychologically disturbed. Australia has not gone as far as the US, which rounded up hundreds of foreigners after September 11 and held them without charge, sometimes for months. So far, even the laws' critics say there have been no major abuses of the rights of the accused.


Australia's Muslims, though, believe the laws are directed against them. Who would most likely be caught up "associating" with a terrorist? Why are all the banned groups Islamic? How many Muslims have been scooped up and questioned by ASIO who have had nothing to do with terrorism?


"Many Muslims come from a background or from home countries where there are dictatorial regimes," Kadous says.


"They've actually overestimated this legislation and have become overly conservative."


Fathers won't allow their sons to attend rallies, for instance, for fear of what the "authorities" might do to them.


Ironically, Kadous says, many Muslims don't realise that there are safeguards in Australian laws, that we are not a dictatorship where people can disappear off the street, never to be seen again. We're still a liberal democracy, after all.


Gay Alcorn, Melbourne

The Age, September 11, 2004


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