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Hidden in new anti-terrorism laws are wide powers governments want to silence dissent and quash protest. By Mike Seccombe.

Terror laws also threaten right to protest

Whoever came up with the list of items in schedule six of the Queensland government’s G20 (Safety and Security) Act has a heck of a criminal imagination.

They contemplated and then explicitly prohibited in legislation a most extensive list of threats from which world leaders and finance ministers must be protected during their brief visit to the Sunshine State.

Guns, knives and explosives are on the list, of course, but also blowpipes, whips, cattle prods, glass jars, metal cans, hand tools, urine or animal manure, baseball bats, eggs, bags of flour, chains, loud hailers and “graffiti instruments”.

The list goes on and on, becoming ever more ridiculous. Surf skis, kayaks, kites “or other device[s] suspended by airflow and controlled by a string or cord”, remote-controlled toy cars and, perhaps most bizarre of all, any “reptile, insect or other animal capable of causing physical harm if released in close proximity to a person”.

You might laugh, but this is actually serious. Elsewhere in its 104 pages, the special Queensland legislation sets out extraordinary powers, among them strip searches, warrantless searches of premises, and for anyone charged with an offence such as the unapproved possession of a kite, a presumption against the granting of bail.

All of it directed towards providing for the “safety and security” of those attending the G20 finance ministers meeting, now under way in Cairns, and November’s leaders meeting in Brisbane.

But safety and security against what?

Terrorism, they say. The beleaguered premier Campbell Newman has been publicly making the link at every possible opportunity. When the national terror alert level was raised to high a week ago, it was a gift to him. He promptly held a press conference and reassured the public that the comprehensive security measures put in place by the government for the G20 – the legislation, the extensive security areas that cover most of the Cairns and Brisbane central business districts, the hundreds and hundreds of extra police – were equal to the increased threat.

But, as Andrew Sinclair of the Queensland Council for Civil Liberties dryly observes: terrorists do not usually use eggs as weapons. “Yet it’s now an offence for anyone who lives in certain areas to possess an egg.”

Of course, an egg could be thrown at a head of state. But what about a kite? Or a canoe?

“Clearly the reason they don’t want canoes is not that they are worried about them paddling up and clamping limpet mines on buildings, but about people having protests,” says Sinclair. “This is an example of anti-terror legal measures being used to control freedom of speech.”

Terrorism as justifciation for draconian laws

It has become easy for governments to invoke the threat of terrorism to justify extreme measures, and to stampede a fearful populace into acceptance of those measures.

Right now, there is reason to be fearful. We are entering yet another war in Iraq and possibly Syria, against a particularly nasty bunch of criminals espousing a hideously corrupted interpretation of Islam.

On the home front, this week saw the biggest counterterrorism operation in Australian history, involving police and security agencies, against a group apparently adhering to the same Islamic State ideology, who planned in the words of Prime Minister Tony Abbott to carry out random “demonstration killings”.

Reportedly, the plan was to record on video the beheading of a victim, draped in the IS flag.

It was but the latest of a series of raids against alleged Islamic extremists suspected of various terrorist offences, including funding and recruiting for overseas terrorist organisations.

And all of it comes against a backdrop of plans by the federal government to introduce new measures to combat terrorism, which have made some civil libertarians, not to mention many in the vast, law-abiding bulk of the Muslim community, nervous. More worryingly, they have led some legal experts to the conclusion that the new laws could permit torture of suspects.

Those concerns were given wide publicity by Fairfax Media on Thursday, in an article pointing out a provision of the new laws being proposed by Attorney-General George Brandis and stipulating that agents participating in a special intelligence operation would not be “subject to any civil or criminal liability” in relation to certain acts.

The Sydney Morning Herald’s Paul Sheehan cited the provision – Section 35K of the draft National Security Legislation Amendment Bill (No.1) 2014 – and warned: “You don’t need the advice of a QC to work out that this provision states that it is unlawful to kill people, cause serious injury, sexually abuse, or cause serious damage to a person’s property, but deliberately leaves about 150 shades of grey, ranging from ethical ambiguity to outright black ops.”

This was perhaps a little hysterical, as even the legal experts in the Labor opposition point out. It was “inconceivable”, said one, that the provision would be interpreted by intelligence agencies as giving the green light to torture. Nonetheless, the Parliamentary Joint Committee on Intelligence and Security, which is reviewing the bill, will call for changes when it reports next week.

It is expected it will push for greater oversight of anti-terrorism operations and recommend that any such special operations would have to be personally approved by the federal attorney-general.

Whether the proposals will be taken on board by a government eager to differentiate itself from the opposition when it comes to being “tough on terror” is an open question.

Independent monitor damns G20 laws

Meanwhile, where can a nervous public look for a calm, informed assessment of both the threat of terrorism and the threat to our civil liberties posed by the response to it?

Bret Walker, SC, past president of the NSW Bar Association and the Law Council of Australia, and Australia’s first Independent National Security Legislation Monitor, is perhaps the best source.

Walker was charged with assessing the efficacy of security legislation and whether it appropriately balanced civil freedoms with the need to protect the country. When he stood down at the end of his three-year term in April, the government announced it would abolish the position, a decision it has since reversed, although it has yet to appoint
a successor.

On Thursday morning, with the news full of hyperbole about beheadings and ASIO torturers and death cults, The Saturday Paper turned to Walker for more sober analysis.

First, the Queensland government’s special laws for the G20. Were they evidence, as Andrew Sinclair and other civil libertarians would have it, of a line of descent whereby draconian measures are inserted into anti-terrorist legislation and then migrate to other areas such as anti-bikie laws, finally bobbing up in what are essentially laws relating to protest?

The short answer is yes. “We’re not talking about people moving to assassinate the G20,” Walker says. “It’s about stopping demonstrations.”

“The rationale is constantly advanced, not just in Australia, that there is something peculiarly pressing about terrorism that justifies laws that otherwise would not be contemplated. And this really has to be challenged.

“There really is very little that is so particular or peculiar about terrorism ...
What really should matter to us is the death and injury and terrifying of people. Terrorists are not the only people who do this. It’s being done as you and I speak, in what is cosily called domestic violence.

“We really do need to challenge the idea that terrorism is peculiar to this time and requires laws that are so special as to go beyond the restraints that we have for hundreds of years decided are appropriate to what I’ll call ordinary murderers.”

Indeed, by accepting the suggestion that terrorists are something other than ordinary murderers, we have “bought their propaganda” and given them the “glamour of being extraordinary”.

“They’re just not. Mostly they’re sociopathic inadequates. Mostly it’s got nothing to do with politics or religion. Mostly it’s about personality disorder,” Walker says.

“I think it is a cultural deficiency of Australia to think that you deal with a problem by devising extraordinarily sophisticated and not always very good legislation… It’s based on the premise that pre-existing law has some gap. And this is nearly always wrong.”

He cites examples, such as the enhanced sedition laws brought in by the Howard government. Then there were the preventive detention orders and the control orders, providing respectively for the detention and the questioning and monitoring of people not convicted of any offence, which were “trumpeted at the time as being terribly important weapons in the ‘war against terrorism’  ”.

But preventive detention has never been used, and control orders only twice, against “Jihad Jack” Thomas and David Hicks, neither of whom proved to be any threat.

“We don’t need these powers, and the best way of demonstrating it is that they have not been used,” Walker says.

Yet the powers remain in place despite Walker’s recommendation, and that of other experts in the field, that they be dumped. Useless laws accumulate like legislative junk DNA. Actually, worse than junk DNA. Like dangerous mutations of our legal DNA.

“Control orders are available for people who have not been convicted. They are therefore far outside – so far outside – what ought to be characteristic of our justice system, [in which] you are punished for an offence that has been proved.”

Instead, control orders should be like those that apply to recalcitrant sex offenders. “They should have the virtue of applying to people who have been convicted.”

Criminalising speech

But enough about the failings of past laws. What about the laws the government is now in the process of introducing?

Walker has some concerns about the plan to strengthen the prohibition against the “advocacy” of terrorism.

“I’m bound to say this is an area where the law for more than 250 years has criminalised dangerous speech,” he says.

“The key is its tendency [of that speech] to produce violence. The fact is we are otherwise – and the attorney-general, in particular – committed against the notion that we should control speech which produces certain states of mind called opinions. We don’t do that. What we do is seek to prevent people being killed, injured or threatened.

“And it seems to me that whatever you do in terms of ‘anti-glorification provisions’, the touchstone has to be that the conduct is not criminal unless it tends in a dangerous degree to produce violence or threats of violence.

“If somebody wants to say there should be a caliphate, well, I want to live in a country where you say, ‘I think you’re an idiot, but I’m not going to criminalise you for saying that.’  ”

As for the idea of cancelling passports, it was Walker who suggested the means by which the process might be expedited, and which now look likely to be enacted. His major concern, however, is with the secret, special controlled operations of the intelligence services, something he has recommended “be looked at urgently”.

As currently proposed, Walker said, the safeguards are “not as thoroughgoing as they ought to be”.

But given recent developments, and the hysteria of the moment, Walker says, “I fear the committee will wave it through.”

No doubt the law enforcement action that unearthed the plot to behead a random Australian will be used by the government to bolster its case against any moderation of its proposed enhanced powers. But surely the real point is that the authorities were successfully able to act on the basis of current laws.

Walker does not suggest that either side of politics is anything but serious in their approach to dealing with terrorism.

“On the other hand,” he adds, “I do think that as a subject area it has been overboosted in its importance … and it does seem to me that a more sober and less special approach to terrorism is called for.”

“It is something that definitely requires special resources and funding of good clever people in ASIO and the AFP, and all of that. But special quasi-criminal provisions? No.”

This article was first published in the print edition of The Saturday Paper on Sep 20, 2014 as "The real threat of terror laws". Subscribe here.

Mike Seccombe
is The Saturday Paper's national correspondent.

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