The last time the fundamental civil and political rights of Australians were as threatened as they are today was early in the Cold War. In the 1940s and 50s, community fear was fed by political and media hysteria. The editorial in the Sydney Morning Herald on November 7 1947 stated, in words resembling President George W Bush’s ‘either you are with us, or you are with the terrorists’:
‘Any Australian born in this country who embraces Communism is a traitor. There is no half way. There has to be a choice between good and evil, and people must be either loyal or disloyal.’
The ‘war on terror’ is being fought today as much in the media and through ideology as is it is on the battlefield. It is not surprising then that the Howard government has sought more control over what people say and greater powers to gather information.
The new laws enacted in Australia after the September 11 terrorist attacks are more extensive than those passed to combat communism. They cover everything from new criminal offences to the banning of organisations and increased powers of search and electronic surveillance.
Some of the strongest new powers have been granted to ASIO. It can now seek to have any Australian citizen questioned, and even detained for up to a week, on grounds that include that the person might ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’.
Freedom of speech includes the right not to speak, yet once held for questioning under this new law a person loses their right to silence. A failure to answer a question is punishable by up to five years’ imprisonment. There is no exception for journalists in regard to their sources, nor for any other profession where confidential information is received.
Speech is also limited in other ways. It is an offence, punishable by imprisonment for up to one year, to publish the identity of an ASIO officer. The law also states that it is a crime, for two years after someone has been detained, to disclose ‘operational information’ about the detention. The penalty for doing so, even if the information is provided as part of a media story on the detention regime, is imprisonment for up to five years. This means that two years must pass before abuses involving the operational activities of ASIO can be exposed through media reporting. If abuses are occurring even now we are prevented from finding out about them.
Another change is to the Federal Proceeds of Crime Act. That law allows for the making of ‘literary proceeds orders’ that divest a person of benefits derived from the commercial exploitation, such as the publishing of a book, of notoriety resulting from the commission (or suspected commission) of a criminal offence. The Anti-Terrorism Act, which commenced on June 30 2004, extended this regime. Australian law now provides for the confiscation of literary proceeds by Guantanamo Bay detainees who could be convicted by a US military commission.
This new law gives legitimacy under our legal system to the US military commissions. It equates that process with a decision by a court even though the military commissions lack the same procedural protections as a court, and despite the fact that the people coming before these military commissions have been held in some cases for years without being charged or having access to their family or lawyer.
These military commissions should not be endorsed by Australian law. To do so converts the unfortunate acquiescence by our government into positive and active legal recognition. Nor should people who are convicted by these military commissions be denied the ability to profit from writing about their experiences. It is appropriate to limit the money a person can make from their crimes when convicted by a court, but not when they have been tried by a process that falls short of that standard.
Most recently, the Anti-Terrorism Act (No 2) was passed by the Federal Parliament after a truncated debate on the final day of its August sitting. The new legislation makes it a crime, punishable by up to three years’ imprisonment, to ‘associate’ with terrorist organisations.
This offence was enacted despite the bipartisan finding of the Senate Legal and Constitutional Committee that ‘the evidence does not persuade the Committee of the need for the offence in the first place’. The Committee also noted ‘with apprehension the tendency towards "legislative overreach" in relation to counter-terrorism measures in Australia’.
Freedom of speech is accepted in Australia as one of the foundations of our democratic system. Unfortunately, many of our post-September 11 laws show just how vulnerable this and our other freedoms are.
Without a Bill of Rights, we, unlike every other Western nation, must rely solely on the good sense our political leaders to ensure that our human rights are maintained. In Australia since September 11 this has not proved a sufficient safeguard.
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