Howard's Choice – A Police State?

For Kirk McKenzie’s first instalment, ‘(Abolishing) Law and Liberty’, click here; for his second instalment, ‘Abolition (Liberty) Bill 2005’, click here.

The first draft of the Anti-Terrorism Bill 2005 would abolish the most fundamental right held by citizens of this country – the right to personal liberty in peacetime, which currently exists for all of us, except for persons charged with criminal offences or for persons suffering from serious mental or infectious illness.

Thanks to Bill Leak

At the time of writing, we have not seen the second draft of the Bill. The Government has agreed to make significant changes to the first draft, but these may not alter the Bill’s main impact. First, let us review the reported changes.

Shoot to Kill
Gone is the shoot-to-kill power in relation to persons attempting to escape apprehension under a preventative detention order. Make no mistake, there was absolutely no justification for that provision. Preventative detention applies to people against whom no case exists to justify a charge, they will have no idea that a preventative detention order has been made, and may be completely unaware that the persons apprehending them are police. Shoot to kill was therefore shockingly inappropriate.

Preventative Detention Orders
The PM has agreed to a ‘merit review’ of these orders within the 48-hour period of their application under the Bill. It is hard to know what this could entail within such a short period, but it is welcome nevertheless. He has also agreed to ‘judicial review’ of the orders more generally which is probably applicable to the two-week period of their application under proposed complementary State laws. This may introduce a tricky constitutional problem – currently courts are not involved with preventative detention. If a court is to perform the review, the High Court may have to decide whether court-endorsed detention without a charge is constitutional. In any case, ‘judicial review’ is a definite improvement.

Control Orders
The second draft Bill will modify the Control Order process. Instead of an order being made with no opportunity to oppose its granting, the order will initially be an interim order without notice to the subject, but later a hearing will take place at which a final order can be opposed. Without seeing the changed provisions, this would still seem to have problems including the absence of any need to find criminality, and the likelihood that the court would only need to be satisfied ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’ which applies in criminal cases.

Also, we don’t know whether the subject of the Control Order is to be provided with the information on which the interim order was obtained. Remember, at their extreme, these orders could amount to solitary confinement for 12 months because persons subject to control may be confined to ‘specified premises’ including a prison and any person could be banned from communicating with them.

These Control Order changes seem only a marginal improvement when you consider there is still no charge or trial and the order can amount to heavy punishment. I still fail to see why the High Court would not strike down the provisions unless an attempt is made to take the courts out of the process and give these powers to ‘retired judges’. What one is really doing then, is giving a power of imprisonment to the Executive rather than the Judiciary.

The High Court would crush any such provision legislated by the Federal Parliament unless the States referred their undoubted powers to do so to the Commonwealth. If such a referral occurred to ensure High Court validation of the Bill, we really would have a police state. Incidentally, where are they going to find retired judges prepared to risk their reputations by sitting on such cases?

Attorney-General Ruddock recently said it is too costly to get the evidence to bring criminal charges against alleged Taliban trainees, the likely subjects of Control Orders. The point has been made by Labor MP Daryl Melham (the only experienced criminal defence lawyer in Federal Parliament) that those who trained in Pakistan or Afghanistan prior to 11 September 2001 were doing nothing illegal at the time, nor is there evidence that they have done anything illegal since. If there was, they would be arrested.

To suggest it is difficult to obtain evidence against such people is rubbish. It has never been easier for the police to gather evidence against a suspect. With the benefit of technological aids like DNA testing, satellite tracking, photography and eavesdropping, modern bugging technology, computerised chemical analysis and face- and voice-recognition, all it takes is resources. If you employed, say, 1000 extra police it could not possibly cost more than $150 million per year which is a tiny fraction of the amount that Malcolm Turnbull wants to spend on tax cuts ($10,000 million) and not much more than will be spent on the Government’s industrial relations ads, noting $55 million has already been spent to date!

Are we really going to sweep away the right to personal liberty to avoid spending $150 million a year?

Back to the Future?
On the positive side, there are large elements of this Bill which are quite acceptable. The first draft is divided into 10 Schedules at least 6 of which are unremarkable and should be supported by the Opposition. Kim Beazley has indicated support for the Bill, but this will not prevent him opposing the unacceptable parts of it.

There is a precedent for Beazley’s attitude and Gough Whitlam referred to it last week.

In 1960 a very similar debate occurred. At that time, Attorney-General Garfield Barwick (later Chief Justice of the High Court) introduced a raft of similarly objectionable changes to the Commonwealth Crimes Act – his targets were the Communists. The amendments created a new offence of treachery, and greatly expanded the definitions of treason, sabotage and espionage. A furore developed in the Spring of 1960, just as it has 45 years later.

In the Federal Labor Caucus, the Left (including people like Clyde Cameron, Les Haylen and Eddie Ward) demanded that Caucus oppose the Bill absolutely, on civil liberties/human rights grounds. The Opposition Leader Arthur Calwell and his deputy Gough Whitlam argued that this would play into the Government’s hands. They said the Bill should be supported but in relation to the objectionable provisions strong amendments should be drafted and moved in the Parliament.

After a Caucus meeting which supported the Callwell/Whitlam line, Eddie Ward, a firebrand, threw a punch at Whitlam in a corridor at Old Parliament House, missing and injuring his knuckles on the wall. Shadow Attorney-General Whitlam then proceeded to carve up the Government on the floor of the House of Representatives in a way which cemented his leadership ambitions and killed once and for all the chances of Barwick succeeding Menzies as Prime Minister.

That is the way the Opposition should go now and it may still be the way it intends to go. Shadow Attorney-General Nicola Roxon made some careful and detailed criticisms of the draft Bill on the ABC’s Insiders program last Sunday and she will have plenty of support from her colleagues for amendments to the more odious provisions of this Bill. From the feedback received from Labor MPs to my previous articles in these pages, I am certain of that.

On that point, I expected adverse internal-ALP criticism of my position in these pieces but, so far, only one person has made such a criticism. He advanced the view that the Premiers had no choice but to agree to the Prime Minister’s plans. While I sympathise with the Premiers, in hindsight they should have waited for the Bill. Fortunately, the constitutional difficulties have allowed them an opportunity to toughen their positions. We now await the State Bills necessary to implement the package – as do State MPs – remember them?

Sedition
The Government has other problems with the Bill than Labor opposition. The sedition amendments are quite extreme and fall far short of protecting the freedom of the press. Consequently, the media and artistic communities have been strongly critical of those parts of the Bill. Editorially, the Fairfax press has turned on the Government with an editorial in the Sydney Morning Herald last Monday which was striking in its absolute condemnation of the Bill.

Further, I am unaware of a single lawyer who has supported the contentious provisions of the Bill. To say that the legal profession is aghast at the provisions would be an understatement and any credibility that the Howard Government has had with lawyers and judges has gone out the window.

Even Coalition MPs have been critical – a sure sign of trouble for the Government.

As for Labor, it should be careful not to turn on itself. It is not the Labor Party which is proposing the Bill or which is determined to ram it through the Parliament without proper debate. It is essential that Labor maintains and increases the pressure on the Government on this issue and it cannot do that if it is fighting itself.

In contrast, what must Liberal Party branch members be thinking and feeling? Liberals are fond of saying their party is the party of individual rights and freedoms. Surely, many loyal conservatives would be horrified at the extremism in this Bill.

And what about Barnaby?

When Barnaby Joyce was contesting the last election for the Queensland Nationals against the Liberal Senate team, did he support the right to liberty? What? You say the subject didn’t come up? Oh.

So it’s alright, you can vote with the Government with a clear conscience can you?

I mean it’s not fundamental, is it? Is it, mate?

For Kirk McKenzie’s first instalment, ‘(Abolishing) Law and Liberty’, click here; for his second instalment, ‘Abolition (Liberty) Bill 2005’, click here.