In an interview with the ABC last week, George Brandis lamented that under Australia’s current counter-terrorism laws, “you have to identify a particular terrorist act”.
“If it’s a crime to incite violence,” he said, “then surely it ought to be a crime to incite or promote terrorism.”
The Attorney General’s anti-terror crusade, in lockstep with a renewed hysteria about terrorism among Western governments, is as bizarre as it is alarming.
While the counter-terrorism legislation in the UK and US is increasingly being labelled as too broad and open to abuse, the Australian government is forging ahead with what has been flagged as a vast expansion of our counter-terrorism laws.
And for what?
Supposedly to keep tabs on a few hundred Australians who are fighting with or supporting Islamist groups in Syria and Iraq.
A few weeks ago, The Intercept – run by Snowden leaks journalist Glenn Greenwald – published and reported on a leaked document outlining the criteria for US citizens and foreigners to be placed on a number of counter-terrorism watchlists constructed after 9/11.
The document reveals that “concrete facts are not necessary” for individuals to be put on a watch-list, and that the US government tracks “suspected terrorists” as well as “known terrorists”.
The standard of mere “reasonable suspicion” is used to determine whether individuals are placed on a list, meaning that even people suspected of being suspected terrorists can be watch-listed.
The US government shares its watch-list information with 22 foreign governments, which undoubtedly includes Australia, given our agencies are part of the so-called ‘Five Eyes’ intelligence partnership.
Very little is known about Australian intelligence agencies’ watch-listing procedures, though we can be sure that they mimic aspects of the US system.
But the most important thing exposed by the document is the perverse logic of counter-terrorism that extends throughout the Western counter-terrorism apparatus.
Counter-terrorism legislation in the Western world has often featured alarming subversions of due process and a lack of meaningful oversight.
The document published by the Intercept states plainly that there need not be meaningful evidence that an individual is engaged in any terrorist activity for them to be placed on a watch-list.
As Hina Shamsi, the head of the American Civil Liberties Union National Security Project, told The Intercept, “instead of a watch-list limited to actual, known terrorists, the government has built a vast system based on the unproven and flawed premise that it can predict if a person will commit a terrorist act in the future”.
And not only is proper evidence not required, watch-list nominations of ‘known terrorists’ are “presumptively valid” – completely eliminating the burden of proof requirement.
Changes to Australia’s counter-terrorism laws, which are to be taken to Cabinet by George Brandis this week, would wholly replicate – and even extend – the logic of US counter-terrorism in Australia if passed into law.
According to a report by the Daily Telegraph last week, the changes include a lowering of the standard under which individuals can be preventatively arrested from ‘belief on reasonable grounds’ to ‘suspicion’, and the presumption that any Australian who travels to Syria or Iraq is engaged in terrorist activity, meaning individuals would have to prove their innocence.
Of course, a lack of procedural fairness is only part of the problem with terror laws.
The difficulty of defining terrorism should cause concern among all but the most vehement anti-terror hawks.
The leaked watch-listing document lists “damage to Government property” and “damaging a protected computer” used by the government or a financial institution as examples of terrorism.
Jeremy Scahill, author of The Intercept’s report on the document, has described US counter-terrorism as a “shadow legal system” focused on “pre-crime”.
It’s this exact kind of shadow legal system that George Brandis and the federal government would like to introduce in Australia, and possibly develop even further than it has been in other Western nations.
For Brandis, the self-styled champion of free speech, evidence and “identifying a particular terrorist act” is no longer important. Vague suspicion will suffice.
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