The Abbott government, long a pretender of beliefs in free speech and civil liberties, showed its true colours yesterday.
Big new terrorism and digital surveillance policies were unveiled. Taken together, they represent a significant assault on Australian citizens’ privacy and freedom.
However, there was a small fillip of good news in the decision to abandon the government’s misguided attempts to rewrite the Racial Discrimination Act.
While the RDA climb-down is a win for multicultural Australia, and a stinging humiliation for Attorney-General George Brandis and prominent conservative columnist Andrew Bolt, the real news was the announcement that the Australian government will extend anti-terror laws and move to automatically capture the metadata from our computers and phones.
The sweeping new anti-terror laws are aimed at Australians traveling to and from war zones in Syria and Iraq. Some of these proposals appear to reverse the age-old presumption of innocence that underpins our system of justice.
Australians returning from designated hotspots will have to prove that they were there for “legitimate” purposes. There are precious few details forthcoming from the government on what a legitimate purpose might be.
Also announced: new powers to suspend passports; an extension on the AFP’s control orders and preventative detention powers; and an unlimited extension to ASIO’s search and seizure powers, which were originally legislated to end in 2016.
The spooks get a big new funding boost, too. There’s $630 million for ASIO and other security agencies, despite the so-called “budget emergency”.
Australia’s security agencies have enjoyed huge boosts to their legal powers and budgets since 2001, but they just seem to keep on expanding. This is despite the fact that there seems to be little in the way of new or more dangerous threats to Australia posed by terrorism.
Mind you, that’s not what Prime Minister Tony Abbott is saying. Abbott said yesterday that “the threat to Australia and Australians from extremists is real and growing”. He argued that the new risks are posed by jihadists returning home after learning dangerous new skills in Syria and Iraq.
“Australian citizens and dual nationals are currently fighting overseas in Iraq, Syria and other conflicts, committing unspeakable atrocities and honing terrorist skills,” he said.
“Many violent jihadists will attempt to return home.”
Should we be worried about Australians fighting in wars abroad? Probably not. There are only about 60 of them, according to what we’ve been told by intelligence agencies, and you can bet those individuals are being very carefully watched.
Australia’s best-known foreign fighter, David Hicks, trained with none other than Al Qaeda in Afghanistan. Swept up in a US dragnet, he turned out to be little threat to anyone. Because what Hicks did was not illegal at the time he did it, Australian authorities were unable to charge him while he was at Guantanamo. After Hicks, the law was changed to outlaw fighting with terrorist groups abroad.
Australia’s most notorious terrorism plot, the Benbrika conspiracy, was home-grown. The Benbrika plotters were tried and convicted under existing Australian law. Indeed, current powers were quite broad enough to allow ASIO, the Australian Federal Police and Victoria Police to gather 16,400 hours of electronic surveillance and 98,000 bugged phone calls.
But even if foreign fighters are a potential risk, there is no evidence that we need broader or tougher laws to deal with them.
After all, if and when Australian extremists return home after fighting in Iraq and Syria, they can certainly be charged with a number of offences under existing legislation.
No less an authority than Australia’s Independent National Security Legislation Monitor, high-flying barrister Bret Walker SC, makes this clear in his latest report.
“Engaging in violence, threatening violence, planning violence or lending support to those intent on such conduct are elements of terrorist offences in the counter-terrorism laws notwithstanding some or (in some cases) all of the charged conduct occurs outside Australia,” Walker writes.
As Walker and many other observers have noted, existing laws and surveillance are extremely broad, and would seem adequate to cover any such eventualities.
Control orders, for instance, which were rushed through Parliament in the wake of London’s 2005 “7/7” bombings, allow draconian powers of house arrest without trial.
ASIO can also currently detain anyone for up to seven days, without access to a lawyer, even if they haven’t been suspected of any crime.
Noted constitutional lawyer George Williams – no-one’s idea of a terrorist sympathiser – wrote last year that “many of these laws are ineffective or unnecessary.” Worse, he continued, “some are also dangerous in how they undermine important democratic values, such as freedom of speech, the right to a fair trial and the presumption of innocence.”
That’s not to say that Bret Walker would oppose these changes, by the way. Some of them actually relate to recommendations he has made. But it’s notable that the government has taken up his suggestions to strengthen some security powers, but ignored recommendations to abolish others (like control orders).
There are some uncomfortable implications of these new laws. Perhaps the most concerning is the abandonment of the presumption of innocence for those travelling to proscribed areas overseas. Another is that fighting overseas for foreign governments is okay, while fighting overseas for various rebel groups and militias is not.
It’s hard to see what the justification for this is, on public safety grounds. A dual-citizen serving in the Israeli Defence Force is likely to receive much better training, and therefore be far more lethal as a potential terrorist, than someone who attends a few bomb-making workshops in northern Iraq.
As Bernard Keane notes today, the current proposal would make it legal for an Australian to fight in the army of Syrian dictator Bashar al-Assad, but illegal to fight for the US-backed rebel groups opposing him.
How big is the terrorism threat to Australia, anyway? Our recent history shows very little in the way of domestic terrorist activity. Obviously, that’s a good thing. But perhaps one reason for it is because the security agencies and police already enjoy such healthy funding and broad powers.
Also announced this week was the mandatory data retention legislation, a dog of a policy which grateful privacy advocates and internet service providers thought had been faced down at the end of the Gillard government.
The government wants to force ISP’s to keep all your phone and internet metadata for a period of two years, on the remarkably flimsy pretense that the intelligence agencies may want it.
Australia’s spooks have a poor record when it comes to abusing their existing surveillance powers. In 2013, for instance, it was revealed that the Defence Signals Directorate had offered to share data on Australian citizens with the spy agencies of the US, UK, Canada and New Zealand under the so-called “Five Eyes” arrangement.
While terrorist’s wax and wane, surveillance and security powers accumulate.
Back in 2005, when the Howard government introduced powers for ASIO to detain individuals without charge, there was a much-ballyhooed “sunset clause” that was meant to ensure that the draconian new powers would not become permanent features of Australian law.
This is precisely the clause that the Abbott government wants to amend, to make ASIO’s powers to arbitrarily disappear Australian citizens permanent. As French prime minister Georges Clemenceau famously said during the First World War, “War is too important a matter to be left to the military.”
You could make a powerful argument that surveillance is now too important to be left to the intelligence agencies.
No-one doubts there is some level of terrorism threat against Australia. But at what point does the threat of terrorism start to overwhelm the very civil liberties and democratic freedoms that our spooks are supposedly protecting in the first place?
Will we end up like the United Kingdom, where local councils are using anti-terror laws to spy on citizens dumping rubbish in other people’s bins? Or will these laws be used by ASIO to further abuse its power, as happened in the 1950s, 60s and 70s?
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