Indecent Haste: The Rush To Erode Our Freedoms

Last week, Federal parliament passed the first of three security bills granting the domestic intelligence agency ASIO power to access limitless networks of computers, and immunity to commit crimes during undercover investigations.

Anyone, including a journalist, who makes public disclosures about ASIO’s activities undercover ‘Special Operations’ can be imprisoned for up to 10 years.

The government has provided ASIO with an extra $198 million to smooth its integration, with overseas partner agencies such as the US National Security Agency, Australia’s international intelligence agency ASIS and operations outsourced to private contractors and other ‘affiliates.’

The bill was passed with minor amendments with the support of the Joint Committee into Security and Intelligence, which includes only LNP and Labor MPs. Significantly, two other committees which each includes a Greens MP identified problems with the same legislation.

Since 2011, the Human Rights Committee reports to parliament about the way in which proposed laws are compatible with human rights. It found that the ASIO bill was not presented in a way that enabled it to do its job. Its report on the bill criticised the “selective and generalised statements” used to describe how the bill intrudes on citizens’ rights, and found that Attorney General George Brandis “fundamentally misapprehends the purpose for which such statements are required.”

For this reason, the Committee was not able to “conclude that the measures are compatible with Australia’s supposed rights and freedoms.”

The committee expressed concerns about granting ASIO’s immunity to commit crimes and use force when carrying out special operations, even though the government amended the bill to exclude ‘torture’. It correctly pointed out that investigative techniques causing psychological distress and physical pain may fall short of torture but may nevertheless constitute “cruel, inhuman or degrading treatment.”

The Committee report recommended an amendment to remove immunity for such behaviour, but it was too late because the bill had already been rushed through the House of Representatives on the day before the Human Rights report was tabled.

The Scrutiny of Bills Committee which reviews all legislation did not table its report until after debate on the bill had begun. It also has concerns about the bill including the scope of power given to ASIO to delegate powers to ‘affiliates’.

Affiliates are contractors who could include private inquiry agents, private company personnel, seconded agents to and from partner agencies in the Five Eyes spying arrangement that includes US, UK, Canada, Australia and New Zealand, academics or even people working for media organisations.

Under questioning from Senator Scott Ludlam, Brandis supplied no more information about how these arrangements will work.

Australia already has the strongest security regime in the Western world, having passed 50 separate pieces of legislation since 2001, all supposedly designed to protect the community from terrorism and internal violence.

This is not a debate about whether ASIO and police need powers to prevent terrorist attacks, but rather about whether there is evidence to justify new powers being shotgunned through parliament.

While the first bill was still being debated, Attorney General George Brandis presented a second bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 on September 24

Despite its title, this 160-page bill criminalises far more than just fighting for rebel foreign forces. It involves more than 50 changes to 19 separate acts of parliament. Its sheer scope is overwhelming, involving everything from declaring zones in foreign countries out of bounds for travellers, to cancelling welfare payments and visas on the basis of secret ASIO security assessments. It’s a grab bag of demands, some of which were previously rejected by previous inquiries. It requires weeks of community explanation and debate.

This bill has also been referred to the Joint Committee into Intelligence and Security that is scheduled to report on its Inquiry by the end of next week.

Describing the bill as overturning “long-held values of the justice system”, Greens Senator Penny Wright said last week, “We do not support rushing these measures through the parliament with a faux inquiry by an exclusive committee of Labor and Liberal MPs. The community should be involved.”

Labor on the other hand initially looked set to support the legislation. “We will work constructively with the government” to consider the proposals and “ensure their efficient passage through the parliament, including this bill, ” Labor’s Senator Jacinta Collins told parliament after it was first introduced in late September.

But having copped criticism for voting for the first bill, Joint Committee Labor MPs including John Faulkner expressed frustration at the short time frame allowed for the inquiry during a Committee hearing last week.

The tight timeframe meant that there were only four submissions from community orgnanisations. The Australian Human Rights Commission, Sydney University’s Professor Ben Saul and the Gilbert and Tobin Centre of Public Law have made submissions outlining scores of criticisms of the bill. Their recommendations include postponing some parts of the bill, ditching some sections altogether and amending others.

The fourth submission came from the Quakers who believe the bill is unnecessary and will cause division in the community.

What does the bill do?

The government plans to override previous recommendations to remove preventative detention powers, control orders and coercive questioning powers when sunset clauses expire. These sunset clauses were imposed because these powers override normal criminal investigation procedures and are more intrusive than any comparable law in the United States or UK.

The bill’s critics want the Joint Committee to recommend that these extensions be dropped or, at worst, delayed.

Australia already has an anti Foreign Incursions Act and Anti Terrorism Acts that criminalise people fighting against legitimate governments or assisting in planning or executing acts of terrorism. These laws already apply to anyone assisting Islamic State in Iraq or Syria.

But the government now intends to create a new offence of criminalising travelling to a ‘declared place’ that would be punishable by 10 years imprisonment.

The Minister for Foreign Affairs could declare an area where he or she is satisfied a terrorist organisation is engaging in hostile activity in that area. It would be an offence to be in such an area unless it was solely for a purpose of humanitarian work, making news reports or visiting family members.

It would not include business, religious, educational or creative purposes or joint purposes.

This law could potentially be used to restrict travel to Palestinian territories on the grounds that Izz al-Din al-Qassam Brigades which are listed by the Australian government as a terrorist organisation are said to operate, or to Lebanon where association with Hezbollah’s ESO is prohibited.

In his submission, University of Sydney Professor of International Law Ben Saul describes the ‘declared area’ law as criminalising conduct which is not of itself “demonstrably harmful, violent or terrorist” and as an unnecessary “misuse and overextension” of criminal law.

The Gilbert and Tobin Centre of Public Law describes it as an “extraordinary offence that is likely to criminalise a range of legitimate behaviours” which should not be supported in a liberal democracy. An accused would be left in the difficult situation of having to prove that he or she did not travel with intent to advocate, support or be involved in terrorism.

The Australian Human Rights Commission has argued in its submission that the ‘declared area’ offence infringes the freedom of movement provision of the International Covenant of Social and Political Rights. If the Joint Committee do not recommend dropping this provision, Greens Senator Penny Wright issued a release last week stating that the Greens would move to have this and other sections removed from the legislation.

Another extraordinary power is an offence of ‘subverting society’ in a foreign country. The offence would not need to be connected with terrorism and could potentially be used to apply to environmental activists who interfere with infrastructure in ways that have nothing to do with terrorism. This exposes people to being charged not only in the country where an offence is committed, but charged and imprisoned on their return to Australia as well.

A person who urges the commission of a federal criminal offence including terrorism can already be charged with ‘inciting’ a person to commit a crime. Brandis’ bill contains a proposal for a new offence of ‘advocating terrorism’ which includes the promotion of terrorism. The punishment is five years imprisonment.

In its submission, the Gilbert and Tobin Centre complains that ‘promotion… could encompass a general statement of terrorism that is posted online, with no particular audience in mind.”

As well, a person would only have to be ‘reckless’ as to whether words could cause a person to engage in terrorism, which is far less than the requirement of ‘intends’ under the existing incitement law.

For example, statements supporting armed resistance to the Assad regime could be caught by the proposed law. 

There are also provisions to allow government Ministers to cancel welfare payments on grounds of a negative ASIO assessments. The AHC has found that the power to cancel the visas of family members could affect the right to be free from inhuman or degrading treatment.

Other powers are being strengthened by changing provisions that officials must have a ‘reasonable belief’ in guilt before taking action to the lesser requirement of ‘suspicion.”

Life imprisonment will apply to more terrorism offences including ones that involve no violence such as allowing goods to be stored in a building.

ASIO agents are being given powers to use force in executing search and surveillance warrants without notifying the owner of a property, or an adjoining one, in advance. Anyone who becomes aware of such activity will be prohibited from disclosing it.

ASIO will also be given more latitude to use controversial “coercive questioning” powers, even when less intrusive measures are available. These powers can include questioning innocent people such as family members, who can be imprisoned if they refuse to answer a question or tell other family members or a doctor that they were questioned. The same applies to journalists.

Those who support these types of laws speak of intelligence agencies in benign terms, ignoring a long history of wrongful intrusions on privacy and abuse of powers. Even if they are rarely used, the array of powers are designed as a show of symbolic strength for some and a source of alienation and intimidation for targeted communities.

Brandis, with the support of Labor, snuck the first bill through just as the media was beginning to pay attention. It remains to be seen whether the Labor party will back the Greens in stopping Brandis ramming this bill through parliament before the end of October.