Our First Defence To 'Threats To Our Freedom': Dump Freedom Safeguards

As the first Australian bombs rain down on Islamic State forces in Iraq, a different struggle is being waged in the committee rooms of federal Parliament: the struggle to constrain key democratic freedoms.

Instead of Super Hornets and special forces, this conflict is being waged by a small group of interested citizens and minor party politicians against the inexorable force of the government of Australia, backed by the Labor opposition.

It’s a conflict that may well have more impact on the future of Australian democracy than the conflict in Iraq and Syria. But it’s a conflict of which few Australians are aware.

As Australia’s terror scare continues unabated, the government remains committed to pushing through the next round of its draconian national security laws.

With the enthusiastic assistance of Labor, the first tranche of legislation has already passed the Parliament. As we reported in September, that bill criminalises the reporting of intelligence operations, allowing the Commonwealth to jail journalists for publishing leaks and telling the Australian people that, for instance, the Australian military happens to be tapping the Indonesian president’s phone.

There was minimal public debate about the implications of such legislation. Much of the most critical media commentary has occurred after the bill was passed.

Now the government is seeking to pass the second tranche of its national security laws, the so-called “foreign fighters” bill. The bill is currently being examined by the Joint Committee on Intelligence and Security.

Officially entitled the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, this new round of national security legislation seeks to outlaw Australians from travelling to warzones to fight for terrorist organisations such as the Islamic State.

But, like the previous national security bill passed last month, the foreign fighters bill will also introduce a suite of changes into Commonwealth law. It amends no fewer than 24 existing laws, including the Migration Act, the ASIO Act, the Crimes Act, the Telecommunications (Interception and Access) Act, and even social security legislation.

The wording of the bill is also extremely broad.

In Part 5.5 of the legislation, for instance, which outlaws foreign fighters engaging in insurgencies abroad, “engaging in a hostile activity” is defined as a person engaging in conduct with the intention of:

(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in subverting society in that or any other foreign country;
(c) intimidating the public or a section of the public of that or any other foreign country;
(d) causing the death of, or bodily injury to, a person who:
(i) is the head of state of that or any other foreign country; or
(ii) holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

This is an extraordinarily diffuse set of activities.

Let’s leave aside for a moment the delicious irony of the Australian government proposing such a law, only 11 years after overthrowing “by force or violence” the government of Iraq (the bill gets around such difficulties by exempting Australian Defence Force personnel).

Let’s also leave aside the rather uncomfortable fact that Australia is currently militarily involved in supporting Kurdish troops fighting the Islamic State – Kurds that are most definitely committed to the independence of a Kurdish state in northern Iraq (a “part … of a foreign country”).

Let’s focus in on what “subverting society” means. As none other than respected barrister and former national security watchdog Bret Walker told the Joint Committee on Intelligence and Security yesterday, the very phrase seems redolent of totalitarian regimes such as Maoist China or the Soviet Union.

Might such language capture the activities of protestors advocating for sanctions against foreign dictatorships? Could it include Australians protesting against French nuclear testing in the Pacific? Could it include Australians caught up in Occupy-style protests in New York or Hong Kong?

Attorney-General George Brandis says no. He argues that the bill has a special exemption for those engaged in “advocacy, protest, dissent or industrial action”.

But the wording of that exemption is very specific, and does not include actions that are intended to “create a serious risk to the health or safety of the public or a section of the public.” That’s a pretty vague and elastic clause: it’s not hard to think of protests and actions that could be construed in that way (for instance, if they block traffic, or simply if police say that a protest is a health and safety risk).

Other principles are at stake: for instance, the presumption of innocence.

Should a person fall foul of this law by entering a “declared area”, he or she will have to prove that they are there for a legitimate purpose. As the bill plainly states, “a defendant bears an evidential burden”.

And the scope of this provision of the law is high, wide and ugly. As Nathan Kennedy of Australian Lawyers for Human Rights pointed out to the Joint Committee, the law will make it illegal simply to be in the wrong place at the wrong time.

“This section basically says that, if someone is in an area, they are automatically guilty of an offence and they can be locked up for 10 years,” he told the Committee. “The burden of proving that they are there for a 'legitimate' purpose is on them.”

Nor does the legislation allow much in the way of judicial review. “Our criticism is the absence of judicial review per se, in the relation to most areas of the anti-terrorism legislation in general,” Kennedy added.

During other testimony, the whole point of declaring no-go areas was brought up. As the Australian Strategic Policy Institute’s David Connery noted, terrorism and extremism is hardly limited to war zones like Syria and Iraq. Both London and New York have been prominent recent sites of international terrorism; we would hardly issue a blanket ban on Australians visiting those cities. “I think it is going to be extremely hard to operationalise in a fair way,” Connery said.

Ultimately, the most devastating testimony of the day was from Bret Walker, the man who was, until recently, the government-appointed monitor of national security legislation.

Walker has rendered fine service to the Australian public in that role, explaining and in some cases defending national security legislation, and in other cases recommending that parts of it be amended or repealed. The role represents one of the very few windows we have into the largely secret workings of Australia’s national security state.

And yet, as Walker’s testimony yesterday made clear, the position was essentially toothless. It has few genuine powers of review, and, with “one comic exception”, Walker wasn’t even presented with draft bills before they were tabled in Parliament. “None were brought to my attention,” he confirmed.

That exception? A bill to abolish the position of Independent National Security Legislation Monitor.

As it happens, George Brandis has got around that particular problem. He simply hasn’t appointed a new monitor after Walker stepped down at the end of his mandatory three-year term.

That’s national security in the current environment, where threats are ever-present, but safeguards are easily dispensed with.