South Africa was a police state which began unobtrusively in 1948 as an ongoing “democracy” but became a totalitarian regime as the years progressed until it finally collapsed at the first democratic elections ever held in that country in April 1994.
Australia is supposedly a democratic country where “free and fair” elections are held at most every three years.
Should the proposed terrorism bills be passed by the current parliament in 2002 then we are on the slippery slope to police state status.
One of the first acts of the proposed legislation could -and would -be to silence those in the community who disagree with the government.
The media would be the first to suffer as they would have to print/publish what the government approved of and to censor what it didn't approve of.
The media have been strangely silent over the proposed bills - are they aware of what the government's ultimate agenda is?
Having started with South Africa as a police state, let me conclude with the absolute censorship of all the media in that country and point to the fact that the regime was responsible for the closure of one of South Africa's most respected newspapers, the Rand Daily Mail. This paper vociferously, and within the bounds of the constrictions placed on reporting by the regime, at every opportunity opposed the police state which operated around it. The regime ensured that financial support for this newspaper was gradually withdrawn until such time that the paper could no longer operate.
Remember what Pastor Niemoller said?
On 27 February 1933, the immense Reichstag1 building, the focal point of Berlin's imperial district, was set on fire and destroyed. Only the shell remained. It was a shocking act of terrorism.
In the midst of the public alarm that followed, Adolf Hitler, who had been Chancellor for less than a month, and whose coalition ministry contained only one other Nazi, went to President Hindenburg and presented him with an emergency decree, drafted by non-Nazi public servants, 'for teh protection of the people and the state'.
The decree abrogated basic civil rights. Hitler said that with this decree he could ' try enemies of the state legally and deal with them in a way that will put an end to conspiracies'.
The Reichstag fire was also used to justify the passing of the Enabling Act which further consolidated the control of the executive over elected representatives.
These two pieces of legislation were the legal foundation for all the excesses that followed.
In 1951 in Australia, at the height of public hysteria over the threat of communism, the Federal Attorney-General proposed a number of pieces of legislation in order to protect security. Such was their abrogation of human rights that the Menzies cabinet refused to approve them, and the measures were never introduced into Parliament.
Following the events of September 11 2001 President George W Bush declared 'war on terror'. He sought from Congress greatly increased powers, his legislation having the ominous preamble ' for the protection of the people'.
As part of this campaign, including the military adventures which accompanied it, a concentration camp has been established in US-controlled territory in Guantanamo Bay. Its inmates, including two Australian citizens, are held in inhumane conditions without the protection of the Geneva Convention, without the protection of the US Bill of Rights, and without recourse to courts of law.
The Australian government has not been far behind. The Federal government campaigned strongly on issues of 'security' in the 2001 federal election, linking the issue to 'border protection'. The tragic Bali bombing further strengthened the Coalition's hand, and a range of legislative measures relating to terrorism has now been passed.
In June 2003 the sons of two former Whitlam government ministers, Crean and Beazley, bickered over the inheritance of the Labor Party mantle. The day after Crean won the party's leadership ballot, he did what Beazley also would have done: he indicated that Labor would support the government's slightly modified Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill.
Labor thus supported legislation far more extreme than the proposals rejected by the Menzies cabinet in 1951.
Compulsory questioning of persons is not new.What is fundamentally different in this legislation is the way it may be done, and the use to which the information acquired may be put.
The value-laden term 'terrorism offence' is fundamental to the ASIO legislation.Following earlier legislation of the Howard government, it is defined in the Criminal Code. The definition, dealing as it is with a notoriously subjective concept, struggles to achieve coherence. The necessary intent is:(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country;or
An action falls within the definition of the offence if it causes serious harm that is physical harm to any person, or endangers the life of a person, or 'creates a serious risk to the health or safety of the public or a section of the public [of any country]' or seriously interfereswith an electronic system.
The definition of terrorism depends on the identity of the government of a particular country. Actions by East Timorese against Indonesian occupiers which created a risk of conflict in the territory would fall within the definition. Even persons who raised money for the East Timorese, being reckless as to whether or not those funds be used for terrorist acts (as defined) would now, under these laws, be liable to life imrisonment.
Actions by anti-Nazi Germans against Hitler's regime prior to World War II also would have been caught by this legislation.
The ASIO legislation is concerned with terrorist offences anywhere in the world. The definitions are such that this is broadly defined.
A subpoena compels a person to answer questions in a court of law. Similarly, when a Royal Commission subpoenas a witness, the recipient must answer questions or face prosecution.
In the criminal sphere, compulsory questioning has been introduced in a range of Royal Commission styled bodies, including the National Crime Authority (now replaced with the Asutralian Crime Commission) and the more narrowly focused Australian Securities and Investments Commission.
In all these cases there arecarefully crafted restrictions on the use to which the product of such an investigation may be put. Generally speaking, the requirement is that this material may be forwarded to law enforcement authorities or prosecutors.
The new ASIO legislation is silent as to the use to which the product of any questioning may be put. It can be used in any way those who compile it wish to use it.
Given the nature of ASIO, it is highly likely that ASIO will use its new powers at the request of foreign governments, particularly the United States and the United Kingdom. Once the product is handed over to such foreign authorities, there will be no Australian control over the way they use it. But we can guess.
The United States has publicly stated that it is prepared to use extrajudicial killing as a method of dealing with terrorism. The UK has a long history of assassinations, most recently involving its dispute with the IRA
It follows that there is a real risk, if not a likelihood, that these new powers will be used to aid extrajudicial killings by authorities. Persons ought not to be compelled, under pain of prosecution, to provide information that will,be used in this way.
It is the worst sort of hypocrisy to claim to be suppressing terrorism when in fact your legislation is likely to aid it.
Hitherto, when police approach a magistrate or a judge for a search warrant, the requirement has been that the facts upon which the warrant is sought, including the suspicion of the officer concerned, are set out in an affidavit and verified on oath.
With this legislation, no official has to swear up to anything.
All the Director-General of ASIO must do is 'set out the facts and other grounds upon which the Director-General considers that the warrant should be issued'.3One would have thought that the hurdle would be placed higher, not lowered in this way. At least a false affidavit is subject to the penalties of perjury.
The test of which the Minister must be satisfied is ludicrously vague:
(a)that there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and
(b)that relying on other methods of collecting that intelligence would be ineffective;
(c)[there is a series of other technical requirements]4
Imprecise words like ' substantially' and 'important' make the Minister's value judgment almost impossible to challenge. Paragraph (b) will almost never be able to be challenged - of course if the intelligence you seek is someone's answers to questions, it is unlikely, if not impossible, that 'that intelligence' can be collected in a way other than asking them.
Of critical importance is that the powers in the ACT are not confined to persons who are suspects - they may be used against any person reasonably suspected of having information.
It is enough if you have been dining at a restaurant at the next table to some suspected terrorists, and it is believed that you may have overheard something. It is enough if you have come from the home village in another country of a suspected terrorist, and it is believed you may be able to provide some background on the person. It is enough if you are a relative of a suspected terrorist, and you may have some idea of where they might be. It is enough to be a journalist who has interviewed one of these suspected people.
The powers to detain persons for questioning have a breadth of application that is chilling.
The legislation permits persons to be held for questioning in detention for up to a week - for each warrant.
When the Bill reached the Senate, the Greens pointed out that the Bill permitted rolling warrants which enabled indefinite detention. The debate was held up while the government and Labor negotiated a solution.
In a minor concession, they modified the Bill to stipulate that a citizen detained for interrogation cannot be held beyond seven days but can be re-arrested on release if there are new grounds. This 'revolving door' solution is contrary to the Joint Standing Committee's recommendation that the person questioned be either released or charged at the end of seven days.
Accordingly, the Bill permits interrogation over a period exceeding seven days. There is no justification for this.
The legislation permits persons to be held incommunicado for the purposes of questioning. Indeed, this is the prima facie position:
A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in detention.5There are elaborate provisions for permitting contact in certain cicumstances, and there is a right to contact the Inspector-General of Intelligence and Security and the Ombudsman.
Originally, the only lawyers permitted to assist persons the subject of these provisions were so-called 'approved lawyers', with the minister having sole power to approve such lawyers.
Under changes to the legislation, a person may contact their lawyer of choice, but subject to a right in ASIO to vet and reject the lawyer.
The questioning may occur in the absence of the lawyer, and this is the time when a person would most need legal advice.
Short notice to the lawyer, and the long time involved (seven days) will in practice make it far too expensive for most people to engage their lawyer of choice.
At the questioning, there is a requirement to explain why each person is present - once only. No one need be named.
The questioning may be preceded by a strip search of the person.
The length of time available for questioning - a week - means that the experience may be onerous indeed.
The legislation contains a number of criminal offences. In particular, a person 'must not fail' to give any information requested. The penalty for such failure is imprisonment for 5 years. It is a defence to the charge that the person 'does not have the information'. However, it is for the defendant to affirmatively make out this defence.
This is bizarre. It means that the only defence to failure to provide information requested is to prove a negative - that you did not have the information. In practice this will be almost impossible to do.
Neither September 11 nor Bali would have been prevented by this legislation. No case justifying it has been made out.
The prospect of persons being held incommunicado for questioning, with their answers able to be used for extra-judicial killing and other acts not sanctioned by the law of Australia, opens the way to terrorism indeed - international terror by the state against the citizen.
The ASIO legislation makes Australia radically less secure. It undermines key defences of our way of life, and will align us in ways we cannot control with powers who have shown themselves to be poor international neighbours.
We expected no less from John Howard. We can no longer expect better from Labor.
Expensive weapons, aggressive war and repressive laws will not make us secure - just ask those who experienced Hitler's regime.
Brian Walters is a Melbourne Senior Counsel, Vice President of Liberty Victoria, Free Speech Victoria spokesperson and Victorian Greens Legal Spokesperson, who has conducted many cases - on both sides - involving Royal Commissions, the National Crime Authority, and similar bodies.
2. Criminal Code s 100.1
3 s 34C(2)(b)
4 s 34C(3)
5 s 34F(8)
1) Which is the only country in the world to have dropped bombs on over twenty different countries since 1945?
2) Which is the only country to have used nuclear weapons?
(Mannie De Saxe and Dr Helen Caldicott, author of the newly published "The New Nuclear Danger", Hiroshima Day, 9 August 2002, Melbourne)
(Photo by Kendall Lovett)
3) Which country was responsible for a car bomb which killed 80 civilians in Beirut in 1985, in a botched assassination attempt, thereby making it the most lethal terrorist bombing in modern Middle East history?
4) Which country's illegal bombing of Libya in 1986 was described by the UN Legal Committee as a "classic case" of terrorism?
5) Which country rejected the order of the International Court of Justice (ICJ) to terminate its "unlawful use of force" against Nicaragua in 1986, and then vetoed a UN Security Council resolution calling on all states to observe international law?
6) Which country was accused by a UN-sponsored truth commission of providing "direct and indirect support for "acts of genocide" against the Mayan Indians in Guatemala during the 1980s?
7) Which country unilaterally withdrew from the Anti-Ballistic Missile Treaty in December 2001?
8) Which country renounced the efforts to negotiate a verification process for the Biological Weapons Convention and brought an international conference on the matter to a halt in July 2001?
9) Which country prevented the United Nations from curbing the gun trade at a small arms conference in July 2001?
10) Aside from Somalia, which is the only other country in the world to have refused to ratify the UN Convention on the Rights of the Child?
11) Which is the only Western country which allows the death penalty to be applied to children?
12) Which is the only G7 country to have refused to sign the 1997 Mine Ban Treaty, forbidding the use of land mines?
13) Which is the only G7 country to have voted against the creation of the International Criminal Court (ICC) in 1998?
14) Which was the only other country to join with Israel in opposing a 1987 General Assembly resolution condemning international terrorism?
15) Which country refuses to fully pay its debts to the United Nations yet reserves its right to veto United Nations resolutions?
Senator Bob Brown, GPO Box 404, Hobart Tasmania 7001.
Tuesday, 21 September 2004
From: Kendall Lovett, 2/12 Murphy Grove, Preston Vic.
(PO Box 1675, Preston South, Vic 3072) Email: josken_at_zipworld_com_au
Dear Senator Brown,
I realise you are extremely busy at the moment. However, the following may be of interest and of use in the election campaign.
Before going out on the hustings, I gather the Howard government announced a review of the Privacy Act. This followed the Australian Bankers Association’s failure to gain access to the electoral roll data via a submission to the Joint Committee on Electoral Matters (The Age editorial, 26.8.04).
The ABA has had a second attempt, I understand, by lobbying the Howard government and appears to have succeeded. Is that perhaps why Howard plans to review the operations of the Privacy Act? There is also another reason, which should concern us. The Privacy Act excludes the parties from using the electoral roll and data collection without appropriate parliamentary accountability, doesn’t it? The two major parties would not like that. It seems that Labor’s Electrac and the Liberal’s Feedback databases both use the electoral roll as a foundation for vast collections of information about individuals , including political leanings, to target “aspirational” and swinging voters. This data draws on survey responses, interests, club memberships, to letters to the press and phone calls. The databases are privately operated, so are exempt from freedom of information laws. Wouldn’t the Lib’s Feedback database, provided by his father, have been used by Tim Howard to send out all those emails in the Bennelong electorate? It’s even said that its candidates are expected to buy these databases which according to Cowan University academic, Peter van Onselen, has said is part of an “institutionalised violation of Commonwealth electoral laws.”
It’s obvious that the government wants to rid itself of the Privacy Act’s power. The Government Members Secretariat used to have the job of overseeing the Lib’s database operation. Not anymore, the Chief Government Whip’s office does it now which shields it from parliamentary scrutiny. The parties are obviously crossing a crucial line between keeping in touch with voters and keeping tabs on them.
We are fast losing our democratic status and dangerously close to dictatorship when you add to this the terror laws, the asylum seeker jails, the homophobic marriage amendments, the pre-emptive strike policy and homeland security mentality.
Good luck and lots of Greens in both federal houses.
Refugee blunder costs ASIO
By Mark Forbes Foreign Affairs Correspondent Canberra
November 10, 2004The Age article reproduced, sent to us by Civil Rights Network
ASIO has been forced to pay about $200,000 in compensation to a refugee it falsely classified a national security risk, causing him to be locked up for two years.
An assessment from a Middle Eastern secret police service, found to have a dubious human rights record, left the Kuwaiti man in the Maribyrnong detention centre for two years. He was released after ASIO was forced to admit he was classified "directly a risk to Australian national security" solely on information provided by the secret police who had persecuted him.
Mr Mohammed - who does not want his real name used - has fought a lengthy legal battle with ASIO, despite an inquiry by the Inspector-General of Intelligence and Security finding its security assessment was substantively defective.
ASIO accepted without question information "from a country with a dubious human rights record", the inquiry found. Although one legal report on the case says the information came from Iraqi secret police, intelligence sources said Kuwaiti intelligence was responsible.
The payment was made earlier this year, but no details were included in ASIO's annual report, released last week. Asked why it was excluded from the report and to explain the case's circumstances, a spokeswoman for ASIO director-general Dennis Richardson said "the director-general does not wish to comment on your questions".
For two years, ASIO blocked Mr Mohammed's attempts to appeal against its security assessment in Australian courts, successfully arguing it would jeopardise its relationship with a foreign intelligence agency. In 1999, his lawyer complained to the then inspector-general, Bill Blick, who launched an investigation. Soon after the inquiry began, ASIO reassessed Mr Mohammed and withdrew its claim he was a security risk.
Mr Blick continued the inquiry, finding ASIO had breached its guidelines by accepting "the foreign service's version of events without corroboration or serious question". An internal ASIO review also found "substantive defects in the assessment process".
The reports "should have been viewed with scepticism because ASIO knew that the country concerned has been assessed as having a poor human rights record".
As Mr Mohammed was denied the right to appeal to a court, ASIO had a responsibility to accord him natural justice, the review found. Although Mr Blick recommended compensation, negotiations dragged on for more than three years. The process is believed to have left Mr Mohammed severely distressed and concerned for his security.
He arrived in Australia seeking refugee status in 1997, and was found eligible for a protection visa by then immigration minister Philip Ruddock, subject to a security check. He had been living in Kuwait when it was invaded by Iraq in August 1990. Arrested by Kuwaiti police and deported to Iraq, he came to Australia via Jordan and Syria.
After ASIO's negative security assessment, the agency refused to release its details, or say which overseas agency provided them. ASIO, seeking to block a bid by Mr Mohammed to overturn the assessment of him, had told the Federal Court it had received "a written response from the overseas agency refusing to agree to the disclosure of the material". But a migration law update says "the appeal was basically by ASIO so that ASIO did not have to disclose the confidential information provided to it by the Iraqi Secret Police".
A spokesman for Mr Ruddock said results of Mr Blick's inquiry and Mr Mohammed's payment indicated "checks and balances in the system are working".
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Those of us who have lived in a police state and watched it developing into a situation where everyone's lives are being watched by "big brother" type situations, have been alarmed at the security regulations brought in by governments - USA, UK and Australia - with, in the case of Australia at least, the willing cooperation of the opposition. It is therefore of great interest to hear the views of those who oppose the draconian measures of these governments, and these interviews on the ABC on Friday 17 December 2004 gave heart to those of us who have felt the situation to be hopeless.
To add to this feeling of frustration and anger were today's actions by the Federal government in its ongoing efforts to deport a family of asylum seekers from Australia - another example of disgraceful behaviour by the government, supported by the loyal opposition!
This is the print version of story The World Today - Parallels between counter-terrorism measures and Nazi Germany
The World Today - Friday, 17 December , 2004 12:23:59
Reporter: Eleanor Hall
ELEANOR HALL: The Federal Government's laws giving ASIO powers to detain and question terrorist suspects have faced criticism in Australia.
But in Britain the UK's highest court has today ruled in favour of detainees (who are) being held under some of the Blair Government's counter-terrorism measures.
Britain's Law Lords ruled that locking up suspected foreign terrorists without trial is in breach of European human rights laws.
LORD BINGHAM: The measures unjustifiably discriminate against foreign nationals on the ground of their nationality or immigration status, and are not strictly required since they provide for the detention of some but not all of those who are said to present the same risk.
ELEANOR HALL: Lord Bingham speaking for the bench there from the British House of Lords.
And a distinguished United States lawyer who's in Australia at the moment is applauding the judges' decision.
But Michael Bazyler, Professor of Law at California's Whittier Law School, and an expert on Holocaust justice, is nonetheless warning that there are dangerous parallels in the way Western democracies have been responding to terrorism and the rise of Nazi Germany.
I spoke earlier to Professor Bazyler and began by asking him about the British court's ruling.
MICHAEL BAZYLER: I think I'm very happy with it. It looks like British courts like the American courts are coming forward and telling the political branches of the government that they are violating the civil liberties of the people they have in custody and they're saying that it's illegal to do so.
ELEANOR HALL: Were you surprised by some of the counter-terrorism laws that were imposed in the UK, the US and Australia after September the 11th?
MICHAEL BAZYLER: I was very disappointed. I really did not realise that the laws would be so drastic. It showed me a perfect example of the old adage of how precarious democracy is and that in light of a drastic, critical, you know, event in national history, in world history, that you would have a reaction by governments that would really go overboard.
ELEANOR HALL: Was it going overboard though, I mean some people would say that in extreme situations you need extreme measures.
MICHAEL BAZYLER: We can not take on and use anti-democratic measures because if we end up doing that then we basically are coming down to the level of the people that are trying to destroy us.
The lesson we get from this is going back to World War II. The perfect example that I can use is from the United States where in the wake of World War II and the attack by the… by Japan on the United States, we in the United States, interned Japanese Americans in internment camps, equivalent to concentration camps. That was an overreaction. It was an overreaction that unfortunately the United States Supreme Court upheld, and it's been a black mark on American legal history, and we say let's make sure that we don't repeat this again.
ELEANOR HALL: Now you've been making comparisons with Nazi Germany. Why have you been doing that?
MICHAEL BAZYLER: Well, let me make clear, I'm not saying at all that the United States or Britain or Australia at all are like Nazi Germany. What I'm saying is that it's very important to take a look at Nazi Germany in 1933 when Hitler first came to power. This was a democratic country, it was a country based upon a rule of law, it had a very sophisticated legal system, and the holocaust began with the passage of laws. Laws that eventually ended up in the legalised murder of six million Jews and other persecuted minorities.
And so it's really important to take a look at the first step, and say, 'Are we on this road today, you know, in the Western democracies?' And make sure we don't go there.
ELEANOR HALL: And what's your answer to your question? Are we on that road today?
MICHAEL BAZYLER: I think there's a danger. But with the courts coming in and saying no, it's… the road itself is much less likely.
Ultimately we have to realise that the courts are powerless. Any decision issued by a court can be ignored. I mean the High Court in Britain or the United States Supreme Court does not have an army to enforce its laws, the enforcement power that it has is by an agreement in a democratic system.
ELEANOR HALL: What about somewhere like Guantanamo Bay? Is that a blot on the US record? Is that heading towards what you're talking about with Nazi Germany?
MICHAEL BAZYLER: If it was… if it's something that the United States courts would not stop, it's something that would lead to a less democratic state. Whether eventually it could lead to something like Nazi Germany, I can't say. I mean, you know, the holocaust was a unique event and one that we hope will never happen again. But once we start going down the slippery slope, we just don't know where we'll end up, and it's really important to remember the sense of history, and to learn from history.
ELEANOR HALL: Michael Bazyler, Professor of Law at California's Whittier Law School and an expert on Holocaust justice.
© 2004 Australian Broadcasting Corporation
Copyright information: http://abc.net.au/common/copyrigh.htm
Privacy information: http://abc.net.au/privacy.htm
The following article appeared the day after the above interviews on ABC's Radio National "The World Today" programme, and is therefore very relevant as a consequence.
The Age, Saturday 18 December 2004
Terror laws a 'greater threat than terrorism'
By Peter Fray Europe Correspondent London December 18, 2004
Britain's highest court is set for a showdown with the Blair Government after dealing a severe blow to its anti-terror strategy.
Labour fears any sign of softness on security issues will be exploited by the Conservatives, who are desperately looking for a chink in the Blair Government's armour - and, with the departure of Mr Blunkett, they feel they have found one.
Australia and Terrorism - Part 2
Australia and Terrorism - Part 3
Australia and Terrorism - Part 4
Gay, Lesbian, Transgender, HIV (GLTH) Asylum Seekers - Part 1
Gay, Lesbian, Transgender, HIV (GLTH) Asylum Seekers - Part 2
Gay, Lesbian, Transgender, HIV (GLTH) Asylum Seekers - Part 3
LESBIAN & GAY SOLIDARITY PAGE
RED JOS: HUMAN RIGHTS ACTIVISM
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