Sacrificing Civil Liberties to Counter Terrorism: Where Will it End?
2018 John Marsden Lecture, NSW Council for Civil Liberties, 22 November 2018
My talk relates to a long-standing problem:
how to protect the community from terrorism, while at the same time respecting fundamental human rights, such as freedom of speech and the right to a fair trial
This problem has become especially acute in recent times. Governments around the world have responded to the tragic events of September 11, the London 2005 bombings and other attacks by enacting laws that confer extraordinary powers upon governments and their agencies. Such laws may be directed to protecting the community, but they are in the risk of undermining the very freedoms we are seeking to protect from terrorism.
George Marsden delivering the 2018 John Marsden Lecture.Read more
The NSW Council for Civil Liberties condemns the appalling act of terrorism that was inflicted last Friday upon people peacefully at prayer in Christchurch.
On Friday night, President of the Council, Pauline Wright, said “Our thoughts are with the people of Christchurch in all their diversity. NSW Council for Civil Liberties supports the rights of people of faith to observe their religions, no matter whether in a synagogue, temple, church or mosque. It is a dark day for our sisters and brothers across the Tasman and our hearts go out to them.”Read more
Two needed bills abandoned - one flawed and reckless bill waved though – a sad day in the Australian Parliament.
On Thursday, the last chaotic day of the Parliamentary session, the Prime Minister declared he would do all in his power to thwart the majority will of parliament.
His stated motive was to stop Parliament from passing legislation requiring the transfer of refugee children in need of medical care from Nauru to Australia for treatment. His deeper motive was to avoid his Government suffering a Parliamentary defeat on substantive legislation.
He succeeded by filibustering in the Senate and when the Bill was eventually passed by a majority of senators, by closing down the House of Representatives so the Bill could not be considered there.
This was shameful – both in process and outcome.
Also a casualty was the promised legislation to protect GLBTQI students from discrimination in private schools. This was both deeply disappointing and a breach of the Prime Minister’s commitment to act on this issue before Christmas.
Astonishingly the Government was also prepared to sacrifice its 'encryption' legislation that it had repeatedly insisted was so urgent the PJCIS had to abort its review process so the public could be better protected from terrorist incidents over Christmas.
The Labor Opposition then took the extraordinary decision to wave through the 'encryption' Bill without moving any of its own tabled amendments - in full knowledge of the many problems that remained in the Bill.
Its motive was to avoid being wedged on a national security issue. The outcome is that Australia has another flawed and disproportionate counter-terrorism law.
The NSW Council for Civil Liberties (CCL) has condemned the push by the Federal Government to advance new laws further stripping away the rights of Australians.
The text of the new bills has not been released. According to the Prime Minister Scott Morrison, they will impose conditions on the control, return and re-entry of Australians who have been in conflict zones. They will also make it easier to strip citizenship from Australians who have been convicted of terrorism offences.Read more
On Thursday, June 7, New South Wales Attorney-General Mark Speakman announced that the government would adopt the recommendations of a review of the Terrorism (Police Powers) Act 2002 by the Department of Justice. The report made 13 recommendations in relation to the legislation.
The NSW Council for Civil Liberties (CCL) notes with concern that the recommendations make little attempt to substantively change the laws, or to otherwise restore civil liberties. There is little attempt to reign in police powers in any meaningful way, which is why CCL opposed these laws in the first place.Read more
NSWCCL worked with other councils for civil liberties through January and February to respond to the large, complex and alarming Espionage and Foreign Intervention Bill 2017 and the related Electoral Funding and Disclosure Reform Bill 2017.
These Bills are part of a major package of proposed legislation relating to national security and foreign intervention which also included three other bills: the Foreign Influence Transparency Scheme Bill 2017, the Security of Critical Infrastructure Bill 2017 and the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017.
These Bills encompassed much beyond foreign intervention and national security. They also encompass an extraordinary multi-faceted attack on civil society’s right to participate in public political discourse.
This attack included a massive expansion of national secrecy laws capturing not just public officials but also any person who makes an unauthorized disclosure of information covered by these laws. Journalists rightly protested that the secrecy laws effectively criminalised every phase of journalists work. Charities and independent advocacy bodies like GetUp were targeted so as to undermine their participation in public political discourse. Many of the offences carry very serious penalties – in the case of general secrecy offences more than doubling current penalties.
The PM rightly described this package as ‘the most important overhaul of our counterintelligence legislative framework since the 1970s’. It was therefore a disgrace that we were only given a few weeks to comment on them. Strong protests from civil society groups eventually gained an extension into mid/late February.
Few organisations were able to respond to all the Bills in this timeframe. NSWCCL in conjunction with the Joint CCLs prepared submissions on the large and important Espionage and Foreign Intervention Bill 2017 and the Electoral Funding and Disclosure Reform Bill. We failed to get in a submission on the equally alarming Foreign Influence Transparency Scheme Bill 2017.
The reaction from civil society and the media – and the Law Council of Australia (LCA) - has been ferocious. The Attorney-General Christian Porter responded with a package of amendments to alleviate the impact of the secrecy offences on journalists.
This was a smart and positive move by the AG. His proposed amendments to his own Bill were in line with recommendations made by civil society and the LCA – however they are a long way from solving the very problems with these Bills.
The Parliamentary Committee on intelligence and security will report on the most significant of these Bills in April. In the interim NSWCCL will do what it can to persuade Parliament not to pass these Bills - and certainly not in their current form.
Dr Lesley Lynch
Vice-President NSWCCLRead more
In a surprising -and disappointing- intervention Minister Dutton has written to the Muslim Legal Network (MLN) querying the intention behind a section of their recently launched guide to anti-terrorism laws: ASIO, the Police and You.
The clear implication from the Minister was that the MLN were intentionally providing guidance to assist persons with terrorist or related criminal intentions to avoid detection by the Australian Border Force or AFP.
The extraordinary thing about this totally unwarranted distortion of the clear intentions of the guide (and its three earlier editions since 2004) was that the specific section cited as disturbing by the Minister was closely modelled on advice provided by a NSW Regional Coordinator of the Australian Border Force and their own official fact sheet "Border Advice for Hajj Traveller" issued in 2015.
As anyone reading this document would know the intentions behind the publication are totally constructive and positive.
This guide was produced for the same reason the three earlier editions were: to provide the community with a clear and understandable description of these laws and the rights and responsibilities of citizens in relation to them. Surely that is a positive!
The MLN has replied to the Minister and circulated a media statement repudiating his sinister interpretation of the guide. Nonetheless, they will slightly amend the wording to more strongly emphasise their positive intention.
NSWCCL considers the Minister's distorted interpretation to be deeply disturbing. We hope it does not signal an unwarranted and biased focus on this community guide to C-T laws because it was produced by a Muslim legal network.
We commend this 4th edition of ASIO, the Police and You. It provides a much needed service to the community - and we are very pleased that NSWCCL has contributed to all of the editions since 2004.
Dr Lesley Lynch
A much needed, plain English guide to Australia's complex array of counter-terrorism laws was launched tonight by the Australian Muslim Civil Rights Advocacy Network (AMCRAN) and the NSW Muslim Legal Network (MLN). NSWCCL was very pleased to assist in this enterprise by reviewing and advising on aspects of the publication - as we also did in its earlier versions of 2004 and 2007.
AMCRAN and the MLN have delivered again on very important and difficult project. It is a time-consuming and complex forensic task to analyse the 80 plus counter-terrorism laws in Australia to extract accurate and reliable information for citizens who might be impacted by these laws and their legal representatives.
The initial edition of this guide was in response to a community need to understand new laws that were not only very complex but markedly different in their implications for rights and responsibilities of citizens- and the powers of ASIO and the AFP. This 2017 edition incorporates the virtual tsunami of new counter-terrorism laws passed in recent years- significant parts of which the NSWCCL, the Law Council of Australia and many community groups strongly opposed.
Significant changes covered in this version include:
"new offences of advocating terrorism and genocide; the new offence of travelling to declared areas; laws affecting citizenship and passports; the introduction of named person warrants; the introduction of mandatory metadata retention laws; laws allowing control orders to apply to children as young as 14 years; and the increase of the powers of both the Australian Security Intelligence Organisation (ASIO) and the Australian Federal Police (AFP)". (Preface to the 4th edition)
This guide will help the the community to understand the reach of current counter-terrorism laws and the powers of ASIO and the Australian Federal Police. It may also be helpful for ASIO and AFP officers. It is a terrifically important publication - and we congratulate the MLN and AMCRAN and the other individuals who assisted with the writing and review process.
We are fairly confident - along with the publishers - that this will not be the final version.
In the near future NSWCCL will be collaborating with other interested groups to run forums to familiarise interested people with the contents and significance of this updated guide.
Dr Lesley Lynch
Convenor National Security and Counter Terrorism Group.
The report by the Independent National Security Legislation Monitor –Roger Gyles QC - on the controversial section 35P provisions of the ASIO Act was tabled in the Senate on 2nd February. These provisions created draconian offences with penalties of 5 and 10 years imprisonment for disclosure by any person of any information relating to ASIO ‘Special Intelligence Operations’ (SIO) at any time.
NSWCCL, along with the other councils for civil liberties, strongly opposed both the SIO regime and these provisions for their chilling effect on the media and on reasonable scrutiny of ASIO. The controversy around these offences forced the Prime Minister to ask the INSLM to review their impact on journalists.
The report is thorough and suggests the INSLM gave proper and serious consideration to the informed criticisms of the SIO regime and the obnoxious disclosure offences. His findings on the offences are consistent with our views. His recommendations remedy some of the worst aspects of the offences – but sadly fall short of repealing them.
The Government has said it will implement the INSLM’s recommendations in full.Read more
The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 has not yet been approved by parliament. The debate on the Bill is scheduled to resume next week. As Labor has indicated it will support the revised version of the Bill, it is almost certainly going to be approved quickly and probably without amendment.
As this is such a significant issue, the NSW, Victorian, Queensland and South Australian Councils for Civil Liberties and the Australian Council for Civil Liberties have issued a joint public statement making one last call on the Australian Parliament to abandon this misguided Bill.Read more