the new terror
by Pauline Wright
Vice President, NSW Council for Civil Liberties
The New South Wales Council for Civil Liberties is united
with many other bodies in Australia, including State and Territory bodies
representing the legal profession, the Law Council of Australia, NSW Women
Lawyers and members of the broader community, in opposition to the Federal
Government’s proposed anti‑terrorism legislation.
Of particular concern is the
fact that the Government proposes to introduce “control orders” and
“preventative detention orders”. These types of laws have never been known
before in Australia and are completely inconsistent with the rule of law as it
should exist in a democracy like Australia. These proposed changes are unwarranted
and unacceptable.
Everyone acknowledges that
Australia’s national security is of vital concern and that proper measures
which address threats to security and protect the Australian people from
terrorist acts are appropriate.
What we do not support, and
what is proposed by the Anti-Terrorism
Bill (No. 2) 2005 are measures that fail to strike the balance between
protecting the national security and maintaining fundamental human rights. In
its ill-thought out measures to protect national security, the Bill runs the
risk of eroding the foundations of the free society we enjoy and which it seeks
to protect.
There is no evidence that
the proposed new laws will have any effect in preventing terrorist acts. These
laws will not stop a person intent on committing a terrorist act. Terrorists
will find a way around every new law as soon as it is enacted. But what these
laws will certainly do, is jeopardise the fundamental principles of democracy.
The measures proposed are
dangerously flawed in that they contravene some important guarantees and
safeguards which have always underpinned the Australian criminal justice
system, including:
- the presumption of innocence;
- the requirement that guilt be established beyond reasonable
doubt;
- the right of an accused person to a fair trial; and
- rules of evidence which are fair to all parties.
Further, there has been a
spectacular failure by the government to consult the Australian people in the
process of developing the Bill. This is of particular concern given that the
Bill has such great potential to threaten our traditional rights and freedoms.
It is not surprising that many commentators have speculated cynically upon the
Government’s motives in failing to consult. Trust in parliamentary democracy
has been undermined by this failure to consult, which is in turn a threat to
Australia’s democracy. It is vital that there is transparence in the
consultative process so that all sectors of the community are able to comment
on proposed laws to ensure our traditional rights and freedoms are protected
and that the proposed laws are accompanied by all appropriate safeguards.
In Australia, we do not have
any legislative protection of human rights, such as a Bill of Rights. That is
not the case in comparable countries, such as the United Kingdom. In support of
the Bill, Government sources have quoted the UK laws which have recently been
introduced in response to the terrorist threat, and argue that the laws sought
to be introduced in Australia will be in similar terms. That ignores the fact
that the rights of citizens in the United Kingdom are protected by their Bill
of Rights. We do not have that luxury.
It is fundamental to
Australian democracy that people who have not been charged with or found guilty
(or indeed be suspects) of a criminal offence should not be subjected to
imprisonment or restrictions on their liberty. The proposed control orders and
preventative detention orders will undermine that fundamental principle.
In combination with the raft
of legislation that was brought in post-September 11, 2001, the following
scenarios will be possible:
Detention Orders
Any person can be secretly taken
into custody and detained indefinitely.
Because the person being detained
does not have to be told all the details of evidence against them, they cannot
mount a proper challenge against their detention.
Further, while the detainee has a
right to contact a lawyer, that contact will be monitored and the lawyer and
the detainee will only be provided with a copy of the detention order and not
the supporting material, therefore the information available to the lawyer to
challenge the detention is limited.
Because contact is monitored (although legal professional privilege is
stated to be protected), free communication cannot occur to enable the lawyer
to obtain proper instructions to mount any challenge to the detention. The Bill
also limits the choice of lawyer. Again, this offends fundamental principles of
democracy.
The detention can effectively be
indefinite. The Bill does place time limits on the preventative detention and
control orders, but there are inadequate safeguards contained in the Bill to
stop “rolling orders”. This means that once one order ceases, a new order is
issued immediately. That means that the detention can last forever, in theory.
Similar laws were used in South Africa, where it was not uncommon for people to
be released and then re-arrested on the steps of the Police Station.
These detention orders are to be
kept secret. There is a penalty of five years gaol for telling someone, during
the currency of the detention warrant, that a person is being detained.
This means, for example, that if you knew your brother
had been detained and you told your mother about it, then you would be liable
for five years’ gaol. If your mother told your father about it, she would also
be committing an offence. Because detention orders can be rolled over, this
would mean that you might know about the detention of your brother but would be
unable to tell anyone about it for, possibly, years during the currency of the
detention warrant.
The media are subject to the same restrictions and
penalties.
These measures mean that
people can be detained indefinitely, in secret, without being guilty of a crime
(and in the case of material witnesses, without even being suspected of having
committed or being about to commit a crime), without the benefit of reasonable
doubt and without being able to challenge all the evidence against them.
This offends against the
most fundamental tenets of our democracy.
Sedition
Under the proposed sedition laws,
criticism of the Government, whether privately or publicly, if it can be
considered to “urge” others into action will be considered seditious and
punishable by 7 years gaol. There is a defence of making statements in good
faith, however, that defence is very narrow and places the onus on the accused
person to prove their innocence. This is a reversal of the fundamental rule of
law in Australia that the prosecution must prove the guilt of an accused person
beyond a reasonable doubt. Further, there is no exception for artistic,
academic or journalistic purposes. In addition, you do not have to actively
intend to urge another person to action. If you are merely reckless as to
whether your statements might urge action, then you are still guilty of the
offence of sedition. This offence carries seven years gaol.
Financing Terrorism
Schedule 3 of the Bill deals with
financing terrorism. While the object of preventing the financing of terrorist
organisations may be laudable, the proposed law is very poorly drafted and
could mean that people innocently providing funds could be found guilty of
financing a terrorist or terrorist organisation, for which the penalty is
imprisonment for life.
Under this section, a person could
be imprisoned for life if they indirectly made funds available to another
person and was reckless as to whether the other person might use the funds for
terrorism. Recklessness in this context means the person is aware of a
substantial risk that the funds would be used for terrorism and, having regard
to circumstances known to them, it is unjustifiable to take the risk.
The person need not intend that the
funds be used for terrorism, nor must they have knowledge that the funds will
be used for the purpose. The offence is committed even if a terrorist act does
not occur or the funds will not be used for a specific terrorist act.
This makes it impossible for any
person to know the scope of their legal liabilities with any certainty.
Terrorists may obtain financing from a range of sources including legitimate
institutions, such as through banks. They could employ a variety of deceptive
means to secure funding.
This proposed law will require
every Australian to be extremely vigilant in considering where their money
might end up before donating to a charity, investing in stocks, depositing
money with a bank or even giving money as a birthday present.
Some examples might highlight the
potential danger to ordinary people in these proposed laws.
You might have an idealistic
daughter who travels to Nepal to seek spiritual enlightenment. She might become
involved in a spiritual movement opposed to capitalist materialism or the like,
headed by a particular guru. You might send money to your daughter and she may
give it, or some of it, to her guru. In those circumstances, you may have
committed a crime punishable by life imprisonment, even if the money you send
is not spent on terrorist activities and no terrorist act occurs, because you
have been reckless as to the ultimate beneficiary of your funds.
Another scenario might involve fund
managers with investment portfolios. Most fund managers invest money on behalf
of parties whom they cannot identify. As the fund manager cannot identify
ultimate clients, they can never be sure that the funds are not being collected
on behalf of terrorists. This legislation would leave legitimate fund managers
with doubt and potentially open to prosecution. A fund manager might invest
money in businesses which they do not control. A person may, for example,
consider investing in a nitrogen fertiliser plant. The fertiliser may be
intended for entirely peaceful uses, but it is certainly possible that it might
be used for explosives, even though there might be tight government regulatory controls
on access to the product.
The wording of the bill is very
broad. It only requires that the funds provided cannot “facilitate” a terrorist
act.
Mobile telephones could be
considered to facilitate terrorist acts (that is how terrorists talk and sometimes
even trigger their bombs). Does this mean that investors cannot provide money
to a telephone company without exposing themselves to the risk of prosecution
and a possible life sentence?
The New South Wales Council
for Civil Liberties has prepared a detailed submission in relation to the Bill,
which is available by clicking on this link.
We urge you to join with us
in opposition to the Bill by emailing all State and Federal politicians.
See also:
Date: 11 November 2005
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