A short methodological note on the National Security Legislation Discussion Paper released last week: this is the worst discussion paper I’ve ever seen, and I’ve seen a few. No executive summary, not structure, minimal discussion, just a whole pile of amendments and barebones commentary.
Attorney-General Robert McClelland says the paper was held over until after the Melbourne terrorism raids, but it looks like a rush job.
There’s also the faintly sinister insistence — 54 times — that “This Page Is Intentionally Blank”. There have been some significant omissions, or one of McClelland’s donors is a paper producer. You be the judge.
Anyway, on to the substance.
The predominant tone of media coverage of the paper — Guy Rundle’s splendid take last week excepted — is that of “balance”. And true, there are some positives — the reduction of the investigation period to seven days and twenty hours; the removal of the outdated sedition offence; the appellability of bail decisions; the ability of humanitarian organisations to obtain authorisations about the support they provide in areas where terrorism may occur.
But Australia’s counter-terrorism laws remain draconian and provide for minimal oversight of their operation and this paper does little to correct that.
While the reforms propose providing Parliamentary Committee oversight of the Australian Federal Police, they remove the role of overseeing and reviewing national security legislation from the Parliamentary Committee on Intelligence and Security (the new name for the Committee that oversees ASIO, ASIS and the DSD). Instead, the Government announced last year — in a release dropped into obscurity on 23 December — that a “National Security Monitor” would be established to review national security legislation.
Coincidental with the release of the national security paper, a Senate inquiry was held into the separate bill establishing the “National Security Monitor” last week. The “Monitor” will be a part-time position, supported by a two-person team, to oversee all national security legislation, carry out Government references — the Government has foreshadowed two already — and any self-initiated inquiries the Monitor decides are appropriate.
It amounts to a substantial diminution of parliamentary oversight of a legislative framework tilted heavily against individual rights. Parliamentary oversight is critical to the chances of keeping at least some external accountability in an area where public and press accountability is avoided by claims of national security.
At least, however, the committee overseeing the AFP — which will be the same joint committee that oversees the Australian Crime Commission — will have minor party representation. The Intelligence and Security committee, whose members are nominated by the Government, has no members from outside the major parties, although the value added by Steve Fielding, the minor party representative on the ACC Committee, must be wondered at.
And while the bulk of the discussion paper is given over to a series of amendments to simplify and clarify the operation of the public interest immunity in trials of those charged with terrorist offences – because the Attorney-General plainly does not have enough power to intervene to gag witnesses and lawyers in court proceedings – the paper is silent on the absurdity that is restrictions on an individual’s right to alert their family or legal representatives that they have been interned by security agencies.
This Kafkaesque nonsense seems to have been a particular pleasure of the Howard Government, which gave a similar power to Australia’s own Stasi, the Building and Construction Commission, which has prevented even passers-by hauled before its Star Chamber by accident from revealing their interrogation. In crafting the Anti-Terrorism Act No.2 2005, the Howard Government even offered a formula for those interned by security agencies to provide to their families: “I am safe but unable to be contacted for the time being.”
Which would of course serve as a perfect signal for any terrorist outfit that an individual had been abducted by a security agency — thereby defeating the entire purpose of keeping internees silent.
Abduction was of course the fate of Izhar Ul-Haque, the Sydney man kidnapped and falsely imprisoned by ASIO and AFP officers in November 2003. The ASIO officers involved in that little escapade continue to enjoy the cowardly shelter of anonymity and there has been no calling to account of either them or their superiors. Nor have they been charged with the range of criminal offences they would appear to have committed in apprehending Ul-Haque, interrogating him and depriving him of his liberty on the basis of a search warrant.
The role of the Howard Government in encouraging authorities, as one AFP officer put it, to charge “as many suspects as possible” has also never been appropriately investigated.
Instead, the paper seems to pursue a “mission creep” expansion of terrorism, absurdly proposing to embrace “psychological harm” (one envisages bearded Islamofascists in a darkened mosque plotting to cause maximum “psychological damage”, right?) and suggesting an extension of the link between terrorism and the incitement of violence against individuals or groups. Inciting violence is already a crime under ordinary criminal laws.
Slapping the label of “terrorism” on it adds nothing but the opportunity to undermine the rights of individuals.
Our current anti-terrorism laws don’t need “balance”, they need fundamental reform. The Government has proposed only a limited period — until 25 September — for comment on this dense, 400pp document. But it’s not what’s in the document that needs the most discussion — it’s what the Attorney-General has omitted, which is the reversal of the most substantial assault on basic rights in a generation.