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Oct 9, 2017

Widening terror laws allows government to pursue non-terrorist enemies

When governments use words like "terrorism" and "security", the scrutiny that should be applied to them switches off, allowing them to get away with far more than they otherwise could.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Governments love the concept of “terrorism” because it acts as a repellent to scrutiny and transparency. To try to subject terror law, and our terrorism apparatus, to the sort of scrutiny that other laws, and other parts of the bureaucracy, receive through the parliamentary process and the media is always to risk being accused of letting the terrorists win. That’s why Malcolm Turnbull has now accused Labor of abandoning “bipartisan commitment to keeping Australian’s safe from terrorism”, because shadow Attorney-General Mark Dreyfus dared to quibble with the idea of arbitrarily detaining 10 year olds for extended periods.

The Coalition has been annoyed by Labor’s refusal to allow even the slightest differences between it and the government on national security and stretches and strains for anything it can represent as Labor going soft on terror. In 2015, Tony Abbott used Dreyfus’ suggestion that, instead of leaving Australian dual nationality (retrospective irony alert) terrorists roaming the world, we should bring them home and jail them, as “rolling out the red carpet for terrorists.”

And because using this polar “you’re tough on terrorism or you’re weak” framing deters scrutiny and challenge, governments like to expand it to incorporate things unrelated to terrorism. The brutal Erdogan regime in Turkey, for example, is proposing to jail Amnesty International director, Idil Eser, and others, for 15 years for terror offences. Their crime was to conduct a digital security workshop of the kind that tens of thousands of people around the world have done, to learn online security basics that anyone, but particularly journalists and activists, should know. 

And remember, one of the government’s current proposals is to make the mere possession of “instructional terrorist material” a criminal offence. How long before encryption techniques become “instructional terrorist material” here too?

Widening of the concept of terror isn’t only for thugs like Erdogan. Since 9/11, the definition of “terror” has been widened considerably in the United States. The widening is often directed at trying to bring protest action under the rubric of terrorism; anything “dangerous to property” and intended to influence governments by “intimidation” is considered a basis for placing someone on a no fly list in the United States. Earlier this year, the state of Georgia amended laws to make virtually any damage to infrastructure, including schools, “terrorism”. Protests at military installations can be treated as terrorism in the US; in the wake of 9/11, two nuns who protested at a military site in Colorado were placed on a terror watch-list. Protesters at Pine Gap are also charged under national security laws here. A Tennessee water official even claimed unverified complaints about water quality could be seen as terrorism.

By expanding the remit of terms like “terrorism” and “national security”, governments benefit from the lower levels of scrutiny and accountability that apply compared to other government functions. This isn’t merely political, it is embedded in our legal framework. For example, under s.25 of the ASIO Act, the Attorney-General can issue a search warrant for ASIO officers to break into premises, search and remove material, and search individuals. In criminal law, an independent judicial officer has to sign off on a search warrant. But by invoking “national security”, ASIO doesn’t have to meet this test — they can get a warrant from their own boss.

This is why ASIO, under the leadership of former ASIS boss David Irvine, didn’t need to satisfy an independent officer of the need for a search of Canberra lawyer Bernard Collaery’s offices and records, and the home of Witness K, after K revealed the illegal bugging of the East Timorese cabinet by ASIS. Brandis handed the search warrant to ASIO because s.25 of the Act enables him to do so if it is important in relation to security. The problem is, under the ASIO Act, “security” is defined as

 “the protection of, and of the people of, the Commonwealth and the several States and Territories from:

                              (i)  espionage;

                             (ii)  sabotage;

                            (iii)  politically motivated violence;

                            (iv)  promotion of communal violence;

                             (v)  attacks on Australia’s defence system; or

                            (vi)  acts of foreign interference;”

The raid on Witness K had nothing to do with any of these matters. The raid was entirely about attempting to silence Witness K from revealing the illegal conduct of the Australian Secret Intelligence Service in bugging the East Timorese cabinet, and intimidating his lawyer. And to this day, Witness K has not had his passport returned by DFAT, despite ASIO, now under the leadership of Duncan Lewis, stating that he was no threat to national security (which, in turn, further undermines the case for the original warrant).

The illegal actions of ASIS and the harassment of Witness K and Bernard Collaery is one of the most outrageous scandals of Australian intelligence history, but with the veil of “security” draped over it, the government has been able to get away with it.

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17 thoughts on “Widening terror laws allows government to pursue non-terrorist enemies

  1. John Hall

    We are reaching a tipping point where Governments could be viewed as terrorizing their own citizens. As someone who grew up during the Cold War, the current fear tactics by our Government is ludicrous overkill. In particular, Western civilisation has to acknowledge their primacy as the creation of most of the current Middle Eastern mess and the consequent ‘terrorism’ environment.

  2. klewso

    Let’s face it – “scaring the chooks” is easier than good policy.

    1. Mike Smith

      … and wedging the opposition, who are more interested in their poll figures than being an opposition

      1. Barbara Haan

        All of the above comments are spot on. We humans are remarkably easy to spook into compliance with ever-increasing assaults on our personal liberties when the threat of terrorism is brought up. Both the LNP and ALP use this unashamedly as a vote winning tactic. I would like to see Howard, Downer and Irvine all held to account for their behaviour in Timor Leste, but it won’t happen. Nor will Little Johnnie Big Brows ever admit that his govt. was responsible for “the current middle eastern mess and consequent ‘terrorism’ environment.” The ALP are in lockstep agreement: “Yes sir, no sir, anything at all sir”, except for mounting a weak opposition re the acceptability of incarcerating 10 year olds.
        I was interested to hear that one of Andrew Hastie’s reasons for joining the army was because he was outraged that students at UNSW had the gall to blame the LNP for helping to create the current middle eastern mess, thus making us all more unsafe. Keep your head stuck in the sand Tasty, Pasty Hastie. These views are as advanced as your Creationist leanings.

  3. Di Gate

    Does USA or England have access to my details, just because i have nothing to hide, doesn’t mean i get undressed and dressed in front of everyone. It’s called privacy and we the voters should of been asked. Should we all start wearing burkas, we are like frogs slowly boiling.

  4. Venise Alstergren

    MiniMal Turnbull is Tony Abbott in a bespoke suit-bullying on the outside, chicken s•it on the inside. However, thanks to the great Australian apathy, the bastards keep getting away with the worst governmental dictates in the nation’s recorded history.

  5. Graeski

    Agree wholeheartedly, Mr. Keane.

    The question is, what’s to be done about it?

  6. Dog's Breakfast

    We’re stuck with this BS, and worse, for the time being. I see no circuit breaker for this.

    One day these laws will be used for the most iniquitous of reasons, and they’ll all squeal how they were never intended to be used that way. Unintended consequences incoming, hit the floor!

    1. Marion Wilson

      But how will we find out who our government has thrown into solitary confinement? We are taking another step along the road of the “disappeared”.

      1. Christine Kuhl

        People are “disappeared” into psych ward solitary confinement all the time. The mental health staff tell them they have no “insight”, and confine them without water, clothing, or toileting facilities for hours on end. The evidence is that people who suffer from mental health problems often have higher IQ’s. We wouldn’t want them having a say would we?

  7. kyle Hargraves

    Expanding upon the observation of Klewso (at 13:36) :
    Overall : a useful assessment of the perils that are possible when the “reins are handed over willy-nilly”. Damn all would have occurred from a legislative perspective over the last sixteen years or so (pertaining to Acts of an Intelligence nature) if the twin towers had not been attached. However the Flight Data Recorder from the aeroplanes that went down among the trees has yet to be made public. Moreover the then president entertained a number of relatives of the alleged perpetrators days after the event.
    The 9/11 Commission Report (obtainable anywhere) has, over the last 15 years or so, been associated with the creditability attributed to that of the Warren Report. Indeed many of the assessments in the Report are repudiated outright : see along with this assessment A somewhat more anecdotal but fact-based report can be found here :
    It is beyond doubt that governments have sought to manipulate the news for centuries. But having made that point it doesn’t follow that the options for correction amount to the particular solution implied. Anyone who has (or has had) work experience in the Public Sector at a senior level will be familiar with instances where appellants have sort the services of Commissions to correct instances of abuses of authority or outright malfeasance of government departments.
    Almost every Government Department in Australia (and particularly the ATO, Immigration, CASA, Fisheries and Wildlife – to identify a few – where the public record can be examined) has been guilty of failing to observe due process at least and malfeasance of staff at worst. “Outrageous scandals” are not confided to the proceedings of ASIO or any other government agency; such “scandals” are part of the process of government anywhere in the world.
    An effective Senate (as it has been enlisted on such occasions to investigate Gov. Heads) and a knowledgeable and consciousness parliament are more effective that placing ones faith in a piece of paper; a Bill of Rights or anything else.

  8. 124C4U

    I saw exactly this situation develop and be used as described, in a country where I lived before.
    A problem is that Aussies have had it so good for so long that it is beyond their conception anything like that will happen here.
    Until something like backyard barques being interrupted by either the police or bureau of State Security starts. The grounds? Groups of more than four people can be declared an illegal gathering by an anti-terror law.
    It used to happen, and usually the “officials” of the ruling elite would just bludge a few drinks then depart if you were polite. Anyone who got stroppy got carted off for further interrogation and released later. Either way the point had been made showing who was BOSS (Bureau Of State Security).
    I recon D, A ,J and most of the LNP would cream their Jeans if given an opportunity like this. And NickZ, The Greens and probably Pauline would mysteriously disappear, later to “fall” out of a fifth floor window, accidentally beat themselves to death with a lead filled hose, electrocute themselves in strange ways or be shot trying to escape.
    Much to the “regret” of the pollies who “deplored” the excesses of the Security forces but who were doing a fabulous job of protecting the people.
    “Cry the Beloved Country”is it going to be our Country now?

  9. Kerry Lovering

    Face identification will be next to impossible for anyone under the age of 18
    Teens do not have driving licences and most do not have passports

    1. DrPixie

      So that’s why we need to keep them locked-up, without warrant or change …. all for their own good, of course #!!%$##&*!

  10. AR

    It is vitally important that people realise that this sort of thing cannot be obviated by voting Labor – they are totally complicit, not just gutless and afraid of being wedged.
    They look forward to the day they’ll be in office and have all these laws to use against all & sundry.
    And we are just ‘sundry’ matters to both sides who are only interested in doing their many ma$ters’ bidding.

    1. leon knight

      Perhaps AR, but I would rather Shorten and Dreyfus in charge of such matters than Dutton and Brandis.
      There is a very ugly pattern to the machinations of the current LNP.

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