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.

Peter Fray

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