While I do not know what evidence lies behind the anti-terror raids which swept across major cities in recent days, they should prompt all of us to ask serious questions about the 'war on terror' and its offspring.
It is important to note at the outset that terrorism, by its nature, is horrific. The act which it is alleged was prevented by these raids would have been a random killing of a person for no better reason that they lived in Australia. A spectacle killing carried out for the brutal purpose of a propaganda video. It is the right and duty of security services to act to prevent such things with all the arsenal that a state based on the rule of law allows.
Acts of terror are, however, criminal acts and a society that ditches the hard won democratic safeguards which surround the criminal law and prevent it from being abused rapidly becomes indistinguishable from the barbarities it attempts to fight.
At present, laws are being rushed through Parliament which, if passed, will have a major impact both on personal liberty and on the freedom of speech which the Government claimed to champion so vociferously when the field of discussion was racism and the Attorney General’s famed 'right to be a bigot'.
Section 35K of the ASIO Act 1977 inserted by Sch.3 of the new National Security Legislation Amendment Bill (No.1) 2014 protects participants in any 'special intelligence operations' from civil and criminal liability for any 'special intelligence conduct' during these operations. What sort of actions are included? Well, anything authorised by the Director General of ASIO or a Deputy Director-General that does not:
- causes the death of, or serious injury to, any person; or
- involves the commission of a sexual offence against any person; or
- causes significant loss of, or serious damage to, property;
or induce another person to commit a crime against the Commonwealth or a State or territory 'that they were not otherwise planning to commit'.
Clearly this covers all manner of crimes, ranging from kidnapping to holding people in solitary confinement (false imprisonment) up to physical torture which does not kill or amount to a sexual assault. The field is pretty broad and would cover everything from water boarding to force feeding to sleep deprivation to solitary confinement. In case this is thought fanciful, it is worth noting that while Australia is a party to the Convention Against Torture, it has so far declined to sign up to the Optional Protocol to that Convention which would ensure regular and impartial inspections of Australian detention facilities. I hasten to add that I have no evidence that ASIO has tortured people nor even that it intends to do so. Nevertheless, bitter experience has taught that unconstrained authorisations tend to be treated as such.
Section 35L gives some little comfort in providing that where a warrant would otherwise be required it is still required. In the light of cases such as that of Dr Haneef (who spent over three weeks in detention without charge), however, one has good reason to fear the amount of damage which could be done, even in those cases where a warrant should be required.
Obviously, terror attacks represent a threat about which one cannot be naïve. The best way in which one could reassure the public that such far reaching powers – assuming they were deemed necessary to combat this threat – would be used in the public interest (rather than for narrow commercial or political gain) would be close, independent surveillance of their exercise. There is nothing that breeds abuse as surely as a gift of unmonitored power.
Effective surveillance of its powers, however, is the one thing that the bill emphatically does not allow. Disclosing a special intelligence operation carries a 5 year prison term under s.35P and there is neither a public interest defence nor any protection for media outlets. Whistleblowers such as would-be Edward Snowdens or the media to whom they would expose any wrongdoing can expect no mercy from this bill.
Then again, taking a step back, while terrorism is a real threat in this day and age, it is hardly a killer on the scale of coronary heart disease or accidental falls, both of which far outstrip terrorism as killers on Australian Bureau of Statistics data. If measures such as these were proposed to combat medical health emergencies, motor vehicle accidents or even occupational health and safety issues, there would be a massive backlash on the part of the population. (Just imagine if reporting on the location of speed cameras carried a five year jail term!)
These kind of blanket rollbacks of important civil liberties, until recently taken for granted in Australia, cannot but provoke the suspicion that terrorism has become a diversion of the public’s attention from something much more sinister.
Justin Glyn SJ is a student of philosophy and theology who holds a PhD in international and administrative law.
Hacker image by Shutterstock.